India is a home of millions of refugees and asylum seekers such as Tibetans, Afghani, Burmese, Pakistani, Bangladeshi, Sri Lankans and Africans. In past, Antonio Guterres, United Nations High Commissioner for Refugees(UNHCR) has applauded India’s refugee’s policy. In fact, Indian hospitality of welcoming foreigner is rooted in ancient Indian tradition of ‘Athithi Devo Bhav’ meaning Guest is (our) God.
However, recent threat by the Indian government to deport 40000 Rohingya, including UNHCR recognised refugees, is not only breach of its International human rights obligations-particularly the principal of non-refoulement- but also, violate old tradition of providing shelter to those seeking refuge on the Indian shore.
The United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, in his speech at the UN Human Rights Council’s 36th session in Geneva, had deplored the Indian decision to “carry out collective expulsions” and “return people to a place where they face persecution.” Indian response to the UN Commissioner has been ‘typical’ and traditional. India just like its neighbour Thailand and Bangladesh (who are also not signatory of 1951 Refugee Convention) invoked its concern for “national security” to justify Rohingya’s deportation. This has questioned about India’s intention/willingness to protect human rights of its refugee populations within its jurisdiction.
India has not signed 1951 Refugee Convention (which is legally binding principals for refugee protection) and, there is no specific domestic legal framework to protect the rights of refugees and asylum seekers in India. This has led to legal insecurity of refugees’ status and difficulty to access in refugee rights. Due to the absence of specific laws related to refugees and asylum seekers; they are regulated under the Foreigners Act, 1946. However, problem with this act is, it does not take special situation of refugees and refugees’ rights and treats refugees and asylum seekers with tourist, illegal immigrants, economic immigrants alike.
Indian legal framework has no uniform law to deal with its huge refugee population, it chooses to treat incoming refugees based on their national origin and political considerations, questioning the uniformity of rights and privileges granted to refugee communities as per the international human rights conventions and UN treaties. This results in unequal treatment towards refugee groups. This treatment is reflected in how refugees from China are well received compare to refugees from Myanmar in India.
Though recently, Indian Citizenship laws have been amended to accommodate specifically Hindu refugees from Pakistan and Bangladesh, ignoring other groups of refugees in need of protection. This step of Indian government seems motivated by the nationalist politics rather than humanitarian concern as many have blamed.
Refugees from Myanmar and Somalia are often ignored by the Indian policy makers, since these nationals do not serve geo-political purpose, as refugees from China (or share ethnic similarity as in the case of Hindu refugees from Pakistan and Bangladesh). There is hardly any concrete legal protection measures for Rohingya refugees in India even though they have been declared genuine refugee by the United Nations.
In the absence of specific refugee policy, Indian government takes administrative decision on ad hoc basis keeping the national security in mind, however, ad hoc decision is more guided by the national security, and foreign affairs- as observed in Rohingya case where due to Prime Minister Narendra Modi’s visit to Myanmar; a threat of deportation have been issued to 40000 Rohingya refugees staying in India to appease political leaders of Myanmar.
However, India is a signatory to various international treaties and conventions relating to universal human rights and refugees such the Universal Declaration of Human Rights, and the International Convention on Civil and Political Rights. Thus, for India, it is imperative to exercise consistency in the application of refugee law and regional politics shall be avoided. The current ad hoc arrangement dealing with refugees based on administrative, political and economic calculations, do not meet international standard of refugee protection. The principle relating to refugees in international law needs to be recognised in the Indian law — that of non-refoulement, which means non-expulsion or non-extradition to the place from which the refugee has fled as long as the compelling circumstances for fleeing persist.
States do not subscribe to an adapative approach towards the sensitive human rights issues like refugees and minorities may find themselves increasingly isolated by the world community. Failing to adopt any asylum legislations does not free a country for its human rights obligations under treaties to which it is party or, indeed, under customary International law. States can not use national legislation to reduce their human rights obligation.
Protection of refugees and asylum seekers shall be guided by the humanitarian concerns rather than matter of foreign affairs, national security and narrow politics of vote bank. If India is serious to claim its permanent position in United Nations Security Council and wants to provide able leadership to the world, then it must set good example in South Asia by providing a secure legal protection to its refugees and asylum seekers particularly to Rohingya refugees who are in dire need of protection.
My name is Amit Singh. I am a human rights researcher, writes human rights column in The Oslo Times, The Citizen, and is Editor-at-Large at the Different truths. I am also a doctoral candidate in human rights program at the University of Coimbra, Portugal. I write on religious conflict, refugees, discrimination and on multiculturalism.