The National Human Rights Commission (NHRC) recently conducted a dialogue on safeguarding the essential human rights of refugees and asylum seekers in India. The meeting brought into focus the lack of a specific law catering to refugees and asylum-seekers, despite India seeing an uptick in their numbers. Interestingly, though India has not acceded to the United Nations Refugee Convention from 1951, refugees and asylum seekers within the country are nevertheless entitled to certain rights defined in Articles 14, 20, and 21 of the Constitution.
The Indian legislation system still lacks a targeted legal structure to address the issue of refugees despite the increasing inflow of people seeking refuge on its soil. India is not a signatory to the 1951 Refugee Convention or its consequential 1967 Protocol that lay out the central legal framework related to refugee protection. The existing Foreigners Act, 1946, does not comprehensively tackle the unique challenges faced by refugees as a community. This act also entrusts the Central government with limitless power to deport any foreign national.
Despite not being a participant in the 1951 Refugee Convention and its 1967 Protocol, India has displayed exemplary conduct regarding refugee protection. India has a well-established moral custom of assimilating foreign nationals and cultures. This tradition aligns with the Constitution’s regard for human life, liberty, and dignity. According to a ruling by the Supreme Court in the NHRC vs. State of Arunachal Pradesh case in 1996, all individuals, including foreign nationals, have the right to equality and the right to life among other rights.
Why Hasn’t India Instituted Legislation for Refugees?
Several obstacles hinder the framing of dedicated refugee law in India. In recent times, many individuals from neighboring countries have migrated to India illegally, not due to political persecution but in pursuit of superior economic prospects. This confusion between economic migrants and refugees has muddled the debate significantly. Moreover, such legislation could be manipulated by individuals with malevolent intent, which in turn would place a financial strain on the country.
The absence of a distinct law also allows the Indian government to maintain flexibility regarding refugee policy. Authorities can label any group of refugees as illegal immigrants whenever they see fit. This approach was utilized in the case of the Rohingya minority from Myanmar, who were treated as trespassers despite having been verified by the UNHCR.
Why is There an Imperative for a Refugee Law?
India regularly witnesses large influxes of refugees. Hence, moving from a charity-based approach to a rights-based one via a national refugee law can provide a practical, long-term solution. Such a law could streamline the process of refugee-status determination for all types of refugees and ensure the rights of individuals under international law while addressing India’s security concerns. Besides, it would prevent unlawful detention or deportation under the guise of national-security issues.
It is noteworthy that only Tibetan and Sri Lankan refugees are currently recognized by the Indian government and provided specific protection and assistance through policies. This selective recognition creates inconsistencies in the treatment of different refugee populations.
Refugee, Asylum-Seeker and Migrant: Understanding the Differences
A refugee is an individual who has abandoned their native country due to a significant risk to their life and safety. These individuals seek shelter outside their homeland as their government is incapable or unwilling to protect them. Refugees have a right to international protection.
An asylum-seeker is an individual who has left their home country and seeks protection from persecution and severe human rights violations in another country. They’re yet to be legally recognized as refugees and await a decision on their asylum claim. Asylum seeking is a basic human right, and everyone should have the possibility to enter a foreign country to seek asylum.
A migrant is an individual residing outside their home country, who is not seeking asylum or refugee status. Migrants may leave their country for various reasons such as work, study, joining family, escaping poverty, political unrest, gang violence, natural disasters, or other severe circumstances in their home country.
The Way Forward
Revamping model laws on asylum and refugees drafted by the NHRC years ago but never implemented by the government could be an effective way forward. If these laws are enforced, they would bring about legal uniformity while ensuring the protection of human rights. Also, if India had domestic legislation regarding refugees, it could deter oppressive governments in its vicinity from persecuting their populations, forcing them to flee to India.
