Needed, a national refugee law

By V. Suryanarayan

AS THE battle for Jaffna intensifies, the flow of Sri Lankan Tamil refugees to Tamil Nadu is increasing, nearly 300 refugees have sought asylum since the escalation of the conflict. From August 1996 to May 31, 2000, 21,267 refugees have arrived in Tamil Nadu. Most of them started their arduous journey from Talaimannar. They trekked long distances, assembled in Talaimannar, paid huge amounts to boat operators and reached Rameswaram. Since the Navy and the Coast Guard have stepped up vigil and since the Tamil Nadu Government has impounded a few boats used to transport the refugees, the operators either drop the refugees in the sea (very near the coast) or on one of the islands which dot the Palk Straits.

Tamils from Jaffna are unable to come to Tamil Nadu; reasons being large parts of Jaffna continue to be under army control, the Sri Lankan Navy controls the adjoining islands and, what is more, no mechanised boats are available. But if Jaffna and the surrounding islands fall to the Tigers, the flow of refugees from Jaffna to Vedaranyam will commence. Sri Lankan Tamils belonging to non-LTTE groups are bound to seek asylum in Tamil Nadu. The attitude of the Sri Lankan Tamils towards the LTTE can be understood from a recent incident. The LTTE asked the civilian population to move from conflict zones to Wanni. The appeal elicited a lukewarm response. Large numbers of Tamils preferred to move over to army-controlled areas. The flow of refugees is closely linked to the violence unleashed on the civilian population in the island. The twists and turns in India's Sri Lanka policy also had their inevitable impact on the refugees. It should be mentioned that the Sri Lankan Tamils are highly politicised and the refugees were the ``warm waters in which the militant fishes thrived''. The competitive nature of Tamil Nadu politics, with the two major Dravidian parties vying with each other to support the Sri Lankan Tamil cause and New Delhi's policy of arming the Tamil militants paved the way for the setting up of a large number of militant camps in different parts of Tamil Nadu. As time went on, the militants became a law unto themselves and the peace and tranquility of Tamil Nadu was vitiated by gun-toting militants.The dastardly assassination of Rajiv Gandhi by the suicide squad of the LTTE swung the pendulum to the other extreme. Tamil Nadu - people and Government alike - is yet to recover. The DMK and the AIADMK have distanced themselves from the Tigers. However, pro-LTTE political forces, which were lying dormant, have started their propaganda in favour of the LTTE. What is more, some of these parties are integral parts of the coalition Government in the Centre.

If immediate steps are not taken to revamp the security machinery, the situation in Tamil Nadu is likely to deteriorate. During recent years, there had been a number of serious lapses, which enabled the LTTE to become a law unto itself. The assassination of Padmanabha and his EPRLF comrades in June 1990; the cold-blooded murder of Rajiv Gandhi in May 1991; the escape of Kiruban, a top LTTE leader, while being taken to Pudukkottai in April 1993; the escape of Charles Nawaz, a witness in Rajiv Gandhi case, in May 1993 from the Saidapet Special Camp; the daring escape of the LTTE cadres from the Tipu Mahal Camp in Vellore in August 1995 - the list is very long, it brings no laurels to New Delhi or Chennai. If on that fateful night in Sriperumbudur, female security personnel had physically frisked all women who wanted to greet Rajiv Gandhi, perhaps we may not have lost a political leader of great promise in the prime of his life. Among the accused in Rajiv Gandhi assassination case, half a dozen - Robert Payas, Jayakumar, Shanti (Jayakumar's wife), Vijayan, Selva Lakshmi (Vijayan's wife) and Bhaskaran (Vijayan's father-in-law) - were registered as refugees.

New Delhi should take immediate steps to enact a national legislation on refugees. This legislation should spell out the rights of the refugees; at the same time, it should also safeguard the territorial integrity and security of the state. Today, the problems of the refugees are dealt with on an ad hoc basis. However, there are issues that cannot be addressed this way. For example, do the refugees have the right to work? Do they have freedom of association? The judiciary, it must be pointed out, is playing a benign role in protecting the interests of the refugees. In the famous case of NHRC v State of Arunachal Pradesh, the Supreme Court held that: ``The State is bound to protect life and liberty of every human being, he be a citizen or otherwise''.

Since there is no refugee law in India, refugees are treated as aliens. They are covered by the Registration of Foreigners Act, 1939, which is applicable to all foreigners. The Foreigners Act, 1946, empowers the State to regulate the entry, presence and departure of aliens in India. The Passport Act, 1920, and the Passport Act, 1967, govern the entry and departure of persons. Further, under the Constitution of India, certain fundamental rights - right to equality; right to personal life and liberty; and the freedom to practise and propagate one's religion are guaranteed to citizens and non-citizens alike.

The absence of a well-defined national refugee law has created a number of anomalous situations. Three illustrations pertaining to Sri Lankan Tamils are given below. As stated earlier, among the 26 accused in the Rajiv Gandhi assassination case, six were registered as refugees. The trial Court awarded capital punishment to all the 26 accused. The Supreme Court confirmed the death sentence on four and awarded life imprisonment for three. While acquitted Indian nationals were set free, the Sri Lankan Tamils are placed in Special Camps.

The second illustration relates to the ``Ahat'' case. The ship ``Ahat'' was registered in Singapore and was flying a Honduras flag. It was allegedly carrying weapons and ammunition for the LTTE when the Indian Navy and the Coast Guard intercepted it. After an exchange of fire, the ship was set ablaze and some Sri Lankan Tamils, including the LTTE leader, Kittu, committed suicide. The Judge acquitted all the accused and ordered the Commissioner of Police to hand them over to the State of Honduras. The Supreme Court found the accused guilty of some charges and sentenced them to a total period of imprisonment of three years. Here again, the accused had already completed the period of imprisonment and, therefore, were set free. Honduras did not want to take the Tamils; nor did the Tamils have a Honduras passport. The Tamils also did not want to go back to Sri Lanka. One Tamil went to the Middle East. The rest are in ``safe custody'' in Visakhapatnam.

The third illustration is a grim reminder of the ignorance of the Tamil Nadu security officials about the international network which the Tigers have built up over the years. Bhaskaran, an LTTE guerilla, was detained in the Saidapet special camp after Rajiv Gandhi's assassination. No charges were preferred against him, and Bhaskaran appealed to the authorities for permission to go abroad. The immigration authorities left Bhaskaran at the Meenambakkam airport. A few weeks later, he was in Phnom Penh negotiating the purchase of surface-to-air missiles for the LTTE.

The examples given above should serve as a warning to Chennai and New Delhi. Even under existing rules and regulations, aliens working against Indian national interest can be deported. There are judicial precedents too. In Mohammad Sadiq v Government of India, the Court ordered the deportation of refugees under the Foreigners Act, 1946, since they had engaged in anti-national activities. What is lacking is the political will to take difficult decisions. India, especially Tamil Nadu, cannot afford to become a ``soft state''. A national legislation on refugees, combining the humanitarian needs of the refugees with the security interests of the state, should be immediately enacted.

(The writer is former Director, Centre for South and Southeast Asian Studies, University of Madras, Chennai.)

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