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Nearly 58 years after the United Nations adopted a convention on refugees, India is finally shaping its own legal framework to define the status and rights to be granted to refugees.
The home ministry is currently chalking out the draft of the Refugees and Asylum Seekers (Protection) Bill and it will be presented before the Union Cabinet in early November. Once cleared, it will be introduced in the winter or Budget session of Parliament.
The bill seeks to define the criteria to grant refugee status to a person and outlines the procedure to seek asylum in the country.
The refugee is defined as a person who is outside his country of origin and who is unable or unwilling to return to and is unable or unwilling to avail himself of the protection of that country because of a well-founded fear of persecution on account of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion.
Three categories of refugees are so far recognised in India: Nepal and Bhutan nationals who benefit from the Friendship Treaty with their respective nations, Tibetans and Sri Lankans who are provided relief and rehabilitation by the government and their basic rights safeguarded till their departure, and refugees recognised by the United Nations High Commissioner for Refugees, including people from Afghanistan and Myanmar, for whom India is merely a transit country before they settle permanently in a third country and receive subsistence allowance from the UNHCR.
Incidentally, the 46-page brief is silent about the status granted to Bangladeshi immigrants, many of whom fled to India during the 1971 war with Pakistan, and settled in the rehabilitation camps set up by the government.
A stringent condition, demanding that asylum applications be entertained only from refugees who report at the border check posts, with or without valid travel documents, has been included to prevent illegal migrants from seeking asylum under the proposed law.
An illegal migrant who has snuck into the country without valid travel documents shall not be entitled to apply for asylum and will be subjected to legal proceedings under the Foreigners Act.
However, the central government retains the power to declare any group of category of people -- who have entered the country during a mass influx -- as refugees through a gazette notification, without requiring them to apply individually for asylum.
According to the draft bill, a person or group of people will be granted the status of refugee(s) if they have been compelled to leave their place of habitual residence and seek refuge in another country because of external aggression, occupation, foreign domination, serious violation of human rights or other events seriously disrupting public order in either a part or whole of the country of origin.
The bill clarifies that that determination of an application for asylum should not be limited to the fear of persecution solely by the government or its agencies of the country of origin, as the asylum seekers may be victims of a non-governmental group that makes their living in the country impossible.
The internal security division of the home ministry, as well as intelligence and security agencies, had opposed the bill on the ground that it would pose a danger to national security, since India has a large tracts of porous borders with neighbouring countries and it has no effective immigration and border control.
The agencies fear that the proposed law would work as an incentive for people from neighbouring countries to come to India under the garb of a refugee. They point out that European countries and the United States don't face such problems as they have a system in place where ever citizen possesses an identity document.
The agencies have particularly opposed the provision regarding the granting of refugee status to an entire group after a mass influx, without any provisions for advance scrutiny to segregate undesirable elements.
However, a high-level committee headed by the additional secretary (border management) in the home ministry overruled these objections, on the ground that "there are systems in place to verify the antecedents of the persons coming from abroad."
In its report to the government, the committee pointed out that recently, such a scrutiny was carried out to check refugees from Sri Lanka. Moreover, Section 28 in the draft bill imposes reasonable restrictions on the movement or location of mass influx refugees and provides for detention of any refugee violating these restrictions.
The issue was also examined by the National Security Council Secretariat which decided that the advantages to India in enacting the refugee law far outweigh the disadvantages. The NSCC further suggested that the bill be implemented through an administrative order under the Foreigners Act if it faces difficulties in generating a political consensus to enact the law.
Sources point out that the draft bill clearly prohibits asylum to anyone who has committed a serious non-political crime outside India or who has been convicted of a crime against peace, a war crime, a crime against humanity or financed terrorism.
The draft bill is based on a model law on refugee protection, submitted by former Chief Justice of India P N Bhagwati in 2000, but it has dropped certain recommendations about refugee's rights to prevent security risks.
These rights include the refugee's right to choose the place of residence and move freely within India, right to adequate housing facilities, right to employment, healthcare rights, right to free and compulsory primary education and right to move courts for enforcement of rights conferred under the Indian Constitution.
These rights have also been denied to the asylum seekers and mass influx refugees.
The central government also holds the power to review the refugee status given to a person. The final decision about granting/withdrawing refugee status will be taken by the central government, after an inquiry into the matter and a deposition by the concerned person.
The draft bill also outlines the rights and protections which will granted to the refugees. These include a formal written recognition for continued residence in India which can be used to apply for a residence permit, an identity document, a travel document, and fair and just treatment in accordance with due process and procedure established by law, without discrimination.
There are also detailed provisions in the draft bill on voluntary repatriation of the refugees. The government is, however, required to take written approval of the Commissioner of Refugees before repatriating any refugee.