Climate Refugees in India: A Wake-up Call for an Inclusive Policy

Introduction

Climate change is undeniably affecting human activities. It is predicted that climate change will influence around 200 million people by the year 2050 (Brown, 2008), leading to a mass influx of climate refugees. When it comes to India, it is at risk of mass immigration from Bangladesh due to climate change. Bangladesh is recognised as one of the countries in high-risk zones. One-fifth of the country consists of low-lying coastal areas and because of sea-level rise, Bangladesh is going to be affected by floods. It is also prone to cyclones and droughts leaving people homeless and landless (Huq, 2001). India needs to be prepared for such kinds of mass migration. Regrettably, there is no policy framework in place to handle refugees and migrants, and the decisions are taken on a case-to-case basis paving the way for inconsistency and irregularity in handling the refugees, migrants and asylum seekers. The UNHCR’s determination in Mr Teitiota’s case that climate refugees, who are in imminent danger, cannot be deported has created an urgency to have a national policy framework prepared (OHCHR, 2020). Contemplating the climate refugees movement in India, it is high time to frame a policy or law on refugees and migrants in general and specifically on climate refugees. In light of this, in this article, the researchers have reasoned the necessity of a policy or a legal framework for climate refugees in India.

Climate Refugee: A Search for An Inclusive Definition

The definition of refugee given under the 1951 Refugee Convention emphasises on well-found fear of being persecuted on five grounds, namely race, religion, nationality and membership of a particular social group, or political opinion for conferring refugee status. These determinative grounds were the outcome of the exigencies of the world wars. Climate refugees do not neatly fit into any of the previously laid out criteria, hence depriving them of legal protection. Therefore, it is the need of the hour to have an inclusive definition of refugee that covers climate refugees.

Professor Irene Khan laid down a test to assess when a person can be considered a climate refugee. According to her, if he or she by (a) voluntary movement, (b) crosses an international boundary, (c) due to a rapid trigger and (d) which is linked to climate change, then that person is a climate refugee (Tripathi, 2017). The given definition helps to understand the concept but is not recognised as an official definition. Thus, the UNHCR should introduce a revised refugee convention laying down different grounds to determine refugees comprising climate-induced refugees.

India’s Approach on Refugees: Contradiction Between Excuses and Commitments

India lacks sound policies leading to inconsistent approaches on various issues in South East Asia (SEA) including refugees. In spite of having sizable numbers of refugees, India has an ad hoc legal regime wherein the judiciary and administrative authorities grant the status of refugees and asylum seekers on a case-to-case basis leading to an eclectic interplay of administrative ad hocism and judicial assertion of constitutional rights (Bhattacharjee, 2008). The erratic administrative approach is due to the inconsistent and arbitrary government policies dictated more by political exigencies than by legal imperatives (Bhattacharjee, 2008).

The political parties and successive governments in India never bothered to introduce any legislative mechanism or policy on refugees, migrants and asylum seekers owing to multiple reasons. These reasons include:

Hosting refugees and asylum seekers without any legal mandate can be used as an act of generosity,

This approach may create problems in the near future and envisioning the probable mass influx of refugees and particularly climate refugees, it is always prudent to frame a refugee policy on the basis of the 1951 Convention, the 1966 Protocol and the policies developed by other States. However, India has reservations about the international refugee legal regime. Although there is no official statement made by India on non-ratification of the prevailing refugee instruments, inferences can be drawn from the opinions expressed by the authorities and scholars, as well as the past behaviour and practices of India. The excuses given by India for non-ratification are as follows:

Narrow definition of refugees: At the 54th session of the Executive committee meeting of the UNHCR in 2003, the Indian representative stated that the definition of refugee fails to recognise ‘the fundamental actors which give rise to refugee movements’. The representative also pointed out that ‘most of the refugee movements are directly related to widespread abject poverty and deprivation around the globe…’ particularly in the developing world such as most of South Asia (Sharma, 2012). Thus, there are various categories of displaced people that the 1951 Refugee Convention does not cover.

India is a signatory and ratified International Convention on the Elimination of All Forms of Racial Discrimination, 1969, the Convention on the Elimination of All Forms of Discrimination Against Women, 1981, International Convention on Torture 1984, the Convention on the Rights of the Child, 1989, etc. Moreover, India is obliged to adhere to the customary international law’s principle of re-foulement, prohibiting no forceful repatriation (Special Correspondent, 2021). This agrees with the UNHRC’s determination in Teitiota’s case (Teitiota v Chief Executive Ministry of Business, Innovation and Employment, 2015). Even though India is not a signatory to the 1951 Refugee Convention and its 1967 Protocol, it is a signatory to a number of United Nations and World Conventions on Human Rights, and related matters. Hence its obligations in regard to refugees arise out of the latter (Pooja, 2018). Further, basic human rights cannot be held to be subordinate to national security or peace. Hence, no refugee can be denied entry into the territory and basic needs on the grounds of national interest (Hush, 2017). Thus, there is no point playing the same tune of non-ratification as it is not going to help in the near future.

Protection of Climate Refugees in India: Assessment of the Perils and Benefits

The main ethos of Indian tradition accepting foreigners is based on Buddha’s ‘Panchsheel’ principles emphasising peaceful co-existence. These principles were rechristened by Jawaharlal Nehru for laying the foundation for India’s foreign policy (Kishwar, 2018). Owing to this policy, India welcomed refugees on a case-to-case basis. Apart from this, she took part in 49 peacekeeping missions employing more than 195,000 troops and a large number of police personnel assisted the United Nations and international NGOs in different conflict-ridden lands (Patra, 2021).

India is home to many refugees mainly from Bangladesh, Bhutan, Sri Lanka, Afghanistan, Myanmar and Nepal. It has been observing a ‘refugee regime’ which generally conforms to the international instruments on the subject without, however, giving a formal shape to the practices adopted by it in the form of a separate statute. Refugees are no doubt ‘foreigners’. Even though there may be a case to distinguish them from the rest of the ‘foreigners’, the current position in India is that they are dealt with under the existing Indian laws, both general and special, which are otherwise applicable to all foreigners. This is because there is no separate policy or law to deal with ‘refugees’.

Climate change is the reality of the future and it is going to severely affect South Asia and its population. Asian Development Bank states that climate change will likely result in Glacial melt, landslides & erosion, sea-level rise and floods impacting coastal settlements, agricultural production, biodiversity, food security, energy, human health, water, further leading to migration of the masses (ADB, 2020). As per the projections made by the World Bank Group for South Asia, there would be an average of 35.7 million climate migrants by 2050 making 23% of the total migrant population. The major hotspots for climate migrants in the southern Indian highlands will be between Bangalore and Chennai (Rigaud et al., 2018).

Climate change-induced migration puts India at risk as it will lead to increased migration from the neighbouring countries. Bangladesh is one of the countries at high risk from climate change. Bangladesh has 25% of its landmass just above five feet of sea level (Giovetti, 2019). Continuous sea level rises due to global warming and melting of the glaciers are putting Bangladesh at high risk. The Sunderban Delta in Bangladesh is witnessing a constant rise in sea level and there have been many incidents of saltwater intrusions (Rabbani et al., 2018). It is estimated that if this continues, there might be 50–120 million climate refugees migrating to India (Gonzalez, 2018). Dr Abhinav Mohapatra of the Indian Metrological Department has commented that it could trigger a massive influx of climate refugees and will create problems for India and Bangladesh (Lal, 2020).

It is estimated that around 200 islands of mangrove cover have experienced the loss of forests, lands and habitats because of rising sea levels (Gore, 2019). Due to climate change, the intensity of the disasters will increase which might destroy the livelihood of many people. Afghanistan and Pakistan are susceptible to droughts (Miyan, 2015). The Maldives is witnessing a rise in sea levels, and in the future, it will lead to climate-induced migration to India (Schafer, 2019). Sri Lanka also faces the issue of rising sea levels. It is estimated that around 18% of the population of northern and eastern Sri Lanka may migrate to Tamil Nadu across the Palk strait (Population and Development Review, 2010). India will continue to be the natural choice for several thousands of Bangladeshis every year who cannot find any occupation in Bangladesh and elsewhere (Datta, 2012) whilst Bangladesh has the lowest capacity of all countries to adapt to predicted changes in the climate (Hasan & Alam, 2015).

Miles De Paul suggests a normative shift on the issue of climate-induced migration to ensure that those victimised by anthropogenic and natural climate change are met with a compassionate, coordinated global regime rather than strict national immigration policies, like those currently employed in India (DePaul, 2012).

Envisioning the refugee crisis due to climate change, this is high time for India to formulate a policy. India has obligations towards its neighbours which emanate from the UN Charter preamble which obligates the member states of the UN to practice tolerance and live together in peace with one another as good neighbours. Similarly, Article 51 of the Indian Constitution under its Directive Principles of States Policy states that ‘the State shall endeavour to maintain just and honourable relations between nations; foster respect for international law and treaty obligations in the dealings of organised peoples with one another; and encourage settlement of international disputes by arbitration’. Regrettably, the successive governments treated the neighbourhood as an irritant and challenge rather than an opportunity. Hardly ever, India’s foreign policies exhibited a sense of belonging to the region or a desire to work with the neighbourhood for greater integration and cooperation (Kaura & Rani, 2020). India had an opportunity to handle the Rohingya crisis to improve its image on the international canvass in hosting the refugees, but it was clueless. If India continues its lethargic approach, it will lose its influence in SACs and also on the international platform.

It is a necessary step to intelligently manage population movements and ensure transparency and predictability in our administrative actions (Patra, 2021) moreover to clarify the roles of government, judiciary, administrators, army and police, NGOs, international organisations, etc. Further, the policy needs to lay down the rights and duties of the refugees, the procedure for admission and rejection claims, documentation, temporary shelter, asylum, identity cum refugee card, do and do nots, education, jobs, occupations, etc.

The policy shall also require to incorporate provisions to designate an authority to coordinate with the country of origin to amicably solve the issues which may arise at a time of admission and repatriation. The same authority shall coordinate with the UNHCR and all other organisations including the red cross and national and international NGOs. It will be a centre point for all refugee-related dialogues and durable solutions to the problems of refugees (Patra, 2021).

Even though India has been the home for a 210,991 population of refugees and asylum seekers, out of which 93% are refugees and 7% are asylum seekers (UNHCR, 2022), and a variety of refugees throughout the past, it has dealt with the issues on a bilateral basis. The policy should provide for rehabilitation mechanism because presently the mandated refugee are staying in India without any rehabilitative programme leading to multiple issues with regards to their housing, education, jobs, etc. In order to avoid similar problems in the future, it is always preferable to have a policy or law in place. It is also necessary to think that how India can encash the human resource to boost the economy and make progress in the areas such as technology, culture, craft and amicable relations with neighbouring countries.

Professor Chimni list down the reasons for the necessity of legislation maintaining that there are limitations to the judiciary in protecting the rights of refugees hence the law alone offers the refugees some protection. Further, he claims that by contemplating an annual expenditure for the refugees, India can bear the financial burden with no trouble. The security concerns which are raised by India time and again can be explicitly covered under national law and It would be painless for the Government to identify illegal migrants and refugees. Additionally, the diplomatic hiccups will be dealt with at ease paving ways to substantiate ties with neighbouring countries. Furthermore, the border and security guards and forces shall adhere to national law resulting in adherence to the principle of non-refoulment otherwise they restrict the entry of foreigners without knowing they are asylum seekers. The national law shall provide guidelines as to when refugee status comes to an end. Moreover, India can play a decisive role in handling refugees from other SACs leading to corroborating its claims to secure permanent membership to the UN Security Council (Chimni, 2003).

Framing national legislation or policy on the refugees would definitely be advantageous for India to substantiate its position in the SACs as a progressive state and economic powerhouse (Patra, 2021). Further, India will gain respect on the international level and in the eyes of the UN, the UNHCR and all other international organisations. They will give respect to India and will consider its policy decision with regard to the refugees in the SACs. Therefore, India’s policy framework should be such that it reacts positively to the influx of refugees as well as protect its national interest (Jacobsen & College, 1996). Further, a holistic policy framework in India can give a solution to the problem of conflict over economic resources, infrastructure issues for mass housing and long-term rehabilitation plan and its financing for such climate refugees who cannot return to their homeland ever (Sharalaya, 2018). Hence, without making a further delay, India should introduce a policy or law so that it will be hassle-free to deal with the prospective climate refugee crisis.

Conclusion

Keeping in view the future exigencies in India in the form of climate refugees, the policy framework becomes a necessity. India needs to provide a level playing field for the present refugees and the potential climate refugees. If the policy becomes a reality, it would be helpful to resolve various refugees’ related issues which are persisting in contemporary times. The policy would also provide a basis for administrative authorities and judiciary to handle refugee cases contemplating the interest of the nation and the refugees. Moreover, with the formulation of policies, India will be an example for the SACs and such policies would be helpful to resolving the disputes amicably and building trust among the neighbours.