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  • Tanvi Bhargava and Professor Aditya Gandotra

Afghan Refugees In India Pt. I: Current Legal Status, Identity Crisis And Future Prospects


This article has been published in three parts. The first part of the paper discusses the legal structure that the Afghan refugees are governed under. The second part discusses identity crisis that they face in India and lastly, the third and the last part of the article provides for recommendations that could be implemented in order to solve these issues effectively.



Abstract


The Afghan refugee crisis has been a long-standing concern in India. They represent the largest population of the refugee groups present in India. The state of affairs in India has been prejudicial to the entire refugee community present, because of the ambiguity of laws and policies that exists regarding refugees. Additionally, their grievances have fuelled since the policy-makers have remained largely indifferent to a majority of their community. By shedding light on the current status and rights of Afghan refugees in India, and by discussing the underlying problems and obstacles that they have to overcome, this paper would provide durable solutions that could be adopted in lieu of solving this issue effectively.


INTRODUCTION


Since 1978, people in Afghanistan have been absconding from their homeland due to the brutal, callous, and persistent inhumane treatment that they have been receiving there. Afghans have fled their country on multiple occasions, starting when the Government of Muhammed Daoud was overthrown which wreaked havoc all over the country.[1] The efflux of these people settling in other parts of the world as refugees, escalated when in 1979, the Soviet Union invaded Afghanistan and the incessant human rights violations that followed, provoked people to leave. It is estimated that approximately 3.7 million refugees from Afghanistan had fled by then, to neighbouring countries such as Pakistan and Iran.[2] Consequently, as repatriation of these Afghan refugees from all countries by the United Nations High Commissioner for Refugees[3] came into force, the holy warriors of Afghanistan termed as the ‘mujahideen’ made the situation worse.


Armed conflict for control of the state and the threat of hostility and uncertainty triggered an exodus of the Shia Muslims and the Afghan Hazara community. These Refugees migrated to countries in Central Asia illegally and found their way to China and India as well, after 1979.[4] The continuing presence of groups such as the Taliban, the Afghan forces, and Islamic State in Iraq and the Levant-Khorasan’s (ISIL-K) increased the domestic unrest, internal fighting, causing security threats, thereby leading to political instability. There were massive civilian casualties and devastation which also led to severe economic crisis, thereby spurring massive internal and external displacement. The state of affairs certainly remains deplorable, and it is to date, that the Afghans “represent one of the world’s largest protracted refugee population.”[5]


India has accommodated approximately 15,000 Afghan refugees who primarily settled in and around New Delhi. However, the legal framework in India allows these refugees access to only a limited degree of rights and opportunities. Even if they do get access to legal rights such as the right to work and shelter, they are ephemeral and license only temporary subsistence. The condition of Afghan refugees in India is a pressing concern and they demand urgent attention because a majority of them trace their ancestry back to India and have been living in India for a long period of time. It is imperative for the Government to acknowledge their position and regularise their stay in order to prevent breaching basic human rights obligations.


This paper seeks to analyse the legal status of the Afghan refugees in India through an evaluation of the rights that are accorded to them and how their dire position warrants a situation where they are caught between a legal quandary and an added dilemma of identity. In discussing the problem of Afghan refugees in India, the paper further delves into the nitty-gritty of the existing legal structure for these refugees, migrants, and asylum seekers in India in order to recommend changes that could be introduced to help them obtain a sense of belonging and an identity. The recommendations are in furtherance of improving their conditions in India, however, they are aimed at the idea of structural changes through policy making.


THE LEGAL STRUCTURE FOR REFUGEES IN INDIA


The geopolitical position of India to a lot of unfortunate countries is such that it becomes a haven for refugees and asylum seekers. Being victims of unforeseeable circumstances, these people are given refuge and asylum in India, however, owing to the legal structure and commitments of the country, the rights, opportunities and privileges of the refugees and asylum seekers are constrained to a certain degree. In order to gauge the extent of their rights, their status in India and the challenges that they encounter, it is imperative to assess the legal structure that India holds for refugees, asylum seekers and migrants.


International Legislation


Even though India does extend a lot of assistance to all refugees either through UNHCR or even the Government of India in its own capacity, in terms of international commitments, neither has India signed the 1951 Convention for Refugees nor is it a signatory to any other International Treaty for the protection of refugees. The 1951 Refugee Convention mandates specific protection for refugees, “who have been disenfranchised on the basis of race, religion, nationality, membership of a particular social group, or political opinion.”[6] This incorporates within its purview the Afghan refugees as well because their political and civil rights have been gravely violated. These treaties provide a blanket framework for all countries to govern these refugees and lay minimum standards for their treatment.


Since India has not signed any of these treaties, therefore, its international commitments and obligations to accommodate and integrate these groups into the society is disputed. However, India is a signatory to several other treaties linked to other universal human rights conventions which may, to a certain extent, make it accountable to tend to the refugees and asylum seekers. India is a signatory to the UN Declaration on Territorial Asylum (1967), the International Convention on Civil and Political Rights (1966), and the Universal Declaration of Human Rights (1948). Additionally, India is also a member of the Executive Committee (ExCom) of the UNHCR. This committee essentially supervises the assistance programs laid down by the UNHCR for refugees.[7] While India does need to comply with these international contracts, to appraise the role of UNHCR itself in India, we will examine how the refugee protection situation plays out in the country when these contracts are put into operation along with the domestic law.


Domestic Legislation


Alternatively, India does not have any domestic framework or any national refugee protection scheme vis-a-vis granting legal status to the Afghan refugees and thus negating the possibility of giving lawful and consistent protection to these people in accordance with a specific statute. India, however, does follow a course of action where putatively a difference is drawn between mandated and non-mandated refugees. The country, “chooses to treat incoming refugees based on their national origin and political considerations, questioning the uniformity of rights and privileges granted to refugee communities.”[8] Mandated refugees herein are referred to groups which are legally recognized by the Government of India. These include the Tibetans and the Sri Lankan Tamils.[9] Since these refugee groups are protected and given assistance and aid directly by the Government of India, they are thus entitled to a wide range of benefits in the country because they possess legal certificates. On the other hand, refugees from Myanmar, Afghanistan, Somalia, Palestine, Iraq etc., are not officially recognized by the Government of India. They are termed as non-mandated refugees.


However, this definition is only in terms of official recognition by the Government of India because they are mandated by the UNHCR in India which is directly involved with these refugee groups and takes into its hand their facilitation and aid. There is no specific reason as to why the Government of India has drawn such a distinction and why the policy makers cherry-pick certain refugee groups as mentioned above in order to grant them legal rights, however, it is concerning because the other groups do not have feasible alternatives other than living under the mandate of the UNHCR in India.


The rights that the current domestic legislation bestows is mainly applicable to Indian citizens, however, there are certain laws which extend to the refugees, migrants and asylum seekers living in India as well. In the absence of explicit legislation, refugees and asylum seekers are essentially governed under the Foreigners Act, 1946, which becomes applicable to them as soon as they enter Indian territory.[10] In addition to this Act, the courts while applying certain laws have deemed the principles of natural justice as an essential criterion for evaluating cases related to all the refugees and asylum seekers in India, including Afghans.[11]


In accordance with this, there are several other sections of the Constitution of India that are valid and applicable to anyone governed under the Foreigners Act, 1946. The court in Louis De Raedt v. Union of India held that rights such as fundamental right to life, liberty and dignity accorded by the Constitution of India are applicable to non- citizens as well.[12] However, the court also opined that the rights of a foreigner “do not include the right to reside and settle in this country, as mentioned in Article 19(1)(e).”[13]


Similarly, in the case of Vincent Ferrer Vs. District Revenue Officer, Ananta Pur[14] it was held that “a foreign national, though entitled to equality before the law and the equal protection of the laws guaranteed by Article 14 of the Constitution, is not entitled to the protection of the fundamental rights guaranteed by Article 19(1) (d) and (e).”[15] Thus, there is a stark difference between when the laws in the Constitution are applied to Indian citizens compared to when they are applied to foreigners. Some of the sections in the Constitution need to be employed together in order to serve a purpose and thus serve disadvantageous to anyone to whom only half of them are applicable and are governed under these precedents.


Lastly, the role of the United Nations High Commissioner for Refugees (UNHCR) has been regarded as indispensable for the protection of Afghan Refugees.[16] The Bombay High Court in Syed Ata Mohammadi vs. Union of India[17] opined that “there is no question of deporting the Iranian refugee to Iran, since he has been recognised as a refugee by the UNHCR.” The same principle was reiterated in the case of Maiwand’s Trust of Afghan Human Freedom vs. State of Punjab.[18] Since Afghan refugees and Iranian refugees are treated in the same way by the Government of India, the same decision would technically apply to Afghan refugees as well. It is obvious that the role of UNCHR in India is notable and in order to understand how it helps Afghan refugees and asylum seekers living in India, it is vital to delve into its operations.


ROLE OF THE UNHCR


As noted above, a complementary role is played by the UNCHR in India, especially to protect the interests of the refugees from Afghanistan who have settled in New Delhi.[19] UNHCR works closely with UN Agencies present in India and International and National Organizations for these refugees.[20] Most of them are mandated by the UNHCR which provides them with refugee cards after carrying out thorough protocols to assess their status. The UNHCR further helps them with other social and economic problems as well and these cards facilitate the prevention of deportation back to Afghanistan. However, the dilemmas and the obstacles that they still face in India are not eliminated. A UNHCR factsheet published in 2016 revealed that with the help of UNHCR, only 830 Hindu and Sikh Afghan refugees obtained Indian Citizenship. This is only 5% of the total number of Afghan refugees living in India. UNHCR further helps facilitate the integration of Afghan refugees of Indian origin which comprise 78% of the total Afghan population in India.[21] Therefore, it is imperative to state that the role of UNHCR in India itself warrants further support.


AVAILABILITY OF OTHER RESOURCES


The Afghan refugees in India, like all other non-mandated refugees, have very limited resources at their disposal. Owing to a legally non-mandated status, the Afghan refugees confront different applicability of policies made for other mandated groups such as Tibetan refugees. This hinders their access to several resources and amenities. While this is another debate altogether, the issue that arises is that the status of Afghan refugees is intriguing because they also live in a society which does not accept them. They face social stigma because of lack of societal acceptance, despite being active participants in the civil and economic society. Interviews conducted by research scholars, of these Afghan refugees, in New Delhi have suggested that they have been deemed as “second class citizens.”[22] This establishes that they are considered as outsiders and are not willingly accepted by the community.


Furthermore, the economic costs that they are expected to bear are far greater than what Indians have to endure. Due to the discrimination that persists in society, the Afghan refugees are also expected to pay a higher amount of rent than what is expected of others. This is peculiar because for someone who cannot afford to apply for the process of naturalization and pay for identity cards, expectations to bear unnecessarily extravagant living costs are unreasonable. This predominantly occurs because they live in a society where they are not accepted as their own and constrained by a Government that cannot provide amenities and resources for them copiously.


Additionally, finding work for themselves becomes a matter of concern mainly for the reason that they do not possess identity cards. Non possession of identity cards becomes a major impediment to employment. Organizations and employers everywhere in India demand Aadhar cards for employment which discernibly none of them possess.[23] Meanwhile, regarding work permits for refugees, there is no explicit policy in place by the Government of India which is why some of them usually engage in minor forms of employment or work as daily wage workers.[24] The UNHCR does offer various schemes, programs, and opportunities but they are insufficient and do not help support their economic growth. Social protection packages for ration, housing etc. introduced by the Government of India are also provided for the citizens only and no specific policy is accorded for the Afghans or the other refugee communities.


Afghan refugees who legally entered the country have freedom regarding practice of religion, residence, and movement etc. to a certain extent, however, these are usually the Government of India mandated refugees. The refugees who entered illegally or are governed under the Foreigners Act, 1946 have certain restrictions. This also leads us to the problem of determining whose entry into India was legal and whose was not. In Mr. Louis De Raedt & Ors vs Union Of India And Ors, the court stated that,


“The power of the Government in India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering this discretion. The legal position on this aspect is not uniform in all the countries but so far the law which operates in India is concerned, the Executive Government has unrestricted right to expel a foreigner.”[25]


Though, Section 3 of the Foreigners Act, 1946 and the precedent set in the case above would help the Government regulate the entry of legal and illegal foreigners in India, deportation of Afghan refugees back to Afghanistan could prove disastrous and raise the question of the principle of non-refoulement.[26] According to the principle of non-refoulement “a person cannot be compelled to return to their home state if they continue to have a ‘well-founded fear of persecution’.”[27] The principle of non-refoulement has been cited in Article 3 of the UN Convention Against Torture. India has not ratified this convention; however, it is a signatory to it and therefore is has expressed the intention to comply with its provisions and demands. By employing deportation clauses under Foreigners Act, 1946, India technically breaches its intention. Though India not bound by the convention because of non-ratification, India should follow the prescribed objectives of the treaty in good faith since it is a signatory to the treaty.[28] Similarly, the International Covenant on Civil and Political Rights (ICCPR) has also been ratified by India. This treaty captures the principle of non-refoulement and articulates under Articles 4, 6, and 7 that no person can be removed from any country, even in a state of emergency, if there are grounds to believe that their right to life is in danger in that country or that they have threat against inhumane and cruel treatment.[29]


In regard to identity cards and identity papers, another major issue that crops up is the visa issuance and extension. Afghan refugees can only reside in India if they have Indian visas which can in most cases, be extended on the bases of identity cards issued by the UNHCR. However, in cases where their passport has expired, the Afghanistan Embassy expects them to go back to Afghanistan to issue new passports and visas. This is a ludicrous policy because most of the Afghan refugees in India have been living here since they were infants, have never been to Afghanistan and can in no way risk their lives by going back in order to get their passport renewed. This is yet again connected to the problem of refoulement as discussed above. The refugees claim that their movement is also restricted by numerous visa rules because of which they have to face a lot of complexities to do the bare minimum in their daily lives. They claim that in choosing to live here, they have been harassed for decades trying to get their visas renewed even though, the entire process is very “bureaucratically arduous”.


Further, comparing their situation to Afghan refugees in other countries such as Iran and Pakistan, where there is a large Afghan refugee population, we see that there is not much difference. Even though Iran is a signatory to the 1951 Refugee Convention and the 1967 Refugee Protocol, local integration of these refugees has been limited.[30] Not a lot of benefit has been extended to these refugees.[31] What the UNHCR in Iran has achieved is essentially assisting these refugees with voluntary repatriation to Afghanistan.[32] Voluntary repatriation has been the chief approach by Pakistan as well in dealing with the Afghan refugees. Pakistan is not a signatory to any of the conventions and regularisation of stay for these refugees has been monitored through the proof of registration cards which have been working only on extensions and are not for a fixed period of time.[33] Most of the refugee population remains in refugee camps, are undocumented and are therefore deprived of any legal or socio-economic rights.[34] The purpose of this comparison was to essentially establish that being or not being a signatory to conventions is like a band-aid solution to just stand out in the international community. Unless the policy makers and the Governments delve into the nitty-gritty of the issues, the problem would remain stagnant, with no possible solutions.

[1] ‘Afghan Refugees: Current Status and Future Prospects’ (26 January 2007) <https://fas.org/sgp/crs/row/RL33851.pdf> accessed February 20, 2021. [2] Turton David, and Peter Marsden, Taking Refugees for a Ride? The Politics of Refugee Return to Afghanistan, Kabul Afghanistan Research and Evaluation Unit (AREU) (December 2002) 11. [3] Herein referred to as UNHCR. [4] Angela Stanzel, Engaging With Iran: A European Agenda Policy Brief Summary <https://ecfr.eu/wp-content/uploads/ECFR_170_-_ETERNALLY_DISPLACED_1430.pdf>accessed February 20, 2021. [5]Amnesty International” (June 20, 2019) <https://www.amnesty.org/en/latest/news/2019/06/afghanistan-refugees-forty-years/> accessed February 19, 2021. [6] Swananda Banerjee, Legal Status of the Refugees in India (2012), SSRN Electronic Journal <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2129225> accessed February 20, 2021. [7] United Nations High Commissioner for Refugees, Executive Committee UNHCR 2021 <https://www.unhcr.org/executive-committee.html> accessed February 20, 2021. [8] Arjun Nair, National Refugee Law for India: Benefits and Roadblocks (2007) <https://www.files.ethz.ch/isn/129030/RP11-ArjunNair.pdf> accessed February 20, 2021. [9] Sapna Goel and Reza Ehsan, Afghan Refugees in India in the Time of Coronavirus, The Geopolitics May 10 2020) <https://thegeopolitics.com/afghan-refugees-in-india-in-the-time-of-coronavirus/> accessed February 20, 2021. [10] The Foreigners Act, 1946. [11] Asylum & the Rights of Refugees, International Justice Resource Center,October 10 2012 <https://ijrcenter.org/refugee-law/> accessed February 21, 2021. [12] Louis De Raedt v. Union of India 1991 AIR 1886, 1991 SCR (3) 149. [13] Ibid. [14] Vincent Ferrer Vs. District Revenue Officer, Ananta Pur AIR 1974 AP 313. [15] Suraj Kumar Singh, The Foreigners Act, 1946: A Legislation De jure or de facto?, SSRN Electronic Journal < file:///C:/Users/Tan's/Downloads/SSRN-id1989060.pdf> accessed February 15, 2021. [16] Asylum & the Rights of Refugees International Justice Resource Center,October 10, 2012 <https://ijrcenter.org/refugee-law/> accessed February 22, 2021. [17] Syed Ata Mohammadi vs. Union of India, Criminal writ petition no.7504/1994 at the Bombay High Court. [18] Maiwand’s Trust of Afghan Human Freedom vs. State of Punjab WP No 125 and 126 of 1986. [19] Sapna Goel and Reza Ehsan, Afghan Refugees in India in the Time of Coronavirus The Geopolitics, May 10, 2020 <https://thegeopolitics.com/afghan-refugees-in-india-in-the-time-of-coronavirus/> accessed February 20, 2021. [20] Executive Committee Summary, Refworld, 2021 <https://www.refworld.org/pdfid/3d941f5df.pdf> accessed 20 February 2021. [21] Ibid. [22] Longing to Belong: Afghan Sikhs and Hindus in India, The Diplomat, August 19 2016 <https://thediplomat.com/2016/08/longing-to-belong-afghan-sikhs-and-hindus-in-india/> accessed February 21, 2021. [23] Identity cards issued to all the citizens of India. [24] Refugees in India: Legal Framework, Law Enforcement and Security, Worldlii, 2007 <http://www.worldlii.org/int/journals/ISILYBIHRL/2001/7.html#Footnote_auth> accessed February 19, 2021. [25] Louis De Raedt v. Union of India 1991 AIR 1886, 1991 SCR (3) 149. [26] The Foreigners Act, 1946, Section 3. [27] Deporting Rohingya Refugees: Indian Supreme Court Violates Principle of Non-Refoulement, OHRH, October 18 2018 <https://ohrh.law.ox.ac.uk/deporting-rohingya-refugees-indian-supreme-court-violates-principle-of-non-refoulement/#:~:text=As%20described%20by%20the%20UNHCR,of%20persecution%E2%80%9D%20in%20that%20state.&text=The%20ICCPR%20encapsulates%20the%20principle%20of%20non%2Drefoulement.> accessed February 19, 2021. [28] Ibid. [29] Ibid. [30] Afghan Refugees in Iran & Pakistan | European Resettlement Network, Resettlement.eu, 2015. <https://www.resettlement.eu/page/afghan-refugees-iran-pakistan-0> accessed February 20, 2021. [31] Ibid. [32] Ibid. [33] Ibid. [34] Ibid.


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Tanvi Bhargava is a 4th Year law student (B.A. LL.B. (Hons.)) at Jindal Global Law School, OP Jindal Global University, Sonipat, India. Professor Aditya Gandotra is a Lecturer at Jindal Global Law School, OP Jindal Global University, Sonipat, India.



Image Source: Credits to Kevin Frank <https://www.pngegg.com/en/png-kxvyr>