Demonetisation has ensured that we are having no other conversation since past fortnight, and perhaps rightfully so, considering the economic chaos in the country and hardships that the aam admi (and the aam aurat) has been put through.

While that goes on, the Baloch leader Brahamdagh Bugti’s asylum papers are being processed by the Ministry of Home Affairs. The Citizenship Amendment Bill 2016 is slated for discussion in the current winter session of Parliament, making this is as good a time as any to discuss the absence of a comprehensive refugee law in the largest democracy of the world. A good reason to take a close, hard look at the topic is that three private members’ bills on Asylum Policy were tabled by members of Parliament in 2015, from three different parties – Shashi Tharoor (Congress), Varun Gandhi (BJP) and Rabindra Jena (Biju Janata Dal) – but they are yet to see the light of day, even for floor discussion.

The issue of the legal status of refugees needs to be discussed and given greater importance than our Big Media has accorded it. We at Newslaundry have done in-depth pieces on the global refugee crisis, the politics of wordplay and the outcomes of the recently concluded first ever UN Conference on Refugees and Migrants, hereand here. This column is the third and final part of the series.

The Legal Framework for Refugees in India:

India does not have any central, uniform law dealing with refugees. Despite the fact that India plays host to thousands of refugees, it has no specific legislation dedicated to the refugees’ protection and rights. In the absence of a specific law addressing refugees, individual refugees are essentially protected only under the Constitution of India. Since India has not passed a refugee specific legislation which regulates the entry and status of refugees, the Government determines the legal status of refugees by political and administrative decisions, rather than according to a codified model of conduct that governs the status of Refugees in India.

PAIRVI and People’s SAARC, a national advocacy group and civil society coalition dedicated to rights and values in South Asia respectively, have done in-depth studies and consultations on the issue. This column draws from their work.

The problems of such an ad hoc, ambivalent approach is that some colonial laws still cast a long shadow on India’s policies regarding refugees and asylum seekers. Refugees in India are registered under the 1939 Registration Act, which is applicable to all foreigners entering the country. Under the 1946 Foreigners Act the government is empowered to regulate the entry, presence, and departure of aliens in India. The Passport (Entry to India) Act 1920, Passport Act 1967 and Extradition Act, 1961 also deal with refugees in India.

India has thus far handled refugees at political and administrative levels. We have no central government body, other than the Foreigner Regional Registration Officers (FRRO), under the Bureau of Immigration to deal with refugees. The Government of India grants permission to United Nations High Commission for Refugees (UNHCR) to conduct registration and refugee status determination as well as provide assistance to refugees who are not extended direct assistance by the government. UNHCR provides them de facto protection because refugees recognised under the UNHCR mandate are not considered refugees under Indian law. Consequently, people fleeing persecution from their country and seeking refuge in India are often left at the goodwill and sympathy of the Indian government’s ad hoc policies. In the absence of any specific codified law, the fundamental rights enshrined in the Constitution is applied to refugees.

India’s Refugee Communities:

India is home to diverse groups of refugees – Tibetans who came in 1959; Bangladeshis who came in 1971; Chakmas in 1963; Tamils from Sri Lanka in 1983 and 1989, and again in 1995; Afghan refugees from the 1980s, Myanmar refugees for a similar period; migration and refugee movements from Bangladesh over the years.

According to a Human Rights Watch report, the 2012 pogrom in Myanmar led to displacement of more than 1,25,000 Rohingyas. The UN calls Rohingyas the most persecuted minority group in the world. They are practically not citizens of any country around the world, including Myanmar. Most of those who flee make a hazardous journey over sea and take asylum in neighbouring countries. UNHCR estimates there are 5,500 registered Rohingya refugees spread across India living in makeshift camps in precarious conditions without proper sanitation, food and education.

Refugees in India endure constant suspicion. There are restrictions placed on their freedom of movement and any attempt at asserting their rights is viewed with misgivings. Most refugee camps in India run on low rations and lack basic health care facilities.

At the end of 2015, according to the United Nations, there were 2,07,861 persons of concern in India, of whom 2,01,281 were refugees and 6,480 asylum seekers.  It includes around 175,000 refugees from Tibet and Sri Lanka who have been given asylum over decades by the government. According to UNHCR India, some 31,000 refugees and asylum-seekers were registered with UNHCR in India at the end of year 2014 and 51 percent of refugees and asylum-seekers are men, while 49 percent are women. There are some 11,000 children below the age of 18. Refugees come to India from all over the world including Afghanistan, Myanmar, Somalia, Congo, Eritrea, Iran, Iraq, Sudan and Syria.

Bugti approached India’s Permanent Mission in Geneva to request political asylum in India on September 20, 2016. This is the first step before he files the formal application with the Indian embassy in Berne, Switzerland. If the government accepts his request, he would be the highest profile individual to get political asylum from New Delhi after 1959, when it received Tibetan spiritual leader Dalai Lama, who was fleeing atrocities by China.

International instruments

In the absence of any law, India does have an informal refugee regime broadly in line with international instruments. Asylum is granted on an ad hoc and case-to-case basis. India remains one of the few liberal democracies to not have signed, supported or ratified the international conventions that govern how nations should treat distressed people who are forced to leave their home under horrific conditions. India is not party to either the 1951 Refugee Convention or the 1967 Protocol on the Status of Refugees. India has also not ratified the 1954 UN Convention on Statelessness and 1961 UN Convention on Reduction of Statelessness.

India respects the Principle of Non-Refoulement, the most important basic human rights of refugee, which forbids the rendering of a true victim of persecution to his or her persecutor. According to this principle, no country shall deport, expel or forcefully return the refugee back to his original territory against his will or if there is a reasonable threat to his life, liberty and freedom. This definition is not absolute. It is subjected to the scrutiny of “national security” and “public order”. There is enough evidence and State practice to conclude that principle of non-refoulement binds all states as it is a part of customary international law and no opposition to the same has been found. India abides by this rule explicitly through various case laws.

India is a party to the 1966 International Covenant on Civil and Political Rights (ICCPR). India ratified the 1966 International Covenant on Economic, Social and Cultural Rights, the 1963 Convention on the Elimination of All forms of Racial Discrimination and the 1979 Convention on the Elimination of All forms of Discrimination against Women (CEDAW). In addition, India has recognised the 1989 Convention on the Rights of the Child and signed the 1984 Convention against Torture (CAT). India has also adopted the 1948 Universal Human Rights Declaration (UDHR) whose Article 14(1) states, “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” These treaties impose a positive duty on India to provide protection to refugees as long as they fear persecution at the hands of their government.

As for the Citizenship Amendment Bill 2016 that is scheduled for discussion, it has come in for criticism forprivileging Hindu migrants from neighbouring countries over all other persecuted minorities, especially Muslim minorities. It has been termed exclusionary and discriminatory. However, since some of these contentious parts are not in accordance with the Indian constitution or the international treaties India has signed, there is hope that parliamentary debate will amend the draft bill for better (if true debate happens instead of sheer majoritarian muscular display of numbers).

Considering India’s track record – it’s not bad in spite of the absence of a comprehensive refugee law – it is time India had a law so that the most vulnerable people are not subjected to petty, bureaucratic discretion. We want to claim global leadership and a seat at the high table amongst the big boys, and we think building arsenal and permanent membership in the UN Security Council are the only routes. However, an equally emphatic statement of our statesmanship would be to demonstrate moral leadership on the refugee issue, which happens to be one of the most pressing challenges confronting the world – especially when India has its own massive internal migration challenge with which to grapple. International solidarity calls for benchmarking norms that makes the world a safer and better place. Having a comprehensive refugee law predicated on universal principles of dignity, fraternity and safety, could be one such pathway to global leadership.