APPEAL AGAINST DEPORTATION OF EALAM REFUGEES
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At the party headquarters of Dravida Peravai various Human right
activists met on 18,12,2000 and sent a Joint Memorandum To National Humans
Rights Commission of India, which is given in verbatim here:
Ealam refugees came to India in three stages. After the ethnic
holocaust in the year 1983 nearly 1,20,000 refugees came feeing from the
clutches of Srilankan hoodlums. Particularly in between 24 th June 1983 to 29
th July 1989 the total number of refugees arrived here from Srilanka amounts to
1.34.053. Thereafter in the aftermath of 1987 accord between India and Srilanka
particularly between 24 th December 1987 and 31 st August 1989, 25, 585
refugees were sent back to Srilanka. Most of them preferred to go to Western
countries than to Srilanka. In the second phase after the 20 th January 1992
around 54,188 refugees were sent back. Now as on 31 st May 2000, the Ealam
refugees in India number to 66464. They are kept under 129 special camps.
We, the signatories to the memorandum urge the National Human Rights
Commission to study the conditions of these refugees and order for remedial measures. The Indian Government
deals with refugees at both political and administrative levels. The result is
that refugees are treated under the law applicable to aliens. In the case of
refugees protection, the Constitution of India guarantees certain fundamental
rights, which are applicable to all non citizens, namely, the right to equality
(article 14), the right to life and personal liberty (article 21) and the
freedom to practice and propagate their own religion (article 25). Any
violation of these rights can be remedied through recourse to judiciary as the
Indian Supreme Court has held that refugees or asylum seekers cannot be
discriminated against because of their non citizens status.
The National Human Rights Commission, we are aware has functioned
effectively as a watch dog for protection of Refugees. The Commission has
approached the Supreme Court of India under article 32 of the Constitution and
obtained protection to Chakma refugees from the Chittagong hill areas of
Bangladesh when their life and security was threatened by local politicians and
youth leaders in the State of Arunachal Pradesh. Relief was granted by the Supreme
Court on the basis of the rights of aliens under article 14 and 21.
The Chief Justice of the Supreme Court, Justice Ahamadi speaking for
the court in the National Human rights Commission vs. State of arunachal
Pradesh (1996 SCC 742) said that the state is
bound to protect the life and liberty of every human being. He pointed out that
the rights of the refugees under the constitution of India were confirmed by
article 21, which also included the right to non-refoulement . In case of Khy
Htoon and others vs State of Manipur, The Imphal Bench of the Guahati High
Court ruled that refugees have fundamental rights under article 10, 21 and 22
of the Indian Constitution. Justice V.R.Krishna Iyer considers article 14 which
provides equal protection of law, as being applicable to all persons, not
merely citizens.
India's refugee policy is further governed by certain administrative
regulations. The standard of human treatment set by these administrative
regulations flows from the ethos that persons displaced from their homes need
both protection and economic sustenance. The administrative experiences of the
government department responsible for rehabilitation and the laws adjudicated
at the time of the partition have contributed towards a refugee policy for
India. In India refugees are registered under the 1939 Registration Act, which
is applicable to all foreigners entering the country. Under the 1946 Foreigners
act The Government of India is empowered to regulate the entry, presence and
departure of aliens in India, though the word alien itself is no where defined.
Entry is also governed by the Passport act of 1967.
Entry can be restricted if a person does not have a valid passport or
visa to individuals who can enter Indian borders without a valid visa or any
other document though the government can exempt persons when it so deserves.
These procedures are linked at this stage to illegal migrants, the exemption
provision is applicable to refugees. It should be noted that refugees in
developing countries unlike those in the West (barring those from former
Yugoslavia) usually descend in large numbers. Under these circumstances refugee
determination becomes an administrative task to oversee the relief and
rehabilitation process rather than to supervise who stays or does not stay.
As mentioned previously the Government of India determines the refugee
status and has no specific legislation to deal with refugees. Professor Saxena
of Jawaharlal Nehru university maintains that despite this lacunae, India does
apply in practice certain articles of the 1951 U.N Refugee Convention. These
include Article 7 as India provides refugees the same treatment to all aliens,
Article 3 as India fully applies a policy of non discrimination, Article 3 a as
no penalty is imposed on illegal entry, article 4 as religious freedom is
guaranteed, Article 16 as free access to Court is provided, Article 17 &!8
as work permits have no meaning and refugees do work, thus complying with these
articles on wage earning rights, article 21 as freedom oh housing is allowed
and refugees need not stay in camps, for freedom of movement is guaranteed to
all aliens, except in certain areas where special permits are required not only
for aliens but also for all Indians and article 27 and 28 as identity and
travel cards are issued to refugees.
However many activists have contested the assertions of Professor
Saxena. They point out that the majority of Srilankan Tamils and almost all of
the Jammu and Chakma refugees were forced to live inside camps. Severe
restrictions were imposed on their freedom of movement. In addition, asylum
seekers from Burma were arrested and jailed and during 1995-1997 approximately
5000 Chin refugees from Burma were pushed back over the border. They also point
out that since the government does not issue residence permits to all the
refugees they are unable to open bank accounts, rent houses and set up a
business. Moreover Indian educational institutions do not admit refugees. as a
result young refugees are unable to pursue their academic careers.
To conclude though India is not a party to 1951 UN Convention on
Refugees or its protocol, its domestic laws have not been found to be in
conflict with international laws. While it can be justifiably proud of having
followed a pragramme of humane treatment to refugees, there is still an absence
of uniform treatment of different refugee groups with respect to refugees
rights resulting in discrimination in terms of assistance and opportunities. To
protect refugees by means of activists approach has its own limitations. Thus
there is a need for enactment of national law to provide for refugees in a
systematical manner.
HENCE WE THE SIGNATORIES TO THIS MEMORANDUM URGE THE NATIONAL HUMAN
RIGHTS COMMISSION TO MONITOR THE POSITION OF SRILANKAN TAMIL REFUGEES KEPT IN
129 CAMPS.
Physical Security : Indian Courts have decided in a number of cases
that the Constitutional protection of life and liberty must be provided to
refugees. In the case of Louis de Readt [1991 -3 SCC 554] and Khudiram [ Nos
1994 Supp.(1) SCC 615] the Supreme court held that article 21 of the
Constitution of India which protects the life and liberty of Indian citizens is
extended to all including aliens. Below are some of the most important
decisions of the Supreme Court.
The Supreme Court of India in the case of National Human Rights
Commission vs State of Arunachal Pradesh restrained the forcible expulsion of
Chakma refugees from the state [Civil WP No 720/95 : 1996 {1] Supreme 295 ].
The Supreme Court in its interim order on November 2, 1995 directed the State
Government to ensure that Chakmas situated in its territory are not ousted by
any coercive action not in accordance with the law. The Court directed the
State Government to ensure that the life and personal liberty of each and every
Chakma residing within the State should be protected. Any attempt to forcibly
evict or drive them out of the state by organized groups should be repelled by
using para-miltary or police force and if additional forces are required, then
the state should take necessary steps. The Court also decided that the Chakmas
shall not be evicted from their homes except in accordance with the law, the
application for their citizenship should be forwarded and processed
expeditiously and pending the decision on these applications, they shall not be
evicted.
WE THE SIGNATORIES OF THE MEMORANDUM POINT OUT THAT NOW FORCIBLE
EXPULSION OF TAMIL REFUGEES HAS COME TO LIGHT. THE FORCIBLE DEPORTATION OF
MR.EALAVENDHAN, to the country wherefrom he expects danger to his personal
security marks a new phase in India's refugee policy which warrants the intervention
of National Human Rights Commission.
Non-Refoulement and the Right to Refugee Status
In number of cases Indian Courts have protected the rights of refugees
where there are substantial grounds to believe that their life would be in
danger. There are cases where the Courts have ordered the life of refugees who
are in danger to be safeguarded and have allowed them to be granted refugee
status by the United Nation High Commissioner for Refugees.
In Zothansangpuri vs State of Manipur (Civil Rule 981 of 1989) the
Guwahati-Imphal bench of the Guwahati High Court ruled that the refugees have
the right not to be deported if their life was in danger. In Dr.Malvika
Karlekar vs Union of india (Criminal 583 of 1989) in Writ Petition, The Supreme
Court held that authorities should consider whether refugee status should be
granted and until the decision was made, the petitioner should not be deported.
In Boghi vs union of India (civil Rule 981 of 1989) the Gauhati High Court not
only ordered the temporary release of a Burmese man from detention but approved
his stay for 2 months so that he could apply for UNHCR for refugee status (
Civil rule No 1847/89 Gauhati High Court). The case of U.Myat Kayvew vs State
of Manipur ( Civil rule 516 of 1991) has contributed substantially to India's
refugee policy. It involved eight Burmese people aged 12 to 58 who were
detained in Manipur central jail in Imphal for illegal entry. The people had
participated in the Democracy Movement had voluntarily surrendered to Indian
authorities and were taken into custody. The cases were registered under
section 14 of the Foreigners Act for illegal entry into India. They petitioned
for their release, however to enable them to seek refugee status with UNHCR in
New Delhi. The Gauhati High Court under article 21 ruled that asylum seekers
who enter India, even if illegally should be permitted to apraoch the office of
the Un High Commissioner to seek refugee status.
Right to Basic Amenities:
In Digvijay Mote vs Government of India [Writ Appeal No 354 of 1994]The
High Court of Karnataka considering the rights of 150 Srilankan refugee
children ordered the State to make necessary arrangements to provide basic
amenities to the refugee children in the camp on humanitarian grounds. In Majid
Ahmed Abdul Majid Mohd.Jad Al-Hak vs Union of India [ Crl. WP No 60 of 1997]
the court held that basic amenities like food and medical care must be provided
while in detention. In the case of Gurunathan and others (WP Nos 6708 of 1992]
The Madras high Court on March 27, 1994 stayed the repatriation process as it
was not voluntary. It held that when there is an international organization to
ascertain the volanteriness of the consent it is not for the court to decide
whether the consent was voluntary or not. It also directed the Government to
transmit this order in Tamil to the camps as well as an order that refugees
will not be sent back against their will.
Right to Leave
The court has upheld a refugees right to leave the country.
In Nuang Maung Mye Nyant vs Government of India (CWP No 5120/94) and Shar aung
vs Government of India (WP No 110 of 1998) the courst ruled that even those
refugees against whom cases were pending for illegal entry should be provided
exit permits to enable them leave the country for 3 rd country resettlement.
We point out that this right has been denied to
Mr.Ealavendan though no case of illegal entry was pending against him.
Certain vested interests in this country wants to wipe out
Tamil linguistic identity and ethnicity and are unleashing a campaign of hatred
against Tamils. As part of their campaign of hatred against Tamils, these
forces do not want fellow Indians to be concerned over the genocide in Srilanka
or to treat Tamil refugees on par with Tibetan and other refugees as per our
constitution. Tamil refugees should be confined to special camps and forcibly
deported, whereas others may get preferential treatment, these forces argue. We
bring to your notice that a fear psychosis is being created amidst Srilankan
refugees that they can be deported to the land from where they fled for fear of
life. Please ensure that none is deported to the land from where they escaped
from the jaws of death. Also probe the manner in which Mr.Ealavendan was
deported as some reports say in media that bypassing a duly elected State
Government the deportation had taken place.
This memorandum drafted by Dravida Peravai was signed by
Dravida Peravai General Secretary N.Nandhivarman, P.Sankaran Vice President
Pondicherry PMK, Professor M.L.Thangappa of Thamizh Valarchi Nadavadikkai
Kuzhu, N.M.Thamizhmani of Senthamizhar Iyakkam and others. It was sent to
National Human rights Commission Chief Justice J.S.varma on 18,12.2000
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