Search
  • Tanvi Bhargava and Professor Aditya Gandotra

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

This is the third 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 the second 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 this part, the authors provide recommendations and durable solutions that could be adopted in lieu of solving this issue effectively.


DOES INDIA NEED A WELL-DEFINED REFUGEE LAW? RECOMMENDATIONS AND CONCLUSION


Even though India has balanced both interests of National Security and International Humanitarian issues regarding refugees, India needs to create a more comprehensive framework in order to make sure that the refugee community surpasses all the obstacles that they face regularly. A well-defined law for the refugee community in place would avoid ambiguity in the application of laws, increase accountability of the refugees and the government both and create a more systematic approach for the Government as well as the UNHCR in order to approach their problems. The current laws are discriminatory and ambiguous with regard to the Afghan refugee community and other refugee communities as well.


The arbitrariness and haphazardness of application of laws needs to be curbed and a uniform protocol needs to be set in place. The key issue to assess here is what India has at stake in this situation and what is the hitch in providing for a well-defined refugee law. There are numerous concerns that could crop up while drawing up such a scheme. First and foremost, could be the security concerns and the challenges that come with that, that would be a hinderance to such a policy. Population explosion in India may become another burden of preparing such a plan. Similarly, logistical issues, finances, changes in the demographic balance etc. can also add to the entire problem of executing such a policy or plan. However, keeping in mind all these setbacks, there are several ways in which a framework can be drawn up and these concerns can be overcome by avoiding such glitches.


Changes to the Existing Laws


Firstly, in order to look at the larger interests of the country as well as the Afghan refugees, what the Government of India needs to remedy is, the already existing laws. The Government could expand the clauses in the Foreigners Act, 1946 to incorporate provisions dealing with prevention of deportation of Afghan refugees unless they cause a threat to the national security of the country. Clauses that deal with deportation and expulsion as have been discussed above need to be reassessed and re-evaluated. The current legislation is unfavourable to Afghan refugees and asylum seekers vis-a-vis their living and lodging rights as it “gives unfettered powers to the government to expel them.”[1] This also breaches the principles of non-refoulement which India is obliged to follow. Therefore, it is imperative that detailed provisions regarding deportation be incorporated.


Secondly, children of Afghan refugees who are born in India, should be granted citizenship by birth, and should not be deprived of privileges such as issuance of passports or Aadhar cards merely because their roots are Afghan. If they have been born in India, then it should be binding that they be treated as other natural born citizens of the country. Additionally, a distinct legal status should be given to children of the Afghan refugees born in Afghanistan and living in India. The current legal status of the refugees restricts these Afghan children from receiving education, healthcare etc. Bringing forth such a scheme would place these children a step ahead and not restrict them from the basic rights which they should receive. This legal status would lift all forms of constraints on education, social benefits such as removal of restrictions on property, purchase of goods etc., however, it would not grant voting rights and other such privileges. The introduction of such a policy would serve as a starting point for strategic refugee reforms in India.

In addition to making amendments in the Foreigners Act, 1946, if the Government of India chooses to formulate a law or bring forth a policy specifically in regard to treatment of refugees in India, then the authors would like to propose possible solutions that could be taken up.


ADOPTING THE MODEL ESTABLISHED BY TURKEY


In framing a law for the Afghan refugees, the Government of India could perhaps adopt a model similar to that of Turkey. Turkey, according to its legal system, does not officially recognize refugees from all over the world. Only refugees from Europe are accorded with legal status by the Government of Turkey. The procedure followed for the other refugees is essentially that after due procedure which consists of interviews etc., they are registered as asylum seekers by the Turkish Government. Subsequently, their applications are analysed by the UNHCR which further helps the successful applicants settle in a third country as refugees.


If the Government of India undertakes the role of registering these Afghans as asylum seekers after thorough inspection and interviews and undertakes the same approach of resettling them in third countries, this would greatly help their cause. The Afghan refugees will not be given the status of a refugee, however, after being placed under temporary protection, their rights could perhaps be extended over the years. Additionally, the Government of India would not have to bear the additional burden of resettling these refugee groups and placing them over its own citizens, 22% of which still live below the poverty line.[2] Further, national security would not be compromised if the scheme that is drawn up incorporates substantial clauses for protection of the country as well as the safety of the refugees. The new policy coupled with the amended Foreigners Act, 1946 would address in alleviating the security concerns that could emerge.


SPEEDY EXECUTION OF THE CITIZENSHIP AMENDMENT ACT AND A DIFFERENT PATH TO NATURALISATION


With the Citizenship Amendment Act in place now, and the hierarchy of rights among the Afghans itself which exists, the CAA would not prove to be very fruitful. Even though it would grant citizenship on paper to some Afghan refugees and endow all constitutional rights, it does not resolve the identity crisis that they face. Expeditious implementation of the CAA is required so that at least the people eligible under it can gain citizenship in order to start leading a comparatively normal life in India. However, CAA is not a policy that will be fruitful in the long run. This is because of two reasons, first is the hierarchy of rights and second is the incoming refugee problem. Both these issues go unaddressed under the CAA and require urgent consideration.


Regarding Muslim Afghan refugees, if the Government of India cannot include the Muslim Afghans under the CAA and make them eligible for citizenship because of national security concerns then, a viable alternative needs to be established. As mentioned above, adopting the model of Turkey is a feasible alternative to this, however in the absence of such a policy, a secondary route needs to be in place as well. Since the UNHCR works closely with Afghan refugees, perhaps a policy for naturalisation could be adopted on a case-to-case basis. Though this may have numerous flaws and may become an arduous and cumbersome procedure even for the Government and UNHCR to carry out, it may be a suitable starting point. In order to ensure efficiency, the UNHCR and the Government should work closely with the law enforcement to carry out smooth, effective, and speedy naturalisation processes for the Muslim Afghans in India.


CHANGES IN THE APPROACH TAKEN UP BY THE UNHCR


What the UNHCR should also prioritise now is developing policies to increase sustainable livelihoods. Be it economic or social stability, it is important that poverty alleviation as a concept, takes place for the Afghan refugee community as well. Instead of implementing these programs as “short-term humanitarian norms”, if the UNHCR and the Government looks at it as a “longer-term development need” then research and understanding of these communities would be clearer.[3] This would obviously benefit the society and increase the welfare of the community because focus targeted programs would be put into place. Therefore, to maintain durability of any scheme that has been put into place, or would be adopted, then it is essential to revamp the approach that the UNHCR has been taking up till now.


WITH THE COVID-19 VACCINE COMES A NEW OPPORTUNITY FOR INCLUSION


As countries all over the world roll out plans to ensure timely vaccination for its citizens, it is crucial to recognize what happens to the refugees, the asylum seekers, migrants, and other groups who have found refuge in these countries. With India having embarked on its vaccination drive from the 16th of January, the Government had stated that it intended to vaccinate approximately 300 million people by the end of July.[4] With priority given to the frontline workers, health care staff and people at risk, the Government seeks to provide access to the entire population in multiple phases. However, this requires us to confront a classic political dilemma, whether the Government will include and prioritise such groups in state-wide distribution drives or not.


The World Health Organisation developed a Fair Allocation Framework to ensure equitable access to the COVID-19 Vaccine.[5] According to this framework, states are advised to vaccinate the highest priority groups of frontline health and care workers at high risk of infection, older adults, and those people at high risk of death because of underlying conditions like heart disease and diabetes for maximum immunisation in the first phase. In the second phase, additional populations are to receive the vaccination for more equitable access in the State according to “national priority”. While India adopted this framework and has announced a similar roll-out plan, the framework itself is riddled with two problems, firstly, a limited definition of high priority groups and secondly, usage of the term of national priority. The latter enables the issue of access to vaccines to become a political tool and the former is exclusionary in considering sources of risk and vulnerability. Other vulnerable groups of migrant workers, daily wage workers and refugees have limited access to healthcare, crowded living spaces, have faced job loss in the pandemic or are involved in jobs which put them at an increased risk of exposure to the virus such as domestic work or street vending.[6] With the onset of the Covid-19 Pandemic, refugees have already been side-lined and thus the “disproportionate impact warrants them to be considered a most-at-risk population.”[7] Such groups have just as much right to be considered a high-priority and at-risk group in the first phase itself. If not, then the above-presented concerns are enough to consider refugees in the second phase i.e., as a national priority on account of being a vulnerable group. In fact, the term “vaccine nationalism”, has been introduced to describe the behaviour of States prioritizing vaccinating their populations.[8] Experts have stated that this could become a serious threat which could “prolong the pandemic by years”.[9]


Eradication of the virus requires the Government to abandon existing politics and legal structures to explicitly devise inclusive contingency plans in order to adapt to the situation and ensure that all the people within the territory of India get inoculated. It is also necessary that in the name of humanity, the Government protects vulnerable groups from further challenges even if they have a disputed legal status in the country. It is the collective responsibility of the Governments all over the world to ensure that all these groups, including Afghan refugees, who are a considerable portion of the population in the national capital of India, are provided with healthcare access and vaccinations during this distressing time in order to ensure equitable immunization and obliterate the virus. This leads us to the same question of whether citizenship is a decisive criterion for a fair treatment to refugees even in this situation.


CONCLUSION


The rhetoric of repatriation of Afghan refugees to Afghanistan is not a viable solution because the entire situation has spiralled out of control. With the takeover of Kabul by the Taliban in August 2021, the number of refugees that are coming into India has drastically increased and will continue to increase. Even with new policies that could help them obtain visas or the status of asylum seekers in India, it is uncertain as to whether the issue of statelessness and identity crisis will be resolved. Further, what can now be done is the urgent addressal of what the situation is and how the laws are now playing out. Durable and sustainable solutions in India is the only way to go. The level of displacement, uncertainty, statelessness, and identity crisis that these Afghan refugees are facing is excessive. Cost consciousness by the policy makers in India would result in utter injustice to the refugee community. While monetary concerns are an important factor to consider, for such an appalling situation, humanitarian situations “never should be dominated by a balance sheet.”[10] To provide an optimistic future to the Afghan refugees in India, financial concerns should not overbear social and humanitarian considerations when they stem out of concerns for the life and dignity for fellow human beings. If the policy makers do not give the attention that this situation demands, then protection to the Afghan refugee community will take an undesirable turn.


[1] Tariq Al Maeena, Saudi Arabia’s New Laws a Boon for Women, Gulf News, February 13 2021. <https://gulfnews.com/opinion/op-eds/saudi-arabias-new-laws-a-boon-for-women-1.77149419> accessed February 19, 2021. [2] Samrat Sharma, Around 22% Indians Live below Poverty Line; Chhattisgarh, Jharkhand Fare Worst, The Financial Express, September 21 2019. <https://www.financialexpress.com/economy/around-22-indians-live-below-poverty-line-chattisgarh-jharkhand-fare-worst/1713365/> accessed February 21, 2021. [3] Jessica Field, Anubhav Dutt Tiwari and Yamini Mookherjee, Urban Refugees in Delhi Identity, Entitlements and Well-Being, 2017. <https://pubs.iied.org/sites/default/files/pdfs/migrate/10852IIED.pdf> accessed February 16, 2021. [4] BBC News, Covid: India to Begin Vaccine Rollout on 16 January, BBC News, January 9 2021. <https://www.bbc.com/news/world-asia-india-55603620?xtor=AL-72-%5Bpartner%5D-%5Binforadio%5D-%5Bheadline%5D-%5Bnews%5D-%5Bbizdev%5D-%5Bisapi%5D> accessed March 7, 2021. [5] Coronavirus Disease (COVID-19): Vaccine Access and Allocation, WHO, 2018. <https://www.who.int/news-room/q-a-detail/coronavirus-disease-(covid-19)-vaccine-access-and-allocation> accessed March 7, 2021. [6] Dharika Athray, Observer Research Foundation, ORF, 2020. <https://www.orfonline.org/expert-speak/the-plight-of-refugees-in-india-during-covid19-69287/> accessed March 7, 2021. [7] Ferdinand Mukumbang, Are Asylum Seekers, Refugees and Foreign Migrants Considered in the COVID-19 Vaccine Discourse? (2020) 5 BMJ Global Health <https://gh.bmj.com/content/5/11/e004085> accessed March 7, 2021. [8] Michael Safi, Wealthy Nations Urged to Give Portion of Covid Vaccine as ‘Humanitarian Buffer, The Guardian, November 20 2020. <https://www.theguardian.com/global-development/2020/nov/20/wealthy-nations-urged-to-give-portion-of-covid-vaccine-as-humanitarian-buffer> accessed March 7, 2021. [9] Ibid. [10] Barry N Stein, Durable Solutions for Developing Country Refugees, The International Migration Review, vol. 20, no. 2, 1986, pp. 264–282. JSTOR, www.jstor.org/stable/2546035. Accessed 20 Feb. 2021.


For Further References, Click Here.



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 Surendra, The Hindu <https://blogs.cul.columbia.edu/global-studies/files/2020/12/CAB1.jpeg>