The Need for Domestic Refugee Law Amidst India's Looming Refugee Crisis
By Ankita Amarnath Kamath
Why Is the Existing Framework Inept at Dealing With the Refugee Crisis?
Since February 2021, India has seen an influx of Myanmarese refugees in its North-eastern states of Mizoram, Manipur, Arunachal Pradesh and Nagaland due to the military coup that overthrew Myanmar’s democratically elected government. The refugees include pro-democracy activists, police officers, government officials, journalists and civilians who fled the violent military crackdown in their home state of Myanmar. Although these North-eastern states’ governments welcomed the refugees with open arms, the Indian central government was at odds with this measure. The Indian Ministry of Home Affairs issued an order directing these states to “check the illegal influx and initiate the deportation process expeditiously and without delay.” However, these states refused to comply with the order as they share a common ethnicity with the people of Myanmar and regard them as belonging to the same community.
The root cause of this clash between the central and state governments over the issue of refugees can be attributed to the lack of a domestic refugee law in India. India is one of the few democratic countries that is not a party to the 1951 Convention Relating to the Status of Refugees and its 1967 Additional Protocol. Despite being one of the largest recipients of refugees in the world, India has refrained from drafting a comprehensive legal framework pertaining to the protection of refugees. In the absence of such a framework, refugees crossing over into India are governed by the Foreigner’s Act, 1946 and the Indian Passports Act, 1967. The problem, herein, lies with the fact that the former Act makes no distinction between refugees and unauthorized economic migrants. Article 1 of the 1951 Refugee Convention defines the term refugee as “any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social or political group, is outside the country of his nationality and is unable or unwilling to avail himself of the protection of that country or return to it due to such fear.” On the other hand, economic migrants are those who migrate to other countries seeking a higher standard of living and better economic prospects. By categorizing refugees as “foreigners” without distinguishing them from economic migrants, the Foreigner’s Act ignores the unique circumstances by which refugees are forced to flee their homes.
Is India’s Refugee Policy Discriminatory?
As refugee intake poses several challenges for the host country, ranging from economic stresses, demographic shifts and national security concerns, India has followed and continues to follow an ad hoc policy with respect to refugees that can be modified on a case-to-case basis. This not only creates ambiguity but also gives immense power to the Indian government to tailor its response towards refugees depending on the existing political scenario rather than relying on a proper legal framework, leaving the refugees at the mercy of the government in power. For instance, Tibetan and Sri Lankan Tamil refugees are protected and assisted by the Indian government. They are provided with cash assistance, subsidized ration through Public Distribution System, free medical services from government hospitals, educational subsidies for children, vocational and skill development training. Conversely, the Rohingyas from the Rakhine state of Myanmar are not provided with the same opportunities. An estimated 40,000 Rohingyas who were subjected to ethnic cleansing in their home state at the hands of the Myanmar military had crossed over into India and Bangladesh in 2017 seeking refuge. However, they were labelled as “illegal immigrants” by the Indian government. Under the guise of national security, around 200 Rohingyas have been detained and are to be deported to Myanmar where they face a grave threat of religious persecution. In Mohammad Salimullah & Anr. v. Union of India & Ors., the Supreme Court upheld the central government’s stance and refused to stay their deportation on the grounds of “threat to internal security.” Such deportation is evidently contrary to the principle of non-refoulement that is binding on India as customary international law. This discrimination in the treatment meted out to different refugee communities in India can be eliminated with the introduction of a proper domestic refugee law.
The closest India has come to introducing a domestic refugee law is the controversial Citizenship Amendment Act, 2019. This Act accords fast-track citizenship to persons who migrated into Indian territory from Pakistan, Afghanistan and Bangladesh on or before December 31, 2014 without any documentation. The scope of this Act extends to cover Hindus, Parsis, Sikhs, Jains, Buddhists and Christians from the aforementioned states who have been living unauthorized in India. However, it fails to include Muslim minority communities such as the Ahmadiyaas, who face a threat of religious persecution in Pakistan. It similarly disregards ethnic minorities from other neighbouring countries such as the Rohingya Muslims from Myanmar. Such a divisive law based on religious lines goes against the very secular fabric of India and is violative of Article 14 of the Indian Constitution.
What Should India’s Domestic Refugee Law Look Like?
India has an estimated population of 1.39 billion people and ranks as the second most populated country in the world. When viewed from an Indian context, the incoming refugees seem to add to an already overpopulated country struggling to distribute and allocate scarce resources amongst its vast population. However, this is precisely why a domestic refugee law is indispensable for India. Such a law would regulate the influx of refugees by creating a structured framework for proper identification, treatment, rehabilitation and repatriation of refugees. Rooted in law, the role of politics shall be considerably reduced, if not entirely eliminated.
Such a law must view refugees as assets rather than as a burden on limited resources. Presently, most refugee populations in India live in poverty and work low-paid jobs in the informal sector. This is due to the lack of a streamlined process to aid them in accessing job opportunities best suited to their existing skill sets. Further, the rising wave of racism and xenophobia has fostered a hostile attitude amongst natives towards refugees, making it not only harder for them to secure employment but also putting them at increased risk of violence and exploitation.
In order to address these issues, the national refugee law must focus on harnessing their existing skills with the right economic opportunities in addition to providing them with shelter, health care and education to enable them to actively contribute towards India’s development. For this purpose, a department specifically catering to the needs of refugees can be established under the Ministry of Home Affairs. This department would be responsible for profiling the refugees and recording their credentials such as educational qualifications, technical skills and language proficiencies to ensure their skills are properly understood and their needs are sufficiently met. Additionally, this department must work closely with international agencies such as the United Nations High Commissioner of Refugees to provide refugees with language, vocational and skill development training for seamless integration into the Indian labour force.
With the rising number of refugees in India, the stress on state resources is immense. The Indian Ministry of Home Affair’s 2021-22 budgetary allocation for the rehabilitation of refugees is Rs. 9718 crore (1.3 billion USD). However, it is not solely for this purpose and is to be shared among other heads such as disaster management and administrative matters like the census, cabinet, secretariat etc. In order to reduce this stress, it is essential that a refugee law for India must follow a more participatory approach. A co-ordinated mechanism of NGOs, local communities, advocacy groups, research institutions and private sponsorships may be created to provide aid and assistance to refugees thereby reducing the stress on state resources.
India, being one of the most politically stable countries in the region, has a history of receiving and providing a home to refugees from several war torn countries such as Afghanistan, Bangladesh, Sri Lanka, Tibet and even Iran. With the prevailing geo-political situation in South-east Asia, specifically - with the Taliban’s impending rise to power in Afghanistan after the withdrawal of the US troops, the oppression of the minority Uighur community in the Xinjiang province of China and the ongoing pro-democracy protests against the Tatmadaw in Myanmar, it is pertinent for India to adopt a domestic refugee law to avoid an inevitable refugee crisis.
Ankita Amarnath Kamath is a final year student at National Law University Odisha, Cuttack with a keen interest in human rights laws, international law and foreign policy.
“Refugees” is by Vincent Forges and is licensed under CC BY-NC 2.0.
