India, while having a long tradition of hosting refugees, is not a signatory to the 1951 UN Refugee Convention or its 1967 Protocol. This has significant implications for the legal status and rights of refugees within the country. Recently, courts in India have reiterated that because India is not a signatory, UNHCR (United Nations High Commissioner for Refugees) cards hold no legal validity for refugees staying in India. This stance highlights the complex and often precarious situation faced by refugees seeking asylum in India.
India's position on the Refugee Convention stems from historical and contextual factors. When the UN agreed on the convention in 1951, India, newly independent and bearing the scars of partition, declined to sign, citing security concerns. Some argue that the 1951 convention's definition of refugees, primarily focusing on the deprivation of civil and political rights while omitting economic rights violations, is too narrow. India has also expressed reservations about the potential burden on resources that a broader definition might entail.
In the absence of a national refugee law, India manages refugees through ad hoc policies and administrative decisions, primarily governed by the Foreigners Act of 1946. This act does not distinguish between refugees and other foreigners, treating them similarly to undocumented migrants. The lack of a specific legal framework leaves refugees vulnerable to arbitrary actions and creates challenges in accessing basic rights and services.
The UNHCR plays a crucial role in India, particularly for asylum seekers from non-neighboring countries and Myanmar. It conducts refugee status determination (RSD) and provides documentation, sharing lists of recognized refugees with the Ministry of Home Affairs. However, the government's recognition of UNHCR-awarded refugee status is limited, as these documents do not guarantee access to healthcare, education, or other essential rights. The UNHCR's operations are also restricted, with its only office for RSD and protection services located in New Delhi, placing the onus on asylum seekers to travel there to make a claim.
Despite not being a signatory to the Refugee Convention, India has historically upheld the principle of non-refoulement, which prevents the return of refugees to countries where they face persecution. However, recent court decisions and government actions have raised concerns about the consistent application of this principle.
Several court cases have underscored the legal complexities surrounding refugees in India. Courts have affirmed that UNHCR cards do not authorize foreign nationals to reside in India, emphasizing that the burden of proof lies on the individual to prove they are not a foreigner. Some judgements have prioritized national interests over humanitarian concerns, even when refugees express fears for their lives if deported.
The situation is further complicated by the government's stance on specific groups of refugees. While India has historically provided protection and assistance to certain groups, such as Tibetans and Sri Lankans, the approach towards other groups, particularly the Rohingya, has been less consistent. The Citizenship Amendment Act (CAA) of 2019, which offers a path to citizenship for religious minorities (excluding Muslims) from Afghanistan, Bangladesh, and Pakistan, has also sparked controversy and highlighted discriminatory aspects of India's refugee policy.
The lack of a comprehensive legal framework and India's non-signatory status to the Refugee Convention have led to a dual system where the government and UNHCR share responsibility for refugee status determination, but with differing levels of recognition and protection. This situation creates significant challenges for refugees, who often face legal uncertainty, limited access to rights and services, and the constant threat of deportation.
