The Future of Asylum in India: Four Principles to Appraise Recent Legislative Proposals
Volume 9 Issue 3-4 (2016)
India has a long history of sheltering refugees. The number of forced migrants who have received protection in India is one of the highest in the world. For a variety of ideological and practical reasons, India has refused to sign the 1951 Refugee Convention and shows little interest in joining the evolving international refugee order. Without a formal asylum regime, the Foreigners Act, 1946, a stringent deportation-oriented law, governs refugees unless they are given special leave to stay in India. In a few unconvincing cases, some courts have given asylum seekers a small measure of due process. Any suggestion that the courts have recognised the principle of non-refoulement is false.
In late 2015, Shashi Tharoor MP introduced the Asylum Bill, 2015 in the Lok Sabha with the aim of putting India “at the forefront of asylum management in the world.” While the bill is welcome in principle, it has several shortcomings. Future asylum law should be based on four principles which Tharoor’s bill should be measured against. The principles are: (i) asylum is multifaceted requiring different categories of protection; (ii) mixed migratory flows demand flexible processing mechanisms; (iii) mass in influxes call for greater attention than individualised procedures; and, (iv) the goals of legislation are asylum management and refugee governance.
Asylum is conceptually diverse and predates refugee status but the two are often conflated. India has a sovereign right to grant asylum to a person who does not qualify for refugee status. Protection should be given to persecuted individuals, groups forced to flee, as well as those escaping environmental phenomena. ‘Disguised extraditions’ should be stopped. Mixed migration has only recently captured attention because of events in Europe even though it is an old reality in South Asia. The law should differentiate between various categories of refugees and migrants, assign each a relevant form of protection – if applicable, anticipate secondary movements, and protect the most vulnerable.
The failure to protect mass in fluxes has damaged the credibility of the international refugee regime. India’s experience calls for promoting the principle of non-refoulement, using differentiated protection procedures, intelligently managing refugee populations, and addressing secondary movements. Refugee situations should be proactively governed. Processing centres should be efficiently located. Evidence-based impacts on home com- munities should determine how refugee communities are hosted. Refugee camps must be demilitarised. The right against statelessness must be actualised. Durable solutions should be strategically pursued. Participatory citizenship models should be developed.