Abstract
The paper argues for conflating refugees and internally displaced persons (IDPs) as two sides of a work-in-progress postcolonial state. To be sure, aliens, refugees, IDPs, and stateless persons are separate legal entities. Nevertheless, this fragmented normative regime stands testimony to more laws and less justice. Many Asian states have no domestic refugee law. India, a common law system, takes a case by case approach as refugees are given “temporary shelter on humanitarian considerations”. Ironically, a work-in-progress postcolonial state sustains even de jure citizens as de facto stateless persons; the erstwhile Indo-Bangla enclaves for more than half a century were an apt example. Surely, the raison d’être of international law on refugees is to end human suffering, if needed, by transcending the absence of positive laws. A constitutional and political desire to minimise human suffering alone could cut the rigour of such positivist legal narratives. The Delhi High Court seemingly walked that path in Koul v Estate Officer noting “refugees and IDPs appear to be similarly situated”. Rising terrorism has made states increasingly believe in a security narrative all the same. A simultaneous emergence of a demographic anxiety particularly in India’s North-eastern states increasingly pits aliens and refugees against the domiciled indigenous and tribal people.
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Notes
Chimni (1998: 350).
UNGA (1949: 32)
UN Refugee Convention (1951: Art. 1).
Allain (2001: 538).
McAdam (2017: 1).
Protocol (1967), Wall (2017: 201).
PIB (2014).
The Indian “Parliament has not enacted any law pertaining to refugees from other countries. Refugee status can be granted and has been granted in India through executive orders passed by the Central Government.” Assam Mahasangha (2014: para 12).
Article 51. “Promotion of international peace and security:
The State shall endeavor to-
(a) promote international peace and security;
(b) maintain just and honorable relations between nations;
(c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and encourage settlement of international disputes by arbitration.” Indian Constitution (1950: Art. 51).
In the Jethmalani case the Indian Supreme Court bolstered the case for a copious use of international conventions to which India is not a party: “India is not a party to the Vienna Convention [on the law of treaties], it contains many principles of customary international law”. Effectively, the VCLT for the Indian Court offers “an appropriate” guidance for “interpreting a treaty in the Indian context” too. Jethmalani (2011: para. 54). “The Indian Supreme Court in the Kesavananda Bharati case maintained that in view of the Article 51 of the Constitution, “the Court must interpret language of the Constitution, if not intractable, in the light of United Nations Charter and the solemn declaration subscribed to it by India.” Kesavananda Bharati (1973: para 164).
Indian Constitution (1950: Art. 372). “The Indian Constitution, inaugurally, extends the notion of rights beyond the state to civil society.” Baxi (2000: 545).
“The Chinese were rioting in their quarter of Yaowarat [Chinatown], encouraged to do so by the French priests.” Keefe-Fox (2016: 151, 192).
For instance, “Koreans born in Japan after 1952 had to report to their local ward office on their fourteenth birthday to request permission to stay in Japan.” Jin Lee (2017: 432). Similarly, after the Russian revolution of 1917, a Constituent Assembly would decide “the rights of the non-Russian peoples of the empire of the Romanovs”. Lenin (1992: xiii)
The Law Commission of India’s 107th Report discusses the law of citizenship in India. Citizenship Report (1984: 1–13). As Ashesh and Thiruvengadam note “rights to citizenship in India is not a ‘Fundamental Right’, even as they remain constitutionally bestowed and recognized.” Ashesh and Thiruvengadam (2017: 1).
“[P]rovid[ing] proper and adequate facilities in refugee camps to prevent communal violence” becomes the duty of concerned provincial authorities. Cheenath v Orissa (2016: para 1). The Gujarat High Court uses the terms refugee for Indian Muslims displaced during the Godhra riots; “refugees camps were giving shelter to Muslims.” Gujarat v Hanif Antadi (2017: para 2).
Singh (2015: 350–51).
Goodwin-Gill (2016: 679).
Gil-Bazo (2015: 3).
“Among general principals of law (in both comparative domestic law and international law) [emerges a] substratum of the legal order itself, revealing the right to the Law (droit au Droit), of which are titulaires all human beings, irrespective of their statute of citizenship”. Cançado Trindade (2017: part III, para. 18).
Ibid. “The rules thus recognized as forming laws are human ideas.” Ehrlich (1921: 630).
Ibid. at x.
Ibid.
Ibid at xi.
Ibid.
“In any field, the use of the inductive method presupposes the existence of a fair amount of case material from which plausible generalizations may be attempted.” Schwarzenberger (1947: 562, 541). “The possibility of distinguishing the facts of a case and so not always applying a rule of precedent, the ability to create exceptions to the rule, is clearly a powerful resource in the development of the common law.” Goodrich (1985: 151).
Lenoble (1986: 158).
Ibid.
Ibid.
There are more than 22.5 million refugees around the world while the IDPs number at 40.3 million the world over. See, Médecins Sans Frontières (2017). “The narrative of both the production of politics and the politics of production, however, remain inadequate without a gasp of the historical and lived experiences of human suffering caused by human violation, which do not quite live in public memory.” Baxi (2008: 99).
Citizenship Report (1984: 12). It is not entirely without significance that the Indian Constitution enpowers the Indian Supreme Court to deliver “complete justice”. Indian Constitution (1950: Art. 142). In Assam Mahasangha, the Supreme Court ordered the updating of the National Register for Citizens within its powers vide Art. 142 of the Indian Constitution. Assam Mahasangha case (2014, para 48.2)
Sen (2009: xii). Hegde notes “[f]or Indian courts, in the present context, the correct sourcing and identification of international legal norms and their application remain a huge challenge.” Hegde (2010: 53). Nevertheless, in Asia, fully-colonized South Asia inherited Britian’s common law legal system, whereas former semicolonies such as Japan, China and Thailand imported civil law system from Germany, France and Belgium. Becker Lorca (2010: 484). Arguably, that difference, a subject of study in comparative law, determines their current approach. As such, the invitation for an inductive method is limited to common law states alone due to comparatively more empowered judiciary suitable for a jurisprudential leap advocated. The “civil law and the common law traditions render legible the texts structuring the apparatuses of governance.” Baxi (2000: 541). For laymen as well as for doctrinally stubborn lawyers, the common law approach might also be called a “this court, that case approach” as against a legal historian’s method. Such a “this court, that case approach” sticks to ratio decidendi alone while a legal historian, working beyond the confines of a court environment, might find obiter dicta equally if not more justice-enhancing, at least in certain cases. The Statute of the League of Nations, 1920, and later that of ICJ, 1945, planted the seeds of comparative law within its sources doctrine. The “general principles of law recognized by civilized nations” as source of law is functionally comparative. ICJ Statute (1945: Art. 38(1)c).
“Whereas the states of Sri Lanka and Bangladesh adopted a unitary model as opposed to a federal system with a bifurcation of power distribution, India adopted a federal system.” Chowdhory (2013: 2).
“Rakhine nationalists campaigned for autonomous statehood within Burma, while a Muslim-led faction of the same separatist movement pressed to establish an Islamic “frontier state” in the northern part of the province.” Ragland (1994: 305). On 13 April 2018, the Government of Myanmar rejected the ICC’s jurisdiction on Rohingya crisis with reference to the UN Charter, the VCLT and the ICC Statute. Notably, Myanmar now calls the Rohingyas refugees in Bangladesh IDPs without reference to the Rohingyas in India. Govt of Myanmar (2018: paras 3, 4, 5).
Amrith (2013: 216).
Ibid. 228.
Alimia (2017: para 1). A stable Afghanistan, Samina Ahmed says, “would ease the refugee burden and undermine potential support for terrorists in neighbouring Pakistan.” Ahmed (2006: 92). Likewise, in 2017, in an interview Bangladesh’s Prime Minister denied that Rohingyas are fleeing to Bangladesh; in any event it was for Myanmar’s and the UN to solve it. Aljazeera (2012).
Betts and Higgins (2017: 276).
Falcone and Wangchuk (2008: 164–199), Foster and Lambert (2016: 564). Hill Tamils who fled Sri Lanka in the 1990 s without applying for citizenship under the Sirimavo-Shastri Pact and who to date chose not to accept Sri Lankan nationality will remain de facto stateless or are at risk of becoming stateless, as they do not have the possibility of acquiring Indian citizenship. UNHCR (2017b: 2). See, Sanderson (2015: 58).
On 9 April 2018, the Posecutor of the International Criminal Court, given the “exceptional circumstances and the nature of this legal issue”, sought “a ruling on a question of jurisdiction: whether the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.” ICC (2018: paras 1, 3).
Statelessness Convention (1955: 175).
Chimni (1994: 378).
The total number of Rohingya refugees and IDPs in the Asia–Pacific region is estimated at 420,000 and 120,000, respectively. UNHCR (2017a: 2–3). “Myanmar security forces, acting in concert with other individuals and without grounds permitted under international law, have deported ethnic Rohingya, who were lawfully present in Myanmar, to Bangladesh. Although such crimes have been reported since at least 2012, they escalated on 25 August 2017 to a significant new level and continued at this scale for several months” ICC (2018: paras 8, 9).
PTI (2017a: para 1).
Singh (2017: para 7). Balancing territory, people and the Constitution, Gajendragadkar J. wrote “though from the human point of view great hardship is inevitably involved in cession of territory ... there can be no doubt that a sovereign state can exercise its right to cede a part of its territory to a foreign state. This power, it may be added, is of course subject to the limitations which the Constitution of the state may either expressly or by necessary implication impose in that behalf.” Berubari Opinion (1959: paras. 55–56).
Chimni (2003: 449).
NLSA v UOI (2014: para 49).
Chimni (1994: 401).
Mahasangha case (2014: para 16).
Monteiro v. Goa (1969: para 8). Besides, the Indian Government has declared “protected” under the Foreigners (Protected Areas) Order, 1958, all areas falling between the “inner line” and the International Border of the Indian provinces of Arunachal Pradesh, Sikkim, parts of Himachal Pradesh, Jammu and Kashmir, Manipur, Mizoram, Nagaland, Rajasthan and Uttarakhand. Foreigners, except the Bhutanese citizens, need special permit to enter and stay in the protected area.
Ibid.
Ibid.
Ibid.
Assam Sanmilita Mahasangha (2014: para 8).
Ibid. para 9.
Ibid. para 10.
Sonowal v UOI (2005: 2920).
Mahasangha (2014: para 30), Guha (2007: 261–278).
Purkayastha v UOI (2017: para 7).
Phukan (2017: para 5).
Gopal Jayal (2013: 14).
PIB (2011, para 1).
In the Namgyal Dolkar case the Delhi High Court for the first-time confirmed citizenship of a Tibetan refugee. Gopal Jayal (2013: 89). Notably, the Ministry of Human Resource Development reserves 1 seat for Tibetan refugees in certain medical colleges. Garg v Delhi University (2012: para 21). On 20 December 2017, a division bench of the Rajasthan High Court directed the state government to remove deficiencies in the applications for LTVs of Pakistani refugees, who are eligible for Indian citizenship. See, HT Correspondent (2017b: para 1). Children born to a Tibetan Refugee in India were not to be treated as Indian citizen by birth and all such persons would have to make a separate application under Section 9(2) of the Citizenship Act, 1955. Gyaltsen Neyratsang v. UOI (2017: para. 4). However, the High Court of Delhi declared the Tibetan Refugees born in India between 26 January 1950 and 01 July 1987 as Indian citizens by birth under Section 3(1)(a) of the Citizenship Act, 1955. Wangyal v. UOI (2016: para 3681). The Court also quashed the the Ministry of Home Affairs’ executive instructions restraining Tibetan Refugees applicants to declare themselves as the Indian citizens by birth under the relevant section(s) of the said Act. Passang v. UOI (2017: para 10).
“Gaon [village] Panchayat Secretary issues such a certificate, it would at best be a private document” and not a “public document”. Manorma Bewa v UOI (2017: para 73). Notably, Part IX of the Constitution of India talks about “Panchayats”. Indian Constitution (1950: Arts. 243-243-O).
“[T]he view taken by the High Court and the contentions advanced on behalf of the State that the said document is a ‘private document’ [is] legally fragile.” Begum v UOI (2017: para 17). Historically, Upendra Baxi filed a number of writ petitions in the Supreme Court of India between 1981 and 1997 effectively inagurating the tradition to seeking the Court’s intervention in matters related to women and children. The Supreme Court “request[ed] the NHRC to be involved in the supervision of the working of the Agra Protective Home to ensure that it functions in the manner as is expected for achieving the object for which it has been set up.” Baxi case (1997: para 4).
Ashesh and Thiruvengadam (2017: 8).
Guha (2007: 95).
Kapur (2013: 320).
“Increasingly, the jurisdiction of our 24 High Courts has been subject to relentless attack from Parliament, and, unfortunately, even the Supreme Court.” Vivek Reddy (2017: paras 2–3).
Karlekar Order (1992: para 2).
Ibid.
The Court noted Goodwin-Gill (1983) to say “[a]t present, it is clear that the norm prohibiting refoulement is part of the customary international law, thus, binding on all States, whether or not they are party to the 1951 Convention”. Ktaer case (1998: para 18).
Lian Kham v UOI (2015: 30).
Scroll Staff (2018: para 1). The statement of the Myanmar Government on 13 April 2018 weighs in India's favour. While responding to the ICC Myanmar has recognized Rohingyas only in Bangladesh as IDPs. India could now make a legal claim for the repatriation of the Rohingyas to Rakhine state as “Myanmar is ready for repatriation”. Govt of Myanmar (2018: para 5).
Quoted in Mitra (2017: para 4).
“Well-founded fear in relation to non-refoulement calls for a subjective or objective test to determine the precise case.” Chimni (2000: 3).
Chimni (1994: 380).
Sherpa v UOI (2017: para 7.7) In New Delhi, “Kamla Market had been conceived in the year 1951 as a commercial market to rehabilitate and provide means of sustenance to the displaced persons/migrants/refugees.” Kamla Market v NDMC (2017: para 2). Likewise, the Government of Tamil Nadu had in 1982 sanctioned a scheme known as Sri Lankan Repatriates Housing Loan Scheme for Ceylon refugees. The Sri Lankan Refugees could benefit from housing loan scheme should the Ceylon repatriates held valid passports from Sri Lanka. Shanmugam v Tamil Nadu (2014: para. 3).
UNHCR (2016: para 3).
Published at the turn of the 20th century, in his seminal article Chimni had drawn attention to “the knowledge production and dissemination functions of UNHCR”. Chimni (1998: 350), Sen (2001: 396).
Assam Mahasangha (2014: para 9).
The Delhi High Court entertained a petition about land taking by the Indian Government for “the occupation of the refugees” from Indo-Pak partition. Prakash v UOI (2017: para 3). The Bombay High Court rejected a petition to evict from land awarded by the state in “favour of refugees with a view to their re-settlement”. Darvesh v. Kalsi (2015: para 24).
Assam Mahasangha (2014: para 37). In December 2017, in Assam, the sharp division in the ruling alliance, BJP and Asom Gana Parishad (AGP) over the citizenship amendment bill reached a tipping point with AGP said “that under no circumstance it will accept Bangladeshi citizens coming to Assam after March 24, 1971.” ET Bureau (2017: para 1).
Ibid.
PTI (2017b: para 1). As Gopal Jayal poignantly notes, “the Rajasthan migrants [from Pakistan, also stateless] are largely poor and mostly Dalit or Adivasi … Class thus mediates not just relations between states, citizens, and social groups, but also relations between aspiring citizens and the state. … it only reaffirms the social marginality of groups whose predicament finds expression in the Citizenship Rules [2009], rather than the body of the [Indian Citizenship] Act.” Gopal Jayal (2013: 105-06). Notably, of the undertrial prisoners in India, minorities are 30.2 per cent, SCs 21.6 and STs 12.4 per cent—cumulatively 64.2 per cent of all undertrials. Of India’s population, the minorities are 20.2 per cent, SCs 16.6 per cent and STs 8.6 per cent. Prison Statistics (2015: chap 5).
Alarmingly, refugees have become the cause of federal-province tensions, inviting the opinion of the Indian judiciary. This might be the Government’s tactical signal to the Supreme Court “to rule in favour of the deportation of the Rohingyas”. While the Chakmas are expecting citizenship, the Rohingyas want refuge for now. Singh (2017: paras 2–3). Kingsbury studies indigenous issues arising in east, southeastern and south Asia. Controversy arises from the implication that distinctive rights of indigenous peoples are justified by the destruction of their previous territorial entitlements and political autonomy during colonialism. Kingsbury (1998: 416, 419).
Ashesh and Thiruvengadam (2017: 3).
Sherpa v UOI (2017: para 7.8).
Ibid.
MEA quoted in Jain (2015: 578).
Tamil Nadu v Nalini (1999: 810).
Chimni (1994: 385).
Quoted in Assam Mahasangha case (2014, para 12).
Singh (2016: 3).
Ibid.
Citizenship Bill (2016: para 2). In relation to a Hindu Bangladeshi national, before the Calcutta High Court, both, the State of West Bengal and the Union of India argued that “permission granted to a foreigner to stay in India is not only dependent on the validity of the travel document or passport issued by the country of origin but upon the permission granted by the host country i.e., India. The word ‘visa’ therefore must be understood in that perspective and not be treated to be the passport and/or travel documents of the petitioners issued by the their country from which they came.” Mintu Barua case (2017: para. 4).
“Intelligence agencies of the US, Bangladesh and Singapore gathered information about the training of Rohingya Muslim radicals in a Lashkar-e-Taiba camp in Pakistan in May 2012”. Gupta and Anand (2013: paras 3–4). See, sections 18–22 “Provisions as to Citizenship of India for Persons Covered by Assam Accord.” Citizenship Rules (2009: Part IV).
Singh (2016: 380).
Sonowal case quoted in Assam Mahasangha case (2014, para 30).
Ibid. It is therefore hardly surprisingly that a few years later Wallace and Martin-Ortega wrote refugees and IDPs in one breath, actually in a single paragraph, without even explaining the conflation made. Wallace and Martin-Ortega (2013: 214-15).
Conklin (2014: 126-34).
State Trading v. IT Commissioner (1963: para 18). “The concept of ‘nationality’ does not have legislative recognition in the CA [Indian Citizenship Act]. The Petitioner’s describing herself to be a Tibetan ‘national’ is really of no legal consequence as far as the CA is concerned, or for that matter from the point of view of the policy of the MEA [which] clear[ly] … treats Tibetans as ‘stateless’ persons.” Wangyal v MEA (2016: para 16.28).
Chimni (1994: 379).
Chakma v Arunachal Pradesh (1994: para 83), De Raedt v UOI (1991: 544).
NHRC v Arunachal Pradesh (1996: para 21).
Ibid.
“It is well known that the Chakmas and Hajongs were displaced from the area which became part of East Pakistan (now in Bangladesh) on construction of Kaptai Dam and were allowed to be rehabilitated under the decision of the Government of India…They could not be discriminated against in any manner pending formal conferment of rights of citizenship”. Chakma Committee v. Arunachal Pradesh (2015: para 18).
“That the State Government is keen to rehabilitate the Kashmiri Migrants in the Kashmir valley and shall provide every type of assistance for their return and rehabilitation. The process for the rehabilitation in valley has been initiated in June 2008 after Govt. of India announced the package for their return.” Koul v Jammu & Kashmir (2009: para 13).
Moreover, the Schedule Caste / Scheduled Tribe Atrocity Prevention Act, 2015, could apply if an illegal alien “wrongfully occupies or cultivates any land owned by, or allotted to” member of the SC/ST. Besides a “Exclusive Special Court” could adjudicate upon SC/ST members’ wrongful dispossession of the “land or premises or interfere[nce] with the enjoyment of his rights over any land, premises or water” is illegal. SC/ST Act (2015: Chap. II).
Koul v Estate Office (2010: para 34–35). Gita Mittal J. ordered “reporters of local papers may be allowed to see the Judgment” and that it “should be reported in [] Digest”. Yet, while Manupatra and indiankanoon.org have reported the case, Westlaw India has not.
Ibid. para 35.
The Supreme Court however found it to be “be more appropriate if the same is transferred to the High Court of Jammu and Kashmir at Jammu for hearing and disposal in accordance with law”. All India Kashmiri Samaj v UOI (2016: 240, para 3). The Indian Court defined a displaced person in NBA case as “Any person who has been ordinarily residing or carrying on any trade or vocation for his livelihood or has been cultivating land for at least 1 year before the date of publication of notification under Section 4 of the Land Acquisition Act in the area which is likely to be submerged permanently or temporarily due to project.” Narmada Bachao Andolan (2011: para 19).
Koul v. Estate Officer (2010: para 1). “[T]he Indian Supreme Court [is] a constituent assembly in permanent session.” Baxi (2000: 548).
Ibid para 51.
Raina v. Indian Meteorological Department case (2014, para 8).
“[P]rovisions for shelter and other basic needs to IDPs are meant as temporary measures to ensure their rehabilitation and not as an indefinite grant for all times to come, or as a penance by the Government for their failure to protect the property and securing the safety of the displaced persons. … In this context, the aforesaid judgments cannot be read as an authority for the proposition that all displaced persons who were employed in the government and were provided accommodation, acquired a vested right to continue to occupy the accommodation indefinitely as compensation by the State.” Ibid. para 12.
Ibid. para 8.
Koul v. Estate Officer (2010: para 38).
Ibid. para 38.
Ibid., para 51.
Ahmed v State (2017: para. 2).
“Lessees … in Odisha [province] have rapaciously mined iron ore and manganese ore, apparently destroyed the environment and forests and perhaps caused untold misery to the tribals in the area.” Common Cause v UOI (2017: 568), Sundar v Chattisgarh (2011: 445).
MEA (2015: para 2).
Ibid.
Ibid., para 2.
Krishnan et al. (2014: 156).
MEA (2014: para 2.34).
Gupta (2014: para 1).
West Bengal Govt. quoted in MEA (2014: 22).
MEA Standing Committee (2014, 20).
PTI (2015: para 2).
Enclave dwellers are in the process of being issued Aadhaar cards, a 12-digit unique identity number, by the relevant authority. UNHCR (2016: 2).
“The Government and any other parties are responsible for providing safe and secure access to: (a) essential food, potable water and sanitation; (b) basic shelter and housing; (c) appropriate clothing; (d) essential medical services; (e) livelihood sources; (f) fodder for livestock and access to common property resources previously depended upon; and (g) education for children and childcare facilities. States should also ensure that members of the same extended family or community are not separated as a result of evictions.” Koul case (2010: para 8.52).
Voltaire quoted in Durant (2006: 292).
Sands (2017: 2).
Sircar (2012: 570).
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Acknowledgements
This paper is for both Suk, a “happy” Thai Citizen, and So-Tha-Naymoo, a refugee from Myanmar, who, their legal status notwithstanding, share a common lived experience in Bangkok. I thank Arpita Sarkar, Anupama Sharma, Upendra Baxi, Niraja Gopal Jayal, Sonali Singh, B.S. Chimni, Abhimanyu George Jain, Sarbani Sen, Khin Myo Aye, Jessica Field, Sushant Chandra, Aljo Joseph, and Jhuma Sen for comments and conversations. I thank Shravani Joshi Sameer for her excellent research assistance. I am solely responsible for the view expressed.
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Singh, P. More Norms, Less Justice: Refugees, the Republic, and everyone in between. Liverpool Law Rev 39, 123–150 (2018). https://doi.org/10.1007/s10991-018-9210-5
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DOI: https://doi.org/10.1007/s10991-018-9210-5