The lack of a law providing certain basic rights to refugees violates India’s obligations under customary international law

India is no stranger to serving as a safe haven to refugees, from as far back as the first millennium, when the Hindu rulers of Gujarat granted refuge to Parsi settlers from erstwhile Persia. At present, refugees in India hail from places such as Tibet, Sri Lanka, Afghanistan and even conflict zones further away, such as Iran, Somalia and Sudan.

According to data collected by the United Nations High Commissioner for Refugees (UNHCR), India has close to 2 lakh refugees living within its territory with the number constantly rising. However, unofficial reports place the figure at above 4.5 lakh. Currently, only judicial decisions regulating specific situations govern refugees in India. There are also ad hoc administrative advisories by the Ministry of Home Affairs regulating specific situations concerning refugees, such as the 2012 Advisory on preventing and combating human trafficking in India. Lack of standardised documentation for this category of persons and a lack of legal recognition has led to difficulties in their access to basic facilities such as decent living conditions, employment, free or subsidised medical facilities and education.

Lacunae in the law

The United Nations High Commissioner for Refugees, António Guterres, has commended India’s refugee policies at a time when many nations have closed their borders and refused protection. However, the fact remains that within India, the law continues to fail refugees. In the absence of specific legislation pertaining to refugees, the general law applicable to foreigners, The Foreigners Act, 1946, applies to refugees as well. Refugee status determination, the process by which an asylum seeker is determined to be a ‘refugee’, is carried out by the UNHCR, but it has limited reach and resources. These ad hoc, case-specific measures lead to a two-fold problem.

First, the lack of a law providing certain basic rights to refugees violates India’s obligations under customary international law, notwithstanding the fact that it is not a party to the 1951 Refugee Convention. Second, India’s national security interests are hampered by the absence of a coherent legal structure to ensure that all non-citizens residing in India are properly documented and have a legitimate reason for their presence in India.

On June 20, World Refugee Day, the scale of refugee influx into India was highlighted yet again. The time is ripe to reflect on the lacunae in Indian law, with respect to recognition and administration of refugees, and take at least a few small steps in the direction of establishing a legal framework for refugees.

Many have advocated the need for a comprehensive legislation regulating refugees and their rights. An Eminent Persons’ Group under the chairmanship of former Chief Justice of India, P.N. Bhagwati, drafted a model law in 2002. This was followed up by a draft Refugee Protection Bill, though it did not gain the political traction to get passed as a law. A simpler set of reforms is necessary, which may not achieve the comprehensive changes that the earlier Bill aimed at, but is more easily achievable. Implementing these reforms could at least grant legal status to this ever-expanding group of people who are residing in India, but are unrecognised and unregulated by the law.

Defining the term

The foremost requirement is a definition of the term ‘refugee.’ This is essential for any legislation making any provision for refugees, since the term is not easily defined. The definition could be inserted in the Foreigners Act, since refugees are a special category of foreigners.

Second, the single most important principle relating to refugees in international law needs to be recognised in Indian law — that of non-refoulement, which means non-expulsion or non-extradition to the place from which the refugee has fled as long as the compelling circumstances for fleeing persist. The Foreigners Act penalises those who enter the country without valid identity documents, or may prohibit entry of such persons into India. This implies that refugee-seekers are liable to be returned to the country they are fleeing from. Exceptions must be carved out for those legally recognised as refugees, implementing the principle of non-refoulement, in the same statute.

A structured system must be put in place for refugee status-determination at the borders. Moreover, a procedure with such critical security implications should be controlled and carried out entirely by the government. As a result of this procedure, once a person is admitted into the country as a refugee, he/she needs to be issued a permit, either in form of a long-term visa or a refugee permit. This will serve as an identity document, and assist the government in maintaining records.

Two-fold advantage

The foremost advantage of these changes in the law is that it would allow the government to maintain greater accountability for its large non-citizen population. This would directly lead to advancing the interests of national security and order, apart from allowing this section of the population to enjoy basic rights and privileges.

Given the fact that it shelters a burgeoning refugee population, India has immense scope for playing a leadership role in the South Asian region in this matter. As a responsible state, India should take the first step in setting up a legal regime for refugees, consistent with its international law obligations, thereby setting a regional precedent.

Admittedly, the amendments described earlier reflect very small steps toward a comprehensive legal regime governing refugees. However, these are by no means minor. The changes suggested to the Foreigners Act coupled with the establishment of a structured state-driven system of refugee status determination will go a long way in ensuring legal status for refugees within the country.

India stands to benefit from this, with its reputation as a humane and responsible actor on the international stage reaffirmed.

(Rukmini Das is a research fellow at the Vidhi Centre for Legal Policy, a New-Delhi based legal think-tank.)

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