India takes first steps to define ‘refugee’

April 29th, 2008 - 10:59 am ICT by admin  

A file-photo of Taslima Nasreen
By Devirupa Mitra
New Delhi, April 29 (IANS) After giving asylum to hundreds of thousands of people through the years, India has finally begun the process of defining the term “refugee”. According to the World Refugee Survey 2007, India is host to around 435,900 refugees, of which the Dalai Lama, the spiritual leader of the Tibetan Buddhists, is perhaps the most prominent.

The move to define a refugee is part of a recent initiative to finally put in place a national law, instead of relying on a 1946 British Raj act which does not even conceptualise the term.

While the first formal meeting of an inter-ministerial committee set up to draft legislation on refugees took place two months ago, the next one is slated some time soon.

Officials attending the first meeting were from the National Human Rights Commission (NHRC) and the the ministries of home affairs, external affairs and law.

In the absence of a clear-cut guideline, the legal status of refugees is governed by the 1946 Foreigners Act, which defines a foreigner broadly as “a person who is not a citizen of India”. The act gives the state broad powers to deport foreigners, which have frequently been invoked by police - generally free from judicial review.

In the absence of a legal process, India’s treatment of asylum seekers has always been a political decision, a direct result of the country’s relations with the refugee’s country of origin.

Interestingly, India has never been a member of the 1951 international convention for refugees and its 1967 protocol. And even though it is a member of the UN High Commissioner for Refugees (UNHCR) executive committee, it does not officially recognise the work on the UN body in its territory.

India’s reluctance to sign the convention stems from its position that it is Eurocentric, tailored to fit the refugee movements after World War II and has not responded well to mass migrations.

“Despite not signing up, our record of giving shelter has been very good,” a senior government official told IANS, not wanting to be identified because of official rules.

The NHRC had previously set up an expert group to advise on refugee law and policy and has been recommending the adoption of national legislation.

The recent movement on this front by the Indian administration, according to the senior official, could be traced to the fact that the absence of accession to the 1951 convention or a national law is questionable on the international stage.

“If India wants to be part of the high table and project itself as responsible power, then why should it be afraid to have a policy on refugees,” he asked.

There were at least two versions of a draft model law on refugees before the government began deliberating the matter.

The first one was drawn up by a working group chaired by former chief justice P.N. Bhagwati within the UNHCR-backed Eminent Persons Group in 1997. A second more comprehensive version was proposed by the Public Interest Legal Support and Research Centre in 2006.

Both the model laws have suggested a two-tier system for administering refugees, Commissioners of Refugees and a Refugee Committee as an appellate authority. They also include the principle of “non-refoulement” - a key principle of the 1951 convention that prohibits the expulsion of a refugee if he is likely to be persecuted.

Such a law could also for the first time accord formal recognition to the UNHCR’s activities in India. “But, we still don’t intend to sign the convention,” added a senior MEA official.

While India has seriously started the process for domestic legislation, misgivings remain in the corridors of power.

In the North Block, there are concerns that the refugee law could bind the executive from taking action against any “undesired” visitors. “Suppose a person goes to the courts if he fails to get identified as a refugee. These cases could drag on for years in our court system,” said a home ministry official.

There are apprehensions in the external affairs ministry that a law would tie down the government in its response to all asylum-seekers, irrespective of overarching national interests.

“For example, if we recognise a person as a refugee, say, Taslima Nasreen, it implicitly means that you are indirectly indicting the person’s country of origin, here Bangladesh, of persecuting them. That country may not take kindly to the finger-pointing,” he said.

(Devirupa Mitra can be contacted at devirupa.m@ians.in)

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