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In December 2019, the Indian government introduced the Citizenship (Amendment) Act, 2019, which sought to make “illegal migrants" from Afghanistan, Bangladesh and Pakistan who are Hindu, Sikh, Buddhist, Jain, Parsi or Christian eligible for citizenship. Subsequently, in May 2021, the Union ministry of home affairs (MHA) began inviting applications for Indian citizenship from non-Muslims from Afghanistan, Bangladesh and Pakistan residing in 13 districts of Gujarat, Rajasthan, Chhattisgarh, Haryana and Punjab.

These developments, extending protection to selective communities, highlight the inconsistency in the treatment and protection of refugees and asylum seekers in India.

As of June 2021, the United Nations High Commissioner for Refugees (UNHCR) has documented 208,065 “persons of concern" in India. However, India is not a signatory to the 1951 Refugee Convention under which the UNHCR operates. Nor does it have a domestic legislation regulating the entry and stay of refugees. There is no distinction made between ‘foreigners’ and ‘refugees’ under Indian law. The Foreigners Act of 1946, Passport Act of 1967, Extradition Act of 1962, Citizenship Act of 1955 (amended in 2019) and the Illegal Migrant (Determination by Tribunals) Act of 1983 are some of the laws applicable to both. Under these laws, foreigners can be detained and forcibly deported, even if they are refugees escaping their countries of origin in fear of death.

Moreover, the regulation of refugees and asylum seekers in India is conducted on an ad-hoc basis through administrative decision-making. Since there is no official legislative or administrative framework for refugee-status determination, the government has taken to determining the status of different groups of refugees in different ways.

Protection under international law: Under international law, refugees have two broad rights: the right to seek asylum in another country, and the right not to be returned to a country where they face a threat to their life. These are also principles enshrined under the 1951 Refugee Convention and its 1967 Protocol, which puts an obligation on state parties to grant them entry and protection. In order to stay neutral in the Cold War politics of that era and partially on account of the Eurocentric bias of the Convention, India has been reluctant to sign it. Another sore point for New Delhi had been that it does not account for national security interests.

However, other specialized international laws and human-rights principles are also applicable for the protection of refugees. Instruments like the Universal Declaration of Human Rights (UDHR), Convention Against Torture (CAT), Declaration on Protection from enforced disappearances, the UN Principles on Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC) are also often invoked to provide additional protection.

The administration of refugees in India: The bulk of the refugee population in India originates from Sri Lanka, Tibet, Myanmar and Afghanistan. However, only Tibetan and Sri Lankan refugees are recognized as such by the government. They are provided protection and assistance directly through specific policies and rules formulated by the government. Presently, there are around 94,069 Sri Lankan refugees living in the country, whereas the number of Tibetan refugees has gone down to 85,000 from 1,50,000 since 2011.

On the other hand, around 43,157 refugees from Myanmar, Afghanistan and elsewhere are registered and protected by the UNHCR, as per its mandate under the 1951 Refugee Convention. For these refugees, the UNHCR issues its own documents of registration, which are recognized by Indian authorities to only a limited extent.

While refugees directly recognized by the Indian government are housed in camps and have access to local schools, hospitals and the domestic job market, those registered with the UNHCR don’t get the same treatment. They do not have access to the country’s healthcare facilities, for example, and face difficulties in finding accommodation and jobs. Conversely, complications can also arise for refugees belonging to countries that are classified under the government’s mandate. For example, these refugees, if detained, cannot approach the UNHCR, as it does not have the designated authority to process their asylum claims.

The judicial response: Remarkably, the Indian judiciary has been stepping up from time to time to safeguard refugees from deportation, expulsion and forced repatriation. The Constitution of India safeguards the rights of all persons within its territorial jurisdiction, citizen or non-citizen. Thus, in the light of India’s international human rights obligations, Indian courts have extended the scope of constitutional rights. These rights include protection from discrimination and arbitrary action under Article 14 and the right to life and liberty under Article 21.

In the case of U. Myat Kayew, the Supreme Court waived the requirement of surety so the refugees who could not acquire documentation could be freed to approach the UNHCR for protection. In another case, the expulsion of two UNHCR-certified Iraqi refugees was stopped after the court found their presence was not prejudicial to national security and sending them back could be harmful.

Nevertheless, the Supreme Court’s 2021 decision to allow the deportation from India of about 170 detained Rohingya refugees has been a step in the opposite direction. It was based on the government’s claim that they posed a threat to internal security of the country.

The country’s need for specific legislation: There are gaps in refugee protection in India that can be traced to the country’s differential treatment of refugees. Since the 1951 Convention is not suitable in the South Asian context, where countries like India frequently experience a large influx of refugees, adopting a national law emerges as a better choice.

Till now, Indian administrative policies and judicial interventions have served as alternatives in the absence of sound domestic legislation. However, a long-term practical solution requires that India make a shift from its charitable approach to a rights-based approach by enacting a national refugee law.

A national refugee law will streamline refugee- status determination procedures for all kinds of refugees and will guarantee them the rights they have under international law. Additionally, it could sufficiently address India’s security concerns, while at the same time ensuring that there is no unlawful detention or deportation carried out in the garb of national-security concerns.

A larger version of this article appeared on the website of Delhi-based Social & Political Research Foundation.

Radhika Nair is a lawyer and socio-legal researcher.

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