The article highlights the issue of the lack of refugee protection framework in India and suggests enacting domestic law to deal with the issue. 

India’s record on refugee protection

• India, for the most part, has had a stellar record on the issue of refugee protection.
• But this moral tradition has come under great stress of late.
• New Delhi has been one of the largest recipients of refugees in the world in spite of not being a party to the 1951 Refugee Convention and its 1967 Protocol.

Confusion in policies for immigrants and refugees

• Much of the debate in India is about illegal immigrants, not refugees, the two categories tend to get bunched together.
• Our policies towards illegal immigrants and refugees is confused is because as per Indian law, both categories of people are viewed as one and the same and are covered under the Foreigners Act, 1946.
• The act offers a simple definition of a foreigner — “foreigner” means “a person who is not a citizen of India”.
• There are fundamental differences between illegal immigrants and refugees, but India is legally ill-equipped to deal with them separately due to a lack of legal provisions.
• Also, India is not a party to the 1951 Refugee Convention and its 1967 Protocol, the key legal documents pertaining to refugee protection.

How absence of policy framework creates problems

• The absence of legal framework for refugees leads to policy ambiguity whereby India’s refugee policy is guided primarily by ad hocism and ‘political utility’.
• At the same time, the absence of a legal framework increases the possibility of the domestic politicisation of refugee protection and complicates its geopolitical faultlines.
• The absence of a clearly laid down refugee protection law also opens the door for geopolitical considerations while deciding to admit refugees or not.
• For example, India’s decision in the recent case of admitting Myanmarese refugees fleeing to India was influence by the possibility of irking the Generals in Naypyitaw.
• However, hypothetically speaking, if New Delhi had domestic legislation regarding refugees it could have tempered the expectations of the junta to return the fleeing Myanmarese.

Why India has not signed convention and protocol on refugee protection

• The definition of refugees in the 1951 convention only pertains to the violation of civil and political rights, but not economic rights, of individuals.
• If the violation of economic rights were to be included in the definition of a refugee, it would clearly pose a major burden on the developed world.
• This argument, if used in the South Asian context, could be a problematic proposition for India too.
• India also need to argue that the North is violating the convention in both letter and spirit, and make its accession conditional on the Western States rolling back the non-entrée (no entry) regime.
• The non-entrée regime is constituted by a range of legal and administrative measures that include visa restrictions, carrier sanctions, interdictions, third safe-country rule, restrictive interpretations of the definition of ‘refugee’, withdrawal of social welfare benefits to asylum seekers, and widespread practices of detention.”
• In other words, India must use its exemplary, though less than perfect, history of refugee protection to begin a global conversation on the issue.

Way forward

• What other options do we have to respond to the refugee situation we are faced with?
• The answer perhaps lies in a new domestic law aimed at refugees.
• The CAA, however, is not the answer to this problem primarily because of its deeply discriminatory nature.
• What is perhaps equally important is that such a domestic refugee law should allow for temporary shelter and work permit for refugees.
• India must 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.

Consider the question “What are the reasons for India’s not singing 1951 Refugee Convention? What are the options India can explore for refugee protection? 

Conclusion

Our traditional practice of managing these issues with ambiguity and political expediency has become deeply counterproductive: It neither protects the refugees nor helps stop illegal immigration into the country.

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