The following article, co-authored with Tushita Saraf, originally appeared in The Print on September 30, 2017.
The Rohingya crisis in Myanmar has attracted global
attention, concern, and condemnation over the past several weeks. India, while
being both critical and supportive of the government of Myanmar, has been quick
to respond with assistance to displaced Rohingya in Bangladesh.
But the crisis has also raised questions about India’s
approach to refugees, specifically the 40,000 Rohingya that have entered the
country in recent years. Minister of State for Home Affairs Kiren Rijiju has
called them “illegal immigrants” who “stand to be deported,” but he
subsequently clarified that there was not yet a plan for their removal. Such
attempts might be complicated by a Supreme Court ruling against the deportation
of asylum-seekers on the basis of the right to life and personal liberty.
Moreover, because many Rohingya are effectively stateless, and not recognized
as citizens by Myanmar, their forced repatriation could become problematic.
Although some 200,000 refugees reside in India, the
central government lacks a national legal or policy regime concerning refugees.
India is also not a signatory to either the 1951 United Nations Refugee
Convention or the 1967 UN Protocol on Refugees. In the absence of international
obligations or a national policy, the law that applies to asylum-seekers is the
Foreigner’s Act of 1946, which gives the government the power to restrict the
movement of non-Indian citizens not just into India but also within the
country. The Foreigner’s Act – which defines a foreigner broadly as any person
“who is not a citizen of India” – is vague about the differences between
temporary residents, tourists, travelers, economic migrants, and refugees.
At present, the Indian government only recognizes about
110,000 Tibetans and 102,000 Sri Lankans as refugees. This may appear
arbitrary, but is the product of political considerations. Tibetans who
accompanied the Dalai Lama to India in 1959 were allowed to remain as refugees
on the grounds that they were fleeing persecution by Chinese forces. They have
been provided assistance and protection by the Indian government, and have
freedom of movement and access to residence and work permits.
Sri Lankans began migrating to India in 1983 after the
outbreak of a civil war between the Sri Lankan government and Tamil
separatists. Over 67,000 Sri Lankan refugees remain in Indian camps, and a
further 35,000 reside elsewhere in India, although some are in the process of
returning. While provided with shelter, food, and allowances in designated
camps and access to the informal labor market, their freedom of movement and
employment opportunities are limited. Since 2012, India has also granted stay
visas or long term visas to both Tibetan and Sri Lankan refugees. These have
proved more popular with Tibetans, while Sri Lankans have been more liable to
opt for voluntary repatriation.
By contrast, groups from Bangladesh and Pakistan have
generally been considered economic migrants by the Indian government. For
example, the Indian government never formally regarded those fleeing Bangladesh
(then East Pakistan) in 1971 as refugees, despite providing them with
considerable aid and assistance. This may have helped ensure their return
following the conclusion of the India-Pakistan War in late 1971 that resulted
in Bangladesh’s independence.
India’s ambiguity concerning its refugee policy does
confer certain advantages. Specifically, it grants discretionary powers to the
government to designate refugees and offer them asylum and other benefits.
Creating a national policy or joining an international convention would hold
India to certain standards and possibly limit options. India’s ambiguity has
also led to its developing a unique relationship with the UN High Commissioner
for Refugees (UNHCR). India allows the UNHCR to recognize, register, and
protect certain groups of people as refugees after evaluating their claims on a
case-by-case basis. So, for example, the UNHCR has registered refugees from
Myanmar, Afghanistan and Somalia who continue to be treated as “foreign
nationals” by the Indian government. More recently, the UNHCR has had to deal
with Iraqi and Palestinian applicants seeking to reside in India temporarily,
until they can be resettled in third countries such as the United States,
United Kingdom, Germany, and Australia.
An Indian crackdown on illegal immigrants – including
Rohingya – is consistent with its traditional hesitation about automatically
designating asylum seekers as refugees. Over the years, the Indian government
has provided assistance to the likes of Bangladeshis and Afghans fleeing war
and persecution, but has created disincentives for them to stay on in India
permanently. In the absence of a standard refugee policy, we can expect this
approach to continue.