Refugee Crisis in India and it’s Jurisprudence | Aman Prakash

By | April 25, 2020
Refugee crisis

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This article ‘Refugee Crisis in India and it’s Jurisprudence’ deals with the right to seek asylum in India and various aspect of it. The failure to protect mass influxes has damaged the credibility of the international refugee regime. India’s experience calls for promoting the principle of non-refoulment, using differentiated protection procedures, intelligently managing refugee populations, and addressing secondary movements.

Introduction

In the words of Shashi Tharoor,

The right to seek asylum in India will be available to all foreigners irrespective of their nationality, race, religion, or ethnicity, and the Government cannot send anyone back to a country where his or her life would be in danger.

The most comprehensive bill on the issue of Asylum presented in the Lok Sabha amongst the total three was Asylum Bill, 2015 by Shashi Tharoor. The bill claimed that India will be at the frontier of Asylum management in the upcoming years. The draft does not stand out in presenting the international concerns and duties concerning the domestic experience. Furthermore, there is a limitation regarding the inclusion of political asylum and the extension of protection is granted only to refugees.

The crisis of International Refugee Crisis

The fact that India is a non-signatory to the Refugee Convention of 1951 and also the absence of national legislation is not an embarrassment to India owing to the historical background of India in the protection of refugees. The European jurisprudence along with the traditional racist approach of the convention restrained India from signing the aforementioned.[1] The stand of India at that time was not taken into consideration ad no modification was made to the convention’s language regarding the same thus owing to the rejection.[2]

After 1947, when India was experiencing the largest migration of mass owing to the colonial partition the convention refused to give these migrants the status of refugees and also didn’t respond to the Indian concern of sharing the capital with that of the colonial masters that will be used in the resettlement of the aforementioned people.

The convention does not fill the gap regarding ‘mass influx’ meaning thereby the situation in which there has been a war declared upon a state and a big chunk of the population moves together. In these types of situations, it is not possible or rather feasible for an individual to prove that there is an individual-centric debacle in place or they are being persecuted individually by the state.

The status of these people is not dealt with and covered by the aforementioned convention. Also, the status of people belonging to a heterogeneous group in terms of citizenship is in doldrums and it is not possible to brand them with a particular status as to award them protection under the convention.[3]

A refugee is a pre-condition as to seek asylum but the difference is hardly realized. Being a sovereign, every country has its right to grant asylum according to its discretion though in consonance with the established international principle. The fear of ‘Disguised extraditions’ along with the possibility of infiltration in the name of seeking asylum restricts the country in showing such a gesture. The principle established to protect the most vulnerable also gives discretion to the countries of putting the reasons behind the immigration on a priority list. Also, there is no similar jurisprudence or any acting agency to identify potential migration.

Heterogeneity: Nation Building

The last stand of India has cost it the relation with its immediate neighbour and superpower China owing to the protection given to Dalai Lama and his followers.[4] The fairness inspired by Jawaharlal Nehru though resulted in the souring of the relationship with China but was a courageous and humanitarian stand to take. The second moral stand took by India was in the regime of Indira Gandhi when another neighbour suffered from the atrocities of genocide and around 10 million Hindus and minorities fled from East Pakistan in 1971.

  • India as a Motherland

The diversity available in India makes it easier for refugees to adapt to the territory. Also, the emergence of refugee jurisprudence in India is due to the mass influx of immigrants from East Pakistan, Sri Lanka, and China which then resulted in the development of national perception. There also have been instances where people were forced to pave their way through India to get their protection and recognition by the state as evidenced by the case study done on the Lhotshampa minority in Bhutan.[5]

The Indian nation-state in its constitution has enshrined the people and has not restricted the protection of life, liberty, and dignity only to the citizens. But because of the tampering and politicizing of the issues along with the discrimination done restricts the scope of realizing the need to ascertain the status and rights to the refugees and the asylum seeker. Also, no participatory nationality in terms of citizenship is extended to the refugees.[6]

Asylum law: Ingredients

The uniqueness embedded in the Indian state demands the following objectives to be placed high on the priority ladder and must adhere to the exceptional stand taken by the country on the instant matter at hand. The objectives are as following:

  • creation of schemes regarding their protection;
  • mixed flows are in need to be addressed;
  • mass influxes should be the priorities;
  • governance of refugee matters should be proactive.

But the whims and fancies of the government must be restricted and the status of refugees must not be treated as a gift rather there should be a universal law to ascertain these rights. The ad hoc nature of the refugee law is in a requirement to adopt the institutionalized version of the system to give certain results.[7] Thus, this modern regime is an answer to the previously unwritten and non-systematic practice.[8]

The flow of people and the determination of Identity

The basic notion of refugee law stands on the individualistic jurisprudence and the status of being a refugee cannot be granted to a group of people irrespective of the fact that the group satisfies the parameter of being a refugee.[9] The asylum law requires to address refugees, political asylums along with the victims of climate change, and natural disasters.[10] The demand for individual proof establishes the slow nature of the determination of the refugees and there is no mechanism to address the same.

Also, the problem of mixed flow and the identification thereto lacks a definitive mechanism and often lies with the discretion of the government. The differentiation and categorization need to be done correctly based on written legislation to avoid uncertainty. The heavy influx of mixed groups can substantially delay the process of providing them with the status and the protection thereto.[11]

India in its history has hosted more refugees than the entire population of Greece and it’s a matter of fact that the building of India after 1947 has shaped a corner of our country. India has also adhered to the international principle of non-refoulment and does not sends back people from its border or expel the incoming population at the border only. The recognition of the refugees is necessary for the migrants as well as the state to identify the eligible candidates and the armed groups which might enter the country.

The identification or the mechanism to screen is also necessary for providing the necessities and healthcare facilities to the refugees. The de-militarisation and the accommodation of existing refugees are also challenged faced by the government of India. The scheme of work permits and the strategies required to close down the existing situation needs to be formulated for peaceful and humanitarian accommodation.[12]

Weighing Shashi Tharoor’s Asylum Bill, 2015

There was a proposal in the parliament regarding the same in 2006 and the current single-member bill is a replica of the same.[13] The non-addition of anything new and specific to the Indian context disappoints the republic also the exclusion clause enumerated under the bill makes the existing refugee population vulnerable to exploitation.[14]

The differentiation in asylum treatment and the categorization of asylums is lacking in the instant bill at hand along with the refugee governance models. The agenda of this bill is to establish a regularized system and a legal framework to protect asylum seekers. It is rather a ‘matter of fact’ than ‘matter of law’ as no universality is there.[15] A commission is proposed to be established to take decisions on the provided application from the asylum seekers.[16]

The commission will comprise of a Chief Commissioner along with six more commissioners that will be appointed by the Centre. ‘As per the United Nation’s refugee body UNHCR, in India there were 2,01,281 refugees and 6,480 asylum seekers at the end of 2015’.

Way Forward: Refugee Crisis in India

The failure to protect mass influxes has damaged the credibility of the international refugee regime. India’s experience calls for promoting the principle of non-refoulment, using differentiated protection procedures, intelligently managing refugee populations, and addressing secondary movements.[17]

Refugee situations should be proactively governed. Processing centres should be efficiently located. Evidence-based impacts on home communities should determine how refugee communities are hosted. Refugee camps must be demilitarized.[18] The right against statelessness must be actualized. Durable solutions should be strategically pursued. Participatory citizenship models should be developed.[19]


By – Aman Prakash

Refugee Crisis in India and it’s Jurisprudence: The author is a  Legal Associate under Additional Advocate General, Patna High Court and an Alumni of Institute of Law, Nirma University (2013-18).


[1] Barnes, R. (2004). Refugee Law at Sea. The International and Comparative Law Quarterly, 53(1), 47-77. Retrieved from http://www.jstor.org/stable/3663136.

[2] Bhattacharjee, S. (2008). India Needs a Refugee Law. Economic and Political Weekly, 43(9), 71-75. Retrieved from http://www.jstor.org/.

[4] Agnès Hurwitz. (2012). Norm-Making in International Refugee Law. Proceedings of the Annual Meeting (American Society of International Law), 106, 430-433. Doi:10.5305/procannmeetasil. 106.0430.

[5]Bubb, R., Kremer, M., & Levine, D. (2011). The Economics of International Refugee Law. The Journal of Legal Studies, 40(2), 367-404.

[6] http://thewire.in/76546/shashi-tharoor-asylum-bill-2015/

[7] https://www.ndtv.com/india-news/asylum-bill-may-be-taken-up-in-parliaments-winter-session-1586301

[8]http://nujslawreview.org/2017/01/06/the-future-of-asylum-in-india-four-principles-to-appraise-recent-legislative-proposals/

[9] BASHFORD, A., &McADAM, J. (2014). The Right to Asylum: Britain’s 1905 Aliens Act and the Evolution of International Law, 95(2), 309-350.

[10]Storey, H., & Wallace, R. (2001). War and Peace in Refugee Law Jurisprudence. The American Journal of International Law, 95(2), 349-366.

[11] http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/3088LS.pdf

[12]Farbenblum, B. (2011). EXECUTIVE DEFERENCE IN U.S. REFUGEE LAW: INTERNATIONALIST PATHS THROUGH AND BEYOND “CHEVRON”. Duke Law Journal, 60(5), 1059-1122.

[13] GRAHL-MADSEN, A. (1982). International Refugee Law Today and Tomorrow. Archiv Des Völkerrechts, 20(4).

[14]Blay, S., & Zimmermann, A. (1994). Recent Changes in German Refugee Law: A Critical Assessment. The American Law Review.

[15]Marouf, F., & Anker, D. (2009). Socioeconomic Rights and Refugee Status: Deepening the Dialogue between Human Rights and Refugee Law. The American Journal of International Law,103(4), 784-796.

[16] https://www.hindustantimes.com/india-news/70-years-into-independence-india-is-formulating-uniform-law-for-asylum-seekers/story-tdszNLwThmLu4QC3xAKyok.html

[17] Pirie, S. (1986). The Need for a Codified Definition of “Persecution” in United States Refugee Law. Stanford Law Review, 39(1), 187-234.

[18] Feldman, I. (2007). Difficult Distinctions: Refugee Law, Humanitarian Practice, and Political Identification in Gaza. Cultural Anthropology, 22(1), 129-1`69.

[19]Grahl-Madsen, A. (1966). The European Tradition of Asylum and the Development of Refugee Law. Journal of Peace Research, 3(3), 278-289.


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  • Amina Khan says:

    Very well explained article.

  • Gitsberg says:

    India should rather treat refugee populations as an asset instead of regarding them as a drain on natural resources