Does India Need A Refugee Law?

Refugee, Immigrants And IDPs

Before moving ahead, it is crucial to understand the difference between some interchangeably used terms in the present context. The terms refugee, immigrant and internally displaced people (herein referred as IDPs) may sound to bear similar meanings but are “quite different in their nature and scope. According to the Merriam-Webster Dictionary, refugee means “a person who flees to a foreign country or power to escape danger or persecution”^[6] and immigrant means “a person who comes to a country to take up permanent residence”^[7]. While the phrase “Internally Displaced People” is nowhere defined in the dictionary, United Nations High Commissioner for Refugees (UNHCR) defined IDPs as those people who have been forced to flee their homes by conflict, violence, persecution or disasters, however, unlike refugees, they remain within their own country. From the above definitions it can be inferred that refugees have no choice but to flee to a different country due to risk to their lives while immigration (whether legal or illegal) is voluntary as there is no imminent threat to life and liberty. While IDPs also suffer from the similar circumstances as that of refugees but they do not flee to another country. Just as the name suggests, IDPs are displaced within the territory of their country due to humanitarian crises. It is a sad situation that in many instances IDPs are referred to and treated as refugees. The example of the Bru People (also known as Riang) who are commonly found in the northeastern states of Tripura, Assam and Mizoram could be cited herein. Following the ethnic violence in 1997” many Brus from Mizoram fled to Tripura but they are in many instances referred to as the refugees instead of internally displaced people. The approach to handling refugees and IDPs by the state must differ, despite both groups often facing similar crises. For example, refugees are issued identification cards and not being citizens, may not be entitled to certain fundamental rights, such as the right to protest under the right to freedom of speech and expression. In contrast, IDPs, as citizens, are entitled to all constitutional rights, including those under the right to freedom of speech and expression and the right to vote.

UN Refugee Convention And The 1967 Protocol

The problem emerges from the fact that India does not have a definitive Refugee Law unlike its counterparts such as the U.S.A., Canada, and Germany among others. India is also not a signatory to the 1951 UN Refugee Convention or the 1967 Protocol on the Status of Refugees. The 1951 Refugee Convention and its 1967 Protocol are the key legal documents that form the basis of UNHCR's work. They define the term 'refugee' and outline their rights and the international standards of treatment for their protection. At present the primary documents dealing with the treatment of refugees in India are the Registration of Foreigners Act^[8], the Foreigners Act^[9], and the Foreigners Order.^[10] This means that refugees in India are treated as any other ordinary foreigner. Here, it is to be noted that despite India not being a signatory to the UN Refugee Convention or its 1967 Protocol nor having a definitive refugee law, it is bound by the non-refoulement principle. The non-refoulement principle prohibits States from deporting refugees when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment or other serious human rights violations. The Indian Constitution also indirectly provides protection to refugees through Article 21, which guarantees the right to life and liberty to all persons, including non-citizens.

The reason behind India not being a signatory to the 1951 convention or its protocol of 1967 could be traced from its policy of non-alignment during the Cold War.^[11] At that time national security concerns were placed above other obligations. Additionally, judicial interpretations, for instance, in the case of National Human Rights Commission v. State of Arunachal Pradesh^[12] ensured refugees' rights under Article 21 of the Constitution. But again, these aspects could not be left alone to the judicial interpretations.

Refugee, Illegal Immigration And The Northeastern States

Coming to the northeastern part of India, states like Assam, Tripura, Manipur and Mizoram face a unique challenge in the present context. These states share a porous border with Bangladesh and Myanmar. Even if we look at recent times, the military coup in 2021 in Myanmar has led to refugee movements and cross-border activities affecting Manipur and Mizoram in particular. Bangladesh has faced multiple phases of political instability, including military coups, authoritarian regimes including the Rohingya crisis, which has driven further refugee crises into regions like Assam and Tripura. Recently, the collapse of the Bangladesh government in August 2024 potentially affects the present scenario. This is substantiated by the reason that a state like Tripura is surrounded by Bangladesh from its all three sides. In addition to the challenge of refugees, these states suffer with the movement of illegal immigrants in search of better economic and social opportunities. To add salt to the wound, it is hard to distinguish between refugees who need genuine protection and illegal immigrants. It is to be kept in mind that the northeastern states are already resource constrained. A spike in refugee and immigrant population has also led to the indigenous population of states like Tripura becoming a minority in their own land which had resulted in insurgency problems in the past.

Many scholars have argued that India needs a definitive refugee law as early as possible and while such legislation is indeed necessary, the interests of the citizens especially the indigenous people residing in the northeastern states needs to be given due consideration. Refugee protection should carve out proper distinction between people who need genuine protection and those who have migrated illegally for other reasons. Under the Model Law on Refugee,^[13] to acquire refugee status, an individual must demonstrate the existence of a well-founded fear of being persecuted for reasons of race, religion, nationality or membership of a particular social group or political opinion. This definition may help in identifying the refugees and illegal immigrants but even though the model law acknowledges the need to protect refugees but does not adequately consider the impact of large-scale refugee inflows on local populations as it lacks provisions for the equitable distribution of refugees across different regions, resulting in disproportionate demographic and resource pressures on smaller, border states like Tripura and Assam. Additionally, a developing country like India shall not be given the burden of another country's failure to provide better living conditions to its citizens which has contributed to illegal immigration.

Need For A Refugee Law

With great power comes great responsibility and with great discretionary power comes its arbitrary misuse. In absence of any definite law and guidelines for the treatment of refugees and illegal immigration in India, the government possesses great discretionary power for treatment of refugees and other categories of immigrants. For instance, according to Article 7 of the Constitution^[14] those who have migrated to India from Pakistan on or before the nineteenth day of July 1948 shall be deemed to be an ordinary resident of India since the date of his immigration. It can be seen that the government showed leniency in granting citizenship to the victim of partition by setting a cutoff date. Nevertheless, section 6A of the Citizenship Act, 1955, which was inserted in 1985 to give effect to the Assam Accord, had prescribed a different cutoff date for immigrants who have entered Assam before 1971. In addition, the government introduced the Citizenship (Amendment) Act, 2019 (CAA) which provided citizenship to non-Muslim refugees from Afghanistan, Bangladesh, and Pakistan who entered India before December 31, 2014. CAA has faced criticism for excluding Muslim immigrants, raising concerns about discrimination and constitutional violations. It has also faced backlash from the northeastern states especially Assam and Tripura for not considering the impact of this amendment on their unique culture and demography.^[15] The aforementioned instances point out towards the treatment of immigrants by the government based on its own discretion.

In absence of a definitive law, such discretionary and often discriminatory practices are prone to occur more frequently in coming days keeping in mind the instability of the neighbouring region like Bangladesh and Myanmar. This fear among the indigenous community has also led to movements like the demand for Greater Tipraland in Tripura and the subsequent signing of the Tiprasa Accord, 2024^[16] between the Central Government, the State Government of Tripura, and the Tipra Motha Party, led by Maharaja Pradyot Bikram Manikya Debbarma. The accord sought to protect the indigenous tribal population against perceived demographic and cultural dilution due to migration from Bangladesh. However, critics have raised concerns over the accord's vague provisions, lack of clarity on implementation, and its failure to address key demands such as the demand for Greater Tipraland.

It is to be understood that man by virtue of their existence always looks for a better opportunity, be it in the economic or the social context. This has significantly contributed to illegal immigration in India. Refugees from Bangladesh constitute the largest contingent of refugees on Indian soil. The problem started in Bangladesh as early as 1946 when the communal tensions in Noakhali of East Bengal broke out. Subsequently during the partition, the common people fell victim to communal violence. The migration of people from Bangladesh to India continues till this date. But now the migration is mostly illegal, influenced by the better social and economic opportunity and not the fear of persecution. However, the breakdown of democratic government in Bangladesh in 2024 and the political and social instability that could be seen has once again escalated the migration of refugees in Assam and Tripura in fear of persecution. Though the number of illegal immigrants crossing the border in recent years is undocumented, the numbers are not less.

Therefore, a refugee legislation that balances protection of refugees and the national interest which includes protection of its own indigenous minorities is the need of the hour. People crossing the border in fear of persecution in their home country must be protected but those crossing the border for other reasons needs to be identified and deported. The recent mistreatment Indians by US and sending back them in chains to India has shown lack of dignified and human rights oriented approach by US. India, given its cultural ethos should be a model country in treatment of foreign citizens. Additionally, refugees should be allocated proportionally across the country. Small and resource constrained states like Assam and Tripura should not be solely burdened with the responsibility of accommodating refugees at the cost of demographic changes and the strain on their resources.

The author is an Advocate at Delhi, views are personal