A Legislative Framework To Determine Refugee Status Is The Need Of The Hour

Currently, India is home to 2.5 lakh refugees, originating predominantly from Myanmar and Afghanistan, while refugees from Sri Lanka and Tibet also form a substantial population of refugees. It is imperative to categorise refugees from Sri Lanka and Tibet separately because it is only refugees from these two countries who have been officially registered and rehabilitated by the Government of India. Approximately 46,000 refugees and asylum seekers from other countries await legal recognition in India and are compelled to live their days in abject poverty, fear, and uncertainty.

Despite over seven decades of its existence and gradual growth into one of the most booming economies in the world, Indian legal canvas not only seems to be conspicuously missing any comprehensive national framework on refugees, but also it remains a non-party to the international obligations related to refugees. Paradoxically, India continues to host a huge number of refugees from across the world. This unregulated process leads to frequent and grave human rights violations as well as legal and economic incertitude among the refugees.

Posited as a global leader of tomorrow and a flag bearer of democratic principles, why has India resisted any attempts to streamline its policies on refugees? What then determines the fate of those who took refuge in India, in the hope to escape persecution, violence and disaster?

International Obligations

The 1951 UN Convention relating to the Status of Refugees is the first international agreement on the protection of refugees. This Euro-centric convention, formulated after the second world war specifies the meaning of “refugees” and sets out the rights to be afforded to them in the context of the post-war refugee crisis. The 1967 protocol relating to the Status of

Refugees expanded the scope of refugee protection to include all those who were displaced forcibly owing to persecution.

The principle of non-refoulement, codified in both the Convention and the protocol, obligates states to not forcefully return asylum seekers to countries where they face a fear of persecution. This principle, which finds a mention in various treaties and judgements, has attained customary status. While India is not a party to the 1951 Convention or the 1967 protocol relating to the status of refugees and hence not obligated to follow Article 33(1) of the Convention in relation to the principle of non-refoulement, it is imperative to note that this principle is now considered a jus cogens norm. This fundamental and non-derogable character of the principle of non-refoulement has also been reaffirmed by the General Assembly of the United Nations.

Despite being a non-signatory to these conventions, India is a member of the Executive Committee of the High Commissioner’s Programme, a body which approves and supervises the programmes of the UNHCR. India also voted for the UN Declaration on Territorial Asylum (1967) and the New York Declaration for Refugees and Migrants (2018). The UN agency, the UN High Commissioner for Refugees (UNHCR) which assists refugees in their return, resettlement, and integration, works in India too. India is also a signatory to various international human rights instruments like the UDHR and ICCPR. Article 14 of the UDHR states that “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” This right, as set forth in Article 14 reflects the commitment of the international community to provide for basic human rights, to those who fear torture, cruel or degrading treatment.

National Perspective

As a non-signatory to the international treaties on refugee rights, theoretically India does not subscribe to any legal obligations when it comes to rescue, relief, and rehabilitation of refugees. Nor does India have any codified law enlisting the rights of refugees and asylum seekers. Does it then mean access to India for refugees is entirely occluded? The current population of refugees residing in India speaks otherwise.

A recent study by the National Human Rights Commission of India alludes to the fact that India is deemed a safe haven for displaced people from countries like Bangladesh, Afghanistan, Myanmar and even Syria and Ukraine. The neighbouring countries like Thailand, Indonesia, Singapore, Malaysia, and Bangladesh do not facilitate entry and refuge. India, on the contrary, has enabled entry and assimilation of refugees into its territory since time immemorial, starting from the Zoroastrian migration in the 16th century to Rohingya refugees in the current day.

The problem, however, lies in the sporadic and discretionary mode in which refugees have been treated both at Indian borders as well as once inside the country. In the absence of a national framework, the rights and entitlements of refugees and asylum seekers in the country often are left at the mercy of those in power and consequently, access to constitutional rights and basic facilities of shelter, sustenance, safety and health care services end up becoming discriminatory.

As explained above, the lack of statutory obligations does not absolve India of any responsibility towards those seeking refuge and India has always relied on constitutional frameworks and legislations such as Indian Penal Code (1860), Passport (Entry into India) Act (1920), Registration of Foreigners Act (1939), Foreigners Act (1946), Passport Act (1967) and Illegal Migrant Act (1983) to determine its response to the refugee issue. India, largely does not avow to the global principle of affirming entry to a refugee on the basis of “well-founded fear of persecution”. But, instead, it follows a bilateral approach to permitting entry to refugees. Consequently, India’s refugee policies are largely deduced from executive and judicial decisions and continue to vary from case-to-case basis.

The Constitution of India extends the fundamental rights contained in Part III to the refugees; in that equality before the law, under Article 14, protection from discrimination under Article 15 and most importantly, right to life and personal liberty under Article 21 are legal guarantees that refugees in India have.

In the case of Louis De Raet vs. Union of India, (1991) the Supreme Court held that the right to life, liberty and dignity are inalienable to non-citizens too. Similarly, in Malavika Karelkar vs. Union of India, (1992), the Supreme Court upheld India’s obligations to the principle of non-refoulement and stayed the repatriation of 21 refugees to Myanmar. However, in the case of Mohammad Salimullah and others vs. Union of India and Ors ( 2017), the Supreme Court held that the right to not be deported was ‘not concomitant to Article 19(1)(e)’.

Similarly, while in 1959, the Dalai Lama and his followers were granted asylum in India, following Tibet-China conflict citing that “India was well within her liberty to do whatever it wishes within its own territory, without reference to the wishes of other States”; in the face of the 2017 Rohingya crisis, India remained unwavering in its refusal to not deport the refugees on grounds of perceived threats to national security. This shows the clear vacillation of both the executive and judicial position on the refugee issue, leading to conclusions which may be incongruent and inconsistent.

Despite the erratic position on the refugees in India, largely India has adhered to extending the right to asylum and right to not be deported whenever substantial danger of persecution is proven. On several occasions, issuance of long-term visas, Aadhaar Card, admission to schools and access to government health care facilities were also granted. The Ministry of Home Affairs, in 2011 established a standard operation procedure which unfortunately, is the closest to a centralised edict on refugee laws available currently.

Need for a domestic legislative framework

Despite multiple efforts to create an independent framework for refugee protection in the form of the Model National Law on Refugees and the Protection of Refugees and Asylum Seekers Bill, India does not have a separate legislation for the protection of refugees. The fact that existing legislations like the archaic Foreigners Act, 1946 do not make a distinction between refugees and foreigners, migrants or tourists indicates why there is a need for an all-encompassing framework for refugee protection that conforms to India’s commitment to human rights principles while abiding by the Indian constitution.

The existing ad-hoc treatment of refugees in India has only exacerbated the inconsistent refugee regime in the country, as a result of which, those who seek asylum are susceptible to the whims and policies of the authorities.

Data indicates that the number of refugees residing in India increases every year. This poses challenges concerning provision of health services, employment opportunities, education, and adjudication of the concerns of refugees, necessitating a legislation that can provide a standard framework for refugee protection in the country. The problem with India’s existing approach to refugees is not just the legislative gap that exists, it is the misuse of this gap that reflects India's subjective commitment towards protection of non-citizens who flee in search of protection of their basic human rights.

This legislative framework will streamline the procedure for determination of refugee status and prevent arbitrary administrative actions by adopting a rights-based approach.

This will not just benefit those who flee owing to persecution, but also those in India who have addresses, but are still fighting for their postcodes. 

(This appeared in the print as 'Need of the Hour')

Yashaswini Basu is Nyaaya’s Outreach Lead, managing strategic partnerships and collaborative content

Sneha Priya Yanappa is a senior resident Fellow at Vidhi, Karnataka