Broken Borders: The Gaping Lack of a Refugee Policy in India

The recent political uprisings in Bangladesh that culminated in the ousting of former Prime Minister Sheikh Hasina have reignited concerns in India about a potential influx of refugees. Fears of a repeat of the 1971 crisis, coupled with the ongoing Rohingya refugee situation have raised urgent questions about India’s stance toward refugees, and more than anything, a lack of a policy on refugees in India.

India has historically been known to be accepting of refugees, upholding its ancient value of ‘Vasudev Kutumbakam’- ‘the whole world is a family’. India is home to approximately 213,000 refugees, having accepted refugee groups from neighbouring countries. This includes Tibetan refugees in 1959, Bangladeshi refugees in 1971, and Sri Lankan Tamils in the 1980s. 

However, India lacks specific legislation or a national ‘refugee’ policy. India has not signed the 1951 Refugee Convention or the 1967 protocol, the reasons for which have been speculated to be the desire for “non-interference” in what is thought to be India’s internal matters. Thus, in the absence of a universal law that governs refugees, most of the matters which concern the treatment and recognition of refugees are left to the discretion of the state, often determined by political expediency.

For example, Sri Lankan and Tibetan refugees, registered under the Ministry of Home Affairs- are entitled to Aadhar and PAN Cards. However, refugees from Myanmar and Afghanistan who are registered with UNHCR (United Nations High Commissioner for Refugees), only have access to protection, not government-issued documentation that would grant them coverage under the state welfare schemes.  Only about 46,000 of the 200,000 refugees in India have received formal protection from the UNHCR office in New Delhi. 

Moreover, the Foreigner’s Act of 1946 gives the Indian government the right to deport any foreigner, and worse, fails to differentiate between ‘refugees’ and ‘illegal migrants’. Thus, the absence of a comprehensive refugee policy allows the government to classify any refugee as an ‘illegal immigrant.’ This is evident in the country’s classification of the Rohingyas as trespassers, denying them asylum and forcing them to live in detention centres under the constant threat of deportation. There have also been conflicting constitutional judgments in matters of refugees, where decisions have been made on an ad-hoc, situational basis in the face of legislative ambiguity on refugees. In 2011, The Ministry of Home Affairs circulated an SoP for dealing with foreigners who want to seek asylum on justified grounds of persecution. However, the examinations of their claims are unilaterally to be decided by the MHA. And because the government has the power to decide whether a social group is a ‘persecuted minority’ that must be given refuge, refugee groups receive differential treatment from the government. This also allows the state to base its criteria for protection not on universally mandated humanitarian concerns; but on geopolitical, electoral, and religious considerations. 

It is in this context that the CAA is considered the closest India has come to a fairly concrete “refugee policy”, where ‘persecuted minorities’ from neighbouring countries are given citizenship, given they satisfy certain conditions. On 14th August 2024, a Hindu man from Bangladesh became the first person to get citizenship under the Citizenship Amendment Act. 

However, the same problem presents itself in the Act’s classification of refugees- which includes people belonging to all major religions in the subcontinent except Islam. The Act, first introduced in 2019, faced a lot of backlash and violent protests for being discriminatory against Muslims and a violation of the secular principle for citizenship in India. Implementing this Act will be an important study of the government’s changing attitudes towards refugees and their identities. 

Looking at other countries with large refugee populations- Turkey is home to the largest number of refugees in the world. It has established a whole body- Presidency of Migration Management responsible for framing policies concerning the proceedings of all foreigners in Turkey, including refugees and their protection. Globally, 149 countries are parties to either the 1951 or 1967 Convention on Refugees, which ensures that refugees are not returned to the country where their lives and freedom are under threat. Most countries such as the USA use definitions and legal protection laws provided by the Convention to frame their refugee policies. The European Union has set up a Common European Asylum System to set minimum standards for the treatment of all asylum seekers and applications across the EU. With India not being a signatory to the international convention, a uniform, comprehensive, indigenous refugee policy becomes ever more important.

The need for a robust refugee policy framework in India is strikingly evident in the light of recent events as well as the ever-increasing importance of regulating national borders. Transparent and fair mechanisms must be implemented to ensure legal pathways to protection and assistance on humanitarian grounds to refugees rather than on an arbitrary, potentially unjust basis. It is imperative to reaffirm India’s commitment to its ideals of compassion, social justice, and human rights; simultaneously strengthening its national security. With the current dynamic geopolitical environment, how India deals with its problem of refugees would be a crucial step in determining the fate of the refugees as well as the country.