Refugee Policy for India

IN NEWS:

• With the ongoing crisis in Myanmar and Taliban making steady advances in Afghanistan, the demand for a refugee policy for India has resurfaced.

REFUGEES IN INDIA:

• India has welcomed refugees in the past, and to date, nearly 300,000 people have found refuge in the country.
• Today, India hosts refugees from Tibet, Sri Lanka, Myanmar, Afghanistan, and in much smaller numbers from Somalia and Palestine.

EXISTING SYSTEM OF MANAGING REFUGEES:

• India is not a signatory to the 1951 Refugee Convention and the 1967 Refugee protocol nor does India have a refugee policy or a refugee law of its own. They are dealt on an an ad hoc basis.
• There is no specific agency or machinery that is responsible for determining the status of refugees. They are determined under domestic laws as it applies to aliens in India, such as:  
  • The Foreigners Act, 1946
  • Passports (Entry into India) Act 1920
  • The Registration of Foreigners Act, 1939
  • The Passport Act, 1967
  • Extradition Act, 1962
  • The Citizenship Act, 1954
• In 2011, India created a Standard Operating Procedure to deal with foreign nationals seeking refugee status in India. As per this procedure, a genuine case of a foreigner claiming a refugee status is issued a Long-Term Visa (LTV).
• Indian Judiciary have filled some legislative gaps and, in many cases, provided humanitarian protection to refugees. Eg: Persons who flee their country of origin and seek asylum in India have the protection of some fundamental rights, such as the Right to Equality before Law (Article 14), Protection of Life and Liberty (Article 21) and right to Fair Trial.
• The National Human Rights Commission has also functioned very vigilantly and effectively as a watchdog for the protection of refugees.

CRITICISM OF EXISTING SYSTEM:

• Lack of distinction:
  • Indian law does not recognise refugees as a distinct category of persons and treats them at par with other foreigners. Thus, it fails to appreciate the special circumstances under which a refugee leaves their country of origin or their plight.
• Strategic ambiguity:
  • India treats its refugees ambiguously, based on its relations with the country from where refugees are coming in and based on the domestic politics of India, rather than by humanitarian or legal obligations.
  • Eg: India welcomed Tibetan and Tamil refugees, providing them with shelter and support but seems to be averse to the plight the Rohingya from Myanmar.
• Ad hoc nature:
  • India’s lack of a formal legal framework has allowed it to follow an ad hoc policy regarding refugees. Hence, there has been no specific recognition of substantive rights nor any uniformity in the procedures.
• Violation of constitutional rights:
  • The absence of a special law on protection, rights and entitlements of refugees has resulted in the denial of basic protection to refugees. This denial runs against the spirit of India’s human rights commitment under the Constitution.
• Violation of non-refoulement:
  • Since Indian law does not define who is a refugee, the government can brand all refugees and asylum seekers under the umbrella “illegal migrant” term.
  • But in terming Rohingya in India as illegal and pledging to send them back, India is going against the principle of “non-refoulement”, to which it is bound as a signatory of international treaties such as the International Covenant on Civil and Political Rights.
• Multiple agencies:
  • ‘Law and order’ is a State subject, but international relations is under the Union list. This has resulted in a variety of agencies, both of the Central as well as the State governments, having to deal with refugee matters connected with law enforcement.
• Conflict with Indian states:
  • Union government’s ad hoc policies towards refugees have often been criticised by states, particularly those which share cultural ties with the refugees.  
  • Eg: Mizoram government had opposed New Delhi’s response to Rohingyas seeking shelter in the country and expressed solidarity with those arriving from Myanmar.

IMPORTANCE OF A REFUGEE POLICY/LAW:

• Uniformity and consistency:
  • A law will bring about greater coherence in terms of treatment of various refugee groups and bring about greater consistency in India’s approach to refugee crisis.
• Categorisation:
  • A law with clear definitions of a ‘migrant’ and a ‘refugee’ will help identify actual ‘illegal immigrants’, thereby ensuring the security and safety of the country without breaching international law.
• Facilitate humane treatment:
  • Having a policy would allow the country to prevent refoulement and arbitrary detention of refugees. It will also aid the country to peacefully repatriate refugees once the crisis is over.
• Precarious neighbourhood:
  • Refugee flows to India are unlikely to end any time soon given the geopolitical, economic, ethnic, and religious contexts of the region in general and its neighbours in particular.
• Collaboration:
  • A policy could help in burden-sharing with agencies such as UN High Commission for Refugees (UNHCR) and International Organisation for Migration (IOM).
  • Eg: India could collaborate with the UNHCR and work on the socio-economic protection of refugees, thereby reducing the financial and administrative burden on the state’s exchequers.
• Credibility:
  • A strong policy and involvement of international agencies can strengthen the credibility of New Delhi’s approaches and actions. This will be significant as India is seeking a larger role in global governance mechanisms such as the UN Security Council.

CHALLENGES:

• Security concerns:
  • Refugees’ influx and their continuous stay has serious national security ramifications. For eg: Extremist elements could infiltrate the country under the disguise of a refugee.
• Impact on relations with countries:
  • The absence of a policy and international obligations has allowed India to be flexible on the question of refugees, thereby leaving space for diplomacy with neighbouring countries. A strong policy will reduce this freedom.
  • Eg: India’s cold shoulder to Rohingyas was viewed as a result of its geo-economic and strategic relations with Myanmar.  
• Economic burden:
  • A policy, which creates obligations on the state to facilitate rehabilitation and resettlement of refugees, could lead to economic burden and could strain the Indian exchequer.
• Political implications:
  • Settlement and rehabilitation of refugees under a refugee policy using India’s resources could face criticism in India’s domestic politics, particularly in the North Eastern states.
• Question over repatriation:
  • For repatriation or deportation to work, the other country must accept the refugee as its national. However, this is a challenge.
  • Eg: All efforts by Bangladesh to persuade Myanmar to take back the Rohingya at Cox’s Bazaar have been unsuccessful.

CONCLUSION:

• Create a policy:
  • The legal framework for protection of refugees in India so far has been characterised by administrative ad-hocism and judicial assertions. However, the continued geopolitical tensions in the region call for a proper refugee legislation and policy.
• Sign UN Conventions:
  • India did not sign the UN refugee convention due to cold war geopolitics and fear of economic implications. But India is already adhering to the basic principles of the Convention since it has signed the United Nations Convention against Torture (UNCAT), 1984. Hence, India needs to rethink its decision.
• Collaborate:
  • India could take advantage of the expertise of the UNHCR with regards to Refugee Status Determination and collaboratively work on the socio-economic protection of refugees, thereby reducing the financial and administrative burden on the state’s exchequers.

PRACTICE QUESTION:

Q. A standardised refugee protection framework is essential for India to project its commitment to basic human rights and address its internal security concerns. Discuss?