Citizen's Amendment Bill and the Need for a Refugee Policy

Today's interaction will see most dwelling on the Citizen's Amendment Bill (CAB) and going into its fine details and its pros and cons. I would, however, like to avail of this opportunity to underline two points.

First, that the Prime Minister is spot on in pointing out that it constitutes a move to rectify the mistakes of partition and second that it is animated by India's ethos and rooted in its historical experience.

The mistake committed by the Congress government at the time of partition was to believe that the minorities in Pakistan, inclusive of East Pakistan, would be able to live there in safety and security. The holocaust of 1947 which saw the largest mass migration known to mankind and the subsequent squeezing out of the minorities from East and West Pakistan proved them wrong. In 1947, as many as 7.5 million Hindus and Sikhs migrated to India, around 5 million from West Pakistan and around 2.5 million from East Pakistan. While the bulk of these minorities were driven out of West Pakistan by 1951, those from East Pakistan and later Bangladesh faced with persecution came to India over a longer time span. The steady minority migration from the area of East Pakistan is borne out by decrease of the Hindu population there from 27% in 1947 to 22% in 1951 to 13.5% in 1974 and to about 9% in 2011.

The mistake of the Congress government is magnified by the fact that not merely did they feel that the minorities could safely stay put in Pakistan, but they went out of their way to advise and, in fact, urged them to stay put. This is all the more inexplicable as in early June 1947, Mr C.N. Chandra, ICS, Relief Commissioner and later Secretary Relief and Rehabilitation, is quoted by Madhav Godbole in his book ‘The Holocaust of Indian Partition’ to have urged the government, following a tour of West Pakistan, to move the minorities out of the area before 15th August 1947 warning that if this was not done we would witness a tragedy unprecedented in history. The advice fell on deaf ears and was rejected by the government. The rest is history. Clearly the Congress has blood on its hands on this account and the Citizen's Amendment Bill is a belated move to enable these hapless persecuted minorities to live a life of dignity in safety and security.

The second point of note is that the Bill is in merely in keeping with India's age old belief and practise of athithi devo bhava. India has always provided shelter and succour to the persecuted. All manner of peoples have come to India through the centuries and made it their home. The Parsi community which came to India in the eighth century and flourished is the best known example of this.

As far as independent India is concerned, its history started, as mentioned earlier, with the largest mass migration known to mankind. In a matter of a few months it absorbed as many as 7.5 million refugees from Pakistan. This was followed in 1971 when India accommodated as many as 10 million refugees who fled persecution in the erstwhile East Pakistan. But this was not all. In the mid 1960's, India accepted as many as 6,00,000 plantation worker Tamils from Sri Lanka who after a century in that country were declared stateless. Indeed, independent India has accepted migrants from almost the entire neighbourhood at different points of time. As we speak, India is hosting 20 million from Bangladesh of whom about half are Hindus, one lakh each from Sri Lanka, Pakistan and Afghanistan, 1,25,000 from Tibet and 40,000-50,000 Rohingyas.

There are, in the main, two types of migrants, notably those fleeing persecution and those who leave their homes due to economic and other factors. India is home to both. Many from Bangladesh are economic migrants while most of the rest are those who have left their countries fearing persecution. The Citizen Amendment Bill caters to those who have migrated due to persecution. It is my hope that this Bill constitutes a first step in evolving a comprehensive refugee policy

India is located in a rough neighbourhood surrounded by fragile democracies from where influx of people due to persecution is always a possibility. Given our ethos, traditions, and practices it is surprising that we have not yet evolved a refugee policy. We do not have a national refugee law and are not signatories to the 1951 UN Convention on the Status of Refugees and its related 1967 Protocol - which set the basic standards of treatment to be meted out to refugees of which the most fundamental is non refoulement. However, our not signing the aforesaid Convention and Protocol does not absolve us from observing the basis humanitarian law relating to refugees including the principle of non-refoulement as we are signatories to the Universal Declaration of Human Rights (UDHR), 1948, the International Convention on Civil and Political Rights (ICCPR-1966) and the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Torture Convention-1984). Also, Article 14 [3] of the UDHR, Article 13 of the ICCPR-1966 [4], and Article 3 of the Torture Convention-1984 [5], each expressing a commitment to protect refugees. Additionally, the right to refoulement is internationally recognized today as a part of customary international law. Article 51(c) [6] of the Indian Constitution directs the State to respect international law and treaty obligations. Customary international law has been held by the Supreme Court [7] to be part of international law.

In the absence of a national refugee law the treatment meted out to each differs and is determined in an ad hoc manner. Refugees in India currently are treated at par with other foreigners as per domestic requirements governing their entry, stay, and exit as including in the Foreigners Act, Registration of Foreigners Act, Passport Act etc.

There is strong case for developing a refugee law and becoming a signatory to the 1951 UN Convention on the Status of Refugees and its related 1967 Protocol which have been signed by over 140 countries, as India is not only host to a very large migrant population but also observes the highest standard of treatment of refugees including the principle of non- refoulement. It incidentally is also a member of the Executive Committee of the High Commission of Refugees since the mid 90's.

The advantages of evolving a national refugee policy may be listed as follows:-

1. It will facilitate equality in the treatment of various categories of refugees by defining their rights;
2. Will institutionalise the process for identifying foreigners in India notably genuine refugees and illegal migrants. Checks against illegal migrants would thus be streamlined and strengthened;
3. It would a provide a legal status for refugees which will be temporary and predicated not only on rights but also duties;
4. It could include provisions for safeguarding India's security and other concerns such as the quantum of intake of migrants and their location;
5. It would enable involvement of the UNHCR which would not only provide financial support but also help to relocate the refugees to the country of origin;
6. Finally, it would also insulate India from any aspersions as to its motives in providing shelter to the persecuted from areas such as Baluchistan or Sinkiang.

I understand a draft refugee law was considered in 2010 but was turned down on rather flimsy considerations such as that it would encourage a fresh influx of economic migrants from Bangladesh, absence of national identity papers, inadequate border controls etc. A fresh influx of economic migrants from Bangladesh is unlikely as economic conditions there are now much better. The situation of Indian identity documentation has also improved and border controls, though still not what they should be, can be quickly optimised given the demarcation of our borders with Bangladesh.

In these circumstances, a comprehensive refugee law needs to be developed which while enabling the controlled migration of the persecuted to India does not in any way jeopardise national security and enables the migrants to live in India with safety and dignity till they can return home.

Talk Delivered at Seminar on ‘Challenges of Migration’ held on 7th January 2019 at the Vivekananda International Foundation in the backdrop of Citizenship Amendment Bill 2016 and its Implications.