By Amartya Sahastranshu Singh and Atika Chaturvedi 23 January 2022
Introduction
In the past decade, the number of refugees and internally displaced people have sharply risen. According to the United Nations Human Rights Council(UNHRC), the number of internally displaced people augmented from 25 million in 2010 to 48 million in 2020, and the number of refugees shot up to 20.7 million in 2020 from 10.5 million in 2010. To tackle this growing issue, the UN General Assembly adopted the New York Declaration on Refugees and Migrants, 2016, where the Member States agreed to work towards a “global compact on refugees” and a “global compact for safe, orderly and regular migration”. The 2017 Global Report on Internal Displacement (GRID 2017) analysed the reasons for the internal and international displacement of people, where it stated that climate change, inter alia, is one of the major reasons for this phenomenon. It extended that the problem of climate change needs to be addressed because this is an issue that has majorly accelerated the occurrence of internal and international migration.
According to research published at Othering and Belonging Institute at UC Berkeley, ‘climate refugees’ are individuals who have been forcibly displaced, within or outside their nation-state borders because of short and long-term natural disasters or environmental degradation caused (or exacerbated) by the climate crisis. However, for a long time, climate refugees had no protection or recognition in the international space. For instance, joint research in 2013 by the University of Dhaka and the University of Sussex revealed that there were around 200,000 Bangladeshis that were left homeless due to river erosion each year. These people and millions of others worldwide who got displaced due to climatic disturbances received no legal recognition.
However, in recent times, this issue witnessed a lot of public discourse and attention. Policies and conventions such as the Kampala Convention, Migrants in Countries in Crisis Initiative (MICIC) guidelines, have also been formulated. But despite these international developments, India has neither recognised the concept nor seemed to have any intention of legislating upon it. Irrespective of India’s ignorance, statistics reveal its striking relevance for the country. In 2020, for instance, 39 lakh people were displaced due to natural calamities, rendering India one of the worst-hit countries in the world in terms of internally displaced people. Another study projects 32% of the country’s coastal region to be at risk of flooding and intensified storm surges, which is likely to affect more than 7.6 million people in these areas. However, India does not recognize ‘climate refugees’ and perhaps, rightfully so. In the authors’ opinion, if the country’s demographic problems are taken into account, a straightforward approach might not be in its best interest. Therefore, in this paper, the complexities surrounding the issue of ‘climate refugees’ in India and regulations for dealing with the same have been analysed.
India’s Approach Towards Refugees And Climate Refugees
To begin with, neither is India a state party to the Refugee Convention of 1951 and its 1967 Protocol nor has a dedicated refugee protection framework. The reason why India for the same, however, is not officially stated. However, a logical construction from the practices of India might reveal the underlying rationale. In the 54th session of the Executive committee meeting of the UNHCR in 2003, the representative of India addressed the issue of the definition of ‘refugees’ being narrow and not including the fundamental actors of the cause such as poverty and deprivation. Apart from this, critics have inferred several reasons such as it being a threat to the sovereignty of the country, the demographic sensitivity of these regions, etc. have led India, as well as other SAARC countries to not sign the convention or protocol. However, it’s noteworthy that though India has not signed this convention, India has signed several other international conventions and protocols related to torture, rights of the child, elimination of racial discrimination, etcetera, and India also abides by the international customary practices related to human rights and refoulment. But how sufficient and effective are these practices when the country lacks a proper framework for governing such pressing issues? How will the future socio-political changes impact the lives of climate refugees in the country without a statutory backup to protect them?
At this juncture, it is pertinent to note that some argue that India abodes a diverse group of refugees ranging from Buddhist Chakmas to Rohingyas to even people from Sudan, and does not need any such framework because it already does its duty by protecting them. Also, there are already some laws that deal with the matter which include the Passport Act, 1920, the Foreigners Act, 1946, and the Citizenship Act, 1955. According to Sections 3 and 4 of the Passport Act, 1920, if someone trespasses into India without their passport, he/she can be arrested by the police (which works under the State Government), on reasonable suspicion, without a warrant and can be imprisoned for a period of three months with a fine of no upper cap. Furthermore, according to Section 9 of the Foreigners Act, 1946, if the nationality of a person is unknown, the burden of proof to prove their nationality lies on that person. In cases of uncertainty, the Central Government can determine their nationality based on parameters defined in Section 8 of the Act and this determination cannot be called in the court. It can be seen that there is active involvement of the government, both Central and State, in these issues and considering the strength of political encroachment here makes it crucial to legislate concrete laws for refugees that protect their interests. The prime example of such cases is the Citizenship (Amendment) Act, 2019, which was heavily criticized for being communal and discriminatory towards a certain class of people and a threat to national security.
Moreover, the only piece of legislation that remotely deals with rehabilitation in case of the climate crisis is the Disaster Management Act, 2005 which formulates disaster plans, prevents or alleviates the impacts of disasters, and coordinates responses actions. But this provision neither gives legal recognition to climate refugees nor talks about people who flee from other countries into India.
Changing Status Of Climate Refugees In The International Space
Article 1 of the United Nations Convention relating to the Status of Refugees, 1951, which was formulated to manifest the goals of the Universal Declaration of Human Rights in the context of refugees, defines refugees as persons who, “owing to 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” This definition excluded climate refugees from its purview. This meant that they could not avail themselves of the same recognition and rights as general ‘refugees’.
However, in 2016, international support was given to the people affected by natural disasters in the guidelines of Migrants in Countries in Crisis Initiative (MICIC). The guidelines mentioned that Goal 10, i.e. goal of reducing inequality, of the 2030 Agenda of Sustainable Goals should be strengthened by adopting well-managed policies for safe and orderly migration of people. It exemplified the Nansen Initiative, which was a solution for the cross-border displacement of people due to disaster and climate change. Furthermore, in 2018, a draft of the United Nations Intergovernmental Conference to Adopt the Global Compact for Safe, Orderly and Regular Migration also mentioned climate refugees. In its Objective 2 (h) to 2(l), it addressed the development of strong and resilient policies for inclusion, adaptation, evacuation, and protection of people displaced by climate change, environmental degradation, and natural disaster.
Although the 1998 UN Guiding Principles on Internal Displacement does lay down a framework to protect victims of natural disasters who ‘do not cross international borders, these principles are not enforceable and in reality, are far from being implemented correctly. Principle 5 of the guidelines states that authorities shall ensure the protection of the human rights of people in the context of preventing conditions that might lead to the displacement of people. Principle 6 further extends that every person has the right to be protected from arbitrary displacement from his or her place of habitual residence. In a way, the countries or the international community, in general, is not working enough towards preventing climate change. This act or abstinence to act might be construed as an action that has led to arbitrary displacement of people from their habitual residence and has violated their human rights.
However, there have been some instances where the rights of climate refugees have been duly protected and they have been coordinated within a concrete legal framework. A classic example of that is Kampala Convention for protecting and assisting the internally displaced people in Africa. Adopted in October 2009 by the African Union and brought into force in December 2012, the Convention is a legally binding regional instrument in the world that imposes an obligation on states to protect and assist the internally displaced people, including people displaced by natural calamities. Article 5(4) of the Convention says that “States Parties shall take measures to protect and assist persons who have been internally displaced due to natural or human-made disasters, including climate change.” Although this Article readily protected internally displaced people, which according to Article 1(g) of the Convention are people who flee from their habitual residence due to violence, natural or anthropological disasters, etcetera, but have not crossed the international borders, it completely ignores cross border displacement. However, what is important here is that it is the first official document that puts an obligation on the legal recognition of people displaced due to climate changes, either natural or man-made.
Should India Legally Recognize Climate Refugee?
Should India draw legislation for climate refugees, similar to the Kampala Convention considering that the intensity of environmental turmoil in Africa and Asia is not very different?
This is where the socio-political, ethnic, and demographic problems of the country come into the picture. There are several factors that need to be considered before putting forth any such recognition to refugees or climate refugees. The primary problem of the country is the lack of resources and infrastructure in sustaining a sudden spike in population. India is already facing economic distress and putting forth legislation that welcomes more population can prove hazardous for the country. It neither has the resources nor the necessary infrastructure to sustain the population. This country is already home to around 250,000 refugees that are vulnerable to poverty and neglect. Thus, legislating policies that favour the addition of such a population may do more harm than good to the country.
Apart from this, India believes that implementing such a policy might be a threat to its sovereignty. The cross-border movements of India emanate from its past and had serious implications on the structure and composition of labour market, political and demographic stability, and security of the state. Myron Weiner, an American Political Scholar on India, has addressed it multiple times that the borders of India are porous and lack any strict political or military obstruction. Thus, there have been free cross-border movements that have led to imbalances in the religious and linguistic composition of the country. The best example of that is the condition of Assam where the number of migrants increased in such a drastic way that it started tainting the cultural and linguistic composition of the population. That is why Assam Accord, 1885, was signed between the State and the Government of India which demanded the identification and deportation of those illegal foreigners, predominantly the Bangladeshi immigrants.
However, the existence of these challenges and issues does not necessarily cease the constitutional values of the country. Some of the fundamental rights, that are enshrined in Part III of the Constitution of India, not only protect the citizens of India but also foreigners or ‘aliens’, as the Constitution calls it. In the case of the State Trading Corporation Of India Ltd v. the Commercial Tax Officer, 1963, the Supreme Court laid down a list of fundamental rights that were available to non-citizens. In that judgment, it was said that the Right to Equality and Equal Protection of Law, mentioned under Article 14 is granted to citizens as well as non-citizens. Similarly, Article 21, i.e. the Right to Life and Personal Liberty, is also granted to citizens as well as non-citizens. Thus, a violation of these fundamental rights of Climate refugees will impede the constitutional values of the country.
In the aforementioned statutes of India which deal with the issue of refugees, i.e. the Passport Act and Foreigners Act, it was deduced how the government had tight control over the matter and how the same was vulnerable to political misconduct. Further, Articles 245 and 246 of the Constitution also empower the government to legislate laws for foreign nationals and migrants. But this does not strip these people off of their constitutional rights. In the case of Maneka Gandhi v. Union of India, the Supreme Court laid down the rules of ‘due process clause in Article 21. The Court said that although Article 21 says, “No person shall be deprived of his life or personal liberty except according to a procedure established by law”, the government cannot establish any procedure which is arbitrary and violative of the basic structure of the constitution. It has to follow the ‘due process’ as well, which means the established procedure shall be ‘just, fair, and reasonable’ and not ‘arbitrary, unfair, or unreasonable. Article 14, the Right to Equality, is a part of the basic structure of the Constitution. Hence, in the case of climate refugees, any law that discriminates them arbitrarily is violating the basic structure. Moreover, even if the government wishes to treat them differently, such policies must pass the tests of reasonable classification laid down in the case of State of West Bengal v. Anwar Ali Sarkar. These include two tests:
- Intelligible Differentia: In this test, a particular classification must be treated alike and the unlike must not be treated alike.
- Rational Relation: In this test, the made classification should have a nexus with the legislative intent of the statute or the act.
However, in the case of climate refugees, the state did not even legislate a law, let alone qualifying arbitrariness tests. How fair will a lack of legislation be for the rising concern of climate refugees? There already are several studies that reveal that refugees from Sri Lanka or Tibet receive sufficient government protection, security, and attention but Muslim migrants from Afghanistan or Bangladesh face discrimination and neglect. This begs the question that what if the country witnesses a political shift and the new authorities choose to do otherwise? It is an assumption that is not only strong but also backed by historical evidence. CAA, for instance, which was the product of the ideology of the current government caused massive uproar across the country for being discriminatory. A similar example is the Assam Accord which was an ideology of the then government. This shows how a change in the political scenario of the country changes its approach towards these people.
It is necessary for India to realise that this problem is persistent and will increase in the coming time. Neglecting the problem on the pretext of social and political imbalance is not an acceptable excuse for not legislating laws that regulate climate refugees. Therefore, it should be one of the prime priorities of the country to enact laws on this matter.
Conclusion
In conclusion, the authors would like to point out that India is one of the highest refugee receiving countries in the world. As mentioned earlier, there are no laws for regulating refugees. Neither has India signed the 1951 convention nor the following protocol. Also, it has been established that some refugees in India have been treated properly while others have been discriminated against. We have also shown how political shifts affect the life of refugees. Hence, we vehemently believe that India needs concrete laws for climate refugees where their human rights are protected and their life and liberty are secured. Human life and dignity is a right that is non-negotiable despite the socio-political problems of a state.
The first step that the government can take in order to regulate the refugees better is giving them concrete legal recognition. India believes that the definition given by the 1951 convention is incomplete and Euro-centric. But the country can certainly mold the definition in its own context and extend protection to the people. The government can also help share the burden of proof for proving the refugee’s country. This will not only help the country in recognising its citizens but also recognising and regulating non-citizens. Furthermore, the government can also extend their judicial protection by providing them with the right to appeal which is missing in the current laid laws. And finally, the country can set up systems for their support as well as managing their deportation, which will help the country in tackling these problems better.
One might argue that such welcoming policies will lure more refugees and climate refugees into India. However, such arguments hold no water because despite the lack of laws the cross-border displacement still exists, and ignoring the problem will not make it stop, rather, dealing with the issue in a more systematic and statutory way will. It will ensure that these peoples are regulated and the interest of the country is also protected at the same time. Hence, simply put, what is required is legislation that gives them legal recognition, ensures their protection, and administers their mobility, integration, and stability that not only provides legal security but also avoids demographic disturbances.