27 July 2020, NIICE Commentary 5677
Dr. Nuzhat Nazneen
Native discourses on the refugee-crisis are a long-awaited cry of the post-colonial Indian subcontinent. Displacement, statelessness, and refugee-related issues are ostensible tools of international laws in anticipation to be conceptualised domestically in the South Asian scholarship. In South Asia, Afghanistan is the sole signatory of the 1951 United Nations Convention of Refugees and its 1967 Protocol. The remaining countries, are non-signatories yet propose and claim to use the same international law in dealing with the refugees. These countries have other organisational presence in the United Nations but the statutory absence of refugee laws in their respective national legal systems is a perturbing adding confusion regarding the definition of the ‘refugees’.
Role of Borders in the Formation of Refugees
Borders have special significance in refugee discourses. Geopolitically, borders embody specific political, social, economic and cultural connotations reflecting power and status of the people within specific boundaries. It is the political perimeters that develop notions of geographical inside against which the identity of the inhabitants and outsiders are framed and analysed. Refugees’ emigration results in the subsequent denouncement of their citizenship, eventually losing their legal status and become stateless seeking protection in another country. In the absence of concrete legal structure to provide the immigrants a sense of security, the humanitarian argument on the crisis is lost. The symbolic gesture of legally sanctioned acceptance provides incentives to the refugees to overcome stigmatisation of living in an unwelcomed country. This authorisation smoothens the process of their integration not only in the economy but also in the socio-cultural fabric of the host country.
However, the suspicion around their legal existence damages the confidence amongst the refugees. The extemporised domestic administrative policies of the respective countries exist with an intention to accord refugees the protection, but in absence of nationally sanctioned legal commitments, they mostly fail to impart justice, leading to human rights abuses of refugees like deny access to basic amenities. The resultant distrust effects their identity-formation; and identification is essential to stimulate the ‘consciousness of belongingness’ to a group. It is to be borne in mind that on one hand, identity is a fluid and a contextual reality but on the other hand, it has its absolute essence. The political exigencies, historical contexts, socio-cultural environment, the beliefs, interest and ideas of the people motivate communities to construct or deconstruct a specific identity at a given point of time. Therefore, the possibility of the refugees to accept and adapt to the social-cultural aspects of the host country are influenced by different forms of crisis -economic, social, political or legal, as the case may be.
Refugee Issues and the Indian Subcontinent: Beyond Persecution
Partition and post-colonial migrations – voluntary or forced, in the Indian subcontinent formed different nation-states leading to the circumstantial refugee plight in the region via special arrangements of citizenship during the formative years of these countries. Post-partition, many were turned stateless. They left one border to enter into the other, ideally expecting to become citizens of the states they were migrating to. Their unique experience with documentation and bureaucracy considerably differentiates their experiences from the other stateless insofar because they were promised national rights as citizens and were in the process of ‘becoming citizens’. The United Nations definition highlights ‘fear of persecution’ as the reason to engage the stateless as the refugees.This crucial reality offers in itself the power to question the universal definition of refugees provided by the United Nations’ Refugee Convention. The tumultuous beginning of the newly independent countries of the East demands undivided attention in the refugee scholarship. The after-effects of this demographic instability are witnessed even in present. In the contemporary times the South Asia is witnessing political turmoil resulting in increase of refugees. For instance, the plight of the Rohingya Muslims in Bangladesh is an ongoing crisis and the controversial Citizenship Amendment Act, 2019 (CAA) alongside the National Population Register (NPR), and the National Register for Indian Citizens (NRC) in India potentially indicates formation of new refugees. The concerned Act proposes to accept some refugees under the Indian citizenry and refuses others, discriminating on the basis of religious faiths. Implementation of such Acts will further complicate the refugee equations in the region for which neither India nor its neighbours, with limited resources of their developing economies seem prepared.
The Indian government defends the Act as a step to provide shelter to the debated and contested ‘persecution’ of the minorities in Pakistan, Afghanistan and Bangladesh. However, the Act persists to remain taciturn on uncertainty of those people anticipated to lose their citizenship within the Indian territory. Non-citizens are to be shifted to detention camps; a few already functional in Assam. Consequently, most of the detainees are to become stateless and lose their fundamental rights due to invalid documents. The issue does not implicate cases of violent persecutions hitherto but apprehends possibilities following the contrived displacement of a community. This political decision of India carries the possibility of multiplying national and international litigations. The experiences of people in Assam is an indicative example of the post-NRC footprint, highlighting the problems of documentation and technicalities, veering erstwhile citizens to illegal migrants and refugees and hence to a ‘dangerous class’ for the region. These are the people who were integrated into the polity and society but with the proposed changes their national integration is threatened, intensifying the problem of using them as human resources for the nation.
Moreover, because of the familial ties spread across borders, the task of classifying legal and illegal complicates the matter. Now the question arises as to how essential domestically defined legal safety-net becomes for the refugees who are products of humanitarian intervention of India in dealing with the contested issue of persecution in its neighbourhood. In absence of a defined legality, the administrative obligation of assigning political validity to a person becomes a function of approval of the concerned authorities. The ‘refugees’, who are the outcome of changes in the governmental policies are unexpected to cross international borders. Therefore, a national and political issue becomes international when the discontented people struggle in search of a proper channel to be heard at national or international forums. Ironically, the respective states manage to continue to engage with international laws and treaties ignoring their domestic issues.
Conclusion
These humanitarian emergencies are difficult to stabilise in times when political exigencies create and release refugee pressures. Absence of domestic laws adversely impacts a proper trial of policy-created-refugees because of the vague positions the states are expected to take, benefitting from their dubious stances. In order to avoid being used as a political tool of discrimination, the legal paucity associated with the sub-continental refugee scholarship is requisite. Legal status is a perspective which does not develop in isolation. It bestows a personality to the refugees which they carry when they cross international borders or live stateless in the place of their birth. Hence institutionalisation of the national legality on the refugees becomes essential to address the complexities specific to the region.
