Author: Satyam Dwivedi, I year of B.A.,LL.B. from KIIT School of Law, Bhubaneswar
After the military coup of democracy elected government and subsequent crackdown in Myanmar, there has been an influx of illegal migrants into India and this will again raise issues in India because its laws and policies related to refugees often appeared haphazard. UNHCR also stated to offer refuge and protection to all those fleeing the country for their safety by calling all neighbouring countries of Myanmar.[i] Since the military coup, the Myanmar people have been witnessing indiscriminate use of force against peaceful protestors, extreme violence and arbitrary arrests. India is at the crossway of South Asia, with a long history of migration from, to, and within its borders from many neighbouring countries. Taking care of refugees is the core component of the human rights paradigm however the refugee poses a problem for the state as it puts security risks, may trigger demographic changes in the long term, as well as also poses an economic burden. Further, in any case, refugee flows to India are not likely to end any time soon given the economic, geopolitical, ethnic, and religious connections of the region. Hence, India needs an urgent specific refugee policy or a refugee law to clinically address the issue of refugee protection in India and put in place institutional and appropriate legal measures.
Refugee Policy of India
India lacks explicit legislation to address the problem of refugees, despite their increasing inflow. The Foreigners Act, 1946, fails to address the particular difficulties faced by refugees as a class. It also gives unrestrained authority to the Central government to deport any foreign citizen. Further, the Citizenship Amendment Act, 2019 (CAA) strikingly excludes Muslims from its purview and seeks to grant citizenship only to Hindu, Sikh, Christian, Buddhist, Jain, and Parsi immigrants persecuted in Pakistan, Bangladesh, and Afghanistan[ii]. Furthermore, India is not a party to the 1951 Refugee Convention and its 1967 Protocol[iii], the important legal documents of refugee protection. Despite India not being a party to the 1951 Refugee Convention and its 1967 Protocol, India has had a superb record on the issue of refugee protection. India has a moral tradition for assimilating foreign cultures and people.
Moreover, the constitution of India also gives value to the life, liberty, and dignity of human beings. The Supreme Court in the case of National Human Rights Commission vs. State of Arunachal Pradesh (1996) judged that “while all rights are available to citizens, persons including foreign nationals are entitled to the right to equality and the right to life, among others' '[iv]. And in DongLian Kham vs. Union of India (2016), the Supreme Court declared that the principle of non refoulement is the part of guarantee under the Constitution of India in article 21 irrespective of nationality[v].
Why India does not sign the 1951 convention?
The definition of refugees in the 1951 Refugee convention only pertains to the violation of political and civil rights, but not economic rights, of individuals.
For instance, a person, under the definition of the convention, could not be considered if they deprived of economic rights, but only considered if they deprived of political rights. If the violation of economic rights were to be included in the definition of a refugee, it would certainly pose a major burden on the developed world. On the other hand, it could be a problematic proposition for India too if this argument is used in the South Asian context.
Challenges Associated With India Refugee Policy
In the recent past decade, many people from neighbouring countries tend to illegally immigrate to India, not because of state persecution but in search of better economic opportunities in India. While the reality is that much of the discussion in the country is about illegal immigrants, not refugees, the two categories tend to get bunched together. Due to this, remedies and policies to deal with these issues suffer from a lack of clarity as well as policy utility. The main reason why our policies towards illegal immigrants and refugees are confused is that as per Indian law, both categories of people are viewed as the same and are covered under the Foreigners Act, 1946.
In absence of any such a legal framework, it also leads to policy ambiguity whereby India’s refugee policy is guided primarily by ad hocism. It's measured to enable the government in office to pick and choose ‘what kind’ of refugees it wants to accept for whatever political or geopolitical reasons. That results in a discriminatory action, which leads to being a violation of human rights. B.S. Chimni, a renowned legal specialist on Indian refugee law, has termed the India arbitrary asylum policy one of “strategic ambiguity.”[vi]
The Government of India has passed the Citizenship Amendment Act (CAA) 2019. It envisages giving citizenship to people who are religious minorities in India’s neighbourhood and persecuted by the state. However, CAA is not the solution to the refugee problem primarily because of its deeply discriminatory nature, as it doesn’t include a special religion under its ambit. Further, several political analysts have called the CAA an act of refugee avoidance, not refugee protection.
Way ahead
India needs domestic law aimed at refugees which enables the management of refugees with greater transparency and accountability. It is equally important that such a domestic refugee law should allow for temporary asylum and work permission for refugees. And also make a distinction between temporary migrant workers, illegal immigrants, and refugees and deal with each of them differently through proper legal and institutional mechanisms. While the security interests of India must be given paramount importance.