India’s Refugee Problem

SOCIETY/ GOVERNANCE/ SECURITY

Topic:

• GS-2: Government policies and interventions for development in various sectors and issues arising out of their design and implementation 
• GS-2: Rights and Freedoms

India’s Refugee Problem

Context: Myanmarese citizens, including little children fleeing from a Myanmar’s military, being turned away at the Indian border in the Northeast has once again revived the domestic debate about refugee protection in India.

India’s Refugee Problem

• Refugee flows to India are unlikely to end any time soon given the geopolitical, economic, ethnic and religious contexts of the region. 
• There is an urgent need to clinically address the issue of refugee protection in India and put in place appropriate legal and institutional measures.

Issues/Challenges

• Lacks differentiation b/w Refugees & illegal Immigrants: Illegal Immigration and Refugees are two different things. However, as per Indian law, both categories of people are viewed as one and the same and are covered under the Foreigners Act, 1946. Due to this, government’s policies and remedies to deal with these issues suffer from a lack of clarity as well as policy utility.
• Lack of Proper Legal Framework: India is legally ill-equipped to deal with refugees and illegal immigrants separately due to a lack of legal provisions. India is not a party to the 1951 Refugee Convention and its 1967 Protocol the key legal documents pertaining to refugee protection.
• Ad-hocism in dealing with refugees: The absence of such a legal framework also leads to policy ambiguity whereby India’s refugee policy is guided primarily by ad hocism which, of course, often has its own ‘political utility’. 
• Domestic politicisation of refugee protection Absence of a legal framework and Ad hoc measures enable the government in office to pick and choose ‘what kind’ of refugees it wants to admit for whatever political or geopolitical reasons, and what kind of refugees it wants to avoid giving shelter, for similar reasons. 
• Complicates geopolitical faultlines: Absence of legal framework & politicization of refugee problem opens the door for geopolitical considerations while deciding to admit refugees or not. 
  • Example: Consider the most recent case of Myanmarese refugees fleeing to India for protection from the junta at home. 
  • New Delhi’s concern is that if it takes a decision that irks the Generals in Myanmar, Beijing would get closer to the junta and use the opportunity to hurt India’s interests in Myanmar. 
  • If New Delhi had a domestic legislation regarding refugees, despite not being a signatory to the relevant international conventions, it could have tempered the expectations of the junta to return the fleeing Myanmarese.

• Credibility of India as responsible power questioned: India, for the most part, has had a stellar record on the issue of refugee protection, a moral tradition that has come under great stress of late. New Delhi has been one of the largest recipients of refugees in the world in spite of not being a party to the 1951 Refugee Convention and its 1967 Protocol.

Why India has not signed 1951 Refugee Convention?

1. Lop-sided definition of Refugee that favours West

• The definition of refugees in the 1951 convention only pertains to the violation of civil and political rights, but not economic rights, of individuals, for instance.  
• If the violation of economic rights were to be included in the definition of a refugee, it would clearly pose a major burden on the developed world. 

2. Poor Track record of Developed Countries

• India should not accede to the 1951 convention at a time when the North is violating it in both letter and spirit. 
• India should argue that their accession is conditional on the Western States rolling back the non-entrée (no entry) regime they have established over the past two decades. 
• The non-entrée regime is constituted by a range of legal and administrative measures that include visa restrictions, carrier sanctions, restrictive interpretations of the definition of ‘refugee’, withdrawal of social welfare benefits to asylum seekers, and widespread practices of detention

Way Ahead – New Domestic Law

• A domestic refugee law should allow for temporary shelter and work permit for refugees. 
• This is crucial because in the absence of proper legal measures, refugee documentation, and work permit, refugees may end up becoming illegal immigrants using illicit means.
• Make a distinction between temporary migrant workers, illegal immigrants and refugees and deal with each of them differently through proper legal and institutional mechanisms. 

Connecting the dots:

• Rohingya Refugee Problem