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Abstract: Throughout history, people have travelled from
neighbouring countries toto seek better lives or religious freedom in
India. Despite being home to many communities of refugees, India has
no legislative provisions made specific to the rights and
responsibilities of refugee and migrant communities in India. Most of
the policies and treatments are therefore ambiguous, and dependent
on the prevalent political, social and cultural agreements between
governments. In this paper, we highlight the need for uniformized
legislation and the recognition of refugees and asylum seekers separate
to foreign aliens to prevent their persecution and disadvantages in
social and economic opportunities.
INTRODUCTION
The Office of the United Nations High Commissioner for Human
Rights (UNHCHR) has described an international migrant as “any
person who is outside a State of which they are a citizen or national, or,
in the case of a stateless person, their State of birth or habitual
residence”. ‘Migrant’ is thereby utilized as an unbiased term to depict
a group of individuals who imbibe the absence of citizenship
connection to their host nation. Refugee, on the other hand, is
defined, under international law, as an individual fleeing conflict or
maltreatment in their origin country. These individuals are protected
I
Status of Refugees, Migrants
and Criminal Law in India
– Vipin Vijay Nair, Poulomi Bhadra, Sanjeev P. Sahni
under refugee law, including protection from return or expulsion to a
situation that would risk their life and liberty. Individuals who flee
their home country to seek refuge in the host nation requesting for
international protection are categorized as asylum seekers. These
individuals request the status of a refugee but are yet to be declared as
one.
In 2018, the number of refugees under the UNHCR mandate rose
to 25.9 million across the globe (UNCHR, 2011). India has
conventionally established itself as a peace-keeping country with
friendly policies towards displaced people and shelter seekers.
However, the absence of any clear refugee legislation can be attributed
to India’s volatile position in the South Asian politics and the threat of
terrorism across borders. Despite the absence of any legislation, for
most part of its history, India had protected the rights and addressed
the needs of refugees who have escaped their home country and
entered its territory for protection.
CROSS-BORDER MIGRATION IN SOUTH ASIA
The status of refugees in India dates to the origin of independent
India. India has hosted around 420,400 refugees until now, including
some 110,000 Tibetan who fled since China’s 1951 annexation of
Tibet. Another 102,300, mostly Tamil Sri Lankans, escaped the war
between the Liberation Tigers of Tamil Eelam and the Sri Lankan
Armed Forces.
The earliest arrival of refugee and migrants in India can be recalled
with the partition of India in 1947, with the onset of the creation of
two sovereign states: India and Pakistan. Nearly three million Hindus
from Pakistan, a majority of who were Dalits, sought refuge in India
(Human Rights Law Network, 2007). The tensions between Hindu-
Muslim relationship in Pakistan grew further with the Indo-Pak wars
of 1965 and 1971. After the demolition of the Babri Masjid in 1992,
the outrage against the Hindu population forced many more Pakistan
refugees to flee to India. Following the partition in 1947, East Bengal
subsequently separated from Pakistan, creating an independent
country Bangladesh in 1971. Around 10 million East Bengal refugees,
20 CRIME AND CRIMINAL LAW
many of who were Bengali Hindus, crossed the border and settled in
West Bengal and North-Eastern states of India after the partition
(Human Rights Law Network, 2007).
In 1914, Tibet was declared as an independent country over the
peace convention signed between China, Britain, and Tibet. The
entire political and administrative functioning of Tibet was reflected
through religion and with deep-rooted faith in Buddhism. As China
invaded Tibet in 1949, Tibetans citizens were forced to leave the
territory due to the extremism imposed onto the citizens. Even after
repetitive pleas from the Dalai Lama and his government, the barbaric
treatment and human rights violation continued from the Chinese
government. The call for a peaceful resolution by Dalai Lama over the
situation from the international community went into vain and was
forced to flee. In 1959, nearly 80,000 Tibetans fled to India seeking
asylum and led to a steady flow of refugees over the years.
In 1948, as Burma got independence from Great Britain, the
government shifted from democracy to the military-led regime under
the State Peace and Development Council (SPDC). In 1990, despite a
landslide victory by the main opposition, National League of
Democracy (NLD), the party was refused to power. The leader of the
party, Aung San Suu Kyi was then kept under house arrest for a total of
15 years over a 21-year period. The increased militarization from
1988 under SDPC caused Burmese citizen to flee and seek asylum in
India (Human Rights Law Network, 2007).
With the creation of the state of Israel, many Palestinian Arabs
were forced to leave or ejected from their homes after the 1948 Arab-
Israeli war. Since the downfall of Saddam Hussain government,
Palestinians have become an easy target or violence and maltreatment
in Iraq. They were provided with subsidized ration and housing
facilities with access to health, education and other government aids.
With the invasion of Iraq by the United States, the condition of
Palestinians forced them to flee their home country and seek refuge in
neighbouring countries. Palestinians are one of the recent groups that
sought refugee status in India.
In the clash between natives and Soviet and United States backed
Mujahedeen resistance, nearly 60,000 Afghans were forced to seek
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STATUS OF REFUGEES, MIGRANTS AND CRIMINAL LAW...
refuge abroad. Secondly, during the civil war between Taliban and
ruling Najibullah government in 1992. With the fall of the Najibullah
regime and the onset of Taliban rule, nearly 9000 Afghans, mostly
Sikhs and Hindus who feared that they would not be allowed to freely
practice their religion in their home country, sought asylum in India
due to fear of oppression and violence from the Taliban.
After the events of 11 September, 2001, United States with other
NATO supporters launched a military invasion in Afghanistan to
demolish the Taliban regime. The decade of violence and human rights
violations resulted in killings, economic and infrastructural loss with
approximately 15,000 more Afghans fleeing from the country to seek
refuge abroad, especially in India.
In the early 20th century, many Nepalese people started arriving
in Bhutan and accounted for nearly a quarter of the Bhutanese
population. In the 1980s, the Bhutanese government was forced to
view the growing number of Nepalese individuals as a threat to the
ethnic identity of Bhutan. Many measures were taken against the
Nepalese to reduce their increasing population, ranging from strict
restrictions to obtaining passports or government jobs to banning
Nepali as a second language in schools. With the enactment of
Citizenship Act of 1985, many Hindu Nepalese in Bhutan was
stripped off their citizenship status. This legislation led to a
widespread protest by Hindu Nepalese population with a stringent
military response by the Burmese government. After increasing
atrocity by the Bhutan government on closure of local Nepalese
school, clinic and development programs, many Nepalese attempted
to cross India borders and enter through Assam and West Bengal.
Indian states did not accept the expelled Bhutanese and were forced to
flee back to Nepal and enter India through other various entry points.
The ongoing conflict between the Sri Lankan army and the
Liberation Tigers of Tamil Eelam (LTTE) for the independence of the
minority Tamil population has left 70,000 people dead and
approximately one million displaced. Most of the Tamils from Sri
Lanka have fled to India since the start of the conflict in 1983.
Majority of Sri Lankans fleeing the country, risked their lives in
22 CRIME AND CRIMINAL LAW
attempting to utilize boats to traverse the seas. By 2007, it was
estimated that nearly 18,000 Tamils have taken refuge in refugee
camps in Tamil Nadu. At the time of their entry into India, many Sri
Lankan Tamils are interrogated in order to investigate any links with
LTTE, which is considered an illegal and terrorist organization in
India.
With the onset of civil war in Somalia in 1991, many attempts
were made by the United States to restore humanitarian crisis
(Human Rights Law Network, 2007). The civil war left millions
displaced and killed thousands over decades. The UN Office of the
Coordination of Humanitarian Affairs (OCHA) estimated 1.8 million
Somalis are in dire need of aid over the human rights violations. Nearly
400,000 Somali refugees have fled the country amid security tensions
and a growing number have been recorded in India, since 2007.
The latest entrants on the refugees scene in India territory was
instigated by the uprising in Myanmar over the de-recognition of
Rohingya Muslims and the atrocities levied against the minority
group since 2012. The onset of entry of Rohingya refugees in India was
after they were denied asylum in the other neighbouring South Asian
countries, amid fear of political and religious tensions. Most of the
Rohingya refugees took shelter in various states of India and are
registered as refugees with the Office of the United Nations High
Commissioner for Refugees (UNHCR).
Internal migration within India has been described as the
movement of population in different parts of the country than the
place of birth/the last residence for various professional, educational
and personal reasons (Das and Saha, 2003). Migratory movement
within the Indian subcontinent first began with the formation of
independent India, when Kashmiri Pandits faced threat from Islamic
radicals in the valley. Approximately 100,000 Kashmiri pandits have
since moved out of their homes and have settled to different states of
India, fearing religious conversions and killing in their home state.
As per the 2001 Indian census, 307 million people have been
reported under the category of internal migrants by place of birth i.e.
individuals who have migrated to another location other than their
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STATUS OF REFUGEES, MIGRANTS AND CRIMINAL LAW...
place of birth. One of the predominant reasons for this amongst
females is marriage. The 2001 census reported that 314 million
individuals have relocated from their place of last residence, as
recorded in the last conducted survey. The net migrant population in
any location is the difference between in-migration and out-migration
numbers of a State. Maharashtra tops the list with 2.3 million
migrants, followed by Delhi (1.7 million), Gujrat (0.68 million) and
Haryana (0.67 million), as per 2001 census. Uttar Pradesh (-2.6
million) and Bihar (-1.7 million) showcased the two states with the
largest number of domiciles migrating out of the State.
LEGAL PROVISIONS TO REFUGEES AND MIGRANTS
The international convention associated with the issues of refugees is
the 1951 Convention on the Status of Refugees and the 1967 Protocol
attached to it. Under the Convention, a refugee is defined as “…a
person owing to well-founded fear of being persecuted for reasons of
race, religion, nationality, membership of a particular social group or
political opinion, is outside the country of his nationality and is
unable or, owing to such fear, is unwilling to avail himself of that
protection of that country; or who, not having a nationality and being
outside a country of his former habitual residence as a result of such
events, is unable or, owing to such fear, unwilling to return to it.”
India is neither a party to the 1951 Convention nor the 1967
Protocol. In the absence of specific legislations that can protect and
serve refugees in India, the only protection accorded to them are as per
Article 51© of the Indian constitution that advocates respect towards
international law. The provisions of the international treaties are
regarded in accordance with the customary international law and may
be regarded as infused within the domestic laws. The 1951
Convention clarifies the various criteria to lend one the refugee’s
status and the 1967 Protocol reflects the growing need to develop and
provide a hospitable and safe environment for an individual under
threat or risk. These instruments are at the core of the principles
promoting human values on a global platform by ensuring provisions
that promote the wellbeing of the individual at risk in their home state.
24 CRIME AND CRIMINAL LAW
These are the first and only instruments at an international level to
provide regulations over the treatment of individuals who are forced to
evict their home country due to maltreatment and discrimination
within their origin country.
The rights of asylum seekers to be treated the same and equal to
the citizens of India are enshrined in accordance to certain Articles in
Part III of the Constitution of India, which guarantees them
fundamental rights such as equal protection under the law, religious
freedom, educational rights and right to life and liberty. Some of the
rights that are bestowed to foreigners on Indian soil are Right to
residence and movement under Article 26, Right to employment
under Article 17 and Right to housing under Article 21.
Few legislations that were enacted with the partition of India and
before the Indian constitution came into effect, were East Punjab
Evacuees (administration of property) Act, 1947, U.P. Land
Acquisition (rehabilitation of refugees) Act, 1948, East Punjab
Refugees (registration of land claims) Act, 1948, Mysore
Administration of Evacuee Property (Emergency) Act, 1949, Mysore
Administration of Evacuee Property (second emergency) Act, 1949.
Therein, with the enactment of the constitution, certain Acts related to
displaced people, refugees and evacuees were passed, namely,
Immigrants (expulsion from Assam) Act, 1950, Administration of
Evacuee Property Act,1950, Evacuee Interest (separation) Act,1951,
Displaced Persons (debts adjustment) Act,1951, Influx from Pakistan
(control) Repelling Act,1952, Displaced Persons (claims)
Supplementary Act, 1954, Displaced Persons (compensation and
rehabilitation) Act,1954, Transfer of Evacuee Deposits Act,1954,
Foreigners Law (application and amendment) Act,1962, Goa, Daman
and Diu Administration of Evacuee Property Act,1969 and Refugee
Relief Taxes (abolition) Act,1973 (Kumar, 2017).
There is no specific law regulating the entry and exit of the
refugees in India and hence, policies regarding refugee status and
movement are handled over political and administrative discourse.
This leads to the treatment of refugees as aliens under a lawful
provision in India, unless special provision is made for the said
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STATUS OF REFUGEES, MIGRANTS AND CRIMINAL LAW...
community; as in case of Ugandan refugees of Indian origin, post the
formation of the Foreigners from Uganda Order, 1972.
The term ‘alien’ reflects in the Constitution of India (Article 22,
Para 3 and Entry 17, List I, Schedule 7), in Section 83 of the Indian
Civil Procedure Code, and in Section 3(2)(b) of the Indian Citizenship
Act, 1955, and also few other statutes. Enactments administering
aliens in India are the Passport Act, 1920 and the Passport Act, 1967
deals with the powers provided to the government to enforce
conditions of passport for entry into India and to issue passport and
travel documents to control departure from India. The Foreigners Act,
1946 under which the Central Government is sanctioned to monitor
the entry of aliens into India; it defines a ‘foreigner’ as ‘a person who is
not a citizen of India’. Also, the Registration Act, 1939 deals with the
registration of foreigners entering and departing from India. Since
these legislatures do not differentiate between genuine refugees and
any other categories of aliens, these refugees face the risk of
apprehension by law enforcement authorities and immigration, when
caught without valid documents. In case of violation of the above
mentioned legislatures, the refugee may face forced deportation to the
home country through the nearest port, airport or exit point at the
international borders. In case of violation of the rules of Registration of
Foreigners Act, 1939, the refugee may face serious charges and may be
sentenced with imprisonment up to one year or a fine up to one
thousand rupees or both (Kumar, 2017). In such cases, courts are seen
to take a lenient approach and provide an opportunity to the accused
to approach the United Nations High Commissioner of Refugees
rather than facing sentencing or deportation. The supreme court of
India has also stated that the right of government in deporting the
refugees is absolute (Kumar, 2017) “… 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 executive
Government has unrestricted right to expel a foreigner.”
The Supreme Court of India has stayed the deportation of refugees
in cases like Maiwand’s Trust of Afghan Human Freedom vs. the State
of Punjab; and, N.D. Pancholi vs. State of Punjab and Others. In
26 CRIME AND CRIMINAL LAW
Malavika Karlekar vs. Union of India, the Supreme Court directed a
stay of deportation of the Andaman Island Burmese refugees, since
“their claim for refugee status was pending determination and a prima
facie case is made out for grant of refugee status.” The Supreme Court
judgment in the Chakma refugee case clearly declared that no one shall
be deprived of his or her life or liberty without the due process of law.
The judgment of the Supreme Court in Luis De Raedt vs. Union of
India and the State of Arunachal Pradesh vs. Khudiram Chakma
stressed on the same point as the earlier judgments (Kumar, 2017).
The legal status of various refugee, migrants and asylum seekers in
India tends to be highly dependent and reflected upon the political
relationship between the governments.
Tibetans who came to India in the late 1950s and 1960s were
provided refugee status despite the Indian government not being a
party to the 1951 UN Resolution of 1967 Protocol. The Indian
government has provided various identity documents like registration
cards to Tibetan refugees that arrived in the first wave of refuge.
Tibetans enjoy more rights than any other refugee in the country,
being the only category of refugee to receive travel permits from the
Indian government. In contrast, the legislative stand on Sri Lankan
refugees is governed by Foreigner’s Act 1946 and India’s Citizenship
Act 1955, which declares them as refugees, but keeps them in special
camps due to the presumption of them being a persistent threat to the
nation.
The cordial relationship between Bhutan and India is also
reflected in the rights provided to the Bhutanese citizens. The rights to
reside, study and work are provided without any identity verification
document. Amid tensions between Indo-Pak, nearly 115,000 people
have fled from Pakistan to India since 1965. The Indian Constitution
and the Indian Citizenship Act, 1955 entails specific provisions for
individuals who were born or whose parents were born in undivided
India to apply for Indian citizenship. The Citizenship Amendment
Rules, 2004 provide an opportunity to Pakistanis to apply for
citizenship in Gujarat and Rajasthan. The conditions for citizenship
are also relaxed from 12 years to 5 years of continuous residency, as
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STATUS OF REFUGEES, MIGRANTS AND CRIMINAL LAW...
opposed to other foreigners seeking citizenship to permanently settle
in India.
The asylum seekers from Burma who travel to Delhi are
recognized as refugees by the UNHCR. The vulnerable group of
Burmese refugees are provided a mandated amount of money every
month in order to sustain their basic necessities. Somalis constitute
the largest group of the African community in India. Their number
varies between 200 (in official data) to 400 (suspected in actual
residency). A Somali refugee who arrives at Delhi is requested to apply
for refugee status and once recognized, is provided with an allowance
of Rs. 2225 for the principal applicant and Rs. 750 each for the
dependants for the first six months, which is thereafter reduced to Rs.
1400.
The Indian government does not, however, recognize Afghans as
refugees but as although they are provided the said status under
UNHCR mandate. Unlike other refugees, Afghans are provided with
valid residence permits that grant them legal protection during their
stay in the country, irrespective of whether or not they have Indian
passports. The Afghans, too, receive a similar allowance through
UNHCR under the refugee status, but after six months, only
vulnerable refugee candidates like females, the elderly and the
disabled receive further financial support.
The most recent refugee group to seek refugee status in India are
the Palestinians. The United Nations High Commission for Refugees
(UNHCR) in Delhi, India has recognized few Palestinians as refugees,
with consideration towards others being reserved. In contrast to the
Afghan and Burmese refugees, Palestinians are not provided residency
certification by the Indian government (Human Rights Law Network,
2007).
SOCIAL OUTLOOK TOWARDS REFUGEES
The social conditions of refugees and migrants in India are inhumane
and degrading due to the absence of a sense of belongingness towards
the host nation (Raj, 2019). Many Pakistani refugees and migrants,
who have acquired Indian citizenship, still face roadblocks in availing
28 CRIME AND CRIMINAL LAW
government scheme and benefits. These individuals work in informal
sectors like manual and domestic labour, and face various forms of
exploitation at the workplace.
Nearly 72,000 refugees from Sri Lanka have taken shelter in more
than 100 camps in Tamil Nadu. These refugees do not have a work
permit and are provided with a minimal sum as monthly stipend
(Human Rights Law Network, 2007). The camps and shelters adhere
to curfew time of 1900 hours which is mandatory for all residents, and
confer minimal importance towards health and hygiene concerns of
the refugees. Somalian refugees especially face more challenges than
other refugee groups in access to education, housing, medical
facilities, and other necessities(Human Rights Law Network, 2007).
The opportunity to avail work opportunities is tough for these
refugees due to unavailability of residence permit and discrimination
against their appearance from law enforcement agencies. Somali
women are highly vulnerable due to lack of fluency in the regional
languages that is an impediment to availing basic provisions for work
and living conditions. Palestinian refugees, like other refugees, face
hardship due to the language barriers at the workplace. The children of
these refugees also face similar hurdles while pursuing their education
and social integration, making it difficult for the refugees to feel at
home in the host country for more than the migrating generation.
CRIME TRENDS ASSOCIATED WITH REFUGEES AND MIGRANTS
Migration can be stated as the movement of individuals or group
across specified borders for various socio-economic reasons,
specifically influenced by the regional differences in development.
Individuals consider moving from a low development environment
towards a developed state in search of employment or sustainable
lifestyle opportunity. These reasons are also found to be true for both
internal and international migration (Das and Saha, 2013). With the
transition from an agricultural dependent nation to an industry-
driven economy, India has seen a surge in rural migration towards
urban conglomerates—metropolitan cities like Delhi, Mumbai,
Bengaluru, Chennai, Kolkata have seen an increase in the migrant
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STATUS OF REFUGEES, MIGRANTS AND CRIMINAL LAW...
population in the last few decades. The pressure on limited resources
associated with such specific geographical location imparts an
immense burden on the living standards of the locals. As per the
Census 2001 (which serve as the only data in India over the number of
migrants), the extent to which various factors influence internal
migration can be seen in the Table A below.
Table A . Distribution of reasons for migration by the last
residence with duration (0-9years) India
Reason for Migration Person Male Female
Employment 14.7 37.6 3.2
Business 1.2 2.9 0.3
Education 3.0 6.2 1.3
Marriage 43.8 2.1 64.9
Moved after Birth 6.7 10.4 4.8
Moved with household 21.0 25.1 18.9
Other 9.7 15.7 6.7
Source: Census of India 2001
As seen in the data in table A, the top factors for migration in
nearly 65% of women are marriage and employment and nearly 38%
of men have migrated for the sake of better work opportunities,
indicating that regional disparity and under-development are
predominant reasons for migration within Indian states. It has also
been stated that States that show low urbanization and lack of
economic viability; have lower literacy rates, especially among
females; with a majority of the population residing under poverty line
and low per capita income reflect higher trends of migration.
Until now, India has never stressed upon maintaining a formal
database and directory of all the refugees entering India. The absence
of identity and legal status leads to discrimination towards and
violation of human rights of various groups of refugees. Afghan
refugees who have taken shelter in Delhi and are recognized under
UNHCR mandate still face exploitation in refuge. Muslim Afghani
women have reported that incidents of harassments and abuse along
with illegal extortion and incessant questioning at the hands of law
30 CRIME AND CRIMINAL LAW
enforcement is an ever present threat (Human Rights Law Network,
2007).
Many of the refugee women in Delhi, like Khawm, 43, who lives with her
daughter, are working hard on to learn Hindi. Her husband was taken away
by soldiers in Myanmar; she doesn’t know if he is alive or dead. Despite this
trauma, she is trying to pick up the pieces of her life by adjusting to life in exile.
“I was molested once,” she says softly, adding, “We face a lot of problems in
Delhi. Now if this happens again, I will be able to defend myself.” She would
have liked the training to have gone on for longer – ten days, she feels, is too
short. “The trainers are experts. I want to become like them – strong and
confident,” she smiles.
Women’s Feature Service (Bose, 2014)
In recent years, Delhi has reported the highest rate of crime
against women in India. Sexual harassment against women in public
transport and isolated locations are commonly reported, but migrant
women are more susceptible to sexual predators because of their rural
practices. Women migrating from rural areas, who cannot afford
public transport, tend to cut across vacant parks and fields that could
be potentially dangerous as shortcut routes to and fro to their homes or
workplaces. Another area of potential threat in the vicinity of these
women are the local night markets located near to refugee settlements,
where not only are these women harassed and exploited, but any
reaction toward such acts can incite further violence between locals
and refugees.
More than 600 Pakistani Hindu foreigners in Delhi’s Adarsh Nagar territory need
to continually fight poverty, foulness, and lack of power and clean drinking water.
Encompassed by garbage and open sewers, their requests for better facilities
have failed to receive any notice even as they anticipate acknowledgment of
refugee status in the country.
Having entered India on tourist visas, the migrants are currently living on
extended visas with no intents of returning to Pakistan. While the majority of them
refer to religious mistreatment as the purpose behind their relocation, some state
they were stressed over the wellbeing of their young ladies, who encountered
attempts at snatching, assault, and conversion to Islam.
- Diplomat (Raj, 2019)
Migrant populations tend to often bear the brunt of regional,
political and religious tensions across borders. For over a decade, the
Rohingyas have lived peacefully as refugees on Indian soil without any
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STATUS OF REFUGEES, MIGRANTS AND CRIMINAL LAW...
grave instances of harassment and abuse. But as the political tension
between India and Pakistan rises, and the growing threat of Islamic
terrorism supplemented with Islamophobia leads to national panic
and strict monitoring globally, the Indian government has decided to
take a fresh look at the residency and citizenship of these Rohingyas.
The National Register of Citizens that was first prepared during the
1951 census has made its inroad in Assam again, and is being used to
legally document the name of individuals who would be proclaimed as
the citizen of India based on the arrival in the Indian territory before
the start of Bangladesh Liberation War. These legislative practices
have been hailed by many as an act of discrimination towards migrants
who have, until now, enjoyed all rights as the citizen of India.
A year ago, the 37-year-old burkha dealer and his family escaped a deathly fire, as
did the six other Muslim Rohingya refugee families who were living there.
However, it has left the community in India’s northern city of Jammu full of dread
and trepidition.
“The police said it was an electrical short circuit, but we don’t think it was an
accident,” said Kader, sitting on the floor of a madrasa in a slum in Jammu’s
Narwal area.
“They don’t like us here and want us to leave. We were driven from Burma, then
Bangladesh and now they want us to leave India. The situation is bad for us
wherever we go.”
- Thomson Reuters Foundation (Bhalla, 2012)
The National Crime Records Bureau is responsible for maintain
the crime statistics in India representing a diverse category of offenses
ranging from dacoity, murder, rape, kidnapping, and many others. The
NCRB data does not have any specific sections or parameters to
document the crime patterns associated with migrants and refugees.
There is also no literature that confirms any relationship between
crime and migration (Debnath and Roy, 2013). However, there is an
ongoing discussion within academic scholarship postulating that
migration as a demographic shift can contribute substantially as a
catalyst towards criminal activity in certain regions. The argument is
based on compositional indicators like age, education, gender as a
basis of crime and contextual differences in social structures that can
lead to a rise in crime. (Bhavnani and Lacina, 2019).
32 CRIME AND CRIMINAL LAW
Unskilled labourers struggling for employment opportunities
may be subjected to economic deprivation and expose themselves to
poverty and other social ills. There has not been a single study that
strongly voices over the relationship between increasing crime rate to
migration. This should guide governments to investigate the actual
cause of crime rather than implicating migration as the root cause of
the entire issue. The comments reflected by various governments over
the crime and migration nexus only act as a political truce to satisfy
their loyalties and garner their vote bank. Many incidents of
discrimination and crime have been reported both towards migrants
and because of the migrant population across various states in India
(Bahvnani and Lacina, 2019)
People from the town of Usgao have requested that the State government take
action against offenders who use fake Goan origin names when arrested. The
appeal comes in light of the ongoing case in which a Karnataka local, Iranna
Kavadimatti, accused of stealing bottles of alcohol spirits from the Mollem
godown of the Excise Offices, told police his name was Sameer Kavlekar.
As of date, countless non-Goans have settled in Usgao, many them have taken
local (nick) names to integrate within the community. Locals have raised objection
to non-Goans having changed their names in the official archives, which isn’t
allowed under law. According to the Goa Change of Name and Surname Act 1990,
only people born in the state can change their name and surnames.
- Times of India (2019)
Large number of students from northern India, mostly Bihar,
were preparing for the Railway Examination in Maharashtra in 2008,
when supporters from the MNS party created an insurgence that
killed one student from Bihar. The attack was reportedly over the
protest by the MNS party in 2003, where MNS followers protested
the 90 percent success of Bihar candidates in the admission for
Railway Examinations.
The onset of violence is not only limited to one state, but have
increasingly exhibited a growing nationalistic trend across the country.
In 2016, an incident of ragging was reported in a private university in
Kota, Rajasthan that led to the death of a student named Satyarth.
This incident erupted protests and saw various dialogue between
ministers of both states for protection and safety of Bihari students
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STATUS OF REFUGEES, MIGRANTS AND CRIMINAL LAW...
outside their home state. With increasing incidents of attacks on
working class migrants from Uttar Pradesh and Bihar, hundreds were
forced to flee the state of Gujarat in the last few years. After the rape of
a 14-year old by a worker from the Eastern states, hate speech against
people from Uttar Pradesh and Bihar spread aggressively.
A migrant from Bihar who had been living in Gujarat for 15 years was mercilessly
whipped with bars in October 2018. The family of Amarjeet Singh said he was
coming back from work when a chafed mob killed him. The police denied the case.
The supposed homicide can be in wake of the viciousness focusing on the
individuals from UP and Bihar after a migrant from Bihar raped a 14-year-old
young girl. Large number of Hindi speakers are escaping the city to the place
where they grew up.
Amarjeet had come to Gujarat when he was only seventeen and had toiled hard to
be able to afford to build his own home in his state.
-India Times (2018)
In August 2012, hundreds of North-eastern origin people left the
city of Bengaluru after subsequent violent incidents in the city of
Chennai and Pune caused due to a social media hate text that was
widely circulated against the people from north-eastern states of India
(India Today, 2018). The national capital territory of India which is
home to many young north-eastern students and professionals was in
the headlines for increase in crime and discrimination in education
and job opportunities against the migrants from North-eastern states.
In 2016, The Ministry for Home Affairs put together several
legislative measures to curb any sort of harassment, discrimination,
and human rights violation towards people from the Northeast.
A guest is welcome to a host’s house if he learns to adjust himself accordingly. But
if he tries to change the host’s house through dadagiri, we won’t tolerate it. And no
means no!
I am proud of my workers for their struggle! Please don’t call it ’Rada’
(hooliganism) by giving old and historic references. They hit the streets to protect
their own language and culture. Police are visiting their houses again and again
and beating them up like cattle to punish them for protecting their language and
culture.
They are tolerating it quietly. For whom? For Maharashtra! For India! It is
fashionable for intellectuals here to blame my party for the unsolved problem of
Marathi identity. But am I or my party responsible for it?
–Excerpt from Raj Thackeray’s letter to Loksatta in response to Sudheendra
Kulkarni’s letter
34 CRIME AND CRIMINAL LAW
The Kashmiri Pandits have been amongst the few migrant
communities in India that have faced atrocities and discrimination in
their home state because of radicalisation and religious fanaticism.
The atrocities towards Kashmiri Pandits during the Gawkadal
Massacre in 1990s have led them to be forcefully evicted from their
homeland after being declared as Kafirs. Kashmiri pandits displaced
all over Jammu and other states seek resolutions to enable them to
return to Kashmir. On the other hand, refugees from Pakistan also face
discrimination in settling down in Kashmir as at refugee settlements
due to the requirement of dual citizenship. Pakistani refugees across
Kashmir are considered as non-permanent residents of Jammu and
Kashmir, even after they have been granted Indian citizenship. The
BJP-led government in its second tenure has proposed to amend
Article 370 and 35(a) of the Indian Constitution in order to maintain
peace in the Kashmir valley and to provide the scope of citizenship and
opportunity to avail government services by Kashmiri pandits and
Pakistani refugees.
“As the night fell, the microscopic community of Kashmiri pandits became panic-
stricken when the Valley began reverberating with the warcries of Islamic
extremists, who had stage-managed the whole event with great care; choosing its
timing and the slogans to be used. A host of highly provocative, communal and
threatening slogans, interspersed with martial songs, incited the Muslims to come
out on the streets and break the chains of ‘slavery’. These exhortations urged the
faithful to give a final push to the Kafirs in order to ring in the true Islamic order.
These slogans were mixed with precise and unambiguous threats to
Pandits.They were presented with three choices - Ralive, Tsaliv ya Galive
(convert to Islam, leave the place or perish). Tens of thousands of Kashmiri
Muslims poured into the streets of the Valley, shouting ’death to India and death to
Kafirs’.
-Excerpt of Col Tej Kumar Tikoo’s book, Kashmir: Its Aborigines and Their Exodus
( Tikoo, 2013)
THE VOLATILE STATE OF AFFAIRS
India has not yet ratified the 1951 UN Convention and 1967 Protocol
over the Status of a Refugee but has been a party to various
international treaties consisting of various provisions for the
protection for refugees. As a signatory to such treatise, India is
obligated to instil various administrative and legislative measures for
35
STATUS OF REFUGEES, MIGRANTS AND CRIMINAL LAW...
the protection of refugees. Article 51 of the Constitution serves as a
Directive Principle of the State to enforce collaboration of the Indian
legislation and governance on various international duties. Article
253 of the Indian Constitution states that “parliament has the power
to make any law for the whole or any part of the territory of India for
implementing any treaty, agreement, or, convention with any country
or countries or any decision made at any international conference,
association or another body” and also maintains the principle of non-
refoulement. India is a member of the executive committee of the
office of United Nations High Commissioner for Refugees which
places a moral obligation, if not a legal compulsion, to build a
cooperative relationship with UNHCR for the provision of 1951
Conventions (IPCS, 2007).
Despite such diverse participatory obligations, India does not
have a uniform legislative framework to formulate, regulate or
monitor the huge and diverse population of refugees. National
Human Rights Commission has presented various reports for the
creation of national law or amendment towards the Foreigners Act
1946, which is referred to by authorities in case of refugees and asylum
seekers. The prime lacuna within the said Act is the exclusion of the
term ‘refugee’ and universal application of ‘foreigner’ to refer to all
aliens residing in the country, temporarily or permanently.
Considering that India has consistently chosen not to be a party to
the 1951 Convention of the Status of Refugees and has made no
attempts in specifying the definition of refugee in any relevant
criminal or special laws, it is hard to consider that the State desires a
positive and forward looking outlook towards assistance and rights
provided to refugees. Although, this attitude might be attributed to
the volatile situation in South Asian politics and the bilateral
agreements between the neighbouring countries from which some of
refugees originate. A committee chaired by Justice P. N. Bhagwati in
1997 took the onus to construct a uniform national law of refugees.
Although the Bill was never passed in the Parliament, the model law
stated that the definition of a refugee is “Any person who is outside
his/her Country of Origin and is unable or unwilling to return to, and is
36 CRIME AND CRIMINAL LAW
unable or unwilling to avail himself /herself of the protection of that
country because of a well-founded fear of persecution on account of
race, religion, sex, ethnic identity, membership of a particular social
group or political opinion” (Nair, 2007). The functioning of India’s
refugee policy in relation to the international rights reflects an unequal
and bias approach towards certain groups of refugees.
Even with the reputation for being a hospitable and friendly
destination for asylum seekers, increase in cross border movements
imposes a strong stance towards a national refugee law. The enactment
of uniform law would provide recognition to various refugees and
asylum seekers with proper measures dealing with their rehabilitation
and treatment. These laws would instil accountability of all parties
involved and would enable provision of uniform rights and privileges.
While a thorough consultation with regional political parties would
entail a collaborative practice and strengthen the ties between
different stakeholder nations, nevertheless, the need of the hour is a
specialized, national legislations for refugees and asylum seekers
focussing on the needs and requirement of various refugee groups in
India, irrespective of any neighbouring country specific arrangements.
BIBLIOGRAPHY
1. Human Rights Law Network (November 2007). Report of Refugee Populations
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Refugee_populations_in_India.pdf
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38 CRIME AND CRIMINAL LAW
