It is time for a uniform asylum law

The debate surrounding Brahamdagh Bugti’s request for asylum in India has largely focussed on the foreign policy implications. Numerous legal issues deserve consideration.

no clarity: “Refugees in India have widely disparate access to basic rights.” File photo of a Sri Lankan refugee arriving with her relative in Dhanushkodi, Tamil Nadu, to seek asylum in India. Photo: S. James

India stands poised to make one of the most critical decisions with respect to its refugee policy, but without a domestic asylum law and without having signed the UN Refugee Convention of 1951. This has left India without a structured and institutionalised framework for addressing refugee inflows. At the same time, however, the country is known to have a broadly humanitarian approach to asylum, and is bound by both its own constitutional principles and customary international law. As the Home Ministry examines Baloch leader Brahamdagh Bugti’s asylum claim, the debate has so far largely centred on the foreign policy implications. There remain, however, numerous legal issues which demand serious consideration.

Unanswered questions

First, the manner in which the current asylum claim has been made raises the question of whether a person can apply for asylum in India from outside the country. International refugee law only states that a person needs to be outside his/her own country to seek asylum; it is silent on whether the person needs to be physically present in the territory of the country where s/he hopes to receive asylum or whether s/he can make such an application from a third country. This is a much debated issue in international law and countries have adopted varying policies in this regard. Having allowed Mr. Bugti to seek asylum from Switzerland, it is unclear whether India has made an exception in this case or is now open to asylum applications without physical presence within its national borders. This question needs to be settled.

Second, Mr. Bugti claimed in a recent interview that his asylum application to Switzerland was turned down on account of his party being put on a terror watch list by Pakistan. While this could be a politically motivated act by Pakistan, as per international refugee law, this does trigger the need for a prospective asylum country to examine whether Mr. Bugti has committed or been involved in activities referred to as crimes against humanity, war crimes, serious non-political crimes, and so on. A fundamental principle of international refugee law is to not grant asylum to such persons, as doing so would go against the humanitarian spirit of refugee protection. The civilian character of a refugee populace is paramount, and active combatants are excluded from the same. Therefore, Mr. Bugti’s activities as a Baloch leader need to be thoroughly examined.

Third, India’s approach towards the larger Baloch refugee community in the future is yet to be addressed. Does India intend to grant asylum to Mr. Bugti alone, or to other Baloch asylum-seekers as well, or on a case-by-case basis? Irrespective of the modality it chooses, the Indian state will have to invest in setting up both a policy mechanism as well as the physical infrastructure for management of this group.

Legal rights

Finally, if Mr. Bugti is granted asylum in India, what will his legal rights be? Since Indian law does not even mention the term ‘refugee’, there are no clearly defined rights and duties for refugees. In practice, there are multiple approaches towards the different refugee communities, so much so that there isn’t even a common form of documentation that is issued to them. The outcome of this is that they have widely disparate access to basic rights. For example, while Sri Lankans and Tibetans have government-issued IDs, the vast majority of Afghan and Burmese refugees have only the documentation given to them by the UN, which is not widely recognised. There is still no clarity in this regard, and the Baloch would be yet another group of refugees for whom a separate policy would have to be created.

The most pragmatic way to address these legal issues would be for India to adopt a uniform asylum law for all refugee communities. It would allow for the codification of India’s best practices with respect to asylum, which would, at the very least, eliminate the need to revisit its historical policies each time it faces a new question of refugee protection. A national asylum law would also reduce the need for parallel mechanisms, and put in place a structured system for asylum management in the future.

Roshni Shanker and Vasudha Reddy run the Ara Trust, a centre for refugee law and forced migration studies, based in New Delhi.