This paper will examine how the national law initiatives can be broadened and revived with upcoming ‘climate refugees’.
India’s geopolitical position in South Asia is popular for asylum seekers, migrant workers and future flows of climate refugees. Without the legal recognition, refugees in India have difficulties in accessing basic facilities such as employment, medical facilities, education and health care.
It is now widely known that climate change will significantly affect India. There are few studies available on how climate change is going to affect the migration of people. It has been claimed that 70,000 people of the 4.1 million living in the Indian part of the Sundarbans islands would be rendered homeless by 2020. India is home to nearly 190,000 refuges originating from various countries around the world. Yet, refugee protection in India is regulated solely at policy level by national administrative authorities. There are no laws that distinguish between refugees and foreigners in India. Thus, there is a clear gap within the law which requires immediate action and attention. India needs to develop its own Refugee Protection laws.
2
1.
Abstract
"Everyone has the right to seek and to enjoy in other countries asylum from persecution."
Climate change symbolizes an inherently global challenge. The effects of climate change may
displace two hundred million people both internally and across national borders by the middle of
the twenty-first century (UNHCR, 2009). In recent years, severity of natural disasters pushed
people from their homes on an unprecedented scale. Climate refugees require adequate land right
provisions in future treaties to ensure effective international resettlement. The Indian legal
framework has no uniform law to deal with its huge refugee population, and has not made any
progress towards evolving one. India has so far dealt with situations of mass influx without a
refugee law. The need for a refugee law is urgent and immediate in the wake of climate induced
migration emergencies. This article examines current domestic law, protection instruments and
points out gaps in them and examining of various proposals for filling those protection gaps, with
the focus on cross-border climate induced displacements/migration.
3
2.
Introduction
It is now widely recognized that climate change will significantly adversely affect India, there
are few studies available on how climate change is going to affect the migration of people. It has
been asserted that 70,000 people out of the 4.1 million living in the Indian part of the Sundarbans
islands would be rendered homeless by 2020 (Panda, 2010). India is home to nearly 190,000
refuges originating from various countries around the world (Sarker, 2014). Yet, refugee
protection in India is regulated solely at policy level by national administrative authorities. India
is neither a party to a 1951 Refugee Convention nor 1967 protocol nor has it adopted national
refugee legislation. In India due to the absence of a codified protection strategy or a specific
national law on aliens; refugee rights in our country are highly ambiguous. Hitherto, there are no
laws that distinguish between refugees and foreigners in India. Thus, there is a clear lacuna
within the law which requires immediate action and attention. India needs to develop its own
Refugee Protection laws. In this paper, we will be examining how the National law initiatives
can be broaden and revived with upcoming `climate refugees' which is being represented as
`carrier of crisis' by dominant literature.
India's geopolitical position in the South Asia makes it a preferred destination for asylum
seekers, migrant workers and future flow of climate refugee per se. The cross-border movement
into India, which should be a foundation to frame a National refugee law, the need for which is
becoming very essential with a increasing conflict in the South Asian region with upcoming
emergencies of climate change. Without the legal recognition, refugees in India have difficulties
in accessing basic facilities such as employment, medical facilities and education, health care.
4
3.
Climate induced Displacements/ Migrations in/to India
Major impact of climate change is the increased frequency and severity of certain hazards and
forced displacements and migrations. In 2009, OCHA worked with the Internal Displacement
Monitoring Centre of the NRC have estimated that in 2008 as many as thirty-six million people
had been displaced by such disasters over twenty million by climate-related sudden-onset
disasters alone. All countries will be affected by climate change, but some are more directly
exposed than others. The IPCC reports highlights that dangers associated with the Arctic, Africa,
small islands, and the Asian and African mega-deltas, while recognizing that `within other areas,
even those with high incomes, some people (such as the poor, young children and the elderly)
can be particularly at risk, and also some areas and some activities' (IPCC, 2007).Much sudden-
onset, natural-disaster-induced displacement is temporary if there is effective rehabilitation and
recovery, but some displacement becomes permanent. (IASC, 2008)
The International Organisation for Migration estimates that eventually some one billion people
could be environmentally displaced from their original homes and lands ( Lonergan and Swain
1999). In terms of likely displacement within particular countries including China (30m
displaced), India (est. 30m displaced), Bangladesh (est. 20m displaced) and Egypt (14m
displaced) . How, people displaced by climate change are being protected by International and
National legal regimes in India are still uncertain. Those displaced by climate change are not yet
recognized in international law as a special group whose rights are expressed or as a formal legal
category of people in need of special protection (McAdam J and Saul B., 2008). The irony of the
fact that the protection needs of people displaced by Climate Change have not yet been fully
taken with a sense of urgency. Legal moral scholarship is still at nascent stage in context of
climate induced forced displacements.
5
4.
Historical background of Practices of Refugee Protection in India
In South Asia, India is committed to maintaining a tolerant, democratic and secular government
in a neighbourhood of unstable and impulsive states. India has absorbed several flow of
population in the history and these peoples integrate into a multi-ethnic society and contribute
peacefully to local cultures and economies have beckoned other refugees (Acharya, 2004).
Before the drafting of the 1951 Refugee Convention, India has faced the largest movement of
refugees during the time of partition. An independent Ministry of Rehabilitation in 1947 was
created to assist the displaced persons from both West and East Pakistan. In the period of 1984 -
1985, the government of India abolished the Department of Rehabilitation and created a
Rehabilitation Division under the Ministry of Home Affairs. At present this is known as
Freedom Fighters and Rehabilitation Division (The Rehabilitation Wing, 2015). India shares
land and maritime borders with eleven countries, most of which are in various states and over the
years, has hosted large refugee populations from neighbouring countries. Despite India's porous
borders and accommodative policies in 2004, India hosted approximately 3, 30,000 such people (
Florina Benoit, 2006).
On the eve of partition in 1947, 3.4 million (Government of India, 1954) people had come to
India from East Pakistan and the first five year plan provided1357 million rupees (ibid:2) for the
rehabilitation of those refugees. By the end of July 1948, the number of refugees coming from
East Pakistan (former Bangladesh) was around 1.1 million (Prafulla K Chakraborty, 1999). In
June 1952, there were about 2062 government refugees camps (Hiranmay Banerjee, 1970). In
1959, India faced again the regional (Eileen Kaufman, 2008) flow of refugees from Tibet and
accepted them on humanitarian grounds. It has now been almost 55 years that they have had to
settle in India. There was vertical rise of refugees in 1965 minority community people fled from
East Pakistan to India due to fear of persecution by the Pakistani Army. In the period from 1964
to 1968 a large number of Chakmas migrated to India due to the ethnic disturbance in the
Chittagong Hill Tracks Area. But the majority of refugees from this area were admitted at once
in 1971 when the Liberation War of Bangladesh broke out. There was also a movement of
refugees from Bangladesh in 1986 from the Chittagong Hill Tracks in Tripura when the
6
government of Tripura arranged for rehabilitation packages for these people (Malabika Das
Gupta, 1986). Even today, the minority population of Bangladesh crosses the international
border fleeing persecution ( Shuvro Prosun Sarker, 2014).
4.1. Purpose to Refugees: The Foreigners Act
The Foreigners Act is an old legislation that was enacted by a colonial government in response to
the needs of the Second World War (The Foreigners Act, 1946). Government of India's desire to
retain this act after more than sixty years of independence represents absolute powers to deal
with foreigners. Section 2(a) of the Act defines a `foreigner' as "a person who is not a citizen of
India", thus covering all refugees within its ambit as well. Without a specialized governance
regime for refugees they are usually treated on par with foreigners and illegal migrants, without
any special protection being accorded to them. However, it is necessary to draw a distinction
between foreigners as a general class and refugees as a special subset of that class.
Section 3 of the Foreigners Act vests the Central Government with the power to issue orders to
control foreigners in India. There are a number of such orders in force that restrict the movement,
activity and residence of foreigners; and, require their proof of identity and regular appearance
before the police (the Foreigners Order, 1960, 1962, 1968, 1986, 1971). The Foreigners Act
gives the executive wide powers to remove foreigners from India that have generally been
exercised free from judicial review. This power is given to the Central Government by Section
3(2) (c) of the Foreigners Act, 1946. This is in addition to the power to refuse entry for non-
fulfillment of entry conditions that invites instant deportation. The unrestricted power of the
executive to remove foreigners was first confirmed by the Supreme Court in 1955 where it held
that:
"The Foreigners Act confers the power to expel foreigners from India. It vests the Central
Government with absolute and unfettered discretion and, as there is no provision fettering this
discretion in the Constitution, an unrestricted right to expel remains."(ibid)
7
The untrammelled right of the executive to remove foreigners from India has been upheld by the
Supreme Court in a number of subsequent decisions. While exercising this vast executive
discretion, any foreigner may be deported without the executive being burdened to give a reason
for the deportation (Hans Muller AIR 1955).
4.2. Constitutional Protection to a Foreigner
Foreigners are allowed to some degree of protection and care in India under the constitution.
This includes Article 14 that guarantees equality before the law and the equal treatment of the
law and under Article 21 of the Indian constitution right to life, liberty and due process
provision. Foreigners enjoy the protection of Article 21 in two ways: (a) They are equally
entitled to the right against deprivation of life or bodily integrity and dignity (Louis De Raedt
1991) (b) To a certain extent, the right against executive action procedural due process accrues to
them (P. Mohammad Khan 1978).
Foreigners are also entitled to the protection of some of the rights recognized in Article 20
Article 22 [rights upon arrest or detention] Articles 25-28 [the right to freedom of conscience and
the free practice and propagation of religion]; and, Article 32 [the right to move the Supreme
Court for encroachments of the rights listed above]. Courts in India have also provided a certain
measure of socio-economic protection in special circumstances the role of the UNHCR in India
has also been given a limited recognition by the judiciary. In 1996, the Supreme Court in
National Human Rights Commission v/s. State of Arunachal Pradesh((1996) 1 SCC 742)
intervened with a liberal interpretation of the law to suggest that refugees are a class apart from
foreigners deserving of the protection of Article 21 of the Constitution. The Court held at pr. 20:
"We are a country governed by the Rule of Law. Our Constitution confers certain rights on every
human being and certain other rights on citizens. Every person is entitled to equality before the
law and equal protection of the laws. So also, no person can be deprived of his life or personal
liberty except according to procedure established by law. Thus the State is bound to protect the
life and liberty of every human being, be he a citizen or otherwise, and it cannot permit anybody
8
or group of persons, e.g., the AAPSU, to threaten the Chakmas to leave the State, failing which
they would be forced to do so."
4.3. The Role of Indian Courts
Indian courts evolved a wider and humane approach to protect the rights of refugees in India. In
1996, the Supreme Court in National Human Rights Commission v. State of Arunachal Pradesh
intervened with a liberal interpretation of the law to suggest that refugees are a class apart from
foreigners deserving of the protection of Article 21 of the Constitution.
The Court held at para 20:
"We are a country governed by the Rule of Law. Our Constitution confers certain rights on every
human being and certain other rights on citizens. Every person is entitled to equality before the
law and equal protection of the laws. So also, no person can be deprived of his life or personal
liberty except according to procedure established by law. Thus the State is bound to protect the
life and liberty of every human being, be he a citizen or otherwise, and it cannot permit anybody
or group of persons, e.g., the AAPSU, to threaten the Chakmas to leave the State, failing which
they would be forced to do so."
While there is no real and specific recognition of the right against non- refoulement, courts have,
on rare occasions, accorded to individual refugees the right against forced repatriation
(P.Nedumaran,1992). Courts have also provided a certain measure of socio-economic protection
in special circumstances (Digvijay, 1994). The role of the UNHCR in India has also been given a
limited recognition by the judiciary. Courts have injected deportation proceedings and ordered
the release of individual refugees in order to provide an opportunity to approach the UNHCR for
refugee status determination or to allow resettlement to take place ( Malvika Karlekar, 1992).
9
4.4. The National Human Right Commission initiative for formulating Law
The NHRC initiated a dialogue on 2 October 1997with senior officers of the Indian ministry of
External Affairs to examine the possibility of India becoming party to the 1951 United Nations
Convention relating to the status of refugees and 1967 protocol on the subject. The commission
is of the view that it is essential that India develops a national policy and possibly with the 1951
UN Convention and the 1967 protocol have been recounted in its earlier reports (Rajeev Dhavan,
2003).
In Paradoxes of the International Regime of Care:
"India has concluded that unwanted migrations, including those of refugees, are a source of
bilateral and not multilateral relations, and international agreements could constrict her freedom
of action." (Sarbani Sen, 2003).
This sheds some more light on India's reluctance to sign the International Convention or the
Protocols on refugee law. Scholars like Mahendra P Lama (2000) provides a three-dimensional
model to explain the risk to national security through refugee movements that present different
threats due to a) Strategic-level security, when Refugees are armed and when the Government
loses control over the refugees. b).Structural-level security is threatened by increasing demands
on and conflict over scarce resources. c). Regime-level security is threatened when refugees
enter the domestic political process and create pressures on the government. These three
dimensions lie in the sphere of political security. In future this may apply in climate refugee
context too.
India's Supreme Court has gone so far as to extend the application of Article 14 (Right to
Equality) and Article 21 (Right to Life and Dignity) to everyone, including migrants and
refugees residing within the territory of India, and also basic human rights as defined by the
United nations have been conferred upon the refugees.
10
The Ministry of External Affairs considers the 1951 Convention and the 1967 Protocol a `partial
regime for refugee protection drafted in a Euro-Centric Context' and it further stated that
Convention does 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.' (UN
Division, 1999) Scholars like B. S. Chimni stated that "The Convention is being dismantled by
the very states which framed the convention" (B. S. Chimni, 1998). The current watchdog of
India's refugee policy, the NHRC, has made numerous recommendations advising the
formulation of such a law, in accordance with the articles of the Convention, but with an Indo-
centric nature and content (Nair, A. 2007). Climate refugees require provisions of adequate
resettlement with dignity in future treaties to ensure effective international resettlement. Land
ownership and relocation assistance provide climate refugees the opportunity to adapt to their
new surroundings and establish productive communities (Simon Levine and Judy Adoko 2006).
5.
Indian Practices Regarding Refugee Protection
Indian law does not treat refugees as a special class distinct from foreigners, there have been a
number of special legislative measures to deal with refugee influxes. Special laws to deal with
refugees have been used primarily by the various State Governments and Special measures to
respond to refugee influxes were most extensive in the aftermath of the Partition of India in
1947, the flow of Tibetan in 1959 and the Bangladeshi mass inflow in 1971.
The practice of the Indian Government has been to deal with refugees in three main ways:
a) Refugees in mass flows situations are received in camps and temporary protection by the
Indian Government in form of socio-economic protection.
b) Asylum seekers from South Asian countries, or any other country with which the
government has a sensitive relationship, apply to the government for political asylum
which is usually granted without an extensive refugee status determination subject, of
course, to political urgent requirement.
11
c) According to the UNHCR Statistical Yearbook on India, 2003, Citizens of other countries
apply to the Office of the United Nations High Commissioner for Refugees (UNHCR) for
individual refugee status determination in accordance with the terms of the UNHCR
Statute and the Refugee Convention.
Indian refugee policy is often guided by political compulsions but not rights-enabling legal
obligations. The first mass influx following the Partition of the country in 1947 was met with a
number of legal and administrative mechanisms designed to assist the incoming Hindus and
Sikhs into the national mainstream and then 1959 the flow of refugees occurred from Tibet
Indian government set up camps, provided food and medical supplies, issued identity documents
and even transferred land for exclusive. In three waves, the Sri Lankan Tamil refugees arrived in
India beginning in 1983 have also been relatively well received in the geographically and
ethnically contiguous State of Tamil Nadu. In comparison, the flow of Chakma of 1964 and 1968
saw a passive and reluctant government response. According to National Human Rights
Commission 1996:
"The threat posed [to the Chakma refugees] was grave enough to warrant the placing of two
additional battalions of [police]. It is reported that...economic blockades on the refugee camps
adversely affected the supply of rations, medical and essential facilities etc. to the Chakmas. The
fact that the Chakmas were dying on account of the blockade for want of medicines is an
established fact" (Bhairav Acharya)
The largest mass influx in post-Partition history occurred in 1971 when approximately 16 million
refugees from erstwhile East Pakistan. Enormous amounts of socio-economic and other
resources were spent by both the Central Government and the governments of the neighbouring
States to deal with the crisis. The experience of the Indian government was both bitter at the non-
responsiveness of international organisations. Refugees who are not extended direct assistance
by the Indian Government are free to apply to the UNHCR for recognition of their asylum claims
and other assistance. The Refugee Certificates issued by the UNHCR are not formally recognised
12
by the Indian Government, making them legally unenforceable in India. These kinds of problems
are going to be multiply if state actors and agencies could not come out with apparent legal
accountability.
5.1. India's International law obligations for providing protection and care
India has signed a number of international conventions that impose upon its obligations to
provide protection and care to large number of refugees. This included the Universal Declaration
of Human Rights, 1948 under Article 14(1) of the UDHR which stated that `everyone has the
right to seek and to enjoy in other countries asylum from persecution'. Secondly, India signed
the International Convention on Civil and Political Rights 1966 , International Convention on
Economic, Social and Cultural Rights, 1966; the International Convention on the Elimination of
all Forms of Racial Discrimination, 1966; the Convention against Torture and Cruel, Inhuman or
Degrading Treatment or Punishment, 1984 under Article 3(1) of the CAT states that, "no state-
party shall expel, return (`refouler') or extradite a person to another state where there are
substantial grounds for believing that he would be in danger of being subjected to torture. India
is also a member of executive Committee (ExCom) of the UNHCR which approves and
supervises the material assistance programmes of the UNHCR. It is clear that India respects
international treaties on the treatment of people residing within its territory, but it chooses to
maintain its own administrative arrangements for dealing with temporarily or permanently
settled refugees communities, while providing UNHCR little room to assist except in emergency
situations like the displacement of Chakma tribals from Bangladesh or rehabilitation of refugees
from Afghanistan or the Autonomous Region of Tibet ( Sarbani Sen, 2003).
In 1998, it was estimated that that out of more than 300,000 refugees in India, only 18,500 have
received UNHCR protection. (H K Thames, 2000) The restricted role of the UNHCR as the
international watchdog body provides the basic reason for Indian policymakers to establish the
framework of a uniform national law on refugees to meet international criticism regarding the
condition of refugees in the country. India's international law obligations must be considered in
the light of these commitments.
13
5.2. Eminent Persons Group (EPG) - A model law for refugee protection
The Eminent Persons Group (EPG) for South Asia, put together by the UNHCR, approved a
model national law at its Dhaka Consultation in 1997. This model law is the first step in the
process of building a consensus on preventing, managing and solving the problems of refugee
flows within South Asia in a comprehensive and humane manner. The India-specific model law
was born out of this regional process to provide constitutional protection to refugees in the
diverse South Asian region. There have been attempts in Parliament to highlight the special
needs of refugees, but no member has yet demanded a specific law for identifying and protecting
refugees, and no legislative attempts have been made not even a private member's bill to create
such a law (Bhairav Acharya, 2004).The situation of indigenous tribes on the northern and
eastern borders of India and on the Burma border has been a matter of sensitivity. Excluded and
marginalized from the hegemonic Bangla linguistic and cultural identity, these tribes have sought
refuge in neighboring India which is also an additional source of tension between the India and
Bangladesh.
5.3. Climate `Migrations' Implications for India
Climate change might result in two types of displacements and migration. Firstly, amplified
inter-state migration is likely to happen within India and secondly, climate change might lead to
intra-state increased flow of migrants from neighbouring countries due to the accelerated effects
of climate change. Bose (2014) noted that Indian Sundarbans dwellers constantly migrating from
one island to another. Secondly, rural Bangladeshis infiltrating through the porous border
recognised neither by their government as Bangladeshi citizens nor by India as `climate
refugees'. The Bangladesh government does not stem the flow of migrants and does not take
back those identified as illegal migrants. Therefore It has been estimated that 20 million people
are annually migrating from Bangladesh to India (Brown, O 2007). The future effects of climate
change are likely to increase the flow of population from Bangladesh to India. Myers argues that
climate refugees from Bangladesh alone might outnumber all current refugees worldwide. He
projected that 26 million refugees will come from Bangladesh (Myers N. 2002). Bangladeshi
14
migrants have expanded the population of neighbouring India by 12 to 17 million over the last 40
years caused by environmental scarcity. ( Homer-Dixon, 1994)
The river basins of Mahi, Pennar, Sabarmati and Tapi are likely to experience constant water
scarcities and shortage (NATCOM, 2004) .Climate change is expected to increase the drought in
semi-arid peninsular India and western India, leading to further immiseration of the landless and
small and marginal farmers, who are typically forced to migrate more often to cities ( Revi,
2007). A large part of the coastal regions of India are at risk of accelerated sea level rise,
intensification of cyclones, and larger storm surges. Increasing adverse effects of climate change
along the Indian coasts may induce many people to migrate from the low lying and risky areas.
India was estimated to have the second-largest population located in the low elevation coastal
zone of 63 million and seventh in terms of area, i e, 82,000 square kilometres (McGranahan, G,
D Balk and B Anderson 2007) The Indian region is densely populated, stretches over 7,500 km
and is inhabited by more than a 100 million people in nine coastal states (NATCOM, 2004).
Recent observation suggests that the sea level has risen 2.5 mm per year since the 1950s along
the Indian coast. A one-meter sea level rise is projected to displace approximately 7.1 million
people in India, and about 5,764 sq km of land area will be lost, along with 4,200 km of roads.
Several cases of displacement due to climate change have been reported in recent years. The
submergence of the Lohachara Island in India's Sundarban has led people to move to the nearby
Sagar Island. Climate change might lead to increased flow of migrants from neighbouring
countries (The Telegraph, 2006).As many as 120 million people could be rendered homeless by
2100 both in India and Bangladesh due to sea level rise and given the proximity of Bangladesh to
India much of the people will end up as migrants in Indian cities which are already facing
resource scarcity (Rajan, Chella, 2008). Flooding currently displaces 5,00,000 people every year
in Bangladesh (Warner K et al, 2009). It has been estimated that 20 million people are annually
migrating from Bangladesh to India (Brown, 2007:49). The future effects of climate change are
likely to increase the flow of population from Bangladesh to India. Bangladesh is currently
faced with severe crisis of land and water, caused by population growth, environmental change
and recurring natural disasters and the flow of migration from Bangladesh to India may increase
at a faster rate (Alam, 2003). There is already opposition in India to accept climate induced
15
migrants, as evidence in India's plan to erect a barrier at its border with Bangladesh to prevent
entry of `terrorists and illegal immigrants' (Roy, D.C., 2011) In such circumstances, India needs
to coordinate with UNHCR along with countries like Bangladesh and Maldives in developing a
guiding framework instead of border management and prevention of cross border displacement
and migration. (Vaid, M and Maini, 2014) India should revisit and explore the existing
mechanisms which deal with external displacement. Like in United States, under immigration
Act of 1990 congress established a procedure by which the Attorney General may provide
Temporary Protected Status to immigrants in the United States who are temporarily unable to
safely return to their home country due to armed conflict, environmental disaster, or other
extraordinary and temporary conditions (ibid)
India along with other South Asian nations should develop a model or regional framework for
accommodating people who are suffering from the adverse consequences of climate change. This
could even have a favorable impact on the geo-economics and geopolitical equations that India is
sharing with other nations. Therefore firstly a national legal regime needs to be broaden and
develop and thereafter efforts are required towards developing a regional framework for the
protection of illegal migration.
16
Closing in Absence of strong Legal-moral-emotional Geographies
India has been facing the problem of refugees, displacements and migrations without a refugee
law but with a continuously increase in the number of climate refugees and asylum seekers, a
large section of who may not be return to their country in the near future. A uniform law is the
need of an hour and would allow the government to maintain its huge non-citizen population
with more accountability, responsibility and order. It's high time for the legal geographies to
include moral- emotions geography and consider the pain of displaced and forced migrants
seriously and provide them adequate care and assistance. Legal geographies need to reflect the
emotions of the displaced people and for those who have left behind their ancestral lands and
assets and some of them loose their cultural identity too. In such a circumstance, legal
geographies should be expanded to provide emotional geographies of hope to the victims and
vulnerable to climate change related phenomenon. A National and regional treaty can be
beneficial for improving its unstable relation with neighbouring countries and make its
geopolitical position strong in the region by having its own National legal regime for protecting
the large number of displaced different communities (Nair, 2007). India should see climate
change as an opportunity to develop and broaden its legal regime of hope for providing
protection and care to refugees and climate displaced/refugees per se.
17
6.
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19
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