India’s legislative void on refugees

A steady flow of refugees from Afghanistan and Myanmar has highlighted what some observers have called India’s deliberate “strategic ambiguity”. India is not a party to the 1951 UN Convention on Refugees. Assistance and refoulement depend on geopolitical and domestic political considerations.

Milan (AsiaNews) – At least a thousand Afghan refugees arrived in the Indian capital seeking asylum right after the Taliban seized Afghanistan again in 2021.

After this, India introduced an electronic visa with the number of applications by Afghans growing steadily, up to 60,000; however, by December 2021, only 200 were granted.

India is not a party to the 1951 UN Refugee Convention, and it reportedly had 46,000 registered refugees in January of this year. However, the actual number is thought to be at least 213,000, almost half of them women, 36 per cent minors.

According to the UN High Commissioner for Refugees (UNHCR), at least 15,000 are Afghans, but most have no papers other than UNHCR-issued visas and identity cards which Indian authorities are not required to recognise.

Most Afghan refugees are Muslim, which makes it harder for asylum seekers to get citizenship, after the ruling Hindu nationalist Bharatiya Janata Party (BJP) of Prime Minister Narendra Modi changed the law to favour Sikhs and Hindus.

The Citizen Amendment Act offers protection from religious persecution to people of all faiths except Islam. According to Human Rights Watch, some 40,000 Rohingya found refuge in the country, but only half of whom are registered with the United Nations.

War in Afghanistan and Myanmar wars highlight the problem that India has with refugees. Foreigners, including refugees, come under the Foreigners Act of 1946, which does not guarantee assistance or protection from refoulement; on the contrary, it prohibits refugees from having any “association with persons” or “engaging in activities,” and restricts their movements.

The UNHCR has tried to fill the gap left by the lack of domestic legislation, but its operations remain unofficial.

India has never clearly explained why it has not signed the 1951 convention; some believe it is because the convention is Eurocentric, while others argue that the obligation to assist would place too much of a burden on government coffers.

Hence, India proceeds with ad hoc regulations based on the different groups seeking refuge and maintains what some call a deliberate policy of “strategic ambiguity" allowing it to act as it pleases in response to geopolitical events of the region and domestic politics.

For example, when Tamil refugees fled Sri Lanka's civil war, they were welcomed with open arms, but when Muslims fled Myanmar from internal strife, they were portrayed as a security threat.

In some cases, Indian courts have tried to fill the gaps, but were not always successful. In general though, refugee legislation would not only facilitate the work of UN agencies, but also reduce tensions in the region.

If it adopted its own laws, India would improve its reputation by presenting itself as a tolerant and secular nation, but the current government does not seem interested in this.

Granting six-month e-visas to Afghans seems more a propaganda ploy since it is unclear what will happen when their visa expires; meanwhile, security concerns have already led to the expulsion of hundreds of Rohingya.