For a government that claims that the controversial Citizenship (Amendment) Act, 2019 has brought respect to the refugees in India, it might be a surprising fact that at the same time when this law was being passed, a government proposal that would potentially cause mass violation of the principle of non-refoulement was pending in the apex court. Despite the massive hue and cry by civil society members as well as politicians, CAA has not been stayed by the Apex Court. Legislated on the pretext of the protection for refugees, this article aims to examine the reason behind the absence of a cohesive refugee policy or any dedicated law in the Indian state that after more than seven decades of independence, is one of the only liberal democracies that does not have any dedicated law, for the protection of refugees. This piece further argues for the need for a domestic law specifically catering to the Indian conundrum rather than taking on international obligations.
This question becomes especially pertinent when the country struggles to sustain its population due to the ongoing pandemic. Issues of human rights violations of the refugees exacerbate in times like these and only a considered approach balancing international requirements, humanitarian obligations, and national capacities & security can lead to a long-term, peaceful and fair solution to the crisis.
Domestic and International legal framework, and India’s Stance
In the absence of a legal framework and statutory definition of a refugee, India deals with all its refugees by clubbing them under the Foreigners Act of 1946, as they do technically qualify as “not being citizens of India”, which is the definition of a foreigner in India. For the specific circumstances, Indian authorities grant refugee status by making ad hoc administrative decisions. This essentially means that the treatment a refugee entering the country receives largely depends upon the political and extra-legal considerations of the receiving government and there is virtually no consistency or certainty. This trend can be observed in the differential treatment given by India to the refugees coming from Sri Lanka or Tibet and those from Myanmar.
India has neither signed nor ratified the United Nations Refugee Convention of 1951, nor the Protocol Relating to the Status of Refugees of 1967. However, this does not mean that India is free to treat the refugees as it pleases. It is still bound by the Universal Declaration of Human Rights 1948, Declaration on Territorial Asylum 1967, International Covenant on Civil and Political Rights 1966, Convention on the Elimination of Discrimination against Women, International Convention on Economic Social and Cultural Rights, and Convention against Torture and Cruel Inhuman or degrading Treatment or Punishment; which, all, in turn, relate to some of the other rights of the people in a state’s territory in general and refugees in particular. Under the municipal law, the Indian state has a constitutional obligation to give effect to all these international obligations.
Additionally, the right to life and personal liberty, which, after judicial expansion includes the right to live with human dignity, livelihood, shelter, social security, and protection of the family, is an entitlement for every ‘person’ in India, irrespective of his nationality or citizenship. Ordinarily, this should be enough of an indication to warrant specific legislation to be enacted for the achievement of these goals. However, there are historic reasons that have motivated the governments to refrain from committing in this regard. Usually, the Indian argument against ratification of international covenants and specific codification of the principles in domestic law is based on the euro-centric nature of these treaties, India not having taken part in their codification, and the fear of international criticism in case the government fails to live up to the commitments.
Despite the legislative vacuum, the judiciary has displayed a definite willingness to secure refugees their rights. For example, Madras High court, in various cases, has protected the Srilankan refugees from being forced to return to the country where their lives may have been endangered. Similarly, the Bombay High court has explicitly acknowledged the principle of non-refoulement in the case of Syed Ata Mohammadi v. Union of India.[i] The Apex court too has shown alacrity in staying deportations by adopting a very liberal standard of having made a ‘prima facie’ case for the refugee status.
Despite all this, the political and legal discourse around this topic in India requires conceptual clarity that can be achieved simply by incorporating the definition of a refugee as given in the 1959 Convention in municipal legislation, i.e. “a person who owing to a 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 his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” This would automatically eliminate a majority of rhetoric and ambiguity surrounding the topic of “illegal migrants” or refugees being “threats to national security”.
India has consistently shown a remarkable reluctance in forming a concrete refugee policy and taking on of international obligations in this regard, a choice which was legitimately based on India’s historical experience with the international community’s approach towards assistance and the complex geopolitical status of the country that makes India a state, the doors of which are repeatedly knocked on by multiple groups of people from almost all the neighbouring countries. So however controversial, the CAA passed in 2019 is the first explicit formation of the Indian policy towards accepting refugees in the country.
Indian experience of refugee influx can be divided based on the countries of origins and chronological phases. The first and largest influx was a result of partition, which though failed to qualify as a refugee influx due to the euro-centric definition stated in the 1959 convention, was certainly a clear example of India’s generally liberal and principled approach towards refugees. The second wave was after the 1959 Tibetan revolt against the Chinese government, whereby India granted asylum to Dalai Lama and Tibetan refugees by giving them temporary residence permits. In the past fifty years, there have been four more discernible patterns of influx from Bangladesh in 1972, Sri Lanka in 1983, Afghanistan throughout the years and Myanmar since 2017. With the exception of the last-mentioned case of Rohingya refugees, India has stood by the principle of non-refoulement. However, this exact trend accentuates the need for a uniform and rule-based refugee policy whereby the refugee population does not have to depend upon the relations of the Indian government with their home state and the whims and fancies of executives of the states as well as the central government in India.
India is one of the largest economies in the world and has achieved a unique status in the geopolitical power dynamic that challenges the Chinese hegemony in both security and economic issues. The time seems to have come whereby India takes advantage of this edge of being a democracy based on the rule of law and distinguishes itself from other south Asian countries in the eyes of the world community. Pandering to the western narrative of universal human rights and an extremely liberal version of refugee policy such as that of Canada’s is neither fit nor required for India. The reason behind this is the obvious differences between the strength of social security systems in India, including the limited financial and administrative capabilities of the Indian government for providing public healthcare facilities in times of a raging pandemic. Another factor is the geographical location of India, whereby the borders are porous and there are rarely any natural barriers to entry, as is the case for the American continent or European countries. However, omitting to take on obligations in this regard proves self-serving only so long as its own national interest is not hampered by such omission. Unreported, unchecked, and mass-scale violations of human rights, irrespective of the disapprobation of the global community, cannot be said to be in the national interest anymore.
Formation of National Refugee Policy: A Pressing Priority
A major factor in securing refugees' work, livelihood, legal assistance, and community support in India is the United Nations High Commissioner for Refugees. In times where the livelihood of the citizens of the country is threatened, the refugee populations have been rendered even more vulnerable. For example, although assistance for food and other requirements is being provided by the UNHCR, the reach of the organisation has been limited by the funding it receives and the sheer amount of challenges present in extremely poor communities with no formal organisational or community structure.
To conclude, it has to be admitted that the violations of human rights of these populations are the effect of the twofold failure on part of the state, i.e. the legislature not enacting any law and the factual incapacity of India as a country to summon enough economic, governmental and human resources to scrutinise the status of, admit and look after such a huge population of refugees. However, mass deportations and abandoning entire communities in refugee camps are extremely myopic, if at all, solutions. The beginning can be from the theoretical standpoint, whereby the rights and procedures for refugees can be laid down at least on paper.
Contrary to what may be asserted in the popular discourse, a law in this regard will not inevitably lead to indiscriminate and undue claims for this status or regularisation of refugees en masse. A concrete legal framework actually helps the country in laying down its own requirements for the refugee status to be granted, scrutinising individual cases on merit and expeditious procedures to deport the population that does not meet the requirements without having to defend such orders in the court. It is pragmatically justified on two levels. Firstly, it creates accountability on part of the executive as a result of definite powers of supervision and dedicated rights and duties being conferred onto the parties. And secondly, upon realistically gauging the actual magnitude of the problem, India comes in a position to capitalise on and tap into the resources present in the refugee population.
Thus, in order to override existing laws that create a chaotic and discriminatory network of prohibitions, and to ameliorate the sufferings of already vulnerable populations, a dedicated law and a guiding policy is imperative for the Indian state.
[i] Syed Ata Mohammadi v. Union of India WP (crim.) No. 7504/1994 at Bom. HC.
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This article has been written by Madhura Vaidya, a fourth-year law student at Chanakya National Law University.Having worked with various NGOs involved in Human Rights protection, she has developed a penchant for political theory and legal research.