It's Time India Had a Refugee Law

We've focused largely on the refugees undertaking perilous journeys across the Mediterranean trying to reach Europe, but we in the Indian subcontinent are much closer to the crisis than we realise.

As we near the end of 2015, the haunting images of the year were those of refugees risking their lives to flee to safety. According to statistics released by the United Nations High Commissioner for Refugees (UNHCR) at the end of 2014, around 60 million people were forcibly displaced. While news reports have focused largely on the refugees undertaking perilous journeys across the Mediterranean trying to reach Europe, we in the Indian subcontinent are much closer to the crisis than most of us realise.

India currently hosts 32,000 refugees fleeing war, violence and severe persecution in countries such as Afghanistan, Myanmar, Somalia, Iraq, etc. This is in addition to the 175,000 long-staying refugees from Tibet and Sri Lanka who have been given asylum over decades. With conflicts around the world having intensified, fresh arrivals of refugees are only expected to increase. While India has historically been humane and generous in its treatment of refugees, it is a matter of surprise that India is yet to enact a coherent and uniform law addressing the issue of asylum. In fact, the term “refugee” finds no mention under domestic law.

This is not to say that the Indian government does not have a policy on refugees; given that there is no legislation on the issue, this policy has traditionally been based on a combination of ad hoc executive policies and judicial pronouncements, and thus lacks any formal structure.  In the absence of a specific law, the statute that deals with the entry and exit of foreigners is the Foreigners Act of 1946. However, it does not recognise refugees as a special category deserving of humanitarian protection. Additionally, the process of deciding who qualifies as a refugee is also unclear;  while the Indian government determines refugee status for asylum-seekers from neighbouring regions like Tibet and Sri Lanka, asylum-seekers from other regions approach the UNHCR office in New Delhi. This has given rise to an inconsistent approach towards different nationalities, and an asylum policy that, on the whole, lacks uniformity.

Against this background, it is heartening that Shashi Tharoor, a Member of Parliament, introduced the Asylum Bill, 2015 on Friday as a private member’s bill. This Bill seeks to consolidate the various policies that apply to refugees in India, while also harmonising them and giving India recognition for its long-standing commitment to refugee protection. As Dr. Tharoor wrote, this law “will reflect the leading role India has played in sheltering those fleeing persecution”. Further, the Bill codifies the rights and duties of refugees in India and proposes the establishment by the government of an autonomous National Commission, which will assess and determine claims for asylum in India. It is vital to note here that the Bill has been framed in manner that is contextual to India’s history, capacity and security concerns.

This Bill, if it passes into law, will not only have a far-reaching impact on refugee protection but will also give the government a firm structure for asylum management, which is crucial in the mixed migration context as it exists today. Putting in place a system where all refugees are given an opportunity for a fair hearing, will encourage them to present themselves at the earliest for the determination of their claims rather than forcing them to go underground where they are vulnerable to exploitation. It will also give clear guidance to law enforcement authorities, with the result that fewer refugees will be unlawfully detained for “illegal entry” even though the entry in question was to escape persecution in their home country.

Most importantly, the Bill puts systems in place such that State authorities and structures are prepared to respond to any future refugee crisis at India’s doorstep. As the horrifying images emerging from Europe indicate, it is the lack of preparedness that can lead to undesirable consequences both for the host country and refugees.

From a refugee rights standpoint, by legitimizing their stay the Bill will allow refugees to overcome their past trauma, put them on the path to recovery, enable them to move forward with their lives and become contributing members of society during their time in India. Most importantly, if the Bill were to become law, it would bring India’s asylum practices in line with its own democratic, constitutional and cultural values.  

The authors, Hamsa Vijayaraghavan, Roshni Shanker and Vasudha Reddy, run The Ara Trust, India’s first and only centre for refugee law and forced migration studies. The Ara Trust assisted in the drafting of the Asylum Bill, 2015. They can be contacted at: office (at) aralegal (dot) in.