Ambiguity, a feature of India’s refugee policy Between constitutional courts there are differing interpretations and at the executive level a reluctance to provide even basic rights
14, Jan 2023 | A Legal Researcher
Indian, being the epicentre of the dynamic and diverse South Asia region, has been, in early decades after independence, a land for welcoming refugees from the region. India’s more recent responses to the refugee problems and its policy towards dealing with refugees that come into its territory from neighbouring Myanmar and Bangladesh has seen a significant shift and change. The recent Citizenship Amendment Act, 2019 where discriminatory provisions of citizenship were provided for people belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community who faced religious persecution in Afghanistan, Pakistan and Bangladesh (Islamic countries) -also highlights a shift in India’s policy towards refugees. Recently, a group of Kuki Chin refugees from Bangladesh along the Mizoram-Bangladesh border were met with Border Security Forces and the refugees were asked to leave the territory since their entry was not lawful.
It is in this overall context that this article provides an overview of India’s refugee policy. Since the interests, if not the rights of Refugees is not just an crucial but an issue with international, cross-border ramifications, using the parametres set by international law is both useful and critical. Specifically, we need to understand the provisions of International law on Refugees that guide nations including India. In this connection, however it must also be noted that India is not a signatory to the 1951 UN Convention relating to the Status of Refugees, or the 1967 Protocol Related to the Status of Refugees, and India does not have any national legislation that deals with the rights of refugees.
International Refugee Law Regime
The 1951 UN Convention on Refugees and the 1967 Protocol related to the Status of Refugees are the two prime pillars of the international refugee law regime. Both these international instruments echo some prime elements and principles of the refugee policy as should be followed by countries.
Refugees mean persons outside their countries of origin who are in need of international protection because of a serious threat to their life, physical integrity or freedom in their country of origin as a result of persecution, armed conflict, violence or serious public disorder. India’s conduct towards Refugees cannot be understood from a legislative point of view since there is none. However, different judgements and instances of how India has dealt with refugees can provide an overview, albeit a reductive one.
Principle of Non-Refoulement and other Elements of International Refugee Law Regime.
This principle under international human rights law, the principle of non-refoulement guarantees that no one should be re-turned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm. This is enshrined in Article 33 of the 1951 convention. Apart from the principle of non-refoulement, there is also a principle of non-discrimination under Article 3 of the convention stating that no contracting party shall discriminate between the refugees on the basis of religion, race or country of origin. Article 31 of the same Convention also states that the contracting parties should not impose penalties on refugees illegally entering their territory from a country where their freedoms were threatened. The Principle of Non-Refoulement as enshrined in the convention along with the exception that refugees can be made to return if there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country- are jus cogens meaning that it forms a part of customary international law despite not being explicitly agreed upon by some nations. Therefore, at least for the principle of non-refoulement, India is already under a rather stronger obligation to follow than it is for the other elements of refugee law.
India and Refugee Policy
In an order in the case of Mohammad Salimullah and Anrv. Union of India and Ors, the Supreme Court had to deal with the issue of releasing the detained Rohingya Refugees who were in Jammu and Kashmir to Myanmar. The court stated the rights under Article 14 and 21 of the Indian Constitution are guaranteed to persons whereas the right not to be deported is enshrined in Article 19(1)(e) and therefore, the interim relief of release cannot be granted. Almost a month after this order by the Supreme Court, the Manipur High Court pronounced a contrasting judgement in Nandita Haksarv. State of Manipur, in which it laid down that some people who entered India, without due permission from Myanmar cannot be treated as mere illegal migrants but they should be treated as refugees and asylum seekers and should be allowed to travel to Delhi and claim protection from the United Nations High Commissioner for Refugees(UNHCR). The High Court also further held that far-reaching and myriad protections afforded by Article 21 of our Constitution would encompass the right of non-refoulement. On the fact that India not being a signatory to the 1951 convention, the court stated as follows:
“Therefore, though India may not be a signatory to the Refugee Convention of 1951, its obligations under other international declarations/covenants, read with Article 21 of our Constitution, enjoins it to respect the right of an asylum seeker to seek protection from persecution and life or liberty-threatening danger elsewhere.”
Through these two differing view by India’s constitutional courts, what emerged is that there is one, a difference in the interpretation around the fact that India is not a signatory to the convention and two, how that affects or obligates India and how it deals with refugees. In both cases, the government’s argument was vaguely around national security, reflecting the shifting attitude of the government towards refugees. In a more recent development, the Supreme Court stayed the order of Manipur High Court, as the government informed the SC that the refugees who were allowed to travel to Delhi have become “untraceable”. Therefore, despite having pronounced that countries should follow customary international law, there seems to be an aversion to make the state follow the principle of non-refoulement, at the level of the Supreme Court.
On the legislative side, the government does not differentiate between refugees and illegal migrants. Both of these groups are governed by the Passport Act of 1967, the Registration of Foreigners Act of 1946, and the Foreigners Order of 1948. The Foreigners Act of 1946 gives the government the power to arrest and detain foreigners based on suspicion, and for not following the act. On the other hand, the Foreigners Order of 1948 allows the government to allow or deny entry into India for various reasons. Even though the government has a lot of discretion in how they regulate refugees in India, the popular notion is that the Indian government treats refugees with a humanitarian hand.
A report by the UNHCR in 2011 also stated that India largely follows the principle of non-refoulement. The report also highlighted the constraints on how the Indian government helps the refugees from Sri Lanka but is not able to be proactive in extending aid due to paucity of resources and a huge India population which is in dire need of basic resources.
However, that only seems like a partial reason. For example, recently there was an announcement made by the Housing and Urban Affairs Minister Hardeep Singh Puri that Rohingya migrants in Delhi will be provided low cost housing. The Home Ministry was swift to clarify, within hours, that there is no such arrangement and illegal migrants will be kept in detention centres till they are deported. This rather passive-aggressive treatment to the Rohingya Muslims refugees has been a consistent phenomenon, that can be seen from the government’s arguments in the cases and the home ministry’s classification. UNHCR conducts registration and refugee status determination (RSD) under its mandate and 48,450 refugees and asylum-seekers were recorded to be living in India as of October 2022. At a decentralised level, since the refugees are not concentrated at one place, the humanitarian assistance to them or the lack thereof is more of a policy decision than an issue of scarcity of resources.
There are two aspects to India’s attitude towards refugees. One is on the legislative side, the other the executive side. Not only is there a lack of a comprehensive refugee law, there is also differential treatment given to different refugee communities resulting in discrimination. A third aspect, most crucial, is the judicial, where there is neither recognition of the principle (and commitment to) non-refoulement nor any other element of international refugee law as being applicable to India, resulting in closure of all avenues to refugees.
India has been accepting of multiple cultures and nationalities since the dawn of its civilization and to have an ambiguous policy now is a shift that does not match up to the name and might India has in the region. Dominated by the aggressive nationalist sentiment running high in the country since the Bharatiya Janata Party came to power in 2014, it is rather important for the courts to understand and interpret the right to non-refoulement, see it as an intrinsic part of Article 21 and not Article 19 since the very act of some refugees being pushed back to their own (home) country is in itself(poses a danger) dangerous to their life.
Manipur HC orders safe passage for 7 Myanmarese to seek protection under UNHCR
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Rohingya migrants are ‘threat’ to national security: BJP
AIR 2021 SC (CIVIL) 1753
2021 SCC OnLine Mani 176
 Working Environment, India, UNHCR, 2011. Available at https://www.unhcr.org/4cd96e919.pdf
 India needs to enact a Domestic Refugee Law, Sudha Ramachandra, September 07, 2022, Available at https://thediplomat.com/2022/09/india-needs-to-enact-a-domestic-refugee-law/