ISIL Year Book of International Humanitarian and Refugee Law
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In the course of a visit to Ceylon in 1927 to popularise Khadi and prohibition Mahatma Gandhi addressed the Indian community in Colombo and exhorted them to integrate themselves with the indigenous Sinhalese population. Because of its contemporary relevance, I am quoting below relevant portions: “I would like to leave one or two thoughts with you before I leave Colombo. Since you are earning your bread in this beautiful island, I would ask you to live as sugar in milk. Even as a cup of milk which is full to the brim does not overflow when sugar is gently added to it, the sugar accommodating itself in the milk and enriching its taste, in the same way I would like you to live in the island so as not to become interlopers and so as to enrich the lives of the people in whose midst you are living”.
The analogy of sugar and milk, which Gandhiji cited in his speech to the Indian community in Ceylon in November 1927, was in conformity not only with his personal convictions, but also with abiding Indian traditions of tolerance and goodwill.
Tolerance of different religions had been an integral part of Indian tradition. India had been the home to all major religions in the world. It is worth mentioning that St. Thomas brought Christianity to India in Kerala - long before Vatican was Christianised. Jews, fleeing from Roman persecution, found refuge in Cranganore in Kerala in 68 AD and from there moved to different parts of the country. There was a flourishing Jewish community in Cochin, until the Jews after the Second World War, migrated to Israel.
The Indian religious tolerance is illustrated by an incident that is often quoted with reference to the arrival of Parsis in India. As is well known Parsis came to the West Coast of India from Persia. They came with their sacred fire, fearing persecution from the Muslims. They went to the Kingdom of Navasari and requested the King to give them asylum. The King told them that the flourishing Muslim community in his state may not like the presence of Parsis in their midst. The Parsi religious leader requested the King to get him a glass of milk and some sugar. When the milk and sugar were brought, he put the sugar in the milk and gently stirred the milk. The milk did not overflow, but became sweet. The Parsi religious leader informed the King that their presence in his Kingdom would be like sugar in milk. It would only sweeten it, not spoil it. And it must be stated to the credit of the Parsis, a miniscule community in India today, numbering around 100,000 - they have contributed much to the economic, educational, cultural and industrial advancement of the country. They are proud to be regarded as an integral part of the Indian nation.
Tolerance and goodwill made India a haven for refugees from very early times. In the Indian tradition, a stranger who comes as guest is referred to as Athithi and the host is expected to treat him as God next only to mother, father and preceptor. In the Yudhakanda of Valmiki Ramayana, when Vibhishana approached Rama for asylum, Rama told Sugriva: “O Sugriva, Chief of the Monkeys, please bring him here; I have granted him fearlessness, whether he is Vibhishana or even Ravana. Periyapuranam, the Tamil classic, mentions the story of the Chola King, Meyyaporul Nayanar, who was not only a temporal king, but was also a “realized soul”. One of his enemies wanted to kill him and came disguised as a devotee of Siva. He greeted the King with folded hands that concealed a knife. When the King responded in the same way, the enemy killed him by inflicting stab injuries. Tatta Namar, the King’s aide wanted to catch the culprit, but the dying king dissuaded him, saying the killer was a devotee of Siva and should be treated as God himself. In other words, the King saw divinity in every human being, particularly in a guest.
In more modern times, the movement of refugees and displaced persons has seriously affected India and other South Asian countries. Nearly 20 million people crossed the India-Pakistan borders before and after independence; 10 million East Pakistani refugees came to India before the liberation of Bangladesh; and 3.5 million Afghan refugees moved into Pakistan following the Soviet military intervention. 80,000 Tibetan refugees came to India after 1959 and are camped in different parts of the country. About 53,000 Chakmas have crossed over to Tripura, Arunachal Pradesh and other northeastern states. India has also provided shelter to 19,000 Afghan refugees and few hundred ethnic Nepalese from Bhutan. A small number of Burmese students, fearing persecution from the military regime, have also been given asylum. If we add Sri Lankan Tamil refugees to this figure, the total number of refugees and displaced persons looked after by India after independence would be approximately 25 million, which is more than the combined population of Sri Lanka, Singapore, Bhutan and Maldives. This experience has meant the establishment of a fairly well experienced bureaucratic machinery conversant with the problems of refugee administration.
The geographic location of India in the centre of South Asia has also had its inevitable impact on the refugee situation. The island status of Sri Lanka and the archipelagic nature of Maldives have kept refugees away. The moutainous remoteness of Bhutan has deterred refugees.
Majority of refugees in Pakistan and Bangladesh are from outside South Asia - Afghans in the case of Pakistan and Rohangiyas from Myanmar in the case of Bangladesh. As the only country that is contiguous to other South Asian countries, either by land or by sea, India has had to bear the brunt of the refugees from within the region.
Refugees are offshoots of conflicts and the resultant feelings of insecurity. The refugee, as Valentine Daniel aptly remarks, “mistrusts and is mistrusted. In a profound sense, one becomes a refugee even before fleeing the society in which one lives and continues to be a refugee even after one receives asylum in a new place among new people”. The dynamics of the refugee problem is determined by “foreign” and “domestic” politics. What is more, in the South Asian situation, where geographical boundaries do not conform to ethnic affinities, ethnic bretheren in the mother country champion the refugee cause. The presence of armed militants among the refugees and acts of violence perpetrated by them have created problems of security in the host countries. For example, the abundant supply of arms available to Afghan refugees, coupled with their involvement in the narcotics trade, has transformed the socio-economic-security profile of Pakistan. Similarly when the host territories feel threatened numerically or economically by the refugees, they provide fertile soil for agitational politics, Assam is an example.
The forced migration in South Asia, as Mahendra Lama points out, is of three types. First, the main villain is the state. By promoting policies of cultural homogeneity and upholding the interests of one community, the state makes it impossible for minority communities to co-exist with majority community. Second, few South Asian governments have resorted to forced eviction as a means of dealing with political dissidents. By denying citizenship to overwhelming majority of Nepalese in Bhutan and by driving them out of the mountain kingdom, the government has been able to concentrate power in the hands of a coterie in the royal palace. Third, whether it is Afghan refugees in Pakistan, East Pakistani refugees in India or Sri Lankan Tamil refugees in Tamil Nadu, the refugee phenomenon has become intertwined with the larger foreign policy objective.
South Asian countries are signatories to major international humanitarian and human rights covenants. Three countries - India, Pakistan and Bangladesh — are members of the governing ‘body of the UNHCR. What is more interesting, important political leaders like M.A. Jinnah, Z.A. Bhutto, Pervez Musharraf, I.K. Gujral and L.K. Advani were one-time refugees. Despite all these, none of the South Asian countries are signatories to the 1951 UN Convention on Refugees nor have they ratified the 1967 Protocol. South Asian countries have also not enacted any separate refugee legislation. As a result the problems confronting the refugees’ are dealt with on an ad hoc basis.
There is one silver lining in the overall situation. The UNHCR in India has taken the initiative to sensitise the intelligentsia about the problems of refugees in South Asian countries. A number of seminars and workshops have been organised in collaboration with Universities and organisations like the SAARCLAW and Indian Centre for Humanitarian Law and Research (ICHLR). Informal consultations have taken place and a Model Law on Refugees has been drafted by an Indian Group of Concerned Eminent Persons, under the chairmanship of Justice P.N. Bhagwati, former Chief Justice of India. Justice Bhagwati has succinctly posed the problem as follows: “Would the setting up of an appropriate legal structure or framework not help to provide a measure of certainty in the States dealing with the problem of refugees, and provide greater protection for the refugees?”. India and other South Asian countries must seriously ponder over this question.
The basic principle underlying New Delhi’s refugee policy is to view the problem strictly in a bilateral perspective. The refugees should return to their homeland once the situation improves there. Dealing specifically with the Tibetan refugees, Jawaharlal Nehru declared that India’s policy on the subject was governed by three factors: (1) India’s desire to maintain friendly relations with the Peoples Republic of China; (2) Protection of the security and territorial integrity of India; and (3) India’s deep sympathy for the people of Tibet.
As mentioned earlier, like other countries of South Asia, India is not a signatory to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol. At the same time, it must be pointed out that compared to many developed countries, South Asian countries have been relatively generous toward asylum seekers. As Tapan Bose points out, South Asian states have given shelter and humanitarian relief to victims of forced migration, natural disaster, ethnic strife and ecological disasters. To quote Bose, there are “very few instances when asylum seekers have been blocked or refused entry into a South Asian State”.
Why is India not a signatory to the 1951 Convention? An analysis of Indian experience with refugees clearly shows that the policy of refugee determination cannot be done on an individual basis. The Indian experience is one of mass inflow of refugees, whether from Pakistan before and after partition, Tibet after 1959, Bengalis from East Pakistan before the liberation of Bangladesh or Sri Lankan Tamils after the communal holocaust in 1983. Other historical realities have also dissuaded India from signing the Convention. The 1951 Convention is Euro-centric and the refugee policies of the United States and West European countries in the past was intertwined with cold war politics. Equally relevant, as B.S. Chimni has forcefully argued, the Convention is being “dismantled by the very states which framed the Convention”. Any talk of accession “should be linked to the withdrawal of measures that constitute non-entre and temporary protection regimes”. Instead of “burden sharing”, the Western countries are resorting to “burden shifting”.
The question of signing the UN Convention has engaged the attention of the Government of India on several occasions, in 1967, in 1992-94 and just before India became a member of the Executive Committee of UNHCR. The Ministry of External Affairs rightly considers the Convention and the Protocol as “a partial regime for refugee protection drafted in a Euro-centric context”. As a backgrounder of the Ministry points out:” They do not address adequately situations faced by developing countries, as it is designed primarily to deal with individual cases and not with situations of mass influx, they also do not deal adequately with situations of mixed flows, that is, they do not distinguish between political refugees and economic migrants... the Convention does not provide for a proper balance between the rights and obligations of receiving and source states. The concept of international burden-sharing has not been developed adequately in the Convention. The idea of .minimum responsibility for states not to create refugee outflows and cooperating with other states in the resolution of refugee problems should be developed. The credibility of the institution of asylum, which has been steadily whittled down by the developed countries, must be restored”.
Before the countries of South Asia arrive at a consensus on Regional Convention on Refugees, each state should enact national legislation. This legislation should not only spell out the rights of the refugees; it should also safeguard the territorial integrity and security of the state. Today the problems of the refugees are dealt with on an ad hoc basis. However, there are issues that cannot be addressed in this way. For example, do the refugees have the right to work? Do they have freedom of association? Refugee Law, as Justice P.N. Bhagwati has pointed out, would “help to provide a measure of certainty in the states, dealing with the problem of refugees”. It would also provide greater protection to them. The legislation would enable all concerned to make a distinction between economic migrants and refugees. And, above all, it would incorporate the principle of non-refoulement, the basic tenet of International Refugee Law. Article 33 (D) of the UN Convention states: “No contracting state shall expel or return (refouler) a refugee in any manner whatsoever to the frontier of territories, where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”.
Since there is no refugee law in India, refugees are treated as aliens. They are covered by the Registration of Foreigners Act, 1939 (Central Act 16 of 1939) which is applicable to all foreigners. The Foreigners Act, 1946 (Central Act 31 of 1946) empowers the State to regulate the entry, presence and departure of aliens in India. The Passport (Entry into India) Act, 1920 (Central Act 34 of 1920), the Passport Act, 1967 (Central Act 15 of 1967) govern the entry and departure of persons. Further, under the Constitution of India, certain fundamental rights - right to equality (Article 14); right to personal life and liberty (Article 21); and the freedom to practice and propagate one’s own religion (Article 25) are guaranteed to citizens and non-citizens alike. These provisions, it must be pointed out, are in contrast to certain other rights such as the right to move freely throughout the country, reside and settle in any part of India, practice any profession in India etc. (Article 19) which are available only to citizens. The judiciary has played a constructive role in protecting the interests of the refugees. In the famous case of NHRC vs. State of Arunachal Pradesh (1996), the Supreme Court held that: “The State is bound to protect the life and liberty of every human being, be he a citizen or otherwise”. The National Human Rights Commission also acts as a watchdog as far as refugee rights are concerned.
A study of the situation in Tamil Nadu, with reference to the presence of large number of Sri Lankan Tamil refugees, is a clear illustration to drive home the point that India should not only take immediate steps to revamp the security machinery, but also should enact a national refugee law. During recent years, there had been a number of serious lapses, which have enabled the Tigers to become a law unto themselves. The assassination of Padmanabha and his EPRLF comrades in June 1990; the cold-blooded murder of Rajiv Gandhi in May 1991; the escape of Kiruban, a top LTTE leader while being taken to Pudukkottai in April 1993; the escape of Charles Nawaz, a witness in the Rajiv Gandhi case in May 1993 from the Saidapet special camp; the daring escape of the LTTE cadres from the Tipu Mahal special camp in Vellore in August 1995 - the list is very long, it brings no laurels either to New Delhi or Chennai. If on that fateful night in Sriperumbudur, female security personnel had physically frisked all women who wanted to ,garland Rajiv Gandhi, perhaps we may not have lost a political leader of great promise in the prime of his life. Among the accused in the Rajiv Gandhi assassination case, half a dozen - Robert Payas, Jayakumar, Shanti (Jayakumar’s wife), Vijayan, Selva Lakshmi (Vijayan’s wife) and Bhaskaran (Vijayan’s father-in-law) - were registered as refugees.
The absence of a well-defined national refugee law has created a number of anomalous situations. Three illustrations pertaining to Sri Lankan Tamils are given below. Among the 26 accused in the Rajiv Gandhi assassination case, six were registered as refugees. Judge Navaneetham awarded capital punishment to all the 26 accused. The Supreme Court confirmed the death sentence on four and awarded life imprisonment for three. The rest were convicted for lesser offences under the Arms Act, the Explosives Substance Act, the Foreigners Act, the Passport Act etc. As they had already undergane imprisonment for these offences, the Supreme Court set them free. While the acquitted Indian nationals were set free, the acquitted Sri Lankan Tamils are still placed in Special Camps.
The second illustration refers to Ahat case. The ship Ahat was registered in Singapore and was flying a Honduras flag. It was allegedly carrying weapons and ammunition to the LTTE in Jaffna when the Indian Navy and the Coast Guard intercepted it. After an exchange of fire, the ship was set ablaze and some Sri Lankan Tamils, including LTTE leader Kittu, committed suicide. Judge Lakshmana Reddy acquitted all the accused in the case and ordered the Commissioner of Police to hand them over to the State of Honduras. The Special Investigation Team (SIT) and the Central Bureau of Investigation (CBI) went on appeal to the Supreme Court, which found the accused guilty of some charges and sentenced them to a total period of imprisonment of three years. Here again, the accused had completed the term of imprisonment and, therefore, were set free. The State of Honduras did not want to take the Tamils; nor did the Tamils have a Honduras passport. The Tamils also did not want to go back to Sri Lanka. One Tamil went to Middle East. The rest are in “safe custody” in Visakhapatnam.
The third illustration is a grim reminder of the ignorance of the Tamil Nadu security officials about the international network which the Tigers have built up over the years. Bhaskaran, an LTTE guerrilla, was detained in the Saidapet special camp after Rajiv Gandhi assassination. No charges were preferred against him, and Bhaskaran appealed to the authorities for permission to go abroad. The immigration authorities left Bhaskaran at the Meenambakkam airport. A few weeks later, Bhaskaran was found in Phnom Penh negotiating the purchase of surface-to-air missiles for the LTTE. What is more, he boasted to the journalists about how he hoodwinked the authorities in Tamil Nadu.
The examples given above should serve as a warning to New Delhi and Chennai. Even under existing rules and regulations, aliens working against Indian national interest can be deported. There are judicial precedents too. In Mohammed Sadiq vs. Government of India, the court ordered the deportation of refugees under the Foreigners Act, 1946 since they had engaged in anti-national activities. What is lacking is the political will to make difficult decisions. India, especially Tamil Nadu, cannot afford to be a “soft state”. A national legislation on refugees, combining the humanitarian needs of the refugees with the security interests of the state, should be enacted. Let not history relive T.S. Eliot’s message in the Four Quartets: “We had the experience, but missed the meaning”.
[*] The author is former Director and Senior Professor, Centre for South and Southeast Asian Studies, University of Madras, Chennai. The author would like to thank P.B. Venkatasubramaniam, former Law Secretary to the Government of India, for his valuable suggestions.
[l] “Speech at Reddiar Sangham” (November 25, 1927), Collected Works of Mahatma Gandhi (Ahmedabad, 1969), Vo1.39, pp. 315-16.
 Valentine Daniel, “The Nation in Sri Lankan Gatherings in London”, Pravada (Colombo), July-August 1993, pp. 12-17
 Mahendra P.Lama, “World Refugee Problem”, World Focus (New Delhi), January 1999, pp. 3-6.
 SAARCLAW and UNHCR, Refugees in the SAARC Region: Building a Legal Framework (Seminar Report, New Delhi, 1997), p.23.
 N.L. Narasimha Rao, Indian Practice of International Refugee Law (Unpublished M.Phil dissertation, School of International Studies, Jawaharlal Nehru University, New Delhi, 1991).
 Tapan K. Bose, Protection of Refugees in South Asia: Need for Legal Framework (Kathmandu, 2000), p.13.
 B. S. Chimni, The Law and Politics of Regional Solution of the Refugee Problem: The Case of South Asia (RCSS Policy Studies 4), (Colombo, 1997), p.7.
 UN Division, Ministry of External Affairs, Refugees (No UI/ 151.5/8/99).
 P.N. Bhagwati, “Presidential Address”, Refugees in the SAARC Region: Building a Legal Framework (New Delhi, 1997), pp.19-23.
 UNHCR, Some Basic International Legal Documents on Human Rights and Refugees (New Delhi, n.d.).
 “National Human Rights Commission vs, State of Arunachal Pradesh and Others”, Bullettin of IHL and Refugee Law (New Delhi), Vol.1, No. 1, Pp. 147-59.
 Judgement in Rajiv Gandhi Case (Designated Court No 1 under TADA Act of 1987).
 Supreme Court Almanac (New Delhi), Vol.3, Nos 3 and 4, May 10-16, 1999, pp. 241-516.
 Judgement by Justice B. Lakshmana Reddy (Sessions Judge and Designated Judge under TADA), 29 June 1996.
 The Hindu, August 24, 1996.
 Ibid, September 21 , 1996.
 Quoted. in Bose, n.7, p.35.
 T.S. Eliot, Four Quartets (New York, 1941), p. 39.
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