[Editorial] India needs a refugee and asylum law

asylum

What the editorial is about?

  • Need for a uniform and comprehensive law to deal with asylum seekers.

Context

  • Recently a Private Member’s Bill has been introduced in the Lok Sabha proposing the enactment of a Refugee and Asylum law.
  • The Bill lays down comprehensive criteria for recognizing asylum seekers and refugees and prescribes specific rights and duties accruing from such status.

Who is a refugee?

  • The word refugee embraces people who have fled their home countries and crossed an international border because of a well-founded fear of persecution in their home countries, on grounds of race, religion, nationality, membership of a particular social group, or political opinion.
  • This means that people who cross borders in quest of economic betterment, or because they are fleeing poverty, anarchy or environmental disaster, do not qualify as refugees.
  • Nor do those who flee from one part of their home country to another because of war, conflict or fear of persecution.

The principle of non-refoulement

  • The principle of non-refoulement is clearly affirmed, with no exceptions, though reasons have been specified for exclusion, expulsion, and revocation of refugee status, to respect the Government’s sovereign authority but limit its discretion.
  • This means that the right to seek asylum in India would need to be available to all foreigners irrespective of their nationality, race, religion, or ethnicity.
  • According to the recently introduced private member’s bill, a National Commission for Asylum would need to be constituted to receive and decide all such applications.

The reaction of India towards the refugees

  • India has been, and continues to be, a generous host to several persecuted communities, doing more than many countries, but is neither a signatory to the 1951 UN Refugee Convention, nor does it have a domestic asylum framework.
  • Our record on asylum goes back millennia, from the Jewish people who fled to India centuries before Christ after the demolition of their Jerusalem Temple by the Babylonians and then the Romans, to the Zoroastrians fleeing Islamic persecution in Persia, to Tibetans, Bangladeshis and Sri Lankan Tamils in more recent years, as well as streams of Nepalis, Afghans and the Rohingya.
  • Given this history, India ought to be a natural leader on the question of refugee rights on the world stage.
  • However, our present actions and our lack of a legal framework does our heritage no credit, shames us in the eyes of the world, and fails to match up to our actual past track record.
  • For e.g., the Government has recently expelled to Myanmar a couple of batches of Rohingya refugees in the face of a grave risk of persecution in the country they had fled.
  • In conducting this act of “refoulement” in violation of international law, the Government revealed both religious bigotry and intolerance.
  • It has attempted to do the same with Chakmas in Arunachal Pradesh and Myanmarese in Mizoram.

Need for a uniform and comprehensive law

  • In the absence of a uniform and comprehensive law to deal with asylum seekers, India lacks a clear vision or policy on refugee management.
  • India has a set of laws such as the Foreigners Act, 1946, the Registration of Foreigners Act, 1939, the Passports Act (1967), the Extradition Act, 1962, the Citizenship Act, 1955 (including its controversial 2019 amendment) and the Foreigners Order, 1948 — all of which club all foreign individuals together as “aliens”.
  • Because India has neither subscribed to international conventions on the topic nor set up a domestic legislative framework to deal with refugees, their problems are dealt with in an ad hoc manner, and like other foreigners they always face the possibility of being deported.

Refugee protection

  • India often limits itself to just providing asylum when it comes to refugee protection.
  • India needs a proper framework to make sure that refugees can access basic public services, be able to legally seek jobs and livelihood opportunities for some source of income.
  • The absence of such a framework will make the refugees vulnerable to exploitation, especially human trafficking.

Way Forward

  • Our judiciary has already shown the way forward on this:
    • In 1996, the Supreme Court of India ruled that the state has to protect all human beings living in India, irrespective of nationality, since they enjoy the rights guaranteed by Articles 14, 20 and 21 of the Constitution to all, not just Indian citizens.
    • Based on this premise, the Supreme Court stopped the forcible eviction of Chakma refugees who had entered Arunachal Pradesh in 1995, in the landmark NHRC vs State of Arunachal Pradesh case.
    • The Court held that an application for asylum must be properly processed and till a decision is made whether to grant or refuse asylum, the state cannot forcibly evict an asylum seeker.
  • The problems of refugees worldwide are problems that demand global solidarity and international cooperation.
  • India, as a pillar of the world community, as a significant pole in the emerging multipolar world, must play its own part, on its own soil as well as on the global stage, in this noble task.

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