- Tanvi Bhargava and Professor Aditya Gandotra
Afghan Refugees In India Pt. II: Current Legal Status, Identity Crisis And Future Prospects
This is the second part of a three-part series. In the first part, the authors had discussed the legal structure that the Afghan refugees are governed under, their current legal status and the rights that are afforded to them. In this part, the authors had discussed the problems and the obstacles that the Afghan refugees in India face, their identity crisis and the statelessness that they encounter. In the third part, the authors provide recommendations and durable solutions that could be adopted in lieu of solving this issue effectively.
COVID-19 AND THE AFGHAN REFUGEES
The precarious situation of Afghan Refugees in India has worsened with the onset of the Covid-19 Pandemic and the lockdown all over the country. The nationwide lockdown has exacerbated the vulnerabilities of these refugees who have lost access to the scarce resources that were available to them. They have been one of the worst victims of the pandemic and sustaining themselves has been the most challenging crisis that they have faced. The few amenities that they were granted reduced drastically, there has been major administrative neglect, no health care facilities, and dearth of financial aid. The contagion that they have been captured in has thus caused numerous unparalleled issues with their mental health and there have been cases of these refugees attempting to commit suicide.
If the impact of the lockdown on the citizens of India was so grave and it gave birth to a nationwide ordeal, one can only imagine what situation the refugees must have been in. The economic costs that the community has to bear has spiralled during the lockdown and this pooled with other problems is concerning. The Government has failed to extend safety nets to refugees since all policies that were brought about were exclusively for citizens of the country. In fact, the COVID-19 Emergency Response and Health System introduced by the Government of India sanctioned a 15,000 crore Rupees fund to deal with this crisis, however, the benefits of this package did not extend support to any refugee community present in India.
This is where the question of self-reliance comes into the picture. Where do they stand in terms of being self-reliant? Their economic status does not in any case, license financial stability. They do not have access to land and resources as has been discussed above and with the onset of the pandemic, the little self-reliance that they may have possessed is also absent now. With no means to support themselves or their families, future prospects are static with increased anxiety and insecurity.
STATELESSNESS AND IDENTITY CRISIS
The conundrum of their ambiguous legal status leashes another problematic question which is the identity impasse. For these refugees, leaving Afghanistan meant giving up the whole ‘Afghan’ identity because they did not foresee ever going back to their country. In interviews conducted by Aljazeera in New Delhi, refugees claimed that on one hand they faced religious persecution in Afghanistan and on the other hand they confronted identity discrimination in India. This lack of identity is the chief reason they face an acute level of discrimination as has been revealed above. Many of these refugees also, are originally Indians whose ancestors went to Afghanistan to work. While it is understandable that for the Government of India to provide citizenship through naturalization to all such people is not feasible, the refugees who have spent a reasonable amount of time in India while abiding by all regulations should be treated differently. An Afghan refugee, in an interview had claimed that, “Indian citizenship is not just an official status for me, it is an ‘identity’ — which I have been missing all my life.”
THE CITIZENSHIP AMENDMENT ACT, 2019
In fact, in order to rectify the identity crisis, the Government of India passed the Citizenship Amendment Act (CAA) in 2019 which permitted religious minorities belonging to Hindu, Buddhist, Jain, Sikh and Parsi communities, from Afghanistan, Pakistan and Bangladesh to apply for citizenship on the premise that they faced religious persecution in these countries. However, the caveat that had to be fulfilled here was that they could only do so if they entered India before December, 2014. Thus, for the Afghan refugees, citizenship could now be acquired in six years and residence requirement for naturalisation of citizenship was reduced from eleven to five years. This was a progressive step taken by the Government of India, however, their appropriate rights during the buffer period were not identified and conveyed.
CAA, though a blessing for anyone eligible under it, it does have its shortcomings. Even for the Afghan refugees who belong to the communities covered by the CAA and to whom it is applicable, it is a predicament when it comes to applying for naturalization because “the bottleneck is often at the local level” There is incompetence with regard to the authorities and the process which takes place. There are delays, uncertainty, and added hassles to the entire procedure. In an interview conducted by the UNHCR of the Afghan refugees, it was understood that naturalisation is an “inordinately long process” because of which most of the refugees abstain from applying for it. It has been over a year since the CAA was passed, however till date no immigrant has been granted citizenship under it. People are frantically waiting for the CAA to be put into action because of the fear and apprehension of their visa getting expired. They feel that they are “living on borrowed time on a borrowed land.” Additionally, they are worried about their standard of life in India. In the month of December, 2020, a large number of Afghan refugees held demonstrations in New Delhi on the pretext that “insecure future has really made them vulnerable” in India and thus, ultimately appealing to the United Nations to take cognizance of their problems. Additionally, the CAA only caters to Afghan refugees who entered India before December 31, 2014. However, given the situation and threat to life in Afghanistan, Afghans are still coming to India to seek refuge. Approximately 200 families settled in New Delhi post 2014 who are not eligible under the CAA. This indicates the uncertainty that the Citizenship Amendment Act has added to the lives of the Afghan refugees, the complexities with where they stand and belong in relation to their rights as well as their identity.
THE MUSLIM AFGHAN REFUGEES
Despite all these issues, the CAA guarantees a certain degree of consistency towards granting Afghan refugees an identity here in India, however, this is only true for the religious communities that have been mentioned above. What happens to the Muslim Afghan refugees who came to India before December 2014? What happens to the Muslim Afghan refugees who have been living in India for the past two decades in hopes to be granted citizenship. A man claimed that he wanted to live in India because “no faith is suppressed here.” However, is that true when faith comes within the purview of the CAA? An evaluation of conversions was carried out in New Delhi and it was uncovered that the CAA had incited conversion of Afghan Muslims to Christianity. They are trapped in legal ambiguity since the Government has conveniently excluded the community on the premise that they do not face persecution in the aforementioned countries. Since they have no rights whatsoever either in India or in Afghanistan, they are caught without an appropriate identity and feel like they belong in neither of these states.
The process of applying for naturalisation also comes at a heavy cost. For refugees, even a slight increase in their economic costs can amplify their inconveniences. Thus, ultimately, they are trapped in a situation where they neither have an identity in Afghanistan, nor in India which leads to statelessness and loss of a sense of belonging to any place in the world.
WOMEN AND CHILDREN
For many Afghan women who seek refuge in India, the situation is only marginally better as compared to what they had to endure in Afghanistan. Women not only have to battle the traditional gender roles that have been imposed on them by the society that they came from but the one that they are trying to settle in as well. Afghan women in India have been trying to carve a niche for themselves by getting involved in work such as crochet, knitting, handicraft etc. in order to earn a living. However, this does not diminish the hardships that they face. Working as a concept for women was frowned upon in Afghanistan, and they face a similar impediment here, in India as well.  Even though they have taken up certain jobs to support themselves and their families, they are not encouraged or appreciated. Rather, they are told that the families’ reputation in the local afghan community would be attacked and therefore, they attract “scathing remarks and disapproving looks.” By asserting that “people don’t like a woman who won’t fit in”, Afghan women also claimed that working for a living has become a part of their identity, which they would be deprived of, if this privilege was withdrawn.
For Afghan children who were born in Afghanistan but sought refuge in India with their families, life has been equally challenging. They try to fit into the community, try to make place for themselves in the society and in schools. Legally, they face a lot of challenges such as lack of identity cards, lack of privileges as compared to their classmates etc. Even for the Afghan children born in India permission to apply for the Indian passport has not been given. Even though some of the children receive primary education, for them post-secondary education still remains a dream. This essentially occurs because of financial issues, identity issues and lack of documents. Despite all of this, some of the Afghan children, who can afford education, have managed to create a place for themselves in the society. When confronted with the question of whether they would like to go back to Afghanistan or stay here, almost all of them chose the latter. This establishes that even though they face difficulties here in India, they would rather overcome them here than go back to Afghanistan where their struggles and obstacles that they have to overcome are adverse.
PROBLEM OF HIERARCHY OF REFUGEES
Because of the presence of mandated and non-mandated refugees in India and the CAA guidelines, an automatic hierarchy of refugees has been established. The idea that corresponds to this is that some refugees are considered “more worthy than others.” For Muslim Afghan refugees, they are trapped at the bottom of this hierarchy that exists. On the top of the hierarchy are the Government of India mandated refugees, followed by the refugees who have been given recognition through the CAA and lastly it is the refugee community which has been excluded from the CAA and are not recognized by it. The problem that ensues with the existence of this hierarchy is that it will probably play out exactly the way social hierarchy exists in every society. Whether it is based on caste, gender, sex etc., there is always a faction that occupies the bottom ring of the hierarchy and face social discrimination.
 Sanika Athavale, What about the Stateless? Afghan Refugees in India Turning to Self-Harm to Overcome Lockdown Woes The Bridge Chronicle, July 21 2020. <https://www.thebridgechronicle.com/news/nation/what-about-stateless-afghan-refugees-india-turning-self-harm-overcome-lockdown-woes-53622> accessed February 19, 2021.  Ibid.  The Impact of COVID-19 on the Afghan Refugees in New Delhi International Association of Schools of Social Work (IASSW), July 21 2020. <https://www.iassw-aiets.org/covid-19/5404-the-impact-of-covid-19-on-the-afghan-refugees-in-new-delhi/> accessed February 20, 2021.  Srishti Jaswal, A Year after CAA, Refugees in India Still Waiting for Citizenship Aljazeera, December 11 2020. <https://www.aljazeera.com/news/2020/12/11/a-year-after-caa-refugees-in-india-still-waiting-for-citizenship> accessed February 19, 2021.  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.  United Nations High Commissioner for Refugees, Afghan Refugees in Search of Indian Identity, UNHCR, 2021. <https://www.unhcr.org/news/latest/2005/5/428c967e4/afghan-refugees-search-indian-identity.html> accessed February 19, 2021.  Ibid.  Srishti Jaswal, A Year after CAA, Refugees in India Still Waiting for Citizenship, Aljazeera, December 11 2020. <https://www.aljazeera.com/news/2020/12/11/a-year-after-caa-refugees-in-india-still-waiting-for-citizenship> accessed February 19, 2021.  Ibid.  Afghan Refugees Urge UN to Take Cognisance of Their Grievances, The Times of India, November 11 2020. <https://timesofindia.indiatimes.com/videos/news/afghan-refugees-urge-un-to-take-cognisance-of-their-grievances/videoshow/79178412.cms> accessed March 7, 2021.  Ibid.  Delay in CAA Implementation Leaves Hindu and Sikh Refugees in India Disconsolate, The Wire, 2018. <https://thewire.in/rights/hindu-sikh-refugees-india-caa-implementation> accessed February 19, 2021.  United Nations High Commissioner for Refugees, Afghan Refugees in Search of Indian Identity UNHCR, 2021. <https://www.unhcr.org/news/latest/2005/5/428c967e4/afghan-refugees-search-indian-identity.html> accessed February 19, 2021.  Rahul Tripathi, Muslim, Rohingya Refugees Convert to Christianity to Take Benefit of the Citizenship (Amendment) Act, The Economic Times, July 22 2020. <https://economictimes.indiatimes.com/news/politics-and-nation/muslim-refugees-become-christians-to-take-caa-benefit/articleshow/77117484.cms> accessed February 19, 2021.  Yashee, Unaccustomed Earth: How Afghan Refugee Women Are Working on Building a New Life, The Indian Express, February 28 2020. <https://indianexpress.com/article/facebook-stories-of-strength-2019/unaccustomed-earth-how-afghan-refugee-women-are-working-on-building-a-new-life/> accessed March 5, 2021.  Meet the Afghan Women Refugees Who Are India’s New Green Warriors, The News Minute, June 29 2017. <https://www.thenewsminute.com/article/meet-afghan-women-refugees-who-are-india-s-new-green-warriors-64393> accessed March 7, 2021.  Yashee, Unaccustomed Earth: How Afghan Refugee Women Are Working on Building a New Life, The Indian Express, February 28 2020. <https://indianexpress.com/article/facebook-stories-of-strength-2019/unaccustomed-earth-how-afghan-refugee-women-are-working-on-building-a-new-life/> accessed March 5, 2021.  News18, My Kids Born Here Will Finally Have Citizenship: After Years of Wait, Afghan Sikhs a Relieved Lot, News18, December 13 2019. <https://www.news18.com/news/india/after-years-of-wait-afghan-sikhs-in-india-relieved-by-citizenship-bill-2422611.html> accessed March 7, 2021.  Story of Afghan Refugee Child in India,TNN WORLD. <https://www.youtube.com/watch?v=3HeG8DpdJKQ> accessed March 7, 2021.  These Are Some of the Refugees That India’s CAA Is Turning Its Back On, The Wire, 2018. <https://thewire.in/rights/caa-india-refugees> accessed February 22, 2021.
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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 Diwakar Chettri <http://www.kids.worldsstateless.org/create/cartoons>