The withdrawal of U.S. troops from Afghanistan has triggered a major humanitarian crisis in the country. The fall of the Afghan government and the Taliban’s return to power has resulted in many Afghans leaving the country in search of safety. Some countries have agreed to take in refugees from Afghanistan; India is one notable country that has agreed to provide safe shelter. India launched an electronic visa, the “e-Emergency X-Misc. Visa,” in August 2021 for Afghan nationals who wish to come to India. Since the launch of the new visa, India has received close to 60,000 applications from Afghan nationals. The visas will be processed after a security clearance is completed and be valid for six months.

The decision to provide emergency e-visas to Afghan nationals at such desperate times is a laudable initiative. As an important ally and neighbor to Afghanistan, India must extend a helping hand in times of need and the e-visa initiative appears to be a first step toward fulfilling these neighborly duties. However, India’s response also raises larger questions about India’s existing policies toward refugees and asylum seekers. Currently, India does not have any domestic legislation providing for the protection of refugees and asylum seekers, nor has it acceded to relevant international treaties. Thus, as more Afghan refugees come to India, it is time to look at what rights are currently provided to refugees and asylum seekers and what additional legal protections should be adopted.

Legislative Gaps

India has historically received refugees from various countries. According to United Nations High Commissioner for Refugees (UNHCR) data as of January 2020, there are nearly 200,000 refugees to whom India is providing assistance and protection. A majority of these refugees are from Tibet, followed by Sri Lanka, Myanmar, and Afghanistan. Despite such a heavy flow of refugees from nearby countries, India is not a party to the United Nations Refugee Convention (1951) or its Protocol (1967). India is one of the few countries in the world to have abstained from the Refugee Convention. While there are multiple, unofficial reasons for India’s decision to not sign the Convention, one primary reason is the “porous nature of borders in South Asia.” The frequent movement of individuals can cause strain on local infrastructure, resources, and security, which some argue would be exacerbated by adopting a convention explicitly recognizing the rights of displaced populations. Another reason often provided is that India already takes measures to help and protect refugees and asylum seekers. Hence, many believe that since India is already fulfilling its duty, there doesn’t arise a need to sign the Convention.

Despite these reasons it must be noted that not only do refugees in India lack the protection of international conventions, there is also no domestic law governing the protection of refugees or asylum seekers in India. Instead, The Foreigners Act of 1946, along with other related legislation that regulate the presence of foreigners, also apply to refugees and asylum seekers. The Foreigners Act provides broad powers to the government in terms of regulating and prohibiting the entry or departure of foreigners — including refugees — from India. Importantly, this Act does not recognize the rights of refugees or asylum seekers pertaining to access to social services or protection from refoulement. Instead, the Act under Section 3 places several restrictions on refugees and asylum seekers, which include prohibitions from any “association with persons” or “engaging in activities,” and “restrictions on [their] movements.”

Hence, in the absence of any specific domestic or international law protecting asylum seekers and refugees, India’s policy on these populations is mainly ad hoc or, in the words of B.S. Chimni, a “strategic ambiguity.” To fill the gap, UNHCR in India undertakes the process of assessing asylum seekers’ claims and issues refugee status certificates.  However, without a domestic law recognizing these certificates – or providing any official status to UNHCR’s operations – the rights associated with refugee status are subject to the political will of the Indian government and its negotiations with UNHCR. Although courts have repeatedly recognized the certification process in certain cases (see also), given the lack of statutory recognition, these certificates have only persuasive value, allowing the government to be strategic while adopting policies to govern the status of refugees.

With no clarity on their rights, many refugees and asylum seekers live in poor conditions. For example, refugees and asylum seekers do not have a legal right to work and, thus, are often found working in the informal job sector. Although the government has initiated policies for some specific refugee groups, like providing work authorization to Tibetan refugees in certain sectors, these policies are based on the political whims of the government and not set out in any legislation.

Judicial Attempts to Clarify Refugees’ and Asylum Seekers’ Rights

To fill the legislative gaps left by the absence of national or international law on refugee protection, Indian courts have repeatedly stepped in to protect the rights of refugees and asylum seekers. On several occasions, courts have upheld the application of specific constitutional rights to refugees, and directed state governments to protect them.  For example, courts have held that the right to equality under Article 14 and protection of life and liberty under Article 21 of the Constitution of India apply to all individuals, including those who are not Indian citizens. The courts have also upheld the principle of non-refoulement, which stipulates that no refugee or asylum seeker should be expelled or returned to a territory where there are substantial grounds to believe that their life or freedom would be threatened. This principle is codified in Article 33 of the Refugee Convention and also appears in other international conventions to which India is a party, and has arguably attained the status of universally binding custom under international law.

However, in the recent past, there has been an inconsistency in the manner in which Indian courts have approached this principle. In April 2021, the Supreme Court of India issued an order that refused to stay the deportation of Rohingya people, a persecuted minority ethnic group from Myanmar, even though their lives would be endangered by deportation. I previously argued that this order violates the principle of non-refoulement. On the other hand, the Manipur High Court in a recent judgment held non-refoulement to be an important principle enshrined under Article 21 (right to life and liberty) of the Indian Constitution and allowed seven nationals from Myanmar who entered India to escape from the recent military coup to be registered with UNHCR. The court called India’s refugee policy opaque and went on to criticize the government for characterizing these individuals as migrants searching for better living conditions, instead of asylum seekers or refugees who were forced to leave the country to escape persecution. The case provides just one example of how legislation that provides concrete definitions of migrants, refugees, and asylum seekers is necessary to protect the rights of these populations and also clarify the distinctions between these terms for law enforcement agencies.

Domestic Legislation as the Way Forward

Implementing a concrete legal framework that specifies the refugee registration process, including the rights and duties of refugees and asylum seekers, is essential for India to uphold its international obligations and to bring some form of certainty to the entire process. As India opens special e-visas valid for six months for Afghan nationals, it is uncertain as to what will happen to visa holders after the expiry of six months. To what extent will they be able to reapply or renew their visas is not clear yet. While the government is taking the issue one step at a time, there is no certainty about the future course.

It has been nearly 70 years since the passage of the Refugee Convention, and India is unlikely to join now, after all this time. However, that must not stop India from adopting specific domestic legislation on refugees and asylum seekers. While Indian courts have sometimes intervened by interpreting domestic law to protect refugees and asylum seekers, this cannot be a permanent solution. Refugees and asylum seekers must not be left to the mercy of ad hoc policies that change with different governments. Instead, dedicated legislation is needed. The current Afghan refugee crisis is an opportunity for India to realize the necessity for better laws and systems that clearly outline the rights, obligations, and registration process of refugees and asylum seekers. These improvements can help in bringing more uniformity to the policies of the government and promote transparency in the process.

 Image: Afghans residing in India take part in a demonstration outside, the UN Refugee Agency ( UNHCR) office in New Delhi on August 23, 2021 to protest against the Taliban’s military takeover of Afghanistan. (Photo by SAJJAD HUSSAIN/AFP via Getty Images)