Why India Needs a Refugee Law

India does not distinguish between refugees and other foreigners entering the country. We need to develop a coherent policy to deal with refugees.

The recent legal tussle in the Supreme Court of India between the Union Government and human rights activists over the former’s announcement to deport 40,000 Rohingya Muslim refugees back to Myanmar has brought to the fore the glaring absence of a standard legal regime to deal with refugees in our country. The merits of the Rohingya episode notwithstanding, the need for a legal framework that codifies the standard procedure for entry/exit of refugees is pertinent, given the fact that the lack of it awards the Parliament powers that can be easily abused to meet the short-sighted ends of the government at the time. At the risk of being used as an instrument of populist appeasement, the rule of law must be invoked here to keep the Parliament accountable and transparent.

This essay will thus lay out the argument for the rule of law, and also address some of the common apprehensions that accompany the entry of refugees.

Who are refugees?

In international law, refugees are defined as persons who have been forced to flee their country of their origin and are unable or unwilling to return due to the fear of persecution on account of their race, religion, ethnicity, political beliefs, etc. International obligations to protect refugees and grant them minimum standard of care are expressed in the United Nation’s Convention relating to the Status of Refugees, 1951 along with the Protocol of 1967, signed and ratified by 145 UN members.

The Rule of Law

India does not have a national refugee law, and it is not a signatory to the UN’s refugee treaty. Thus, it does not legally recognise refugees, or distinguish between them and other foreign nationals entering the country’s territory. This is in spite of India being one of the largest refugee centres in the world, with over 200,000 estimated refugees present in the country in 2016, according to the UNHCR.

As a result of having no coherent refugee policy, India’s treatment of these massive refugee groups depends on political exigencies and the discretion of the existing government, rather than on a uniform and consistent legal framework. On one hand, therefore, more than a lakh Tibetans fleeing persecution from China have been settled in different parts of the country, given government aid and even allowed to form a government-in-exile on Indian territory since 1959. Similarly, over 60,000 Tamils from Sri Lanka have been settled in India, with their housing and voluntary repatriation looked after. On the other hand, refugees from primarily Muslim-majority states like Afghanistan, Iran, Iraq, Myanmar, Somalia and Sudan have been denied protection, and are merely issued temporary residence permits on the basis of refugee certificates issued to them by the UNHCR. Additionally, India doesn’t allow the UNHCR access to the seven North-Eastern states, due to which refugee communities such as the Christian Chin refugees in Mizoram are not acknowledged either by the Indian state or by the UNHCR.

The backwardness of this policy is demonstrated by the fact that India is among the 43 UN members states that have not signed or ratified either of its instruments, putting us in the same category as nations such as Bangladesh, Laos, Libya, Myanmar, North Korea, Iraq, Pakistan, Syria, Vietnam, and Western Sahara.

In the absence of any legislative rights of the large refugee population, it is the Indian judiciary that has stepped in and guaranteed them protective rights, in line with the Constitution. In various judgments, the Supreme Court of India has held that the constitutional protection of life and liberty must extend to refugees, and that asylum seekers who enter India, even if illegally, should be permitted to approach the UNHCR to seek refugee status. Various High Courts have also upheld refugees’ right to leave the country for third country resettlement, and recognised and enforced the principle of non-refoulement.

However, this judicial assertion of constitutional rights is, by its very nature, patchy, piecemeal, and case-specific. Therefore, it is not a suitable substitute for a uniform, legislation-based policy regime for governance of the immense influx of refugees in our country.

International Law Obligations

India’s abstinence from the UNHCR Convention of 1951 and its failure to enact refugee management legislation does not exonerate it from fulfilling its other international law commitments. India is, after all, a signatory to the Universal Declaration of Human Rights (UDHR) 1948, the International Convention on Civil and Political Rights (ICCPR-1966) and the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Torture Convention-1984). Also, Article 14 of the UDHR, Article 13 of the ICCPR-1966, and Article 3 of the Torture Convention-1984, each expressing a commitment to protect refugees.

Additionally, the right to refoulement is internationally  recognized today as a part of customary international law. Article 51(c) of the Indian Constitution directs the State to respect international law and treaty obligations. Customary international law has been held by the Supreme Court to be part of international law.

Therefore, it is incumbent upon the State to fulfill its international humanitarian commitments by evolving its current regime, where all foreigners are dealt with in a discretionary manner under the Foreigners Act, 1946, and does not even legally make the distinction between refugees and other illegal immigrants.

Refugee policies in other countries

In many countries, the preferred mode of refugee regulation is the agency model, through which the refugee law sets up a federal agency that has complete authority to decide who is given asylum as a refugee and who is not. Following the UN prescribed definitions of ‘refugee’, these laws are designed in a manner that is in sync with the broader international framework set forth by the UN Conventions (of 1951 and 1967).

Among the countries that espouse this agency model, USA and Switzerland best define the role of the federal agency vis-a-vis that of the local governments. These are models worth studying, and are briefly described below:

The United States of America

Although it is the federal government which reserves the right to decide the entry/ exit of refugees, the United States Code requires the Federal Agency to consult regularly with the State and local governments regarding the “intended distribution” of refugees across States before any placement takes place. Additionally, it is mandated that any development and/ or implementation of refugee policy can only be undertaken after “prior consultation,” and that all refugee resettlements have to be preceded by assessments such as number of refugees already residing in a particular state, availability of resources such as employment opportunities, affordable housing, probability of refugees in the area attaining self sufficiency.

Similar periodic assessments are required to be undertaken in order to calculate the assistance to be given to the States, such that they can meet the basic needs of the refugees. The President, after “appropriate consultation,” can decide the cap on the number of refugees to be allowed within the country at the beginning of a fiscal year (i.e. set a numerical limitation). After such “appropriate consultation,” in case it is felt that owing to a pressing humanitarian emergency this numerical limitation needs to be revised, the President is given the autonomy to do so.

Switzerland

Here, the legislative power to grant asylum to refugees rests with The Swiss Confederation. The instrumental agency for carrying out the same is the State Secretariat for Migration (SEM), and is therefore allowed to make decisions regarding the denial or acceptance of asylum on behalf of the Federation. The norms set for identifying a refugee are in line with the Geneva Convention Relating to the Status of Refugees, and the application for seeking asylum can be filed either at the border control point or from any of the “reception and processing centers” within Switzerland. These centers undertake preliminary screening and recording of applicants’ personal/ biometric details. Each applicant is associated with one of these centers, where the applicant’s personal details and fingerprints are recorded (in case of application filed at the airport, details and biometrics will be recorded at the airport itself whereas the asylum procedure may take place either at the airport or a cantonal processing center).

After the initial screening, the applicant is allocated a canton according to a pre-determined quota system. After a secondary round of interviews, either at the processing center or in the canton within 20 days of allocation, if the applicant is accepted then they are provided with a temporary residence permit, which can be converted into a permanent residence permit after 10 years. The canton is responsible for providing social assistance such as that of accommodation and allowance to asylum seekers and refugees (which has been further delegated by them to relief organisations, municipalities or special cantonal welfare services for refugees). All costs are reimbursed by the federal government. Although the allocation of the canton is set by the federal agency, stay within the canton is the choice of the applicant overlooked by particular canton.

During the influx following the Syrian Refugee Crisis, the Fed Council of Switzerland agreed to accommodate 3,000 refugees over the course of 3 years, and waived the usual asylum procedures for them. However, to ensure security, it did give the Federal Intelligence Service the right to check the files of all people in the program.

The Indian Context

A codification, thus, would not just help in holding the Centre accountable for an arbitrary acceptance/ denial of refugees but also ensure:

  1. Checks against illegal immigration into the country are streamlined.
  2. The formal introduction of refugees into the system.
  3. Adequate resource management and allocation is carried out (thus, ensuring efficient and effective utilisation of monetary resources).
  4. Processes for economic integration of such persons can be better organised to ensure increased self-sufficiency, thus lowering the burden on the State.
  5. Inclusion of states (key stakeholders in this subject) in the decision-making process.

The first, third and fourth points outlined above can be achieved by incorporating concepts such as numerical limitations (or the quota system) via which a cap is put on the number of refugees that will be allowed into the country in a given year. The second point can be ensured through logistical support from UIDAI (for instance, among other things, by way of recording of biometric/ personal details analogous to the reception centers under SEM) on entry. The final point can be ensured by following a USA-like system. This would allow the country to better prepare itself economically, as well as the citizens to better handle and be more receptive to the cultural exposure. Clearly laying down the acting commands for a central government when faced with refugees thus ensures a neutral acting strategy.

Additionally, to counter the most common apprehension of the ‘economic burden’ that refugees are accused of being on the State’s resources, the State could employ a ‘conditional citizenship’ strategy, wherein refugees would have to attain a certain level of self-sufficiency (pre-determined income level) to become eligible for staying within the country (citizenship could be given on 5, 10 years basis).  This mechanism could be facilitated by the Government’s skilling programs, which can be taken up by anyone who wishes to learn a particular vocational skill. This incentive to gain economic autonomy would eventually make them independent of the State, and add to the State’s human capital. Such a scenario would, in the long run, complement the country’s national interests and security.

The World Refugee Day, observed each year on June 20 by the UN in order to raise awareness about the situation of refugees throughout the world, came up last week. It is about time that the Indian Parliament gives formal legal recognition to refugees, and deals with them in a consistent manner.