Kara Sears
India has no international or domestic refugee policy, despite being home to over 200,000 refugees and being deemed a 'safe haven' for them. The absence of a formal law allows the state to deal with refugee groups on an ad hoc and arbitrary basis, influenced by geopolitical and diplomatic incentives, domestic electoral mandates, and local socio-cultural dynamics. India's refugee matters are governed by a variety of agencies from both Central and State governments, with policies laid down by the Union government and enforced by the State administration. The country's lack of a national refugee law has resulted in inconsistent laws and treatment of refugees, with no uniformity across the country.
| Characteristics | Values |
|---|---|
| Existence of a national refugee law | No |
| Treatment of refugees | Dealt with under existing Indian laws, including the Foreigners Act of 1946 and the Indian Passport Act |
| Refugee status | Determined on a case-by-case basis |
| Role of the UNHCR | Complements the government's efforts, particularly in verification, resettlement, and providing basic amenities |
| Right to refugee status | Not automatic, at the prerogative of the Indian government |
| Eligibility for refugee status | Must have documents supporting grounds of persecution or fear of persecution resulting in flight from the country |
| Statements made by claimants | Must not contradict general information about the country of origin |
| Corroboration and confirmation of facts | Essential for determining refugee status |
| National security considerations | Influence treatment of refugees |
| Inclusion of non-Muslim countries | Sri Lanka, Nepal, Bhutan, and Tibet excluded from the Citizenship Bill |
| Inclusion of Muslim refugees | Exclusion of Rohingya refugees, Afghan refugees |
| Inclusion of Muslim refugees from neighbouring countries | Excluded under the Citizenship Amendment Act (CAA) |
| Temporary measures | Ad hoc administrative policy on refugees |
| Basic human rights | Not provided to refugees |
| Right to work | Not provided to refugees |
| Seeking international assistance | India seeks financial aid, technical support, and resettlement opportunities |
| Involving civil society | Civil society organizations, NGOs, and refugee communities are engaged in the policymaking process |
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What You'll Learn
India's lack of a national refugee law
India does not have a national refugee law, despite being home to a large number and variety of refugees throughout its history. Instead, India deals with refugees on a case-by-case basis, governed by domestic laws meant for foreigners who voluntarily enter the country. This means that refugees in India are subject to the Foreigners Act of 1946 and other existing Indian laws, such as The Criminal Procedure Code, The Indian Penal Code, and The Evidence Act.
The absence of a specific refugee law has led to inconsistencies in how refugees are treated in India, with some being protected and offered residence and work permits, while others are imprisoned or deported. For example, India has offered protection to Tibetan and Sri Lankan Tamil refugees, but three Sri Lankan "economic" refugees were imprisoned upon arrival in the country. Similarly, Rohingya refugees have largely been painted as illegal immigrants and security threats, with hundreds detained and some deported.
Despite the lack of a formal refugee law, the Supreme Court of India has used international human rights instruments, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, to uphold the obligation of refugee protection by the government. Additionally, the Indian judiciary has occasionally extended the application of constitutional rights to asylum seekers, such as the right to life. However, this judicial protection is case-specific and does not provide a comprehensive framework for refugee protection in the country.
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The role of the Union government
India does not have a national refugee law or a formal domestic refugee policy. Instead, it deals with refugees at the political and administrative levels, and on an ad hoc basis. This means that the Indian government can decide each case according to its merits and circumstances.
Despite the lack of a formal law, the Supreme Court of India has used the Article 14 of the Universal Declaration of Human Rights and the Article 13 of the International Covenant on Civil and Political Rights to uphold the obligation of refugee protection by the government.
The Union government lays down all policies governing refugees. However, the impact of the refugee problem is borne by the State administration, which has to enforce the laws of the land in regard to refugees while also considering security concerns. This has resulted in a variety of agencies, both of the Central and State governments, dealing with refugee matters connected with law enforcement.
The Indian government has allowed the United Nations High Commissioner for Refugees (UNHCR) in India to operate a programme for refugees. The UNHCR often plays a complementary role to the government's efforts, particularly in regard to verification about the individual’s background and the general circumstances prevailing in the country of origin.
The Indian government has also passed laws that impact refugees, such as the Citizenship Amendment Act (CAA), which provides a pathway to citizenship for non-Muslim illegal immigrants from neighbouring countries, and the Foreigners Act and Indian Passport Act, which treat refugees entering without a visa as illegal immigrants.
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The treatment of refugees as 'foreigners'
India has a long history of accepting refugees, however, it does not have a national refugee law. Instead, it deals with refugees on a political and administrative basis, with ad hoc systems in place to manage their status and needs. This means that refugees are treated as foreigners, with their presence regulated by the Foreigners Act of 1946, which defines a foreigner as a person who is not an Indian citizen. This Act allows the government to detain a foreigner until they are deported back to their country of origin.
The lack of a specific refugee law means that refugee status is determined on a case-by-case basis. India's refugee regime generally conforms to international instruments, but without formalising practices in a separate statute. The UNHCR has been working with the Indian government to protect refugees and asylum seekers since 1981, and plays a role in their resettlement.
India's approach to refugees is influenced by national security concerns, with various agencies of the Central and State governments dealing with refugee matters connected to law enforcement. The Indian government has also been criticised for not including certain non-Muslim countries in the Citizenship Bill, such as Sri Lanka and Nepal, despite these countries having a history of discrimination against Hindus.
In terms of the treatment of refugees as foreigners, India's legal system considers refugees as a type of immigrant. Those without valid Indian citizenship or visas are classified as illegal immigrants, and Indian law does not recognise illegal immigrants as refugees. This means that refugees who do not have the correct documentation are subject to the same criminal laws and special laws as other foreigners.
The Indian government has also stated that it does not support illegal migration into its territory. In 2012, the Supreme Court heard a petition for the deportation of illegal migrants, and the government affirmed its commitment to the lawful deportation of illegal Bangladeshi migrants.
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The absence of a uniform policy
India does not have a national refugee law or an international refugee policy. Despite this, India has historically been deemed a 'safe haven' for refugees, and has accepted refugees from neighbouring countries. However, the absence of a formal law has allowed the state to deal with refugee groups on an ad hoc and arbitrary basis, governed by geopolitical and diplomatic incentives, domestic electoral mandates, and local socio-cultural dynamics. This has resulted in a lack of consistency in the procedure for determining refugee status and addressing their needs.
The lack of a uniform policy has also led to challenges in documentation and access to basic necessities for refugees. Differentiated architectures of documentation from state and international actors, as well as national identification technologies, have made it difficult for refugees to gain recognition from the state and assert their economic and political needs. This has further exacerbated the already vulnerable situation of refugees, who are seeking safety and stability.
The absence of a specific refugee law has significant implications for refugee protection and access to rights. Without a uniform policy, India deals with refugees under existing Indian laws, such as The Criminal Procedure Code, The Indian Penal Code, and The Evidence Act. This means that refugees are treated as 'foreigners' and their cases are considered on an individual basis, leading to potential inconsistencies and uncertainties in the determination of refugee status.
There have been calls for India to establish a uniform refugee law to address these issues. By formulating a standard refugee policy with judicial oversight and cooperation from civil and international organizations, India can provide legal pathways to asylum, ensure equal rights for refugees, and prevent unjust administrative actions. A uniform policy would also enable better coordination between the Central and State governments, ensuring that the humanitarian considerations for refugees are not overlooked while also addressing security concerns.
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The impact on national security
India does not have a national refugee law, but it has accepted refugees from neighbouring countries based on principles set out by Jawaharlal Nehru in 1959. These principles include a humane welcome for refugees, the bilateral nature of the refugee issue, and the return of refugees to their homelands when normalcy returns. Despite the absence of a formal law, the Supreme Court of India has employed international human rights instruments to uphold the government's obligation to protect refugees. Notably, India is not a signatory to the 1951 Refugee Convention, and the UN's non-refoulement and impediment to expulsion principles do not apply.
The absence of a comprehensive refugee law in India has resulted in refugee matters being addressed primarily at the political and administrative levels, with ad hoc systems in place to manage their status and needs. This has led to various central and state government agencies becoming involved in refugee issues related to law enforcement and national security. While law and order are state subjects under the Indian Constitution, international relations and borders fall under the Union government's exclusive jurisdiction. As a result, the Union government formulates all refugee policies, while the state administrations bear the brunt of the refugee crisis's impact.
The Indian government must balance enforcing its laws regarding refugees with addressing security concerns and maintaining humanitarian considerations. Security personnel at international borders, immigration checkpoints, and state police play crucial roles in law enforcement and ensuring national and internal security. They must remain vigilant against any criminal or anti-national elements attempting to exploit refugee pleas to enter the country with malicious intentions.
The refugee determination process in India involves assessing each case's merits and circumstances. Refugees are considered 'foreigners' under existing Indian laws, and their legal status is governed by the Foreigners Act of 1946. This Act defines a foreigner as a non-Indian citizen and places the burden of proof regarding nationality on the individual. Additionally, it mandates that the presence of foreigners, including illegal immigrants, be reported to the nearest police station within 24 hours, enabling the government to detain and deport them.
The Citizenship Amendment Bill 2019, passed in the Indian Parliament, has been criticised for excluding certain non-Muslim countries like Sri Lanka, Nepal, and Bhutan. The bill offers a path to citizenship for persecuted minority communities from Afghanistan, Bangladesh, and Pakistan who arrived before December 31, 2014, excluding Muslims. This exclusion has sparked concerns about the bill's impact on national security, particularly regarding the potential exclusion of Tamil-speaking Hindus from Sri Lanka and the situation in Bhutan, accused of discriminating against Hindus in favour of a Buddhist-only society.
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Frequently asked questions
India does not have a specific refugee law or a formal national policy. Instead, refugees are governed under the Foreigners Act of 1946 and the Passport (Entry into India) Act of 1920. This means that refugees have the same legal status as foreign nationals in India.
The Indian government decides each case individually. Refugees must provide documents and evidence to support their claims of persecution or fear of persecution. The Union government lays down policies governing refugees, and the impact of these policies is borne by the State administration.
Refugees in India do not have many rights. They are not provided with basic necessities such as food, shelter, or employment. They also do not have the right to vote or own Indian passports. However, in some cases, like with Tibetan refugees, the Indian government has provided special permits to live, work, and travel within the country.
The United Nations High Commissioner for Refugees (UNHCR) often plays a complementary role to the Indian government's efforts, particularly in verifying refugees' backgrounds and the circumstances in their countries of origin. India has not signed the 1951 Refugee Convention, which defines refugees and outlines their treatment, or its 1967 Protocol.
