THE volatile region of South Asia has often been associated with a long history of mass migration and influx of people from across borders. Hosting refugee populations is not new for countries in this region, primarily characterised as “the second most violent place on earth” by researchers. However, most countries in South Asia do not have a domestic or international refugee protection policy. Apart for Afghanistan, none of the countries from the greater South Asian region has ratified the United Nations Convention relating to the Status of Refugees of 1951 and its 1967 Protocol.

Currently, India hosts about 212,874 refugees and asylum-seekers. Nevertheless, without a formal policy for refugees and asylum seekers, India’s approach and treatment of these groups has been makeshift, inconsistent and based strictly on political will. This flexible and irregular treatment has led to a massive denial of any substantive rights or protection to the refugee population in the country.

Notwithstanding the typical arguments given for the absence of a policy on refugees, India has, time and again, been applauded for its efforts and assistance extended to mass influxes of people fleeing across borders. Currently, India hosts about 212,874 refugees and asylum-seekers. Nevertheless, without a formal policy for refugees and asylum seekers, India’s approach and treatment of these groups has been makeshift, inconsistent and based strictly on political will. This flexible and irregular treatment has led to a massive denial of any substantive rights or protection to the refugee population in the country. In addition, conflicting judicial interpretations, approaches, and exclusionary societal treatment have left these groups patronised without any legal regime to seek redress. Thus, the existing policies in India are highly reactionary, instead of normative and pluralistic.

Also read: Rights Activist Nandita Haksar on Seeing India through the Eyes of its Refugees

India’s refusal to accede to the 1951 Convention

In the absence of any official reason, various scholars have tried to give context to India’s reluctance to accede to the 1951 Convention. For a nation formed from partition’s chaos, the Convention’s Euro-centric character did not cover the survivors of communal violence within its ambits and did not extend them any protection. Notably, the suggestions made by India and Pakistan to define ‘refugee’ in a more liberal reading were rejected.

In this context, looking at the Indian experience of the 1971 refugee crisis is also necessary. Despite the lack of a refugee regime, India hosted 10 million refugees, severely impacting the domestic economy. However, a conspicuous lack of burden-sharing provisions under the Refugee Convention stood out, as the United Nations High Commissioner for Refugees (‘UNHCR’) took an uncooperative stance. Legal scholar and academic Prof. B.S. Chimni, in his article Status of Refugees in India: Strategic Ambiguity, has rightly pointed out that India and other South Asian nations should argue that accession to the Convention would be conditional on a reversal of the no-entry regime created by western States.

It only makes sense that India and other South Asian nations are sceptical and reluctant to ratify the 1951 Convention, given that the rights incorporated are impractical to third world or developing countries like India. For instance, the 1951 Convention is relatively silent regarding mass influxes of populations, which leaves the refugees infiltrating through the porous South Asian borders unable to prove individual persecution. Further, the rights protected under the 1951 Convention do not extend to economic, social and cultural rights. Most importantly, signing the 1951 Convention would also expose the national regime to the scrutiny and supervision of the UNHCR under Article 35 of the Convention, which would eventually open Indian agencies to comments of the international community.

Also read: EU’s policy towards refugees from Ukraine exposes its double standards

Strategic ambiguity

Refugees and asylum seekers in India are subjected to the archaic laws under the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920. The ad hoc regime under the Foreigners Act is a deportation-oriented law that is flawed with a single umbrella for tourists, fugitives, refugees, migrants and so on. It refers to all these categories as “foreigners” and fails to establish any intelligible differentia for specific groups of people and their need for specific protection. In addition, the Supreme Court, in the case of Hans Muller of Nuremberg versus Supt., Presidency Jail, Calcutta & Ors. (1955), opined that “the Foreigners Act confers the power to expel foreigners from India. It vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains.” This exclusive and absolute power has enabled governments to exercise a general power to deport individuals without being subjected to even minimal judicial review.

It is often understood that the right to non-refoulment is read under the auspices of Article 21 of the Constitution. This reasoning is extrapolated from the Gujarat High Court’s decision in Ktaer Abbas Habib Al Qutafi versus Union of India (1998) . However, the single judge bench in this case only ordered the government to reconsider its deportation order and expressly permitted deportations on the grounds of public order and national security, which has been materialised in cases as recently as last year.

For a nation formed from partition’s chaos, the 1951Convention’s Euro-centric character did not cover the survivors of communal violence within its ambits and did not extend them any protection. Notably, the suggestions made by India and Pakistan to define ‘refugee’ in a more liberal reading were rejected. 

Apart from these interpretations of the Foreigners Act, some decisions of the courts have contextualised Article 21 to protect the life and liberty of ‘foreigners’ on Indian soil since the article extends to ‘people’ and not just ‘citizens’. Nonetheless, these rare and persuasive interpretations cannot make up for a pro-refugee jurisprudence. Indian courts have been highly inconsistent in their rationale in cases relating to refugees. For instance, in April 2021, the Supreme Court refused to put a stay on the deportation of Rohingya, even though such deportations endanger their life. This order was based on the rationale that the principle of non-refoulment is only applicable to contracting parties to the 1951 Convention, which absolves India from applying to the municipal law.

Also read: Detention and deportation of Rohingya refugees fly in the face of India’s obligations

In contrast, the Manipur High Court has read the principle of non-refoulment within the meaning of Article 21, and criticised the government for not differentiating between migrants and refugees. In addition, the government’s decision to issue e-visas to Afghan nationals for six months reflects the opaque policy shaped merely by political will, which Prof. Chimni calls the ‘strategic ambiguity’ in refugee policy. This has to be necessarily read with the passing of Citizenship (Amendment) Act, which will eventually lead to multiple deportations and detention of refugees.”

In August, the refugee policy and its relation to political whim was evident when the Union Government backtracked on its promise to relocate the Rohingya refugees in India. The Union Housing and Urban Affairs Minister announced the government’s ‘plan’ to resettle Rohingya refugees in Delhi. A few hours later, the Ministry of Home Affairs clarified that it had not issued any such directive to provide economically weaker section flats to the “illegal foreigners”. This decision fuels the existing fears of the community members, and the deplorable conditions they will have to go through in the detention camps. The government and allied instrumentalities referring to the refugee community as ‘infiltrators’, ‘illegal foreigners’, and ‘illegal migrants’ adds to their social stigmatisation and ill-treatment in countries like India.

Suggestions for a specific, rule-based regime

The current system operates at the discretion of the Ministry of Home Affairs, with sporadic instances of recognising and ignoring the principle of non-refoulment. The operating apparatus for refugee status determination is divided into two: the government determines asylum seekers’ status from neighbouring countries, and from the UNHCR for non-neighbouring countries and Myanmar. Unfortunately, the certificate issued by the UNHCR affords only minimum protection to individuals, setting the bar for their expectations only to fundamental rights and amenities.

A complex and rules-based regime will only help the nation balance its priorities vis-a-vis humanitarian needs. It will eventually allow the government to maintain its substantial non-citizen population with more accountability and order, apart from allowing them to enjoy uniform rights and privileges.

Also read: India’s treatment of the Rohingya reaffirms the need for a domestic refugee law

Keeping in mind the inconsistencies and legal lacuna, firstly, a proposed refugee and asylum law should recognise the differences in reasons for migration and categorise these communities likewise. Inspiration can be taken from the Canadian Immigration and Refugee Policies, which categorise immigrants into four sub-groups. This will ensure a balanced approach, considering the country’s national security and the humanitarian assistance that these groups require. India, as it exists, has extended basic economic aid. However, a policy in place will help manage and cater to the massive influx of migrants better and more effectively.

Secondly, a more comprehensive definition of the persons covered under such laws would be imperative in establishing a system that deals with all categories of people entering the borders. This will broaden the concept of ‘refugee’ to encompass circumstances bearing the life, security and liberty of individuals in the region. A domestic law will then be able to extend civil and political, as well as economic and social rights. Such outstanding policy work can be observed under the Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa.

Lastly, an independent policy should focus on catering to mass influxes of population. Special procedures can be implemented to deal with such mass influxes and mixed flows of populations. These can roughly be used to identify vulnerable persons and a screening mechanism to prevent criminals and other dangerous individuals from entering India. In consonance with this, a model for refugee management can be adopted by establishing the niche for a commission for refugees and asylum seekers. This setup will also help in dealing with secondary movements and asylum shopping.

India’s efforts in catering to refugees and asylum seekers have been enormous. However, a complex and rules-based regime will only help the nation balance its priorities vis-a-vis humanitarian needs. It will eventually allow the government to maintain its substantial non-citizen population with more accountability and order, apart from allowing them to enjoy uniform rights and privileges.