APPEAL AGAINST DEPORTATION OF EALAM REFUGEES

APPEAL AGAINST DEPORTATION OF EALAM REFUGEES

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