Last month I, along with several other human rights activists, participated in the 2019 May 18 Academy focusing on the theme of refugee issues. During the course, I learned about the rich history of Korean democracy, with a focus on the Gwangju Democratic Uprising. One of the most rewarding aspects of the academy was the opportunity it offered to interact with co-participants in formal and informal settings. These discussions allowed me to learn from their experiences and offered insights into the situation of refugees in different countries, as causes of refugee movements, approaches of the host governments, and responses from the host communities were recurring topics of discussion. The academy provided a unique platform for participants to observe the situation of refugees in the Republic of Korea, while also engaging in an active exchange of ideas with co-participants from various countries.

The experience gave me a chance to reflect on the situation of refugees in India, and I have tried below to summarize the situation in my country, as well as to give an indication of the way forward for refugee policy there.

Legal Framework in India

Unlike the Republic of Korea, India is not a party to the 1951 Convention or the 1967 Protocol Relating to the Status of Refugees. However, India is a member of the Executive Committee of the UNHCR, and has signed and ratified a few international instruments which discuss the rights of asylum seekers and refugees, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of all Forms of Racial Discrimination, the Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention for the Elimination of all Forms of Discrimination Against Women. India is also a party to the 2004 SAARC Optional Protocol on Terrorism, and the 1967 Declaration on Territorial Asylum, which recognize refugees as a distinct class.

However, international instruments that India has signed and ratified do not automatically apply within India unless legislation is passed to give effect to them.¹ Nevertheless, the Supreme Court of India has, on multiple occasions, used India’s commitment to international instruments to advance human rights in the country even without express legislative sanction.² While there is no specific law that guarantees their rights in India, refugees are covered within the extended reach of certain Indian laws. For instance, refugee women are not excluded from seeking the protection of the police and legal system in the case of sexual and gender-based violence. Similarly, the 2009 Right to Education Act applies to all children in India, including refugees and asylum seekers, giving them access to government schools on par with Indian citizens. Refugees and asylum seekers also have access to health services, child protection systems, national justice systems, and certain government-issued documentation like birth certificates.

That said, refugees often face practical difficulties while trying to seek access to these services. Their ambiguous legal status means that UNHCR-issued documents are almost always unrecognised by authorities. Moreover, refugees in India are usually unable to get government-issued documents which are required to access most essential services in India, such as healthcare, education, banking, and even SIM cards. Since India does not have a specialised domestic law for refugees, the government relies on the 1946 Foreigners Act and the 1939 Registration of Foreigners Act to govern the entry, stay, and exit of ‘foreigners’, which includes refugees; unfortunately, under these laws, refugees fall into the category of ‘illegal migrants’, given that they do not usually have a valid passport and/or visa for the duration of their stay. These laws do not recognise the special humanitarian treatment accorded in practice to refugees, as distinguished from other classes of foreigners such as illegal migrants. They also fail to reflect India’s position as a regional power at the heart of migration movements. Thus, authorities often tend to criminalise all those falling within the purview of the law, including refugees.

The 2019 May 18 Academy unpacked the difficulties that asylum seekers face even in a country that has enacted domestic refugee legislation. The low refugee recognition rate in the Republic of Korea, in particular, was a clear warning. It is evident that simply ratifying the 1951 Convention and enacting domestic legislation are not sufficient to safeguard the rights of asylum seekers. However, for a country like India with a continuously growing population of refugees and asylum seekers, the majority of whom may not be repatriated in the near future, the absence of national asylum legislation is quite significant. For context, it is helpful to look at the past flow of refugees into India.

Refugees’ Countries of Origin

The Indian subcontinent, with its diverse cultures, religions, and ethnicities, has historically provided shelter to various persecuted communities. For instance, India hosted thousands of Polish refugees during World War II. Since attaining independence in 1947, the most significant refugee movements to India have been from Tibet, Sri Lanka, Afghanistan, and Myanmar. Today, India is at the heart of refugee movements in the South Asian region, and hosts one of the largest urban refugee populations in the world – however, the situation of refugees in India is far from ideal.

A. Tibet

The first major influx of refugees into independent India was in 1959 from Tibet, following the occupation of Tibet by China. The Indian government was generous in receiving them, setting up transit camps, providing food and medical supplies, issuing identity documents, and even transferring land for exclusive Tibetan enclaves along with housing, healthcare, and educational facilities.³ Additionally, the government allowed Tibetan refugees to set up the Central Tibetan Administration, the Tibetan government-in-exile, under the political leadership of the Dalai Lama.⁴

B. Bangladesh

In the 1960s, the Chakmas and Hajongs from the Chittagong Hill Tracts, ethnic minorities from Bangladesh (formerly East Bengal/East Pakistan), sought refuge in India due to religious persecution and the seizure of their land. They were accommodated in relief camps in Arunachal Pradesh, a state in northeast India. With the majority unwilling to repatriate, in 2015, the Supreme Court directed the government of India to grant citizenship to the Hajongs and Chakmas who had come to India between 1964–69,⁵ although this is yet to be implemented.

Through the 1950s, 1960s, and 1970s, other refugees from Bangladesh also fled to India and eventually settled in different parts of the country.

C. Sri Lanka

In 1983, Sri Lankan Tamil refugees began to arrive in India, but they were restricted to the state of Tamil Nadu in South India due to the language barrier they would face in other parts of the country. The government of Tamil Nadu organized the refugees into camp refugees, non-camp refugees, and militant refugees. Camp refugees were registered and provided assistance, but movement and access to employment were restricted. Non-camp refugees could not avail these services, but were able to integrate with the society and move freely provided they registered with the nearest police station.⁶ If any refugees were suspected of having an association with militant groups, they were transferred to special camps and closely monitored.⁷

D. Myanmar

Since 1988, thousands of Chins from Myanmar who faced physical and gender-based violence, forced conscription into the Burmese army, and the imposition of forced labour in their own country have settled in Mizoram, a state in northeast India.⁸ It is estimated that around 60,000 Chins live along the Indo-Myanmar border. Those who found their way to the UNHCR office in New Delhi have largely been granted refugee status and resettled to third countries including Australia and the United States, and only around 3,000 now remain in the capital.

E. Afghanistan

After the Soviet-Afghan War (1979–89) Afghans began to flee to India, and continue to do so today. Afghan refugees, like the Chins, are under the mandate of the UNHCR and cannot avail protection from the Indian government.

Besides the countries discussed above, asylum seekers from countries like Iran, Iraq, the Democratic Republic of Congo, Somalia, Eritrea, Sudan, Yemen, and Syria have also sought refuge in India. In the absence of a domestic asylum law, India’s treatment of refugees has varied based on their country of origin.

India and the Global Compact on Refugees

Against this background, India’s vote for the adoption of the Global Compact on Refugees (GCR) in December 2018 is a promising development. The move appears to signal India’s willingness to build on its unique historical experience with refugee protection and usher in a new era of stronger and fairer responses to large refugee movements and protracted refugee situations. As a key actor in the South Asian region, India should play an active role in creating and building on regional mechanisms for refugee protection and durable solutions, as envisaged by the GCR.

It seems like an opportune moment for India to bring in a new asylum law that can integrate India’s obligations under the GCR and also build an inclusive environment for the refugee community in India. The current state of forced displacement warrants the need for developing an inclusive regime of refugee protection, more so in these times when states are looking to close off their borders. The GCR does not offer a full and finalised framework that India can adapt in totality for refugee protection; however, it does offer a stepping stone. A domestic asylum law would allow India to manage refugees with more accountability and order, in addition to granting uniform rights and privileges to refugees. It would also address the problems with the existing framework, balancing the humanitarian needs of the refugees with the country’s security interests.

¹  Article 253, Constitution of India.
²  Keshavanda Bharti v State of Kerala, (1973) 4 SCC 225; Vishaka v State of Rajasthan, AIR 1997 SC 3011; Additional District Magistrate, Jabalpur v Shivkant Shukla, 1976 CriLJ 945; Vellore Citizens Welfare Forum v Union of India and Ors., AIR 1996 SC 2715.
³  Jessica Falcon and Tsering Wangchuk, “We’re Not Home”: Tibetan Refugees in India in the Twenty First Century, India Review, July-September 2008.
⁴  Central Tibetan Administration, Charter of the Tibetans in Exile, available at: http://tibet.net/about-cta/constitution/ (accessed: 1 October 2019).
⁵  Committee for CR of CAP & Ors. v State of Arunachal Pradesh & Ors., W.P (Civil) No. 510/2007.
⁶  Joseph Xavier & Apoorva Sharma, Legal Rights of Refugees in India, October 2015.
⁷  Asha Hans, Sri Lankan Tamil Refugees in India, June 1993, Refuge, available at: https://refuge.journals.yorku.ca/index.php/refuge/article/download/21731/20401 (accessed: 1 October 2019).
⁸  Matt Wilch, Seeking Refugee: The Chin People in Mizoram State, India, December 2011, available at: http://media.virbcdn.com/files/b3/FileItem-222256-SeekingRefugeTheChinPeopleinMizoramStateIndia1211pdf22912.pdf (accessed: 1 October 2019).