Interview: India needs a transparent legal framework to protect the human rights of refugees

Nandita Haksar, a human rights lawyer, activist and writer, has been taking up cases on behalf of refugees for more than 30 years. But Haksar’s earliest memories of a refugee crisis were during the Bangladesh liberation movement in the early 1970s, when she was involved in relief work, along with other students, in Delhi. It was amazing to see the solidarity the people of India had for the Bangladesh liberation movement, she recalled.

But it was not until 1989-’90 when Haksar herself took up cases for refugees. At the time she was in Manipur, representing the Naga people who had been victims of human rights violations during a counter-insurgency operation called Bluebird. A Naga student leader, Shelley Chara, requested her to help Burmese (now Myanmar) refugees who had fled a military crackdown and were in Imphal jail for illegally entering India.

When Haksar filed her first case, she found that there was no law to protect refugees. Three decades since, “that position has not changed”, she said. Over the years the Union government has hardened its attitude towards the refugees, especially Muslim refugees. “And this is being reflected in the lack of response by the courts which in the past were far more sympathetic,” Haksar said.

The United Nations High Commissioner for Refugees in India has registered nearly 48,000 refugees and asylum seekers from Myanmar, Afghanistan and other countries, as of March 31. India has more than 58,000 Sri Lankan refugees and more than 72,000 Tibetan refugees.

The global data have shown a “terrible trend”, according to a June 2022 UNHCR report. More than 8.9 crore people – nearly the population of Germany – were forced to flee due to persecution, conflict, violence, human rights violations and events seriously disturbing public order by the end of 2021. This was more than double the 4.27 crore people who were forcibly displaced at the end of 2012, and it had increased by 8% in the previous year, the report said.

Over the years, as a lawyer who has represented refugees, Haksar has learnt two important lessons, she says. The first is how important it is to keep hope alive under the direst of circumstances, and the second, is how the refugees “preserve their humanity even though they are faced with indifference, bureaucracy, and cruelty”.

Haksar, the writer of more than 15 books, published Forgotten Refugees: Two Iraqi Brothers in India, in 2022, which tells the story of two Iraqi refugees who had fled their war-torn country.

In an email interview, to mark World Refugee Day on June 20, Haksar talked about the lack of legislation on refugee protection in India and its fallout, harassment faced by refugees despite being recognised by UNHCR and government indifference to their plight.

Excerpts from the interview:

Your book Forgotten Refugees talks about the two Iraqi refugee brothers in India who fled their country. Refugees continue to face many challenges including finding jobs, getting documentation, and harassment from authorities. What does their experience say about India’s approach to refugee support?
I once wrote an article saying that if we look at India from the eyes of refugees, we will see India seems like a large prison. The refugees from African countries face racism on a daily basis. The refugees from Sudan and Somalia face both racism and Islamophobia.

What struck me about the two Iraqi brothers was how they had preserved their capacity to love, trust and enjoy life, despite facing prejudice, hate and growing Islamophobia.

It breaks my heart when they say it would have been good to stay in India but India does not want them. They have no means to integrate and be part of us, the Indian family.

You have been taking up cases on refugee rights since 1990. What changes have you seen over the decades?
The first case I filed on behalf of a refugee was on behalf of a young Chin woman who had fled from her country after the military crackdown in Burma (as it was then). I discovered that there was no law to protect refugees and the UNHCR did not function under its own name but under United Nations Development Programme. That position has not changed.

However, now the UNHCR has become increasingly bureaucratic. They no longer offer even the basics; most refugees in the past got a stipend, medical support and most importantly had access to the UNHCR office. Now, most refugees do not get any financial assistance. Many have to wait years before their applications are processed and the angry demonstrations outside the UNHCR are many times put down by the police the UNHCR calls in.

The Indian government too has changed its position and has hardened its attitude towards the refugees, especially the Muslim refugees. And this is being reflected in the lack of response by the courts which in the past were far more sympathetic.

The only protection the refugees have is the right to life under Article 21 and protection against arbitrary abuse of power under Article 14 of the Indian Constitution. I had argued that the right against deportation (the right to non-refoulement, under refugee law) is a part of Articles 14 and 21 of the Indian Constitution.

In the Nandita Haksar v State of Manipur case, the Manipur High Court held that the principle of non-refoulement was part of Article 21. The court allowed seven Myanmarese asylum seekers to visit the UNHCR office in Delhi to register themselves as refugees. What has been the impact of the 2021 judgement?
That case was to do with seven Myanmar citizens who had taken refuge in India – two men, two women and three children. Two men and one woman were all employees of Mizzima media house. Mizzima was started by Burmese refugees in 1998 while they were living in exile and in 2012, they went back to Yangon when democracy was restored. Then came the second military coup in February 2021 and the Mizzima staff and their families took shelter in India.

I had known the Mizzima founder when he was in India and I also knew they had signed a content-sharing agreement with Prasar Bharati [India’s public broadcaster]. I felt I had to show solidarity with them and so I went from Goa to Imphal and filed the case on behalf of the seven. It was a simple case in which I asked the court to allow me to take the seven to Delhi to seek the protection of the UNHCR.

The Government of India tried to argue that these seven were illegal migrants, but this was a clear case of refugees seeking asylum because of persecution in their country. Mizzima had been banned by the military junta and anyone working for Mizzima was liable to be arrested and detained. Many had already been detained and tortured.

The Manipur High Court not only allowed the seven to travel to Delhi but also gave a detailed and reasoned judgement. Thus it became a precedent which could be used by other refugees and I believe it helped to save many from deportation.

More than 47,000 refugees and asylum seekers are reported to be registered with the UNHCR in India. While the UNHCR has been working in India since 1981, there have been multiple reports of refugees and asylum seekers not receiving adequate support and protection. The UNHCR has a 80% funding deficit. What role does the agency play in India?
In the past, once the person was recognised as a refugee, he or she could get a residential permit which later was called a Long Term Visa. Now the Government of India does not give residential permits to even those refugees recognised by the UNHCR.

So the refugee finds that the UNHCR refugee card offers little protection in their day-to-day lives. It only helps a miniscule number of refugees who get resettlement to a third country, normally Europe, America or Australia.

UNHCR has over the years become corrupt and indifferent to the plight of refugees. This is a reflection of the attitude of the Western countries who do not want to take responsibility for the refugees. [On April 6, 2019, UNHCR issued a press release denying the allegations in the NBC News investigation. In November 2019, NBC News reported that the UN had reopened an investigation on the allegations of corruption.]

The UNHCR in India has outsourced most of its functions to local NGOs. There is no mechanism by which either UNHCR or those NGOs can be held accountable to the refugee population.

Despite having UNHCR cards, there are cases where refugees and asylum seekers are being deported. Legally, how does a UNHCR card protect refugees and why does the government deport registered refugees? Even though India is not a signatory to the 1951 UN convention on refugees and its 1967 protocol, where do such deportations stand in view of the UN Declaration of Human Rights?
Yes, an increasing number of refugees who are recognised by the UNHCR are being detained and deported. The police have told refugees that the UNHCR card means nothing.

This is not an entirely new phenomenon. In the past too, several refugees recognised by the UNHCR were picked up and deported. But now there is an intensified drive against a certain category of refugees, mostly Rohingyas. But not only Rohingyas. A few years ago, UNHCR stopped giving UNHCR cards to the Chins and recently a Chin holding a UNHCR refugee card was deported. I do not know why.

Parliamentarian Shashi Tharoor introduced a Private Member’s Bill on asylum this year. Foreigners either get a visa or have to enter India illegally because of a lack of legislation. Due to this, they are subjected to various laws, some of which are colonial-era legislations. Why are successive governments reluctant to pass an asylum law? What has been the fallout?
Yes. The bill has been well drafted by competent lawyers with long experience in refugee law. But I would like to point out that while it is true that the condition of refugees has deteriorated under the BJP government, the Congress-led governments did little for refugees. It is not enough to introduce a bill but it is necessary to campaign and make it a national issue.

The National Human Rights Commission too has started the process of drafting a refugee protection law. At least they have had one meeting to discuss the issue.

Refugees are pawns in international power politics. They are victims of horrendous conflicts and wars and the bulk of the refugees are in the poorest countries in the South. They have to bear the burden of wars and conflicts which are instigated by the West. We have refugees from all conflict areas including Darfur, Fallujah, Democratic Republic of Congo.

These refugees come to India because they believed we were a tolerant country and we would welcome them. India should play a role internationally to make refugee protection more equitable and at home, we must have a law which protects Indian national security but at the same time shows compassion to individual refugees.

As a civil rights lawyer, how do you view the Citizenship (Amendment) Act and the National Register of Citizens in terms of refugee rights and asylum seekers, particularly for Muslim refugees who have been excluded in the Act, considering there is no legislative support for refugees?
Unfortunately, the Government of India is trying to treat refugees as migrants, rather illegal migrants, and deal with them under the Citizens Amendment Act rather than under the Foreigners Act. This is an international trend. In 2008, refugees were called “migrants” and there was even a petition urging the media to call the people walking from war-torn countries “refugees”. The Western media refused, but Al Jazeera does call asylum seekers refugees.

I see the issue of refugee protection as an issue which needs to be looked at both at the international and national level. What I find disturbing is that so few people in our country have any compassion for refugees. Even within the Indian human rights movement, there has been little space for international solidarity.

There have been reports of children who have been separated from their families because they have illegally entered the country. They languish in children’s homes for years. What legal recourse is available, particularly when they have been detained for “illegally entering”?
The legal recourse is there in the form of writ petitions. But international UN agencies are also there, such as UNICEF, who have a role to play and they do not.

At the risk of sounding foolish, I will say that refugee rights protection, like much of human rights, requires a deep feeling for our fellow human beings and assertion of our shared humanity. I believe identity politics has destroyed this fundamental basis for compassion, love and humanism.

What are the issues about refugees you think are the most ignored today, but need urgent attention?
The world order has changed from the time the Refugee Convention was passed by the UN. That was in the midst of the Cold War and today, the refugee problem is far more complicated and the humanitarian crisis is unprecedented.

The laws for the determination of refugee status and asylum are being systematically undermined. The most glaring example is the attempt by the UK to send asylum seekers by chartered planes to Rwanda. Israel has a similar programme and arrangement with Uganda.

Western governments’ policies are racist and discriminatory. The burden of hosting the refugee population is on some of the poorest countries such as Chad, Uganda and Ethiopia. Besides, many of the refugees have been displaced as a direct result of Western interventions.

In India, we need to have a transparent legal framework for the protection of the human rights of refugees which ensures both concerns of national security and international solidarity.

This article first appeared on IndiaSpend, a data-driven and public-interest journalism non-profit.