Non-Refoulment of Refugees in India: A Human Rights Perspective

Abstract

Delving into the words of Augustus Comte, 'demography is destiny', invokes an understanding that the ‘associated strands’ of political discourse (political framework of actions & inactions respectively), people and migration remain inherently inclusive in perspective.2 This means that, with the very existence of population within a nation-state comes the inevitable interplay of policy framework as a natural denouement, along with the added vigour of cross-border migration standards. India has remained susceptible to varied perspective of cross border movements within South Asia for the longest time. For instance, the inter-relations between India-Pakistan, India-Afghanistan, India-Sri Lanka, IndiaBangladesh, among the others, are trapped in a quagmire of cross-border movements vis-a-vis policy framework (legal stipulations). Therefore, it would be pertinent to infer that the Indian foreign policy in particular, succumbs to the politics of cross-national ethnic issues pertaining to the concerned nation-state. On the other hand, when the issue of granting refugee status come to the fore, India’s position remains prone to objective interpretation. Objective in the sense that, India has always scrutinised the same (granting refugee status) on an ad hoc basis. The reasons for it germane from the lack of any substantial legal mandate in delineating the issues of refugees’ or migrants’ or asylum seekers on one side and the absence of a concrete/recognised refugee policy in consonance with international instruments on the other. Refugees and migrants are legally distinct. On one hand, owing to the 1951 Convention Relating to the Status of Refugees (‘Refugee Convention’) and the 1967 Protocol Relating to the Status of Refugees (‘Protocol’), a refugee is a person “who flees across an international border because of a well-founded fear of being persecuted in her country of origin on account of her race, religion, nationality, membership of a particular social group, or political opinion”.3 On the other hand, Migrants are a much wider group of people who move away from their usual residence to live somewhere else. Since it is an umbrella term, there is no legal definition of a migrant; The phrases refers to high-wage labour travelling between developed economies, people fleeing destitute countries, and those fleeing persecution. As a result, while all refugees are migrants in the sense that they leave their usual home, not all migrants are refugees. The extensive powers granted exclusively to the Centre to act with unconstrained discretion in regard to foreigners enable India's ad hoc refugee system. The Foreigners Act of 1864, passed by India's colonial government in the nineteenth century, was the first law to restrict, arrest, and expel foreigners. The law was harsh since it was meant to consolidate imperial dominance and retain social control. The colonial government considered the 1864 legislation to be too lenient for the absolute powers it requested, thus the Foreigners Act of 1940 was enacted to replace it. The 1940 wartime legislation was further consolidated as the Foreigners Act, 1946 (‘Foreigners Act') following the war's end and the ensuing large-scale displacement.