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An analysis of the citizenship (amendment) act, 2019 and un convention to the status of refugees, 1951

This article briefly discusses the Citizenship Amendment Act 2019 which is in contravention to the UN Convention to the Status of Refugees, 1951(Convention'). The First part of the paper discusses the Convention and the Rights and responsibilities of the signatories.

The Second part of the paper discusses the present enforceability of the Convention in the Indian context. The third part of the paper discusses the role of Indian courts acting in accordance with the Convention and in conclusion the paper discusses why India should sign the Convention instead of making any law with respect to refugees.

Introduction
The Citizenship (Amendment) Act, 2019 (Act') was passed by the Parliament of India on 11.12.2019. It amended the Citizenship Act of 1955 by providing a path to Indian citizenship for Hindu, Sikh, Buddhist, Jain, Parsi and Christian religious minorities from the neighboring Muslim majority countries of Pakistan, Bangladesh and Afghanistan.

The Act states that the specified class of illegal migrants from the three countries will not be treated as illegal migrants thereby making them eligible for Indian citizenship. India, being a secular country, the act of making separate divisions for 6 communities in the list of pardoned immigrants seems arbitrary in nature. The exclusion of Muslim community not only escalates the feeling of separation amongst the ideologies of the law makers, but also raises the issue of the acceptance of unauthorized migrants.

Part I: UN Convention to the Status of Refugees, 1951: Right and Responsibilities of Signatories

One of the most explicit conventions of United Nations for the protection of the Refugees is the UN Convention to the Status of Refugees, 1951'. The initial framework of the Convention was largely based upon the geographic area, which was the foremost reason why India didn't consider signing the convention, as being a part of that convention would have meant choosing sides during the Cold War. Hence, at present, India does not have any National Refugee Protection Framework.

The Convention aims at providing protection to refugees with effective co-operation of contracting states. The convention further lays down rights and responsibilities of the refugees.
“Refugee” refers to a person who has fear of being persecuted on the basis of race, religion, nationality etc. as per Article 1 of the Convention. Furthermore, Article 2 states that the refugee shall comply with the Country's Law in which he find himself, as well as follow all the rules and regulation taken for the maintenance of public order.

There are certain responsibilities stated under the Convention which states that the contracting state shall comply with the provisions of  Convention and the state shall: allow the refugees to practise their own religion and give them freedom as to the religious education of their children as accorded to their own citizens [i], exempt the refugees from Reciprocity and provide them with the same treatment as provided to the aliens generally'[ii], take the provisional measure in the interest of National Security against any refugee [iii], govern the personal status of refugee with respect to the country of his domicile especially in the matters related to his marriage[iv], issue the identification paper to the refuges if they do not possess the proper travel document [v], allow the refuges to transfer there assets in conformity with the laws of the country[vi].

The Convention expects the contracting state to shall not: discriminate refugees as to race, religion, and country of origin'[vii], take exceptional measures against any refugee or his property only on the basis of his Nationality, impose any tax or any other kind of fiscal charges on the refugees which are different from any other normal citizen [viii], impose penalties and fines on the refugees who entered directly in the territory with the fear of life or freedom from other countries and give them reasonable time to present themselves [ix], expel any refugee without following the due process of law [x], expel or return (refouler) a refugee to the territory where his life would be threatened with respect to his race, religion, nationality, membership of a particular social group or political opinion[xi].

The abovementioned clauses of convention apply to all the contracting countries but the convention is not legally binding as there is no body that monitors the compliance of this convention. The United Nations High Commissioner for Refugees (UNHCR') has supervisory powers but there is no provision under the convention under which UNHCR can enforce the convention nor is there any mechanism under which individuals can file complaint regarding the enforcement. The convention specifies that complaints can be referred to the International Court of Justice under Article 38 of the Convention.

An individual can file a complaint with UNHRC under the aegis of International Covenant on Civil and Political Rights or with the UN Committee on Economic, Social and Cultural Rights under International Covenant on Economic, Social and Cultural Rights. Contracting Nations can also levy applicable International Sanctions against Violators of the treaty.
Part II: UN Convention to the Status of Refugees, 1951 and status in India.

While India is not a party to the Convention, the UNHCR has been helping the concerned people seeking refuge in India since 1981. The Government of India continues to grant asylum to large number of refugees from neighbouring countries and respects the mandate of UNHCR.

India also respects the principle of non-refoulement that is not forcing refugees or asylum seekers to return to a country in which they are liable to be subjected to persecution. In the absence of any national legal and administrative framework with regards to the same in India, the UNHCR offices which are based in New Delhi, Chennai and Tamil Nadu conduct refugee status determination (RSD) for asylum seekers from various neighbouring countries including Myanmar and Sri Lanka. UNHCR's civil society partners include the Mahanirban Calcutta Research Group, The Other Media, and academia.

Furthermore, UNHCR participates in the UNDAF process, particularly the clusters on gender, education, HIV and AIDS and disaster management.[xii] It has been observed that the Indian Judiciary believes that if any Human Right Convention does not contravene any Indian Law than such Convention can be practiced in India.

Part III: Indian Courts and Refugee Rights

Indian Judiciary is of the viewpoint that the undocumented migrants who claim refugee status have certain procedural and substantive rights which cannot be denied such as:
  • The right to be considered as a persecuted refugee;
  • The right not to be deported while the case is being considered;
  • The right to asylum if the case is proved;
  • The right to move to a haven country which offers to take the refugee; and
  • The right to fair treatment throughout this process.

Working with these principles various courts in India have given status of refugees to the people as determined by UNHCR. The Hon'ble Supreme court has at multiple instances ordered countenanced protection from deportation as in interim protection[xiii] or order for fair treatment for Chakma refuges until their status has been determined [xiv].

Similarly, the Gauhati High Court has also granted the protection from deportation as an interim protection [xv]; Gujrat High Court ordered the basic amenities for destitute refugees, especially for women and children when Writ petition was filed under Article 226 of Constitution [xvi]; and Andhra Pradesh High Court granted the injunctions for the deportations of Sri Lankans [xvii].

The decision in the above cases shows that the Indian Judiciary is of the view that accepts the policy of UNHCR even though it works under the aegis of United Nations Development Programme (UNDP) and while India is not a signatory to any Refugee program, the Indian Parliament should work towards accommodating the refugees in the same manner the Judiciary has been doing.

 Conclusion
On the basis of the above discussion and analysis, it is suggested that it is beneficial for the Indian Government to sign the Convention instead of introducing the Citizenship Amendment Act, 2019.

In this regard, the following points need to be considered:
Section 2 of the Convention states that:
“All the refugees from the any country who are facing persecution can be given the citizenship under the treaty irrespective of race, religion, caste or colour.”

If India becomes a signatory to the Convention then the Refugees can be accorded the Indian Citizenship which the Act tends to give under section 2 of the Act. It is necessary to note that there is a distinction between Section 2 of the Convention and Section 2 of the Act whereby the Act; it blatantly ignores the Muslim community by giving the Citizenship to all the Hindus, Sikhs, Parsis, and Christians who crossed the border before 31.12.2014 and leaving only the Muslim Community.

It is strongly suggested that India should be a party to the Convention instead of amending the Act as the underlying features of the Act are similar to that of the Convention. For instance, Refugees can be given identity papers under Article 27 of the Convention which the Citizenship Act of 1955 tends to give under section 14A. Similarly, Refugees can be charged for offences under Article 9 of the Convention which can be done under Citizenship Act of 1955 under section 17.

End-Notes:
  1. Article 4 UN Convention to the Status of Refugees, 1951, page 17, Available at: https://www.unhcr.org/3b66c2aa10
  2. Supra, Article 7, pg.19
  3. Supra, Article 9, pg.20
  4. Supra, Article 12, pg.22
  5. Supra, Article 27, pg.30
  6. Supra, Article 30, pg.30
  7. Supra, Article 3, pg.19
  8. Supra, Article 29, pg.30
  9. Supra, Article 31, pg.30
  10. Supra, Article 32, pg.30
  11. Supra, Article 33, pg.32
  12. UNHCR Global Appeal 2011
  13. Dr. Malvika Karlekar v/s Union of India, Criminal Writ Petition No. 583 of 1992 dated 25.09.1992
  14. NHRC v. State of Arunachal Pradesh, 1996 AIR 1234, 1996 SCC (1) 742 dated 09.01.1996
  15. Bogyi v. Union of India, Civil Rule No. 1847/89 dated 17.11.1989
  16. Ktaer Abbas v. Union of India, 1999 CRI.L.J. 919 dated 1999
  17. P. Nedumaran v. Union of India, ALT 291. 1993; (2):188

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