Introduction

India’s duty to refugees has been highly debated with the passage of the Citizenship Amendment Act (CAA) in December of 2019. In the Statement of Objects and Reasons appended to the bill before it was passed, the government declared the protection of persecuted religious groups as one of the legislation’s primary goals.[1]The CAA is the latest in a series of steps that the government has taken to protect the Hindu, Sikh Buddhist, Jain, Parsi and Christian communities of Afghanistan, Pakistan and Bangladesh. In executive orders passed in 2015[2]and 2016[3], the central government exempted migrants belonging to these communities from penal consequences attached to illegal entry or illegal overstay and made them eligible for long-term visas. The CAA has made such migrants eligible for Indian citizenship. These steps are theoretically the beginnings of a refugee policy. The government has allowed these religiously persecuted groups to safely enter and stay in India. However, the government’s decision to protect particular religious groups from particular nations appears discriminatory to other groups of refugees that also face persecution. The CAA’s attempt to tackle the refugee crisis by singling out specific groups of persecuted peoples exemplifies the ad hoc, subjective nature of India’s refugee “policy”[4]. Being situated in a region that is facing drastic humanitarian crises and growing refugee populations (such as the Rohingyas fleeing Myanmar), India serves as a democratic haven. There is, therefore, an urgent need for India to develop a systematic approach to the safe entry, protection and resettlement of refugees and those seeking asylum, rather than allowing makeshift mechanisms to continue to operate.

This report analyzes India’s international responsibilities to individuals seeking asylum and the domestic mechanisms currently in place to protect them. This report also suggests steps that the Indian government should take to establish an effective framework for the acceptance and resettlement of refugees.

A Sri Lankan girl washes her face at a refugee camp in Tamil Nadu. ©2012 EU CPHA

International Law

The international community, having recognized the need to establish international norms regarding the protection of refugees and their rights, passed two cardinal documents outlining states’ responsibilities to refugees and asylum seekers. The Convention Relating to the Status of Refugees (hereafter referred to as the 1951 Refugee Convention) was passed in the aftermath of the Second World War and delineates the rights of individuals who are granted asylum and charges states with certain responsibilities regarding these individuals. The Protocol Relating to the Status of Refugees(hereafter referred to as the 1967 Protocol) eased the temporal and geographic restrictions of the 1951 Refugee Convention, which had limited refugee status to individuals who found themselves stateless due to events occurring in Europe before January of 1951. India is not a member of either treaty.

These two documents outline several important definitions and state responsibilities:

• Defining “Refugee”
  The term refugee applies to any person who “owing to well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable, or owing to such fear, is unwilling to return to it.”[5] A person’s refugee status depends on the fulfilment of the above criteria and not on a positive decision made by any state or international organization. A state’s decision to recognize an individual as a refugee is simply a confirmation of their status.[6]
• Defining “Asylum seeker”
  “Asylum seeker” is a general term used to designate individuals who are seeking international protection. Some states use “asylum seeker” as a legal term that refers to an individual whose refugee status application has not yet been finalized.
• The Principle of Non-Refoulement
  Non-refoulement, or protection from forcible return, is perhaps the most important right that refugees and asylum seekers have. The 1951 Refugee Convention prevents all signatories from returning “a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”[7] The use of the words “in any manner whatsoever” expands the state’s responsibilities in regards to non-refoulement. It bans any state from any action that would directly or indirectly place the refugee at risk of being returned to his country of origin. This may include refusal of entry at the border and expulsion from the state. Non-refoulement applies in any location the state exercises authority, including on international waters (while intercepting ships, for instance).

The 1951 Refugee Convention includes two important exceptions to non-refoulement. If the state believes that there are reasonable grounds that the individual in question is a danger to national security, they may deny the individual protection under non-refoulement. If upon conviction of a particularly serious crime, the refugee is considered a danger to his or her community of residence, the state also has the right to remove them from their territory. The United Nations posits that these exceptions must be interpreted in a restricted manner while considering the principle of proportionality. The danger posed by the refugee must be serious enough to justify refoulement, and there must be a “rational connection between the removal of the refugee and the elimination of the danger.”[8]

Importantly, the principle of non-refoulement has been adopted into customary international law. Customary law is binding on all states, so even those states which are not a party to the 1951 Refugee Convention or the 1967 Protocol (such as India) are required to respect every refugee and asylum seeker’s right to non-refoulement.

Another important international treaty that helps to extend the protection of non-refoulement to individuals who are persecuted, but do not meet the exact criteria for refugee status, is the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[9] The Convention Against Torture charges state parties to protect individuals who are at risk of being tortured. Under this convention, no individual at risk of torture or cruel, inhuman or degrading treatment may be returned to a place in which such treatment may occur. The principle of non-refoulement for those who are at risk of being tortured is also customary law and, unlike in the case of refugees, is absolute. No state may return any individual to a place where he may be tortured. India has signed, but not ratified, the Convention Against Torture.

India’s Other International Commitments

Although India is not a member of either international treaty regarding refugees, it is party to several international conventions and declarations that have committed its government to offer refugees and asylum seekers certain protections. In addition to international treaties, India is also beholden to the customary international law of non-refoulement, which is binding on all states.

• Universal Declaration of Human Rights
  India is a signatory to the Universal Declaration of Human Rights and played a role in drafting the document. Article 14 states that “everyone has the right to seek and to enjoy in other countries asylum from persecution.”[10]Although the UDHR does not impose legal obligations on its signatories, scholars agree that many of the rights protected in the Declaration have become customary international law and those which have not still carry political and moral influence across the world.[11]
• International Covenant on Civil and Political Rights
  India is a state party to the ICCPR. Article 13 states that “an alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.” That is, state parties may not expel an individual from its territory unless the decision to do so was done in accordance with law by a competent authority and the individual has been given the chance to appeal his case.
• Bangkok Principles on the Treatment and Status of Refugees
  India adopted the Bangkok Principles in 2001. The Bangkok Principles is a non-binding document adopted by several Asian and African nations that outlines state responsibilities to refugees. It defines a refugee as “a person who, owing to persecution or a well-founded fear of persecution for reasons of race, colour, religion, nationality, ethnic origin, gender, political opinion or membership of a particular social group: leaves the State of which he is a national or the Country of his nationality, or, if he has no nationality, the State or Country of which he is a habitual resident; or, being outside of such a State or Country, is unable or unwilling to return to it or to avail himself of its protection.”[12] The Bangkok Principles does not lay out strict non-refoulement principles (as the 1951 Refugee Convention and the 1967 Protocol do). It emphasizes that “a state has the sovereign right to grant or refuse asylum in its territory to a refugee in accordance with its international obligations and national legislation.”[13] Thus, the Bangkok Principles does not charge India with significant responsibilities regarding refugees; by deferring to national sovereignty, it leaves much of the decision-making to the Indian government.

Tibetan refugees in Ladakh. ©2008 Private

The Domestic Landscape for Refugees

The Parliament of India has not yet legislated on the subject of refugees or non-refoulement. Thus, India’s domestic responsibilities regarding refugees are drawn from its responsibilities under international law and the right to life (as enshrined in Article 21 of the Indian Constitution). Further, Article 51(c) of the Indian Constitution directs the state to respect international law and treaty obligations. As a member of the United Nations and a signatory to the Universal Declaration of Human Rights, the ICCPR and the Convention on Torture, India is obligated to respect the basic rights of refugees, including their right to life and non-refoulement. Moreover, Indian courts have held that Article 21’s right to life applies to both aliens and citizens. The Indian judiciary has also held that the principle of non-refoulement is tied to the right to life and that the state is compelled to respect it except in cases wherein national security may be threatened.[14]

While the above protections seem robust, the lack of national refugee legislation leaves the government to apply these protections in an ad hoc manner. The condition that the national government may deny any individual protection due to national security concerns has, in some cases, impinged on refugees’ right to non-refoulement. For example, in 2017, the Ministry of Home Affairs labelled India’s Rohingya refugee population a threat to national security and ordered their deportation.[15] The government’s ability to arbitrarily declare entire groups of refugees a threat to national security exemplifies the subjective nature of the current process. Without a comprehensive refugee law that addresses the issues of refugee entry, protection and resettlement, the current and arbitrary system will continue to operate and continue to deny many refugees justice.

The Standard Operating Procedures Regarding Refugees

On 29 December 2011, the Ministry of Home Affairs circulated standard operating procedures regarding refugees to the state and union territory governments.[16] This very brief document orders states to examine a foreign individual’s claim to refugee status. If the individual’s claim of persecution on the account of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion is found to be credible, the case is directed to the Ministry of Home Affairs (MHA). The Ministry of Home Affairs then reviews the case and offers the individuals it considers deserving[17] a Long-Term Visa valid for one year and which may be renewed for up to five years. To renew the Visa for the sixth year, an official from the Foreigners Registration Office must submit a proposal to the MHA on behalf of the individual. The SOP also permits any individual residing in India under a Long-Term Visa to take up employment or study at any academic institutions. Those foreign nationals whose cases are not approved will be deported to their home country or, upon consultation with the UN Refugee Agency, a third country. If neither of these options is available or workable, the MHA may consider alternative routes for the deportation of foreign nationals, as it considers appropriate.

The Citizenship Amendment Act, 2019

On 11 December 2019, the Indian Parliament passed the CAA, which provides asylum to a small subclass of refugees present in India. The CAA allows individuals from the Hindu, Sikh Buddhist, Jain, Parsi and Christian communities of Afghanistan, Pakistan and Bangladesh to stay in India on the grounds of religious persecution in their home states. These individuals are not required to face the MHA’s approval process. Offering persecuted groups refugee status is not unheard of. Many states have done so in the wake of international conflicts and emergencies, including the Syrian Civil War and the Rohingya Crisis. However, the offer of blanket protection to particular groups of refugees does not negate the need for a systematic refugee policy. Additionally, the CAA’s blanket protection also appears discriminatory as it excludes religiously persecuted groups from the same and other nations without explanation. Some of the groups excluded face such intense violence in their home states (such as the Rohingyas in Myanmar), that their exclusion from the law has raised doubts regarding the government’s purported objectives. Such doubts are outside of the scope of this article, but it is important to note that the CAA violates one of the most basic tenants of refugee policy: non-discrimination. Further, the manner in which the CAA grants excessive discretionary power to state authorities to determine the rules of its implementation only cements the arbitrariness of the existing refugee policy.

The processes described above are a far cry from a standardized, comprehensive refugee policy. It does not provide any information regarding resettlement, and it leaves many refugees’ fates uncertain. The MHA is permitted broad control over the entire process, without particular standards to follow. The decision-making process within the MHA is largely subjective and leaves refugees and asylum seekers little opportunity to appeal to a higher authority. Some have turned to the Indian justice system to combat the MHA’s decisions, but the Indian courts have not reached a consensus on any refugee protections.

Judicial Response to Refugees

Indian courts have allowed refugees and non-governmental organizations to file cases before them. While court orders have offered protection to refugees and filled in certain legislative gaps, they have failed to reach any overarching consensus regarding the Indian government’s duty towards refugees.[18] Below are a few important decisions the courts have made:

• The Supreme Court extended the protections of Article 21 (that disallows the state from depriving any person of his life or personal liberty) to foreign individuals as well as citizens. It charged the state with the duty to protect the life and liberty of every human being, not just its citizens.[19]
• The Supreme Court prohibited the expulsion of individuals seeking refugee status until their petition had been duly examined by the appropriate individual and a decision made.[20]
• The Gauhati High Court, Andhra High Court, Madras High Court, Delhi High Court and the Gujarat High Court have all protected refugees’ right to non-refoulement and ruled that refugees have the right not to be deported if their lives are in danger.[21]
• However, the Supreme Court and Delhi High Court have also specifically allowed the state to return refugees to their home countries in the defence of national security.[22] In these cases, the individuals were returned despite serious threats to their lives.
• The Supreme Court has also indicated that national security and state interest must be considered when examining an individual’s right to life and personal liberty.[23] This leaves aliens in a particularly vulnerable position – if their refoulement is in the interest of the state or national security, the Supreme Court may not defend their right to non-refoulement.

The Indian courts have not reliably upheld a refugee’s right to non-refoulment, much less the additional rights that the United Nations recommends a state protect. Reviewing the courts’ decisions makes the need for substantive refugee policy in India even more apparent.

Sri Lankan refugees outside their home in the Kurinjipadi camp in Tamil Nadu. © EU CPHA

What Should India Do?

As the refugee crises in the region worsen, India will be forced to make decisions about the role it intends to take in granting asylum and resettling refugees. While the stated objective of the CAA is refugee protection, it discriminates against the many persecuted religious groups that were not included. It is a far cry from a comprehensive refugee policy, particularly because it frames persecution in the context of religion. As climate change worsens, the South Asian region will likely see a large migration of climate refugees. Refugees also flee their home countries due to discrimination based on gender identity and sexuality. Some refugees (particularly women and children) flee abuse. If India truly wishes to protect those fleeing from instability of all sorts, it must construct a refugee law that can adapt to possible changes to the refugee landscape in and around South Asia.

Action Steps[24]:

Sign the 1951 Refugee Convention and the 1967 Protocol Relating to the Status of Refugees.

• India’s accession to the 1951 Refugee Convention and 1967 Protocol is long overdue. Signing the international treaties establishes India’s commitment to protecting refugees and creates confidence among international actors that the nation is willing to take serious steps towards the establishment of a fair system. Importantly, the confidence of international actors translates into an increased willingness to financially support the systems that must be built and administered to shelter refugees.
• Becoming a party to the two treaties also opens up additional opportunities for international partnerships that will assist India in enacting refugee legislation and creating a state asylum system.

 Enact National Refugee Legislation

• Parliament must repeal the CAA. While some may laud the legislation for its purported objective of protecting refugees facing religious persecution in their home nations, the law is, in reality, a flawed approximation of refugee legislation. It does not outline refugees’ rights, establish a system to determine refugee status, or discuss how refugee resettlement should be conducted. Most importantly, it limits its protections to certain religious groups. All legitimate pieces of refugee legislation must be non-discriminatory.
• The legislation must, first and foremost, establish a specific definition for a refugee and establish which individuals the definition excludes, and when the definition ceases to apply. Only then can the law establish a mechanism to determine who requires international protection.
• The law should guarantee that it will be applied without discrimination on the basis of race, colour, sex, language, region, political opinion, national origin, social class, wealth, or birth. The law must also list and guarantee the rights that the nation will afford refugees. These rights should be in line with the 1951 Convention and 1967 Protocol.
• The most important right that the legislation must guarantee is the right to non-refoulement. The exceptions to the rule must be specifically outlined and the legislation should note that such exceptions should be applied restrictively and proportionally. The legislation should also note that any individual who may be tortured upon his return to his home country may not be returned under any circumstances, in accordance with the Convention Against Torture. India should also ratify the Convention Against Torture.
• The legislation must outline the procedures used to determine the status of a refugee. The United Nations High Commissioner for Refugees’ (UNHCR) recommendations may be referenced in outlining the law. The procedures must, in the end, be efficient, fair, and flexible.
• The legislation should also tackle the issue of durable solutions for refugees whose status is confirmed. The law should put measures in place that allow refugees to earn a living, receive an education and maintain their cultural identity while in India. The law should also consider the special needs of child refugees, especially those separated from their guardians. It should also establish a resettlement program or consider working with the UNHCR and other states to resettle refugees to other nations. The law may also consider including an avenue for repatriation and naturalization into the country of asylum (as the CAA did).
• Finally, the law should ensure that any refugees who resettle in India are protected from discrimination.

 Develop a State Asylum System

• After national legislation has been passed, a substantive state asylum system must be created to handle the cases of individuals seeking asylum in a structured, rather than ad hoc, way. Doing so enables the state and other relevant stakeholders to respond in a coordinated manner, especially in emergencies.
• The system should also include trained officials to whom the refugee may address himself at the borders. These officials should be able to provide (either on their own or through referral to another individual) the refugee the information and guidance necessary to understand the procedure he must follow to receive asylum in India.
• Asylum cases must be assessed by a central authority with the expertise and knowledge to do so, following the procedures established by the national refugee policy. The state asylum system must also maintain an appeals body to protect every refugee’s right to appeal his petition decision.
• The refugee must be granted all necessary facilities to assist him in submitting a petition. This includes, but is not limited to, a competent translator and legal advice and representation. Any differently-abled refugees must be also be accommodated in this process. The refugee must also be given the opportunity to contact a representative of the UNHCR in India.
• If the petition for refugee status is denied, the reasons for the decision must be recorded and shared with the refugee as soon as possible to facilitate his right to appeal. The refugee must be verbally informed, in a language he understands, of the decision and the reasoning behind it, his right to appeal the decision, and the timeframe in which and the procedures by which he may do so.

Conclusion

Although India is home to almost 300,000 stateless people[25], it has yet to ratify key international treaties that outline state obligations towards refugees. India also needs to enact domestic legislation to systematically address issues of refugee entry and resettlement. In the absence of stringent international commitments and comprehensive domestic legislation, the government of India has been left to protect refugees’ rights and facilitate refugee resettlement in an ad hoc and inefficient manner. The passage of the CAA not only fails India’s need for comprehensive refugee legislation but also appears to exacerbate the shortcomings of the present system by being discriminatory.

 Project Constitutionalism calls on the government of India to take concrete steps to affirm India’s commitment to refugee protection on the international stage by ratifying the 1951 Refugee Convention and the 1967 Refugee Protocol. Parliament must also pass a National Refugee Protection Act that protects refugees’ rights and establishes a comprehensive state asylum system that functions in a fair, holistic and non-discriminatory manner.

India has proven itself willing and able to house individuals fleeing from persecution. The time has come for the nation to affirm this commitment to refugees and asylum-seekers by establishing a state asylum system that will allow such individuals to enjoy their full dignity and human rights. 

Copyright © 2020 Project Constitutionalism. Published February 2020.

Author: Priya Pookkulam, Director of Operations

Editors: Abishek Jebaraj, Board of Trustees; Srishti Agnihotri, Board of Trustees; Prasanna S, Board of Trustees

Photo Credits: United Kingdom Department for International Development on Flickr (Front Cover); EU Civil Protection and Humanitarian Aid on Flickr (Page 2); Nico Gesualdo on Flickr (Page 6); EU Civil Protection and Humanitarian Aid on Flickr (Page 10)

[1] Citizenship Amendment Bill, 2019, Lok Sabha. http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/370_2019_LS_Eng.pdf

[2] The Gazette of India, Ministry of Home Affairs notification number G.S.R.686(E). https://indianfrro.gov.in/frro/Notifications_dated_7.9.2015.pdf

[3] The Gazette of India, Ministry of Home Affairs notification number G.S.R.703(E). http://egazette.nic.in/WriteReadData/2016/170822.pdf

[4] India Today, “After 12-hour long debate, Lok Sabha passes Citizenship Amendment Bill”, https://www.indiatoday.in/india/story/parliament-winter-session-citizenship-amendment-bill-news-live-updates-1626507-2019-12-09

[5] 1951 Refugee Convention, Article I.A(2)

[6] UNHCR “A guide to international refugee protection and building state asylum systems.” https://www.unhcr.org/publications/legal/3d4aba564/refugee-protection-guide-international-refugee-law-handbook-parliamentarians.html

[7] 1951 Refugee Convention Article 33(1)

[8] UNHCR “A guide to international refugee protection and building state asylum systems.” https://www.unhcr.org/publications/legal/3d4aba564/refugee-protection-guide-international-refugee-law-handbook-parliamentarians.html

[9] United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment https://www.ohchr.org/Documents/ProfessionalInterest/cat.pdf

[10] Universal Declaration of Human Rights, Article 14.

[11] Health and Human Rights, “The UDHR in National and International Law”. https://cdn2.sph.harvard.edu/wp-content/uploads/sites/125/2014/04/16-Hannum.pdf

[12] Bangkok Principles on the Status and Treatment of Refugees, 31 December 1966, https://refworld.org/docid/3de5f2d52

[13] Bangkok Principles, Article II (1).

[14] Mohammad Salimullah v. Union of India, WP (C) 793/2017, Writ Petition by P. Bhushan. https://www.scobserver.in/court-case/rohingya-deportation-case 

[15] Supra.

[16] Ministry of Home Affairs circular No.25022/34/2001-F.IV

[17] The MHA’s decision-making process in determining “deserving” individuals is not outlined.

[18] Saurabh Bhattacharjee, “India Needs a Refugee Law”, Economic and Political Weekly vol. 43, No. 9.

[19] Louis de Raedt vs. Union of India, (1991) 3 SCC 554; State of Arunachal Pradesh vs. Khudiram Chakma, (1993) 3 SCR 401

[20] Malavika Karlekar vs. Union of India, SC Writ Petition (Criminal) 583 of 1992

[21] Zothansangpuri vs. State of Manipur, Gauhati High Court, Civil Rule No. 981 of 1989; P. Nendumaran vs. Union of India, 1993 (2) ALT 291; K. Gurunathan vs. Union of India, Madras High Court, W.P. (MD) No. 2219 of 2016; Ktaer Abbas Habib Al Qutaifi v. Union of India, Gujarat High Court, 1999 CriLJ 919; Dongh Lian Kham v. Union of India, Delhi High Court, WP (CRL) No. 1884 of 2015.

[22] Mohammed Sadiq vs. Union of India, Delhi Hight Court, ILR 1978 Delhi 557; Mst. Khadija vs. Union of India, Delhi Hight Court, Criminal Writ Petition No. 658 of 1997

[23] Railway Board vs. Chandrima Das, (2000) 2 SCC 465.

[24] UNHCR “A guide to international refugee protection and building state asylum systems.” https://www.unhcr.org/publications/legal/3d4aba564/refugee-protection-guide-international-refugee-law-handbook-parliamentarians.html

[25] Ministry of Home Affairs, Lok Sabha Unstarred Question No. 894 Response. https://mha.gov.in/MHA1/Par2017/pdfs/par2016-pdfs/ls-010316/894.pdf