NEWS  India needs to clinically address the issue of refugee protection and introduce appropriate legal and institutional measures

CONTEXT  The heart-wrenching scenes of Myanmarese citizens, including little children — fleeing from a junta bent on killing its way into power in Myanmar — being turned away at the Indian border in the Northeast has once again revived the domestic debate about refugee protection in India.

SIMILAR CASES IN THE PAST

• The current plight of the Myanmarese has been preceded by that of another group of Myanmarese, the Rohingya.
• Also, a similar debate was dominated by the Citizenship (Amendment) Act, 2019 and its impact on those seeking refuge in India, even though new refugees would not be benefited by the law since the cut-off year of the CAA is 2014.
• given the geopolitical, economic, ethnic and religious contexts of the region, refugee flows to India are unlikely to end any time soon.
• Hence, there is an urgent need today to clinically address the issue of refugee protection in India and put in place appropriate legal and institutional measures.

REFUGEE Vs ILLEGAL IMMIGRATION

A refugee is a displaced person who has been forced to cross national boundaries and who cannot return home safely because of fear of persecution, while an immigrant is one who generally travels voluntarily because of economic opportunity in the host country.

JUMBLED ISSUES OF REFUGEE AND ILLEGAL IMMIGRATION

• illegal immigration is a threat to the socio-political fabric of any country and has potential security implications.
• Therefore, India has emphatically argued over time, particularly in the recent past, that illegal immigration from the neighbouring countries to India must come to an end.
• But, despite much of the debate in the country is about the illegal immigrants, not refugees, the two categories tend to get bunched together.
• Since, we have jumbled up the two issues over time, our policies and remedies to deal with these issues suffer from a lack of clarity as well as policy utility.
• This brings no justice to the helpless people fleeing from persecution at home.

AMBIGUITY IN THE FRAMEWORK

• The main reason why our policies towards illegal immigrants and refugees is confused is because as per Indian law, both categories of people are viewed as one and the same and are covered under the Foreigners Act, 1946 .
• It offers a simple definition of a foreigner — “foreigner” means “a person who is not a citizen of India”.
• there are fundamental differences between illegal immigrants and refugees, but India is legally ill-equipped to deal with them separately due to a lack of legal provisions.
• As a result of this confused policy, India is not a party to the 1951 Refugee Convention and its 1967 Protocol, the key legal documents pertaining to refugee protection.

IMPLICATIONS OF AMBIGUOUS POLICIES

• The absence of such a legal framework also leads to policy ambiguity whereby India’s refugee policy is guided primarily by ad-hocism which often has its own ‘political utility’.
• 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.
• At the same time, the absence of a legal framework increases the possibility of the domestic politicisation of refugee protection and complicates its geopolitical fault lines.
• Also the absence of a clearly laid down refugee protection law also opens the door for geopolitical considerations while deciding to admit refugees or not.
• For example: 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 Naypyitaw, Beijing would get closer to the junta and use the opportunity to hurt India’s interests in Myanmar.
• This fear, at least partly, is what has prompted India’s decision not to admit the refugees.
• However, 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.

LEGAL, MORAL COMPLEXITIES

• 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.
• Whether or not India should be a party to these international legal instruments has been a matter of some debate in the country.
• As per India’s interpretation, 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.
• Hence, from this interpretation, it can be concluded that a country like India, given its track record of refugee protection as well as a vulnerable geopolitical and socio-economic situation, need not unreservedly accede to the convention and the protocol in the way they currently stand.

WHAT OTHER OPTIONS DO WE HAVE TO RESPOND TO REFUGEE SITUATION?

• The answer perhaps lies in a new domestic law aimed at refugees.
• The CAA, however, is not the answer to this problem primarily because of its deeply discriminatory nature.
• it is morally untenable to have a discriminatory law to address the concerns of refugees who are fleeing their home country due to such discrimination in the first place.
• A domestic refugee law should allow for temporary shelter and work permit for refugees.
• A domestic refugee law 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.
• The absence of a refugee law incentivises illegal immigration into the country.
• A distinction must be made between temporary migrant workers, illegal immigrants and refugees and deal with each of them differently through proper legal and institutional mechanisms.

Reference:

1. https://www.thehindu.com/opinion/lead/india-does-have-a-refugee-problem/article34285088.ece