This article is written by Sunny Diwaker, University of Allahabad, B.A.LL.B(Hons.), during his internship at LeDroit India.
Keywords:
Asylum laws in India, Article 21, UNHRC, Rohingya Muslims, Geneva Convention, Refugees
Introduction
Asylum laws in India are crucial in providing protection to individuals fleeing persecution, conflict, and violence. However, India’s asylum laws are not codified, leaving the country to handle refugees on an ad hoc basis. Keywords like asylum laws, Article 21, and Rohingya Muslims have gained significant relevance in recent discussions. India is not a signatory to the Geneva Convention of 1951, yet the nation continues to host large numbers of refugees, including special groups like the Rohingya Muslims. This article will explore the constitutional protections under Article 21, the role of international organizations like the UNHRC, and the evolving landscape of asylum laws in India.
Article 21 and the Right to Life and Liberty
One of the foundational pillars for asylum in India is Article 21 of the Indian Constitution. Article 21 states: “No person shall be deprived of his life or personal liberty except according to the procedure established by law.” The term “person” in this article is broad and includes not only Indian citizens but also foreigners residing within the territory of India. Therefore, refugees and asylum seekers can invoke the protection of Article 21.
Relevance to Asylum Seekers
Although India lacks a specific legislative framework governing asylum, Article 21 provides a safety net for individuals seeking protection from persecution. For instance, in National Human Rights Commission v. State of Arunachal Pradesh (1996 AIR 1234), the Supreme Court emphasized that refugees in India are entitled to the right to life and liberty under Article 21. This landmark judgment extended constitutional protections to the Chakma refugees and solidified the understanding that human rights cannot be violated even if someone is a non-citizen.
The judiciary has played a proactive role in ensuring that refugees are not deported if their life or freedom is at risk. Article 21 ensures that asylum seekers are treated with dignity and are not subjected to arbitrary detention, deportation, or any form of cruelty.
Role of the United Nations High Commissioner for Refugees (UNHCR)
India is not a signatory to the 1951 Geneva Convention or its 1967 Protocol concerning refugees. However, the United Nations High Commissioner for Refugees (UNHCR) plays a significant role in managing the refugee situation in the country.
UNHCR’s Operations in India
The UNHCR helps in determining refugee status, provides legal aid, and advocates for asylum seekers in India. It operates refugee protection programs for various groups, including Afghan refugees, Rohingya Muslims, and ethnic Tibetans. It also assists the government in humanitarian efforts, but the lack of formal asylum legislation often restricts the UNHCR’s capabilities.
Through its efforts, the UNHCR has been instrumental in bridging the gaps left by India’s absence from international asylum treaties. Yet, asylum seekers often face difficulties like lack of access to employment, education, and healthcare, underscoring the need for comprehensive asylum laws in India.
Asylum for Special Groups: The Case of Rohingya Muslims
The Rohingya Muslims, who have fled persecution from Myanmar, represent a special category of asylum seekers in India. As of 2023, India hosts approximately 40,000 Rohingyas, though they face an uncertain future due to India’s reluctance to provide them legal refugee status.
Government Stance and Legal Challenges
The Indian government has been hesitant to recognize the Rohingya Muslims as refugees, often citing national security concerns. In 2017, the government issued an order to deport all Rohingya Muslims, arguing that they posed a security risk. This sparked controversy, leading to the Supreme Court case Mohammad Salimullah v. Union of India (2017). The petitioners sought to prevent the deportation of Rohingyas, citing Article 21 and Article 14 of the Indian Constitution. Although the court acknowledged the petitioners’ right to life under Article 21, it deferred the matter to the government’s discretion.
While this legal tussle continues, the Rohingya issue has highlighted the urgent need for a formal asylum policy. The government’s stance on deporting the Rohingyas also contradicts the principle of non-refoulement, a cornerstone of international refugee law, which prohibits the return of asylum seekers to a country where they face persecution.
Geneva Convention and India’s Stand
The 1951 Geneva Convention on Refugees defines who qualifies as a refugee and outlines the rights of displaced people, as well as the responsibilities of nations that grant asylum. It is based on principles like non-refoulement and ensuring the dignity of refugees.
Why India Is Not a Signatory
India has refrained from signing the Geneva Convention and its 1967 Protocol, citing concerns over sovereignty and national security. The Indian government argues that refugee influxes could strain resources and disrupt social order. Additionally, India faces challenges in balancing its geopolitical relations with neighboring countries.
However, despite not being a signatory, India has historically sheltered millions of refugees, including Tibetans, Sri Lankans, Afghans, and Bangladeshis. India’s approach has been largely humanitarian, though inconsistent due to the absence of a codified asylum framework.
Need for Comprehensive Asylum Laws
Without signing the Geneva Convention, India lacks a structured legal framework for refugees. As a result, asylum is often granted based on diplomatic and political considerations rather than consistent legal principles. This results in a fragmented system where different groups are treated differently based on circumstances, rather than a uniform policy. Implementing comprehensive asylum laws could help India manage refugee inflows more systematically, ensuring the protection of human rights while balancing national interests.
Case Laws and Examples
Several landmark cases have shaped India’s asylum practices. Some of the notable ones include:
1. NHRC v. State of Arunachal Pradesh (1996): The Supreme Court held that the state could not drive out Chakma refugees, reinforcing the idea that refugees have the right to life and personal liberty under Article 21.
2. Mohammad Salimullah v. Union of India (2017): In this ongoing case, the Supreme Court is examining the government’s plan to deport Rohingya Muslims. The petitioners argue that deportation violates Article 21 and the principle of non-refoulement.
3. Ktaer Abbas Habib Al Qutaifi v. Union of India (1999): The Gujarat High Court recognized the principle of non-refoulement as part of the guarantee of life and liberty under Article 21, even though India is not a signatory to the Geneva Convention.
These cases demonstrate how Indian courts have extended constitutional protections to asylum seekers, often compensating for the absence of formal asylum legislation.
Critical Analysis and Recommendations
India’s asylum policies have evolved reactively rather than proactively. The country has demonstrated a humanitarian approach, but the lack of codified asylum laws leaves many refugees in legal limbo. Asylum seekers often face challenges related to legal status, access to resources, and basic rights. Moreover, the government’s inconsistent stance on different refugee groups, such as the Rohingyas, has raised ethical and legal concerns.
The Way Forward
1. Formalize Asylum Laws: India should draft comprehensive asylum legislation to ensure uniformity and clarity in dealing with refugees. The law should include protections like non-refoulement, access to basic rights, and due process for asylum seekers.
2. Adopt International Standards: While India may not sign the Geneva Convention, it can adopt international best practices in asylum management. Collaboration with UNHCR should be formalized and expanded.
3. Address Special Groups: Vulnerable groups like the Rohingyas require special attention. Instead of ad hoc decisions, the government should engage in transparent, rights-based decision-making processes.
4. Regional Cooperation: India should collaborate with neighboring countries and international organizations to address refugee crises in the region. A coordinated approach can help mitigate the burden on any single nation and ensure the humane treatment of refugees.
Conclusion
India’s approach to asylum, while rooted in humanitarian values, remains unstructured and inconsistent. The lack of codified asylum laws leaves gaps in protection, especially for vulnerable groups like the Rohingya Muslims. Article 21 offers some degree of protection, but there is an urgent need for comprehensive legislation that aligns with international standards. The role of organizations like the UNHCR remains crucial, but without a national asylum policy, refugee protection will continue to be administered on an ad hoc basis. In conclusion, India must balance its humanitarian commitments with national security concerns, ensuring that its asylum policies reflect both compassion and legal certainty.
References
- National Human Rights Commission v. State of Arunachal Pradesh, 1996 AIR 1234. (https://indiankanoon.org/doc/767216/)
- Mohammad Salimullah v. Union of India, (2021). (https://indiankanoon.org/doc/10486034/#:~:text=Mohammad%20Salimullah%20vs%20Union%20Of%20India%20on%208%20April%2C%202021&text=For%20entire%20document%20Mark%20above,markings%20Learn%20how%20it%20works! )
- Ktaer Abbas Habib Al Qutaifi v. Union of India, (1999). (https://indiankanoon.org/doc/1593094/)
- Constitution of India, art 14
- Constitution of India, art 21
- United Nations Human Rights Committee (UNHRC), General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13 (2004)
