Editorials Today – A critical analysis of India’s Asylum policy

 

Asylees and refugees :-Asylum is an expansive institution of protection, refugees are a narrow category of people. An asylee need not be a refugee.

Current status of refugees in India:-According to the UNHCR, there were 204,600 refugees, asylum seekers and “others of concern” in India in 2011.

Status of India’s Refugee policy:-India does not have a domestic asylum law.

Legal status of Refugees in India:-India’s approach towards refugee differs case by case basis.

Issues in providing asylum:-As international laws on Asylum are unclear, there are doubts regarding providing asylum.

Why India should not sign the convention:-India already has one of the biggest refugee populations in South Asia that too without any major UN assistance.

Why India should sign the treaty:-Absence of any policy or framework on the treatment of refugees renders them vulnerable in finding work.

Would ratification of the Convention affect India anyway?India will be bound by law not to repatriate a single refugee against their will. It’s known as the non-refoulement principle (No forcible repatriation).

Why Uniform Asylum law:-To deal with the problems effectively India must come up with a Uniform Asylum law.

Why no need of uniform asylum law:-Laws should vary for different set of people as the nature of refuge can vary.

Citizenship bill, 2016:- Bill amends the Citizenship Act

A critical analysis of India’s Asylum policy

Recently BrahamdaghBugti’s request for asylum in India has forced India to go through it’s current asylum policy.

Asylees and refugees

• Asylum is an expansive institution of protection, refugees are a narrow category of people. An asylee need not be a refugee.
• Asylum has no defining criteria other than the willingness of a state to grant it.
• Refugee status is narrowly defined. The UN’s Refugee Convention of 1951 links refuge to persecution on racial, religious, national, social, or political grounds.
• Although Asylum and refugee status are different concepts, the terms are often used interchangeably.

Current status of refugees in India         

India is home to diverse groups of refugees like

• Buddhist Chakmas from the Chittagong Hill Tracts of Bangladesh,
• Bhutanese from Nepal,
• Muslim Rohinygas from Myanmar and
• Small populations from Somalia, Sudan and other sub Saharan African countries.
• According to the UNHCR, there were 204,600 refugees, asylum seekers and “others of concern” in India in 2011.
• Of them, 13,200 people are from Afghanistan, 16,300 from Myanmar, 2,100 from various other countries and the two older populations of around 100,000 Tibetans and 73,000 Sri Lankan Tamils.

Status of India’s Refugee policy

• India does not have a domestic asylum law.
• There is no structured and institutionalized framework for addressing refugee inflows.
• India has not signed the UN Refugee Convention of 1951 yet.

Legal status of Refugees in India:-

• Presently, while Indian government deals with asylum-seekers from Tibet and Sri Lanka, the office of UNHCR in New Delhi deals with asylum-seekers from other countries.
• Since Indian law does not even mention the term ‘refugee’, there are no clearly defined rights and duties for refugees.
• India’s approach towards refugee differs case by case basis.
• For example, while Sri Lankans and Tibetans have government-issued IDs, the vast majority of Afghan and Burmese refugees have only the documentation given to them by the UN, which is not widely recognized.
• Hence it is not yet clear that how India would approach to deal with the asylum seekers.

Issues in providing asylum

• International laws on asylum are unclear.
• International law only states that a person needs to be outside his/her own country to seek asylum.

While it is silent on the following issues:-

• Whether a person need to be physically present at the country where he is seeking asylum.
• Whether a person can apply for asylum from a third country.

Doubtful background of the asylum seekers hinders the process of granting assylum

• For Ex. Mr. bugti’s application was turned down in Switzerland previously as his party being put on a terror watch list by Pakistan.

A fundamental principle of international refugee law is to not grant asylum to the person involved in the activities like:-

• Crimes against humanity
• War crimes,
• Serious non-political crimes, and so on.

Hence India would need to ensure that any asylum seeker has not been involved in any of such activities.

India has neither signed 1951 United Nations Refugee Convention nor its 1967 Protocol

Why India need not to sign the convention:-

• India already has one of the biggest refugee populations in South Asiathat too without any major UN assistance.
• Borders in South Asia are extremely porous and any conflict can result in a mass movement of people.
• India being an already densely populated country would not be able to handle the influx of large no. of refugees.
• It can result in strain on local infrastructure and resources in countries that are poorly equipped.
• Another possible drawback is that it can upset the demographic balance, a tinderbox in South Asia.
• Skepticism about the UNHCR role, since 1971 Bangladeshi refugee crisis due to 2 reasons:-
  1. UNHCR began talking about the need for repatriation of refugees
  2. Visit by the UNHCR high commissioner, Sadruddin Agha Khan, on the invitation of Pakistani president Yahya Khan in Bangladesh.
• UN’s definition of refugees sets the bar for protection too high for ordinary people for whom proving targeted persecution is difficult.

Why India should sign the treaty:-

• Absence of any policy or framework on the treatment of refugees renders them vulnerable in finding work.
• They become prone to exploitation by unscrupulous businessmen because they remain unintegrated.
• There are evidences that prove, refugees have been forced to work as bonded laborers under very difficult conditions.
• In the absence of any domestic law or regional South Asian framework, India has desisted from taking its rightful regional leadership role in this increasingly critical matter.

Would ratification of the Convention affect India anyway? 

• India will be bound by law not to repatriate a single refugee against their will. It’s known as the non-refoulement principle (No forcible repatriation).
• But another fact is that India is already bound by this principle as India is already a signatory to 1984 Convention against torture.
• There are very few instances when India forcefully repatriated  refugees like Sri Lankan Tamils were repatriated from camps in Tamil Nadu after 1991 assassination of Rajiv Gandhi.

 

Why Uniform Asylum law

• To deal with these problems effectively India must come up with a Uniform Asylum law.
• It would allow for the codification of India’s best practices with respect to asylum.
• In turn it would eliminate the need to revisit its historical policies each time.
• A national asylum law would also reduce the need for parallel mechanisms.
• And it would put in place a structured system for asylum management in the future.
• A law will regularise the stay of refugees from Tibet and elsewhere who fled persecution and conflictin India and guarantee essential freedoms.
• By putting in place a refugee policy, all refugees in the country will be given an opportunity for a fair hearing.

Why Asylum law need not to be uniform

Laws should vary for different set of people as the nature of refuge can vary, like:-

• Victims of targeted persecution are individually protected.
• Large groups fleeing war are protected as a group, and
• People displaced by natural disasters are given transient protection.

Government should be provided with the discretionary power in this regard so that it can provide political asylum regime for people like Mr. Bugti as well as a mandatory refugee regime to ensure humanitarian protection.

Government Initiative:-

Citizenship bill

• Bill amends the Citizenship Act so that Hindus, Sikhs and other minorities of these nations could be granted citizenship even if they do not provide required documents.
• Bill proposed for the minimum years of residency in India to apply for citizenship to be lessened from at least 11 to six years for such migrants.
• Bill also seeks to cancel the registration of Overseas Citizen of India (OCI) cardholders if they violate any law.