By Athik Saleh T
Introduction
According to UNHCR, there are close to 26.4 million refugees and asylum seekers in the world. Political and economic issues have forced many people out of their countries and have led them to seek shelter in other countries. Latest UNHCR data suggests that a major (86%) proportion of these refugees are housed in developing countries.
For a refugee or an asylum seeker, being in a developing country presents a different set of challenges. Their lives are full of question marks.
The biggest being – “what is my position in this country?” With the help of UNHCR and the hosting country, some of them try to make their living in the country they migrated to.
On the other hand, there are others who technically end up being illegal migrants as the host country do not want them within their boundaries and wishes to deport them to their country of origin.
India has over 2 lakhs of registered refugees or asylum seekers. The estimates of those who are not registered or are not accounted for is over 10 lakhs. They are considered illegal migrants and the state wishes to deport them.
In South Asia where the political situation in most countries is unstable at best and violent at worst, India is an exception. This has led to India becoming the most favored destination of those citizens of its neighbouring countries who are persecuted for various reasons.
The treatment meted out to the asylum seekers in India from its neighbouring states is varied. While some are considered desirable, others are not. The determination of who is desirable and who is not is purely ad hoc in India.
There is no proper legislation to determine the status of asylum seekers in India, and not being part of the International Convention and its Protocol doesn’t help either.
The judgement of the Manipur High Court in Nandita Haksar Vs State of Manipur[1] must be looked at in the light of the existing circumstances related to asylum seekers in India. The High Court, through its judgement has tried to open a new chapter for refugees and asylum seekers in India, in their fight for recognition with its judgement.
This article is an attempt to understand the treatment of asylum seekers in India and how the judgement of the High Court will turn a new leaf for those who seek a change in their status as illegal immigrants.
What is the Indian Policy with respect to Refugees and Asylum Seekers?
The 1951 Refugee Convention or its 1967 Protocol are the two documents that form the basis of the legal understanding of refugees. An overwhelming majority of countries in the world are signatories to either the convention or the protocol or both. India, however, is neither a party to the convention nor a party to its protocol.
India house one of the largest refugee populations in South Asia. However, the reality is that India is one of those few countries that do not have legislation to determine the status of asylum seekers or spell out the rights of refugees.
India’s determination of whether a group of asylum seekers deserved to be recognized as refugees has been ad hoc over the years. It has been welcoming towards some groups, but it has turned its back on others.
The Indian policy with regard to refugees is underlined by the wide range of powers that the Union Government enjoy. The main legislation that gives the Centre its wide-ranging powers is the ‘Foreigners Act, 1946’. This is another colonial-era legislation that has found favor with successive Indian governments after independence.
The unfettered power granted by the Foreigners Act is the foundation of the ad hoc refugee system in India. The act put all foreigners on the same pedestal. Be it a tourist or a refugee or a migrant or an asylum seeker, the Foreigners Act looks at all of them through the same eye.
It doesn’t take ito account the purpose of a foreigner being in the country. The act gives the Centre wide ranging powers including the power to compel foreigners to prove their identity, the power to compel them to present themselves in police stations, the power to confine them in camps, the power to deport them, etc.
The most alarming part of this legislation is that the Union Government can expel a foreigner with minimal judicial intervention. The constitutionality of the power of the Central Government to expel a foreigner was upheld by the Supreme Court in Louis De Raedt Vs Union of India[2].
In Hans Mueller Vs Supt., Presidency Jail[3], the Supreme Court was of the opinion that while proceeding with the deportation of a foreign national, it is not essential for the Centre to comply with due process.
At present, due to countless delegation and sub-delegation, even a mid-level police officer can ask a foreigner to leave the country without providing a proper reason.
The Indian policy on refugees and asylum seekers can be termed as one of strategic ambiguity. That is, in the absence of set domestic laws, the Government can determine who gets to stay in India and who doesn’t. This can be seen in the treatment meted out to different groups who took shelter in India due to persecution in their home countries.
For instance, the Tibetan asylum seekers were granted refugee status and were even allowed to form an ‘exile government’.
On the other hand, the Tamil asylum seekers from Sri Lanka who came to Tamil Nadu during the civil war in Sri Lanka were placed under constant and strict surveillance. Similarly, the Indian Government intend to deport the Rohingya asylum seekers from Myanmar.
Apart from the Foreigners Act of 1946, the Indian Government depends on legislation such as the Passport (Entry of India) Act of 1920, the Passport Act of 1967, the Foreigners Order of 1948, and the Registration of Foreigners Act of 1939. These legislations form the crux of India’s refugee regime.
The new Citizenship Amendment Act that was passed in 2019 and became law in 2020 turned a new leaf in India’s treatment of those persecuted in its neighbouring countries. The amendment seeks to protect those “illegal immigrants” from India’s three Muslim majority neighbors – Afghanistan, Bangladesh and Pakistan.
According to the amendment, Hindu, Buddhist, Sikh, Christian, Jain, and Parsi minorities from those countries who has come to India seeking asylum will be granted citizenship by naturalization in six years. The requirement of 12 years of residence was reduced by the amendment.
Along with Amendment, the Government intends to make a nationwide National Population Register to determine those immigrants who are staying in the country without the necessary documentation and deport them with the power it has.
The problem with this exercise is that India has a large number of undocumented asylum seekers who haven’t been able to approach the UNHCR office in New Delhi to submit an application. The chances of these people being detained by the authorities and being put in internment camps are high.
What is the Constitutional Position of Asylum Seekers and Refugees?
The Indian Constitution doesn’t explicitly mention asylum seekers or refugees. However, various commentators of the constitution have been of the opinion that Article 21 of the constitution contains the right of “non-refoulment”.
This is the right available to asylum seekers to not be sent back to their country of origin, the country in which they faced persecution based on race, birth, ethnicity, etc.
It is true that certain fundamental rights of the constitution are available to both citizens and aliens. Proponents of the rights of refugees and asylum seekers have always put their weight behind Articles 14 and 21. The position that Article 21 contains the principle of non-refoulment arises from the Gujarat High Court decision in Ktaer Abbas Habib Al Qutaifi Vs Union of India[4].
The fact of the matter however is that the Gujarat High Court did not really read the principle of non-refoulment into Article 21. Instead, the High Court only ordered the Government to re-examine its order of deportation on humanitarian grounds.
In the National Human Rights Commission Vs State of Arunachal Pradesh[5] judgement, the Supreme Court ordered the local authority to stop the harassment faced by a refugee community. The Court went for a literal interpretation of Article 21 and held that the word “person” in Article 21 includes foreigners as well.
This judgement doesn’t talk about non-refoulment either. It only says that foreigners enjoy limited protection under Article 21.
The Indian reality is that the protection of life and liberty by Article 21 doesn’t necessarily provide any right to asylum seekers. They can be detained and deported. There were times when the courts asked the authorities to follow procedural requirements but in truth, they were merely exceptions.
Constitutional challenges to the Government’s unfettered powers when it came to asylum seekers has always fallen on deaf ears. The courts have time and gain upheld the Government’s power to deal with asylum seekers.
Therefore, the judgement of the High Court of Manipur that let seven asylum seekers from Myanmar travel to Delhi and claim refugee status before the UNHRC must be looked at as the beginning of somewhat of a new chapter in India’s refugee regime.
Why is the Judgement in Nandita Haksar Vs State of Manipur a Watershed Moment?
It was only recently, April of 2021 to be specific, did the then Chief Justice of India Sharad Arvind Bobde remarked that it is not the duty of the Court to condemn or condone genocide and that the Court can’t help it if the Myanmarese asylum seekers think that they will be slaughtered if sent to back to their country[6].
The Supreme Court was of the opinion that international principles such as non-refoulment can be followed only till they do not contradict municipal laws as India is not a party to the treaty or its protocol.
The Court’s judgement was centered around the premise that the right to reside and settle granted by Article 19 is only available to citizens. The Court accepted the claim of the Government that the Rohingyas are a threat to national security as well.
It is in this background, only a few days after the order of the Supreme Court, did the High Court of Manipur did something that the Supreme Court refused to do. In Nandita Haksar Vs State of Manipur[7], by laying down that the principle of non-refoulment is prima facie a part of Article 21.
The Court, in its infinite wisdom, held that the far-reaching nature of Article 21 and various kinds of protection guaranteed by the said article would mean that it certainly includes the right of non-refoulment.
One of the most common arguments used by the Government to legitimise its stand regarding asylum seekers and refugees is that the refugees presented a threat to national security. This argument did find favour with the Supreme Court in Salimullah Vs Union of India[8].
The High Court, however, was able to see through this argument of the Government and was of the opinion that unless the Government can prove such a threat, the accusation is purely speculative.
The High Court also made sure that it was in no way going against the Supreme Court’s order in Salimullah Vs Union of India[9] by saying that the order of Supreme Court was only an interim one and that the putative basis of the Supreme Court’s judgement, a threat to national security, was not applicable in the present case.
By reaffirming that principle of non-refoulment as a part of Article 21, the High Court has given hope to the countless asylum seekers who were under the threat of being deported to the same country in which they faced threat to their lives. It is not just the judgement of the Court that stands out in its wisdom but the way the Court disposed of the petition also needs to be appreciated.
The importance of this judgement is manifold in the light of the interim orders of the Supreme Court that was in favour of the Government’s decision to deport the Rohingyas to Myanmar.
Conclusion
In a world where movement between countries (both forced and otherwise) at a level that was never seen before, regulating all classes of foreigners with a single law that places all of them in one category, without paying any heed to the reason of their being in India, is nothing but laughable at best.
The only reason why India still hasn’t developed a comprehensive legal regime to address the issues of refugees and asylum seekers despite it housing million of them is because of the unfettered power it enjoys under the present regime.
The judgement of the High Court of Manipur is certainly a watershed moment in the fight for the rights of asylum seekers in India. However, it is only a start. The Supreme Court still hasn’t passed its judgement on the same issue filed before it in 2019. No one can predict the direction the court is going to take concerning the right of non-refoulment.
It is this uncertainly that needs addressing and that can only be achieved with the help of comprehensive legislation. India’s issue with the international refugee regime is not easily solvable and therefore, the chances of India being a signatory to the same is too low.
Therefore, legislation that considers the domestic circumstances but at the same time adhere to international standards is the need of the hour. Otherwise, until the Supreme Court pass a concrete judgement that settles this issue once and for all, a question mark will always hang over the lives of the asylum seekers and refugees in India.
References
- timesofindia.indiatimes.com
- thediplomat.com
- scroll.in
- economictimes.indiatimes.com
- indconlawphil.wordpress.com
- epw.in
- migrationpolicy.org
- services.ecourts.gov.in
- Nandita Haskar Vs Union of India, W.P.(Crl.) NO. 6 OF 2021 ↑
- Louis De Raedt Vs Union of India, (1991) 3 SCC 554 ↑
- Hans Mueller Vs Soupt., Presidency Jail, AIR 1955 SC 367 ↑
- Ktaer Abbas Habib Al Qutaifi Vs Union of India, 1998 SCC OnLine Guj 304 ↑
- National Human Rights Commission Vs State of Arunachal Pradesh, (1996) 1 SCC 742 ↑
- Salimullah Vs Union of India, W.P.(Civil) No. 793 pf 2017 ↑
- Supra. ↑
- Supra. ↑
- Supra. ↑
