By Suzan Okar
India shelters one of the largest refugee populations in the world. Tibetans are the largest refugee group in South Asia and majority of them live in India. They maintain a unique culture and are pursuing a peaceful struggle. Before drawing a conclusion about the treatment meted out to Tibetans in India one must first look at international norms for treatment of refugees.
The international norms of treatment of refugees are embodied in the United Nations Convention Relating to the Status of Refugees, 1951 and its 1967 Protocol. The latter removes temporal and geographical limitations. In these two documents, 34 rights and freedoms are granted to refugees. World's 137 countries have signed the convention and the subsequent protocol. Contracting parties can express their reservations to all the articles contained in the Convention and Protocol except Article 3 non-discrimination; Art 1- refugee definition; Art 4- freedom of religion; Art 16(1)- access to courts; and Art. 33 - the principle of non-refoulement (a pre-condition against rejection and deportation of any person trying to cross borders in case this could endanger life of the entrant). India has yet to sign the Convention and its Protocol, leaving Indian policy outside the jurisdiction of UN supervision.
In its 1998 Country Report on India, the US Committee for Refugees highlighted that only 18,500 refugees had received United Nations High Commissioner for Refugees (UNHCR) protection out of 3,00,000. India, by not signing the 1951 Convention, in essence, has refused substantial international assistance from other UN member states. Even though India maintains that refugee convention places a large burden on the host state, the UNHCR would actually bear a substantial part of the burden by providing most important financial assistance to the refugees arriving in India. India's current policy regarding refugees within its borders is not to assist and the refugee situation is handled on ad-hoc basis.
Foreigners in India
There are three sets of laws that deal with foreigners in India. They are: The Registration of Foreigners Act 1939, The Foreigners Act 1946 and The Foreigners Order 1948. Under Section 2 of the Registration of Foreigners Act, the term foreigner is defined as "a person who is not a citizen of India," which can refer to aliens of any kind including immigrants, refugees and tourists.
The Indian government has the power to restrict movement inside India, limit employment opportunities, control the opportunity to associate and the right to return refugees to the country they have fled from. Section 3 of the Foreigners Order gives government the power to either grant or refuse entry if a person does not possess a valid passport. If the technical criteria are not fulfilled, the government can refoule refugees at the border, which is in direct violation of the 1951 convention and customary international law.
Section 3 (2) of the Act permits the Indian government to require all refugees living in India to reside in special designated areas. Thus, this section constitutes a restriction on movement. India can confine foreigners to refugee camps, conduct periodic camp inspections, limit foreigners' possessions and prohibit selected activities.
The Citizenship Act
Section 3 of the Citizen Act of 1955 outlines the conditions necessary to gain citizenship. Citizenship by birth is granted to every person born in India, or persons who otherwise have Indian citizenship. A person born outside India can be granted citizenship if his father was Indian at the time of the applicant's birth.
Tibet always had its own tradition of life separated from Han for 1,500 years. Tibet is culturally different from China. Tibetans are Buddhist, their culture and economic traditions are based on a harsh climate and geographic conditions. The history demonstrated that Tibet was an independent state before the 13th century and signed a treaty with China in 821 and 822. For the next 300 years no diplomatic contact was noted between China and Tibet. Although in 13th Century Tibet was administrated separately by Mongols through local Tibetan rulers, it was not ruled directly as the Chinese were during the Yuan Dynasty. Even the dominance of a third party was separate. From 1349 to 1642 (Second Kingdom), Tibet was a kingdom free from Mongol or Chinese control, even though the Chinese Ming Dynasty granted titles to certain Tibetan officials, they had no effective control in Tibet's internal or external affairs. During the Qing Dynasty, the Dalai Lama and the Manchu Emperors re-established the cho-yon relationship that was based on a protectorate mechanism. The Ambans who were the representatives of the Emperor in Lhasa were given authority to exercise power over Tibet's external affairs, but this was presented to the Tibetan leader as a suggestion and not an imposition of the implementation of the imperial power. The cho-yon relationship ended without any effective control over Tibet. In light of historical evidence the claims of sovereignty of China over Tibet must be totally rejected.
International Law and Refugees
Refoulement of persons seeking asylum is a violation of customary international law. The principle of non-refoulement prevents a country from expelling refugees to countries where their lives and liberties would be threatened, as well as standards codified in Refugee Convention. The 137 signatory state parties consistently practice non-refoulement in their determination whether to grant entrance to people seeking asylum. The principle of non- refoulement is applicable regardless of whether states are parties to the convention or not. The practice of non-refoulement by most states, as well as the respect for the policy as a legal obligation, has rendered non-refoulement a customary international practice.
Far from following the international standards for treatment of refugees, India's treatment of various refugees is based on political grounds, thus, creating an unstable and ever-changing domestic policy. India grants privileges to certain refugees based on bilateral and multilateral political relations with other states. Tibetan refugees are the largest refugee group in India. Before appreciating the Tibetan refugees' condition and means of livelihood in India, we must first examine their situation from the very beginning of the exodus and the different phases of their displacement.
Phases of Displacement
Religious persecutions, political repression, barriers to endogamous marriages by the Chinese government and the will to follow Dalai Lama are some of the reasons for displacement. Tibetans may be the sole refugee community who do not live in refugee camps but in settlements.
Tibetan refugees began to enter India in 1959, after communist China's invasion and annexation of Tibet. Two phases of displacement have been noted. The first was the displacement in 1959, and the second was the exodus in the early eighties. The first batch of Tibetans crossed over to India on March 31, 1959, when 85.000 Tibetans followed their spiritual and temporal leader, the Dalai Lama. The second exodus started in the early eighties during the period when Tibet was open to trade and tourism. Between 1986 and 1996, 25,000 Tibetans arrived in India. About 44 per cent of them were monks and nuns. In 1999, another 2,200 Tibetans arrived. The Indian government allowed 2,200 to enter the country, but the majority have not been granted legal residence. In 1998, the Tibetan administration in India declared that the number of Tibetan refugees had reached 1,18,000. The Indian government allows the entry of any Tibetan refugee on the Dalai Lama's pledge that they personally abstain from violent and political activities.
Over 80,000 fled the Chinese occupation of their country and established a refugee community in Dharamsala. The years at the beginning were the most difficult. Many Tibetans coming from the high Tibetan plateau succumbed to tropical diseases and heat exhaustion. With the help of the Indian government, 54 agricultural and agro-industrial based refugee settlements were gradually established. The idea was to resettle Tibetans in homogeneous communities where they would be able to preserve their culture and traditions, enabling them to become self-sufficient.
We the Nation
The capital city of Tibet, Lhasa was the headquarters of the Tibetan government. From an administrative point of view, Tibet had a fully functioning government headed by Dalai Lama. The central administration was composed of a cabinet of ministers called the Kashag, a national assembly named Tsongdu and a complex bureaucracy to govern the large territory of Tibet. The judicial system was based on a system developed over the 7 th century, the 14th century, by the fifth Dalai Lama in the 17th century and by the thirteenth Dalai Lama in the 20th century. The government appointed magistrates and the local authority was administrated in order to satisfy the Tibetans interests through civil services, taxation mechanisms, country's postal services and commanded the army. Tibet had a different currency from the Chinese Yuan (the tangka was a currency of Tibet until 1941, it was initially issued in the form of silver coin s and tangka banknotes were issued between 1912 and 1941) and issued internationally recognised passports.
While only state entities can enter into treaties with other states. Tibet signed treaties as a sovereign country with several states such as Great Britain, Nepal, Ladakh and Mongolia. Tibet maintained diplomatic and economic relations with the latter and other states as British India, Bhutan, Sikkim, China and to a limited extent with Russia and Japan.
Dharamshala and Tibet
The democratic administration in exile was set up in Dharamsala. Tibetan schools were established following a modern secular educational model with Tibetan language, literature, culture and religion classes. There are 85 such Tibetan schools throughout India, Nepal and Bhutan. About 70 per cent of Tibetan children attend school. Centres of propagation, preservation and perpetuation of Tibetan culture and tradition were also setup to teach the art of carpet weaving and wood and metal carving. Besides this, about 200 monasteries and nunneries were established to revive religious education and tradition. Consequently, Tibetans have been able to hold to their traditions in India, which was virtually destroyed in Tibet.
In the 1960's and 1970's, India gave preferential treatment to Tibetan refugees over others. This was mainly because the Dalai Lama sought shelter for himself and his people; China's invasion of Tibet played a key role in this where the world could see the plight of Tibetans. As a result of these exigencies, India allowed the Dalai Lama to establish a Tibetan government in exile called the Central Tibetan Administration (CTA). It is based at Dharamsala. Yet India has not officially recognised it. Although no foreigners can own property in India, the Indian government provided land and housing to establish Tibetan farming settlements. The Indian government granted Tibetan refugees, who entered India in the 1970's, Indian residency (or resident status) for purposes of identification, employment and domestic travel. As a result, Indian identification certificates were awarded to these individuals. This allowed them to travel outside India for things like medical treatment. The Indian government stressed that it has no obligation to assist refugees, it chose to grant these early Tibetan refugees services and opportunities that no other group enjoys.
Yet India's lack of clear standards for treatment of refugees is a violation of international norms. Its policy is discriminatory and inequitable even to the members of the same group. Prior to 1980's, Tibetans received adequate assistance from the Indian government. However, this greatly declined forcing Tibetans refugees to often live in sub-human conditions. The increased numbers of Tibetans coming after the 1980's had put greater pressure on services provided by India. Although India continued to admit Tibetan refugees after the 1980's, the government has denied these Tibetans both residential and identification certificates. This has created serious problems because employment, international travel and naturalisation hinge on possession of these documents. As a result, these rights are unattainable for the new arrivals.
The Indian government admitted 25,000 Tibetans between the years of 1986 and 1996. Yet the government refused to grant them new allotments of land, which led to overpopulation, unemployment and food shortages for the poor refugees. Press too reported incidents of Indian government returning to China small groups of refugees trying to enter India. The Indian government, in an attempt to improve its relations with China declined assistance to the Tibetan refugees. China can see this assistance as Indian support for a Tibetan state and as an affront to Beijing's sovereign claim over Tibet. The decreasing assistance is aimed at stopping the overpopulation of Tibetan settlement.
According to the records collected between 1994 and 1996, there were 65.000 Tibetan refugees residing in India. About 10.000 were monks living in monasteries in south India and the rest of the refugees were living in 37 settlements widely distributed around India. The data was collected by the health department of the Tibetan government in exile, through house visits and designated liaisons in the monasteries that provided monthly reports. Over the past 10 years, the data shows a small immigration of new civilian refugees compared to a large number of monks coming to settle to monasteries. People between 15 and 25 years of age constitute the majority of the Tibetan population in exile.
Refugees born in India are educated through secondary schools as compared to those born in Tibet who are often illiterate. The primary occupations of Tibetan refugees in India are; 27 per cent education, 16 per cent farming, 6.5 per cent woollen wares selling, 2.4 per cent unemployed and 6.5 per cent inactive (young children and elderly persons).
India did not support an independent Tibet despite giving asylum to Tibetans. At the beginning, they were in transit camps such as Misamari in Assam, Buxa in West Bengal, and then, they moved to Sikkim, Karnataka, Laddakh in Jammu & Kashmir and Dharamsala in Himachal Pradesh. Relations with the host community must be examined under two aspects. The first is the governmental level, and the other at the level of community. The Indian government neither supports Tibet's autonomy nor recognises the Tibetan government in exile. The Tibetan refugees live in relative isolation from local people in order to preserve their distinct religion and culture. Generally, any interaction between the Tibetans and the locals is harmonious. But in recent years they have been facing a gradual rejection, because of the local population getting averse. The latter feel threatened by the demographical and cultural impact of refugees. It has been alleged that Tibetans were buying up large tracts of land through "benami transactions". ("Benami transactions" are purchases in false names of other persons, who do not pay and merely lend their name, while the real title vests with another person who actually purchased the property and is the benefiting owner). Parliament totally prohibited the Benami transactions.
New Tibetan Refugees
New refugees who come to India can be separated into two groups: those who came with a Chinese permit and those who escaped and came without Chinese permit. In order to obtain a Chinese permit, the applicant must pay 5,000 to 6,000 Yuan. When applying for a permit, one has to specify the purpose of the visit like pilgrimage or meeting relatives. One of their family members is kept as hostage/security against their return. After reaching Kathmandu, they travel to India secretly without alerting the Chinese authorities, they have to return to Tibet before their permit expires. Mainly, people come for blessings and religious teachings from the Dalai Lama. They come mostly during winter months. People who escape without Chinese permit usually pretend to go on pilgrimage to Mount Kailash. Once they reach Mount Kailash, they walk across Himalayas into Nepal with little or no belongings, except bare minimum clothing. They face many difficulties when trying to cross into Nepal such as frostbite, starvation, sexual harassment by border policemen, possible arrest en route and deportation at the border and constant fear of death.
From Tibet to Dharamsala
The journey from Mount Kailash to Kathmandu takes about one-and-half-month during inclement winter months (November to February) in case they escape the attention of the border police, or escape the snowstorms. Generally, people feel safe when they move in groups. Finally, they land up at the Kathmandu Reception Centre haggard, malnourished and emaciated.
Kathmandu Reception Centre (KRC) arranges food, accommodation and medical care during their stay in Nepal and assists their travel to India; as well as, their release from police custody if necessary. The new arrivals are screened by UNHCR in Kathmandu to determine whether they are refugees. If categorised as a refugee, they receive 2,700 Nepalese rupees each (1,530 INR). If there are two or more members in the family, the head gets 2,700 Nepalese rupees and dependants receive 900 rupees each. This amount covers expenses in Kathmandu and travel to Delhi. In Kathmandu, Tibetan refugees fill a form stating their personal details and the purpose for travelling to India. All these formalities take 7 to 10 days.
After spending usually three days at the Delhi Reception Centre (DRC), the refugees are sent to Dharamsala or to monasteries or nunneries in southern Tibetan settlements, depending on the data provided by them on the form, which each person carries with him or her. During their stay in Delhi, food and accommodation are provided free of charge. For persons going to a monastery or nunnery, DRC takes care of travelling arrangements to south India.
Dharamsala Reception Centre (DhRC) gives free food, accommodation and medical care during their stay for a period not exceeding 15 days. Office Reception Centre (ORC) arranges audiences with the Dalai Lama and processes their admission to various institutions. Travelling expenses are paid by ORC.
India plays important role vis-à-vis refugees because of its position as a leader in South Asia, setting an example for other states in the region. Yet, India does not conform to the international norms for the treatment of refugees. It applies policies in a discriminatory and inequitable manner among Tibetan refugees. The adoption of basic international standards is essential because this will ensure international assistance and monitoring of refugee groups. Thus, India must accede to the Refugee Convention and its Protocol.
The author is a France-based Turkish human rights lawyer