It is a common failure to obscure the distinction between refugees — those forced to flee their countries and unable to return for fear of persecution — and migrants, who leave in the hope of a better life. Refugees are victims of challenging social circumstances such as civil war, violence and discrimination over which they have no control, and the importance of a uniform and humanitarian policy towards them cannot be overstated. The recent plight of Hindu and Sikh refugees from Pakistan and the Rohingya Muslims from Myanmar are sad reminders that India — despite being a signatory to a slew of international conventions on human rights, some of which implicitly endorse the principle of non-refoulement — does not have a specific statute dealing with refugees. As a result, refugees are covered by the omnibus Foreigners Act 1946, an archaic piece of legislation that governs the stay and exit of non-nationals as a homogenous category. A 2004 amendment introduced by the erstwhile National Democratic Alliance government of Atal Bihari Vajpayee prescribes stiff imprisonment for any foreigner who enters without valid papers or who overstays his or her visa. As a result, the very Hindu refugees from Pakistan for whom the Bharatiya Janata Party’s heart now rightly bleeds are liable under the law to arrest and eventual deportation.
In the absence of enlightened, rational policy, ad hocism prevails. Some classes of refugees — for example, Tibetans and Sri Lankan Tamils — have historically fared better than others. Security considerations, heightened by the presence of extremist groups in some neighbouring countries, are often cited to argue against the desirability of a refugee law. But this is something of a red herring. All laws relating to refugees involve a thorough scrutiny of the evidence provided by the asylum seeker, with additional corroborative safeguards, as a part of the determination process. But since there is no refugee law in India, there is no process and no clear standards for the lakhs of de facto refugees whose presence the Indian state tolerates but whose status it will not formalise. A few years ago, former Chief Justice P.N. Bhagwati drew up a ‘model law’ for India. Although this became the basis for a draft bill by the Centre, there has been no concerted effort to see this through thanks to a lack of political will. Given its pre-eminence in South Asia, and the fact that it shelters a large refugee population, India should show the way by acceding to the 1951 Refugee Convention and enacting a refugee law that is humanitarian, equitable and consistent with its international obligations.