A new wave of Sri Lankan refugees has streamed into India after that country’s bankruptcy in 2022, but they face the same statelessness as thousands who came before them, escaping war and discrimination, because India lacks a refugee law. The 2019 law promulgated by the ruling Bharatiya Janata Party to fast track citizenship for Hindu refugees does not help because it is restricted to Pakistan, Bangladesh and Afghanistan.
Chennai, Tamil Nadu: In her house in Kilinochchi, a town of more than 100,000 in northern Sri Lanka, 32-year-old Maduka rarely gets a moment off. When she is not helping her husband find a job or sending her teenage children to work in nearby shops, she is tending to her kitchen garden—their main source of food.
The couple have dug into their savings since the meteoric rise in prices of food and fuel last year and their country declared bankruptcy in 2022. Inflation had almost touched 70%, and thousands stood in queues for days to get small portions of food and fuel.
The one thought that runs through her mind is the possibility of taking a boat to make a 30-km open-sea journey across the Palk Straits to India, said Maduka, the name she used in an interview, refusing to give her real name because her identity could draw government attention and imperil her plans to leave her country.
Kilinochchi is dominated by Tamil-speaking people in Sri Lanka’s Northern Province, which was ravaged by a civil war between 1983 and 2009. Most of her neighbours, she said, were in the same situation.
For months on end, they fed their children only one meal of gruel every day. Some have no jobs. Those who do, do not earn enough to feed their families.
Over her lifetime, Maduka watched as groups of Tamils left Sri Lanka for the Indian state of Tamil Nadu to the north.
“Almost everyone in the Northern Province knows someone who went to India or is based in India or has returned from India,” she said during a phone interview with Article 14.
Those who spent some time in India returned with stories of getting education, having enough to eat and importantly, feeling safe.
Smaller groups of Sri Lankans have continued to trickle into India since March 2022, a few months before the country’s President was ousted by country-wide protests, blaming him for the economic crisis.
All the asylum seekers from Sri Lanka have been kept in refugee camps in Mandapam town near the pilgrim city of Rameshwaram, where there are strict entry and exit restrictions.
While Maduka was keen to leave Sri Lanka, she said she did not want to go to a country where her freedoms might be severely restricted, as they would in India.
“In Sri Lanka,” said Maduka, “I have my freedom, even though the conditions are getting worse everyday.”
India does not have a uniform way to treat refugees or asylum seekers who enter its territory. The country does not have a domestic refugee law nor has it signed the UN Refugee Convention of 1951.
This means India does not have legal obligations to protect refugees rights such as free movement within the territory, freedom of religion or the right to not be expelled from the country unless the refugee poses threat to national security or public order.
“The institutionalisation of the long-standing Indian tradition of compassion, hospitality and protection to refugees can be achieved by the enactment of a national law on refugee protection,” said Oscar Mundia, United Nations High Commissioner for Refugees’ Chief of Mission for India and Maldives.
India’s neighbourhood is rife with ethnic violence, economic instability and political suppression. There are thousands of refugees and asylum seekers in India from Afghanistan, Tibet, Bangladesh, Myanmar and Sri Lanka, among others.
However, stories of Sri Lankans asylum seekers, about 300,000 of whom have streamed into India over a 30-year period, provide insights into the unpredictability of refugee life in India and how transformative a law that treated all asylum seekers uniformly could be.
That most Sri Lankan refugees are Hindu does not make it any easier, despite the Citizenship Amendment Act 2019, which has not yet been implemented, but will make no difference to them because Sri Lanka is excluded from the ambit of the law.
‘No One Knew Where India Began & Sri Lanka Ended’
When the British ruled the subcontinent, Tamils from Tamil Nadu were recruited in large numbers to work in tea, coffee and coconut plantations of Ceylon, as Sri Lanka used to be called until 1972.
After the British left in 1948, there were nearly 975,000 people classified by what was then Ceylon as “Indian nationals” and by India as “stateless”.
In 1964, the Prime Ministers of India and Sri Lanka signed a pact granting Ceylonese citizenship to 300,000 of the people, while 525,000 would be repatriated to India. The fate of the 150,000 Tamils in Ceylon was in limbo.
Among these was the family of 43-year-old Saravanan Nataraja. Although his family remained in Ceylon, he said, they continued to have ties to both countries.
But the borders between India and Sri Lanka were not “hard borders” for a long time, said S Irudaya Rajan, founder chair of the International Institute of Migration and Development, a think tank based in Thiruvananthapuram, Kerala.
“When an MGR [MG Ramachandran, a superstar Tamil actor turned politician] movie was released, they would take a boat from the Mannar area [of Sri Lanka], watch a show and return,” said Rajan. “No one knew exactly where the Indian border ended in the sea and where the Sri Lankan border began.”
Since Tamils of India and Sri Lanka shared a culture, language and history, it was natural for Tamil Sri Lankans to seek refuge in India when the island country was engulfed in the civil war in the 1980s and 1990s. Nataraja’s family survived aerial strikes and battles between Tamil rebels and the Sri Lankan army to reach India in 1990.
Nataraja is grateful for having survived and for receiving shelter in Tamil Nadu, but life as a refugee is not easy. He is not allowed to buy land and has to struggle to get a job. He works as an accountant in a local e-commerce firm. “But, it was not easy to land this job,” he said. The camp residents are expected to live off government stipend. “Moreover, when refugees step out of the camp to look for jobs they are never paid fairly,” said Rajan.
In the refugee camps, freedom is limited. When Sri Lankan refugees leave their camps, they are required to sign a register and sign back in when they return.
“I feel like a bird in a golden cage,” said Nataraja, who has lived in a camp near the city of Vellore, 165 km west of Chennai, since 1990, when he was 10.
According to the latest available official data, 304,269 Sri Lankan refugees entered India between July 1983 and August 2012 and were provided shelter, subsidised ration, educational assistance, medical care and cash allowances. Tamil Nadu hosts about 65,000 Sri Lankan refugees in about 133 camps.
‘Camp Life Is Tough’
Like Nataraja, Gandhimathi crossed over to India with her family in 1990 to escape persecution, when she was only 19 years old. They hid in forests and jumped into boats after nightfall to ensure they were not caught during transit.
“I didn’t think I would make it alive,” said Gandhimati, who was plagued by fatigue, weakness and stomach problems at the time. Today, she works in a Chennai-based NGO.
Back in the civil war years, refugees came to India even though the camps were overpopulated and unhygienic with no clean toilets or drainage facilities. “We used to tie sarees and make walls out of them for privacy,” she said.
Camp life was tough, said Thenmozhi V, a refugee who has worked in camps for 30 years, helping set up more than 600 women’s self help groups.
“There is no privacy and no community to lean on,” she said. While the people in the camps are Sri Lankan Tamils, they are not from the same village and do not necessarily know each other.”
“This increases the abuse as there is no one to stop verbal and physical abuse,” she said. The worst affected are women and children.
Despite all this, Sri Lankans flocked to India on boats because they could at least survive here. In comparison to the violence in Sri Lanka, the camps in India felt safe.
“We came here so we could survive,” said Nataraja.
After she arrived on the shores of Mandapam in the southern tip of India, Gandhimathi was sent to various refugee camps across Tamil Nadu. It has been 30 years and she now works in a Chennai-based NGO.
“There are many hard-working Sri Lankans who landed in India, got their education, contributed to the Indian society and went back to their country to contribute to its economy,” said Poonkothai Chandrahasan, who is on the board for the non-profit Organisation for Eelam Refugees’ Rehabilitation.
The Kindness That Faded
Gandhimathi remembers the kindness she received from Indian citizens. “They would drop off food, clothing and other supplies at the camp gates,” she said. “Imagine doing something for people you don’t see and have never known.”
But now, as the country struggles to emerge from a devastating financial crisis, there is concern over whether Sri Lankans can continue to see India as a sanctuary.
Since Sri Lankan Tamils are not fleeing a conflict zone this time around, they fear they will not be welcomed like the previous waves of migrants who reached the Indian shores.
“It is not as if we do not have poverty here,” said Padma Priya, a resident of T Nagar in Chennai, whose family has donated regularly to refugee camps across Tamil Nadu. This time around, she said, she does not see why she should help the undocumented migrants from Sri Lanka.
“I agree the situation in Sri Lanka is bad, but we have our own problems with hunger and malnutrition,” she said.
However, the inflow of asylum seekers from Sri Lanka is still a matter of persecution more than economic distress, said Ravi Nair of the South Asia Human Rights Documentation Centre, a think tank in New Delhi.
“The problem of landmines and clearance of unexploded explosives is a task half done [in the Northern and Eastern provinces],” said Nair. “Many people and towns affected by the war consider the Sinhalese military presence and the amount of territory still occupied nearly 14 years later as signs of permanent militarisation.”
Lack of public support in India means there is little political will to treat the current wave of asylum seekers the way Sri Lankans were treated in the past.
“If they knew they would get better treatment, many more Sri Lankans would surely come here for refuge,” said Gandhimathi.
India’s Legal Obligations To Refugees
Since India is not party to the Convention Relating to the Status of Refugees (1951) and its 1967 protocol, its refugee protection obligations are limited, as lawyer Malvika Prasad wrote in Article 14 in February 2020, although Article 21 of the Constitution ensures the right to life to non-citizens as well.
That right to life was not defended by the Supreme Court in April 2021, when the consequences of deportation of Rohingya refugees arose.
“Possibly that is the fear that if they go back to Myanmar, they will be slaughtered,” observed former Supreme Court Chief Justice Sharad Arvind Bobde. “But we cannot control all that. . . We are not called upon to condemn or condone genocide.”
The Kerala High Court ruled in 2013 that refugees and foreigners were not the same: refugees were forced to leave their countries.
According to the Foreigners Act 1946, anyone not an Indian citizen is considered a foreigner, and the foreigner must carry Indian government-issued documentation.
Without such documents, the individual is subject to the provisions of section 14 of the Foreigners Act, dealing with punishment, which can extend to five years and a fine. The Act also allows the government to detain and deport foreign nationals staying illegally in India.
The government has argued that since India has not signed the 1951 Refugee Convention, UNHCR identity cards are not legal documents. Yet, India has asserted at several UNHCR executive committee meetings (here and here) that refugees are protected by the Constitution.
As we reported in January 2020, India excludes refugees from essential identity documents, such as Aadhaar, the national identity number, but collects biometric data from refugees to aid surveillance and possible deportation.
Sri Lankan refugees do not fear deportation, given the support they have in Tamil Nadu, but they worry about the future of their children, who grow up as people without a country. Such children do not have the rights of citizens, which includes everything from constitutional protections to property rights. Unlike some countries, India does not confer automatic citizenship to children born here.
‘They Know No Other Country’
Gandhimathi has a son who was born in India but has Sri Lankan citizenship. But, increasingly, Sri Lankan refugees find the prospect of going back to their country difficult, as they indeed did after 2009, when the civil war ended, said Thenmozhi.
Many Sri Lankan refugees, especially those who were young when they moved, have spent more time in India than in Sri Lanka. The children of such refugees— unless they undergo the complicated process of getting their citizenship from the Sri Lankan embassy, as Gandhimathi’s son did—are essentially ‘stateless’.
In the last few years after the 2019 Easter Bombings and the pandemic, the country’s economy has been so battered that those who have been in India would like to stay.
“I want my children to get Indian citizenship,” said Nataraja, whose children were born in India. “They know no other country.”
In January, the Madras High Court said a woman born to Sri Lankan refugees could apply for Indian citizenship by naturalisation. However, since that can be a long drawn out process, it directed the union government to consider issuing a passport to the woman.
“‘She is for all practical purposes a stateless person,” said Justice G. R. Swaminathan.
In the absence of a refugee law, when India deals with its asylum seekers and refugees on a case by case basis, it is the judiciary that can set a good precedent, said advocate Santhanam Rajesh Kumar, who appeared for the petitioner. He admitted that his client was lucky and that need not be the case with others.
Refugees or asylum seekers are already at great disadvantage as they move across country borders with great risk.
“If there was a law that could protect the people from inconsistent policies and arbitrary political whims it would go a long way in their rehabilitation,” said Kumar.
Published in Article14
Published on April 19, 2023
Link: How The Lack Of A Law For Refugees In India Affects Hindu Tamil Asylum Seekers From Sri Lanka | Article-14