In the section on Foreign Policy in its manifesto released Tuesday, the Congress has promised to “pass a law on asylum consistent with international treaties and conventions”.
India is among the 40-odd members of the United Nations that have neither signed nor ratified either the 1951 United Nations Convention Relating to the Status of Refugees, or its 1967 Protocol that stipulates the rights and services host states must provide refugees.
The 1967 Protocol extended the Convention, initially approved at a special UN conference in 1951 with the primary aim of protecting wartime European refugees, to include refugees from other times and other places as well.
The UN Refugee Agency, UNHCR, serves as the ‘guardian’ of the 1951 Convention and its 1967 Protocol. The UNHCR describes the 1951 Refugee Convention as the key legal document that forms the basis of its work. The Convention, which has been ratified by 145 state parties, defines the term ‘refugee’ and outlines the rights of the displaced, as well as the legal obligations of states to protect them.
According to the UNHCR, the core principle in dealing with refugees is “non-refoulement, which asserts that a refugee should not be returned to a country where they face serious threats to their life or freedom”.
This is now considered a rule of customary international law, the UNHCR says, and states are expected to cooperate with it in ensuring that the rights of refugees are respected and protected.
No domestic Indian law
Despite having one of the largest refugee populations in South Asia, India is yet to enact a law that addresses the issue of asylum. The term ‘refugee’ is not mentioned in any domestic law.
The Passport (Entry of India) Act, 1920, The Passport Act, 1967, The Registration of Foreigners Act, 1939, The Foreigners Act, 1946, and The Foreigners Order, 1948, are consulted by Indian authorities with regard to the entry of refugees and asylum seekers.
In the absence of a laid down law or policy, Indian governments have decided on granting asylum on an ad hoc and case-to-case basis, within an informal framework that is broadly in line with international instruments.
In December 2015, Congress MP Shashi Tharoor introduced a Private Member’s Bill called The Asylum Bill, 2015, to provide for the establishment of a legal framework to consolidate and harmonise India’s refugee policies.
Refugees, asylum seekers
According to the UNHCR, asylum seekers are individuals who have sought international protection and whose claims for refugee status have not yet been determined, irrespective of when they may have been lodged.
Refugees are individuals recognised under the 1951 Convention relating to the Status of Refugees, its 1967 Protocol, the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, those recognised in accordance with the UNHCR Statute, individuals granted complementary forms of protection, or those enjoying temporary protection. Since 2007, the refugee population has also included people in “refugee-like situations”.
According to the UNHCR’s India factsheet, there were 2,07,665 “persons of concern” in India at the end of 2017, a number that has remained virtually the same through 2016 and 2015 (2,07,070 and 2,07,861 respectively).
Of the persons of concern in 2017, UNHCR identified 1,97,416 as refugees and 10,519 as asylum-seekers. India has over the years offered shelter to Tibetans, the Chakmas of Bangladesh, Afghans, and ethnic Tamil refugees from Sri Lanka.