India does not make a distinction between refugees and foreigners. Yet, there are variations in how it treats different categories of refugees: Tibetans, Sri Lankans and Rohingyas, for example.
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WEARING a brown baby dress, Vikasini Jasinthan was dozing off on her mother Sharanya Jasinthan’s shoulder.
“She does not sleep at night. Our accommodation is congested. So, she feels disturbed. It is only during the day, when I take her out of the room into the hallway, that she feels comfortable and catches some sleep,” Sharanya said.
Despite being born in Kerala, seven-month-old Vikasini is a Stateless child.
Her parents, Jasinthan and Sharanya, are undecided about her citizenship, as they hope to return to Trincomalee, a resort-port province in eastern Sri Lanka, soon.
Why did Vikasini’s parents leave their country?
Jasinthan and Sharanya fled to Chennai, India from Colombo, Sri Lanka, in August 2022 at a time when a severe economic crisis had stalled the island-nation badly.
In early 2022, Sri Lankans faced power cuts and shortages of basic goods such as fuel.
The annual rate of inflation rose to 50 percent. Protests broke out in the island nation. Schools remained closed, food supplies were affected and the fuel crisis worsened.
Jasinthan (a Sri Lankan refugee) stated: “We had valid tourist visas. But the police did not listen to us. We were arrested, Tamil Nadu intelligence officials came to interrogate us, and finally, we were jailed.”
Jasinthan was an autorickshaw driver. He was unable to earn a living and did not see a future in Trincomalee.
He came across a travel agent who promised him an opportunity to migrate to Canada by boat from Kerala, India in return for US $1,500 per head.
Jasinthan pledged his land, raised money for himself and his wife, paid the agent, entered India through Chennai and then moved to Kerala.
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He got unlucky and was arrested as an irregular entrant on September 6, 2022, near a beach in Kollam, Kerala.
At the time Jasinthan and Sharanya left Trincomalee, they were joined by their neighbour Dilakshan, his wife Koncela, and their five-year-old son Roaisan, who has a disability.
Another resident of Trincomalee, Jayaseelan, his wife Satyapriya and their children Thenu and Vojika also accompanied Jasinthan and his family.
Sharanya was pregnant when they left Trincomalee. The agent had promised them that: “[S]he will give birth in Canada, and he has made special arrangements in the boat for the special (disabled) child.”
Plight of Jasinthan and others like him
Jasinthan and others were jailed by the Kerala police under Sections 14A and 14C of The Foreigners Act, 1946 and Sections 511, 370 and 34 of the Indian Penal Code, 1860.
Depicting his plight, Jasinthan stated: “We had valid tourist visas. But the police did not listen to us. We were arrested, Tamil Nadu intelligence officials came to interrogate us, and finally, we were jailed.”
A legal officer from Kerala State Legal Services Authority (KELSA) found Jasinthan and others and understood they were victims not offenders.
KELSA is a statutory body that provides free legal aid to the people of Kerala, India.
The officer approached a court and got Jasinthan and others released from prison to a shelter home in southern Kerala.
“Since then, we have been in a constant legal fight to prove our innocence and are urging the Union and Kerala governments to repatriate us to Colombo. It has been almost one year.
“Persons who know us here in India have come forward as our guarantors. They have to deposit a certain amount in the court. We have requested for such deposition from private money lenders in Colombo. We have done everything from our side. Now, we wait … but for how long, we don’t know,” Jasinthan said.
A United Nations High Commission for Refugees report reveals that there were more than 0.2 million refugees in India as of July 31, 2023, of which the highest number (91,000) were Sri Lankans.
“In between, Sharanya gave birth to Vikasini. Roaisan’s health is worsening. But the repatriation is yet to be decided,” Jasinthan added.
Jasinthan said the agent had told them, “In 45 days, they will reach Canada, and in the past, many have gone the same way.”
According to Jasinthan, going back to Trincomalee is not a good option.
“Everything we had has been sold or pledged in Trincomalee. There is no way to generate income. Considering that, if I decide to stay back here in India, the Indian government will also not allow that. We are in a tragic situation. We started from home on an Odyssey and only a few steps later we got lost,” Jasinthan said.
Jasinthan added, “India does not see us as human beings but as illegals and criminal suspects.”
Data on refugees
A news report in 2021 revealed that the US Navy seized a Kerala boat with 59 Sri Lankan refugees apparently heading to Canada. The boat was intercepted by the US Navy between Maldives and Mauritius in the Indian Ocean.
The boat was handed over to Maldives and the Maldives government informed the Indian government. According to the authorities, the Sri Lankan Tamils had escaped from refugee camps in Tamil Nadu.
In the past, Sri Lankans migrated through regular and irregular pathways to India to escape bombing during the civil war between 1983 and 2010.
The civil war was mainly a clash between the Sinhalese-dominated Sri Lankan government and the Liberation Tigers of Tamil Eelam (LTTE) insurgent group, which had hoped to establish a separate State for the Tamil minority.
After that, since 2022, people like Jasinthan have migrated to India in large numbers.
To escape the ordeal of their home State, some even take chances to swim across the Palk Strait to enter India, without worrying about their lives.
Palk Strait divides Tamil Nadu, India from the Jaffna district of the northeastern province of Sri Lanka.
A United Nations High Commission for Refugees (UNHCR) report reveals that there were more than 0.2 million refugees in India as of July 31, 2023, of which the highest number (91,000) were Sri Lankans.
Tibetans (72,000) are at the second position and refugees from Myanmar (30,000) are at the third position.
The report covers only those refugees who are registered with the UNHCR.
A report from the Jesuit Refugee Service claims that between 1983 and 2012, around 304,000 Sri Lankan Tamils reached Tamil Nadu seeking refugee status.
The Jesuit Refugee Service is an international Catholic organisation established to accompany, serve and advocate on behalf of refugees and other forcibly displaced persons.
The report adds that 58,822 are living in 108 camps in 29 districts in Tamil Nadu.
A report from the Jesuit Refugee Service claims that between 1983 and 2012, around 304,000 Sri Lankan Tamils reached Tamil Nadu seeking refugee status.
Distressingly, the report claims that 29,500 of these refugees are Indian-origin Tamils who should have been treated as repatriates and not as refugees.
In addition, about 34,135 Sri Lankan Tamils are living in Tamil Nadu as non-camp refugees.
Jasinthan and his friends stuck in India are not Sinhalese, instead, they are Lankans of Tamil ethnicity.
India does not recognise refugees as refugees rather ‘illegal migrant’
Most Sri Lankan Tamils who took asylum in Europe, the US, Canada and Australia have been locally integrated, as the countries are signatories to either the 1951 Refugee Convention (also known as 1951 Geneva Convention) or its supplementary 1967 Protocol.
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The 1951 Refugee Convention and its 1967 Protocol are the key legal documents that form the basis of the UNHCR’s work. They are the cornerstone of refugee protection.
India is not a signatory to the 1951 Refugee Convention. On top of that, the country has no special legal framework for refugees or asylum-seekers and treats them only as “illegal migrants”.
Notably, the Citizenship (Amendment) Act (2019) also, did not include the Sri Lankan refugees within its purview, much to the chagrin of these refugees.
Despite having ethnic affinity with India, Sri Lankan refugees have been stuck in India for around 40 years.
There is no distinction between ‘foreigners’ and ‘refugees’ under Indian law.
The Foreigners Act, 1946, the Passports Act, 1967, Extradition Act, 1962, the Citizenship Act, 1955 (amended in 2019), and the Illegal Migrants (Determination by Tribunals) Act,1983 are applicable to both categories of people.
Under these laws, foreigners can be detained and forcibly deported, even if they are refugees escaping their countries of origin in fear of death.
The regulation of refugees and asylum seekers in India is conducted on an ad hoc basis through administrative decision-making.
The Indian government determines the status of different groups of refugees in different ways.
The Citizenship (Amendment) Act (2019) also, did not include the Sri Lankan refugees within its purview, much to the chagrin of these refugees.
Under international law, refugees have the right to seek asylum in another country and the right not to be returned to a country where they face a threat to their lives.
These principles are stressed upon in the 1951 Refugee Convention and its 1967 Protocol, which puts an obligation on state parties to grant refugees entry and protection.
Older sources say that India did not sign these global tools to stay neutral in Cold War politics, maybe because of the Eurocentric bias of the convention.
Unfortunately, while Sri Lankan refugees languish in camps even after 40 years of stay in India without citizenship and without much humanitarian assistance, Tibetans in India, despite also being refugees, are treated better.
The Tibetan Rehabilitation Policy 2014, contains guidelines to provide a uniform policy in all states where Tibetans reside, and normalise access to various Indian government schemes and benefits.
Matters concerning land lease, and extending Central and state benefits, are also specified.
Rohingya refugees, the most ignored community
Sadly, the Rohingya refugee community is the most ignored one in India.
Estimates of the number of Rohingya living in India vary widely. The UNHCR has registered more than 20,000 Rohingya refugees. The last public estimates by the Indian government in 2017 put the number at 40,000.
The Rohingya population in India is a mix of those who arrived during the earlier periods of persecution and those who have arrived more recently from camps in Bangladesh.
At least 13,000 Rohingya refugees entered India between 2012 and 2016, mostly from Bangladesh.
Unfortunately, the Right-wing leaders in India, who are in a ruling majority, characterise Rohingyas as “terrorists” and “infiltrators”.
The Rohingyas are facing additional challenges due to inadequate legal protections and the trajectories of policy’s India has adopted against them.
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They have limited access to education, livelihood opportunities and healthcare facilities in India.
In addition, the threats of indefinite detention and deportation always loom large are imminent.
‘India needs to become more humane’
According to Mini Mohan, a sociologist and human rights activist, India has signed international agreements on human rights (in 1948) and against torture (in 1997), and passed domestic laws on the right to life that apply to refugees.
“India has also served on the UNHCR’s executive committee since 1995 and supported the 2018 Global Compact on Refugees, a non-binding framework described by the United Nations as ‘a unique opportunity to strengthen the international response to large movements of refugees and protracted refugee situations’.”
India is not a signatory to the 1951 Refugee Convention. On top of that, the country has no special legal framework for refugees or asylum-seekers and treats them only as “illegal migrants”.
“But refugees are ignored, and there are different standards for ignoring them. Some are totally ignored, while others are not; in the largest democratic country of the world,” Mini said.
Mini also remarked, “This attitude to see a refugee as a criminal, alien or someone who has to be detained, kept under surveillance, handcuffed and deported is gaining momentum under this majoritarian Right-wing India government.
Mini added that India needs to adopt more humane standards to deal with refugees and lead the way for other nations.
For now, she said, “We have lost humanity. We are now on the way of cleansing and seeking ‘purity’,” which needs to be stopped.
After all, what can be more pure and cleansing than to provide a helping hand to those in desperate need?
