The Future Of Asylum Regime in India With Respect To Protection Of Refugees And Recent Legislative Proposals

THE FUTURE OF ASYLUM REGIME IN INDIA WITH RESPECT TO PROTECTION OF REFUGEES AND RECENT LEGISLATIVE PROPOSALS

SYNOPSIS

INTRODUCTION

India has long been a refugee-hosting region. India has one of the largest numbers of forced refugees receiving protection in the country. India has declined to sign the 1951 Refugee Convention for a number of ideological and realistic reasons, and has shown no interest in joining the emerging international refugee order. Without a formal asylum regime, refugees are governed by the Foreigners Act of 1946, a strict deportation-oriented rule, unless they are granted special leave to remain in India. Some courts have allowed asylum seekers a sliver of due process in a few questionable situations. Any argument that the concept of non-refoulement has been accepted by the courts is baseless. Shashi Tharoor, a member of the Lok Sabha, initiated the Asylum Bill, 2015 in late 2015 with the aim of placing India “at the forefront of asylum management in the country.” Although the bill is mostly positive, it has a number of flaws. Future asylum legislation should be driven by four criteria, against which Tharoor’s bill should be judged. The guidelines are as follows: I asylum is multifaceted, requiring different types of protection; (ii) mixed migratory waves necessitate adaptive screening mechanisms; (iii) mass influxes necessitate greater focus than individualized procedures; and (iv) legislation’s priorities are asylum control and refugee governance. Asylum is a broad term that predates refugee status, but the two are often confused. India has the authority to award asylum to anyone who does not meet the criteria for refugee status. Persecuted people, communities compelled to leave, and others fleeing environmental disasters should all be protected. Extraditions disguised as extraditions should be prohibited. Mixed migration has only recently gained traction as a result of events in Europe, despite the fact that it is a long-standing reality in South Asia. The legislation should discriminate between various groups of refugees and migrants, give each one a particular category of protection if necessary, foresee secondary movements, and protect the most vulnerable.

India has attempted to control the status and security of refugees by regulatory interventions, but there is still some concern about their efficacy. The risk of stigma and unequal treatment of refugees cannot be eliminated in the absence of a legislative process. Due to the lack of a national rule, the rules governing foreigners extend to refugees in India, where there is no distinction made between foreigners and refugees as a different class. The major Indian law relevant to foreigners is governed by the Foreigners Act, 1946 which empowers the Central Government in regulating the entry, presence and departure of foreigners into India. The administrative policies under the Act relating to aliens ‘are very skeleton and leave very wide discretion to the executive’.[1] There has previously been no attempt to discover that this is happening in a country like India, which is ruled by the rule of law. The reasons for not ratifying the Refugee Convention have been debated in Parliament, but there has been no analysis conducted on the government’s inability to formulate a clear security standard. At the same time four draft laws on refugee protection namely Model National Law for the Refugees drafted by the Eminent Persons Group, the Asylum Bill, 2015 by Dr. Sashi Tharoor, M.P., the National Asylum Bill, 2015 by Feroze Varun Gandhi, M.P., the Protection of Refugees and Asylum Seekers Bill, 2015 by Rabindra Kumar Jena, M.P. in the Lok Sabha have not received any recognition yet.

This paper shall also measure Tharoor’s bill against his claim of creating a world-leading asylum management system.[2] Instead of a clause-by-clause analysis, this paper weighs Tharoor’s bill against four principles which are crucial to a future Indian asylum regime. The four concepts discuss the various shades of asylum, mixed migration’s proliferation, the relevance of mass influxes, and the need for asylum governance. While Tharoor’s bill should be applauded in theory, the paper finds that it falls well short of the mark of a decent asylum policy. It is a historic wasted opportunity as one of the first asylum bills introduced in Parliament.

RESEARCH PROBLEM

The inability to secure mass influxes has hurt the foreign refugee regime’s legitimacy. Based on India’s experience, it’s important to promote the concept of non-refoulement, use differentiated security procedures, manage refugee populations intelligently, and handle secondary movements. Situations including refugees should be managed in a constructive manner. Processing centers should be strategically placed. How refugee populations are hosted should be determined by evidence-based impacts on home populations. Demilitarization of refugee camps is required. The right to be free of statelessness must be realized. Strategically, long-term options should be sought. Models of participatory citizenship should be created.

SIGNIFICANCE OF STUDY

The paper will examine Indian asylum law, procedure, and experience to see if Tharoor’s argument that his bill “consolidates the prevailing executive practices, judicial pronouncements, and foreign norms” is accurate. It will describe the terms “refugee” and “migrant,” as well as the ambiguous word “migrant.” It will also address historical and current estimates of the number of refugees and migrants in India, as well as explore India’s reasons for opting out of the international refugee regime, as well as the country’s domestic legislative, constitutional, and operational mechanism for asylum and refugee security.

REview of literature

The aim of the literature review is to improve understanding of the current subject area by identifying terminologies and main studies, conflicting viewpoints to place the work in perspective, experts in the field and their work, prior research methods, and determining the best form of research for this study, among other things. It is critical that the literature review be limited to works by Indian scholars, since the current study focuses on the Indian case, and the stakes of the situation can be best understood through the eyes of Indian refugee law scholars.

B. S. Chimni’s book is considered to be the greatest contribution of an Indian scholar in International Refugee Law.[3] This book has eight chapters that include the law of asylum, refugee rights and responsibilities, UNHCR mandate, and state responsibility for refugee security. This book is particularly useful in understanding the geopolitics of refugees in today’s world. Veerabhadran Vijayakumar in his article emphasized on judicial responses to refugee protection in India.[4] He focused on the Chakma Cases, a series of cases before the Supreme Court of India, to rule on the problems of citizens of Chakma refugees from former East Pakistan and present-day Bangladesh, from the beginning of his paper. These cases have had a number of implications on Indian refugee legislation, creating a balance between the state’s ability to shelter refugees and the refugees’ right to basic necessities. In this regard, it is worth noting that the National Human Rights Commission of India’s attempts to protect the human rights of Chakma refugees on Indian soil from 1994 to 1998 were noteworthy, including reaching the point of filing a petition with the Supreme Court of India under Section 18 of the Protection of Human Rights Act, 1993.

Pia Oberoi[5], in her article, focuses on civil society organizations’ efforts to introduce a uniform model of refugee security to South Asia through a comprehensive dialogue between governments and other groups, rather than advocating for any haphazard move to obtain case-by-case mercy from the judiciary. The most significant step in this path was taken in Dhaka in 19997 by the Eminent Persons Group (EPG) under the chairmanship of Justice P. N. Bhagwati, who drafted a Model National Law for Refugees (MNLR) that can serve as a reference for governments in South Asian countries as they draft their own national laws. Because of the importance of this consultation, Bangladesh’s Law Minister approved a copy of the MNLR from the Chairperson to present to the Parliamentary Committee on Law and Justice. Though serving as a Civil Servant, Probodh Saxena wrote his article from the viewpoint of an independent scholar who has actually introduced government policy on refugee and human rights issues. Unlike other scholars, he has demonstrated the motives for not ratifying the Refugee Convention and stressed the South Asian countries’ failure to enforce national refugee laws as a result of political incompetence, historical blunders, dysfunctional democracies, and inflated security concerns. Sourabh Bhattacharjee’s article depicted India’s refugee security situation, which worked well for some refugee populations but was inconsistent for others. He spoke about the customary international law standard of non-refoulment and sought to examine it from the Indian viewpoint. His report assumes the possibility of calling for a national refugee resettlement regime in India. He strongly advocated for a nationwide statute to shield refugees.

According to the findings of this literature analysis, no longitudinal research on the situation of refugees in India has been conducted by any of the scholars. Apart from the ideologies of “post-colonial system” and “care and power,” no proper logic has been found in India’s approach to refugees. Many scholars have looked at the reasons for the United States’ refusal to join the 1951 Refugee Convention, but few have focused on the government’s failure to regulate refugee safety standards. Aside from that, there is no research that compares the national refugee legislation of different countries, which may be useful in determining the potential target and current security requirements. As a result, there is a void in the current literature on India’s potential refugee policies.

RESEARCH OBJECTIVES

The researcher will first use a doctrinal research method to look into the legal aspects of refugee protection in India, gathering data from primary and secondary sources. Because India is not a party to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, the protection provided to various refugee groups has been subject to administrative discretion, which has resulted in arbitrary decisions on many occasions. As a result, the researcher will examine the trend of judicial pronouncements in India regarding refugee protection, as well as the responses of the Indian Parliament and other refugee-related organizations.

Second, using a non-probability convenience sampling method, the social condition of refugees will be studied in an empirical study by interviewing refugees from various refugee groups residing in India as registered refugees either by UNHCR or by the government. Finally, current international standards on refugee protection, as developed through Conventions, Declarations, and Directives, as well as national laws from various countries, will be examined.

Finally, the researcher will concentrate on the fundamental structure of a new refugee protection bill based on current international standards, as well as the shortcomings of the four bills currently under consideration in the LS.

RESEARCH QUESTIONS

1. What are the major refugee protection theories that have evolved from legal and political philosophy, and how are refugees treated in India?

2. What are the major responses, discussions, and activities related to refugee protection in India by the judiciary, parliament, government, non-government, and international organizations?

3. What is the current situation in India for refugees in terms of their rights and protection?

4. What are the refugee protection standards developed from an international, regional, and national perspective, and how can these standards serve as a possible roadmap for an Indian refugee law?

RESEARCH HYPOTHESIS

 In India, the use of ad hoc administrative mechanisms to deal with refugees has resulted in discrimination in their legal status and entitlements. Enacting a refugee protection law that takes into account current international standards as well as local constraints may result in secure equality of treatment and protection.

SCOPE

This study examines India’s refugee policies as well as the relevance of those policies. The issue of refugees around the world is a source of concern; it arises for a variety of reasons and circumstances, and it requires the authorities’ attention. India is home to a large number of refugee groups, and this research looks into the causes of refugee crises in the country. This dissertation uses the issue of Afghan refugees as a case study. The issue that this group of refugees is facing, as well as the Indian government’s role in resolving the issues and providing them with the necessary protections, are discussed.

RESEARCH METHODOLOGY

To complete this study, the researcher used a combination of doctrinal research and empirical research methods. The doctrinal method has aided in the development of the research study’s theoretical premise, concepts, and developments. The researcher used primary materials such as statutes, international conventions, covenants, and treaties, reports of various commissions and government/statutory bodies, and case laws, as well as secondary materials such as textbooks, commentaries, law review articles, case commentaries, and newspapers to address the research questions. To gain firsthand knowledge of the situation of refugees in India, including their arrival, status, settlement, livelihood, education, and health care, as well as detention, deportation, repatriation, resettlement, and permanent stay in India, the researcher conducted interviews with refugees using a structured interview schedule based on samples selected using a non-probability convenience sampling method. On the internet, the researcher referred to UNHCR, Bosco Refugee Assistance Program, and Central Tibetan Administration interviews with refugees from New Delhi, Chennai, and Darjeeling.

As the core question involves the analysis and study of a situation of hardship falling within the ambit of ‘impediment’, online source will again be useful for gathering comments of scholars and academicians.

TENTATIVE SCHEME OF CHAPTERIZATION

Chapter 1: Introduction

This chapter will be the preface to the dissertation, explaining in brief the various aspects with regard to the future of Asylum in India, protection of refugees along with certain recent legislative proposals which the author proposes to discuss in the following sections.

2.1 The Paradox of Sovereignty and Cosmopolitanism

2.2 The Future of Global Justice and Refugees

2.3 Refugees’ Legal Situation in India

2.3.1 Constitutional Provisions Regarding Non-Citizens’ Rights

2.3.2 The Laws Dealing with Foreigners

2.3.3 Administrative Measures: Notifications and Circulars

2.3.4 International Obligations

Chapter 3: CURRENT ASYLUM LAW AND PRACTICE

There are three sections in this Subpart. The first section looks at India’s place in the international refugee system. The second section examines India’s domestic law and policy on foreigners and asylum seekers. The government’s three approaches to refugee protection are detailed in Section 3.

Chapter 4: Visualization of Refugee Law for India

4.1 The National Asylum Bill, 2015 219

4.2 Definitions and Cessation

4.3 Status Determination and Procedure

4.4 Determination Authority

4.5 Rights and Obligations of Refugees

4.5 Citizenship Rights and Mass Influx Situation

Chapter 5: Protection of Refugees and Asylum Seekers Bill, 2015

5.1 Determination and Procedure

5.2 Decision-Making Bodies

5.3 Rights and Responsibilities

5.4 Mass Influx situation

Chapter 5: Conclusion

The research will be concluded by giving a clearer picture of the core issue of the research. The author will give her own opinions and suggestions in this matter after having carefully studied and interpreted the case laws and opinions of scholars and academicians.

REFERENCE


[1] M. P. Singh, ‘Positions of Aliens in India’ (Legal Position of Aliens in National and International Law, Heidelberg Colloquium, 1985)

[2] The intent of this paper is to offer a constructive critique of Tharoor’s asylum proposal. It’s not a dig at Tharoor, whose bill is well-received. The writer would be remiss if he did not point out the following potential for bias in the reader: Tharoor’s bill is based on a 2006 legislative proposal from PILSARC, a legal advocacy and research organization founded in 1987 and advised by the late Justice V.R. Krishna Iyer. Rajeev Dhavan, a Senior Advocate of the Supreme Court, led PILSARC. The writer was hired by PILSARC and helped draft the organization’s bill.

[3] B. S. Chimni (ed), International Refugee Law: A Reader (Sage Publications, New Delhi 2000)

[4] Veerabhadran Vijayakumar, ‘Judicial Response to Refugee Protection in India’ [2000] 12 International Journal of Refugee Law 235-243

[5] Pia Oberoi, ‘Regional Initiatives on Refugee Protection in South Asia’ [1999] 11 International Journal of Refugee Law 197-201

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