Human Right and Protection of Tibetan Refugees in India-Administrative and Legal Aspect

HUMAN RIGHT AND PROTECTION OF TIBETAN REFUGEES IN INDIA-ADMINISTRATIVE AND LEGAL ASPECT

Dissertation submitted in part fulfillment for the requirement of the Degree of

LL.M

Submitted by Supervised by

ARYA SINGH Dr. MAHESHWAR SINGH

National Law University Delhi (India) 2016

TABLE OF CONTENTS

TITLE Page Number DECLARATION BY THE CANDIDATE iii. SUPERVISOR'S CERTIFICATE iv. ACKNOWLEDGEMENT v. LIST OF ACRONYMS AND ABBREVIATIONS vi. TABLE OF STATUTES vii. LIST OF CASES viii. CHAPTER-1: 1.1INTRODUCTION 1 1.2 RESEARCH OBJECTIVE 5 1.3 RESEARCH QUESTIONS 6 1.4 RESEARCH METHODOLOGY 6 CHAPTER-2: CHINESE MILITARY TAKEOVER IF TIBET, TIBETAN REBELLION 7 AND THE REFUGEE CRISIS 2.1 TIBET AT GLANCE 7 2.2 HISTORICAL BACKGROUND 7 2.3 THE INVASION OF TIBET 14 2.4 TIBET UNDER CHINESE COMMUNIST RULE 15 2.5 QUESTION OF GENOCIDE IN TIBER, ITS LEGAL STATUS AND 17 TIBETAN VIOLATION OF HUMAN RIGHTS 2.6 EXODUS OF TIBETAN REFUGEES TO INDIA 20 2.7 INDIAN POLICY TOWARDS TIBETAN REFUGEES 21 I. THE FIRST WAVE OF ARRIVALS (1959-1979): TIBETAN 22 REFUGEES ENTERING INDIA AFTER THE LHASA UPRISING, AND THE FIRST TIBETAN SETTLEMENTS IN INDIA. II. THE SECOND WAVE OF ARRIVALS (1980-1993) 25 III. THE THIRD WAVE OF ARRIVALS (1994-1999) 26 IV. REFUGEE ARIVING BETWEEN 2000 AND THE PRESENT 28 CHAPTER -3: THE STATUS OF TIBETAN REFUGEES RESIDING IN OR 31 TRANSITING THROUGH INDIA 3.1 INTRODUCTION 31 3.2 CURRENT POPULAION OF TIBETAN LIVING IN INDIA 32 3.3 SETTLEMENTS 32 3.4 EDUCATION 34

3.5 PROPERTY OWNERSHIP 35 3.6 EMPLOYMENT 36 3.7 FREEDOM OF SPEECH, EXPRESSION AND ASSEMBLY 38 3.8 RELATIONS BETWEEN TIBETAN & INDIAN COMMUNITIES 41 IT CHAPTER-4: LEGAL OVERVIEW: AN INDIAN AND INTERNATIONAL 43 FRAMEWORK 4.1 INTRODUCTION 43 4.2 INDIAN AND INTERNATIONAL LEGAL FRAMEWORK 44 4.3 THE AMBIGIOUS POSITION OF INDIA 48 4.4 DOCUMENTATION 56 I. REGISTRATION CERTIFICATES (RCs) 57 II. IDENTITY CERTIFICATES (ICs) 60 III. SPECIAL ENTRY PERMITS 61 4.5 CITZENSHIP 62 I. THE FORMAL STATE OF INDIAN LAW 62 II. APPLICATION IN PRACTICE OF TIBETANS 65 CHAPTER-5: ROADBLOCKS IN FORMULATING A LAW 69 5.1 ROADBLOCKS IN FORMULATING A UNIFORM LAW IN INDIA 72 5.2 THE REFUGEE LAW AND ITS BENEFITS 75 CHAPTER-6 RECOMMENDATION AND CONCLUSION 80 BIBLOGRAPHY ix

DECLARATION BY THE CANDIDATE

I hereby declare that the dissertation entitled "Human right and protection of Tibetan refugees in India-Administrative and Legal Aspect" submitted at National Law University, Delhi is the outcome of my own work carried out under the supervision of Dr. Maheshwar Singh, Associate Professor, National Law University, Delhi.

I further declare that to the best of my knowledge the dissertation does not contain any part of work, which has not been submitted for the award of any degree either in this University or any other institutions, without proper citation.

Arya Singh

7/LLM/15

National Law University, Delhi

Place: New Delhi

Date:

iii

CERTIFICATE OF SUPERVISOR

This is to certify that the work reported in the LL.M. dissertation entitled ""Human right and protection of Tibetan refugees in India-Administrative and Legal Aspect", submitted by Arya Singh at National Law University, Delhi is a bonafide record of her original work carried out under my supervision. To the best of my knowledge and belief, the dissertation: (i) embodied the work of the candidate herself; (ii) has duly been completed; and (iii) is up to the standard both in respect of contents and language for being referred to the examiner.

Place: New Delhi Dr. Maheshwar Singh

Date: Associate Professor

National Law University Delhi

ACKNOWLEDGEMENT

It gives my immense pleasure to express my deep and profound gratitude to Dr. Maheshwar Singh, whose efforts and dedication made this study conceivable and viable in its present form. His untiring assiduity and stimulating response have been a great source of inspiration in completion of this work. Without his guidance, insight, motivation and most definitely, his patience this thesis would not have seen the light of day.

Beside my supervisor, I would also like to thank Dr. Rajesh Kharat, Associate professor at Jawaharlal Nehru University for his guidance and insightful comments on the status of refugees in India. A lot of the material used in this work is from his personal collection.

I also feel pleasantly duty bound to further acknowledge the help extended to me by the Library staff of National Law University, Delhi, Jawaharlal Nehru University, Tibet House, Institute for Defence Studies and Analyses and American Center, New Delhi.

I would also like thank my friends, Oshin Shah, Jagrit Vyas, Parveer Singh Ghuman and Kamakhya Sharma whose solidarity and empathy has been of vital importance during the final months of working on the thesis and they have not only tolerated my constant complaints but also cheerfully engaged in several battles of wits and helped me marshal my arguments.

Above all, I owe a lot to my parents, Mrs. Jaya Singh and Mr. Awadhesh Kr. Singh and my dearest brother Kaustubh Singh, who encouraged and helped me at every stage of my personal and academic life. They have suffered silently in the hope that this dissertation see the light of this day.

LIST OF ACRONYMS AND ABBREVIATIONS

Central Tibetan Administration CTA

Executive Committee of the High Commissioner's Programme ExCom

Government of India GOI

Indian Centre for Humanitarian Laws and Research ICHLR

International Commission Jurists ICJ

National Human Rights Commission NHRC

People's Republic of China PRC

Registration Certificates RCs

Special Entry Permit SEP

Tibetan Children's Village TCV

Tibetan Homes Foundation THF

Tibetan Justice Center TJC

United Nations High Commissioner for Refugees UNHCR

United Nations High Commissioner of Refugees UNHCR

United States Committee for Refugees and Immigrants USCRI

LIST OF STATUTES

CONSTITUTION

 The Constitution of India, 1950

LEGISLATIVE ACTS

 Foreigners Act of 1967.  The Registration Act, 1939.  The Passport Act of 1920.  The Passport Act of 1967.

INTERNATIONAL CONVENTIONS & COVENANTS

 Universal Declaration of Human Rights.  United Nations High Commissioner for Refugees  United Nations 1951 Convention Relating to the Status of Refugees.  1967 Protocol on Refugees.

vii

LIST OF CASES

1. Dr. Malavika Karlekar v. Union of India, Writ Petition (Criminal) No.583, 25.9.92 2. Hans Muller of Nuremberg v. Superintendent, Presidency Jail, Calcutta AIR 1955 SC 367 3. Khy-Htoon and others v. The State of Manipur, Gauhati High Court, Civil Rule No. 515 of 1990. 4. Louis De Raedt v. Union of India (1991 (3) SCC 554 5. Mr. Bogyi v. Union of India, Gauhati High Court, Civil Rule No. 1847/89. 6. Ms. Zothansangpuli v. The State of Manipur, Gauhati High Court Civil Rule No. 981 of 1989. 7. Namgyal Dolkar v. Ministry of External Affairs, W.P (C) 12179/2009 (High Court of Delhi). 8. National Human Rights Commission v State of Arunachal Pradesh SCC 742(1996). 9. State of Arunachal Pradesh v. Khudiram Chalana, (T 1993 (3) S. C. 54

viii

CHAPTER-1

1.1 INTRODUCTION

When we turn our eyes to the world, we tend to see a lot of people who try to escape the conditions and circumstances which becomes excruciating for them. They fight for their freedom, safety from subjugation, from a risk to life and liberty, from persecution, from denial of their basic rights, from grinding poverty struggle, from war or civil strife or due to natural disaster. These factors leaves them with no other option then to flee from human rights violations and socio-economic political uncertainty and seek shelter in another country. Hence, they are termed as refugees.

Article 1 para. 2 of the 1951 Refugee Convention defines the ‘REFUGEE’ as “A person 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, unwilling to avail himself of the protection of that country.”1

From time immemorial, the international community has faced a tragedy, millions of people have been deracinated, people have fled because of terror and genocide inflicted by the suppressing government because of their ethnic background which has lead men, women and children stagger without direction into neighboring countries to seek out shelter and protection. Refugees are basically victims of human rights violation. In fact, in today's scenario refugees are more likely to suffer double violation, like the initial violation happens in their own country of origin which leads them to flee to another country and then the denial of their basic fundamental rights and freedom which should be guaranteed by the host country. There are many instances where refugees had to face such plight, but I choose to elaborate on Tibetan refugees seeking asylum in India.

Tibetan people are known for their entrenched faith in religion and Buddhism which has governed every aspect of their lives. But in 1951, Chinese incursion in Tibet led to

1 Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S 137 [hereinafter 1951 Convention].

1 human rights violations because of which Dalai Lama had to flee from his country. The attempt made by Dalai Lama to seek a peaceful solution to the violence went unheard in the International community. This struggle was followed by exodus of Tibetan people unable to survive under the dominance of China. Finally, Dalai Lama and 80,000 of his followers flee to India which resulted in the mass influx of Tibetan refugees into India and till date it continues. (History, has been briefly discussed under Chapter 2).

India is known for its age old tradition of serving humanitarian protection to refugees and asylum seekers. No doubt India has been exceptionally generous towards the Tibetan refugees living in India. It has not only allowed them to enter India but also initiative has been taken to provide them with proper settlement, school and medical facilities, with respect to the earliest arrivals. Hence India deserves a special mentioning for the way it has managed to hold 2,03,383 refugees within her boundary without any specific domestic legislation or any formal obligation based on International documents.2 But through human rights perspective due to the lack of specific refugee legislation or any formal recognition of 1951 Convention on Refugees or the 1967 Protocol has led to varying treatments of different refugee groups within territory of India.

According to the 1951 Convention relating to the Status of Refugees and the following 1967 Protocol, which gives the definition of "refugee" under the International law, also lays down certain rights and services which the host states must afford to its refugees. Central to the assessment, it becomes clear that India lacks a legal obligation to facilitate protection or safety to its refugees. William Gaddis has stated - "Justice?- You can get justice in the next world. In this one you have the law."3 But refugees residing in India have neither law nor justice. This is due to India's abstention from the 1951 Convention relating to the Status of Refugees and the following 1967 Protocol. Only with an exception of the customary international practice of non-refoulement and the compulsion to provide asylum which has been mentioned under Article 14 of the Universal Declaration of Human Rights (UDHR), India is not bound by any international, regional or national obligations against

2 Human Rights Law Network, 'Report Refugee Population in India 2014', httpa://www.ssrn.com 3 THE INDIAN SOCIETY OF INTERNATIONAL LAW , ISIL YEAR BOOK OF INTERNATIONAL HUMANITARIAN LAW AND REFUGEE LAW , VOLUME 3 , (2003) p.207

2 the refugee population on its soil.4 Despite to this fact, India's denial to accede to the 1951 Convention, India argues that its current policy on refugee is in compliance with the International norms. However India has no specific national law on refugee and no regional agreement on the current matter. The only mention of foreigners in Indian Law are under the Registration of Foreigners Act of 1931, the Foreigners Act of 1946 and the Foreigners Order of 1948. Under all these Acts, the term foreigners has been defined as "a person who is not a citizen of India," any same law is applied on refugees and migrants. It becomes pertinent to draw a distinction between foreigners, refugees and migrants. These three terms holds three different meanings. (Definition has been mentioned in the following chapters) hence, cannot be treated under one broad head, like "foreigners". Under the purview of these Acts, it allows the government to impose restrictions on movement either domestically or internationally, employment opportunities, freedom of possession, foreigner's possession and other activities, mostly political in nature. For an example, Tibetan refugees are permitted in India only one condition that they refrain themselves from political protest against China, which indicates a clear suppression of their basic right to political expression which has been afforded by the UDHR.5 This political suppression was quiet evident when Chinese Prime Minister Wen Jiabo's visited to India in 2010. Tibetan refugee activists were arrested and refugee camps were put under surveillance to curtail protest against Chinese government. In accordance to Human rights law, it guarantees refugee fundamental civil and political rights, but unfortunately Government of India denies these rights to Tibetan refugees.6

As India lacks any legal obligation, so it allows the government to alter its refugee policies according to its political interests, which results into unstable refugee policy. For an example, the rights and services provided to Tibetan refugees according to their date

4 Feller, Erika, "Asylum, Migration and Refugee Protection: Realities, Myths and the Promise of things to come." International Journal of Refugee Law, (2006), p.509-536 5 ibid. 6 Jessica Falcone, Wangchuk Tsering, "We're Not Home": Tibetan Refugees in India in the Twenty-First Century." India Review(2008), p. 164-199.

3 of arrival in the country, it shows a clear case of disparity in the treatment.7(This point is further elaborated under Chapter 2).

This begs the question, whether refugees who are treated as a special class of aliens, possess rights over and above those rights and services which are guaranteed to aliens in general. Moreover, up to what extent does the existence of refugees, which is defined under the International law as special category of aliens, enforces legal obligations on the Government of India in the absence of any specific domestic legislation on this particular subject?8

In 1949, when the United Nation debated on the issue related to legal protection versus material assistance for refugees, in response to this, India argued that, "the guarantee of legal rights without concomitant material assistance was a hollow concept"9 However, looking into the current situation, it has become clear that as Tibetans continue to cross Indian borders, and on the part of India, it has not only decreased the rights of refugees provided to the newcomers, but it has curtailed the services provided to them. According to the current situation, repartition of these refugee communities does not seem to be possible in the near future, so India need to prepare itself by establishing a national law on refugee and improve its policies towards the refugee communities- thereby facilitating the refugees with proper protection and treatment as per the international standards.10

7 Audrey Prost, "Contagion and its Guises: Inequalities and Disease among Tibetan Exiles in India." International Migration (2008) p.55-70. 8 RAGINI TRAKROO ZUTSHI, 'REFUGEES AND THE LAW' , (2011), p.7. 9 Oberoi, Pia,"India and the International Refugee Regime". In Exile and Belonging: Refugees and State Policy in South Asia. (2006), New Delhi: Oxford University Press. In this section, Oberoi discusses India’s relation, or lack thereof, with the United Nations High Commissioner for Refugees (UNHCR). India decided not to participate in the UNHCR’s proposed World Refugee Year (WRY), a decision that had both financial and political motivations. However, as the Tibetan refugee population grew, India agreed to the establishment of a UNHCR branch office, and consequently developed a working relationship with the UNHCR. However, this relationship was challenged when China joined the UN, and in 1975 the UNHCR discontinued its assistance to India. Then, four years later, the UNHCR reopened its office in India to cater to the Afghan asylum seekers. Although India refused to formalize the UNHCR’s status, it did request membership to the UNHCR’s Executive Committee, which was granted in 1995. Oberoi does an excellent job of presenting the complex and tumultuous relationship between the UNHCR and India, without sacrificing significant detail for brevity.

10 Sachs, Emily, Barry Rosenfeld, Lhewa Dechen, Andrew Rasmussen, and Allen Keller, "Entering Exile: Trauma, Mental Health, and Coping among Tibetan Refugees Arriving in Dharamsala, India." Journal of Traumatic Stress (2008) p.199-208.

William Gaddis has stated - "Justice?- You can get justice in the next world. In this one you have the law."11

Therefore, in order for India to bring its refugee law in compliance with the international community, only improving its domestic laws will be insufficient because it will repeatedly tend to reject international assistance and monitoring of refugee groups. India should make a specific legislation for the treatment of refugees and comply with the Refugee Convention or its Protocol.12

1.2 RESEARCH OBJECTIVE

Refugees by definition are victims of human rights violation. The objective of the research topic are as follow:

a) Tibet is considered to be the most glaring example of human right violation on the globe. So an attempt is made to analyze the violation of human rights of Tibetan refugees and also explain the circumstances of their exodus to India. b) To study about the situation of people who migrate from one country to another to seek shelter. Generally refugees are entitled to all basic rights and fundamental freedoms that are mentioned under the International human rights instruments but still they are barred from their own rights. Therefore protection of the refuges must be seen in a broader context of the protection of human rights. c) An attempt has been made to highlight the humanitarian assistance for the Tibetan refugees in India and to examine the role of India in providing assistance to Tibetan refugees against the backdrop of the International standards. d) Human Rights can be used as a standard for information gathering and to promote community stability and mediation of conflict in order to prevent refugee crisis before they occur.

1.3 RESEARCH QUESTION

11 ibid. 12 ibid

The dissertation seeks to explore the following fundamental questions:

a) Focusing on the issue of human rights crisis in Tibet and how Tibetans migrated to India? b) What is the status of Tibetan Refugees residing in India? c) What are the Indian policy towards Tibetan Refugees? d) Whether and if so, how India’s national law recognizes and enforces customary International legal principles? e) What are the major roadblocks in formulating a refugee law? f) Lastly, what could be the benefits of enactment of Refugee law in India?

1.3 RESEARCH METHODOLOGY The proposed study is a doctrinal study which will be carried on a legal proposition by way of analyzing the existing statutory provisions and cases by applying the reasoning power and include both primary as well as secondary sources. The research involves extensive reading of reports by various international organizations, articles published reputed journals and online legal databases. It is only after an intensive collection and study of the articles written by scholars and experts on the subject through which I am able to understand the position of Tibetan refugees in India through human right perspective. Overall, given the subject of the proposed research, methodology of doctrinal research shall prove to be most befitting.

CHAPTER-2

CHINESE MILITARY TAKEOVER OF TIBET, TIBETAN REBELLION AND THE REFUGEE CRISIS

2.1 TIBET AT GLANCE

Tibet which is popularly known as the "roof of the world".13 As Tibet is situated at the very heart of Asia, between China and India, covering 2,500 kilometers from north to south and its areas of 2.5 million square kilometers is almost one-fourth of the current total area of People's Republic of China (PRC).14 It is inhabited by the Tibetan people with a rich culture and distinct way of living which is very different from its neighboring countries. Tibetans are known for their rich culture, religion, unique language for centuries and exquisite works of arts. Tibetan civilization which goes back to thousands of years is sophisticated and has made valuable contribution to the heritage of the mankind. Tibetan culture is completely devoted to religion. They showed a great passion in the arts of building, painting and image casting, these skills are highly developed. Tibetan scholarship has prospered within Buddhist monasteries. According to the pre- modern society, Tibetan literacy was at high level, not because of the large number of literate monks and nuns, but to the fact that many ordinary people had a rudimentary ability to read and write Buddhist texts.15 These factors make Tibet distinct from other Asian countries.

2.2 HISTORICAL BACKGROUND

Tibet's first step in the historical record can be traced during the Tibetan empire period (639-842), during which the previously small Tibetan states united in a confederation surrounding the entire Tibetan plateau. During this period, the Tibetan empire fought the Chinese empire of the Tang dynasty and in 822, it achieved a treaty, which puts an end to

13 ADAMA DIENG, 'TIBET:HUMAN RIGHTS AND RULE OF LAW', (1997), p.27. 14 Hugh Richardson, 'Tibet and its History ' Boston: Shambhala,' (1984), p.15. 15 Zhang Tianlu. 'Tibet's Population Developers', Beijing Review, (1987), p.20.

7 the Sino-Tibetan conflict and thereafter China recognised Tibet as an independent country with a territory covered the entire Tibetan Plateau. 16

The characteristics which classified Tibet as a nation- shared ethnicity, territory, culture, language and religion, and these features were all merged by the shared historical experiences of the empire period.17 During the Tibetan empire period, a national cultural and political identity correlated to the territorial extent of the Tibetan plateau. It can also be traced that during the Tibetan empire period, that connection with China was not as important in cultural influence. Tibet shared cultural similarities and political contacts with Turks, Arabs, Indian and Nepalese.

As the Tibetan empire collapsed, the clans, tribes and regions of the plateau returned back to their former fractious independence and for next four hundred years, Tibet did not posses central authority. But this political vacuum was slowly filled by monastic Buddhism. During the early empire period, Buddhism reached Tibet from India and in the 11th century it was reviewed by an Indian teacher. Gradually, as the Buddhist orders founded monasteries throughout the country, the influence as well as spiritual power augmented in Tibet. In the early 13th century, Buddhist schools became the dominant economic, political and spiritual authorities in Tibet, but Tibet remained disunited because there was no school which could dominate the others. But this situation was gradually transformed with the rise of the Mongol empire, under its patronage one school dominated rest of the fragmented schools and thereafter Tibet achieved political unity.

 RELATIONS WITH THE MONGOL EMPERORS (1240-1350)

Tracing back to the history, by 1234, the Mongols had conquered almost all of the northern part of China. In 1247, Sakya Pandit, who headed the Sakya school, surrendered to Godan Khan, to avoid the Mongol conquest. Thereafter the Sakya Pandita was appointed as the representative of the Mongol authority in Tibet. In the following years, Sakya Pandita's nephew, Phagspa, managed to set up similar arrangement with Khubilai Khan. And Phagspa became Khulbilai's teacher in Buddhism and they shared cho-yon

16 Tibet the facts,op.cit. p.29. 17 ibid.

8 relationship between Mongol patron and Tibetan lamas. This enhanced the Tibetans relation with the Mongol Yuam dynasty (1271-1368). Tibet was given special treatment because of the Mongol Khan's shared personal relations with the Tibetan lamas. Under the rule of Khulbilai, Tibet was enjoyed a great degree of autonomy because of the influence drawn by the Phagspa at the Mongol court. During the Yuan dynasty, Tibet was incorporated into the administration of the Mongol empire, and was not treated as a part of China, but was known as a distinct subjugated country.18

In 1368, the Mongol Yuan dynasty collapsed and it was succeeded by the Ming(1368- 1644), it was recognised as the first Chinese dynasty to control all of China. Ming dynasty continued to respect the Tibetan official's titles which existed under the Yuan dynasty. Ming dynasty had no real interest in Tibet apart from Tibet's role in Ming relations with the Mongols.19

During theMing dynasty also, Tibet had maintained its relations with the Mongols. In 1577, Altan Khan, invited Tibetan lama, Sonam Gyastso. And Altan honored Sonam Gyatso by the name of "Dalai", which was Mongol translation of his name, and thereafter Sonam Gyatso was known as the Dalai Lama.

 RELATIONS WITH THE MANCHUS AND NEIGHBORS

In 1642 Gushri Khan of the Kokonor Mongols unified Tibet on behalf of the Dalai Lama, considering it for the first time that a Dalai Lama had achieved both temporal and spiritual rule. Conflicts such as regional and sectarian were abolished and thereafter Tibet was politically unified. In 1639, the Fifth Dalai Lama, created relations with the Manchu emperor and in 1652, Dalai Lama visited the Manchu emperor to regain the old patron- lama relationship. Chinese interpreted this visit as a nominal submission of Dalai Lama to the Manchu emperor.20

In the beginning of the Manchu Qing Dynasty, Tibet' gave importance to the Inner Asian politics just because of Dalai Lama's interest with the remaining part of independent

18 Kunsang Palijor, 'Tibet:The undying flame'. (1997),p.76. 19 ibid. 20 Tibet,' An Independent country illegal communist Chinese occupation', p.15-16.

Mongols. Later in 1682 the Fifth Dalai Lama died and at the same time the Qing was liberated of domestic rebellions and focused on the Inner Asian affairs. In 1689, Manchu negotiated on an agreement made by the Russian, which was known as the Treaty of Nerchinsk, this year can also be marked as an end of the era of the great steppe empires. After the execution of this treaty, the Inner Asian nomads were suppressed between the huge empires of Russia and China. Gradually, Tibetan influence over Inner Asia started declining.

In 1720, can be marked as an event when Qing took actual control over Tibet, Qing army entered Tibet to remove a group of independent Mongols, who came from Dzungaria, who has subsequently expanded its control over Lhasa. In 1725, Qing restructured the earlier existed administration system of Tibet by separating the Eastern Tibet province of Kham and Amdo from the Central Tibet and took control over the Tibetan frontier defense and foreign affairs. Qing basically tried to impose their authority over political succession in the Tibetan system of the joint spiritual and temporal rule. From 1792 onwards, the Qing dynasty started declining and its control over Tibet also decreased. The reforms which were brought by the Qing emperors were never fully accepted. During the nineteenth century, Qing interest was diverted towards the foreign imperialism and their interest towards the Inner Asia started decreasing.21

By the late nineteenth century, Tibetans had established autonomous governmental institutions which incorporated both secular and ecclesiastical interest. Tibet avoided the idea of foreign dependency. Nevertheless, Qing kept claiming its authority over Tibet and which was subsequently recognised by the Tibetans.

Eventually, China also claimed, that Tibet as Chinese territory and not a territory of the Manchu Qing. Despite of Chinese claim over Tibet, did not became an integral part of China, during the Qing dynasty, though Tibet was a dependent state of the Qing empire and then Qing empire was converted into a Chinese ruling dynasty and Tibet did not became a part of China.

 TIBET IN TWENTIETH CENTURY

21 ibid.

Twentieth century can be marked as an era where the Qing dynasty turn downed its authority over Tibet and begin with the age of modern nationalism in China, Inner Asia and Tibet. There was a competition going on between the British and Russian empires to spread their influence in Inner Asia, which was known as the "Great Game". Due to this attention from the two most powerful empires, Tibet became the prime focus of the International interest. Due to this reason, British Government of India, became apprehensive about the Russian influence in Tibet and extended trade privilege, but Tibet denied to even discuss the matter. Government of India also approached Chinese, claiming their authority over Tibet, but even this approach did not turned out to be fruitful. Eventually in 1904, the British sent an expedition to Tibet, which would coerce Tibet for negotiation, but before expedition could reach Tibet, Dalai Lama fled. The British troop defeated the Tibetan forces and entered Lhasa, and British came to a conclusion by laying down a treaty with Tibet, which gave British the trade opportunity in Tibet. But by the end of 1904, the British expedition to Tibet came to an end and by this it also ended Tibet's international isolation and revealed the myth about China's claim over Tibet.22

During the absence of Dalai Lama from Lhasa, China had augmented its influence in Lhasa. China tried to conquer eastern part of Tibet (Kham) with an intention of converting Kham into a Chinese province and named as "Xikang". This situation forced Dalai Lama to restore his relations with Peking and accepted their proposal by reducing his status in Lhasa. In 1910, Chinese once again sent its troop to Lhasa and Dalai Lama had to again fled and this time to India. 23

In 1912, the Chinese were expelled from Tibet and Dalai Lama came back to Lhasa. Subsequently, Tibet denied the titles which were offered by the Chinese Republic and refused to China's claim to impose authority over Tibet. These acts were considered as declaration of Tibet's independence.24

22 Tibet and the Chinese People's Republic, New Delhi, 1996, Legal Inquiry Committee on Tibet, p.3-5. 23 ibid. 24 Alfred P. Rubin, 'The Position of Tibet in International Law', (1966), p.277.

According to International Commission of Jurists, "Tibet's position on the expulsion of the Chinese in 1912 can fairly be described as one of the de facto independence and there are some legal grounds for thinking that any form of legal subservience to China has vanished. It is therefore submitted that the events of 1911-12 mark the re-emergence of Tibet as a fully sovereign state, independent in fact and law of Chinese control.25

From 1911 till 1950 Tibet was successful in maintaining her full independence and avoided influence from other countries. Till this period of time Tibet was recognized an independent state under the international law. It possessed a defined territory, population inhabiting that territory and a capable government which could maintain national and international relations. Tibet shared a diplomatic relations with its neighboring countries like Nepal, Bhutan, Sikkim(India), Mongolia, British India and Independent India. And also shared a limited relation with Russia and Japan. At the same time China formally urged Tibet and Nepal to join the Chinese Republic, and China also admitted that Tibet was not at that time a component part of China. Yet at the same time China claimed to the rest of the world that Tibetans were one of China's 'five races'.

And then after in 1913 a tripartite conference was held in Shimla where Tibet and China were brought together and resolve their dispute under the British mediation. As Great Britain had its own interest in maintaining peace in the north of the Indian borders so it persuaded Tibet to agree to China's nominal suzerainty in exchange for China's pledge to respect the territorial integrity and full autonomy of Tibet. But the Chinese Government did not agree upon this and refused to sign the Shimla Convention. Subsequently on July 3, 1914 the Tibetan and British plenipotentiaries initialed the Shimla Convention and signed the Joint declaration, which barred the Chinese from any advantage which they could have gained from the respective terms of the Convention. And therefore Tibet's status remained the same as it was before: an independent state owing no allegiance to China. Shimla Convention also constituted recognition by both Britain and China of Tibet's sovereignty.

25 International Commission of Jurists, The Question of Tibet and the Rule of Law, 85.

Tibet was able to maintain its position throughout the 1930s and 1940s. During the second world war also, Tibet was able to maintain its neutrality even when China was a combatant. This position brought Tibet into diplomatic contacts with the United States, but Tibet denied to permit the supply of arms and ammunition across Tibet from India to China. In 1943 American mission to Tibet was aware by the fact that Tibetans are claiming independence and they suggested to Tibet that can an attempt can be made where Tibet can be represented in post war peace conference where their attempt to acquire recognition of its independence can be put forward and Chiang Kai- shek promised Tibet the right of self-determination and made them believe that this would be done under the Chinese Constitutional convention which will validate their position.26 But during the convention, Tibet found their presence only as observers which was construed by China, which made Tibet's participation as a part of China. China also tried to restricted the Tibetan mission to travel to other countries.

To sum up this before 1950 Chinese invasion, Tibet was able to acquire de facto independence and obtained de jure independence, only one thing lacked that is the international recognition.

In 1960, according to the report of the ICJ, it has been stated that:

Tibet demonstrated from 1913 to 1950 the conditions of statehood as generally accepted under international law. In 1950 there was a people and a territory and a government which functioned in that territory, conducting its own domestic affairs free from any outside authority. From 1913-1950 foreign relations of Tibet were conducted exclusively by the Government of Tibet and countries with whom Tibet had foreign relations are shown by official documents to have treated Tibet in practice as an independent State.27

2.3 THE INVASION OF TIBET

The year 1949 can be depicted as a turning point in Tibet's history when the cultural arm twisting of Tibetan society by the Chinese soon developed into a full blooded political

26 Chiang Kai-shek, 'National Independence and Racial equality', (1946), p.854. 27 International Commission of Jurists, Tibet and the Chinese People's Republic, 5.

13 assault and which resulted into a physical domination of Tibet by China just to preserve an ancient political and cultural tradition.

On 1st October 1949 Chiang-Kai-Shek was defeated and the PRC was formally announced in Peking. On 1st December 1950, the newly established Chinese government assured to liberate both Taiwan and Tibet. In response to this action, Tibet government requested for help from India, Nepal and United States and asked to send missions.28 But India, United States and United Kingdom directed Tibetan Government to not to provoke the Chinese by announcing their independence or by approaching to the United Nations. They were under the impression that matter could be negotiated in a peaceful manner. In the meantime Chinese troop attacked the Eastern Tibet's provincial capital known as Chamdo and it defeated the small Tibetan army. Again after two days, Ngapo Ngawang Jigme, the Regional Governor was captured and almost 40,000 Tibetan fighters were killed. As Tibet was facing military occupation of eastern and northern Tibet, and as it had already lost its small army and thousand more PLA troops were advancing towards Central Tibet, as pressure was building from all the sides the Tibetan government decided to sent a delegation under Ngypo Ngwang Jigme to Bejhing for negotiating with the Chinese leaders. on May 23, 1951 the Tibetan delegates were forced to sign the "17-Point Agreement for the Peaceful Liberation of Tibet". This agreement was a contradictory document. which assured that no alteration will be done in political and religious system of Tibet and on the other had it laid down a clause, under which Tibet was to be governed by the system of "national region autonomy". Apparently all the guaranteed laid down under this agreement was vague and it was as per the interpretation of the Chinese, some guarantees are stated here under:

 The Tibetan people shall stay united and help in removing imperialist aggressive force from Tibet and the Tibet people shall return to their big family of the Motherland- The People's Republic of China.  The local government of Tibet shall profusely assist the People's Liberation Army to enter Tibet and strengthen the national defense.

28 Goldstein, A history of Modern Tibet, p.627.

 And if any matter which could be related to any reforms to Tibet, it can be made with the consultation of the leading personnel of Tibet.

Due to the immense pressure induced by the Chinese leaders on the Tibetan delegates, they were not permitted to refer the terms of the agreement to Lhasa for approval and Chinese even forged duplicate seals in Bejing and forced the Tibetan delegates to affix them on the agreement. As this agreement was signed at pistol-point. The agreement might have held to be void ab initio, because it lacked authority and was obtained under coercion under and it also lacked any validity under international law. 29

At the Tibetan town of Yatung which lies near the Indian border, Dalai Lama and his advisor discussed on the matter whether to accept or not to accept the agreement. The dilemma which was revolving around the Tibetan people was that, will they be able to protect and preserve their culture and political identity under the China's rule or not. They came to a conclusion by deciding that Dalai Lama will seek asylum outside Tibet in the face of China's advance and many Tibetans choose to cooperate with the Chinese so that it could protect and preserve Tibetan institutions and Tibet's political and cultural identity and many Tibetan's considered this to be the best option. On 25th October, Dalai Lama wrote a letter to Mao and showing his willingness in accepting the 17-point agreement and Tibet formally accepted the agreement and China's sovereignty effectively extinguished its claim to independent statehood.

2.4 TIBET UNDER CHINESE COMMUNIST RULE

As Tibetans adhered to the 17-Point Agreement, PLA conquered Lhasa and central Tibet. Chinese Party was quiet cautious about imposing its policy over Tibet. Initially China tried to adhere to all the policies laid down in the agreement to impress the Tibetans and win their trust without hampering Tibetan autonomy or altering Tibetan societal set up. But side by side China was dividing the territory of Tibet, but unfortunately its contradicted its own "national regional autonomy" system and which latter resulted into Tibetan revolt. According to the Chinese, they were under the impression that only central Tibet was "Tibet" and avoided eastern part of Tibet, and CCP focused completely

29 ICJ, 'The question of Tibet and the Rule of Law', p.95.

15 on the central Tibet and considered it to be "Tibet Autonomous Region". And therefore provisions of the agreement could only be imposed to the part of Tibet that would become the TAR.30 Gradually China started curtailing Tibet's power. Chinese tried to impose democratic reform in Kham and Amdo and public accusation, in response to this both the areas flared up in revolt. In this revolt, Tibet initially succeeded against PLA but later suppressed by Chinese overpowering troops.

In March 1959, there were rumors about the Chinese, that they were planning to kidnap the Dalai Lama. This brought anger amongst the Tibetan people and huge number of Tibetan gathered infront of the Norbulingka palace in Lhasa, to protect Dalai Lama. In this revolt thousands were killed. And thereafter the Tibetan uprising was suppressed and Martial Law was declared.31

The Dalai Lama and his government formally renounced the 17-Point Agreement and on Matcg 1959, the Dalai Lama and 80,000 Tibetans fled to India, to seek asylum.32 After Dalai Lama left Tibet, the PLA repeatedly suppressed the revolt in Lhasa and central Tibet and in result of this China suspended the "Tibet local government", democratic reforms were implemented, class division and class conflict started taking place and those who had participated or supported the revolt were arrested and imprisoned. Under the democratic reforms, Chinese government removed Tibetan leadership and anyone who denied to accept the Chinese rule had to face the consequences.33

The adverse effect of the democratic reforms was also seen on the monasteries of Tibet. Monks of the Lhasa monasteries and high lamas were compelled to leave the monastery. Monasteries were looted, expensive artworks and artefacts were stolen and transported to the interiors of China. According to the Chinese census of 1958, the population of the

30 Michael van Walt van Praag, 'The Status of Tibet: Rights and Prospects in International Law,' (1987), p.158. 31 John F. Avedon, 'In exile from the Land of Snows,' (1994), p. 221-222. 32 Dalai Lama, 'Freedom in Exile ' (New York: Harepr Collins) (1990), p.141. 33 ibid.

TAR dropped down from 114,100 to 18,104 by 1960.34 The suppression of Tibet by China, left Tibet as an empty shell.35

2.5 QUESTION OF GENOCIDE IN TIBET, IT'S LEGAL STATUS AND TIBETAN'S VIOLATION OF HUMAN RIGHTS

 TIBET'S LEGAL STATUS:

Tibet was for very short period of time can be regarded as a de facto independent state, when the Agreement on Peaceful Measure in Tibet was signed in 1951 and in 1959 this Agreement was negated by the Tibetan government and this act was completely justified. In 1959 Tibet had gave up her independence by signing the Agreement on Peaceful Measure for the Liberation of Tibet. As per the agreement, Chinese People's Republic guaranteed to maintain system of Tibet the existing political system of Tibet and shall maintain the status and power of the Dalai Lama and the Panchen Lama, and respect their religion and monasteries and any reforms made without the approval of Tibetans shall be refrained. But Chinese People's of Republic committed all those acts which were contradictory to their promise made under the agreement and the Government of Tibet was at liberty to reject the Agreement and it did this on March 11, 1959.36

There is enough evidence to accuse China for its act to destroy Tibetans as a religious group.

 ACT OF GENOCIDE:

No doubt that acts of genocide has been committed by China in an attempt to obliterate the Tibetans as a religious group and the acts committed by the Chinese cannot be denied

34 Zhang Tianlu, 'Population Change in Tibet,' (1989), p.28. 35 Dawa Norbu, 'Red Star Over Tibet' (New York Envoy Press) (1987), p. 105. 36 Gopal Singh,'Tibet in fragment autonomy under Peking in unmitigated, National Interegration', (1964),p.13.

17 that it was a act of genocide independently of any conventional obligation.37 Few facts of genocide in Tibet can be stated hereunder:

 The Chinese imposed restriction on practicing of Buddhism in Tibet.  The Chinese adopted various methods to eradicate religious beliefs in Tibet.  In pursuit of imposing these restrictions on Tibetans, they had killed many religious figures.  Large number of children's were send from Tibet to materialistic environment of China, so as to prevent them from gaining religious upbringing in Tibet.

 HUMAN RIGHT CRISIS IN TIBET IS A CREATION OF PLA

From the above mentioned facts, it depicts a clear intention of the China to destroy Tibetans as a separate nation their Buddhist religion.

Under this chapter, it will focus on how PRC's violated the 17-point Agreement, violation of human rights, matters related to genocide and Tibet's legal status.38

Firstly, the PLA violated the Tibetan autonomous right which was guaranteed under the 17-point agreement39, some of the provisions has been mentioned hereunder:

 The authoritative power of Dalai Lama was intentionally undermined in temporal issues.  With the establishment of the new organs of State by Chinese, it changed the existing constitutional structure of Tibet.

37 The meaning of this phrase was later expanded by quoting the opinion of the International Court of Justice that "the principle underlying the (Genocide) Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligations". "Advisory Opinion on Reservations to the Convention on Gneocide, International Court of Justice Reports, (1951), 15 in ICJ, 'Tibet and the Chinese People's Republic, 12. 38 ICJ, 'The question of Tibet and the Rule of Law', p.71. 39 A Report prepared by the Scientific Buddhist Association for the United Nations Commission on Human Rights, p.265

 Simultaneously, the Tibetan representatives of the Tibetan institution, their power was curtailed under the government of Tibet.  Various methods were adopted to establish Chinese government in Tibet and coerced Tibetans to adopt Chinese communist way of living.40

As per the promise made under the 17-point agreement, it mentioned about protecting the religious institutions in Tibet and right to freedom of religion. But as this agreement itself was known as a contradictory document, it did not adhere to any of its promises made to the Tibetans.41 Following instances can reveal the truth:

 Anti-religious propaganda were published in the news papers.  Monasteries had to pay taxes and looted their food reserve so as to disconnect them from the monastic community.  Monks and lamas were tortured and killed, many monks and lamas were pushed into labor work and deported them to China.  Forced marriage.  Monasteries were destroyed and sacred objects of Tibetans were looted.

From the above facts, it becomes more clear that Chinese used all possible methods to destroy the religious belief of Tibetans and impose Communist doctrines. 42 Tibetan's were denied of all their basic right which means denial of almost everything which a citizens posses living in any country. Specifically:

 The right of life, liberty and security of Tibetans was violated.  Forced labor work and degrading treatment was inflicted on the Tibetans.  Rights of home, shelter and privacy was violated.  Restriction of freedom of movement within a state and right to leave and return to Tibet has been curtailed.  Forced marriages took place upon the unwillingness of the parties.  Freedom of expression and communication of ideas was restricted.

40 ibid. 41 Petra K. Kelly Gent Bastian and Pat Aiello, 'The Anguish of Tibet',( 1991), p.119 42 ibid.

 Denial of free choice of employment.  Right to education was violated.

To summarize this, almost all the basic rights which a citizen acquires in a country were curtailed by the Chinese.43

2.6 EXODUS OF TIBETAN REFUGEES TO INDIA

However in 1959, rumors were spread that Chinese government had planned to abduct Dalai Lama and force him to leave from Lhasa. As the rumor got spread, thousands of Tibetans stood in front of the Norbulingka palace to protect their religious leader Dalai Lama. In conflict with the Chinese troop, thousands of Tibetans were killed and during this period Dalai Lama with his 13,000 followers decided to flee. And on 31st March 1959, Dalai Lama with his followers reached Chuthangmo, eastern border of India and from there he reached to Assam and requested to Prime Minister Nehru to grant political asylum in India.44

This definitely created a difficult and delicate situation for India, because India shared friendly relation with China and by allowing Tibetans to seek asylum in India might worsen the relation. But despite of this fact, PM Nehru responded in a constructive manner by granting political shelter to Dalai Lama.45

PM Nehru justified his decision in Parliament by stating that:

There has been a long tradition of cultural and religious ties between India and Tibet region of China and in this region lies many places of pilgrimages, which are considered to be holy for both Hindus and Buddhists and large number of people visit them every year. The Dalai Lama who we had the honour and pleasure of receiving in our country in 1956-1957, is held in high veneration by our people and we hope he is safe. We earnestly trust that the present trouble will be resolved peacefully.46

43 Maclnys, 'Religion in China Today' ,(1989), p.46. 44 George N. Patterson, 'Tibet in Revolt. London: Faber and Faber', (1960), p. 78. 45 Rajesh Kahrat, 'Gainers of a Stalemate: the Tibetans in India,' (2000), p. 285. 46 Nehru's statement in the Lok Sabha on 23 March 1959, cited in Chanakya Sen, p.162.

Prime Minister Nehru made it very clear in his statement, that is only intention is to grant political asylum to Dalai Lama and not to create obstruction into the internal affairs in the Tibetan region of China.

Chinese government accused India for interfering in Tibet- China political affairs by granting political asylum to the Dalai Lama. In response to the Prime Minister Nehru stated that, his decision was solely based on humanitarian basis as they also shared some religious and cultural contacts.

Most of the political leaders from different parties stood together and reacted sharply against the act of China and supported Government of India to extend its support towards Tibetans. In fact Ashok Mehta was a Member of Parliament gave an opinion that Dalai Lama must be permitted to function his government in India which could be like a platform for Tibetan's to struggle for their Independence and he was favored the thought of giving complete freedom of action in India.47

On 4th May 1959, Prime Minister Nehru allowed Tibetan refugees to earn their basic living and gave them liberty to do many things. Dalai Lama was given the freedom of movement, like a free agent to go wherever he liked either in India or his willingness to go back to Tibet.48

2.7 INDIAN POLICY TOWARDS TIBETAN REFUGEES

The Indian policy towards Tibetan Refugee has been changed over time, differences can be traced from policies which has been applied to the first wave of refugees who fled from Tibet with Dalai Lama in 1959, entrants today and every group entering in between. In general, this group has been divided into four groups of Tibetans who arrived in India and different approach has been applied by India in respect to these groups of Tibetan:

i. Tibetans entering India between 1959 and 1979. (The first wave of arrivals) ii. Tibetans entering India between 1980 and 1993. (The second wave of arrivals) iii. Tibetans entering India between 1994 and 1999. (The third wave of arrivals)

47 Parliament Questions and Answers- Rajya Sabha at http://meadev.nic.in. 48 ibid.

21 iv. Tibetans entering India between 2000 and the present.

I.THE FIRST WAVE OF ARRIVALS (1959-1979): TIBETAN REFUGEES ENTERING INDIA AFTER THE LHASA UPRISING, AND THE FIRST TIBETAN SETTLEMENTS IN INDIA.

Thousands of Tibetans followed Dalai Lama into exile, arriving at a rate of as many as 1,500 per week. The perilous journey over the Himalayas was difficult many died in transit and those who somehow managed to survive arrived India exhausted, starved as they were not accustomed with the lower altitude and warmer climate, they were in dire need of immediate relief. Therefore Government of India and with the assistance of the State Government of Assam and West Bengal were able to set up transit camps at Missamari in Assam and at Buxa in Cooch-Behar of West Bengal. At one side the Government of India was extending relief and on the other hand many NGOs, quasi- governmental organizations like CARE, the American Emergency Committee for Tibetan Refugees, Church World Service and Lutheran World Relief, Catholic Relief Services and the YMCA.49 which were affiliated with India or other state states also provided humanitarian assistance to the Tibetan refugees. In these camps they were provided with free rations, clothing, cooking utensils and medical services. But apart from all this assistance many Tibetan refugee died in the camps because of the extreme change of climate, they were not accustomed to the lower altitude and their strenuous journey across the Himalayas, this situation led Dalai Lama to approach Government of India, requesting to resettle his people in a cooler place and where they can also be temporarily employed.50 Immediately responding on this request, Government of India agreed to to rehabilitate Tibetan refugges tp places like Himachal Pradesh, Jammu & Kashmir, Kalimpong, Darjeeling, Arunachal Pradesh, Sikkim, Dehradun aand Mussooire, basically all hilly areas and where most of them were engaged as road laborers. And this was the

49 Tenzin Gyatsao, 'Freedom in Exile: The Autobiography of His Holiness The Dalai Lama of Tibet,'(1990), p.131-38. 50 Tibetans in Exile,1959-69. Dharamsala: CTRC Publication, (1969), p,3.

22 first attempt taken by the Government of India in respect of providing a mean of economic independence to the Tibetan refugees. Prime Minister Nehru also announced establishment of a Society for Tibetan Education within the Indian Ministry of Education, under which special schools were designed to provide Tibetan education to Tibetan Children. 51 India also took initiative in establishing refugee handicraft and carpet weaving center through which Tibetan refugee and preserve their art and culture. Now maximum of Tibetan refugees are indulged in this activity and proved to be the most successful enterprise because carpet weaving is a centuries old tradition of the Tibetans and they are mostly exported to foreign. 52 Therefore India has provided massive humanitarian assistance to the first wave of Tibetan refugees.

So India's policy towards the Tibetans who arrived in the early period has been aptly summarized as follows:

While attempting to maintain the cultural autonomy of the Tibetan people, India sought to avoid large concentrations of unsettled refugees, which might attract attention. It refrained from officially seeking help from the international community and sought to refrain control over the use made of the very considerable assistance proffered by local and overseas voluntary agencies and their personnel. It did not seek UNHCR assistance and in General Assembly, it abstained from voting on both the 1959 and the 1961 resolutions concerning the treatment of the Tibetan people by the Chinese People's Republic. During this period, policy was based on the hope that matters could still be arranged diplomatically so that the Tibetan refugees in India might return to their homeland.53

In 1960, just after a year when Dalai Lama fled from Tibet to India, India relocated Dalai Lama and his emerging government-in-exile to McLeod Ganj, Dharamsala which was formerly a British hill station in the northern Indian state of Himachal Pradesh. Dalai Lama established an extensive and comprehensive network of government departments to

51 Gyatso, supra note 32, p.149-50. 52 Life in Exile, n.48, p.10 53 Lousi W.Holborn, 'Refugee: A Problem of our time: The work of the United Nations High Commissioner for Refugees,' (1951-1972) , p.720-21.

23 meet the needs of the India's growing Tibetan population.54 In 1960, CTA held its first election for government in exile representatives and drafted its constitution which was approved by the Tibetan refugee in exile and thereafter got enacted in 1963.55 CTA was more focused on relocating the influx of Tibetan refugees into agricultural and other necessary settlement in certain regions of India and providing vocational training to adults and educating Tibetan children so that they can preserve their Tibetan culture and religion. By October 1964, almost 40,000 Tibetans had arrived in India, and thereafter India kept providing additional assistance to the new arrivals but now the Government needed NGOs to extend their help. Perhaps Central Relief Committee developed a comprehensive plan on this issue which also included more settlements, vocational training programme, education facility and health care services, but it never got fully executed.

 STATUS ISSUE

Prime Minister Nehru's acceptance and welcoming of Dalai Lama and his companions cannot be presumed as granting of asylum in India. From a legal perspective India has unambiguously declared this matter as of national law, under which it does not give asylum status to its refugees coming from any country. The underlying fact is that India is not a party to any of the refugee conventions and has never enacted in its national law for protection of refugees. India has dealt with the issue of refugees on an ad hoc basis. India refers colloquially to Tibetans residing as "refugees". Only, Dalai Lama and his twenty members were recognized as refugee, that to in a n informal or non-legal sense. And therefore none to the refugees residing in India enjoy rights which can compared of those refugees under International Treaty Law. India avoids referring Dalai Lama as a refugee, it refers him as "honored guest". Dalai Lama travels with a sui generis Indian international travel document, not a passport. Nor does he posses U.N. refugee papers. Each time he travels he has to obtain separate visas to depart from and return to India.56 However India often refers Tibetan residing in India as refugees, but in actual sense they do not qualify the category of refugee within the meaning of Indian Law. In fact Indian

54 ibid. 55 Tibet's legal system before China's occupation has been documented in REBECCA. 56 Robert. J. Barnett, 'Tibetan Modernities: Notes from the field on Social and Cultural Change,' (2006),p.2.

Law does not recognize any obligation except the customary International law principle of non-refoulement, which Supreme Court of India confirms. Therefore none of the refugees in India enjoys formal refugee status or protection of their rights as prescribed under the U.N. Refugee conventions.57

II.THE SECOND WAVE OF ARRIVALS (1980-1993)

During this wave, starting from mid-1960 until about 1979, China strictly controlled freedom of movement in Tibet.58 Very few were able to flee to exile. So the second wave of Tibetan refugees began to arrive in India in and after 1979. At that time, Deng Xiaoping initiated with liberal reforms throughout the PRC, which made travelling from Tibet to India possible. Tibetan monks and other activists, who were detained and tortured during the period of Martial law, also starting moving to India. Subsequently, number of Tibetans arriving to India stared increasing mainly in response to China's renewed repression in Tibet which was known as "Strike Hard" campaign. 59 This campaign led many Tibetan monks, political activists and nuns to escape to India via Nepal. During 1986-1996, almost 25,000 Tibetans arrived in India. which increased the total population in India by 25%.

Since 1979, Tibetans who arrived via the Sino-Indian border were deported back to Tibet because of the geopolitical sensitivity in the disputed border region and they were suspicion that they might be Chinese spies. However, Tibetans somehow made their ways, India unofficially allowed Tibetans to enter via Nepal, border town Sonauli. There in what amounts to a "gentlemen's agreement," where border officials allowed buses of Tibetans coming from Tibetan Reception Centre in Kathmandu to cross the border for an "entry fee", this entry fee was basically a de facto bribe or a form of baksheesh and continue the journey till Delhi or Dharamsala. It can be seen that in this regard Indian Government has turned a blind eye to this informal procedure of entering.60

57 ibid. 58 supra note 45 59 ibid. 60 DAWA NORBU, 'TIBETAN REFUGEES IN SOUTH ASIA: A CASE OF PEACEFUL ADJUSTMENT ', IN S.D. MUNI AND LOK RAJ BARAL (EDS), REFUGEES AND REGIONAL SECURITY IN SOUTH ASIA, (1996), p.78-98.

Tibetans Refugees who arrived in the second wave, post 1979 period, they did not receive the same assistance which was provided to the first wave of Tibetans arriving to India in 1959. Tibetans of second wave did not receive RCs or other documents which was issued to the refugees of first wave of Tibetan refugees by the Indian authorities. But somehow, they managed to acquire RCs by claiming to be the children of the first wave of Tibetans or they managed to remain in India by roughly ensuring that they have to come to visit India temporarily may be pilgrimage or to visit family and then remained in India secretly. India is still aware about the de facto immigration which is happening but did very little or nothing to stop it.

Consequently, the number of new arrivals of Tibetan kept increasing, fewer than 1,00,000 Tibetans arrived annually.61 The number doubled by the early 1990s. But this situation developed latent tensions between the Tibetan refugees residing in India and the Indian communities because due to the new arrivals of refugees existing land was not sufficient to accommodate all the refugees. This also led to a tensed situation between the older generation and the newer generation, because newer generation felt difficult to adapt the situation and older generation had already became accustomed to the situation. All this problem led CTA, after consulting with the Government of India, to apply more strict control in its assistance to the new Tibetan arrivals towards procurement of RCs, and to reconsider its decade old policy towards them.62

III.THE THIRD WAVE OF ARRIVALS (1994-1999)

Generally Tibetan refugees share a very harmonious and cordial relationship with the local people.63 However, in the recent past this relationship has declined to some extent due to the communal violence and burning and looting of Tibetan homes. In 1994,violence broke out between the local Indian and Tibetan communities near Dharamsala.64 There was a small argument between Tibetan and Indian taxi driver, this soon escalated and the consequences were terrible. Indian local people residing in Dharamsala looted many Tibetan homes, shops and they destroyed Tibetan schools and

61 ibid. 62 ibid. 63 Zarin Ahmad, 'Tibetan Refugees in India', at www.ipcs.org. 64 ibid.

26 government offices the underlying reason is due to gaining prosperity in their business, receiving funds and grants from the foreign agencies and buying large tracts of land through benami transaction (land purchased by the Tibetans in the name of local citizens) which enhances the economic status of Tibetans as compared to the local people living in the same area. This disparity escalates friction and conflict between the locals and Tibetans. Locals have attacked the refugees in mobs and ransacked their property, and as a way of revenge Tibetan people have also used violent methods against the local people. 65

In May 1994 due all these conflicting issues between Tibetans and local people, the Tibetan Refugee Reception Centre in McLoed Ganj was closed momentarily. As the tension passed away, CTA and India decided to develop new policy for Tibetan refugees arriving in the future and thereafter, in 1995, CTA laid down specification relating to different categories of new Tibetans arriving in India. Classification was done on the basis of age factor and the purpose of coming to India, like young monks who fall between the age of sixteen to twenty-five, had to pass an examination and then permitted to stay in India for only six months and if they failed they were deported back to Tibet. Children falling between the age of six to thirteen were allowed to stay in India to pursue their education, children falling between fourteen to seventeen were referred to the TCV transit schools and children of the age of eighteen to thirty could only study in India for one year and after completing their studies they were send back to Tibet. In 1996, approximately 2843 Tibetans had arrived in India and CTA deported 1200 Tibetans back to Tibet.66

Tibetans who were willing to enter India, did not receive the same assistance as the refugees of First and Second wave received. Only few Tibetans received RCs or found work and shelter, by this time India became stringent with the policy of issuing RCs to the newly arrived Tibetans. So Tibetans without RCs had to face a tough time to find settlement in India. TJC received various reliable reports according to which Tibetans have been threatened to deport to China in accordance to violation of the customary

65 supra note 32 66 supra note 63

27 international law obligation of non-refoulement. Indian officials also insisted Tibetans communities to so called "spot-checks", where Tibetans had to show their valid RCs and those without RCs had to bear the consequences by paying fine or detained them. Tibetans without RCs would be held by the local authorities until the CTA, family or friends or any NGO paid the governmental fine and release the person. In 1998, twenty one new arrivals in Dharamsala were detained by the Indian officials for not holding RCs, Lobsang Lungtok, spent more than twenty days in detention and Indian officials threatened him to deport back to China. Due to the international publicity and diplomatic pressure prevented the threat from being carried out. There is a constant pressure on the undocumented Tibetans because of the spot checks and periodic sweeps by police. At the national level, India has not formulated or enforced any uniform policy. TJC has reported that police detain Tibetans for not possessing RCs and therefore they are required to pay fines for their release.67

IV. REFUGEE ARRIVING BETWEEN 2000 AND THE PRESENT

The year 2003 marked a significant shift in the Sino-Indian relations, in this year trade negotiations started between China and India and both the countries signed "Declaration of Principles of Relation and Comprehensive Cooperation." According to the memorandum of understanding, India for the first time formally recognized Tibet as a part of PRC.68 Negotiations were made between the two countries, where China agreed to open an important trading post on its border with India and India agreed on the point of prohibiting Tibetan refugees of India from indulging into "anti-China" activities in India. Subsequently, the influx of refugees were discouraged by government to enter India.69 Basically there lies two major reason behind India's sudden outbreak in the traditional tolerance towards the undocumented Tibetans, firstly, the after signing of the "Declaration of Principles of Relation and Comprehensive Cooperation" India did wanted to jeopardize its cordial relation with China. Secondly, due to pressure induced by the internal domestic constituencies on the Government of India to tackle the influx of Tibetan refugees who illegally entered inside India. India reacted on these issues by

67 ibid. 68 supra note 12 69 ibid.

28 curtailing the Tibetans ability to participate in peaceful political protests, demonstration and suppressing any other form of political expression and started detaining Tibetans more often.

In January 2000, Karmapa Lama, who is known as the traditional leader of the Kagyu school of Tibetan Buddhism, which falls among the four principal schools. According to Tibetans he is ranked below the Dalai Lama. At the age of six he escaped from Tibet via Nepal and resettled in India, on his arrival it placed India in a muddling position because on one side India has its new relations with China and on the other hand its policies towards Tibetans. China did not appreciate this fact and further informed India about granting asylum or refugee status to Karmapa will have an adverse impact on the India's relation with China, therefore India did not even titled him as the informal "honored guest" which was used for Dalai Lama and his members, India simply allowed him to live in India on a temporary basis of unspecified length.70

In 2002, there were series of incidents reported which was concerned about the new Tibetan arrivals accused of espionage. A nun Ngodrup Palzom, the Karamapa Lama's sister and Lama Tsewang, the Karamapa's principal advisor and tutor were accused for spying. 71 Basically they were involved in Karmapa's escape. Apparently after investigation, it came to conclusion that charges had been completely fabricated. Due to all these incidents it brought crack down on Tibetan Refugees of the Kangra Dsitrict of Himachal Pradesh, where a policy was announced by the Superintendent of Police that they are going to enforce strict checking of all foreigners, which also includes Tibetans. Under this policy that Tibetan who had arrived in India before 1979 and their children will only be entitled to issue or renew their RC. And made it very stringent policy that no Tibetan can live in India unless he has issued a registration certificate by the local police. Further it was stated by the Superintendent that:

"any Tibetans who had entered India illegally recently were able to themselves registered with the foreign office with the help of Tibetan officials. He said steps were not being taken to check all applicants and issue registration certificates to only those who were

70 Pia Oberoi, 'Exile and Belonging: Refugees and State Policy in South Asia',(2006), p.78. 71 ibid.

29 proved to be born (parents who were themselves issued an RC under pre-1979 executive policy). Instructions had been issued to sub-divisional police officers also in this regard. The police planned to start a checking drive soon so that all Tibetans and foreigners staying illegally were found out and action taken."72

In fact this statement shows that it was India's first initiative to legally pursue this matter not only with those Tibetans who lacked RCs, but also with those who acquired RCs on the basis of claiming to be born in India and belonged to the parents who had arrived in India before 1979. But if India would have pursue this policy, it would have devastating effect on the Tibetan exile community.73

Again in the 2003, India imposed one more change in its policy for Tibetans, under which India will conduct its own screening of Tibetan refugees who were entering to India via Nepal. Before this UNHCR office in Kathmandu, Nepal interviewed Tibetans and then India would permit their entry through border town of Sonauli and then after reaching Delhi and Dharamsala, Tibetans would be again screened by the CTA. In 2003, the CTA and the Indian government agreed to an agreement where they have addressed the issue of number of Tibetans who are residing in India without RCs, leading to the creation of the Special Entry Permit (SEP) Program.74

72 Dalai Lama, My Land and My People, (1999), p.225. 73 ibid. 74 supra note 70.

CHAPTER-3

THE STATUS OF TIBETAN REFUGEES RESIDING IN OR TRANSITING THROUGH INDIA

3.1 INTRODUCTION

In this chapter I will try to assess the precarious status and circumstances for both documented and undocumented Tibetan refugees residing in or transiting through India, either for pilgrimage, to pursue Tibetan education, or in flight from persecuting situation in Tibet and to sketch out the that how Tibetan Diaspora is surviving with limitations and restrictions imposed by the Government of India.75

No doubt India has been exceptionally generous towards the Tibetan refugees living in India. It has not only allowed them to enter India but also initiative has been taken to provide them with proper settlement, school and medical facilities, with respect to the earliest arrivals. Apart from the overwhelming treatment given to the Tibetan refugees living in India, still majority of Tibetans residing in India lack a legal status, hence they are stateless. Legally speaking, India does not consider them as refugees neither in International law nor in its own national laws, which do not facilitate for the adjudication of refugee status. Nor does India allows them to become Indian citizens, with an exception of those born on Indian soil between January 26, 1950 and July 1, 1987.76 Though few Tibetans have acquired Indian citizenship (but this condition could change as per the decision made by the High Court of Delhi)77 and most of the Tibetan Refugees are ineligible for naturalization. Most of the Tibetans born or entering at present are legally regarded as stateless, they can reside in India only by the grace of current executive policy. Hence they are not benefited with any legal right to reside there, at least not with any permanent status. Furthermore, without holding a valid RC or other relevant documents, Tibetans cannot travel freely, either in India or internationally, own property, hold public jobs, or vote in Indian elections. India has ceased the ability of Tibetans to

75 Saklani, 'The Uprooted Tibetans in India,' p.39 76 ibid. 77 Namgyal Dolkar v. Ministry of External Affairs, W.P (C) 12179/2009 (High Court of Delhi) (India).

31 assemble peacefully and to protest China's continuing suppression and human rights violation in Tibet, including all these factors the denial of the rights of Tibetans as a people to enjoy genuine self-determination under International law has also been curbed.78

3.2CURRENT POPULATION OF TIBETANS LIVING IN INDIA

No certain number can be estimated of Tibetans entering India, it keeps varying annually. According to some sources 1,500-3,500 Tibetans enter India each year. 79 No exact estimation can be made because Tibetans travel to India for various reasons, some travel either for temporary or permanent settlement, which includes avoiding persecution faced by Tibetans back home, visiting or intention of reuniting with their families living in exile in India, pursuing Tibetan education and making a pilgrimage to visit Dalai Lama or other lamas, monasteries and nunneries in India.80 According to the latest demographic survey conducted by the Tibetan Government in exile, which last came in November 2010, there are almost 1,50,000 refugees residing in India.81 As per the report of the U.S Committee for Refugees and the UNHCR, more than 2,25,000 Tibetans are living in India, Nepal and Bhutan82 and lastly, according to the Central Tibetan Relief Committee has estimated 1,45,150 Tibetans are residing in India, Nepal and Bhutan.83

3.3 SETTLEMENTS

Tibetan Refugees living in India can be divided into two forms of settlement: formal and informal. Some Tibetans are living in thirty-seven formal settlements and almost seventy informal Tibetan communities have scattered in different parts of the country. Initially, during the first and second wave of arrival of Tibetans, India permitted the establishment

78 ibid. 79 U.S. COMMITTEE FOR REFUGEES AND IMMIGRANTS, WORLD REFUGEE SURVEY 2004 COUNTRY REPORT: INDIA [hereinafter CSRI 2004 Report]. 80 Immigration & Refugee Board of Canada, Extended Response to Information Request, IND33125.EX (Dec. 23, 1999) [hereinafter Refugee Board IND33125], available at http://www.unhcr.org/refworld/docid/3ae6ad4124.html (last accessed on September 5, 2011). 81 P.Thinley, 'Planning Commission Releases Report on Tibetan Demographic Survey', (2010). 82 U.S. COMMITTEE FOR REFUGEES AND IMMIGRANTS, WORLD REFUGEE SURVEY 2009 COUNTRY REPORT: INDIA; UNITED STATES BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES, India: Information on Tibetan Refugees and Settlements, May 30, 2003. 83 Central Tibetan Relief Committee, Tibet in Exile,http://www.tibet.net/en/index.php?id=9

32 of the settlement by leasing land for a term of ninety-nine years in different states like Himachal Pradesh, Ladakh, Arunachal Pradesh, South Sikkim, West Bengal and Orissa.84 Almost half of the Tibetans settled in India are economically depended on agriculture, another one-third of the Tibetan settlements have relied upon agriculture and industry, and another one-fifth of them are depended on the manufacture and sale of handicrafts.85

Due to the increase in number of Tibetans entering India, the available resources and land is becoming insufficient to accommodate newly arriving Tibetans. For instance, the temporary structures that were built to accommodate five or fewer, is now used to accommodate eight to ten Tibetans. Accordingly the size of various settlement also differs, like in northeastern India, have less than 100 residents, whereas in Mungod, in southern India has more than 6000 residents. 86 The reason behind this inadequate settlement is because Indian government did not provide the same settlements for Tibetans who had arrived after the first wave (in or after 1959), second wave of arrival did not receive land, housing or the same assistance from India which was provided to the first wave of arrival from Tibet. Tibetans who come to India for the first time, seeks shelter near the Central Tibetan Administration's headquarter in McLeod Ganj, Dharamsala or seek shelter in scattered settlements of Tibetan communities across the country.87

Informal settlement of Tibetan communities has spread around Kulu and Manali in northern part of India.88 Counting the total figure, almost 75% of the Tibetan refugees in India are residing in the formal settlement and almost 40% of Tibetan refugees have settled in southern Indian state of Karnataka. And approximately 20,000 Tibetan monks are residing in 200 monasteries spread across 54 of their settlement.89 In matters related

84 Immigration & Refugee Board of Canada, Extended Response to Information Request, IND33125.EX (Dec. 23, 1999) [hereinafter Refugee Board IND33125], available at http://www.unhcr.org/refworld/docid/3ae6ad4124.html. 85 ibid. 86 Shusham Bhatia, 'A Social and Demographic Study of Tibetan Refugees in India', 2002. p.411-413. 87 U.S. Bureau of Citizenship and Immigration Serv., India: Information on Tibetan Refugees and Settlements,2003 http://www.unhcr.org/refworld/docid/3f51f90821.html 88 Andrew Powell, 'Heirs to Tibet: travels among the exiles in India, A Short Story on Life in Exile', 1992, p.38. 89 ibid.

33 to governance of these settlements, Central Tibetan Administration has appointed a settlement officer for each settlement. Government of India has possessed authority over these settlements, but it has also allowed the CTA to control the internal affairs.90

3.4 EDUCATION

Also, in 1960 Dalai Lama's sister Tsering Dolama Taklha, established a nursery school from Tibetan children. Eventually this nursery school developed into the Tibetan Children's village (TCV) schools, which is also known as the Tibetan school system functioned by the CTA, its branches have been spread across India and almost 16,000 Tibetan children are studying under this school system.91

Tibetan schools can be categorized under three heads:

1. Schools administered by the CTA's Department of Education; 2. Central Tibetan Schools Administration, which is an independent institution which falls within the jurisdiction of the Indian Ministry of Human Resource Development. 3. Thirdly, schools established by the charitable organizations, like Tibetan Children Village (TCV) and Tibetan Homes Foundation (THF).92

But as the population of Tibetan refugees are increasing in a speedy manner, it has imposed severe pressure on the Tibetan education system established in India. For an example, in 2007, approximately 424 newly arrived Tibetan children were enrolled in the TCV schools, but school lacked sufficient textbooks, educational materials for their students and insufficient space to conduct classes.93

Most Tibetan children's are not able to complete their college because it becomes difficult for them to afford the college fees. However, India has provided some educational assistance to the Tibetan exile communities. Government of India has offered twenty

90ibid. 91 Tibetan Children's Village Home Page, http://www.tcv.org.in/ 92 supra note 9. 93 'Education in Exile: Building Our Future through Education, Dharamsala,' (1998), p.5

34 scholarship per year for the students graduating from CTA schools and two scholarships is offered to the students pursuing medicine or dentistry.94 In fact CTA also provide 500 to 600 scholarship per year, but these seats fall shorts according to the needs of 800 to 1000 students who graduate annually.

Almost 300 Tibetans graduate from college every year. But it becomes difficult for them to pursue for their- post secondary education. Only eight seats are reserved by the Indian government in engineering, medicine, pharmaceuticals and printing technology, which is allotted for foreigners. This makes graduate students eager to complete their post- secondary education, only as non-citizen of India.95

Tibetan exile community in India has always been concerned about preserving their tradition of religious education among the Tibetans and they have been able to maintain in India's exile community. Many Tibetan come to India to complete their monastic studies, after completing it some return to Tibet and some stay back in one of the monasteries or nunneries in India. Initially only 45% of the Tibetans arrived in India were monks and nuns, gradually by 1986 to 1996, the number has just increased to 60%. Since 1980, the monastic population has just doubled, religious institutions are overcrowded.96

3.5 PROPERTY OWNERSHIP

Refugees are basically covered under the Foreigners Act and they cannot directly own property in India. Only Tibetans possessing valid Registration Certificate's (RCs) can apply to the Reserve Bank for granting permission to own property in India,97 but this procedure is lengthy and troublesome. This process can only be accessed by few highly place CTA officials.

94 ibid. 95 ibid. 96 supra note 9. 97 Foreign Exchange Management Act, No. 42 of 1999; India Code (1999); Foreign Exchange Management(Acquisition and Transfer of Immovable Property in India) Regulations, 2000, § 7 (“No person being a citizen of Pakistan, Bangladesh, Sri Lanka, Afghanistan, China, Iran,Nepal or Bhutan without prior permission of the Reserve Bank shall acquire or transfer immovable property in India, other than lease, not exceeding five years.”).

Despite of this benefit given by the GOI, majority of Tibetans living in India do not have enough money to purchase real property. In fact, even those who posses enough money to own property, generally avoids the formal process of applying to the Reserve Bank of India. There is a common trend adopted by the Tibetans to own property in India, by paying an Indian citizen and the Indian citizen buys it on his own name and Tibetan will use it. But this entire process is done on the basis of informal understanding, it is solely based on trust and good faith. No legal protection is available for a Tibetan, if the holder of record title claims his ownership over the property. In reality, most of the land in Dharamsala, where Tibetans earn their living and do business have informally owned property in the above mentioned manner. For example, the Tibet Transit school in Dharamsala, is actually owned in the name of an Indian citizen, who holds the formal title.

According to the Federal laws, foreigners are restricted from possessing land ownership in the absence of the approval from the Reserve Bank. Also individual states may also sometimes inflict their own restrictions. For example, Himachal Pradesh, which includes Dharamsala and other regions where majority of Tibetan population reside, the state prohibits ownership of agricultural land who doesn't acquire citizenship of India and who is not a lawful resident of Himachal Pradesh.98

3.6 EMPLOYMENT

Soon after Tibetan refugees were in asylum in India, they were in acute need for some economic independence, Dalai Lama approached Government of India's Ministry of External Affairs to assign some work related to the relief and rehabilitation of Tibetan refugees. In response to this, GOI send these Tibetan refugees to Himachal Pradesh, Jammu and Kashmir, Kalimpong, Darjeeling, Arunachal Pradesh, Sikkim, Dehradun ad Mussoorie and employed as road laborers. And it was the first attempt made by the Indian Government to provide means for Tibetan refugees for economic independence.

98 Himachal Pradesh Tenancy & Land Reforms Act, 1972.

Approximately 21,000 refugees were engaged in the road building camps, and earn an average wage of US$ 0.30 per day.99

Gradually, Tibetan refugees started being accustomed with their surroundings and choose different sectors for their economic independency like agricultural sector, agro-based industries, and carpet weaving and handicrafts.

Now, almost 30% of the Tibetan refugees living in India and amongst them approximately 50% residing in formal settlements are working in sectors like agriculture or animal husbandry. Another 30% refugees manufacture and sell sweaters and other textile. And few are engaged in the service industry, handicrafts, carpet weaving or serve in the Central Tibetan Administration.100 But apart from these facilities provided to the Tibetan refugees from the GOI to work in any given sector, the current situation seems to be more worse, because the settlements have become overcrowded and it has created a difficult situation for families who were depended on agriculture to sustain themselves. For an example, a family of four who must have leased a land to sustain a livelihood of four has to support an extended family of fourteen.101 Another problem faced by the Tibetan refugees engaged in the agricultural sector is that the land is not leased for a longer-term which makes the permanent plan for a sustainable economy impossible, and due to the same reason they cannot enter into business contracts with other countries because they do not hold any assets which can be used as a collateral. Due to these factors, younger Tibetans prefer leaving these settlements and work somewhere else in India. As stated by the UNHCR, those Tibetans who do not live in these settlement, generally depend on the stipends provided by the CTA's welfare office or they prefer working in odd jobs, like restaurants, guesthouses and other service industry.102

Therefore the unemployment rate for Tibetan refugees residing in India is high and gradually increasing, because most of the employment opportunities are closed for the Tibetan refugees, even for those who hold's valid registration certificate, but they lack behind because they not citizens.

99 Tom A. Grunfeld, 'The Making of Modern Tibet', (1987), p.190. 100 supra note 9. 101 supra note 58 102 ibid.

Underemployment is also considered as a serious issue, as Tibetans are restricted from owning lands or companies, also restricts their ability to complete their education and which results into limited job opportunities for the Tibetan refugees. Plight of Tibetans refugees, some are not able to find job according to their educational background, whereas others cannot complete their basic education that might allow to seek better jobs.

Though initiative has been taken by CTA to curb this problem of unemployment and underemployment by encouraging Tibetans in the micro-enterprise development, which aims to change Tibetans from "job seekers" to "job creators". The CTA Department of House, provides different skills and trainings and offer small loans for a group of three- four Tibetans. The amount incurred from these businesses are not substantial and due to this factor this business need to be registered as corporations.

3.7 FREEDOM OF SPEECH, EXPRESSION AND ASSEMBLY

Under Article 19 of Constitution of India, it protects freedom of speech and expression and the right to assemble peacefully.103 But on a reasonable ground, this freedom of speech and expression can be curtailed by the state, if matter related to sovereignty and integrity of India, security of the State, friendly relations with the foreign States, public order, decency or morality gets affected by any act.104 Therefore government may impose "reasonable restrictions" on the freedom of assembly, which comes in the interests of the sovereignty and integrity of India or public order.105 In fact the Constitution of India confers most of the constitutional rights on "all persons," but Article 19 is confined to "all citizens,"106 therefore a foreigner, not being a citizen of India is not entitled to any of the rights mentioned under Article 19 or to remain in the territory of India.107

103 Indian Constitution, Art 19 (1)-(3). 104 ibid, Art 19 (2). 105 ibid Art 19 (3). 106 Compare INDIA CONST. art. 14 (guaranteeing equal protection of the law to all persons), and INDIA CONST. art. 21 (guaranteeing due process to all persons), with INDIA CONST. art. 19 (protecting freedom of speech, expression and assembly to all citizens). 107 Durga Das Basu, Shorter Constitution of India (12th ed. 1996).

Since 1990s, Indian government has become completely bigoted of Tibetan protests and demonstrations.108 Tibetans need to secure prior permission to demonstrate or protest, and in most of the cases, the India police tries to prevent such assemblies and protests. It is pertinent to that Indian authorities have always tried to suppress Tibetans protests especially on the occasions of visits by Chinese dignitaries.109 During such occasions, government imposes strict police security around the vicinity of the Tibetan settlement to discourage protests and demonstration. Mostly Indian officials deny to issue permit for the requested location for holding protests and demonstration and if in few cases, if permission is granted then that would be in some remote location to evade media publicity. Also Tibetans are likely to be arrested for not abiding by the permit guideline at demonstrations. India puts complete effort to suppress demonstrations and political expression by the Tibetans. The U.S Department of State had briefly described about the Indian policy in this matter as follows:

"Indian authorities prohibit Tibetans from engaging in overt political agitation, particularly if it is anti-Chinese. The presence of the Dalai Lama and thousands of his supporters in India has long been a neuralgic issue for China and a perennial bone of contention in the Sino-Indian political agenda. As Sino-Indian relations have improved over the last few years, both New Delhi and Beijing have made conscious efforts not to allow the Dalai Lama’s presence to cast a shadow over the broader relationship. Nonetheless, the Indian government has circumspectly tried to avoid giving Beijing the impression that the issue is political rather than humanitarian and that the Dalai Lama is a political leader rather than a religious and cultural figure. New Delhi is not always successful in persuading Beijing when, for example, Tibetan exiles assemble in Dharamsala to hear the Dalai Lama’s annual March 10th address on the anniversary of his 1959 flight into exile or when Tibetans protest Chinese policies in small street demonstrations. On such occasions, Indian authorities generally cite the ‘messiness’ of democracies and ignore Chinese protests as best they can. New Delhi can, however, and has in the past, arrested Tibetan demonstrators in order to prevent them from engaging

108 supra note 32 109 supra note 9, On January 7, 1999, police tried to arrest Tibetans from protesting in New Delhi without first seeking permission to demonstrate.

39 in ‘political activities’ as a means to placate Beijing and maintain normalcy in its relations with China"110.

This can be elaborated by including few instances:

In November 1996, former President Jiang Zemin visited India, almost 300 police officers used tear gas and water cannons to suppress Tibetan protestors and fifty protestors were arrested.

In January, 1999, Indian police tried to prevent and detained Tibetans for protesting in New Delhi for not seeking prior permission to demonstrate, which lead China express its displeasure with India for not preventing Tibetans from protesting in front of the Chinese Embassy. Thereafter on October 20, 1999, riot police restricted Tibetans protestors from marching towards the Chinese Embassy and on October 12, 2007, almost twenty -two protestors were detained during a Tibetan Youth Congress demonstration of the Chinese Embassy in New Delhi. Four Tibetans were brutally beaten up in the police custody.111

It seems that Indian intolerance aggravated more during the 2008 Beijing Olympic games. On March 2008, on the anniversary of the Dalai Lama's flight into exile, hundreds of monks and nuns planned to organize a protest march starting from Dharmsala till the border of Tibet. In response to this, India issued a restraining order which restricted the protestor from crossing the province where Dharamsala is located, in Himachal Pradesh.112 As protestors did not abide by the restraining orders and continued their march, Indian police arrested more than 100 Tibetan protestors and an Indian court order them to be held for fourteen days.113 An Indian Ministry of External Affairs spokesman stated that, "India does not permit Tibetans to engage in anti-Chinese political activities in India."114

110 supra note 32 111 Tibetan Activists in Tihar Jail after Severe Beatings by Delhi Police, WORLD TIBET NETWORK NEWS (Oct. 12, 2007). 112 Heather Timmons, 'Tibetan Protest Marchers Vow to Reach Homeland,' N.Y. TIMES, Mar. 12, 2008. 113 Simon Robinson, Madhur Singh,' India Detains Tibet Protestors, THE TIMES OF INDIA, Mar. 14,(2008) 114 ibid.

Later in 2008, the Chinese used these actions in the way of encouraging India to halt the "special meeting" on the future of Tibet, which was initiated by the Dalai Lama. Qin Gang, spokesman of China's foreign ministry stated that "The India government has made a solemn commitment about not allowing any anti-China activities on its soil. We hope that commitment will be implemented".115

India's intolerance of political dispute which tends to threatens its relations with China seems likely to be continued.

3.8 RELATIONS BETWEEN TIBETAN AND INDIAN COMMUNITIES

Although Tibetan refugees have settled in relatively isolated areas from the local people, with the intention of preserving their own distinctive religion and culture, but in many places like West Bengal and Sikkim, where there is an interaction between the Tibetan refugees and Indian communities and share harmonious and reciprocal relations. But in recent time, there has been gradual decline in this regard and various instances have been witnessed were violence and hostilities have been erupted between the Tibetan refugees and local communities. In some areas Tibetan refugees, economic status has improved due to prosperity in business as compared to the local community people, they also receive funding and regular grants from the foreign agencies. Somehow these factors have led to economic disparity which eventually leads to friction and conflict. This situation seems to be more sensitive in Himachal Pradesh, where most of the Tibetan refugees live in both settlements and scattered camps, tracing back in 1997-98, there has been continuous conflict between the Tibetans and the local community people, specifically in the Gaddi and Gujjar distrcits of Himachal Pradesh. The reason behind these conflict were related to scare opportunities of livelihood, such as driving taxis and shop-keeping, because even local people availed these similar opportunities for their livelihood, so there was conflict in interest also who erupted into communal violence and burning and looting of Tibetan homes. But to retaliate, Tibetans too have used violent ways and also killed individuals thought to be accountable for such acts.

115 Saibal Dasgupta, 'China wants India to Block Dalai Lama’s Dharamshala Meet', THE TIMES OF INDIA, Nov. 14,(2008).

In Dharamsala, in April 1994, the most serious clash occurred, an intercommunal violence aroused after a Tibetan youth stabbed and Indian taxi driver to death during a dispute which aggravated the situation. In response to this Indian mobs looted Tibetan houses, stores and burned Tibetan government offices. Due to which India had temporarily close the refugee reception center in Dharamsala. These incidents have also been followed by some criticism, such as Tibetans are taking advantage of Indian hospitality and taking undue advantage of Indian government.116

There are numerous other incidents of growing anti-Tibetan sentiment in the host population, for an example, in 1999, in northern Indian city of Manali, a Tibetan killed an India youth following some discussion, in reaction to this, almost 140 Tibetan shops and market stall were set on fire. Recently in 2005, a political party in the southern Indian city of Mysore demonstrated by asking on Tibetans to "quit India". 117 Demonstrators displayed placards with anti-Tibetan slogans that urged the GOI to throw out all Tibetans living in India, in part to protect India's relation with China.118

Earlier in 1999, due to the growing tension amongst the Tibetan refugees and the locals, Dalai Lama had requested to relocate CTA offices and his private residence to the Faridabad region, but this request was ultimately rejected by the local Indian community leaders.

However, despite of few episodic tensions among the Tibetans and the local community people, they generally coexist peacefully and no doubt Tibetan exile community is also grateful to India for its generosity and hospitality. In 2009, in respect to avoid future conflicts both the Tibetan and India communities have taken initiatives towards building a more peaceful relationship, where the Indian government has planned a community- policing program for improving relationship between the two communities.119

116 ibid. 117 Bhagat Singh Samithi Asks Tibetans to ‘Quit India’, STAR OF MYSORE (May 10, 2005). 118 ibid. 119 ibid.

CHAPTER-4

LEGAL OVERVIEW: AN INDIAN AND INTERNATIONAL FRAMEWORK.

4.1 INTRODUCTION

India has an age old tradition of serving humanitarian protection to refugees and asylum seekers. Hence India deserves a special mentioning for the way it has managed to hold 2,03,383 refugees within her boundary without any specific domestic legislation or any formal obligation based on International documents. 120 But through human rights perspective due to the lack of specific refugee legislation or any formal recognition of 1951 Convention on Refugees or the 1967 Protocol has led to varying treatments of different refugee groups within territory of India.121

This chapter will first examine the status of refugees and protection under International Law. It will also highlight elaborately on the legal aspects of the current refugee situations in India.

At present India has not acceded to either the 1951 Geneva Convention Relating to the Status of Refugees or the 1967 Protocol (Refugee Convention and Protocol). 122 This signifies that India from the very beginning has restrained itself from the International refugee system. However this does not imply that India does not have any legal system or consistent policy towards refugee residing on Indian soil. The admission and protection of refugees in India is controlled under the provisions of Foreigners Act, 1946, the Emigrants Act, 1983, the Passport Act 1967 and above all these the Indian Constitution under Art 21. India is also bound by various human rights and customary norms, which if combined create a broad norm prohibiting forced return (refoulement). But no such provision is made in the domestic law of India to extend protection for the displaced persons from refoulement. However initiatives were taken to introduce comprehensive

120 Human Rights Law Network, 'Report Refugee Population in India 2014', httpa://www.ssrn.com 121 ibid. 122 Refugee Convention, 189 UNTS 150, 28 Jul.1951.

43 refugee law but it has been repeatedly defeated due to the objections made from the Indian security and intelligence agencies.

4.2 INTERNATIONAL NORMS FOR THE TREATMENT OF REFUGEES

The United Nations 1951 Convention Relating to the Status of Refugees, which is also known as the Refugee Convention, defines refugee as 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, 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."

Before taking up the legal aspects of the refugee problems in India, it may be appropriate to briefly review the evolution of international law of refugees as well as the conventions, declarations and principles adopted thereto by the United Nations and in the different regions of the world. The legal framework within which the refugee is located remains characterized, on the one hand, by the principle of state sovereignty and the related principles of territorial supremacy and self-preservation and on the other hand by competing humanitarian principles deriving from general international law and from treaty.123 Refugees are for the most part victims of human rights abuses. And more often than that the great majority of today's refugees are likely to suffer a double violation, like the initial violation in their own country of origin which will usually underlie their flight to another country and then the denial of a full guarantee of their fundamental rights and freedoms in the receiving state. The international legal regime for the protection of refugees, whose basis is provided by the 1951 UN Convention Relating to the Status of Refugees and the 1967 Protocol, attempts a guarantee against such violations. Or, at any rate, these conventions prescribe duties and obligations which are incumbent upon States in the their treatment of asylum seekers and refugees.

123 Guy S. Goodwin-Gill, 'The refugee in International Law',(1993),p.215.

International guarantees for the protection of refugees, of course, are in themselves largely without much effect unless supported by parallel guarantees within the domestic structures of the various states which comprise the international community. This suggests the need for a certain concordance between international law, on the one hand and municipal law on the other. This need is an acknowledgement of the fact that the International refugee law largely, if not fully, depends for its effectiveness on the willingness of States to respect and apply to the individuals concerned. Therefore, the protection enshrined in the provisions of international refugee conventions may only be enjoyed by the refugees through provisions in the municipal laws enacted by the host or receiving State.

There are three formal instruments on refugees:

1. The Statue of the Official of the United Nations High Commissioner for Refugees, adopted by the United Nations General Assembly in 1950. 2. The Convention relating to the status of Refugee, 1951 3. And, Protocol relating to the Status of Refugee, 1967.124  THE STATUTE OF THE OFFICE OF THE HIGH COMMISSIONER FOR REFUGEES

The Statute of the Office of the High Commissioner for Refugees is an important instrument, sometimes overlooked because it is not in treaty form. It invests the High Commissioner with the function of protection of refugees. These functions include the promoting measures to improve the situation of refugees by special agreements with governments, assisting governmental and private efforts to promote voluntary repartition or assimilation within new national communities, promoting the admission of refugees, facilitating the welfare and improvement of conditions of refugees and maintaining liaison with governments in all matters concerning refugee questions. The High Commissioner is assisted by the advice of the Executive Committee of the High Commissioner's Programme, which in term established, in 1975, a Sub-Committee of the whole on International Protection.

124 Collection of International Instruments Concerning Refugees, Published by the Office of the United Nations High Commissioner for Refugees, Geneva, (1990).

 CONVENTION RELATING TO THE STATUS OF REFUGEES OF 1951

Indeed, the principal legal instrument concerning refugees is the Convention Relating to the Status of Refugees of 1951. The United Nations 1951 Convention Relating to the Status of Refugees, which is also known as the Refugee Convention, defines refugee as 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, 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."125

When the member of the United Nations sign the Refugee Convention or its 1967 Protocol Relating to the Status of Refugees, it signifies that the member countries have undertaken to apply those 34 rights and freedom granted for the refugees which is laid down under the Refugee Convention. The Refugee Convention lays down a certain dealing with matters related to discrimination on the basis of race, religion or country of origin, as well as religious rights, property rights, right to association, access to courts, employment, welfare, housing, education, freedom of movement, identity papers and travel documents, expulsion, non-refoulement, and naturalization for refugees. This was solely based on the Universal Declaration of Human Rights, with the aim of assuring refugee's rights in their host countries. In the present time, the world community abide by these standards and 137 countries are signatory to the Refugee Convention or its Protocol.

It is permissible for the signatory states to reserve most of the articles laid down under the Refugee Convention, but there are five rights and freedom which is spelled out in the Refugee Convention from the reservation category, that is, Article 1-the refugee definition, Article 3- the obligation not to discriminate, Article 4- freedom of religion,

125 Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S 137 [hereinafter 1951 Convention]

Article 16(1)-access to courts and Article 33-non-refoulement. These provision stands binding on all the signatory states just to ensure that the contracting states provides the most basic and minimal assistance to the people fleeing persecution.

So far India has neither ratified the refugee convention nor its 1967 Protocol. Hence, India has not even consented to the basic standards provided for the treatment of refugees and all its policies are not covered under the UN supervision. In fact India has refused the United Nation High Commissioner for Refugees (UNHCR) and other international aid organizations to monitor and provide assistance to the Indian government related to its refugee population. Indian government has not permitted to access the large population living in the interiors of the country and only in rare cases its allows international assistance and monitoring of the small number of refugees living in the urban centers.

It can be presumed that India' reason for not ratifying the Refugee Convention could be the insecurity of indefinite legal burden for the vast numbers of refugees seeking shelter in India. Indian government gives a reason that it would it is not capable of handling the requirements mentioned under the Refugee Convention, and by adopting to the requirements it could create immense pressure and will hamper the country's economic and social balance. According to US Committee for Refugees, Indian government is assuming the Refugee Convention to be burdensome on the host country, while the international community is inactive. And in response to this Indian government argues that its current policy on refugee is in compliance with the international norms. Therefore, India's gives a reason that by ratifying the Refugee Convention, it would become an obligation to abide by the convention and also it would permit for substantial international assistance from other United Nations member states for thousands of refugees in India. India argues that by ratifying the Refugee Convention it would create burden upon the host country and states that international community is idle is unfounded because by signing the agreement it would permit UNHCR to extend greater assistance to the refugee population reliving India from the burden. Due to these factors India governments prefers to tackle refugee situation on an ad hoc basis.

4.3THE AMBIGUOUS POSITION OF INDIA

The fact cannot be denied that India has ratified to many international human rights treaties.126 India's International obligation's have been drawn from sources like Universal Declaration of Human Right, 127 which applies to both citizens and non-citizens, the Declaration on Territorial Asylum128, the International Covenant on Civil and Political Rights129, the International Covenant on Economic, Social and Cultural Rights130, the Convention on the Elimination of All Forms of Discrimination against Women131, and the Convention on the Rights of the Child132, which applies to both women and children who are and who are not citizens. India has adopted and ratified to all these International treaties. India has also acknowledged a fundamental principle of refugee law, the principle of non-refoulement and has adopted the Bangkok Principles on the Status and Treatment of Refugees (Bangkok Principles). These principles were formulated at the regional level to handle the matter related to the status and treatment of refugees and which also focuses on clauses of voluntary and non-voluntary repartriation, the right to asylum and minimal standards of treatment for refugees.133 Also India has shown a strong interest related to refugee issues by adhering to the Executive Committee of the High Commissioner's Programme (ExCom) in 1995.134 In fact the adoption of the Bangkok Principles nor the participation in ExCom are legally binding, but still India has been showing interest by abiding to some of the core elements of International refugee law.

126 These include the International Covenant on Economic, Social and Cultural Rights, Jan. 3, 1976, 993 U.N.T.S. 3 (ICESCR); the International Covenant on Civil and Political Rights (ICCPR), Apr. 10, 1979, 999 U.N.T.S. 171; the International Convention on the Elimination of All Forms Racial Discrimination (CERD), Dec. 3, 1968, 660 U.N.T.S. 195; the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), July 30, 1980, 1249 U.N.T.S. 13; the Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment, Oct. 14, 1997, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S 85 (CAT); and the Convention on the Rights of the Child, Dec. 11, 1992, 1577 U.N.T.S 3 (CRC). 127 Universal Declaration of Human Rights, GA Res, 217 (III), UN GAOR, 3d Sess., Supp. No.13, UN Doc. See especially Arts. 13 (Freedom of Movement), 14 (Asylum), and 15 (Nationality). 128 Declaration on Territorial Asylum, GA Res.2312 (XXII), 22 UN GAOR, Supp. No. 16, UN Doc. A/6716 (1967). 129 International Covenant on Civil and Political Rights,999 UNTS 171, 19 Doc. 1966. See especially Arts 12 (Freedom of Movement) and 13 (Prohibition to Expel Aliens under certain Circumstances). 130 International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3, 19 DeC (1966). 131 Convention on the Elimination of All Forms of Discrimination against Women, (1976) 132 Convention on the Rights of the Child (1989), See especially Art.22 which deals with refugee children. 133 The Bangkok Principle has been revised and compiled by the Asian-Affairs Legal Consultative Organization (formerly the Asian-African Legal Consultative Committee) (2001). 134 The ExCom only has executive and advisory functions, mostly used to review funds and programme, to approve budget targets and to give advice to the High Commissioner.

But to date, India has not ratified to two of the most important treaties for the protection of refugees, that is the 1951 Convention Relating to the Status of Refugees 135 (1951 Convention) and its 1967 Protocol.136 India has also not enacted any specific domestic legislation related to the protection of refugees.137 Therefore, the Tibetans in India do not enjoy the official status of refugees, either under the International regime or Indian Law.138 One more relevant point has to be focused, that the local office of the UNHCR, the U.N agency which has been operated for the protection of refugees has been informally functioning on the Indian soil with the Indian government's consent, but in the absence of a treaty basis for its activities, it plays a very restricted role in assisting Tibetan refugees or other refugees.139

Although the Indian government claims that its policies are in compliance with the International standard, but so far India has no such law which could specifically deal with the protection of the refugees, rather it has handled the influx of refugees at the political and administrative levels. The outcome is that, the refugees are treated under the law which is applicable to aliens 140 in India. Beginning with Article 21 of the Indian Constitution concerning the protection of life and personal liberty. Other Indian laws such as the Criminal Procedure Code and the Indian Penal Code is applicable to both foreigners and refugees. Also the 1946, Foreigners Act is applied on both foreigners and refugees. Thus, there is no special status reserved for the refugees in India, all of them are treated as foreigners. Yet, India has not allowed the presence of refugees on the Indian soil, however in the absence of any such specific legislation on refugees the attribution of

135 Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S 137 [hereinafter 1951 Convention]. 136 Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S 267 [hereinafter 1967 Protocol]. 137 BUREAU OF DEMOCRACY, HUMAN RIGHTS, & LABOR, U.S. DEP’T. OF S., 2008 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: INDIA § 2(d) (2009) [hereinafter 2008 Country Report]; CHIMNI, supra note 60, at 378, 379. 138 Guy S.Goodwin-Gill & Jane McAdam, 'The Refugee in International Law',( 2007). 139 ibid. 140 The word 'alien' is nowhere defined though it appears in the Constitution of India (Article 22 para 3 and Entry 17, List I, Schedule 7), in section 83 of the Indian Civil Procedure Code, and in section3 (2) (b) of the Indian Citizenship Act, 1955, as well as several other statutes. The following enactments have relevance to the regulation of aliens in India: the Foreigners Act, 1946; the Registration Act, 1939; the Passport (Entry into India) Act, 1920; and the Passport Act, 1967.

49 some kind of refugee status which will be required to be specified is done on an ad hoc basis.141

In the absence of a specific legislation, the plight of the refugees are decided on the basis of Foreigner's Act which was drafted in early 1983, the Passport Act 1967 and above all Article 21 of the Indian Constitution. In India the major law enforcing agencies which consistently deal with the refugees on the first hand are the security personal at the border, the immigration personnel at land check post, international airports and the seaport. As the status of refugees in India is regulated by political and administrative decisions rather than any specific model of conduct.142 The government's approach in tackling matters related to refugees on an ad hoc basis has led to varying treatment of different refugee groups. For an example, in recent time, India has adopted stringent policies in dealing with the foreigners due to security issues, but this has resulted in genuine refugee paying an unfortunate price in a country that otherwise has an impressive history of protecting refugees.143 Through this paper I will try to evaluate the implication of each Act with reference to refugees in India.

 CONSTITUTIONAL PROTECTION TO FOREIGNER'S

A question arises related to what rights do foreigners or aliens possess in the territory of India? In response to this, foreigners are entitled with some degree of constitutional protection in India, which includes the protection of the equality clause (Article 14) and the life, liberty and due process provisions (Article 21) of the India Constitution. The Supreme Court of India has followed a view that the rights of foreigners are limited to those contained in Article 21 of the Constitution of India, which reads as:

"Protection of Life and Personal Liberty-No person shall be deprived of his life or personal liberty except by procedure established by law."144

141 supra note, 14 142 Bhairav Acharya, 'The law, policy and practice of refugee protection in India', 2001, p.28. 143 ibid. 144 Louis De Raedt v. Union of India (1991 (3) SCC 554 at p. 562); and State of Arunachal Pradesh v. Khudiram Chalana, (T 1993 (3) S. C. 546 at p. 552). 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

Also a question arises, whether refugees as a special class of aliens posses any extra rights as compared to aliens in general? This is to say, to the extent that refugees as a class are known to and defined by general international law as a special category of aliens, does it import any legal consequences for the Indian government in the absence of any legislation on the subject?

The answer to this question can be given through the help of a judgment passed in 1996, where the Supreme Court in National Human Rights Commission v State of Arunachal Pradesh145 interpreted that refugees are class apart from the foreigners, in respect of deserving the protection under Article 21 of the Indian Constitution.146 To highlight the judgment,

"We are country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be derived of his life or personal liberty except according to procedure established by law. Thus the State is bound to protect the life and liberty of every human being , be he a citizen or otherwise, and it cannot permit anybody or group of persons", for an example, where AASU, threatened the Chakmas to leave the State, if failed, they would compel to do so.147

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. 145 SCC 742(1996) 146 The case was involved in a dispute between Chakma refugees residing in Arunachal Pradesh and a group of hostile locals (AAPSU). The people has been displaced in 1964 from erstwhile East Pakistan (now Bangladesh) and moved from Assam to the current state of Arunachal Pradesh, a sparsely populated area of India. Although many applied for citizenship, local officials, prevented their applications from reaching the federal government; despite living in India for over 30 years , some of the Chakmas remained , officially speaking, non-citizens. As the Chakmas population skyrocketed, the AAPSU isued, quit orders, demanding that the Chakmas leave or suffer harm. Arunachal Pradesh formulated plans to movethe Chakmas to another state, even though some neighboring states threatened to kill the Chakmas upon entry. Meanwhile the Ministry of Home Affairs was attempting to confer blanket citizenship (but was continually foiled by the State, which refused to forward the naturalization applications) and demanded that the state provide security at their present location. Finally, the NHRC filed a petition in court demanding that Arunachal Pradesh halt the Chakmas forced migration and protect them from harm. Fortunately for the Chakmas, the Supreme Court ruled that they could not be moved until the federal government had ruled on their citizenship, and that, in the meanwhile, the state had an obligation to protect them from violence. 147 SCC 742 at para 20, (1996)

In the above cited case, the Court was more concerned about the substantive and procedural part of Article 21, rather than the imperative right of the refugee for a non- refoulement. It noteworthy, that in the absence of an institutional structure one cannot effectively argue that State is obliged to follow the principle of non-refoulement, in matters related to refugees until or unless it is raised to the standard of customary international law.148 So the argument is based on the fact that this principle of non- refoulement is followed by the 137 countries, who have ratified the international convention for the protection of refugees and it also advised to the other countries to follow this principle. So, by the time it has met the standard of customary international law as recognized by the majority international communities.149

The answer to this question can depend on the restriction which customary law imposes on the Indian judicial system, for every state, whether a member of the 1951 Convention or not, is compelled to respect the principle of non-refoulement which stands like a customary norm of International law.150

In India it is a well established fact that the principle of customary international law cannot be implemented by courts if they come in conflict with statutes.151 Therefore 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 is not inconsistent with the Acts of Parliament.152 Since the Foreigners Act 1946 has been interpreted to grant absolute and unfettered rights to the Indian government to expel a foreigner the principles of customary International Law cannot impose any limitation on its powers in this regard.153 But in practice Indian courts have been very helpful when it is approached with respect to individual cases, although they have done so without discussing in any manner the content of International refugee law. There have been instances where Court have stayed the deportation of individuals when an application for

148 H. Knox Thames, 'India's Failure to Adequately Protect Refugees.' p.23. 149 ibid. 150 Guy Goodwin-Gill, 'The Refugee in International Law' (Clarendon Press, Oxford, 1983) p. 97. 151 ibid. 152 IAN BROWNLIE, 'PRINCIPLES OF PUBLIC INTERNATIONAL LAW', (OXFORD UNIVERSITY PRESS, OXFORD, 1990) 4th ed. , p. 43. 153 ibid.

52 the determination of refugee status is in anticipation with UNHCR.154 Also there are cases where detainees have been granted leave to travel to New Delhi, where the main office of UNHCR is located, in order to seek determination of refugee status.155

So in the perspective of refugee rights it can be argued that Article 21 encompasses the principle of non-refoulement, which means that the 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'. This also signifies that the position of refugees in India is in an extremely precarious state, even if India has to abided by the International treaties which apply to refugees and also the domestic legislation directed at foreigners and other ad hoc policies adopted by India towards refugees are always subject to change.

 THE FOREIGNERS ACT AND ITS IMPLICATION TO REFUGEES

India has treated refugees under the same laws which is applicable to the foreigners. In India refugees are considered under the ambit of the term 'alien', and the word alien is referred in the Article 22, Para 3 and Entry 17, List I, Schedule 7 of the Indian Constitution, in Section 83 of the Indian Civil Procedure Code and also in Section 3(2)(b) of the Indian Citizenship Act, 1955. Further, enactments which has been established to govern aliens in India are the Foreigner Act of 1946, and it defines a foreigner under:

Definition of a 'foreigner'- Section 2(a) of the Foreigners Act of 1967 defines a 'foreigner' as "a person who is not a citizen of India", this can also be interpreted that it covers all refugees within its sphere. Through this Act, the Central government holds the power to make orders for prohibiting, regulating and restricting the entry of foreigners in

154 Supreme Court of India, Dr. Malavika Karlekar v. Union of India, Writ Petition (Criminal) No.583, 25.9.92. 155 Shri Khy-Htoon and others v. The State of Manipur, Gauhati High Court, Civil Rule No. 515 of 1990. Order dated 11th September 1990; Mr. Bogyi v. Union of India, Gauhati High Court, Civil Rule No. 1847/89. Order dated 17th November 1989; and Ms. Zothansangpuli v. The State of Manipur, Gauhati High Court Civil Rule No. 981 of 1989. Order dated 20th September 1989.

India, also their regulating their departure there from and presence/ continued presence.156

There are various other orders enactments like the Registration Act, 1939 which deals with the registration of foreigners arriving, being present in and departing from India. Also, the Passport Act of 1920 and the Passport Act of 1967 which empowers the government to impose conditions on the passport for entry and to issue passport and other travelling documents to regulate departure. These enactments imposes restriction on the movement, activity and residence of foreigner and requires identity proof and regular appearance before the police. 157 Therefore, this Acts confers wide powers to the executive to control the activity of foreigners either by refusing their entry, if the foreigner does not comply with the entry conditions and may resort to immediate deportation. This falls contradictory with the principle of non-refoulement, which is often practiced by the member states who are signatory to international documents and this may actually affect the rights of a genuine refugee. This can be more elaborated through highlighting the case of Hans Muller of Nuremberg,158 where Supreme Court affirmed that,

"The Foreigners Act confers the power to expel foreigners from India. It vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains."159

Under these enactments, there is no distinction made between a genuine refugees and foreigners, due to which it creates a precarious situation for the refugees, like risk of being arrested by the immigrant authorities, risk about their prosecution if they enter India without a valid documents.

156 The Foreigners (Restriction on Movements) Order, 1960; Foreigners (Restriction on Activities) Order, 1962; Foreigners (Restriction on Residence) Order, 1968, Foreigners( Proof on Identity) Order, 1986; and Foreigners (Report to Police) Order, 1971.

158 Hans Muller of Nuremberg v. Superintendent, Presidency Jail, Calcutta AIR 1955 SC 367, p. 36. 159 ibid.

Therefore, when a refugees is detained by the customs, immigrants or police authorities for not following the above mentioned conditions, they has taken into the police custody and First Information Report is lodged against them. In many cases, as per the provisions of these above mentioned statues they if the refugees are not holding the valid travel documents they have to face forced deportation. Also refugee has to face the consequences of prosecution in case of violating any rule made under the Registration of Foreigners Act, and if he is found guilty of any offence shall under this Act may be punished with imprisonment which may extend to one year or with a fine up to one thousand rupees or with both.

Its significant to note that, the main approach which India has adopted to treat the refugees under the law are similar to those applicable for the foreigner. Thus, after evaluating these above mentioned enactments, there exist a considerable difference between a refugee and a foreigner. According to the 1951 Convention on Refugee which has defined refugee as "the group as those who fled from their home country owing to a well-founded fear of persecution on race, religion, nationality, membership of a particular social group or political opinion and is unable or unwilling to return to his country because of that reason".

But in general, foreigners fall into a different category, which may include temporary residents, tourists or travellers. They travel to India for specific reason with the prior permission of Indian Government. For an instance, a foreigner might turn as a refugee if during his stay in India, the situation in their homeland turns out to be as equal to that of 1951. There is yet another group, like illegal economic migrants , who encroach into Indian borders with a motive to improve their economic condition, without holding any formal authority from both the country of origin and destination. Another category is the threatening groups like criminal spies, infiltrators, militants etc, whose act will be dealt under the Indian Criminal laws or special laws. So if all these different categories of people are treated under the same legislation, it's bound to disparities and injustices.

 PRINCIPLE OF NON-REFOULEMENT UNDER INDIAN LAW

Refugee rights are prescribed under the Convention and Protocol, which consists of two main components. Firstly component refers to the principle of non-refoulement, which prevents the State from returning a refugee to his or her homeland where he has a well- founded fear of persecution.160 It is generally considered as a duty of the host state rather than as a right of the refugee. Second component deals with the those rights which should be available for the refugee, which has impact on his day to day life in a host country, like the right to education, the right to hold property, etc. But the later rights comes into execution only when the first principle is implemented.

But looking at the India's ability to refoule person seeking asylum in India tends to violate the international customary law on the treatment of refugees, as well as it falls against the standard laid down under the Refugee Convention. As a part of the customary International law, the policy of non-refoulement prohibits a country from expelling refugees to countries where their lives and liberties are at risk. 161 Majority of states including the 137 signatories to the Refugee Convention have been implementing the policy of non-refoulement in its purpose of whether to grant entrance to people seeking asylum. In fact, the state assumes the policy of non-refoulement like an obligation to all person who are seeking asylum irrespective of the fact whether a country is a signatory to the Refugee Convention or not. Many states, those are not parties to the Refugee Convention, still abide by the policy of non-refoulement mentioned under the Refugee Convention and observe this rule.162 Therefore, the practice of non-refoulement by many states consider it as a legal obligation. But India when it refoule groups at the border who come seek asylum consequently violates the customary International law, and also the Refugee Convention.

4.4 DOCUMENTATION

160 Refugee Convention, supra note 100, art. 33 (" 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; 2. 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."). 161 Michelle Foster, 'Non-Refoulement on the Basis of Socio-Economic Deprivation: The Scope of Complementary Protection in International Human Rights Law', (2009) p. 267-78 162 ibid.

Since 1959, India has issued three types of documents to the undocumented Tibetan living in India and the privileges granted under those documents have developed over the time. But, none of these issued documents are permanent and all of them must be renewed periodically.163

I. REGISTRATION CERTIFICATES (RCs)

Setting aside few exceptions, the Tibetan refugees residing in India do not hold and remain ineligible even for acquiring citizenship of India. And if a Tibetan refugee is willing to reside in India without Indian citizenship, Tibetans must hold an RC, which proves that the bearer has registered himself as a foreigner in India. A valid RC gives its bearer an informal status, which means granting the privilege to live in any designated regions for Tibetans, also permits to travel domestically and with certain conditions also to travel abroad. Generally the validity of RCs remains for a period of six months or one year and their renewal procedure is not guaranteed. Therefore their renewal which be secured either annually or semiannually, which must also depend on the place of issuance, which is at the local branch of the Indian Foreigners Registration Office.

A Tibetan can travel domestically if they,

1. Hold a valid RC, 2. Obtain permission, if required from the Indian authorities,164

163 In 2009, India announced that it would begin issuing “Unique Identification”(Unique ID) cards to each of India’s residents. These Unique IDs will contain biometric identification information, such as fingerprint data, and might be used for a variety of purposes, from verifying that the bearer has access to a particular bank account to the receipt of state aid. In theory, the Unique IDs will be issued on the basis of the 2011 census, which is being carried out as this report goes to press. Tibetans have been encouraged to participate and obtain Unique IDs. A high-level CTA official told TJC that, as the CTA understands it, a Unique ID will not establish legal residence in India and that Tibetans in India will still be required to obtain RCs to remain there legally. News reports indicate that the Dalai Lama has already participated in the 2011 Census and has urged other Tibetans to cooperate with the census officials. Whether any unique ID cards have been issued, as well as the nature of privileges, if any, associated with them, is still unclear. Email from Representative Tempa Tsering, Delhi Bureau, CTA, to Yodon Thonden, TJC (Oct. 8, 2010) (on file with TJC); see also Andrew Buncombe, ID cards planned for India’s 1.1 billion, THE INDEPENDENT (London), Jun. 27,2009 at 26; Nirmala Ganapathy, India’s Biometric ID Project Begins, THE STRAITS TIMES (Singapore), Sep. 30, 2010; S.N.M. Abdi, Indian Census Inclusion of Tibetans ‘Overdue’, SOUTH CHINA MORNING POST, May 10, 2010 at 7; Resident Tibetans to be Included in Indian Census 2011, BBC MONITORING ASIA PACIFIC, Apr. 24, 2010; Dalai Lama “Very Happy” tobe Included in 2011 Census of India, PHAYUL, May 8, 2010, 164 Tibetans may travel to some regions without first obtaining permission from the Indian authorities. For example, a Tibetan residing in McLeod Ganj does not need explicit permission to travel to Bir, a relatively

3. And report back to the local police after returning.165

So it becomes mandatory for Tibetans to carry their RCs whenever they have to travel within India. 166 In fact the executive branch, as a matter of discretion, issues and establishes the policies for RCs which is formed on the Registration of Foreigners Act of 1939 and the Foreigners Act of 1946, both of these acts have predated the arrival of large numbers of undocumented Tibetans. Therefore the residence and the travel privilege that an RCs confers can be considered a matter of executive grace and policy pursuant to these statutes, not laws in their own right. However, the Indian policies in respect to RCs have been changed over time, and in fact the local government authorities do not always execute the federal policies consistently, which can be either within or as between India's sub-federal government entities. This prediction has led to great deal of confusion about what privilege RCs grants.

Granting of RCs to the Tibetan refugees depends on one very important factor and that depends on the date when they arrived India. As mentioned earlier, India fist issued RCs to the masses who arrived in the year 1959, following the Lhasa Uprising. This policy of issuing RCs continued till 1979, and after that India stopped issuing RCs to new arrivals, because India stopped considering these Tibetans as "refugee" even in informal sense.167 In response to this, one CTA officer stated that, imposing strict policies by the India's national government on prohibiting to issue RCs to the newly arriving Tibetans168 in India, is violating "the law of the land."169 The only new RC was issued by the national government, only in cases where Tibetan children were born in India to parents who had already arrived before 1979 were entitled to issue a valid RCs. Tibetan children of this

proximate Tibetan settlement that is also within the Indian State of Himachal Pradesh. But the same Tibetan might well require permission to travel to another state. 165 The Foreigners Act of 1946, Section 3(2)(a),(b), (d), and (e)(ii). The requirement that foreigners must report to local police both before and after traveling domestically is often not strictly enforced. 166 U.S. Embassy in New Delhi Response to Request for Information from Sec’y of S. Wash. D.C. (April 1999) 167 Immigration and Refugee Board of Canada, India/China: Whether a Tibetan whose birth in India between 1950 and 1987 was not registered with the authorities would be recognized as a citizen; whether the Indian government accepts birth certificates issued by the Tibetan government-in-exile; whether the Indian government issues birth certificates to Tibetans born in India, 6 February 2006, ZZZ100699.E, available http://www.unhcr.org/refworld/docid/45f147d1a.html 168 supra note 169 ibid

58 generation had to register themselves under the Foreigners Registration Office and then apply for an RC before the age of eighteen.170

In the late 1980s and early 1990s, India pretended to turn a blind eye related to the absorption of new arrivals coming into the exiting Tibetan communities and also the process of issuing unauthorized RCs.171In fact the CTA also used the tactics, by stating that the new arrivals were either for temporary basis in India on pilgrimage and would be returning to Tibet or, they were born in India to Tibetan parents who has arrived during the period of 1959-1979, but had not yet registered. And it also issued birth certificates to these newly arrived Tibetans to provide a basis for acquiring RCs from the Indian officials.172

In the early 1990s, the Indian government discarded the policy of adding the new arrivals of Tibetans into the existing communities and in against to this policy, India adopted policy of voluntary repartition. This made it more difficult for the newly arrived Tibetans to acquire RCs.173 Due to this factor undocumented Tibetans were debarred from residing in India without possessing a valid RC and they were subjected to harassment by the local police, they were also detained for a period of three months, had to pay fines and many times there were threatened to deport back to Tibet. Till date, Tibetans living in India without holding a valid RC have to live in a state of fear and insecurity. It becomes difficult for them to travel domestically or internationally, to find shelter, because it require evidence of their legal status and also becomes problematic to find employment. They are debarred from obtaining few benefits or services which is generally assessed by the other Tibetan, holding valid RCs like, education and medical treatment which is often supplied by the CTA.174

170 ibid. 171 RCs and ICs may not be genuine for one of at least two reasons: on the one hand, they may be literal forgeries, that is, manufactured by someone other than authorized Indian officials; on the other, they may be genuine RCs that were issued to or intended for someone other than their bearers. The latter is by far the more common scenario. 172 Dr. Robert J. Barnett, 'Tibetan Modernities: Notes from the field on social and cultural change' ,(2008), p.199. 173 ibid. 174 Eileen Kaufman, 'Shelter From the Storm: An Analysis of U.S.Refugee Law as Applied to Tibetans Formerly Residing in India',( 2009),p.536.

But it is quiet pertinent to note that, even those Tibetans who had acquired a valid RC hand no legal right to renew at the end of the six month or after one year term of the RCs. Generally the renewal process is considered to be done routinely, but in the case of renewing Tibetans RCs it is solely based at the discretion of the Indian authorities. As a matter of fact Tibetans with or without RCs stand at the equal footing, because they both cannot enjoy a permanent legal status in India. Nor do they have the legal power to enforce, in court or elsewhere, related to limited rights which has been obtained through RC, which is considered as privileges provided under the Foreigners Act of 1946 and the Registration of Foreigners Act of 1939. The point which should be highlighted is that the RCs is absolutely a matter of executive policy and not legal mandate, and it holds no consistency because it may be changed at any given time if the executive branch finds fit to alter its practices.

II.IDENTITY CERTIFICATES (ICS): INTERNATIONAL TRAVEL

Identity Certificate is a travel document which is generally possessed by those Tibetans with RCs. Identity Certificate is quite similar to passport, the cover of the ICs is imprinted with the India's national symbol, that is the Ashoka pillar, but its yellow in color rather than dark blue. Identity Certificate application is available at the office of the Dalai Lama's Representative in Delhi. After completing the procedure of application, it is further forwarded to the Indian regional passport office which is located in Delhi and also to the applicant's state of residence. Then the State official confirms that the applicant resides at their mentioned address in the application. Finally it is the Passport Office of the Ministry of External Affairs which issues the Identity Certificate.175 But there has been many instances where Tibetans had to face undue delay in regard to issuance of ICs.176 The general time frame for the issuance of ICs takes one year, but there is no certainty in this regard, it may take three months also or three years or more.

It's a complex procedure, even after obtaining an ICs, a Tibetan refugee travelling has to again apply for re entry into India, therefore the IC must be stamped "No Objection to

175 supra note. 131 176 U.S. Embassy in New Delhi Response to Request for Information from Sec’y of S. Wash. D.C. (Apr. 1999).

Return to India"; which is also referred as "NORI stamp." Apparently, in many situations Indian authorities deny to issue NORI stamps on ICs, especially in cases where an applicant is involved into political activities. India holds no obligation to accept the return of Tibetan holding expired documents, nor there is any legal basis for a Tibetan who has been residing in India without any valid documents to return to India from abroad.177

Further, if a Tibetan is travelling internationally with a valid IC, then he must also obtain a return visa before returning, which can be issued at the Indian consulate in the state they are visiting. But there is no guarantee whether the consulate will issue such a visa, in reference to the Tibetan Justice Center, there have been many reports, where Tibetans had to face problems with the airport officials who are unfamiliar with IC travelling document.178 This shows a clear picture that how these policies have aggravated the difficulties that Tibetans have to face while travelling abroad. Earlier India issues "exit permits" for Tibetans who were invited to reunify with their family members residing outside India. To acquire an exit permit for the purpose of reunification required to have a travelling document which was to be issued by the host country or an international organization, for an example the International Red Cross. But on 31st December, 2006, India declared that it would no longer issue exit permits to the Tibetans. This policy adopted by India signifies that it was designed to restrict Tibetans from travelling to India.179

III. SPECIAL ENTRY PERMITS (SEPs)

In 2003, Government of India and the Central Tibetan Administration took an initiative to run a program known as Special Entry Permits (SEPs) which will permit some Tibetans to enter India via Nepal. So this SEP is issued to the Tibetans in Nepal before they leave for India. Its ensure Tibetan's safe transit and permits them to stay in India only for a short-period of time, although sometimes for a longer period of time, which completely depends on after their arrival. Initially India designed for four types of SEP designations:

i. "Refugees"

177 ibid. 178 supra note.131 179 ibid.

ii. "Pilgrimage" iii. "Educational Purpose", and iv. "Other".180

Later in 2005, India eliminated the Refugee designation. 181 Further, out of three remaining SEP types, only two (Education and Others) permitted Tibetans to stay in India. Also Tibetans who entered India for the purpose of Pilgrimage, were insisted to return back to Tibet within three months, although they stay might extend to six months or more. But they were not eligible to qualify for an RC (or any other relevant document) which could authorize them to stay in India more a longer period of time. Whereas, Tibetan who entered for the purpose of pursuing their education or an others SEP, were allowed to extend their period of stay and were qualified to obtain RCs, but for a temporary basis.

Government permitted other SEPs only in rare cases, for an example it was permitted in special cases including former political prisoners. This other SEP is considered to be diplomatically sensitive. Therefore it was only Education SEPs which was commonly used and Others SEP are stamped as "long-term stay permit."

4.5 CITIZENSHIP

I.THE FORMAL STATE OF INDIAN LAW

Under Part II of the Constitution of India, it defines person who are qualified to as Indian citizens based on the date of the Constitution's entry came into force.

Article 5- "citizens include everyone who

1) at the time, had his or her domicile in India and had either been born in India or had a parent born in India; or

180 Kashag (Tibetan Parliament) Circular 1069 (61) 2006-2007. 181 ibid.

2) ordinarily resided in India in the five years immediately preceding the Constitution’s entry into force."182 However, the Constitution does not define "citizenship" or any other process related to acquiring of citizenship. But under Article 11 of the Indian Constitution its confers general power to the Parliament to regulate citizenship and naturalization. 183 After exercising these general power, Parliament also enacted the Citizenship Act of 1955,184 which was subsequently amended by the Citizenship (Amendment) Act of 1986 and 2003, 185, which specifies about the procedure how a person may acquire or looses an Indian citizenship relating to the effective date of the Constitution. Section 3 of the amended Act, governs citizenship by birth. It provides that, "every person born in India, a) between January 26, 1950, and July 1,1987; or b) on or after July 1, 1987 but before the entry into force of the Citizenship Act of 2003, if one of that person’s parents is a citizen of India at the time of his or her birth; or c) on or after the entry into force of the Citizenship Act of 2003, if both parents are citizens of India, of if one parent is a citizen of India and the other is not an illegal migrant, shall be a citizen of India by birth."186

And, Section 4, as amended, govern citizenship by descent. It provides that every person born outside of India (a) between January 26, 1950, and December 10, 1992, if their father is an Indian citizen at the time of their birth; or (2) on or after December 10, 1992, if either parent is a citizen of India at the time of their birth, shall be a citizen of India.187 But if the person's parent is a citizen of India by descent only, then in that case that person shall not be entitled to acquire citizenship unless his or her birth has been registered under an Indian consulate or unless either of his or her parent had been in

182 INDIA CONST. art. 5. 183 ibid. art 11. 184 The Citizenship Act, No. 57 of 1955; INDIA CODE (2003). 185 Citizenship (Amended) Act, No. 5 of 1986; INDIA CODE (1986). Citizenship(Amended) Act, No. 6 of 2004; INDIA CODE (2003). 186 ibid.§ 3. 187 ibid. § 4.

63 government services at the time of the birth. Therefore, the Citizenship (Amendment) Act of 2003 further provides that after its entry into force, a person cannot acquire citizenship by descent unless the birth is registered under the Indian consulate within the period of one year from its occurrence or within the time limit of one year from the effective date of the Citizenship (Amendment) Act, whichever stands later, or with the permission of the federal government's permission.188

Section 5 of the Citizenship Act, as amended, "provides for citizenship by registration, which is available to, a) persons of Indian origin,189 b) persons married to citizens of India, c) minor children of citizens, d) adult citizens of India, and e) persons registered as overseas citizens of India for five years who have resided in India for the previous two years."190

Section 6, as amended, provides for citizenship by naturalization. The qualifications for naturalization are set forth in Schedule III. They require that the applicant a) not be an illegal migrant, which is defined as a foreigner who has entered into India without valid travel documents or has remained beyond the permitted time; b) denounce the citizenship of any other country; c) reside in India for the preceding twelve months; d) have resided in India for nine of the twelve years preceding that twelve month period; e) have good character; f) speak one language listed in Schedule 8 of the Constitution;191 and

188 The Citizenship (Amendment) Act, No. 6 of 2004; INDIA CODE (2003). 189 “A person shall be deemed to be of Indian origin if he, or either of his parents, was born in undivided India.” The Citizenship Act, No. 57 of 1955 § 5; INDIA CODE (2003). 190 ibid.

g) intend to reside in India.192 Therefore, the Citizenship Rules of 1956, was amended in the year 1998, and formulated further requirements for the process of registration and naturalization. Applicant have to attach an affidavits from "two respectable Indian citizens, which would testify the character of the applicant"; supply certificates attesting to the applicant's language proficiency; and take an oath of the allegiance to India.193

II.APPLICATION IN PRACTICE TO TIBETANS

According to Section 3 and 6 of the Citizenship Act of 1955, it appears that it provides a path to lawful naturalization to the Tibetans residing in India. But in reality, it proves to be a complex procedure for Tibetans to acquire Indian citizenship. As mentioned u/s 3, "that every person born in India between January 26, 1950 (the date on which India's Constitution entered into force), and July 1, 1987 (one of the dates on which India's Parliament amended the Citizenship Act), is and Indian citizen."194

Despite of this clear meaning laid down in this provision, India has still not treated Tibetans born in India during the above mentioned period, (this is implied to the second generation of Tibetans in India, who were born to parents who had arrived in the first wave, that is during the Lhasa Uprising), are treated more as a foreigner under the Foreigner's Act and not as a citizen of India.195

191 The languages include: Assamese, Bengali, Bodo, Dogri, Gujarati, Hindi, Kannada, Kashmiri, Konkani, Maithili, Malayalam, Manipuri, Marathi, Nepali, Oriya, Punjabi, Sanskrit, Santhali, Sindhi, Tamil, Telugu, Urdu. INDIA CONST. Eighth Schedule, at http://lawmin.nic.in/coi/contents.htm 192 The Citizenship Act, No. 57 of 1955 § 6; INDIA CODE (2003). 193 The Citizenship Rules, 1956 § 17(2). 194 supra note.148 195 In April 1999, an unclassified cable from the U.S. embassy in New Delhi to the Secretary of State stated, “Tibetans born to Tibetan (non-Indian citizen) refugee parents between 1950 and 1986 do not automatically receive citizenship at birth.”

This can be discussed in reference to one of the most decision issued by the High Court of Delhi, in the case of Namgyal Dolkar v. Ministry of External Affairs,196 which changed the status quo for Tibetans who qualified under the terms laid u/s 3 (1) (a) of the Citizenship Act. In this case, Namgyal Dolkar Lhagyari, was a Tibetan born in April 1986, in Knagra, Himachal Pradesh, applied for Indian passport, stating that she qualifies as an Indian citizen by birth according to Section 3(1) (a). Her claim wasn't heard for several years due to administrative and legal battles in the courts and executive agencies. Later it was concluded in the judgment passed by the High Courts of Delhi. Where the Court held that, according to Section 3 (1) (a) shows that, except as provided in subsection 3(2), "every person born in India on or after the 26th January 1950 but before the 1st day of July 1987shall be a citizen of India by birth."197 The Court held that, in cases where Tibetans who are born in India, irrespective of their parentage, during the above mentioned period shall enjoy birthright citizenship which is guaranteed under the Fourteenth Amendment to the U.S Constitution.198 The Court also observed that, as of 1st July, 1987, Parliament had on purpose removed birthright citizenship, but due to the amendment of the Citizenship Act did not, or as a matter of fact the Indian Constitutional Law could not apply retrospectively to derive those born in India before that date and after January 26, 1959, the adoption of the Constitution, of Indian citizenship.199 Subsequently, the court said,

"the policy decision of the Ministry of Home Affairs not to grant citizenship by naturalization u/s 6(1) of the Citizenship Act, as amended is not relevant in the instant case. Having been born in India after 26th January 1950 and before 1st July 1987, the Petitioner is undoubtedly an Indian citizen by birth in terms of Section 3 (1)(a) of the Citizenship Act."200

From the judgment, it becomes clear that Tibetan born in India between January 26, 1950, the year in which India's Constitution entered into force and the original

196 Namgyal Dolkar v. Ministry of External Affairs, W.P. (C) 12179/2009 (High Court of Delhi) (India). 197 ibid at ¶ 17 198 U.S. CONST. amend. XIV, § 1. 199 supra note 158 at, ¶¶ 23-24. 200 supra note. 145

Citizenship Act was enacted) and July 1, 1987, when the amendments to the Act changed the scope of birthright citizenship as mentioned above. Though the judgment is completely appreciated, but for Tibetans who fall with the ambit of this section have to produce sufficient evidence, like a birth certificate, which indicates that's their birth is within the duration which has been mentioned above in the section and also in the decision of the High Court. This procedure sometimes turn out to be difficult for some Tibetans who theoretically fall within the ambit of this section because not all undocumented Tibetans who are born in India possess a valid Indian birth certificates. One more factor has to be considered that during a decade after 1979, it became a common practice, where Indian government implicitly consented for new arrivals to acquire RCs by obtaining birth certificates that purported to show their birth to Tibetan parents who came to India during the period of 1959 and 1979, which would allow them to claim to be entitled for an RC. Due to this factor the former and practice might open a room for doubt for the executive branch to challenge the authenticity and validity of the birth certificates produced by the Tibetans which was issued during the above mentioned period which is covered under the High court's Judgment.

To conclude on this point, Tibetan refugees have to face a precarious situation, because without acquiring citizenship, Tibetan are not able to participate in India's political processes,201 vote in elections,202 hold government jobs, own property. Also it becomes difficult for them to qualify for most of the seats reserved in post-secondary educational institutions and they are debarred from owning companies203 and their shares. Lastly, as a non-citizen, Tibetans get confined under the Foreigners Act and the Registration Act, which as above mentioned imposes various restrictions on their rights.

Due to these inconsistencies in the policies shows that India is in a dire need to adopt a basic standards under which it can provide various treatment for the refugees living

201 ASIA PACIFIC HUMAN RIGHTS NETWORK, TIBETAN REFUGEES IN INDIA: DECLINING SYMPATHIES DIMINISHING RIGHTS, at www.hrdc.net/sahrdc/hrfeatures/HRF183.htm 202 “A person shall be disqualified for registration in an electoral roll if not a citizen of India.” The Representation of the People Act, No. 43 of 1950 § 16(1)(a); INDIA CODE (2003). See also Himachal Pradesh Panchayati Raj Act §121 (1994), at http://india.gov.in/allimpfrms/allacts/630.pdf 203 BUREAU OF DEMOCRACY, HUMAN RIGHTS, & LABOR, U.S. DEP’T. OF STATE, 1997 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: CHINA (1998).

67 inside its boundaries. Therefore, in order for India to bring its refugee law in compliance with the international community, only improving its domestic laws will be insufficient because it will repeatedly tend to reject international assistance and monitoring of refugee groups. India should make a specific legislation for the treatment of refugees and comply with the Refugee Convention or its Protocol.

CHAPTER-5 ROADBLOCKS TO FORMULATING A LAW

“As we watch refugees crowd into camps and pour over the borders, we know that we are not watching a temporary crisis” –Arundhati Roy204 India's status is known as refugee haven, it has absorbed the steady flow of refugee from its sub continental neighbors as from elsewhere. India has extended its support and assistance to refugees despite its own over-a billion populations, out of which six hundred million are living under the poverty line who are also deprived of the basic amenities. Indian legal framework has no specific law which could deal its huge refugee population, and it has not even taken any initiative towards evolving one either, so it chooses to treat the refugees on an ad hoc basis.

In fact, the National Human Rights Commission (NHRC) has submitted various reports205 suggesting India to promulgate a national law which could specifically deal with the treatment of refugees, or at least make necessary amendments in the outdated Foreigners Act (1946), which is currently the law under which refugees and asylum seekers are treated. The primary and the most important lacuna in the Indian law is that it does not specify or use the term "refugee", but use the term "foreigner", which hold complete different meaning as compared to refugee. Under the Indian Law, the term "foreigner" is used to define an alien who temporarily or permanently resides in the country. So refugees, immigrants and tourists are all confined under one broad category,206 which obviously deprives them of their different rights and privilege, which could otherwise be available under the Geneva Convention or other relevant convention.207

204 Rajeev Dhavan, 'Refugee Law and Policy in India', (2004), p. 156. 205 Rajeev Dhavan, “On the Model Law for Refugees: A Response to the National Human Rights Commission (NHRC),” NHRC Annual Reports 1997- 1998, 1999-2000 (New Delhi: PILSARC, 2003). 206 ibid. 207 The 1951 Convention Relating to the Status of Refugees and the 1967 Protocol, "The 1951 Geneva Convention," UNHCR-Public Relations Section, http://www.unhcr.org/home/PUBL/3b5e90ea0.pdf

Despite of these lacunas, India is still receiving Refugees for its neighboring countries. According to the World Refugee Survey which was conducted by the United States Committee for Refugees and Immigrants (USCRI) and it was also supported by the latest figure submitted by the United Nations High Commissioner of Refugees (UNHCR), that current data which shows the number of refugees and asylum seekers residing in India stands up to 4,35,900.208 Apparently, India mostly plays the role of the host country for refugees coming from its neighboring countries, who are either compelled to leave their country of origin due to many factors such as, internal or external conflict, political persecution or violation of human rights. Keeping these reasons in mind, it becomes important for the host country to provide at least some basic human rights and assistance to the refugees. Under Indian law, the word 'refugee' has not been defined anywhere and its seems theoretically impossible to define this term, neither the Foreigners Act of 1946 nor its following amendment or additions have defined this term. In 1997, the definition of 'refugee' was propounded under a commission chaired by Justice P N Bhagwati, who took an initiative to establish a uniform national law on refugee. Although, this bill was never tabled in the Parliament, but the term 'refugee' was briefly defined in the 'Model Law' as, "Any person who is outside his/her country of origin and is unable or unwilling to return to, and is unable or unwilling to avail himself/ herself of the protection of that country because of a wll-founded fear of prosecution on account of race, religion, sex, ethnic identity, membership of a particular social group or political opinion or owing to external aggression, occupation, foreign domination, serious violation of human rights or events seriously disrupting public order in either part or whole of his/her Country."209 It is pertinent to note that India has not acceded to the 1951 Convention relating to the status of refugees or to the 1967 Protocol. This makes India's international position in respect for the treatments of refugees, disputable. But it also important to focus that India is signatory to several international and regional treaties and conventions which is related to universal human rights and refugees, for an example, the UN Declaration on Territorial

208 “World Refugee Survey 2007," United States Committee for Refugees and Immigrants, http://www.refugees.org/WRS_Archives/2007/48-69 209 Rajeev Dhavan, 'Refugee Law and Policy in India', (2004), p. 156.

Asylum (1967), the Universal Declaration of Human Rights, and the International Convention on Civil and Political Rights.210 India is also a member of the Executive Committee (ExCom) of the UNHCR, whose function is to approve and supervise the material assistance programmes of the UNHCR; but India does not support or acknowledge the role of the UNHCR on its territory. From the above factors it becomes clear that although India abides by many international treaties and conventions which is related to the treatment of people living within its ambit, but India chooses to follow its own administrative and political arrangements for handling either temporarily or permanently settled refugee communities and gives a little scope to UNHCR for its functioning in India, except in emergency cases like the displacement of Chakma tribals from Bangladesh or rehabilitation of refugees from Afghanistan or the Autonomous Region of Tibet.211 According to the report it was estimated that out f 3,00,000 refugees residing in India, only 18,500 have received assistance and protection of the UNHCR.212 India has imposed restrictions on the functioning of the UNHCR which is considered as an international watchdog body which also provides a basic grounds for Indian policymakers to make the framework of a uniform national law which could specifically deal with refugees and to meet their international criticism in respect to the situation of refugees in the country.213 As we have briefly discussed in the previous chapter about the India's refugee policy and its ambiguous position, so this chapter intends to ascertain, whether by establishing a uniform national law it would be favorable to the interests of three important parties who are involved with the refugee policy. Firstly, the Government of India, secondly the UNHCR and then the refugees communities themselves. This chapter will also discuss regarding the current position of refugee residing in India, the rights which are conferred upon them, the political objection in respect of framing a uniform law and the current

210 T Ananthachari, "Towards a National Refugee Law for India," in P R Chari, Mallika Joseph, and Suba Chandran (eds.), Missing Boundaries: Refugees, Migrants, Stateless and Internally Displaced Persons in South Asia (New Delhi: Manohar, 2003), pp. 99-107. 211 Sarbani Sen, 'Paradoxes of the International Regime of Care,' in, Ranabir Samaddar (ed.) Refugees and the State: Practices of Asylum and Care in India, 1947-2000 (New Delhi: Sage Publications, 2003), p. 404-40 212 H K Thames, 'India's Failure to Adequately Protect Refugees,' Washington College of Law (2000), p.79. 213 ibid.

71 favorable conditions and the benefit of having a uniform refugee law will also be covered under this chapter.

5.1 ROADBLOCKS IN FORMULATING A UNIFROM LAW IN INDIA There are ample reasons to point out why there is an urgent need for formulating a uniform national law for refugees, but it is equally important to know the reasons of the policymakers for opposing it and recommending that India should stick to the Foreigners Act and if any uniform law is formulated, it would hinder the Government of India's policy related to refugees. Despite of these facts, the National Human Rights Commission have constantly requested to the Government of India to make necessary amendments in the Foreigners Act, if India wants to stick with the foreigner's Act in dealing with matters related to refugees or formulate a new law which could specifically deal with the refugees in India, but policymakers have remained imperceptive related to this issue. On 2 October, 1997, the NHRC had taken an initiative to approach the senior officers of the Indian Ministry of External Affairs, urging them to examine anew possibility of India to ratify the 1951 UN Convention relating to the Status of the Refugees and the 1967 Protocol.214 But in response to this, the Commission came with a view that it is important to develop a national policy and a national law, which could completely comply with the 1951 UN Convention and the 1967 Protocol. But till date nothing much has been done in this respect.215 One more reason for the hesitate to move ahead with the law is that the current arrangement in which India is managing its influx of refugees and asylum seekers is completely based on an ad hoc administrative decisions, which is completely based on the political and security considerations, so India find this way of managing its influx more convenient, because it is bases on India's bilateral relations with the country of origin of the refugees. As India shares different relation with its neighboring countries, so by formulating a uniform law which would solely deal with the refugee group would not be politically or practically feasible. It is stated in 'Paradoxes of the International Regime of Care', that, "India has concluded that unwanted migrations, including those of

214 supra note 173 215 ibid.

72 refugees, are a source of bilateral and not multilateral relations, and international agreements could constrict her freedom of action."216 This statement sheds more light on India's unwillingness to sign the International Convention or the Protocols on refugee law.217

Another reason for India's reluctance towards formulating refugee law is the security problem, Security concern rank high in India's list of priorities, due to its geopolitical ascendancy in the neighboring region and it vulnerability to cross-border infiltration because of the porous nature of its borders. Considering these factors, the anti-refugee law legislator stand on the opinion that by establishing a refugee law, it would attract more refugees to enter inside India, by assuring legitimacy, rights and services would increase more social, economic and political insecurity. As stated by Mahendra P Lama in his report, 'Managing Refugees in South Asia' 218 has mentioned about a three- dimensional model which elaborates the high to the national security due to refugee movement which creates different threats due to: 1. "Strategic-level security, when refugees are carrying arms and in response the Government loses control over the refugees. 2. Structural-level security is threatened by increasing demands on and conflict over scarce resources. 3. Regional -level security is threatened when refugee enter the domestic political and create pressures on the government."219 So according to the policymakers these factors increases the risk of further inward refugee movements and causes hindrance in establishing any refugee law. Though these factors are important to consider but what is feared more among the local public in a refugee communities is the risk they pose to economic and social security. Another roadblock for not formulating a refugee law is that by encouraging more refugee it would lead to the problem to migrant workers who are in search of work, and they would present themselves as refugees. But there is difference between refugee and

216 supra note 175. p.404-405. 217 ibid. 218 Mahendra P Lama, 'Managing Refugees in South Asia', Refugee and Migratory Movements Research Unit (Dhaka: Refugee and Migratory Movements Research Unit, (2000), p. 19-24. 219 ibid.

73 migrants. Refugee are those who are forced to flee their homelands due to reasons like conflict and persecution, whereas, migrants are those who cross border in search of employment and better economic opportunities. 220 But this distinction can be made through a basic screening process, but ultimately policymakers have stated that by formulating a uniform law, would attract huge migrant movement for whom employment and income generation has to be facilitated, in compliance with the clause of the proposed 'Model Law'.221 The third factor which leads to the legislator's hesitancy is their argument that India is already providing basic treatment to the refugees as mentioned under the 'Model Law' and the international conventions. It argues that India's Supreme Court has gone to the limit of extending the application of Article 14 (Right to Equality) and Article 21 (Right to life and liberty) which is applied for everyone, even refugees and migrants residing within the ambit of Indian territory and also the basic human right which has been under the UN have been guaranteed upon the refugees. India also claims that it has affirmed with the principle of Non-refoulement, which is considered as fundamental to any law enacted for refugees. The principle of non-refoulement, prohibits the expulsion of a refugee to another country, including his/her country of origin, if he or she might again be subjected to persecution.222 Apart from this the Ministry of External Affairs and the Union Government have referred to NHRCs various reports and recommendations, suggesting the dire need for a specific law on refugee, but policymakers have repeatedly cited to the irrelevant facts that any inconsistency that may exist in the human rights aspect of handling issues related to refugees are adjudicated by the NHRC which also performs like a watchdog authority, and that until it proposes otherwise, a change in legislation is highly unlikely to happen.

5.2 THE REFUGEE LAW AND ITS BENEFITS

220 supra note 75 221 ibid. 222 ibid.

"Everyone has the right to seek and to enjoy in other countries asylum from persecution." -Universal Declaration of Human Rights 14(1)

India has been home to several immigrants from neighboring indigenous communities in turmoil, however, it needs to establish a legal framework to protect the human rights that these refugees or asylum seekers are entitled to India's international commitments as wee as the fundamental rights to create an obligation on the Government to ensure their security, but there currently is no codified law governing the same.223 This chapter will analyze the need for codification of refugee laws and its benefit. India due to its geopolitical configuration, diversity and established culture has become a major destination for people who have leaving their homeland due to the terror of being victimized and subjugated to ill-treatment and exposed to deplorable conditions.

Refugee Law is actually considered to be a of International Law. It can be interrelated to Human Rights and Humanitarian Laws but on the whole it is a separate issue. The term 'refugee' is defined as "a person who is owing to well-founded fear of being persecuted for reasons of race, 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, unwilling to avail himself of the protection of that country".224 In the International Law, refugees are those who:  are living outside their country of origin habitual residence.  they have a well founded fear of persecution because of their race, religion, nationality, membership in a particular social group or political opinion.  who are unable or unwilling to provide themselves of the protection of that country, or return there, for fear of persecution.225

223 Sagarika Chandel, 'Need for Codification of Refugee Laws in India', (2015), p. 1. 224 As defined under Article 1 para 2 of the United Nation 1951 Convention. 225 supra note 165

There are many experts in the field of refugee law and they have expressed that the more practical alternative to proposing a completely new law is to push for changes in India's current policy in respect to refugees. But as mentioned above, no current Indian law specifically deals with the refugees. The Registration of Foreigners Act, 1939, the Foreigners Act of 1946 and the Foreigners Order of 1948 is considered to be the main document which deals with the treatment of foreigners in India. It is to be noted that nowhere in Act the term "refugee" been explained or defined. But still refugees in Indian are bounded within the ambit of Foreigners Act. The Act gives the assent to the Indian Government to impose restrictions on the movement of foreigners inside India, to compulsory medical examination and to impose limitation on employment opportunities and curbs the right to associate and restricts the ability to refoule or return, refugees. However, the Refugee Convention bars all these actions.

India claims that its policies towards treatment of refugees is in compliance with the international standards, so as it claims that there is no need of any change is not acceptable by the watchdog agencies like the UNHCR and the NHRC. There is no doubt about India guaranteeing right and privileges to the refugees, but the question of equality and uniformity remains unanswered. There is no specific standard which has been laid to provide equal treatment to all the refugees. For an example the case of preferential treatment can be discussed through the situation of Sri Lankan Tamil refugees, where until the assassination of Rajiv Gandhi in 1991, the Tamil refugees were more encouraged to reside in India, even in the current situation, the Sri Lankan Tamil refugees are taken as refugees which solely depends on the factor, as which political party is in power in Tamil Nadu. So it becomes very important that uniformity is exercised in the application of refugee law and the factors like regional politics should be avoided. The current process like dealing with refugees in an ad hoc arrangement which is based on administrative, political and economic calculation should not be the only policy in a country like India, which has allowed a large influx of refugee population on its Indian soil.

Another important concern shown by India is related to their security considerations, looking into India's volatile position in South Asian politics, and the constant threat of terrorist groups through its neighboring countries. For an example, the Maoists and the Islamist group have always crossed the border and the country had to face the severe consequence of the terrorist attacks and other threats. Though, it is very obvious that due to these issues , the security consideration has always remain high and this has lead the policymakers to oppose the promulgation of a refugee law. There fear that by promulgating a refugee law it would legalize the influx of the dangerous elements. However, under Article 4 of the Model Law on refugees, it is stated that, "anyone guilty of a crime against peace, a war crime, a crime against humanity or a serious non- political crime, prior to his or her admission into India as a refugee, would not be accorded refugee status."226 Also by promulgating a refugee law, there will be an advantage that it will enable the creation of a framework for the determination of refugee status based on agreed standards of refugee status, determination, protection and treatment.227 It was argued by V Suryanarayan that there is dire need to formulate a national refugee law in India, because he has cited illustration of terror threats created by Sri Lankan Tamils, which emphasizes on the urgent need to formulate one. 228 He has cited an example, that in the Rajiv Gandhi assassination case, amongst the accused half of them were registered as refugees.229 Further he has stated that, "the absence of a well-defined national refugee law has created a number of anomalous situations."230 So keeping this into consideration, issues related to refugees cannot be dealt with the prudence of administrative officials and the formulation of a standard protocol, the practical step forward will be a security database to suppress issues related to insurgencies and infiltration.

226 supra note 173. p.156 227 ibid. 228 V Suryanarayan, 'Humanitarian Concerns and Security Needs: Sri Lankan Refugees in Tamil Nadu,' pp. 55-56. 229 Robert Payas, Jayakumar, Shanti (Jayakumar’s wife), Vijayan, Selva Lakshmi (Vijayan’s wife), and Bhaskaran (Vijayan’s father-in-law). supra note.183, p.15 230 ibid.

Another objection posed by India for not framing a refugee law is that, the India have always dealt these issues on the basis of bilateral relations with its neighboring countries and the countries of origin of the refugee communities. India is always reluctant to sign any other international convention or hesitates to even accept any regional or national framework to manage issues of refugee, it is made under the impression that accepting and rejecting refugees is completely based on unilateral decisions and therefore the is no need in promulgating a new law to consider multilateral and bilateral agreements. But many policymakers and also the UNHCR are under the favor that by enacting a proper legislation for refugee protection will help to avoid disputes between the host country and the country of origin of the refugees. Therefore is matters related to refugees and the act of granting asylum is governed by law, instead of an ad hoc basis, it will be then better considered by other states as a peaceful, humanitarian and legal action followed under a judicial system, rather than a hostile political gesture. And it will also provide legitimacy to the refugee determination process and decrease the risk of altercation with the countries of origin. As mentioned above, by constructing a security database, it will be helpful in solving the problem of unwanted migrant workers who are receiving refugee status, which again a major problem faced by India. First of all there is difference between refugees, asylum seekers and migrants. It is very important for the policy makers to make explicit distinction between these three terms. The common definition of refugee and asylum seeker is that, they are "externally displaced persons forced out or forced to leave their countries and who cannot return because they have a well founded fear of persecution." 231 They are not deprived of social and economic betterment, they are completely different from migrants who are voluntarily in search of a better life. 232 Generally the local population specially in the border or refugee-receiving areas hate the idea to assimilate migrants, because migrants work for lower wages which automatically brings down the wage rate, which hampers the livelihood of the local populace. As Government has made no distinction between the migrants and refugees, they have to become eligible to receive the same humanitarian assistance which otherwise would have

231 supra note. 175 232 ibid.

78 been provided to the refugees, which often leads to local unrest. 233 Therefore by formulating a law and by laying down a proper procedure for the classification of aliens, construction of a security database so that government will not have to face the above mentioned problem at a large scale as it is currently facing. Lastly, a question arises related urgency in establishing a uniform national laws is that, will it comply with the international obligations. And how India will meet up to the obligations and standards of the UNHCR as a member of its governing body, ExCom without even ratifying the 1951 Convention? How does India, which has signed various treaties of the UN and the SAARC affirming the protection of human rights for all with its territory, prove its legitimacy without a law protecting refugees? In response to this policymakers have made objections saying that the Convention was drafted in Euro-centric context and its principles are embedded in Cold War-era politics, like the fear of uncertain legal responsibility for handling the huge number of person seeking shelter. It seems that the primary reason for objection is that it the Convention does not address the complete situation faced by the developing countries, it seems like as if it was established to deal with individual cases and not with the situations of mass influx.234 Taking these factors into consideration, it becomes clear that to conciliate the UNHCR, which protest for precarious condition of residents in refugee camps, it become imperative for the government to formulate a law governed by central authority. In fact, the NHRC, the watchdog of India's refugee policy has made numerous recommendation suggesting to formulate such a law which could fall in accordance with the articles of the Convention but with an Indo-centric nature and content.

233 Suba Chandran, 'Refugees in South Asia: Security Threat or a Security Tool,', p.99-107. 234 UN Division, Ministry of External Affairs, p. 54-59.

CHAPTER-6

RECOMMEDATIONS AND CONCLUSION

"Justice?- You can get justice in the next world. In this one you have the law."235

-William Gaddis

The refugee issue has now surpassed a simple issue of charity, now in every sense it has become a major international political issue. In the present context, the refugee problem has challenged the international community multi-dimensionally and globally, and it has also become one of the most complicated matter. Refugee situation has become one classic example of the interdependence of the international community. It clearly depicts that how a problem of one country can have immediate effect on other countries.

Focusing on the Indian situation, India stands to be one of the few countries in Asia which has extended humanitarian assistance, provided protection to different minds of refugees across the country porous borders, like China, Nepal, Tibet, Bhutan, Pakistan, Bangladesh and Burma. India is known as land of moral philosophies, which ideally based on universal philosophy of love, compassion and brotherhood. In fact all the factors of human rights are found in the moral ideas of society. India's culture has been an extension of hospitality to aliens, i.e "Athiti Devo Bhava" (guests are gods), the also highlights on the humanitarian assistance for refugees.

No doubt, the way India in its past has handled the mass influx is commendable. Due to its geopolitical position in the subcontinent has made India a preferred destination for refugees. This factor also explains the cross-border movement into India, which should be like an incentive of establishing a national refugee law, the need of which keeps increasing with every cases where the rights of refugees are being violated. Refugees from Tibet, Sri Lanka and Myanmar will continue to seek refugee as the political strife in these countries has not ceased and with no possible plans to usher peace in the

235 THE INDIAN SOCIETY OF INTERNATIONAL LAW , ISIL YEAR BOOK OF INTERNATIONAL HUMANITARIAN LAW AND REFUGEE LAW , VOLUME 3 , (2003) p.207

80 foreseeable future and the chances of repartition also seems to be bleak.236 Therefore the need for a refugee law is urgent. The uniform treatment of refugee is a must as long as India continues to accept asylum seekers across its porous borders and the restrictions imposed on the refugee population by the Indian government is discriminatory and tarnishes its human rights record. Article 3 (2) of the Foreigner's Act of 1946, lays down a list of nine orders representing government regulations on rights and freedoms that the Convention guarantees. For an example, India can impose restriction on the foreigners to reside in a mandated areas, thereby restricting their right of movement within the country and providing India the ability to confine foreigners to refugee camps and conduct periodic camp inspection.237 Clauses regarding the treatment and role of refugees must be mentioned in the bilateral agreements, through which peace can be maintained between the two countries in question. Without any law or protocol on refugees, the Indian government has full autonomy to decide which rights and freedom should be imposed upon such group, there is no uniformity. For an example, Tibetan refugees is considered as a favored community have suffered due to lack of a uniform policy related to refugees. For an example, in 1991 when the Chinese Premier Li Peng visited New Delhi, few Tibetan refugee leaders and activists were arrested for protesting against China and most of the Tibetan settlements and community organizations were kept under surveillance.238 These incidents helps in illustrating the drawbacks of ad hoc administration in this field.

So far, India has managed with mass influx of refugees without a refugee law but with continuous growing population of refugee and asylum seekers, a large number of who may not be repatriated in the foreseen future, a uniform national law would allow the government to maintain its huge non-citizen population with more accountability and order, apart from allowing them to enjoy their uniform rights and privileges. In fact, a regional treaty will be beneficial in improving the ties between the neighboring countries but India will be in a better position by making its own law owing to the large number of different communities that it hosts and it can improve the unstable relations which it shares with its other neighbors. Also, if India is so reluctant in adopting the 1951 Convention

236 ibid. 237 supra note 176 238 ibid.

81 or other international convention on refugees, then an alternative can be that India can formulate regional convention on refugee management. And at the regional level, the SAARC can play an instrumental role in establishing a regional convention. Some examples can be taken from other regional arrangements like that of organization of African Unity (1969) and the Catigana Declaration (1984), these conventions could help to incorporate the aspirations of the regional member countries in a more direct and non-discriminatory way. By formulating such regional convention, it would serve three advantages:

1. It create a platform for the member states in designing their own national laws.

2. It will also facilitate the process of ratifying the 1951 Convention and 1967 Protocol by the South Asian nations and it will help them to lessen their burden of accommodating mass influx of refugees. This will also help in maintaining a regular exchange of information and expertise to handle the refugee problems.

3. Regional approach will also pursue the other nations in the UNHCR to make the definition more broad.

Many scholars, legal experts and humanitarian organizations have been focusing on the issue of establishing national laws on refugees. The most striking initiative which has been the "Consultation" which has been established under the UNHCR. This Consultation comprises of eminent jurists, lawyers, scholars, human rights activists who organize meetings to discuss the idea of establishing a national legislation on refugees. Organization like the Indian Centre for Humanitarian Laws and Research (ICHLR) has put effort by drafting of a Model National Law on Refugees.239 Main issues which has been included under the Model National Law are: the scope of the refugee definition; the principle of non-refoulement; composing and investing authority in a decision-making body to determine the refugee status; exclusion of persons who are undeserving of refugee protection; the rights and duties of refugees; states position of mass influx and special protection concerns for refuge women and children.240

According to my concern, if so many eminent jurists and lawyers are taking initiative in drafting a national refugee law, such a law should ideally serve two main purposes, Firstly, a clear distinction between the refugees, migrants and foreigners, all the three terms have different meaning, which has been mentioned in the above chapters, therefore, it is necessary to distinct

239 Bulletin on IHL & Refugee Law, Indian Centre for Humanitarian Law and research, New Delhi, Vol.2, p.3. 240 Arjun Nair, 'National Refugee Law: Benefits and Roadblocks', (2011),p. 43

82 between these three categories of people. If all the above mentioned categories of people are treated under one broad head name as "foreigners" this become completely unjustifiable.

Viewing the complete problem the recommendation which can be suggested for dealing with the issue of refugees should broadly fall under three major categories: firstly, those improvements suggested under the Conventions should be in compliance with changing patterns of today's scenario; the changes sought, sometimes radical in the national procedures for determining refugee status and granting asylum; recommendations for improving the resettlement provisions for refugees once they are in their host country.241

Therefore, a comprehensive approach should be adopted, both in theory and practice. The issue of human rights should just not limit till its definition, but it should comprehensively provide protection, assistance and development need of people who are at risk. Human rights can be used as a standard for information gathering and to promote community stability and mediation of conflict in order to curb refugee crisis before they occur.

241 ibid.

BIBLOGRAPHY

BOOKS:

1. ADAMA DEING, TIBET: HUMAN RIGHTS AND THE RULE OF LAW, 1997 2. ARJUN NAIR, NATIONAL REFUGEE LAW: BENEFITS AND ROADBLOCKS, 2011. 3. DAWA NORBU, 'TIBETAN REFUGEES IN SOUTH ASIA: A CASE OF PEACEFUL ADJUSTMENT ', IN S.D. MUNI AND LOK RAJ BARAL (EDS), REFUGEES AND REGIONAL SECURITY IN SOUTH ASIA, 1996. 4. GOLDSTEIN, A HISTORY OF MODERN TIBET, 1996 5. IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, (OXFORD UNIVERSITY PRESS, OXFORD, 1990 4TH ED. 6. RAGINI TRAKROO ZUTSHI, JAYASHREE SATPUTE, REFUGEE AND THE LAW, 2011 7. RAGINI TRAKROO ZUTSHI, REFUGEES AND THE LAW, 2011. 8. THE INDIAN SOCIETY OF INTERNATIONAL LAW , ISIL YEAR BOOK OF INTERNATIONAL HUMANITARIAN LAW AND REFUGEE LAW , VOLUME 3 , 2003 9. THE INDIAN SOCIETY OF INTERNATIONAL LAW , ISIL YEAR BOOK OF INTERNATIONAL HUMANITARIAN LAW AND REFUGEE LAW , VOLUME 3 , 2003. 10. WARREN W. SMITH, Jr, TIBETAN NATION: A HISTORY OF TIBETAN NATIONALISM AND SINO-TIBETAN RELATIONS, 1996.

ARTICLES:

1. Alfred P. Rubin, The Position of Tibet in International Law,1966 2. Andrew Powell, Heirs to Tibet: travels among the exiles in India, A Short Story on Life in Exile, 1992. 3. Audrey Prost, Contagion and its Guises: Inequalities and Disease among Tibetan Exiles in India. International Migration, 2008. 4. Bhairav Acharya, The law, policy and practice of refugee protection in India, 2001.

5. Chiang Kai-shek, National Independence and Racial equality,1946. 6. Dalai Lama, Freedom in Exile (New York: Harepr Collins),1990. 7. Dalai Lama, My Land and My People, 1999. 8. Dr. Robert J. Barnett, Tibetan Modernities: Notes from the field on social and cultural change,2008. 9. Eileen Kaufman, Shelter From the Storm: An Analysis of U.S.Refugee Law as Applied to Tibetans Formerly Residing in India, 2009 10. Feller, Erika, Asylum, Migration and Refugee Protection: Realities, Myths and the Promise of things to come. International Journal of Refugee Law, 2006. 11. George N. Patterson, Tibet in Revolt. London: Faber and Faber, 1960. 12. Guy S. Goodwin-Gill, The refugee in International Law,1993 13. H. Knox Thames, India's Failure to Adequately Protect Refugee, 1999. 14. Heather Timmons, Tibetan Protest Marchers Vow to Reach Homeland, 2008. 15. Hugh Richardson, Tibet and its History Boston: Shambhala, 1984. 16. Human Rights Law Network, Report Refugee Population in India, 2014. 17. ICJ, The question of Tibet and the Rule of Law. 18. International Commission of Jurists, The Question of Tibet and the Rule of Law. 19. Jessica Falcone, Wangchuk Tsering, We're Not Home: Tibetan Refugees in India in the Twenty-First Century. India Review,2008. 20. John F. Avedon, In exile from the Land of Snows,1994. 21. Kunsang Palijor, Tibet:The undying flame,1997. 22. Lousi W.Holborn, Refugee: A Problem of our time: The work of the United Nations High Commissioner for Refugees, 1951-1972. 23. Maclnys, Religion in China Today ,1989 24. Mahendra P Lama, Managing Refugees in South Asia, Refugee and Migratory Movements Research Unit (Dhaka: Refugee and Migratory Movements Research Unit, 2000. 25. Michael van Walt van Praag, The Status of Tibet: Rights and Prospects in International Law, 1987. 26. Michelle Foster, Non-Refoulement on the Basis of Socio-Economic Deprivation: The Scope of Complementary Protection in International Human Rights Law, 2009.

27. Oberoi Pia, India and the International Refugee Regime, In Exile and Belonging: Refugees and State Policy in South Asia,2006. 28. Petra K. Kelly Gent Bastian and Pat Aiello, The Anguish of Tibet,1991. 29. Rajeev Dhavan, Refugee Law and Policy in India, 2004. 30. Rajesh Kahrat, Gainers of a Stalemate: the Tibetans in India, 2000. 31. Robert. J. Barnett, Tibetan Modernities: Notes from the field on Social and Cultural Change, 2006. 32. Sagarika Chandel, Need for Codification of Refugee Laws in India, 2015. 33. Saklani, The Uprooted Tibetans in India. 34. Sarbani Sen, Paradoxes of the International Regime of Care,' in, Ranabir Samaddar (ed.) Refugees and the State: Practices of Asylum and Care in India, 1947-2000 (New Delhi: Sage Publications, 2003. 35. Shusham Bhatia, A Social and Demographic Study of Tibetan Refugees in India, 2002. 36. Simon Robinson, Madhur Singh, India Detains Tibet Protestors, THE TIMES OF INDIA, Mar. 14,2008. 37. Tenzin Gyatsao, Freedom in Exile: The Autobiography of His Holiness The Dalai Lama of Tibet,1990. 38. Tom A. Grunfeld, The Making of Modern Tibet, 1987. 39. Zhang Tianlu, Population Change in Tibet,1989.

REPORTS:

1. ASIA PACIFIC HUMAN RIGHTS NETWORK, TIBETAN REFUGEES IN INDIA: DECLINING SYMPATHIES DIMINISHING RIGHTS, at www.hrdc.net/sahrdc/hrfeatures/HRF183.htm 2. BUREAU OF DEMOCRACY, HUMAN RIGHTS, & LABOR, U.S. DEP’T. OF S., 2008 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: INDIA § 2(d) (2009) [hereinafter 2008 Country Report] 3. BUREAU OF DEMOCRACY, HUMAN RIGHTS, & LABOR, U.S. DEP’T. OF STATE, 1997 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: CHINA (1998). 4. Central Tibetan Relief Committee, Tibet in Exile,http://www.tibet.net/en/index.php?id=9

5. Collection of International Instruments Concerning Refugees, Published by the Office of the United Nations High Commissioner for Refugees, Geneva, 1990. 6. Human Rights Law Network, 'Report Refugee Population in India 2014', httpa://www.ssrn.com 7. Immigration & Refugee Board of Canada, Extended Response to Information Request, IND33125.EX (Dec. 23, 1999) [hereinafter Refugee Board IND33125], available at http://www.unhcr.org/refworld/docid/3ae6ad4124.html. 8. P.Thinley, Planning Commission Releases Report on Tibetan Demographic Survey, 2010 9. Rajeev Dhavan, “On the Model Law for Refugees: A Response to the National Human Rights Commission (NHRC),” NHRC Annual Reports 1997- 1998, 1999-2000 (New Delhi: PILSARC, 2003). 10. Report prepared by the Scientific Buddhist Association for the United Nations Commission on Human Rights. 11. U.S. COMMITTEE FOR REFUGEES AND IMMIGRANTS, WORLD REFUGEE SURVEY 2004 COUNTRY REPORT: INDIA 12. U.S. COMMITTEE FOR REFUGEES AND IMMIGRANTS, WORLD REFUGEE SURVEY 2009 COUNTRY REPORT: INDIA; UNITED STATES BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES, India: Information on Tibetan Refugees and Settlements, May 30, 2003

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