Right to Asylum and Citizenship : A Study of asylum cases during the India

 Right to Asylum and Citizenship : A Study of asylum cases during the India 

A contemporary democracy's health and stability are determined not only by the fairness of its basic framework, but also by the traits and attitudes of its citizens. Democracy as a way of life is based on active consent and participation, but it is worth noting that citizenship is allocated based on passive criteria of belonging, such as birth on a piece of land, known as jus soli, and ethnic belonging to a group of people, known as jus sanguinis (Benhabib 1999).

The advent of new kinds of identity and difference politics characterises the modern global scene. As globalisation and fragmentation have progressed, so has the clash between human rights and sovereignty claims. On the one hand, there is a rising global awareness of universal human rights concepts; on the other hand, particularistic identities of nationality, ethnicity, religion, race, and language, as well as a claim to sovereignty, are asserted. The authority of a collectivity to identify itself by claiming control over a defined region generates a dichotomy between "us" and "them," that is, those who belong to the sovereign people and those who do not.Cross-border population movements are regarded as a serious issue in South Asia, with implications for internal security, political stability, and international relations, as well as the structure and composition of the labour market; this has captured the attention of regional leaders and has frequently served as the basis for bilateral negotiations. The focus of various regional state policies is to close borders and clearly define who is a citizen in a certain territory.

CITIZENS AND CITIZENSHIP

A citizen is defined as a member of a national or political community who has the same rights

and responsibilities as all other citizens. Citizenship has been considered as a byproduct of the contemporary state, in which citizens are expected to be committed to the cause of the state and prepared to make any necessary sacrifices, while foreigners are suspected of being less trustworthy or even possible security problems (Hammar 1986).

Part II of the Constitution and the Citizenship Act of 1955 define citizenship and lay out the procedures for obtaining it. Citizenship is defined in Articles 5 to 9 of the Constitution at its inception. Sections 3 to 7 of the Citizenship Act, 1955, allow for the acquisition of citizenship by birth, descent, naturalisation, and absorption of territory following the start of the Constitution. However, it is uncertain what would happen to a stateless person who is recognised as a refugee by the United Nations High Commissioner for Refugees (UNHCR) and will be able to get citizenship for her child (Chaudhury and Samaddar 2015).

Citizenship in the modern era of globalisation is not confined to a single state but is virtually global in scope, which has two aspects: first, emerging from normative cosmopolitanism, it has an enduring cosmopolitan consciousness that is superior to nationalism; and second, the globality of citizenship consists in the belief that globalisation has created the material conditions for cosmopolitan existence (Roy 2010). Universal human rights extend beyond the rights of citizens to all people regarded as moral beings. As a result, throughout the period of liberal democracies, citizenship has been characterised as a split notion that stands for both universalist and exclusive principles (Bosniak 2006).

WHO IS A REFUGEE IN INDIA?

Refugees are defined by international law as those who have been forced to from their home country and are unable or unwilling to return due to persecution on account of their race, religion, ethnicity, or political opinions (Bhattacharjee 2008). Refugees are viewed as endangering the security of a host country by raising demands on its few resources, or as endangering the security of areas simply by their existence. They vary from other migrants or immigrants in that they are forced to depart their home nation, as opposed to the latter, who leave their home country freely or unlawfully for a variety of reasons. Refugee flows have gained prominence as possible causes for international action.

India has not properly defined the category of refugees. Their status is mostly defined by the level of protection provided by the Government of India, which is frequently affected by political equations rather than humanitarian or legal requirements. The greatest single bilateral flow in South Asia occurred in 1947, when the Indian subcontinent was partitioned, and in 1971, when Bangladesh gained independence. Nearly seven million Bengali Hindus had crossed the border into West Bengal, Tripura, and Assam to seek sanctuary in refugee camps established and maintained by the Indian government (Weiner 1993).

Unlike previous population migrations, current international migratory patterns inside South Asia are mostly unwanted, unmanageable, and a source of conflict among regional governments and, in some cases, within the recipient country. On the one hand, the Indian state has provided enough protection to certain refugee populations, such as Sri Lankan Tamils, Chakma, and Tibetan refugees. On the other side, refugee populations such as Bangladeshi Muslims, Afghans, Burmese, and many more who embrace Islam have faced prejudice from the same state. They have not received any form of official protection.

In Mizoram, refugees have integrated into local populations and are neither recognised or acknowledged by the UNHCR or the Indian state. As a result, they are exposed to ongoing harassment and abuse from their employers and the police. This begs the question of how the Indian state, which proudly professes itself to be secular, can have two types of therapies or policies in place to deal with refugee groups.

NEED FOR THE REFUGEE LAW

India is one of the world's most notable refugee-receiving countries. The Indian state has handled a few refugee populations fairly, but it has not enacted a well-defined refugee statute. Because there are no clearly defined legislative norms, refugees and asylum seekers are exposed to inconsistent and arbitrary government practises. The Foreigners Act of 1946 exemplifies the haphazard character of Indian refugee legislation and practise. The Indian state lacks a national refugee legislation that may establish refugees' rights and control their treatment.

As a result of this deficiency, various refugee populations have received differing levels of protection. This was reflected in the Citizenship (Amendment) Bill of 2016. Normatively, India appears to be devoted to refugee protection, but in practise, various populations are treated differently. India has not ratified either the 1951 Convention Relating to the Status of Refugees or the 1967 Protocol to that Convention. Many have suggested that India's rejection to ratify the treaty was due to its overly Eurocentric nature.

Nonetheless, India has recognised refugees' right to non-refoulement and has retained its fundamental commitment to humanitarian protection of refugees. In fact, India has signed a slew of human rights treaties and is a signatory to the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights 1966, and others, all of which require India to guarantee refugees the right to determine their own status, which it has done.

THE FUTURE OF ASYLUM IN INDIA: FOUR PRINCIPLES TO APPRAISE RECENT LEGISLATIVE PROPOSALS

India has a long history of providing asylum to refugees. India has one of the greatest numbers of forced migrants receiving protection in the world. India has declined to ratify the 1951 Refugee Convention and has shown little interest in joining the emerging international refugee regime for a range of ideological and practical reasons. In the absence of a formal asylum framework, the Foreigners Act, 1946, a strict deportation-oriented statute, regulates refugees unless they are granted special authorization to remain in India. Some courts have granted asylum applicants a sliver of due process in a few unconvincing circumstances. Any claim that the courts have acknowledged the concept of non-refoulement is untrue.

Shashi Tharoor, MP, proposed the Refugee Bill, 2015 in the Lok Sabha in late 2015, with the goal of putting India "at the forefront of asylum administration in the world." While the measure is mostly positive, it does have numerous flaws. Future asylum legislation should be founded on four principles, against which Tharoor's proposals should be judged. The principles are as follows: I asylum is multifaceted, necessitating different types of protection; (ii) mixed migratory flows necessitate flexible processing mechanisms; (iii) mass influxes necessitate more attention than individualised procedures; and (iv) the goals of legislation are asylum management and refugee governance.

Asylum is a notion that precedes refugee status, yet the two are sometimes confused. India has the sovereign authority to provide sanctuary to someone who does not meet the criteria for refugee status. Individuals persecuted, groups compelled to leave, and those fleeing natural events should all be protected. 'Disguised extraditions' must be prohibited. Mixed migration has only lately gained attention as a result of events in Europe, despite being a long-standing reality in South Asia. The law should distinguish between different types of refugees and migrants, assign them a proper measure of protection if available, foresee secondary migrations, and protect the most vulnerable.

The failure to protect big influxes has harmed the international refugee regime's legitimacy. The example of India suggests that the concept of non-refoulement be promoted, that varied protection processes be used, that refugee populations be managed sensibly, and that secondary migrations be addressed. Refugee problems should be managed proactively. Processing centres should be strategically placed. How refugee communities are hosted should be determined by evidence-based impacts on home communities. Demilitarization of refugee camps is required. The right to be free of statelessness must be realised. Long-term solutions should be sought strategically. Models of participatory citizenship should be created.

SPECIFIC SUGGESTIONS TO IMPROVE THAROOR’S BILL

The third clause of Tharoor's draught is a broad objects provision with dubious usefulness. 318 It is based on PILSARC's ten-year-old bill, however it overlooks the lessons learnt from Section 83 of the Patents Act of 1970. 319 To be effective, objectives clauses should be precisely worded to indicate an overarching policy purpose to the judicial branch, leaving broad explanations of a statute's general aims to the preamble. It can be fixed by reducing the objects phrase to focus on the concept of non-refoulement.

• Provisions for Mixed Flows and Mass Influxes in Common

Tharoor's drought lacks the specialised institutions and processes needed to cope with mixed flows and huge influxes, which are similar in many ways. According to the discussion in Part III, Subparts C and D of this paper, the bill requires new provisions to: I mandate the swift identification of vulnerable persons; (ii) identify and distinguish asylum seekers from economic migrants; (iii) mandate screening of mixed flows and migrant groups; (iv) establish procedures for prima facie group-based protection; (v) establish fast-tracked procedures for short-term individualised protection; and (vi) enact a specific detention policy.

• Institutional Strengthening

Learning from the institutions' failings, Tharoor's bill should go farther to guarantee the autonomy and effectiveness of the organisations it proposes to establish, especially the National Commission on Asylum and the National Appellate Board for Asylum. The bill should: I make the President the appointing authority for the Commission's Chief Commissioner and the Appellate Board's Chairperson; (ii) require a three-year cooling-off period between a judge resigning and being appointed as Chief Commissioner or Chairperson; and (iii) prohibit members of political parties and their proxies from holding office in any capacity in either the Commission or Appellate Board.

In Conclusion:

It is possible to infer that Indian law and state practise provide skewed and insufficient protection to refugees. In reality, programmes such as the CAA and NRC, which obviously discriminate against a certain population, have caused a slew of issues among its own inhabitants. The absence of refugee legislation and clarity about refugees has generated various challenges in accessing institutions for the sake of the refugee community's protection in India. The Indian state's controversial treatment of particular immigrant populations has led in a fear of persecution and helplessness among them, casting doubt on the former's secular nature. The lack of a national legislation on refugee protection, rights, and entitlements has resulted in the denial of fundamental protection and further forced them into a vulnerable position. This has also rendered the refugees dependent on the state, and they have little redress against the state's persistent breaches. The Indian legislation is insufficient to address the issue of statelessness.For stateless persons like the Rohingyas, the Indian state provides neither safety or paths to legal ­residence in the nation, resulting in prolonged incarceration and arrests.

TOPIC- Right to Asylum and Citizenship : A Study of asylum cases during the India

NAME - Chetna Dubey 

INSTITUTION- Delhi Metropolitan Education, GGSIPU

DATE - 3rd July 2022