The 1951 Refugee Convention defines a refugee as: “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion[1].”
India’s commitment to providing refuge to those in need is rooted in our ancient traditions of compassion and hospitality. With a legal framework rooted in principles of non-refoulement and humanitarianism, India strives to uphold the rights and dignity of displaced persons within its borders. India seeks to address refugee needs through international cooperation and domestic policy enhancements. This underscores India’s commitment to compassion, solidarity, and upholding human rights amidst global displacement challenges. This article aims to offer insights into India’s refugee policy, highlighting its commitment to humanitarian principles and the protection of vulnerable populations.
Throughout the history of India, the country has experienced significant refugee inflows from neighboring countries, driven by various factors such as political unrest, ethnic conflicts, religious persecution, and economic hardships.
One notable example is the influx of Tibetan refugees following the Chinese occupation of Tibet in 1959. Fleeing repression and seeking religious freedom, thousands of Tibetans, including the Dalai Lama, sought asylum in India. In response, India extended support to the Tibetan community by establishing settlements and providing assistance for their resettlement and integration, notably in areas like Dharamshala and Karnataka[2].
Similarly, the 1971 Bangladesh Liberation War led to a massive wave of refugees entering India, escaping violence and persecution in what was then East Pakistan. The influx reached a peak of over 10 million refugees, one of the largest migrations in history. India played a crucial role in supporting the independence movement and eventually intervened militarily, leading to the creation of Bangladesh. During this crisis, India set up refugee camps along the border, provided humanitarian aid, and facilitated repatriation efforts after the conflict subsided[3].
In the case of Sri Lanka, the protracted civil war between the government and Tamil separatists forced thousands of Sri Lankan Tamils to seek refuge in India, particularly in the state of Tamil Nadu. India provided asylum to these refugees and established camps to accommodate them. However, the situation remained complex due to the ongoing conflict and challenges in achieving a lasting political solution in Sri Lanka[4].
Furthermore, India has also witnessed an influx of Rohingya refugees from Myanmar in recent years, fleeing persecution and violence. Despite concerns about security and demographic challenges, India has provided humanitarian assistance to Rohingya refugees while maintaining a firm stance on border security and immigration control[5].
Although there are several challenges, including limited access to services and concerns about legal protection for certain refugee populations, India remains committed to addressing the plight of refugees through bilateral and multilateral cooperation, while also seeking to strengthen its domestic policies for the benefit of all those seeking refuge on its shores. As the global refugee crisis continues to unfold, India’s approach to refugee policy serves as a testament to its commitment to compassion, solidarity, and human rights.
The country has consistently extended protection to refugees and asylum seekers on humanitarian grounds. However, to establish the rights and status of refugees and asylum seekers within the territory of India, it is important to have a concrete legal framework. It is important to mention here that India is not a party to the 1951 Refugee Convention or its 1967 Protocol. It does not have a national refugee protection framework. However, it continues to grant asylum to a large number of refugees from neighboring States and respects the UNHCR’s mandate. In addition to this, there are also certain constitutional protections and legal provisions that safeguard the interests of refugees and individuals, regardless of their nationality, in India. The succeeding paragraphs give a detailed explanation of the same.
While India’s constitution does not explicitly mention refugees, it guarantees certain fundamental rights to all persons within its territory, including the right to equality (Article 14) and the right to life and personal liberty (Article 21). Article 14, states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India[6]. This article rejects any type of discrimination based on caste, race, and religion, place of birth or sex. It has a wide ambit and applicability to safeguard the rights of people residing in India. Further, Article 21 states that no person shall be deprived of his life or personal liberty except according to procedure established by law. This means that every individual has the right to live, and their life cannot be taken away except in accordance with the prescribed legal procedures. The right to life encompasses various aspects, including the right to live with dignity, the right to livelihood, and the right to a healthy environment. Article 21 also protects the personal liberty of individuals. It states that no person shall be deprived of their personal liberty except according to the procedure established by law. Personal liberty includes the freedom to move freely, the freedom to choose one’s place of residence, and the freedom to engage in any lawful occupation or profession[7]. These provisions have been interpreted by the courts to include refugees and asylum seekers, affording them some degree of protection.
The Supreme Court in the National Human Rights Commission vs. State of Arunachal Pradesh (1996)[8] held that while all rights are available to citizens, persons including foreign citizens are entitled to the right to equality and the right to life.
In addition, various other Indian laws exist which talk of the rights of individuals residing within the territory of India irrespective of their nationality be they refugees or otherwise. I have stated some of these in the succeeding paras.
Citizenship Act, 1955: The Citizenship Act outlines the various ways in which individuals can acquire Indian citizenship, including by birth, descent, registration, or naturalization. While primarily concerned with citizenship, it also intersects with refugee and asylum issues, particularly regarding the rights of refugees to seek citizenship in India[9].
Foreigners Act, 1946: The Foreigners Act serves as the primary legislation governing the entry, stay, and departure of foreigners in India. Section 3(1)(b) of the act empowers the central government to make orders regarding the entry and presence of foreigners, including refugees. However, the act does not provide specific provisions for the protection or recognition of refugees as a distinct category[10].
The Passport (Entry into India) Act, 1920: Section 5 of the Passport (Entry into India) Act, 1920, authorizes any officers of the government to arrest individuals without a warrant if there are reasonable grounds to believe they violated the rules made under section 3 of the Act, such as entering India without a passport[11].
The Registration of Foreigners Act, 1939: Registration under Foreigners Regional Registration Officer (FRRO) is a mandatory requirement under which all foreign nationals (excluding overseas citizens of India) visiting India on a long-term visa (more than 180 days) are required to register themselves with a Registration Officer within 14 days of arriving in India. Pakistani nationals visiting India are required to register within 24 hours of arrival regardless of the duration of their stay[12].
The principle of non-refoulement: The principle of non-refoulement is a fundamental aspect of international refugee law and human rights law. It prohibits states from returning or deporting individuals to a country where they would face persecution, torture, or other serious human rights violations. It is a matter of International Customary Law, which means that it applies to every nation regardless of whether they are party to a particular agreement or not. This view was iterated by the Supreme Court of India in People’s Union for Civil Liberties v. Union of India, where the court highlighted the importance of customary laws and held that their application should be encouraged in domestic legislation. In another instance, the Supreme Court on the issue of conflict between customary and domestic law has held that customary law would prevail over the Statutory Law[13].
The challenges and criticism of India’s refugee policy encompass several key areas:
Lack of a comprehensive legal framework
The Republic of India does not have a specific comprehensive refugee law that addresses all aspects of refugee protection and asylum. India has also not ratified the 1951 Refugee Convention or its 1967 Protocol. In the absence of dedicated refugee law, it leads to an ambiguity in the legal status and rights of refugees. Further, the constitution of India, does not explicitly mention about the refugees in the fundamental rights such as equality and personal liberty, as enshrined in Articles 14 and 21. However, it was interpreted by courts to extend protection to refugees and asylum seekers.
The absence of specific provisions for refugees in laws like the Foreigners Act of 1946 and the Passport (Entry into India) Act of 1920 can lead to uncertainty regarding their legal status and rights. The Citizenship Act of 1955 intersects with refugee issues, addressing the ways individuals can acquire Indian citizenship. Additionally, the Registration of Foreigners Act of 1939 mandates registration for foreign nationals visiting India, regardless of their duration of stay, underscoring the administrative framework surrounding immigration.
However, without specific provisions for refugees, their legal status and rights might not be clearly defined. This lack of clarity can sometimes lead to challenges for refugees in accessing essential services like education, healthcare, and employment, or in seeking protection from persecution.
One example of this ambiguity can be seen in the case of Rohingya refugees in India. Rohingya Muslims from Myanmar have sought refuge in India due to persecution in their home country. However, their status in India is uncertain because there isn’t a clear legal framework for them.
Hence, these drawbacks make it challenging to provide adequate protection and assistance to refugees, leaving them vulnerable to exploitation and abuse.
Border management and security concerns
India’s border management and security have faced significant challenges over the years, marked by key events. The 1962 Sino-Indian War underscored unresolved territorial disputes with China, resulting in military conflict and diplomatic tensions. In 2008, the Mumbai Attacks shocked the nation as terrorists from Pakistan infiltrated Mumbai, highlighting the threat of cross-border terrorism and the need for enhanced security measures. Additionally, the 2017 Doklam Standoff with China near the India-Bhutan-China tri-junction raised concerns over territorial integrity and sovereignty. Ongoing issues like the Rohingya Refugee Crisis and illegal immigration from Bangladesh highlight the porous nature of India’s borders, contributing to socio-political complexities. Furthermore, maritime security concerns persist due to piracy and terrorism threats, as evidenced by the 2008 Mumbai Attacks. These events illustrate the diverse and evolving challenges faced by India’s border security, necessitating comprehensive strategies to ensure national security and stability[14].
Limited access to rights and services
Without formal recognition as refugees, asylum seekers and displaced persons may struggle to access essential services such as healthcare, education, and employment. This exclusion can hinder their integration and livelihood opportunities in India.
Detention and deportation
Contrary to India’s traditional humanitarian approach towards forcibly displaced populations, the Bharatiya Janata Party led Indian government has responded to recent crises by implementing strict border control policies, introducing a comprehensive detention regime, cracking down on the widely persecuted Rohingya Muslim population who are deemed to be a threat to national security, shirking from its commitments under the customary international law principle of non-refoulement, amending the citizenship legislation to render minority populations stateless, and undertaking public information campaigns which negatively impact the public perception of refugee populations. There has been a sharp increase in the detention of refugees, in particular of Rohingyas, recognized under the UNHCR’s mandate. This ill treatment of asylum seekers, refugees, and migrants is abetted by the Foreigners Act 1946, part of a set of archaic laws that regulates immigration in India[15].
Financial inclusion
India, despite hosting over 2 lakh refugees within its territory has been unable to provide the population, access to any financial institutions or services. This is primarily due to the absence of a uniform and institutionalised legal framework, lack of documentation and the subsequent lack of awareness about refugees in the public domain. This crisis further exacerbated in the aftermath of the demonetisation policy of 2016 which initiated the transformation of India into a cashless economy by ensuring bank accounts for every individual. However, for the refugees who have no access to banking services, the impact of this policy was devastating. Apart from being excluded from the mainstream economy, which was already the case, the policy rendered their cash savings worthless. Moreover, the “Aadhaar” issued by the Government of India to persons legally residing in India was made mandatory for accessing services, which cast further doubt over the socio-economic and financial inclusion of the population whose eligibility for acquiring this national ID card remained unclear. These policies led to refugees being side-lined with no means to access the formal economy[16].
Overall, these challenges and criticisms underscore the need for India to develop a comprehensive and rights-based approach to refugee protection, including the enactment of appropriate legislation, the expansion of access to rights and services, and the adoption of humane and equitable immigration policies.
A structured and comprehensive approach is crucial for strengthening refugee protection in India. A dedicated legal framework, access to essential services, strengthened humanitarian assistance, and regional cooperation are critical to safeguarding the rights and well-being of refugees. The following initiatives outline key steps India should take:
In conclusion, India’s approach to refugee protection, though rooted in humanitarian values, requires significant reforms. As one of the fastest-growing nations and the seventh-largest country in the world by area, it is a drawback that the nation has still not ratified the 1951 Refugee Convention or its 1967 Protocol. It does not have a national refugee protection framework. However, it continues to grant asylum to a large number of refugees from neighboring states and respects UNHCR’s mandate.
India is capable of extending its assistance to refugees fleeing from its neighboring nations. However, in the absence of a dedicated legal framework, it is difficult to establish the rights and status of refugees within the territory of India. Hence, to efficiently and effectively regulate the flow of refugees to the country, India can adopt a dedicated refugee legislation, like the Refugee Act of 2016 in Uganda. It is also imperative that India takes decisive steps toward ensuring access to services and fostering collaboration, thereby cementing its commitment to refugee protection in an increasingly interdependent world. These steps are essential for addressing the growing refugee crisis and ensuring that those seeking refuge in India are treated dasylumproject.org/financial-inclusion-for-refugees-in-india.
Vineetha Wilson
Legal Trainee SMA Legal
©2024 SMA Legal
