Like many other countries in South Asia, India is neither party to the 1951 Convention Related to the Status of Refugees (hereafter 1951 Convention) nor the Protocol Relating to the Status of Refugees 1967 (hereafter 1967 Protocol).^[1] India’s position on non-ratifying the convention and the protocol is despite considerable refugee flows in the South Asian region (Field et al 2017: 7).^[2] Since independence in 1947, India has witnessed large-scale inflow of refugees. The inflow can be attributed mainly to the political stability and societal diversity of multi-ethnic and multi-cultural character of the country (Nair 1997: 201). While, for its part, India hosted refugees from various ethnic, religious and cultural origins from the neighbouring countries of South Asia, Middle East and Africa, it remained disinterested in enacting a national legislative framework (domestic law) to deal with the issue of refugees. This leaves India without a cohesive national refugee policy to identify and determine refugees based on specific common standards and principles.

There is more than one reason for India’s reluctance to sign the international treaties and adopt a national refugee law. For one, signed treaties make it legally binding on the parties to not force the refugees against their will to return to their homes (Barber 2014: 2) and mandate host nations’ cooperation with United Nations High Commissioner for Refugees (UNHCR).^[3] However, India was reluctant to accept any such mandatory responsibilities for it felt that would encourage more refugee inflow. Further, India has had concerns about the excessive inflow of refugees affecting internal security and the demographic character of Indian states (Chimni 1994). Moreover, it can be argued that like other states in South Asia, India prefers "bilateralism" over "multilateralism" in matters of conflicts and population movements (Chimni 1994; Oberoi 1999). This is due to the fear of internationalising the refugee issue and its potential to invite international criticism and unnecessary external interventions in India’s internal matters (Weiner 1993; Chimni 1994).^[4] India also views the definition of refugees in the convention and protocol as restrictive in nature and Eurocentric. (Vijayakumar 2001).  

In the absence of a legislative framework, India’s asylum regime has been following a subjective, case-to-case basis, ad-hoc refugee policy. This regime applies to refugees the Foreigners Act, 1946 that empowers the union government to regulate foreigners' entry, presence and departure in India (Sarker 2017). However, the act makes no distinction between foreigners and refugees. It defines a "foreigner" as anyone who is "not a citizen of India."^[5] The apparent implication has been the egregious dilution of the status of refugees as a separate category having special rights and entitlements. Further, inherent to this framework is more discretionary powers in the hands of politicians and bureaucracy leading to discriminatory treatment of refugees (Sarker 2017).

A virtual consequence has been the frequent intervention of domestic politics and political ideologies in deciding the status of refugees and their rights.^[6] For instance, the Indian National Congress (INC) enacted the Illegal Migrants (Determination by Tribunals) Act of 1983 apparently to provide undue relief to Bangladeshi migrants in harnessing migrants’ support for the party for forming governments in the state of Assam.^[7] The discretionary approach also leads to differential standards in treating refugees based on political considerations and refugees’ country of origin (Chimni 1994: 394; Nair 2007: 1; Cederlöf and Das Gupta 2016). Relatively better treatment of Tibetan and Sri Lankan refugees compared to others is a case in point (Chimni 1994), not to say that the treatment varies even between these two groups (Ahmed 2022). Moreover, lack of refugee law tends to obscure the distinction between illegal migrants and refugees to the extent that often any "debate on protection of refugees has become more intractable due to the fact that it has been conflated with the highly charged public discourse on the alleged influx of 'illegal migrants' into India" (Bhattacharjee 2008: 1).

Why India Needs to Do More for Myanmar Refugees?

Human rights and constitutional responsibilities

Human rights are certain basic, inalienable rights that every individual enjoys by virtue of being a human. However, although they are supposed to be universal, proper adherence to this normative claim of universal nature is implausible without cooperation between states. And fundamentally, the protection of human rights is envisaged within an existing state structure, and it is the responsibility of governments to protect human rights. It means that the protection of human rights is enjoined upon the domestic institutional framework of states. However, enforcement of human rights legally is a difficult task mainly because of a lack of consensus among states and often lethargic and poor implementation regimes (Hathaway 1991).

The relations between human rights and refugees are closely interlinked. While refugee rights are derived from international law, including treaties, customs, or general principles of law (Hathaway 2005), the latter is also at the core of promoting and facilitating human rights protection. Moreover, human rights are "universally recognized standards of behaviours," and "the violation of these standards by states, or other agents" may constitute the condition leading to the creation of refugees (Gorlick and Khan 1997: 39). Well-acknowledging these relations, "complementary protection"^[8] has recently come into existence (Chetail 2014: 20). Complementary protection rests on the commitment to humanitarian and human rights principles. However, for the sanctity of human rights to be upheld in letter and spirit, it is generally suggested that along with international human rights law, parallel municipal laws have to be put in place. In the Indian context, the Constitution has recognised and incorporated certain fundamental human rights and freedoms for every individual. 

The Indian Constitution is the foundation for human rights protection in India. In fact, "the rights recognised in the Universal Declaration are mirrored in the Indian Constitution" (Human Rights Commission 2006: 7). The Constitution has incorporated international human rights principles and standards and has been a guiding force in dealing with refugees and their rights.

The Constitution guarantees a set of fundamental rights and freedoms that to all persons irrespective of their status as Indian or foreigner, including protection in respect of conviction for offences (Article 20), right to education (Article 21A), prohibition of traffic in human beings and forced labour (Article 23), prohibition of employment of children in factories (Article 24), and freedom of religious practice (Article 25). Besides, there are precedents in the form of judicial pronouncements stressing the need to provide refugees with humanitarian protection (Bhattacharjee 2008).  The Supreme Court of India has invoked Articles 14^[9] and  21^[10] of the  Constitution to provide protection to refugees (Sarker 2017: 16). For instance, in National Human Rights Commission v State of Arunachal Pradesh,^[11] the Supreme Court stated that the Indian government must protect the constitutional rights under Articles 14 and 21 of all, including non-citizens. In Digvijay Mote v Government of India and others, the Karnataka High Court directed the state of Karnataka to provide humanitarian assistance to a boarding school run for refugee children from Sri Lanka.^[12]

Moreover, Indian courts have also invoked the principle of non-refoulement^[13] and allowed the refugees to secure refugee status from the UNHCR (Vijayakumar 2000). In the cases of  Malvika Karlekar^[14] v Union of India and N D Pancholi v the State of Punjab,^[15] Supreme Court held that refugees should not be deported before the UNHCR decides their refugee application. In Zothansanguli v the State of Manipur^[16] and Bogyi v Union of India,^[17]  Gauhati High Court stayed the deportation of Burmese refugees. It issued orders permitting the refugees to seek refugee status from UNHCR. In addition to the courts, National Human Rights Commission successfully sought the protection of Chakma refugees as they approached the Supreme Court under Article 32^[18] of the Constitution  when local politicians threatened their life and security in Arunachal Pradesh (Bhattacharjee 2008: 73).

   International Commitments

Although not a party to the 1951 Refugee Convention and the 1967 Protocol, India is a party to the main international human rights conventions (Seiderman 2004: 151). India has acceded to the International Covenant on Civil and Political Rights (ICCPR)^[19] and the International Covenant on Economic, Social and Cultural Rights (ICESCR).^[20] Further, it has ratified the Convention on the Rights of the Child (CRC),^[21] the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)^[22] and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).^[23] This body of rights prohibits discrimination based on race, sex, colour, religion and national origin and offer protection of peoples’ political, economic, social and cultural rights and special rights of the children. As stipulated in the covenants, these rights are provided to everyone, beyond any nationality differences. Through ratification, it has become binding on India to conform to the provisions of the covenants. It is also binding on India to ensure that domestic laws align with the conventions.

In addition, India, as a member of the UN, adopted the Universal Declaration of Human Rights on 10 December 1948. Article 14-A of the UDHR states: "Everyone has the right to seek and enjoy in other countries asylum from persecution. Similarly, Article 3 of the Torture Convention – 1984 says: ‘No state party shall expel, return (“refouler”) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture." However, while India’s status as a mere signatory and not ratifier makes it legally non-binding on India, going against the convention's provisions would set a bad precedent on India’s earlier intentions towards adhering to the convention expressed by signing the convention (Choudhury 2018).

Furthermore, "the principle of non-refoulement has arguably acquired the status of jus cogens, a peremptory norm of general international law" (Saxena 2007: 261). Therefore, derogation is not permitted (Allain 2001: 538–39) unless there is substantial evidence of refugee’s involvement in serious crimes that threaten the host state’s national security and sovereignty.^[24] Further, adherence to international laws, treaties and conventions is strengthened by the Constitution  as mandated by Article 51(C), which states that "the state [India] shall endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another."

Thus, although by no means exhaustive, these international conventions, past domestic precedents, constitutional principles explain the nature and scope of India’s obligations. Fundamentally, these are directives to ensure respect, protection and fulfilment rights of refugees that now enjoins upon India to do more in the prevailing situation for the protection rights of Myanmar refugee.

Conclusion

India’s asylum granting has never been consistent and homogeneous; rather, it has been complicated and political due to the lack of national refugee law and India’s non-ratification of the 1951 Convention and the 1967 Protocol. However, India’s various judicial pronouncements, constitutional principles and international conventions suggest that India has obligations and responsibilities to protect refugees. Moreover, India’s rising global profile today renders it greater responsibility to demonstrate fulfilling these obligations and responsibilities. Therefore, even if India faltered in the past, it should address the current crisis in a more humanitarian manner.