Asylum Laws in India: Can a Foreign National Seek Asylum? Rights of Refugees

Protection of refugees is an important question for the world. As stated in the Convention of Refugees of 1951, a refugee is a person who is outside the country of his nationality or habitual residence because he has a well-grounded fear of persecution. This definition is internationally recognized, and India does not have a specific definition but instead has the term ‘alien’. Though India does not recognize any legal definition of a refugee, it has provided asylum to the refugees from Syria, Afghanistan and Ethiopia among others. India recognizes and provides asylum to refugees even though it is not a party to the 1951 Refugee Convention or its 1967 Protocol but it complies with the principle of non-refoulement. Given the lack of national refugee legislation and concern with national security particularly in the south Asian region, India’s approach has become rather complicated. This article aims at determining whether foreign nationals can apply for asylum in India, the legal provisions for this and examine the rights and procedures of the refugees.

History of Refugees in India

It can be said that India has had a tradition of hosting refugees, few years before the country’s independence itself. Some are historical such as the situation of Zoroastrian community that was forced to flee from Iran due to instances of persecution. Additionally, the 1947 Partition resulted in the displacement of over 20 million people, which resulted in the Indian government passing Rehabilitation Financial Administration Act, 1948.

Thereafter, in 1959, Dalai Lama and other Tibetan Refugees were allowed to settle into different states of the country making Himachal Pradesh one of the bases for them. Tibetan refugees were not given citizenship, but were given several other rights. Likewise, millions of civilian families of East Pakistan moved to India especially to West Bengal and Assam during 1971 Bangladesh Liberation war even though it put pressure on the available resources but it proved India’s humanitarian stand.

In the 1980’s because of the civil war many Tamil Refugees fled from Sri Lanka to seek asylum in India. While India provided relief, the situation was complex given ethnic and political sensitivities. The Rohingya crisis in 2012 also led to Rohingya Muslims fleeing Myanmar to India. India’s response has been cautious, influenced by security concerns, and the issue of asylum remains politically sensitive.

In India’s case the following have provided the basis for its stand regarding the status of refugees: Universal Declaration for Human Rights, ICCPR of 1976 and ICESCR.

These treaties are binding in the international scheme of things and bestow some rights on the refugees such as freedom of movement and as such cannot be ousted.

Challenges in the Present System

The challenges are seen with India’s asylum management, the major one being the lack of a legal basis for its operations. This has a tendency of leading to disparate asylum claim processing, compounded by issues of national security and political influence. Political factors too determine the asylum policy in India. Despite the protection afforded to refugees, there is no adequate legislation in India to protect the refugees adequately. Among them, the UNHCR is an important organization that assists asylum seekers in obtaining legal assistance and services.

Can a Refugee Seek Asylum in India?

Since India does not have a proper asylum law and treats refugees under the immigration laws such as the Foreigner’s Act 1946 and Passport Act 1967. Asylum decisions are usually made with the use of the agreements between two countries or international conventions. The UNHCR helps in the processing of the claims and coming up with means of resettling the refugees.

India grants asylum to refugees depending on humanitarian and political grounds such as the Tibetans and the Sri Lankan refugees. Asylum seekers may be legally entering the country with a valid visa, however in cases of refugee crisis some may enter without a visa. Refugees can legally remain in India, though they are not granted citizenship or permanent residency.

How to Apply for Asylum in India?

Refugees and asylum seekers in India are typically dealt with under the Foreigners Act, 1946, the Citizenship Act, 1955, and certain executive orders. The (UNHCR) plays an important role in refugee and asylum-related cases.

Legal Framework:

1.    Foreigners Act, 1946:

• This law grants the Indian government the power to control the arrival, existence and exit of foreigners in India.
• Section 3 provides the government with sweeping discretion to make orders relating to foreigners, their deportation or detention or treatment.

2.    Citizenship Act, 1955:

• Section 6A concerns itself with the persons of Indian origin who came to India from Bangladesh, although it is not specifically about refugees.
• There is a provision of acquiring citizenship for refugees or asylum seekers if they have stayed in India for 12 years under some circumstances.

3.    The Constitution of India:

• The right to life so as well as the right to personal liberty enshrined in Article 21 are accorded to both, the asylum seekers and refugees. This has been construed by the courts to afford certain measures of protection from deportation to persecution faced individuals.
• The Supreme Court has invoked Article 21 to stop the deportation of some refugees on the grounds of non-refoulement meaning that refugees cannot be sent to a country where they will be persecuted.

Application Procedure for Asylum in India:

1.    UNHCR Registration:

• A majority of asylum seekers visit the UNHCR for the consideration of refugee status. This is done because India does not have a national legal regime on asylum.
• An asylum seeker can report to the UNHCR in India as the organization which undertakes interviews and decides on the refugee status on the basis of the international norms.
• In case the person is granted refugee status then he/she gets a refugee card from UNHCR which guarantees limited protection against force expulsion and restricted amenities in India.

2.    Process of Seeking Asylum:

• Step 1: Visit the UNHCR – Asylum seekers must visit the New Delhi office and apply for a refugee status by filling out a form.
• Step 2: Documentation – They must produce their identity cards/Passports/any other legal documents that would justify the persecution or the danger they are likely to face in their home country.
• Step 3: Interview – During the interview, the UNHCR examines the asylum seeker’s claims and evaluates his/her credibility.
• Step 4: Refugee Status Determination (RSD) – Depending on the answers given and the documents submitted, the UNHCR makes a decision whether the given person can be granted the status of refugee.
• Step 5: Refugee Card Issuance – On being recognized as a refugee, the asylum seeker receives a refugee card that offers limited protection and some rights in India.

3.    Stay of Deportation:

• Asylum seekers can approach the Indian courts (High Court or Supreme Court) under Article 226 or Article 32 of the Constitution if they are under risk being deported to their home country. They can seek relief by filing an appropriate writ petition and invoking Article 21 (right to life and liberty).
• Indian courts have issued stay orders against deportation where asylum seekers right to liberty are under any threat.

Government of India's Role:

• The Indian government recognizes the refugee cards issued by the UNHCR and does not generally deport individuals recognized as refugees.
• The grant of asylum of foreigner is usually based on diplomatic, political, or humanitarian considerations and the Indian government exercises discretion in this regard.

Exceptions:

• Tibetan Refugees: Special residence permits, and refugee documents have been given to Tibetans who arrived in India before 1980 and they are recognized as refugees.
• Sri Lankan Tamils: The Government of India has made special provisions for Tamil refugees from Sri Lanka, particularly after the civil war in Sri Lanka.

Legal Framework Governing Refugees in India

India's legal system indirectly addresses refugee issues through laws such as:

• Citizenship Act, 1955 (No.57 of 1955)
• Extradition Act, 1962 (No. 34 of 1962)
• Foreigners Act, 1946 (No.31 of 1946)
• Illegal Migrant (Determination by Tribunals) Act, 1983 (No.39 of 1983)
• India Penal Code Act, 1860 (No.45 of 1860)
• Passport (Entry into India) Act, 1920 (No.34 of 1920)
• Passport Act, 1967 (No.15 of 1967)
• Protection of Human Rights Act, 1993 (No.10 of 1994)
• Registration of Foreigners Act, 1939 (No.16 of 1939)
• Immigrants (Expulsion from Assam) Act, 1950
• Administration of Evacuee Property Act, 1950

These statutes govern foreign nationals' entry and stay but do not address refugees' specific needs. The Refugee and Asylum Bill, 2019, could provide a legitimate framework, but until then, India relies on extemporary measures and UNHCR guidelines.

Key Legislative Developments on Asylum and Refugees in India

• Model National Law on Refugees: This model was proposed by P.N. Bhagwati in 1990 and was aimed to standardize asylum laws in India. It aligned with international human rights obligations but was never introduced in Parliament.
• United Provinces Land Acquisition (Rehabilitation of Refugees) Act, 1948: This Act though lacking comprehensive asylum framework, facilitated land acquisition for the rehabilitation of refugees from Pakistan post-Partition.
• East Punjab Refugees (Registration of Land Claims) Act, 1948: Enacted to handle land claims of refugees from Pakistan, this law focused on land restitution rather than broader asylum issues.
• The Protection of Refugees and Asylum Seekers Bill, 2015: Proposed a formal legal structure for refugee protection, including rights and processing procedures. The bill did not advance beyond the proposal stage.
• The National Asylum Bill, 2015: Introduced by MP Feroze Varun Gandhi, this bill aimed to establish a structured legal process for asylum claims and create an asylum commission. It stalled at the parliamentary level.
• The Asylum Bill by Dr. Shashi Tharoor (2015): This bill, developed with the Ara Legal Initiative, sought to create a transparent legal system for refugees and align with international principles. It also failed to gain parliamentary support.
• The Refugee and Asylum Bill, 2019: This bill aimed to define asylum procedures and refugee rights but did not progress past introduction.

The Evolution of India's Asylum Framework and the Citizenship (Amendment) Act, 2019 (CAA)

While nothing came of these legislative proposals, they facilitated the maturing debate over asylum and refugee protection in India. Interestingly, though, the Citizenship (Amendment) Act, 2019, marked a watershed moment in this evolving discourse in a very controversial manner.

The CAA grants accelerated citizenship to a set of religious minorities from Afghanistan, Bangladesh, and Pakistan, who arrived in India before December 31, 2014, except for Muslims. As a result, there was widespread criticism and even protests against this act for violating the secular tenets of India and international conventions.

This CAA provides a way to citizenship for certain sections but excludes the larger section of refugees or those who have crossed after the cut-off date of 2014. It once again underlines India's penchant for ad-hoc measures rather than a holistic framework on asylum, thus throwing thousands of these refugees into legal wranglings and pointing to the need for an integrated refugee law.

Rights of Refugees in India: A Legal Overview

Even though there is no specific law regarding refugees, India provides some rights and protections in consideration of constitutional safeguards, judicial precedents, and international norms:

1.    Refusal to Refoulement: Despite not being a signatory to the 1951 Refugee Convention, Indian courts have applied the rule of non-refoulement through the Right to Life and Personal Liberty, Article 21 of the Constitution, which prohibits expulsion or deportation.

2.    Human Rights Protections: Refugees are entitled to the basic human rights under the Constitution, which include:

• Right to life and liberty (Article 21)
• Protection against arbitrary detention (Article 22)
• Right to freedom of religion (Article 25)

3.    Legal Status: Refugees are acknowledged by the UNHCR, but the said organization has no role in the formal legal status of India. Identity documents are issued by the UNHCR; however, those do not give refugees a legal status in India.

4.    Employment: Refugees may engage in informal employment. The absence of a formal work permit restricts their access to legal protections.

5.    Freedom of Movement and Religion: Refugees tend to be more restricted in their movements, especially if they are illegal entrants. However, they continue exercising their religion.

6.    Detention: Refuges are detained under the Foreigners Act for illegal entry or overstaying, but courts treated them with due process and treated them humanely.

7.    Special Protections: Courts offered preferential treatment for women and children; provided bail more easily and reunited family members for unaccompanied minors.

Constitutional and Judicial Protections

Rights of Refugees: Indian Constitution has conferred various fundamental rights unto its nationals and has also made these rights available to the refugees who reside in its land as a part of it. Article 21 conferred right to life and personal liberty and article 14 ensured equal right of every human being before the eyes of law. Again, religion-based freedom has also been ensured under Article 25. Articles 5-11, 19, 20, 22, and 32 provide some other rights to non-citizens but on restricted terms. Though these rights do not form a direct protection for refugees themselves, they represent an important legal safeguard for all Indian citizens.

Role of Indian Courts: The role of the Indian judiciary, primarily the Supreme Court, has been interventionist and activist regarding the protection of rights of the refugees. Even the courts have stayed deportation proceedings, they have admitted the role of UNHCR in determination of refugee status. In fact, Supreme Court has laid down in Louis De Raedt v. Union of India that rights of non-citizens too remain to be exercisable, and their right to life and dignity remains intact. Non-refoulement does not permit persons to return places where they are likely to be put in danger or persecution. It is a principle which, though not of any formal codification of Indian law is observed in practice.

Judicial precedent and International law

International law impact: India does not have local law to administer provision for refugees; however, the Indian courts commonly refer to international conventions like 1951 Refugee Convention and 1967 Protocol for interpretation under such decisions. In Visakha v. State of Rajasthan, the Supreme Court indicated that international conventions should be relied on when interpreting rights of Refugees.

Supremacy of Domestic Law: International treaties in India become applicable in court only after being incorporated into the country's domestic law. The Supreme Court stated that though principles of international law are meant to instruct judicial construction, were such principles inconsistent with domestic law, they will be considered ultra vires.

Managing the Refugee Influx in India

India stands at a sharp crossroad when it has to deal with refugees entering into its borders because of persecution, war, and instability emerging out of other countries. Refugees who cross through land, air, or sea face the multi-layered system of law because border security forces and law enforcing agencies have the last word on their life in detention, deportation, or continued stay.

Role of Border Guarding Forces

A.    India’s border security is managed by three primary forces:

• Border Security Force (BSF): Deployed along the borders with Pakistan and Bangladesh.
• Indo-Tibetan Border Police Force (ITBPF): Secures the China border.
• Assam Rifles (AR): Patrols the Myanmar border.
• India Coast Guard: Protecting any invasions from Sea at the Indian Peninsula

B.    Key Responsibilities:

• National Security: Basically, it is only to ensure national security and protect the integrity of India's borders and primarily for controlling illegal immigration.
• Refugees Capture: These forces intercept refugees aiming to cross illegally. Border officials have the mandate to detain and examine such individuals with the aim of ascertaining their intentions. Mostly, such interrogations are done upon cooperation from local law.
• Non-Refoulement Concerns: Refugees caught at the border often face immediate repatriation, a practice that violates the principle of non-refoulement—which prohibits sending refugees back to places where they face persecution.

Legal Protocol and Detention

Upon detention by border forces, refugees are transferred to local law enforcement for further legal proceedings:

• Registration of FIR: Under the Criminal Procedure Code (CrPC), police may register a First Information Report (FIR) for violations of the Foreigners Act, 1946, the Passport Act, 1967, and the Indian Penal Code (IPC).
• Prolonged Detention: Refugees may face prolonged detention without formal charges if they are suspected of crimes for example, espionage or smuggling.

Case Study: Mehmud Ghazaleh, an Iranian, who was registered with the UNHCR and was apprehended at the Sonauli border, in an attempt to leave India with fake papers. He was put behind bars on charges under different sections of the IPC and the Passport Act.

Challenges with Travel Documents

Among the key challenges that face refugees is that they lack valid travel documents:

• Use of forged or Expired Passports: Most refugees, just seeking an end to persecution, use forged or expired documents. Indian immigration officials have been trained to detect differences like these.
• Legal Reproduction: When refugees are caught with false documents, they are surrendered to police who lodge an FIR and then prosecute refugees under various legal provisions.

Case Study: An instance of fraud at the lower levels involves a Sri Lankan Tamil refugee, Winston Venojan, who was conned by a travel agent into using a forged passport. He is detained at New Delhi International Airport in judicial custody and is awaiting trial.

• Expired Permits: Legitimate refugees who enter India with proper documents get into legal trouble if they stay beyond the validity period of their visa or residential permit. The local police scrutinized the residents of such places and would arrest many of them without proper documentation accompanying them.

Forced Deportation and Violation of Non-Refoulement

India’s practice of forced deportation poses serious concerns regarding the rights of refugees under international law:

• Contravention of Non-Refoulement: Refugees caught without proper documentation are frequently deported back to their home countries without thorough examination of their persecution claims.
• Financial and Humanitarian Impacts: Normally, deportees end up poorer during detentions and repatriations and are reduced to a miserable state of destitution.

Case Study: A Palestinian refugee, Majid Ahmad, was caught between Nepal and India. He was detained for over 25 days in the immigration lounge at New Delhi airport, awaiting deportation, which contravenes refugee protection standards.

Leave India Notices and Deportation Orders

Refugees failing to comply with India’s immigration regulations are served “Leave India” notices under the Foreigners Act:

• Consequences of Non-Compliance: Refugees who fail to leave within the specified period face arrest and forcible deportation.  
• Legal Remedies: Refugees can challenge these orders in Indian courts. Many have succeeded in achieving a stay on their orders of deportation through legal petitions.

Case Study: Gurinder Singh and Karamjit Singh were two Afghan Sikh refugees who had criminal writ petition against deportation orders before Punjab & Haryana High Court and got stay orders on deportation. It provided the first judicial redressal to be reported in such cases.

Conclusion

As if it were a mosaic of overlapping legal principles, the Indian approach to refugees reflects a storied tradition of providing sanctuary but leaves open the inescapable gaps because of the absence of an asylum framework that is codified. In essence, judiciary and constitutional safeguards have served as protectors, though these protections remain fragmented and vulnerable to changing policies and geopolitical dynamics. The Citizenship Amendment Act is, in itself, a stellar piece of legislation but comes only as a select bridge and not a thorough safeguard as it offers shelter to one kind of religion like an umbrella, leaving several unprotected underneath it.     

This, thereby, leaves the position of refugees in India in a state of legal maze where uncertain directions are present at places and at times uncertain verdicts, leading to no uniform law. The international oversight comes through the United Nations High Commissioner for Refugees which means there is another layer, though this too functions within the parameters of India's broader legal framework which is still to embrace the holistic norms of global refugee protection standards. The tension between humanitarian obligations and national security concerns can hardly be understated; yet it is that same tension which requires clarity through legislative reform.

Greater protection than fragmented solutions should be provided to the rights and dignity of all individuals seeking refuge within its borders, irrespective of religion, nationality, or creed. Genuine asylum law must transcend procedural formalities and embody a moral imperative, urging India to reclaim its role as a protector of the distressed. This commitment will reaffirm India’s ancient credentials and dedication to upholding international legal principles. Such reform is essential for India to truly serve its national interests and humanitarian legacy, ensuring the most vulnerable find refuge and justice under its laws.