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"On my part, I remain committed to the process of dialogue. It is my firm belief that dialogue and a willingness to look with honesty and clarity at the reality of Tibet can lead us to a viable solution."

Tibetan Refugees in India -- Declining Sympathies, Diminishing Rights

May 16, 2008

Human Rights Features (India)
(HRF 183)
April 30, 2008

India has not signed the 1951 Convention on the Status of
Refugees—the primary instrument setting international norms for the
treatment of refugees. As a result, its treatment of refugees remains
outside the purview of a congenitally pusillanimous Office of the
United Nations High Commissioner for Refugees (UNHCR). For the most
part, India's treatment of Tibetan refugees has been generous,
providing them with political exile as well as shelter and the
opportunity to secure an economic livelihood, but the limitations to
this generosity are becoming increasingly apparent.

Contrary to the usual practice of releasing peaceful demonstrators
after a few days of judicial custody with an admonition, 365 Tibetan
demonstrators, including 64 women, continue to be held in Delhi's
Tihar Jail, nearly two weeks after the Beijing Olympic torch arrived
and departed. The stifling of the right to peaceful protest around
the recent farcical torch run is only the tip of the iceberg, not
merely for refugee rights but for wider democratic freedoms.

According to the most recent estimates, India is host to
approximately 110,000 refugees from Tibet.[1] While the practice of
Tibetan refugee hosting has, thus far, been generous and lenient, the
legal framework directing the actions of the government afford the
Indian government great powers of control and restriction over
foreigners, including Tibetan refugees. Tibetan leaders in India
consistently state that the government of India has treated them
extremely well, but these understandably sincere statements of
gratitude fail to testify to a changing reality—both practical and
political—under which Tibetan refugees in India must live. Tibetans,
as one of the only refugee groups to be officially recognised by the
Indian government and thus legally permitted to stay in India, are
often considered to be in a more advantageous position than other
refugees in India.[2] It is, however, necessary to recognize that the
proximity and strategic importance of their country of origin, China,
makes their situation politically delicate. As political pressure
continues to mount on India from China, human rights observers fear
that the practice of tolerance and permissive freedom will give way
to subtle and even overt forms of repression, which are technically
supported under Indian law.

TIBETAN COMMUNITIES IN INDIA

More than 80 percent of Tibetans in exile live in scattered camps and
settlement communities in India. There were two large waves of
Tibetan migration to India. The first wave was in 1959 when over
80,000 refugees followed the Dalai Lama and established a community
in the town of Dharamsala in the northern state of Himachal
Pradesh.[3] Dharamsala is also home to the Tibetan
government-in-exile, known as the Central Tibetan Administration
(CTA). Throughout the 1960s and 1970s, India granted Tibetans
privileged status among refugees and helped establish nearly 40
agricultural-based refugee settlements in order to allow Tibetans to
preserve their culture, their traditions, and to enjoy self-sufficiency.[4]

The experience of the second wave of refugees from Tibet was vastly
different and revealed a withdrawal, on the part of India, of
preferential status enjoyed by the first arrivals. The second wave
began arriving in India in late 1979-80, after China liberalised its
emigration policy.

THE LEGAL STATUS OF TIBETANS IN INDIA

As India has no separate refugee legislation, the laws governing the
entry, stay and exit of refugees is subsumed under the laws governing
all foreigners. The primary legislative instrument of this
foreigner's regime is the Foreigners Act, 1946. The Act gives the
Government of India the power to make orders "prohibiting, regulating
or restricting the entry of foreigners into India or their departure
therefrom or their presence or continued presence therein."[5] By
law, Tibetans are can be detained or arrested for contravening any
part of the Foreigners Act or Orders and may be subject to further
penalty.[6] Although the general practice of India is not to exercise
its control to this extent in regard to Tibetan refugees, it would be
well within its powers, if it chose to do so.

Tibetans who arrived in India before 1979 or who can prove that they
were born in India prior to 1979 are given residence permits issued
by the Indian Home Ministry which must be renewed yearly. [7] Some
sources refer to these documents as residence permits, while others
as residential certificates. Residence permits are necessary in order
to obtain work, to rent an apartment or to open a bank account.[8]
These residence permits also allow Tibetan refugees to obtain
identity certificates which are necessary for international travel.
Until 2003, the CTA issued birth certificates to Indian-born
Tibetans.[9] These were accepted by the Indian government as proof of
Tibetan identity in the application of residence permits.

Tibetans who arrived in India after 1979 face a different situation.
After 1979, the Government of India stopped issuing residence permits
to Tibetan refugees. A number of sources including the International
Campaign for Tibet point out that in recent years, the Government of
India has only been issuing residence permits to children of Tibetans
who arrived in India before 1979.[10] New arrivals, part of the
'second wave' are, for all effective purposes, not officially
recognised by the Indian government.[11] According to UNHCR, new
arrivals are tolerated by the Indian government and are allowed to
remain in India as long as they do not become involved in political
activities.[12]

CITIZENSHIP

As the Tibetan refugee community in India has existed for over 50
years and many Tibetans have been born in India. However, conflicting
information exists about whether or not Tibetan refugees living in
India are able to acquire Indian citizenship. Further, a number of
sources indicate that only 1-3% of Tibetans who are eligible apply
for Indian citizenship.[13] Few of them apply because there is a
general belief that their exile in India is temporary and a return to
Tibet will eventually follow.[14] Many do not see India as their
country and look forward to returning to a free Tibet.[15] As a
result, they see no need for the acquisition of Indian citizenship.

Other sources, however, reveal that the acquisition of Indian
citizenship is not so straightforward for Tibetans. The Research
Directorate of the Immigration and Refugee Board of Canada, for
example, has reported that according to information obtained from the
High Commission of India in Ottawa, neither citizens of Tibet who
reside in India nor individuals who are born in India to parents who
are Tibetan citizens are eligible for Indian citizenship.[16] In an
interview with the Unites States Bureau of Citizenship and
Immigration Services, a Liaison Officer from the Office of Tibet in
New York stated that in general, Tibetans have trouble obtaining
Indian citizenship and are subsequently denied the concomitant rights
it bestows.[17]

IDENTITY CARDS FOR TRAVEL

Tibetans are able to travel within India as long as they obtain
permission from Indian authorities and report back to local police
upon their return. While travelling within India, they must carry
their Registration Certificate.[18] For international travel,
Tibetans must obtain an Identity Certificate (IC) from the Indian
Home Ministry, valid for two years. In order to return to India, the
document must bear a 'no objection to return to India stamp'. Since
the second wave of Tibetans is not recognised by the Indian
government, they are unable to obtain Identity Certificates.

Although the freedom of movement is enjoyed in this limited sense by
Tibetan refugees, it is important to note that it is not a right
guaranteed to refugees as foreigners in India. In fact, the 1948
Foreigners Order prohibits refugees and asylum seekers from leaving
India without permission and the Foreigners Act 1946 gives
authorities the right to control and restrict their movements within
India. Thus, Tibetan refugees may be subject to the whim of the
executive powers. In fact, at the end of 2006, India banned Tibetans
from receiving international travel documents. [19]

SINO- INDIAN RAPPROCHEMENT AND RIGHTS RESTRICTIONS

It appears that in addition to scaling down of assistance to Tibetan
refugees, the Government of India has, in recent years, been looking
eastward to improve relations with China. The combination of these
two factors could spell disaster for Tibetans in India.

Beginning in the 1980s, India's enthusiasm towards refugees from
Tibet began to wane. Although India continued to admit Tibetan
refugees after the 1980s (approximately 25,000 between 1986 and
1996), the government has denied these Tibetans both residential and
identification certificates and has refused to grant further
assistance to refugee communities in the form of new land allotments. [20]

Furthermore, the warming of India-China ties is unfavourable for
Tibetan refugees in India who enjoy only the most minimal rights
under the law. India has demonstrated that it will not tolerate
protests from Tibetan activists, especially during important visits
from Chinese dignitaries. When Chinese Premier Li Peng visited India
in 1991, the Government arrested Tibetan leaders and used police to
forcibly remove demonstrators.[21] China has been quite clear about
its displeasure with protests in front of the Chinese embassy in New
Delhi and had challenged the Indian government to act.[22]

CONCLUSION

Problems facing Tibetan communities in India are twofold: the
increasing intolerance of the intolerance of the Indian government as
it warms up to China in an environment of diminished rights for
Tibetans, and the challenge of a limited and overburdened
infrastructure, land and social services in the face of an expanding
population and resource depletion.

The Indian government has been permissive, but not overly happy with
Tibetans in exile in recent years. This position, which has thus far
created an environment where Tibetans are able to live in exile, is
also a position, which technically allows for wide governmental
discretion in restricting their rights. In the context of renewed
political volatility in Tibet, the new Maoist dispensation in Nepal
and increasing pressure from China, India cannot be counted on to
assure the rights protection of Tibetan refugees in the future.

Notes:

[1] United States Department of State, 2007 Country Reports on Human
Rights Practices - India, Bureau of Democracy, Human Rights and
Labor, 11 March 2008, available at
http://www.state.gov/g/drl/rls/hrrpt/2007/100614.htm.
[2] United States Committee for Refugees and Immigrants, World
Refugee Survey 2007 ­ India, available at
http://www.refugees.org/countryreports.aspx?id=2000. This report
indicates that unlike other refugees with the exception of Sri Lankan
Tamils, Tibetans are provided with documents that legalise their stay
in India; permission to work though there is no legal basis for doing
so, certification to practice profession that was not available to
other refugee groups, and have been successful in acquiring land,
something that other refugees are unable to do.
[3] Immigration and Refugee Board of Canada, Extended Response to
Information Request, (IND33125.EX), 23 December 1999, India:
Situation of Tibetan refugees and those not recognized as refugees;
including legal rights and living conditions, available at
http://www.cisr-irb.gc.ca/en/research/publications/index_e.htm?docid=18&cid=107.
[4] Ibid.
[5] V.K. Dewan, "The Foreigner's Act, 1946", Law of Citizenship
Foreigners and Passports, 2nd ed.1987 (Orient Law House), p. 225.
[6] Ibid.
[7] Immigration and Refugee Board of Canada, India/China: Whether a
Tibetan whose birth in India between 1950 and 1987 was not registered
with the authorities would be recognized as a citizen; whether the
Indian government accepts birth certificates issued by the Tibetan
government-in-exile; whether the Indian government issues birth
certificates to Tibetans born in India , 6 February 2006. ZZZ100699.E
. Online. UNHCR Refworld, available at:
http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=45f147d1a
[accessed 23 April 2008].
[8] Ibid.
[9] Ibid.
[10] United States Bureau of Citizenship and Immigration Services,
India: Information on Tibetan Refugees and Settlements, 30 May 2003.
IND03002.ZNY. Online. UNHCR Refworld, available at:
http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=3f51f90821
[accessed 24 April 2008].
[11] Immigration and Refugee Board of Canada, Responses to
Information Requests (ZZZ100699.E), op. cit.
[12] Immigration and Refugee Board of Canada, India: Situation of
Tibetan refugees and those not recognized as refugees; including
legal rights and living conditions, 23 December 1999.
IND33125.EX  Online. UNHCR Refworld, available at:
http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=3ae6ad4124
[accessed 24 April 2008].
[13] Immigration and Refugee Board of Canada, India: Information on
whether the Indian government issues documents to Tibetan refugees in
India to travel abroad and, if so, what type of documents;
information on the issue and renewal procedures outside India and on
the rights of Tibetan refugees in India to education and employment
and to re-entry after visiting abroad, 1 December 1994. IND19143.E.
Online. UNHCR Refworld, available at:
http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=3ae6ad0f30
[accessed 23 April 2008]; "Nurturing a Dream of Returning Home", The
Hindu, 26 May 2005, available at
http://www.hindu.com/lf/2005/05/26/stories/2005052614240200.htm.
[14] Immigration and Refugee Board of Canada, Responses to
Information Requests (ZZZ100699.E), op. cit.
[15] Immigration and Refugee Board of Canada, India: Information on
whether the Indian government issues documents to Tibetan refugees…,
op. cit.; "Nurturing a Dream of Returning Home," The Hindu, op. cit.
[16] Immigration and Refugee Board of Canada, Responses to
Information Requests (IND42508.E), 26 March 2004, available at
http://www.cisr-irb.gc.ca/en/research/rir/index_e.htm?action=record.viewrec&gotorec=424802.
[17] United States Bureau of Citizenship and Immigration Services,
India: Information on Tibetan Refugees and Settlements, op. cit.
[18] Immigration and Refugee Board of Canada, China/India:
Information from the United States Department of State regarding
Tibetans in India , 13 September 1999. ZZZ32810.E . Online. UNHCR
Refworld, available at:
http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=3ae6ad7e48
[accessed 23 April 2008].
[19] United States Committee for Refugees and Immigrants. U.S.
Committee for Refugees World Survey- 2007- India. Online. Available
at: http://www.refugees.org/countryreports.aspx?id=2000 [accessed on
24 April 2008].
[20] The Government of Tibet in Exile [Dharamsala]. 1996. "Tibetan
Refugee Community- Integrated Development Plan (1995-2000)",
Available at http://www.tibet.com/govt/idp.html [accessed 24 April 2008].
[21] Immigration and Refugee Board of Canada, India : 1) Legal status
of Tibetan refugees; 2) Rights of Tibetans to Indian nationality, 1
July 1992. IND11239. Online. UNHCR Refworld, available at:
http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=3ae6aab124
[accessed 23 April 2008]
[22] Immigration and Refugee Board of Canada, Extended Response to
Information Request, (IND33125.EX), op. cit.
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