HOME IS WHERE THE RIGHTS ARE: A DIALECTIC ANALYSIS OF INDIA’S INCOMMENSURATE REFUGEE RIGHTS AND POLICY MEASURES

INTRODUCTION

 As asylum has become politicized, refugee protection is increasingly being portrayed not as an international human rights issue but as a national security threat. Despite their rapid growth in number, refugees in India and around the world still lack access to basic legal protection. India has taken the view that it is not a party to the Refugee Convention, notwithstanding its membership on the executive committee. On the other hand, India cannot dispute that it is obligated by the other human rights treaties it has ratified. This article divides the perusal of India’s refugee policy into two sections- First, India’s existing domestic policy on refugee rights. Second, suggestions to introduce a Refugee law for India that considers its position as a Global Leader.

Indian Law does not have a clear-cut definition of a refugee. Therefore, the Government has full authority to brand under the overarching framework of “illegal immigrants,” all refugees and asylum seekers[1]. Due to the absence of a legal framework, India has sought an ad hoc policy toward refugees both domestically and internationally. The problems of significant evacuations of refugees and their influx into a state have put international refugee law at carrefour again and again.

With the recent Afghanistan crisis and the mass exodus of refugees, a pertinent problem has once again been brought to the spotlight. In 2021 alone, hundreds of thousands of refugees have swarmed in, from Myanmar in the east to Afghanistan in the west[2]. India may continue to take cover because it is not an attestor to the 1951 Refugee Convention of the UN. However, it cannot shy away from humanitarian responsibility when it seeks to be a significant global power[3].

RIGHT TO REFUGE: THE INDIA ANGLE

When it comes to developing a uniform Refugee policy, India’s federal structure poses a challenging problem. While law and order are covered by the State List, international relations and international borders are covered by the Union List, which means that numerous federal and state authorities are dealing with the refugee problem at the same time.[4]Political parties at both these levels disagree with each other’s policy on dealing with refugees depending on class, caste and socio-religious ideologies and create hindrances to having a uniform refugee-safeguard policy.

India, though not a party to the 1951 UN Refugee Convention, has signed other International Treaties such as the Universal Declaration of Human Rights(1948)[5], International Convention on Civil and Political Rights(1966)[6] and Convention against Torture(1984)[7] among others. The requirements outlined in these treaties suggest that India is bound to provide refugees with a right to status determination and a right not to be returned to their country of origin. Aside from that, Indian courts have ruled that refugees must be afforded constitutional protections for life and liberty[8].

Despite attempts, legal protection remains a pipe dream for the majority of refugee groups in India. The obvious lack of any stated framework or even policy actions is a fundamental cause of this poignant repudiation of the judicial and constitutional mandate. The Foreigners Act, 1946 was unable to address the atypical problems faced by refugees as a class. Instead, Section 3 of the Act imposes numerous limits on refugees and asylum seekers, including prohibitions on “association with persons” or “participating in activities,” as well as “restrictions on [their] movements.”[9]It also gives irrepressible power to the Central Government to deport any foreign citizen and therefore refugees, which completely goes against the policy of non-refoulment. Under Indian Law, there is no delineated category of refugees. The current position of refugees is dictated by the government’s protection, which is determined not by humanitarian or legal obligations, but by political dynamics.[10]

In Mohammad Salimullah v Union of India, the Supreme Court[11] held in April 2021 that India has never ratified the 1951 Refugee Convention and Protocol, implying that the principle of non-refoulment was inapplicable. Adding, “…National courts might draw inspiration from International Conventions/Treaties, as long as they do not clash with municipal law.” (12th paragraph) However, this position was not pursued to its logical conclusion, namely, to address non-refoulment emanating from these accords.[12]

For a long time, a specific population tends to ‘illegally immigrate’ to India from the neighbouring countries, not because of persecution but in the hope of more significant economic opportunities. The truth is that the majority of the debate in the country is about illegal immigrants, not refugees; the two categories tend to get punched together. Therefore, policies and remedies to deal with such issues lack clarity as well as policy utility.[13]

THE ROAD AHEAD

Indian Law gives distorted and insufficient protection to refugees, and one important step toward changing this would be to allow for faster adjudication of refugee status. It is critical to distinguish between refugees and illegal immigrants for the sake of refugee protection and national security. This would entail the Indian government granting UNHCR access to the seven states in the North-East where Chin and Burmese refugees are housed, as well as access to the Iraqi, Somalian, and other refugee groups in India, for them to be officially recognised. The exercise would have to be carried out on a pan-India basis, with no religious discrimination, in order to produce a recognised refugee list that would need to be updated on a regular basis[14].

Once the Government has successfully recognized all refugee communities and their rights to movement, it would have to set up a basic refugee protection law that offers certain fundamental protections and rights which can be altered on a state-to-state basis as long as the introductory provisions are not infringed upon. Furthermore, it would have to sensitize the Indian diaspora to the refugee community to ensure humane and just treatment. The Government would also have to work towards distinguishing refugees from illegal immigrants on official records and general discussions[15].

CONCLUSION

The reluctance of India to sign the 1951 Convention is premised on the geopolitical realities in South Asia and its porous borders, as well as an apprehension of the economic and political burden that refugee rehabilitation and resettlement would entail. As a result, how refugees are treated is up to the whims of whoever has political power. A national refugee law will expedite the process of determining refugee status and ensure that they enjoy the rights that they are entitled to under international law. Moreover, it would address India’s security concerns, while at the same time ensuring that there is no unlawful detention or deportation carried out in the presence of national-security concerns. In a country that treats Guests like God, refugees should not have to live in conditions the devil would be ashamed of.  

Author(s) Name: Anasruta Roy (The National University of Advanced Legal Studies, Kochi

References:

[1] Bansari Kamdar, Indian refugee policy: From strategic ambiguity to exclusion? – The Diplomat (2020), https://thediplomat.com/2020/02/indian-refugee-policy-from-strategic-ambiguity-to-exclusion   (last visited Nov 18, 2021).

[2] India, India | Global Focus, https://reporting.unhcr.org/node/10314?y=2021#year  (last visited Nov 18, 2021).

[3] Devika Nair & Sangram Chinnappa, Refoulement, Rohingya and a refugee policy for India ,The Wire (2021), https://thewire.in/government/refoulement-rohingya-and-a-refugee-policy-for-india  (last visited Nov 18, 2021).

[4] Nirupama Subramanian, Explained: On ‘refugees’ and ‘illegal immigrants’, how India’s stance changes with circumstances ,The Indian Express (2021), https://indianexpress.com/article/explained/on-refugees-and-illegal-immigrants-how-indias-stance-changes-with-circumstances-7270883/  (last visited Nov 18, 2021).

[5] Refer  Article 14A  of UDHR – “Everyone has the right to seek and enjoy in other countries asylum …

[6] Refer Article 13 0f ICCPR-1966- “An alien lawfully in the territory of a state party to the present…”

[7] Refer Article 3 of Torture Convention 1984- “No state party shall expel,return….

[8] Louis De Raedt vs Union Of India and  State of Arunachal Pradesh vs Khudiram Chakma

[9] Arunav Kaul, Afghan refugees in India highlight the need for Indian Domestic Refugee Law Just Security (2021), https://www.justsecurity.org/78586/afghan-refugees-in-india-highlight-the-need-for-indian-domestic-refugee-law (last visited Nov 18, 2021).

[10] Saurabh Bhattacharjee, India needs a Refugee Law, 43 Economic and Political Weekly,71–75 (2008).

[11] Mohammad Salimullah and Anr. Vs. Union of India and Ors.

[12] Priya Pillai, International Law Omissions: Rohingya deportation order of the Supreme Court of India Opinio Juris (2021), http://opiniojuris.org/2021/04/19/international-law-omissions-rohingya-deportation-order-of-the-supreme-court-of-india/  (last visited Nov 18, 2021).

[13] Pooja Faculty of Law,DU, India’s refugee policy ,Indian National Bar Association, https://www.indianbarassociation.org/indias-refugee-policy/  (last visited Nov 18, 2021).

[14] Rajeev Dhawan, India needs a proper refugee law, not a CAA suffused with discriminatory intent ,The Wire (2019), https://thewire.in/law/india-needs-a-proper-refugee-law-not-a-caa-suffused-with-discriminatory-intent (last visited Nov 18, 2021).

[15] India’s refugee policy, Drishti IAS (2021), https://www.drishtiias.com/daily-updates/daily-news-editorials/indias-refugee-policy (last visited Nov 18, 2021).

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