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Indian Refugee Policy: From Strategic Ambiguity to Exclusion?

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Indian Refugee Policy: From Strategic Ambiguity to Exclusion?

India need a domestic refugee law to protect those persecuted, but it does not have to be an exclusionary one.

Indian Refugee Policy: From Strategic Ambiguity to Exclusion?
Credit: AP Photo/Altaf Qadri

More than 70 years ago, on August 11, 1949, P.S. Deshmukh presented an amendment proposal to the then-active Constituent Assembly of India, proposing “that every person who is a Hindu or a Sikh and is not a citizen of any other State shall be entitled to be a citizen of India.” Jawaharlal Nehru, the first prime minister of India replied: “you cannot in any such provision lay down more or less whom you like and whom you dislike; you have to lay down certain principles…you cannot have rules for Hindus, Muslims, or Christians only.” The men and women of the Constituent Assembly rejected Deshmukh’s amendment.

The debate over who is an Indian citizen has cropped up once again in recent months with the introduction of the Narendra Modi’s Citizenship Amendment Act (CAA), which amended the Citizenship Act of 1955 to grant fast-track Indian citizenship to Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians facing religious persecution in Afghanistan, Bangladesh, and Pakistan, and who entered India on or before December 31, 2014.

India is one of the few liberal democracies that is not a party to the 1951 UN Refugee Convention and its 1967 Protocol, nor does it have a domestic refugee law. Since Indian law does not define who is a refugee, the government can brand all refugees and asylum seekers under the umbrella “illegal migrant” term. India’s lack of a formal legal framework, domestically and internationally, has allowed it to follow an ad hoc policy regarding refugees.

B.S. Chimni, a renowned academic and legal expert on Indian refugee law and international law, has termed the arbitrary Indian asylum policy one of “strategic ambiguity.” For instance, while Tibetan refugees were allowed to form an exile government in India, the Tamilians that came in during the Sri Lankan civil war were put in strict, heavily monitored camps and India is presently in the process of deporting thousands of Rohingya Muslims originally from Myanmar.

In India, there are presently only four ways to citizenship: birth, registration, naturalization, and descent. Proponents of the newly introduced Citizenship Amendment Act (CAA) by the Narendra Modi government argue that the CAA could help the persecuted minorities in India’s neighborhood by providing citizenship by naturalization in six years to those who fall under its domain.

Nonetheless, the act only includes Hindu, Buddhist, Sikh, Jain, Christian, and Parsi refugees from the three Muslim-majority countries of South Asia.

Numerous critics have stated that the CAA violates Article 14 of the Indian Constitution, which promises “equality as a fundamental right to every individual” and clearly discriminates against persecuted Muslims (and also Jews and atheists) from these Muslim-majority countries, like the Ahmadiyya in Pakistan, by not giving them the same access to citizenship. Further, it reinforces the Hindu nationalist idea that India is first and foremost a “Hindu nation” over the secular democratic republic envisioned by India’s constitutional forefathers and foremothers.

The CAA could lead to large scale deportations and detentions in conjunction with the government’s plan for a nationwide National Population Register (NPR) like the National Register of Citizens (NRC) in Assam. Under a nationwide NPR, all minorities without the required documents will be deemed as “illegal migrants.” However, unlike Muslims, the non-Muslim refugees of Afghanistan, Pakistan and Bangladesh will be protected by the CAA and gain access to citizenship by naturalization.

The Indian constitution was framed with the idea of jus soli (citizenship by birth) as the principal basis for Indian citizenship. Over time, the focus shifted to citizenship by descent. The CAA-NPR exercise, for the first time in Indian history, will make religion the litmus test for the citizenship of India.

Moreover, the CAA also discriminates against other persecuted minorities on the Indian subcontinent who are not from Muslim-majority countries like Tamils from Sri Lanka and Rohingyas from Myanmar. Recently — in violation of its long-standing tradition of non-refoulement — India has deported Rohingyas (who are predominantly Muslim) that had fled “ethnic cleansing” in Myanmar.

The UNHCR has described the Rohingyas as “the most persecuted minority in the world.”

In 2017, over 700,000 refugees have fled from Myanmar’s Rakhine region after what UN officials have termed as genocide killed thousands of Rohingyas. However, the Indian government has argued for the deportation of 40,000 Rohingyas residing in India on the basis of a “national security” threat. It has also stated that India is not bound by the international refugee regime to follow non-refoulement as it is not a signatory to the 1951 Refugee Convention and the 1967 Refugee protocol.

In the past, India has created “disincentives” for some refugees to stay back in India, making it more of a transit country. For instance, the asylum seekers from East Pakistan (present-day Bangladesh) during the 1971 war were always considered “evacuees” and ensured their return. Nevertheless, India has never outrightly veered of its historic path of non-refoulement as it has in the case of Rohingyas, leading many to question the claims that the CAA would help all persecuted minorities.

The recently released Indian budget for 2020 has slashed the budgetary allocation for Relief and Rehabilitation for migrants and repatriates by three times. The 2020 Budget has also significantly increased the budgetary outlay for Census 2021, emphasizing focus on the NPR.

On January 22, 2020, after hearing 143 petitions challenging the legality of the CAA, the Indian Supreme Court has given the central government four weeks to respond. Nevertheless, the apex court has refused to stay the CAA and the NPR.

The new Citizenship Amendment Act follows similar tweaks made in 2015 by the Modi government to the Passport Act of 1920 and the Foreigners Act of 1946 that permitted Hindus, Buddhists, Jains, Sikhs, Parsis and Christians who had entered India from Afghanistan, Pakistan and Bangladesh to stay on even if they had entered without valid papers or if their documents had expired. Five years later, these changes are yet to be heard by the Indian Supreme Court despite being challenged.

Since the passing of CAA in December, hundreds of thousands of people have taken to the street to protest against the new legislation. In response, the government has invoked Section 144, a law barring public assembly, thereby, detaining and arresting thousands of protesters across the country and shutting down internet in many parts of the country. Many stalwarts of the Modi-led Bharatiya Janata Party (BJP) have called the protestors anti-nationalist. Some ministers like Anurag Thakur, the junior finance minister of India, have called for “these traitors of the nation” to be shot.

In the past week, following Thakur’s speech, two armed gunmen have openly shot at the protesters – one outside the Jamia Millia Islamia university on January 30, 2020, and the other at the 50-day women led sit-in at Shaheen Bagh on February 2, 2020. Since the protests erupted, more than 25 people – including an 8-year-old child – have been killed in clashes with the police.

India’s birth as a nation was followed by a large-scale and violent mass movement of people to and from Pakistan during the Partition. New Delhi’s refusal to sign the 1951 Convention, like that of some other developing countries, lies in the fear of the economic and political strain that the rehabilitation and resettlement of refugees holds and the obligations under the global refugee regime. This has left the treatment of refugees exposed to the whims of whoever holds the political power in New Delhi.

India need a domestic refugee law to protect those persecuted, but it does not have to be an exclusionary one.