Introduction
On 18 July 2024, twenty seven Cameroonian asylum seekers were granted asylum by the US government after undergoing human rights abuses and displacement, in the US and Cameroon. They had been sent back to Cameroon despite clear threat of facing prosecution on returning, thus violating the international law principle of non-refoulement.
Similarly, there have been various instances of deportation of asylum seekers from India such as the instance of the Rohingyas. Therefore, revisiting the study of India’s asylum law becomes imperative. Through this article, the authors explore the need for a uniform asylum policy in India and argue that the current framework is both inadequate and unprincipled. In the next sections, we will first analyse the current framework for handling refugees, and then trace some positive developments that were incomplete, and then suggest some principles on which the Indian asylum policy should be based. The article is not conclusive, rather an attempt to initiate a conversation on a largely neglected topic.
Navigating the Uncharted: India’s Approach to Refugee and Asylum Law
India lacks a specific regulatory framework for dealing with refugees and asylum seekers. It is neither a signatory to the 1951 Refugee Convention nor the Protocol Relating to the Status of Refugees of 1967. Additionally, India lacks a comprehensive domestic law governing asylum and refugee protection. The decision to steer clear of the 1951 UN Convention was taken on grounds of strategic flexibility and retaining sovereignty. India is not keen on signing up for any international rules that might cramp its style when managing borders or dealing with refugee crises. With neighbours such as Afghanistan and Myanmar perpetually in political turmoil, India prefers to handle refugee inflows case-by-case.
India’s lack of an asylum policy can be traced to its colonial history, national security concerns, and political dynamics. Post-independence, the government prioritized social stability and often viewed refugees as threats to national security. The country juggles its refugee policy based on some other pieces of legislation, constitutional sections, executive orders, and international treaties to decide the fate of refugees and those seeking asylum. The Standard Operating Procedure primarily involves the granting of long-term visas to individuals recognized as refugees by the United Nations High Commissioner for Refugees (“UNHCR”), providing them with legal stay, access to public services, and protection from deportation.
Any group of refugees that the government wants to deport can be labelled as trespassers or illegal immigrants under the Foreigners Act 1946 or the Passports Act 1967, under complete executive discretion with no judicial oversight. This was seen in the case of Rohingyas who were deported despite the UNHCR verification. The government has previously claimed that the Rohingyas are a security threat and has tried to deport them to Myanmar where violence continues – violating the principle of non-refoulment which prohibits returning refugees to places where they face threats to life and freedom, ensuring their protection from persecution.
If a new influx of asylum seekers were to arise in India, legal frameworks such as the Registration of Foreigners Act 1939 and Foreigners Act 1946 would take the baton. Article 21 of the Constitution of India, coupled with the principle of non-refoulement fail to be given due weightage as they are not codified into an asylum policy. The same was reiterated in the case of Dongh Lian Kham vs Union of India, where the SC stated that:
“It is the decision of the Union Government and FRRO to permit or not to permit a refugee to stay in a country or to grant or not to grant long term VISA in the first instance or its extension on a year wise basis. The Fundamental Right of a foreigner/refugee is only confined to Article 21, i.e. the right to life and liberty and does not include the right to reside and settle in India, which right is only applicable to the citizens of the country. The power of the Indian Government to expel foreigners is absolute and unlimited and there is no provision in the Constitution of India or other law, putting fetters on the aforesaid discretion of the Government.”
India deals with refugees on ad-hoc and cohort-based approach, with specific status granted to distinct groups like Tibetans (in 1950s) and Bangladeshi (in 1971). As this ad-hoc approach lacks a formal legal framework, it gives the Indian executive a wide ambit of powers for selecting who should receive protection, preferential treatment, or admittance, and for selecting who should be denied access or deported.
The 2015 Asylum Bill: A Progress in the Landscape of Asylum Policy
Attempts have been made to bring an asylum law into the picture, such as the introduction of the Asylum Bill, 2015 (“Bill”) as a Private Bill by Dr. Shashi Tharoor in the Lok Sabha which intended to put India “at the forefront of asylum management in the world.” The Bill however could not pass in the Parliament as it did not find favour with the Government.
Being the mark of progress that it was, the bill suffers from several shortcomings, including the lack of recognition for mixed migration, inadequate response to mass influxes, and a limited scope of protection categories. Equating asylum with refugee status in the Bill is flawed. While asylum refers to the process of seeking protection within a country’s borders, refugee status is an internationally recognized designation under the 1951 Refugee Convention. Asylum may result in various protections, but refugee status follows specific legal criteria and international obligations. Moreover, the bill does not propose institutions such as the National Commission on Asylum which would be autonomous and effective. In essence, the Bill intended to progress to a previously unaddressed arena, yet it lacked a comprehensive framework for the management of asylum in India.
Most recently, India passed the Citizenship Amendment Act 2019, which is the closest it came to policy change on refugees in the recent past; however, this policy provides Indian citizenship to refugees in a partisan manner based on faith. It, rather than being a beacon of hope for refugees, has sown seeds of discord. By excluding persecuted religious minorities like Jews, and Qadiyanis, as well as ignoring all other grounds of persecution such as political persecution, most clearly visible in the neighbouring countries, the Act inadvertently weakens the secular fabric, fostering discrimination and undermining the essence of inclusivity that refugee policies should embody.
The Fundamental Principles of the Asylum Framework
The authors propose that the following principles should be considered by any future asylum law. First, it must be acknowledged that asylum as a concept is complex; it introduces numerous issues to various types of persecution. Therefore, a one-size fits all standard cannot be made. The Bill must consider the intersectionality of persecution and the gradation in vulnerabilities of the asylum seekers and attempt to prioritize those at the bottom end of the vulnerability spectrum, by laying down some criteria rather than living it to the complete discretion of the executive. While political considerations are an inseparable part of any country’s asylum policy, the policy should be based primarily on care for human rights and the objective of protecting the prosecuted.
Second, the flow of refugees and other migrants is complex; refugees and migrants are diverse in the context of geopolitical, economic and social factors; hence, polices need to remain responsive. European Union’s response in 2015 including the EU-Turkey deal shows that beside dealing with the symptomatic issues, migration management practitioners must respond to the causes as well. Hence, India must play a more proactive role in solving the issue at the root of the asylum crisis such as the political situation in Myanmar and that in Afghanistan. This would also align with the Nehruvian vision of the country as the third-world leader having a crucial role to play in its neighbourhood.
Third, India’s ad-hoc approach in granting status places excessive power in the hands of the executive, allowing decisions to be made arbitrarily. This creates uncertainty and vulnerability for numerous large groups, as their recognition and rights may be subject to inconsistent or capricious judgments therefore this requires attention. Jordan and Lebanon’s registration systems and community programs during the Syrian crisis illustrate this approach, enabling efficient processing, resource allocation, and sustainable integration, fostering mutual support among refugees and host communities.
Fourth, as for the goal of immigration and asylum legislation, the broad objective is the management of asylum and the governing of refugees; Asylum legislation should prioritize refugee protection while establishing clear pathways for legal status and integration. Countries such as Sweden exemplify this approach, promoting stability and human rights, ultimately benefiting society and the economy through successful refugee contributions.
Conclusion and Way Forward
India’s asylum law is inadequate, lacking comprehensive regulation and policy guidelines to fetter the discretion of the executive. The question of asylum is addressed through old pieces of legislations, which lead to discriminatory practices, as seen with the Rohingyas. Recent attempts such as the Asylum Bill and Citizenship Amendment Act show partial progress but significant gaps remain. It is suggested that a comprehensive asylum law should be enacted which is aligned with international standards. Without such a framework, the government may issue asylum based on its whims and fancies. Thus, it should establish clear procedures for claims, protection measures, and rights of asylum seekers to ensure fairness and consistency.
Incorporating principles from international asylum and refugee law into India’s legal framework could transform the landscape of humanitarian protection. Key tenets such as non-refoulement, which prevents the return of individuals to life-threatening situations, and a fair hearing process for asylum seekers would enhance inclusivity, and a judicial enforcement of the said principles would ensure that India becomes a welcoming home for the persecuted individuals, at least in the South Asian region, where the other countries have also failed in enacting such a policy.
Yash Sharan and Abhishek Nande are second year students at HNLU, Raipur.
Ed Note: This article was authored by Yash Sharan and Abhishek Nande, from HNLU, Raipur. The piece was edited and coordinated by Hamza Khan and published by Baibhav Mishra from the Student Editorial Team.
