Law In The Everyday Life Of A Refugee: The Burmese Dilemma
1. INTRODUCTION
The first wave of Burmese refugees arrived in Delhi in the year 1989 following the 1988 pro-democracy student uprising in Myanmar/ Burma and the subsequent crackdown by the military junta on its supporters. According to estimates, at present there are around 1652 Burmese refugees living in Delhi. This diaspora is distributed in adjoining areas of Vikaspuri, Janakpuri, Jeevan Park and Asaltpur which fall in the west district of Delhi. The bulk of the Burmese refugee community in Delhi belongs to the ethnic Chin group (87.7%), and the remaining are Kachins (5.6%), Arakons (2.05%), Burmans (4.2%), Nagas (0.3%) and Shans (0.06%).[1]
The Government of India, while on one end has allowed the refugees to thrive in Delhi; it has on the other hand not specified any clear policy on their status. The Burmese refugees have been allowed to take up residence, run their independent news agency, apply for jobs and other vocations and conduct peaceful protests from time to time without the slightest indication of government indifference to the same. However, behind the scenes in the context of the everyday life of the Burmese refugees, every act or omission on the part of a refugee becomes an infringement of the law due to the mere fact that they do not have any legal status whatsoever. The refugees have no rights in practice even though economic and social rights apply to refugees as part of the basic principles of human rights. Article 14 (right to equality) and Article 21 (right to life) applicable to aliens/ foreigners only accrue in the event a refugee approaches the courts for justice. This ‘veiled freedom’ granted to the refugees has in fact entailed a number of hardships and difficulties which have had a bearing on the day to day life of a refugee. Due to various legal impediments, a Burmese refugee is plagued by accommodation and housing problems, inadequate provisions for living, shelter, employment, food, travel constraints and rendered vulnerable to arrest, expulsion and deportation. A Burmese refugee is indeed trapped in a vicious circle where he is superficially granted safe haven on account of his status as a refugee but is subjected to the violation of the law of the land in every activity he undertakes because of his illegal existence.
RESEARCH METHODOLOGY
The research methodology adopted for this project is non-doctrinal in nature. The project is the product of a field study conducted on the Burmese diaspora living in and around Vikaspuri in the West District of Delhi. The study primarily involved interviews and interactions with members of the Burmese refugee community. The researcher has relied on the Questionnaire method in compiling the data put forth in this research paper.
2. REFUGEE PROTECTION REGIME IN INDIA
A refugee is a person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country….”[2]
India is not a party to the 1951 Convention or its 1967 Protocol which is the magna carta of refugee law. Neither has it passed any domestic legislation on the subject of refugees. However it is a signatory to various international agreements which cast an obligation on it to accord basic fundamental rights to refugees. In the absence of a refugee specific legislation which regulates the entry and status of refugees, the influx of refugees is handled at the political and administrative levels. The result is that refugees are treated under the law applicable to aliens in India. The fate of the individual refugee is essentially determined by the protections available under the Constitution of India and the country’s obligations under international agreements.
2.1 INTERNATIONAL COMMITMENTS
Even though India is not a signatory to the 1951 Convention on refugees it is a signatory to a number of United Nations and World Conventions on human rights, refugee issues and related matters. India’s obligations in regard to refugees arise out of the latter.
India voted affirmatively to adopt the Universal Declaration of Human Rights (UDHR) which affirms rights for all persons, citizens and non-citizens alike. It adopted the UN Declaration of Territorial Asylum in 1967. As for the minimum standard of treatment of refugees, India has undertaken an obligation by ratifying the International Covenant on Civil and Political Rights (ICCPR)[3] and the International Covenant on Economic, Social and Cultural Rights (ICESCR) to accord an equal treatment to all non-citizens with its citizens wherever possible. India is presently a member of the Executive Committee of the UNHCR and it entails the responsibility to abide by international standards on the treatment of refugees. In 1992, India acceded to the 1989 Convention on the Rights of the Child which deals with refugee children and refugee family reunification (Article 22)[4]. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was ratified in 1993 under which Article 1 imposes legally binding obligation. India accepted the principle of non-refoulement as envisaged in the Bangkok Principles, 1966, which were formulated for the guidance of member states in respect of matters concerning the status and treatment of refugees. These Principles also contain provisions relating to repatriation, right to compensation, granting asylum and the minimum standard of treatment in the state of asylum.
In order to get a clear understanding of the rights which devolve on the refugees on account of India’s international commitments mentioned above and their relevance to law enforcement, it is pertinent to enumerate some of the more important rights accruing to refugees under the above mentioned Conventions. Primary emphasis is laid on the Universal Declaration of Human Rights, 1948 and the International Covenant on Civil and Political Rights, 1966 due to its importance and significance. In the specific context of refugees, the right to safe asylum, right to a nationality and the right to be recognized as a person in law are incorporated and affirmed both in the UDHR and the ICCPR. It may be pointed out that Article 3 of the UDHR guarantees the right to life, liberty and security of person to every human being. This basic right is translated into a non-derogable right to be protected by law in Article 6 of the ICCPR.
The UDHR in Article 14 stipulates that everyone has the right to seek and to enjoy in other countries asylum from persecution. Essentially, it recognizes the right of a refugee to seek safe asylum and imposes an obligation on a member state to appreciate this basic right. Article 12 of the ICCPR provides that everyone shall be free to leave any country, including his own while Article 13 prohibits the expulsion of aliens except by due process of law. It may be noted that the ICCPR does not particularly indicate the right to asylum but on a joint reading of Articles 12 and 13 it becomes apparent that a refugee in a host country shall not be expelled arbitrarily.
Article 15 of the UDHR guarantees to every person the right to a nationality. This is a pervasive right attributable to every individual irrespective of race, colour, creed, sex, age, etc. and no one shall be arbitrarily deprived of it. The ICCPR in Article 24 incorporates this right wherein it states that ‘every child has the right to acquire a nationality.’ The provision assumes significance in the light of the refugee child and that it is the fundamental right of the child to acquire the nationality of its birth.
2.1.3 RIGHT TO BE RECOGNIZED AS A PERSON IN LAW
Article 16 of the ICCPR confers a non-derogable right on every person to be recognized everywhere as a person before the law. The right to recognition as a person before the law is reiterated in Article 6 of the UDHR and is one of the most essential rights which cannot be abridged in any circumstance. A refugee cannot be denied this basic right whether it be in his country of origin or the country of asylum. State parties to the above conventions ought to guarantee this right even to aliens/ foreigners as distinct from refugees.
2.2 PROTECTION UNDER THE CONSTITUTION
In the case of refugee protection, the Constitution of India guarantees certain fundamental rights, which are applicable to non-citizens viz., the right to equality (Article 14), the right life and personal liberty (Article 21) and the freedom to practice and propagate their own religion (Article 25). Any violation of these rights can be remedied by the enforcement of these fundamental rights in the Supreme Court under Article 32 and in the High Courts under Article 226 of the Constitution. The Indian Supreme Court has held that refugees or asylum seeker cannot be discriminated against because of their non-citizen status. Further, it would appear that the alien also possesses rights also under Articles 20 and 22 of the Indian Constitution which deal with issues like double jeopardy and preventive detention. This reflects that the rules of natural justice in common law systems are equally applicable in India, even to refugees. The established principle of rule of law in India is that no person, whether a citizen or an alien shall be deprived of his life, liberty or property without the authority of law. The Constitution of India expressly incorporates the common law precept and the Courts have gone further to raise it to the status of one of the basic features of the Constitution which cannot be amended.
On the status of international law in India, the Constitution in Article 51 (c) states that “the State shall endeavour to foster respect for international law and treaty obligations in the dealings of organized peoples with one another.” The Article is lucid and directs India to foster respect for its international obligations arising under international law for its economic and social progress. Article 51 (c) is placed under the Directive Principles of State Policy in Part IV of the Constitution, which means it is not an enforceable provision. Since the principle laid down in Article 51 is not enforceable and India has merely to endeavour to foster respect for international law, this Article would mean prima facie that international law is not incorporated into the Indian municipal law which is binding and enforceable. However, when Article 51(c) is read in the light of other Articles and judicial opinion and foreign policy statements, it suggests otherwise. In addition, Article 253 of the Constitution provides that: “Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.”
This Article implies that whenever there is a necessity to incorporate international obligations undertaken at international level or under international instruments into municipal law, the Parliament is empowered to do so. The judicial opinion is that rules of international law and municipal law should be construed harmoniously, and only when there is an inevitable conflict between these two laws the municipal law should prevail over international law. Against this backdrop when one examines the binding force of international refugee law on India and its relations with Indian municipal law, one can conclude that as long as international refugee law does not come in conflict with Indian legislations or policies on the protection of refugees, international refugee law is a part the municipal law.
3. JUDICIAL INTERPRETATION: CASE LAW IN INDIA
While the Executive branch of the state does not recognize refugees or refugee law, the judicial wing does recognize refugees and refugee law to a certain extent. The judiciary has played a proactive role in protecting refugees. In the past Indian courts were rarely approached to determine the obligations of the state with respect to refugees or to pronounce on their rights and duties. More recently, however, courts have considered these matters. Court orders have filled legislative gaps and in many cases provided a humanitarian solution to the refugees’ problem. The judiciary has been instrumental in incorporating international law by attempting to enforce obedience of the treaty obligations by the executive through the medium of fundamental rights under Articles 14, 21 and 25 which are available to non-citizens. Given below is a summary of the type of protection that courts have provided to refugees:
3.1 PHYSICAL SECURITY
Courts have decided in a number of cases that the Constitutional protection of life and liberty must be provided to refugees. In the case of Louis de Raedt v. Union of India[5] and State of Arunachal Pradesh v. Khudiram Chalma[6], the Supreme Court held that Article 21 of the Constitution, which protects the life and liberty of citizens are extended to all, including aliens. However, this right of the foreigner is only confined to the right of life and liberty contained in Article 21. In the Louis de Raedt case, the Supreme Court observed:
“The fundamental right of the foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country, as mentioned in Article 19 (1) (e), which is applicable only to citizens of this country.”
Thus, a foreigner does not have the right to move freely throughout and reside and stay in any part of the territory of India as conferred under Article 19 (1) (d) and (e). Such a right is available only to citizens, and thus not to aliens, including refugees as is reiterated in the Khudiram Chakma case. The Supreme Court has also held that the government’s right to deport is absolute:
“the power of the Government in India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering this discretion…..the executive Government has unrestricted right to expel a foreigner.”[7]
The protection accorded to refugees under Article 21 was reaffirmed in National Human Rights Commission v. State of Arunachal Pradesh and Anr. (1996)[8] which was concerned with the threat to life and liberty to the approximately 65,000 Chakma/ Hajong refugees settled in Arunachal Pradesh since 1965. In that case, the Supreme Court affirmed, endorsing earlier decisions, that ‘the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise.’ It further held that the Chakma refugees shall not be forcibly evicted on account of being non-citizens except in accordance with the law.
3.2 NON-REFOULEMENT
The principle of refoulement or the prohibition of expulsion of a refugee finds its expression in Article 33 of the 1951 Convention.[9] The juridical basis of the international obligations to protect refugees, namely, non-refoulement including non-rejection at the frontier and the minimum standard of treatment are traced in international conventions and customary law. India’s legal obligation to protect refugees is traced mainly in customary international law which has been effectuated primarily by judicial creativity.
It is well established in India that the principles of customary international law cannot be enforced by courts if they are in conflict with statutes. Indian courts have accepted and applied the doctrine of incorporation according to which customary rules are to be considered part of the law of the land and enforced as such, with the qualification that they are incorporated only so far as is not inconsistent with Acts of Parliament. In Gramophone Company of India v. Birendra Bahadur Pandey[10] the Supreme Court observed:
“The comity of Nations requires that Rules of International law may be accommodated in the Municipal Law even without express legislative sanction provided they do not run into conflict with Acts of Parliament. But when they do run into such conflict, the sovereignty and the integrity of the Republic and the supremacy of the constituted legislatures in making the laws may not be subjected to external rules except to the extent legitimately accepted by the constituted legislatures themselves. The doctrine of incorporation also recognizes the position that the rules of international law are incorporated into national law and considered to be part of the national law, unless they are in conflict with an Act of Parliament. Comity of Nations or no, Municipal Law must prevail in case of conflict.”
In the recent decision of Apparel Export Promotion Council v. A.K. Chopra[11] the Supreme Court observed:
“This Court has in numerous cases emphasized that while discussing constitutional requirements, Court and counsel must never forget the core principle embodied in the International Conventions and Instruments and as far as possible give effect to the principles contained in those international instruments. The courts are under an obligation to give due regard to International Conventions and Norms for construing domestic laws more so when there is no inconsistency between them and there is a void in domestic law.”
Though none of the above cases dealt with refugee issues, the rulings opens up the possibility that the courts in India can refer to the 1951 Convention in interpreting the domestic legislation. Indeed, in Vishaka v. State of Rajasthan[12] the Supreme Court went further and relied upon an ‘official commitment’ made by the Government of India at the 4th World Conference on Women in Beijing. The Court observed that ‘reliance can be placed on the above for the purpose of construing the nature and ambit of constitutional guarantee of gender equality in our Constitution.’
In the context of refugee rights it can be argued that Article 21 encompasses the principle of non-refoulement which requires that a State shall not expel or return a refugee ‘in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’[13] That is to say, any procedure which disregards the principle of non-refoulement cannot be deemed to be fair, just and reasonable. Moreover, returning a refugee to his country of origin where his life would be in danger amounts to a violation of his right to life to which a refugee is entitled. This interpretation is consistent with the international obligations India has assumed through ratifying the two 1966 Covenants and the Convention on the Rights of the Child. This rationale has been applied by the courts in various cases staying the deportation of refugees although they have done so without discussing in any manner the content of international refugee law.
In the unreported case of Dr. Malavika Karlekar v. Union of India[14], the Supreme Court stayed the deportation of 21 Burmese refugees when their applications for refugee status were pending with the UNHCR. It may also be noteworthy to mention that the National Human Rights Commission in 1999 prevented the forcible repatriation of 36 Burmese under-trial prisoners stationed at Port Blair, Andaman & Nicobar Islands.[15]
3.3 RIGHT TO REFUGEE STATUS
In a number of cases the courts have protected the right of refugees where they are substantial ground to believe that their life would be in danger. Various unreported cases from the Gauhati High Court have upheld the principle of refoulement by invoking the provisions of Article 21 and granted detenus permission to travel to New Delhi, where the Office of the UNHCR is located, in order to seek determination of refugee status. These cases have contributed substantially to India’s refugee policy.
In Shri Khy-Htoon and Others v. The State of Manipur[16] eight Burmese refugees under detention for illegal entry at Manipur Central Jail, Imphal invoked the writ jurisdiction of the court praying that the State of Manipur be directed to produce the petitioners before the Office of the UNHCR to enable them to seek refugee status. The court held that refugees have a right to be protected against deportation under international law and they also have fundamental rights guaranteed under Articles 10, 21 and 22 of the Constitution. Further, it held that in order to enjoy their rights, the petitioners should be enabled to go to New Delhi to seek refugee status and released them on personal bonds.
In the case of U Myat Kyaw v. State of Manipur[17] the two petitioners were detained at Manipur Central Jail for illegal entry into India and cases had been registered against them for illegal entry under S. 14 of the Foreigners Act. They petitioned for their release to enable them to seek refugee status before the UNHCR in New Delhi. This case assumes significance in the light that the court took judicial notice of the political disturbance in Myanmar leading to the influx of refugees into India. The Gauhati High Court ruled that under Article 21 asylum seekers who enter India (even if illegally) should be permitted to approach the Office of the UNHCR to seek refugee status.
In Ms. Zothansangpui v. The State of Manipur[18], the High Court ruled that refugees have the right not to be deported if their life was in danger. In the instant case, the petitioner had already served out a 195-day sentence for illegal entry. She was allowed to travel to Delhi and seek asylum after she completed her sentence.
In Mr. Bogyi v. Union of India[19] an under-trial prisoner apprehending possible deportation to Burma on expiry of his detention, approached the court to seek political asylum from UNHCR in New Delhi on account of grave danger to his life in the event he is deported. The Court ordered the release of the petitioner on his personal bond with the rider that if he is successful in obtaining necessary permission to qualify as a refugee; he shall be released forthwith and need not serve out the sentence, if any.
4. BURMESE REFUGEES IN DELHI
Although India does not recognize refugees under law, it has allowed refugees into its borders and allowed them to live, work and even carry out political work. However, in the eyes of the law many of the daily actions that the refugees do are illegal and thus they live with uncertainty and insecurity. Burmese refugees in Delhi have been bogged by legal hindrances to undertake even the basic activities of everyday life. They lack formal legal status in law in the result that they are compelled to resort to illegal means in order to do or carry out indispensable needs.
The researcher has identified three categories of refugees. The first are those recognized by the UNHCR who also have Residential Permits from the Foreigners Regional Registration Office (FRRO); the second category of refugees comprises those who are UNHCR recognized but lack Permits from the FRRO; and the third group of refugees include the unrecognized ones consisting of asylum seekers and rejected/ pending cases. However, the truth is that whether recognized or unrecognized by the UNHCR all Burmese face similar hurdles in their daily activities. Many do not realize the importance and benefits of having legal papers and lacks documents of any sort apart from the UNHCR certificate and the FRRO Permit. This leaves them in more vulnerable positions as will be evident from the discussion below.
4.1 UNHCR RECOGNITION AND FRRO PERMITS
The UNHCR recognition certificate merely confers refugee status and cannot be put to any concrete use. Going by the account of a number of refugees, the UNHCR Certificate can only used for identification purposes during travels within India and in some cases for receiving money from abroad through money transfer agencies such as Western Union. Nevertheless, recognition by the UNHCR becomes all the more necessary in order that a refugee can avail the protection and benefits of the refugee body. The FRRO Residential Permit is a necessity in the context of resettlement programmes of the UNHCR for the issue of exit permits from India. Also, one can get a fixed line telephone connection (e.g. MTNL) with the Permit. That apart, it cannot be put to any other practical use in everyday life. Essentially, the UNHCR stresses on Residential Permits for security concerns of the refugees and government directives.
The hassles involved in acquiring a UNHCR Certificate and FRRO Residential Permit have in numerous occasions put refugees in a tight-spot. The refugees are encountered with frequent rejections of their applications to the UNHCR without grounds being disclosed.[20] The lack of coordination and cooperation between the UNHCR and the FRRO Office in addressing refugee related matters has put refugees in particularly vulnerable situations. While the UNHCR certificate is valid for 18 months, the FRRO Permit is subject to renewal every 6 months. Landlords are reluctant to grant proof of residence necessary for refugees to renew their residential permits, because landlords often try to avoid paying taxes on their rent. Delays in issuing and renewing these permits often put refugees at risk of arrest and harassment. In addition, a police enquiry into the applicant’s background is a condition precedent for the grant of the residential permit by the FRRO. In most cases, applicants have to grease the palms of the policemen for the requisite sanction and the amount may even extend to Rs. 1000.
Application to the above two documents entails a long arduous process often marred by inordinate delays and indifferent attitude of the concerned authorities as is evident from the testimony of refugees in Delhi. On the face of it, it would appear that the FRRO Permit comes with ease after the recognition by the UNHCR. But this is not the case. The UNHCR and the FRRO function independently and on being granted refugee status by the former, the refugees are only advised to get the requisite permit from the office of the FRRO. In most cases, the treatment meted out to refugees by these agencies is very humiliating and disparaging. This is especially the case when it comes to Burmese refugees who are treated with contempt by the officials.
Neng Boi was recognized as a refugee by the UNHCR in 2005 after being rejected once. According to her, she was made to wait for 8-9 hours at the FRRO’s office for her application to be processed and her case was only taken up in the last instance. To add to her woes, she was told that she was to get a sanction from the Ministry of Home Affairs for which she had to pay two visits to the mentioned office. There too, she had to sit through the entire day till the concerned officers took notice of her matter. Her ordeal finally ended when she obtained her Residential Permit after 5 months from the date of her recognition by the UNHCR.
In another similar case, Ninzi, a Kachin woman was recognized after her application for refugee status was rejected twice. By her account, she was given an appointment for review of her case after making a record 20 applications for reconsideration to the UNHCR. The delay can be adjudged from the fact that she was given an appointment letter towards the end of 2003 for an interview in March 2004 and she was only recognized in September of that year. As per the UNHCR dispatch, the time of her interview was fixed at 10 AM but it happened only at 4 PM. She was not allowed entry through the front gate of the UNHCR’s office and was made to enter through the rear. She was not accorded any reason for the delay in the interview. Each time she tried raising a query she was hushed by the officials. After her recognition by the UNHCR, she was merely asked to procure a Residential Permit from the FRRO. Here too, she was made to wait from 9 AM to 5 PM at the FRRO’s office for her application to be processed. The time frame for acquiring her FRRO Permit took around 5 months which was approved only after she paid a sweetener of Rs. 500 to the police for the necessary police sanction. .
The fact, however, remains that many refugees still remain unrecognized due to procedural delays. One such case is that of Deebye who is an asylum seeker and an unrecognized refugee. His first application to the UNHCR was in 2002 which was summarily rejected. The 1st appeal was also rejected and his 2nd appeal for recognition is now pending. According to him, as a rule, only one appeal is allowed which is to be filed within a period of 30 days in cases of rejection. There is no such provision as a 2nd appeal but a rejected applicant is entitled to file as many applications for reconsideration of his case. Deebye made 3 such applications to the UNHCR over a period of one year and a response to review his case only came after the third application. His interview took place in November of 2006 and since then he has been awaiting the UNHCR’s answer. The entire period had traumatized him to no end. This compounded with the fact that he remains an unrecognized refugee; life for him is perilous and insecure.
4.2 IDENTITY DOCUMENTS
Unlike Tibetan refugees, the Government of India does not permit Burmese refugees to acquire identity documents and other legal credentials necessary for everyday convenience and survival. This puts the refugees at risk of extortion and harassment because they lack formal legal status. Most Burmese refugees lack any certified proof of their identity/ residence. This is especially so in the case of unrecognized refugees. Even UNHCR-recognized refugees experience considerable hardship and problems. The lack of a formal legal standing has culminated in refugees resorting to illegal means to acquire basic identity documents such as a driving license, Passport, Ration Card, etc.
Johan[21] is a refugee aged 62 years and belongs to the earliest batch of asylum seekers who arrived in Delhi in 1989. He had to flee Myanmar as a result of the 1988 pro-democracy uprising of which he was a prominent supporter. He is one of the better-off Burmese refugees having been recognized by the UNHCR way back in 1989 and also has a residential permit issued from the FRRO. He possesses all the documents and papers required for everyday convenience and conveyance such as a valid driving license, a ration card and an Indian passport. However, the curious fact is that they have all been acquired illegally. According to him, while a Ration Card can be procured for Rs. 500- 1000, one has to shell out a higher amount and have the right contacts for obtaining a driving license or a passport. The driving license and passport were acquired by him through an acquaintance from Manipur. In this regard, he casually remarked that he may be a Burmese refugee but he has a valid Indian Passport! Ordinarily, a refugee would not be entitled to such benefits as the UNHCR Certificate issued to recognized refugees or the Residential Permit of the FRRO cannot be used to secure any of the above mentioned legal necessaries.
Nathan[22] is a Chin refugee who came to Delhi in 1997 with the primary aim of propagating the struggle for democracy in Burma. On his arrival, he applied for UNHCR refugee status but was rejected in the first instance. He has not preferred an appeal till date as he is of the opinion that recognition by the UNHCR is by and large a futile exercise as no real benefit comes out of it. Consequently, he has no residential permit from the FRRO. However, he possesses all legal documents and papers that any ordinary citizen is entitled to. He has a Driving License, a Ration Card, an Indian Birth Certificate though he was born in Burma, a Baptism Certificate, a Tribal Certificate, an Indigenous Inhabitant Certificate and a Voter ID Card. All these documents were acquired by him in Mizoram. He confessed that he had to masquerade as the adopted son of a native Mizo in order to procure the above legal papers.
The difficulties faced in not possessing valid papers can best be accounted from the testimony of a Chin refugee named Manlun. A young lad of 25 years, he does not posses any other legal papers apart from the UNHCR Certificate and FRRO Permit. He lacks a driving license for which he is frequently fined by the police in the unfortunate event he is caught. The grim reality is that he is not entitled to a driving license under law.
Due to compelling reasons of circumstances and necessity, a refugee is bound to tread the illegal path for legal requirements. Usually, the documents procured illegally are in false names which prove cumbersome and risky in the long run. In the result, a refugee is forced to assume two identities, one in his original name for refugee related purposes and the other in a false name for recognition in the eyes of the Indian law. This is apparent in the case of a Burmese refugee named Samuel.[23] Legally speaking, he has no identity in his own name. While his friends and acquaintances know him by his real name his documents speak otherwise. He stated that while his UNHCR Certificate is in his original name, he acquired his driving license, Passport and PAN Card under a bogus name due to contingencies. Under one identity, he is a refugee under the protection of the UNHCR while under the other he is an Indian citizen with valid legal papers. As he casually puts it, he travels within India in his own name and journeys abroad under his Indian identity.
4.3 TRAVEL DOCUMENTS
India does not have on its statute book a specific and separate law to govern refugees. In the absence of such a specific law, refugees are treated on par with foreigners. The Government of India has not provided travel permits to Burmese refugees though it has occasionally granted international travel permits to long-term Tibetan refugees in some rare instances. Basically, a refugee is not entitled to travel documents such as a Passport and a VISA. The fact however remains that many Burmese refugees do travel abroad (mainly to Thailand) on work assignments and training programmes with valid Indian Passports.
Jonah is an active socio-political worker for the Burmese movement in India and is engaged in various political campaigns and welfare activities for the refugees. As part of his work and activities, he visits Thailand occasionally. He does not encounter much problems in getting a VISA issued for his travels because he possesses a passport but this is not so for other less fortunate refugees who lack the necessary papers. However, as he admits, in some cases one has to pay exorbitant rates.
Neng Boi works at the Women’s League of Burma and possesses travel documents for her travels overseas. Her Passsport was acquired through a broker in Manipur and her organization had to shell out an amount of Rs. 10,000/- for having it made. On the other hand, Ninzi who had to visit Thailand on a training programme was charged an outrageous amount of Rs. 12,000/- by a broker. Though this extreme sum was borne by her organization, she had to personally bear the travelling expenses to Guwahati where as per the conditions of the broker the delivery of the Passport was to take place.
Nathan works in a Burmese lobby group and travels extensively on work assignments. He faces no problems in getting a VISA issued for his travels as he possesses a Passport. But, he adds that after 2006 the concerned authorities have been insisting on a Tax Clearance Certificate before the VISA issual which he lacks as he does not pay taxes. Furthermore, for traveling to developed countries, a financial statement and property details of the applicant are normally asked for which makes it difficult for a refugee like him to furnish.
As is evident, necessary travel documents have to be procured illegally by the refugees. There is no mechanism in place for granting travel permits to refugees due to the government lack of policy in this regard. For a large number of Burmese refugees who do not possess travel papers due to unawareness or financial constraints, their movement is severely curtailed. This is manifested by the case of Deebye whose application for refugee status is pending recognition by the UNHCR. He lacks legal papers or travel documents of any kind expect a Burmese Identity Card which is obsolete. He is unable to travel to any place outside the limits of Delhi because he lacks papers which makes each day of his stay in Delhi very insecure and vulnerable.
4.4 HOUSING AND ACCOMMODATION
It is but an admitted fact that Burmese refugees in Delhi are plagued by housing and accommodation problems. The UNHCR Certificate and FRRO do not prove handy in availing accommodation. The landlords, in most cases, view the refugees with suspicion and have reservations in renting their houses out to them. Burmese refugees have to often impersonate as residents of the north-east or rely on recommendations for renting housing. Another problem at hand is the financial crunch of the refugees. Some refugees, like Nathan, had to encounter major hassles in renting a place as most of the landlords stressed on rent agreements and verification checks by the local police. However, according to Jonah, landlords do not stress on residential permits/ proof of identity but are instead more inclined on monetary payments such as security deposits/ advance payments and on reliable sureties. This is so in the case of house rentals ranging from Rs. 2000 -3000/- in which cases the landlord does not feel the requirement to have rent agreements with the tenant. In the rental of office spaces and houses for community use where the rates are higher, proper documentary proof and rent agreements become necessary. In such instances, landlords press for legal identity certification such as a driving license and Passport before letting which refugees are not legally entitled to possess.
Neng Boi lives in a one-room rented flat in Bodela village of West Delhi. The said area is swarmed by Burmese refugees due to the availability of relatively cheap accommodation and lenient landlords who do not stress on formalities such as rent agreements and residential permits in renting their houses. She shares the flat with 20 other roommates who include refugee families and unmarried men, women and children. They pay a monthly rent of Rs. 3500/- but is not in possession of any monthly rent receipts. They had advanced a security deposit of Rs. 10,000/- but she has no receipt or document of the same. So also in the case of Ninzi, she pays an amount of Rs. 3000/- for a one-room flat and had advanced a security deposit of Rs. 6000/- She is naïve and does not hold any rent deed or receipt of the deposit forwarded nor does she have any receipt of payments of rent made by her.
In the absence of legal documents such as rent agreements and rent receipts refugees have no recourse to support their claims and find themselves at the mercy of the landlords being especially vulnerable to their dictates. The house owners frequently bully their tenants using threats of eviction and expulsion in the event of non-compliance with their directives.
4.5 HOUSEHOLD MANAGEMENT
The government does not provide Ration Cards to the Burmese refugees despite the fact that good proportions of them live below the poverty line and have no source of livelihood. Apart from a few refugees who possess Ration Cards obtained illegally, the bulk of the Burmese refugees do not possess Ration Cards due to which they face difficulties in meeting basic requirements in the household. As Samuel puts it succinctly, one cannot run a household with the UNHCR certificate and the FRRO permit.
Neng Boi does not possess a Ration Card as a result of which essential necessities like cooking gas connections are procured from the black market at higher prices. While a regular gas cylinder would cost Rs. 290/- refugees have to spend Rs. 400-500/- for procuring an illegal gas cylinder.
Many refugees express their intention of acquiring Ration Cards as it would help them cut down costs. But, like Neng Boi, though they are aware of the fact that they are legally not entitled to the benefits of a Ration Card they are also ignorant of the means of obtaining it illegally. The household difficulties faced by the refugees can best be accounted for by the means the refugees employ to meet their requirements of groceries and other essential provisions which on one occasion led to brushes with the local police.
Every Thursday, there is a daily market at Bodela village which is frequented by the local populace and the refugees. However, the interesting twist that came out of Neng Boi’s admission is that unlike the local residents who visit the market as early as possible to purchase the fresh stock of foodstuffs, the refugees visit the market only at midnight. This is in view of the economic conditions of most refugees they cannot pay for the foodstuffs at the normal rates. At midnight when the market is drawing to a close, the vendors usually sells their leftover groceries at highly subsidized rates and the refugees look forward to that advantage. Such is the state of affairs that some refugees even scavenge for groceries. On one such occasion, authorities arrested and beat several Burmese women under suspicion of being prostitutes, as they tried to gather leftover vegetables from the market at night.
4.6 LIVELIHOOD
Most refugees are unemployed and see little hope for finding work, let alone achieving financial self-sufficiency. This is in large part due to lack of language skills in Hindi and English and hostility or discrimination on the part of the local community. It is also illegal for refugees, as for all foreigners, to work in India without proper permits. In the absence of work permits, the Burmese refugees cannot seek professional jobs and most business ventures are closed to them.
Ninzi had applied for a job at the YMCA Office in Vikaspuri but was turned down on the ground that being a refugee there was no guarantee of her working her full tenure and that there had been instances of refugees leaving their jobs without prior notice. Further, the potential employers put forth reasons of women security concerns as the occupation entailed working night shifts. It might be pointed out that the YMCA is a partner organization of the UNHCR and imparts vocational training to the refugees.
Although a number of Burmese refugees work in low-paid jobs in the informal sector, they do so without the protection of the law and are subjected to exploitation and arbitrary terminations. In numerous cases, refugees reported workplace violations including harassment by Indian employers, unpaid salaries, and sexual and gender-based violence. Refugees do not get their salaries as they lack legal credentials and there is usually no proof of their work on paper.
In one case, according to Samuel, a refugee working as a cook at the YMCA-run school could not claim his salary because he lacked a PAN number. The fact is that being a non-citizen he could in no circumstance possess a PAN Card. He was left at the lurch and the job was later taken up by another refugee with a PAN number in an Indian identity.
Al Van Thang worked as a security guard in a shop in district centre complex at Janakpuri. He was not given his due salary and was dismissed from his job without the employer affording any reason for the same. Similar is the case of Van Awi Lian. He worked in a company that took Rs. 1000/- from him as deposit for the job but was fired after working for 10 days. He was neither refunded of his deposit nor was the salary of 10 days paid to him.
In an incident of sexual harassment at the workplace Ninzi’s unfortunate friend was the victim of an attempted rape by the manager of a garment factory where she worked as a daily labourer. Timely intervention by other refugees prevented the commission of the grotesque crime. Despite the seriousness of the crime no complaint was lodged with the police but the local YMCA was informed of the incident.
4.7 EDUCATION
According to Samuel, the educational expenses of children per head come to around Rs. 6000/- approx. per year. Of this, the UNHCR contributes an amount of Rs. 1500/- and the rest of the sum is sourced from donors and well-wishers. The UNHCR’s global mandate is to provide educational assistance only up to the 10th standard, under its “Special Assistance program.” There is a strong commitment in the Burmese community to both primary and higher-level education, but many can simply not afford it, especially those who have had their SA cut off, or those with large families or additional dependants to provide for. For most, the education allowance provided by UNHCR does not cover the actual costs of a child’s education. Furthermore, according to UNHCR policy, if a child is more than four years behind in school, they are termed “over-age.” “Over-age” children are ineligible for the general education reimbursement program. Consequently, some refugee children are unable to access their full rights to development and equality as stated under the Convention of the Rights on the Child (CRC), to which India is a signatory.
According to Neng Boi who works in a Burmese community organization, a good lot of the children pursue their education at Oxford Senior Secondary School situated in Vikaspuri. The refugee children studying at the abovementioned school avail tuition fee waivers as the school is owned and run by a Burmese Indian who knowing the financial crunch of the refugees charges no fees from them. That apart, children of Burmese refugees also frequent Government-run schools and missionary schools in the area. However, the stark reality is that a lot of parents are still unable to bear the expenses of purchasing books and other materials despite the waivers due to severe economic constraints.
Education being a state as opposed to federal responsibility in India, on of the requirements of admission into any of the state colleges is a ‘domicile certificate’ which confirms that his or her parents are legal residents of that state. If one is not a legal resident of the state, he/ she is not eligible to apply for admission. The result is that Burmese refugees who are studying in Universities and Colleges in Delhi have enrolled as ‘foreigners’ which means that they have to pay a higher fee and most of them cannot afford. Even with generous grants from international sources, it is difficult for most refugees to meet their living costs while they pursue higher education.
Ko Moe has applied for refugee status to the UNHCR and his application is in process stage. He is currently pursuing his Masters in Human Rights and Duties from Jamia Mills University in Delhi. He relies on a scholarship from an international humanitarian NGO for his educational and living expenses in Delhi. However, he is unable to meet his requirements as his college tuition fees account for Rs. 1,08,000/- due his status as an international student.
Refugees who arrived in India after completing their undergraduate and graduate-level studies in Burma are unable to further pursue their education due to legal impediments. Usually, most cannot prove their qualifications because they did not bring their educational certificates with them or due to non-recognition of their certificates by Indian universities as in the case of Manlun, a Chin refugee. While in Burma, Manlum was a science student pursuing the 12th standard from the University of Pakokku in Magwe Division of Myanmar. However, here in India he is unable to further pursue his studies in the light of the fact that the Indian colleges do not recognize his Burmese school leaving certificate.
4.8 BIRTHS AND DEATHS
As per Section 3 of the Indian Citizenship Act, 1955 every person born in India on or after the 26th January, 1950 automatically becomes a citizen of the country by birth. Thus, Burmese refugees born in India are entitled to Indian citizenship. However, some Burmese refugees even though born in India have no Indian Birth Certificates. Usually, if a child is delivered at a Government hospital or a private clinic, a Birth Certificate is easily issued from the said authorities in a few days. But, in instances where the child is born at home no Birth Certificate can be availed of. In such circumstances, according to Samuel, the UNHCR is intimated of the birth of the child if the parents or one of the spouses is a UNHCR- recognized refugee. The UNHCR Office then makes an entry in the UNHCR Certificate of the parents or the spouse as the case may be and the child is recognized as a refugee child. The Birth Certificate comes handy for the purpose of admission in schools and children not possessing the said document are left at a disadvantage.
Comparable is the case with Death Certificates which is a legal requirement before the burial of the dead person. According to Jonah, if a Burmese refugee dies in a hospital/clinic a Death Certificate can be issued without much a hurdle. However, in the event the person passes away at home, a police enquiry into the matter becomes necessary before a Death Certificate can be obtained. If the death is of a UNHCR-recognized refugee the Office is informed of his demise. Conversely, if the death person was an unrecognized refugee and no Death Certificate was issued in his name, there is no official record of the person that he ever lived or died.
In cases of death in the Burmese community, the major problem that haunts the refugees is the non-availability of burial grounds. The Burmese Christian community fare better in this regard as the Christian refugees usually have an understanding with the local churches in the area for the use of their burial sites for the purposes of cremation. So, in the event of a Buddhist death, he is presumed to be a Christian. However, burial at a Christian cemetery usually proves a costly affair as they are situated in far flung areas of Delhi which makes transportation costs very high. Such was the case with Ninzi when her uncle passed away recently. A Death Certificate was issued by a hospital with the assistance of the local church. He was buried in a Christian cemetery some 20 kms from the place they lived which burdened her financially.
Ko Moe is a Buddhist and on being asked how and where the Burmese Buddhists in Delhi go about in instances of death in the family, he tells us that the Buddhists usually bury the deceased but there are occasions when they burn the dead. However, in Delhi due to the non-availability of burial grounds (especially in the case of the Buddhists) they more than often burn the dead and retrieve the ashes. He also pointed out that there are unwarranted formalities even in events such as deaths as prior intimation to the police is necessary before the burial.
4.9 ARRESTS AND LEGAL RECOURSE
Without a secure legal status, and with limited capacity for economic self-sufficiency, Burmese refugees are prone to frequent arrests and detention with no legal recourse. There exist numerous organisations, committees, councils and groups within the Burmese community in Delhi, most of them related in some way to the pro-democracy movement and political activities. A substantial number of Burmese refugees work in these organisations and carry out political work.
Manlun is a UNHCR-recognized refugee and a vibrant activist of the Burmese movement. He has been arrested by the authorities as many as 4 times for staging demonstrations and protests. Each time he was detained for hours in a stretch without being told the grounds of his arrest. He had no access to legal counsel and was released only after Burmese community leaders furnished bail bonds.
Nathan, a political activist of the Burmese movement, has been arrested on 3 occasions. On one such incident during a mass demonstration against the Burmese military junta in Delhi, he and his fellow activists numbering to around 60 persons were arrested on serious charges and cases were initiated against them. The case went on for a period of 5 years from 1998 to 2003 when they were finally acquitted. The fees would have been enormous had it not been for a benefactor who paid for their lawyer’s charges. All the same, each of them had to cough up an amount of Rs. 500 for the legal service rendered.
In Ninzi’s case, she was arrested on one instance which was during the mass protests outside the UNHCR’s office some years back. Though the protests were relatively peaceful, she alongwith other Burmese protesters were arrested and detained for 7 hours without any recourse to legal aid. Their release was affected by the initiative of Burmese community bodies and NGOs sympathetic to the Burmese cause.
It might be noted that the UNHCR is supposed to provide legal aid to its recognized refugees. In 1996, UNHCR sub-contracted an NGO viz., the Public Interest Legal Support And Research Center (PILSARC) to provide legal services to the refugees. However, not one refugee interviewed including community leaders had ever heard of the group or consulted with them. Usually, refugees turn to the Burma Lawyers’ Council for legal recourse. However, the said body is practically non-functional in Delhi as the lone lawyer who constitutes the Council does not possess a license. This, coupled with economic considerations, Burmese refugees cannot afford the expenses of litigation which leaves them vulnerable to arbitrary actions by the authorities. In fact on one occasion, according to Samuel, Burmese refugees attending a community gathering at the Burmese Community Resource Centre in Vikaspuri were severely beaten up by the local police for consuming meat at the premises on a complaint by the landlord and local residents of the area.
[1] The Other Media & Mizzima News, “A Nation And Her People Under Siege: Burma And Her People In Diaspora”, A Dossier, August 2004, p. 43.
[2] United Nations 1951 Convention relating to the Status of Refugees
[3] With regard to the ICCPR India has reserved its right to apply its own municipal law in relation to foreigners. India’s reservation reads:
With respect to Article 13 of the International Covenant on Civil and Political Rights, the Government of the Republic of India reserves its right to apply its law relating to foreigners.
[4] Article 22 para. (1) states:
State Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in this Convention and in other human rights or humanitarian instruments to which the said States are Parties.
[5] (1991) 3 SCC 554
[6] 1994 Supp (1) SCC 615
[7] Louis de Raedt v. Union of India, AIR 1991 SC 1886 at p. 1890.
[8] Writ Petition (Civil) No. 720 of 1995.
[9] Article 33 Para. (1) states:
No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
[10] AIR 1984 SC 667
[11] AIR 1999 SC 625
[12] 1997 6 SCC 241
[13] It is to be emphasized that even the principle of non-refoulement is not an absolute principle. Para. (2) of Article 33 states:
The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
[14] Writ Petition (Criminal) No. 583, 25.09.1992.
[15] NHRC Order, Case No. 10/26/99-2000
[16] Gauhati High Court, Civil Rule No. 515 of 1990, Order dated 11th September 1990.
[17] Gauhati High Court, Civil Rule No. 516 of 1991, Order dated 26th November 1991.
[18] Gauhati High Court, Civil Rule No. 981 of 1989, Order dated 20th September 1989.
[19] Gauhati High Court, Civil Rule No. 1847/89, Order dated 17th November 1989.
[20] According to UNHCR’s global guidelines, any refugee claimant may appeal a negative decision concerning refugee status. UNHCR must also inform the claimant why his/her application has been rejected.
[21] Name changed to protect identity.
[22] Name changed to protect identity.
[23] Name changed to protect identity.
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