If India wants to be a leader of the Global South, it must enact a refugee protection law

The issue of refugees and migrants has taken centrestage in international politics and has become a contentious issue in India as well. The root of the controversies in India is due to the misconception that because India is not a signatory to the United Nations Convention on Refugees, 1951, the country has no obligations towards those foreigners who seek asylum here.

It is true that India is not a signatory to the UN Refugee Convention. The reason is historical and largely irrelevant. The convention is a document born during the Cold War and most Third World countries saw it as a document supporting western foreign policy objectives.

Despite not being a signatory to the convention, India has always recognised a class of foreigners who were “refugees” and given them protection even if they had no legal travel documents such as passports and visas. Over the decades, India has hosted Tibetans, more than ten million refugees from East Pakistan and Tamils from Sri Lanka.

UNHCR and India

Although not a state party to the 1951 Convention, India was one of the founding members of the United Nations and it has always strongly supported the purposes and principles of the organisation. India has made significant contributions to implementing the goals of the charter and the evolution of the United Nations’ specialised programmes and agencies.

In 1981, India welcomed the United Nations High Commissioner for Refugees to open its offices in New Delhi and Chennai.

The government of India has hosted those seeking international protection over decades and made commitments at various multilateral forums, including the Global Refugee Forum. The Global Compact on Refugees, adopted by the UN General Assembly in 2018, is a framework for more predictable and equitable responsibility-sharing, recognising that a sustainable solution to refugee situations cannot be achieved without international cooperation.

More importantly, India is also a member of the Executive Committee of the High Commissioner’s Programme or Ex Com. This committee meets annually in Geneva to review and approve the agency’s programmes and budget, advice on international protection and discuss a range of other issues with the UNHCR and inter-governmental partners.

India has been a member of this committee since 1995.

In the annual meetings, the Indian delegates have praised the work of the UNHCR.

In India, the refugees can be divided into two broad categories: (a) those who have been recognised as refugees under the mandate of the UNHCR and (b) those who have not approached the UNHCR. Many in this category are living on the international borders, especially on the India-Myanmar border.

UNHCR refugees

In the past when a person was recognised as a refugee under the mandate of the UNHCR, they could go to the Foreigners Regional Registration Office, which would give them either a residential permit or a Long Term Visa.

Indian courts had been sympathetic to the plight of refugees and generally stayed the deportation of a refugee by reading the core principle of refugee law, the right against return or refoulement into the right to life. All persons living in India, including foreigners, have a right to life under Article 21 and a right against arbitrary use of power under Article 14 of the Indian Constitution.

In consonance with international standards and the orders and judgements of the courts, including the Supreme Court, the Foreigners Division of the Ministry of Home Affairs drafted guidelines to deal with foreign nationals who claim to be refugees. (Memo no 25022/34/2001-F.IV dated December 29, 2011.)

The guidelines stated that if the FRRO found that there was a prima facie case of a person claiming asylum had fled his country due to a well-founded fear of persecution on account of race, religion, sex, nationality, ethnic identity or membership of a social group then the office could recommend to the Ministry of Home Affairs that the refugee be given a Long Term Visa. There was a provision for consultation with the UNHCR for resettlement options.

This was the first step towards developing a domestic refugee protection law. In 2019, the Standard Operating Procedures were amended a little. (Memo no 25022/34/2001-F.IV dated March 20, 2019.)

In 2020, when Abani Roy, an MP from West Bengal, asked in Parliament whether the government was proposing to draft a law for refugee protection, Minister of State in the Ministry of Home Affairs C Vidyasagar Rao replied in the affirmative.

Two years later, in 2022, the government asked the National Human Rights Commission to draft a domestic refugee protection law.

The commission started having consultations, both online and offline, with the authorities concerned.

Earlier this year, India passed the Immigration and Foreigners Act. The act is aimed at dealing with illegal migrants. In the absence of a refugee protection law, the police have been arresting illegal migrants and refugees. Refugees say that if they show their UNHCR identity cards to the police, they are told that Indian law does not recognise the agency.

Most recently the police has been detaining African refugees in New Delhi. Men have been torn away from their families, leaving the women vulnerable to exploitation, financial and sexual. The detentions have disrupted the lives of African refugees who have fled from conflict zones such as Sudan, Somalia and Yemen and have lived peacefully in India.

These arrests are against the Standard Operating Procedures on dealing with refugees.

Climate of fear

Many of the refugees have been detained in a facility in Delhi’s Lampur area. Others are avoiding the police, afraid for their families. The UNHCR is unable to protect them and they have nowhere to turn to. In one case, a refugee did move a writ petition before the Supreme Court, which referred the matter to the National Human Rights Commission.

The National Human Rights Commission is the only forum capable of protecting refugees and upholding their rights under Article 14 and 21 of the Constitution of India and of upholding India’s international obligations under international human rights law – which includes the right to asylum.

However, the question of refugee protection is also linked to Indian democracy and democratic institutions. Almost no media outlets reported on the issue of African refugees being grabbed off the streets and torn away from their families. Indian civil society was largely indifferent, although three MPs did write to Prime Minister Narendra Modi to take note of the plight of the African refugees.

In this atmosphere of silence and indifference, the police abuse of power has gone unchecked and the integrity of the institution of the Foreigners Regional Registration Office has suffered because of allegations that bribes can buy a visa.

It is most unfortunate that even Supreme Court judges have been making remarks about refugees and even the UNHCR that are inconsistent with international law and against India’s stated commitments to international human rights standards.

The government of India has, in recent times, launched a campaign against illegal migrants, mainly from Bangladesh and Myanmar. This campaign has resulted in widespread human rights violations of the migrants as well as refugees.

The problem of migrants and refugees is inter-related but the two categories of foreigners are different. Under the United Nations system there are two separate agencies dealing with them: the International Migrants Organization deals with border migration management while the United Nations High Commissioner of Refugees deals with refugees. This article relates only to refugees.

The issue of refugee protection goes to the heart of international solidarity and principles on which the United Nations was founded. As the 80th anniversary of the founding of the United Nations approaches on October 24, if India wants to be a leader of the Global South, it must enact a domestic refugee protection law.

Nandita Haksar is a lawyer and author. Her most recent book, co-authored with Soe Myint, is Military Rule in Burma (1988-2024): Story of Mizzima Media: Born in Exile, Banned in Myanmar.