Since the Partition of India in 1947, South Asia has witnessed periods of mass movement and forced displacement. Yet, since none of the states in South Asia (except for Afghanistan) are parties to the 1951 Convention Relating to the Status of Refugees or its 1967 Protocol (Refugee Convention), the history of forced migration in the region is not always accounted for in the international refugee law scholarship. In seeking to redress this gap, this short article will analyse why India refrained from becoming a signatory to the Refugee Convention. Furthermore, it draws attention to the practice of refugee protection in the country and how it is currently changing.
The Partition of India and the Refugee Regime
The Partition of India in 1947, which divided British India into the two independent states India and Pakistan, constituted a violent end to formal colonialism in South Asia and resulted in mass displacement of more than ten million people across the newly created international borders—Hindus and Sikhs to India, and Muslims to Pakistan. Both states faced tremendous challenges in responding to the protection needs of the displaced. This experience with forced mass movement of people coincided with the early deliberations for a post-war international refugee treaty. However, it was not acknowledged by policy makers in the Western World – a matter that colored both India's and Pakistan's engagement with the formal drafting process of the Refugee Convention in 1950/51.
After the partition, India and Pakistan attempted to engage constructively with the formal drafting process of what was to become the Refugee Convention. However, both states expressed concerns on various issues, most importantly the definition of a refugee. As it was later to find its way into the 1951 Convention criticism was voiced during the drafting process that the contracting states were given the option of geographically limiting the refugee definition: Thus, in Article 1B, the Convention distinguishes – after demands by several European states – between people who were displaced as a result of "events occurring before 1 January 1951" only within Europe or "in Europe or elsewhere." Depending on which of the two definitions a country chose, it committed itself only to the particular group affected. It was not until the 1967 Protocol that this geographic limitation of the definition of refugee was removed.
The representative of Pakistan, during the negotiations for the convention, "was of the opinion that the definition … should not be limited by any territorial boundaries". India's and Pakistan's permanent representatives to the United Nations also expressly demanded that displacement resulting from the partition of British-India be addressed. However, they were met with resistance, resulting in their disillusionment with both the Convention and the mandate of the United Nations High Commissioner for Refugees (UNHCR). India stated that the "objections raised confirmed [their] belief that fundamental differences existed". It became clear that specific refugee situations that did not fit within the Eurocentric notions of forced displacement were left outside the purview of the global refugee regime. South Asia was warned of the "marginal impact its unprecedented refugee crisis was having on the world stage".
India's disillusionment with the refugee protection framework
By the time the final stages of the drafting process of the Convention began both India and Pakistan had withdrawn their participation in the negotiations. This was the response to the emerging contours of an international refugee regime that were in both states' eyes overwhelmingly Eurocentric in their approach. The discussions around refugeehood in the framework of the negotiations leading up to the drafting of the Refugee Convention did not adequately consider the subjective experiences of those in the Indian subcontinent and viewed forced displacement solely from a European standpoint. The language of the Convention ignored the historical context of the partition of the Indian subcontinent and did not adequately capture the consequences of arbitrarily and forcefully drawn borders, and erased the subjective experiences of those who had felt the impacts of the partition.
The international community's preoccupation with post-WWII displacement in Europe was based on the argument that displacement in South Asia was not a refugee crisis but was an exchange of populations. The implication was that those who were relocated across the newly created international borders in South Asia did not in effect lose their citizenship like many of those who were displaced after WWII. This led to the belief by Western observers that those who were relocated across the newly created international borders in the Indian subcontinent would enjoy the protection of the new governments of India and Pakistan that were being instituted and did not require international protection. However, such an observation is inaccurate. The creation of new territorial entities under the guise of decolonization was not only an effort to homogenize populations and erase complex (group)identities that existed on the Indian subcontinent, but also manifested in massive displacement. This frame was never included in the discussions during the formalization process of the Convention. The core objectives of international refugee law are therefore built on constrained notions of international protection.
India came away from the formalization process of the Convention with a sense of disillusionment with the refugee regime. Though India agreed with the overall objectives of the need for an international framework for refugee protection, the framework was, from India's point of view, unprepared to recognize the protection concerns of non-European refugees. The urgency and need to act resulting from the massive displacement in the subcontinent led India to the decision to refuse to sign the Refugee Convention and to respond to the massive refugee movements without international interference.
The practice of refugee protection in India
To date, there is no national law regulating the rights of and treatment of refugees in India. The practice of refugee protection is rather ad hoc. It has essentially revolved around three major prongs namely group determination (whereby entire groups of refugees are recognized as in need of protection), protection of politically sensitive subjects (whereby certain individuals are granted protection), and refugee protection provided by UNHCR on behalf of the Government of India for specific groups of refugees.
Since independence, India has provided protection to various refugee groups. For example, in 1959, India offered asylum to the Dalai Lama and any Tibetan escaping violence and repression. Against the backdrop of the war in 1971 over the splitting of East-Pakistan (now Bangladesh) from West-Pakistan – in which India finally intervened militarily on the side of East Pakistan – India temporarily hosted about 9.5 million refugees. And in 1983 the country opened its borders to several thousand people fleeing the anti-Tamil riots in Sri Lanka. More recently, India has offered protection to Rohingya refugees from Myanmar and to refugees from Afghanistan. In September 2022, India hosted about 212,000 refugees and asylum-seekers including about 48,000 refugees and asylum-seekers registered with UNHCR.
However, as India lacks any coherent domestic legislation for the protection of refugees and asylum seekers, interventions on refugee inflows have been rather ad hoc in nature. Furthermore the treatment of different groups of refugees has been inconsistent and selective. For example, whereas refugees from Tibet received material assistance, land, and residency rights, Tamil refugees from Sri Lanka were housed in camps and eventually (forcefully) returned to Sri Lanka. Nevertheless, although India is not a signatory to the Refugee Convention and its Protocol, for a long time the practice of refugee protection in the country demonstrated the willingness to mind the non-refoulement principle enshrined in the Refugee Convention. However, this has recently changed.
The end of past generosity?
Though India has been generous in the past by hosting refugees, in recent years there has been a change in tone. In August 2017, the Government of India directed authorities to identify 'illegal immigrants', including Rohingya refugees, and commence deportation procedures. A writ petition was filed in the Supreme Court of India to prevent the forced return of Rohingya. Almost four years later, on April 8, 2021, the Supreme Court of India issued an order rejecting Rohingya refugees' right to non-refoulement. In rejecting the petitioners' plea, the Court ordered that since "India is not a signatory either to the United Nations Convention on the Status of Refugees 1951 or to the Protocol of the year 1967", the principle of non-refoulement is inapplicable. The Court referenced "national security ramifications" and considered the arrival of refugees as "a continuous threat of influx of illegal immigrants". Finally, in ordering the government to allow for deportations, the Court said that "rights guaranteed under Articles 14 and 21 [of the Indian Constitution] may be available to non-citizens, the fundamental right to reside and settle in this country is available only to citizens". This judgement and the government’s decision to deport Rohingya refugees have emerged in light of India’s growing anti-Muslim sentiments and attempts to redefine citizenship along religious lines. In addition to contravening the Supreme Court's past decisions on protecting refugees' right to non-refoulement and applying Articles 14 and 21 of the Indian Constitution to non-citizens , the current government has also been very selective about who deserves protection. The absence of national refugee law has become more of an issue in recent years given the draconian executive action undertaken by the ruling government in India (e.g. deportations and the non-recognition of the need for protection) that has hurt several groups of refugees like the Rohingya.
India's recent engagement with the global refugee regime
Among the most recent developments in international refugee law is the adoption of the Global Compact on Refugees (GCR) in December 2018 with the support of many UN Member States including India. The GCR begins with the words, "[the] predicament of refugees is a common concern of humankind". Though it is not legally binding, it claims to represent the "political will and ambition of the international community as a whole for strengthened cooperation and solidarity with refugees and affected host countries". While the GCR's basis is fundamental principles of humanity, chronologically, the document sets out the need to operationalize principles of responsibility and burden-sharing before the right to seek asylum. The GCR is an earnest attempt at increasing the levels of international cooperation with respect to refugee protection. The Compact makes references to protracted refugee situations throughout the document, and also the inordinate burden that some states have had to accept in hosting refugees. However, like the 1951 Convention's formalization, the Global Compact fails to make references to the role of Western actors in increased refugee flows. Major refugee outflows from Afghanistan, Iraq, and Syria have – at least partly – been the result of military Western intervention in these states.
Ambitious as it is, the GCR is of little consequence to India's existing approach to refugee protection, given the absence of any significant obligations on the issue of access to protection. However, there is still some cause for hope. The GCR, besides state action, also proposes a "multi-stakeholder and partnership approach". Among the recommendations is the role of faith-based actors that could support the "planning and delivery of arrangements to assist refugees and host communities".
India has a large Muslim population. Muslim organizations could show solidarity with refugees (e.g., the Muslim Rohingya) and advocate for their protection. Examples of such expressions of solidarity already exist. In 2012, for example, Rohingya protested and demanded that they be granted refugee status. The Zakat Foundation of India and many other local Muslim civil society organizations also participated in this protest. These interventions are important, but they do not provide sustainable and long-term solutions for refugees. Rather, government reception practices would need to return to a more generous treatment of refugees and demonstrate that they uphold basic principles of international refugee protection, such as the non-refoulement principle. India’s current attitude towards refugee protection belies its past practice. It only remains to hope that India will return to a more generous approach to refugee protection.
