Refugee Rights, The Gendered Nature Of Displacement

According to the United Nations High Commissioner for Refugees (UNHCR), by the end of 2023, 11.73 crore people, worldwide, had been forcibly displaced due to persecution, conflict, violence, human rights violations or events seriously disturbing public order. Among them, 3.76 crore were refugees.

• Given the ongoing conflicts, such as the Israel-Hamas war, the Ukraine-Russia war, and new threats to Rohingyas in Myanmar, the number of refugees is likely to increase significantly.
• The gendered nature of displacement highlights how refugees face unique challenges based on their gender. Effective humanitarian responses must address these gender-specific needs to ensure equitable support for all refugees.

Refugee

• About: The 1951 Refugee Convention defines a refugee as a person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of their nationality and is unable or, owing to such fear, is unwilling to avail themself of the protection of that country.” 
• Global Displacement: By the end of 2023, 117.3 million people worldwide had been forcibly displaced due to persecution, conflict, violence, human rights violations, or severe public disorder.
  • As per the data of the United Nations High Commissioner for Refugees (UNHCR), the UN Refugee Agency: Globally, there are 43.4 million refugees. 
  • An estimated 40 per cent of the world’s refugees are children.
  • The UNHCR protects 31.6 million refugees and 5.8 million others in need of international protection.
  • The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) supports 6 million Palestine refugees.
• Determining Refugee Status: Refugee status is determined through a process called refugee status determination, typically conducted by host countries or UNHCR. 
  • In cases of mass displacement, individuals fleeing may receive automatic refugee status on a ‘prima facie’ basis without individual examination.
• Ongoing Conflicts: The escalation of the Israel-Hamas war, the ongoing Ukraine-Russia war, and renewed threats to Rohingyas in Myanmar are expected to significantly increase the number of refugees globally.

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Gendered Nature of Displacement

• Acknowledgment of Gendered Displacement: The United Nations Population Fund recognizes that “the face of displacement is female.”
• Gendered Nature of Displacement: The gendered nature of displacement means that women and girls often face specific vulnerabilities and barriers affecting their access to services, safety, and well-being in ways that differ from men and boys. 
• Disruption of Lives and Resources: During displacement, families are frequently separated, assets and livelihoods are lost or disrupted, and challenges such as language barriers, legal constraints, and discrimination may arise. 
• Gender-Specific Impacts and Opportunities:These impacts and barriers, as well as opportunities for support, vary significantly between genders.
• Differential Impact: Displacement affects men, women, disabled people, non-binary individuals etc in distinct ways. 
  • Women and Girls: They often face increased risks of gender-based violence, including sexual violence, exploitation, forced prostitution etc. They also bear disproportionate responsibilities for caregiving and family care.
  • Women are often solely responsible for children, are usually the last to flee, and carry gendered caregiving responsibilities for both the elderly and the young.
  • They frequently bear the primary responsibility for the family’s sustenance.
  • Limited access to community networks and reduced safety contribute to their increased vulnerability.
    • Gender-based violence can include sexual, physical, mental and economic harm inflicted in public or in private. 
    • It also includes threats of violence, coercion and manipulation. 
    • This can take many forms such as intimate partner violence, sexual violence, child marriage, female genital mutilation and so-called ‘honour crimes’.
  • Men and Boys: Men often bear different socioeconomic responsibilities and pressures, such as providing for their families or navigating labour markets in host countries.
    • They might face different challenges, such as being at higher risk of violence or recruitment into armed groups.
  • People with Disabilities: The UN Convention on the Rights of Persons with Disabilities (UNCRPD) recognizes ‘psychosocial disability’ as long-term mental or intellectual impairments that hinder full societal participation and guarantees rights to affected individuals.

India and Refugees

• India’s Refugee History: India has hosted over 200,000 refugees from diverse groups since its independence, earning a reputation as a ‘refugee-receiving’ nation.
• Current Refugee Demographics: As of January 31, 2022, 46,000 refugees and asylum-seekers were registered with UNHCR India.
• Gender Distribution: Women and girls make up 46% of the refugee population in India, representing a disproportionately burdened and vulnerable group.
• Status of Refugees in India: Since its independence, India has hosted several groups of refugees from neighbouring countries. This includes: Partition refugees from Pakistan in 1947, Tibetan refugees who arrived in 1959, and Chakma and Hajong refugees from Bangladesh in the early 1960s.
  • Additionally, India welcomed more Bangladeshi refugees in 1965 and 1971, Sri Lankan Tamil refugees from the 1980s, and most recently, Rohingya refugees from Myanmar in 2022.

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India and Refugee Policy

• Lack of Specific Legislation: India does not have specific legislation to address refugee issues despite the increasing inflow of refugees.
• Non-Party to Key Conventions: India is not a signatory to the 1951 Refugee Convention and its 1967 Protocol, which are crucial legal documents for refugee protection.
• Historical Record of Protection: India has a notable history of refugee protection, guided by a moral tradition of assimilating foreign people and cultures.
• Limitations of Existing Laws: The Foreigners Act, 1946, does not address the unique challenges faced by refugees and grants extensive power to the Central government to deport foreign citizens.
• Constitutional Protections: The Indian Constitution upholds the rights to life, liberty, and dignity for all individuals. 
  • The Supreme Court of India has affirmed that foreign citizens are entitled to fundamental rights such as equality and the right to life (National Human Rights Commission vs. State of Arunachal Pradesh, 1996).
• Principle of Non-Refoulement: Article 21 of the Indian Constitution supports the principle of non-refoulement, which prohibits forcing individuals fleeing persecution to return to their country of origin.
  • Principle of Non-Refoulement : This is a  fundamental principle in international refugee law that prohibits the return of individuals to a country where they face serious threats to their life or freedom.
  • Embedded in the 1951 Refugee Convention and its 1967 Protocol.

India Legislative Framework to Handle Refugees

• Fundamental Duty: Protection of women and child refugees from violence and harassment by authorities or local residents is in consonance with Fundamental Duty enshrined in our Constitution.
• Foreigners Act of 1946: Empowers the Central government to detect, detain, and deport illegal foreign nationals.
• Passport (Entry into India) Act, 1920: Allows authorities to remove illegal foreigners by force, as per Article 258(1) of the Constitution.
• Registration of Foreigners Act of 1939: Mandates that foreign nationals (excluding overseas citizens of India) on long-term visas (over 180 days) must register with a Registration Officer within 14 days of arrival.
• Citizenship Act, 1955: Provides provisions for renunciation, termination, and deprivation of citizenship.
• Citizenship Amendment Act, 2019 (CAA): Aims to provide citizenship to Hindu, Christian, Jain, Parsi, Sikh, and Buddhist immigrants persecuted in Bangladesh, Pakistan, and Afghanistan.

India and Refugees with Disabilities

• UNCRPD and Rights for Psychosocial Disabilities:
  • It acknowledges that women and girls with disabilities face multiple discrimination and mandates measures to ensure their full enjoyment of all human rights and freedoms (Article 6).
• India’s Legislative Framework:
  • India ratified the UNCRPD and enacted the Rights of Persons with Disabilities Act, 2016 (RPWDA), which provides rights to persons with disabilities, including those with ‘mental illness’.
  • The RPWDA guarantees various rights, including healthcare access (Section 25), and mandates equal enjoyment of rights for women with disabilities (Section 4).
• Challenges for Refugee Women with Psychosocial Disabilities:
  • Refugee women with psychosocial disabilities are excluded from the benefits of the RPWDA due to their non-citizen status, legal and administrative oversight, social stigma, and financial constraints.
• Supreme Court and Access to Health:
  • The Supreme Court of India affirms refugees’ right to life under Article 21, including the right to health. However, refugees’ access to healthcare is largely limited to government hospitals and excludes them from most public health and nutrition programs.
• Gap in Rights Implementation:
  • Without explicit guarantees extending the RPWDA’s protections to refugees or aligning with UNCRPD mandates, refugee women with psychosocial disabilities face unmet rights to health and support. 
  • This situation not only contradicts Supreme Court directives but also undermines the UNCRPD’s effectiveness.

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Overall Challenges and Barriers to Mental Health Support for Displaced Women

• Gender Blindness in Development Policies and Programs: The development policies and programs are often designed without taking these gendered factors and differences into account, and also often fail to monitor how outcomes and impacts vary between men and women, girls and boys.
• Increased Psychological Vulnerability: Exposure to physical and sexual violations makes displaced women highly susceptible to psychological conditions such as PTSD, anxiety, and depression.
• Higher Rates of Mental Health Issues: Displaced women are twice as likely to experience PTSD and over four times as likely to suffer from depression compared to men. A study in Darfur found that 72% of displaced women faced PTSD and general distress.
• Epistemic Injustice and Stigma: Social and gender inequalities, especially in patriarchal societies, lead to the dismissal of displaced women’s experiences, resulting in their conditions often going unnoticed and them being stigmatised and isolated.
• Limited Access to Support and Services: Due to limited financial resources, refugee families often prioritise physical health over mental health, and men’s health over women’s. Mental health services are less accessible to refugee women due to stigma, shame, communication barriers, and limited mental health literacy.
• Challenges in Host Societies: In traditionally patriarchal societies like India, refugee women face isolation and lack a platform for voicing their concerns. Available mental health services are often limited, with long wait times in government hospitals or support from unregulated NGOs, usually sought only after severe issues have escalated.

Solutions for Addressing Structural Gaps in Refugee Protection and Integration in India

• Need for Codified Legal Framework: Given the significant refugee population in India, establishing a uniform, codified framework is essential for implementing international commitments and aligning with the 2030 Agenda for Sustainable Development.
• Integration of Refugees with Disabilities: It is crucial to integrate refugees with disabilities into policies and programs in an accessible manner to ensure their rights and needs are addressed.
• Importance of Data Collection: Effective policy-making requires the collection of disaggregated data on refugees’ health conditions and the implementation of systematic identification and registration processes.

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