The only legislation that governed the field was the Foreigners Act, 1946, and a decade later, the Citizenship Act, 1955 — both inadequate to deal with the complications of the issue. Interestingly, neither law defines who a refugee is or on what grounds asylum may be granted.

Nearly eight decades on, as India notifies the rules of the 2019 Citizenship Amendment Act, the framework to deal with refugees puts forward more questions. The CAA creates concessions for Hindus, Sikhs, Christians and Parsis from Afghanistan, Bangladesh and Pakistan seeking asylum in India. The amendment applies to the above-classified foreign persons who entered India by the cut-off date and have resided continuously in India for five years instead of 11, as required for other refugees to get citizenship, according to the citizenship rules.

Is there an internationally followed framework that should govern any law pertaining to refugees? Yes — the United Nations’ 1951 Refugee Convention and its 1967 Protocol, which defines who a refugee is, safeguard the right to seek asylum and protect against being forcibly returned to a country where one would face persecution (non-refoulement). However, India is not a signatory to it, which is how it was able to justify deporting the Rohingya refugees, already under political persecution, back to Myanmar in 2021.

The status of refugees who enter India is dependent on Standard Operating Procedures and regulations issued by the Union home ministry and the UN High Commissioner for Refugees (UNHRC), which has a limited say. Foreign nationals from Sri Lanka and Tibet have to register with the Union home ministry and all other refugees register with the UNHCR.

A question of definition

While the law does not define who a refugee is, it is clear about who an illegal migrant is. In 2003, the Centre amended the 1955 Citizenship Act to state that any foreigner staying in India without a valid document or staying beyond the permitted period was an illegal migrant. Thus, even a refugee could be counted as an illegal migrant. The Centre assured Parliament that humanitarian assistance would be provided to those fleeing persecution from their countries, but the same was not incorporated into the law.

In 2011, the Union’s SOP allowed long-term visas to be granted to foreign nationals “who claim to be refugees”. The measure was supposed to be a stop-gap measure before the enactment of a comprehensive law on the field. Three years later, in December 2014, the SOP was modified to create four categories of Pakistani/Bangladeshi/Afghanistani nationals who could be granted long-term visas — Minority communities in these countries namely Hindus, Sikhs, Christians, and Buddhists; Pakistani/Bangladesh women married to Indian nationals and staying in India; Indian women married to Pakistani/Afghanistani/Bangladeshi nationals but returning due to widowhood or divorce; and Cases when the government chooses to grant citizenship out of extreme compassion.

In 2019, the government amended the Citizenship Act and carved an exception to the definition of illegal migrants for Hindus, Sikhs, Buddhists, Jain, Parsis or Christians from Afghanistan, Bangladesh or Pakistan who entered India on or before December 31, 2014.

The creation of this new class of migrants on the grounds of religion by way of the amendment has been challenged before the Supreme Court as violative of the principle of equality under Article 14 of the Indian Constitution and secularism. The Supreme Court has yet to decide on the constitutionality of the amendment, but it has, on occasion, gone into the status of refugees in India.

What the top court has held

On 23rd February 1955, the Supreme Court while deciding the detention of a West German national in Hans Muller of Nuremberg v. Superintendent, ruled that the Foreigners Act confers the power to expel foreigners from India. A foreign national also enjoys the protection of Article 21. However, in that case, the Court noted that the process of the detention was in consonance with the procedure established by law and did not violate Article 21.

The fundamental right of a foreigner was revisited by the Supreme Court in 1991 while deciding Mr Louis De Raedt & Others v. Union of India. The court ruled that merely because a Belgium national resided in India for many years, an intention to reside forever could not be inferred, and he did not automatically become a citizen of India.

Subsequently, in the landmark ruling by the Supreme Court in 1996 in National Human Rights Commission v. State of Arunachal Pradesh, the Court ruled that the Indian state was bound to protect the life and liberty of every human being, whether a citizen or otherwise. In this case, the National Human Rights Commission in a PIL sought to enforce the rights under Article 21 of about 65,000 Chakmas who were being persecuted in Arunachal Pradesh. The Supreme Court held that the state government was constitutionally and statutorily obligated to protect the threatened groups.

Following this ruling, the Gujarat high court in Ktaer Abbas Habib Al Qutaifi and Anr. v. Union of India in 1998 held that the principle of non-refoulement (no state shall return a refugee in any manner to a country where his or her life or freedom may be in danger) can be read under Article 21 of the Constitution. The same was reiterated by the Delhi high court in Dongh Lian Kham v. Union of India in 2015.

However, in 2021 while deciding the issue of the deportation of the Rohingya Muslims to Myanmar, the Supreme Court in Mohammad Salimullah v. Union of India, held that India was not bound by the principle of non-refoulement as it was not a signatory to the convention on refugees. The Court noted that the Rohingyas are not citizens of India, they did not enjoy the right to reside in India and could be deported in accordance with the law.

A year later, the Supreme Court came across a peculiar matter of detention of a foreign national. In Ana Parveen & Anr. v. Union of India, a habeas corpus was sought by the daughter of the detainee Mr Mohd Qamar alias Mohd Kamil, a 63-year-old man. Mohd Qamar was a Pakistani national who married an Indian citizen in 1989 and had five children in India. The spouses divorced in 2010 and in 2011 Qamar was arrested under the Foreigners Act and sentenced to three years and six months simple imprisonment. He completed his sentence on February 6, 2015. However, his nationality was not confirmed by the Pakistani government — a necessary requirement for his deportation — and thus, he continued to languish in the detention centre till 2022. The Supreme Court noted that such prolonged detention was a violation of Article 21 and if he was not a threat to national security he should be considered for a long-term visa.

Refugees enter India from several countries. Thus, instead of providing a concession to few the need of the hour was to create a cogent legal framework to safeguard the rights of refugees. The CAA has created arbitrariness in the framework governing refugees. For instance, it leaves out Tamil refugees from Sri Lanka and provides no rational explanation for favouring persons from particular religions from specific countries only. Thus, the need of the hour is to have clear legislation to regulate the issue of refugees, which will streamline the state’s power to grant asylum or refuse it.

Parijata Bharadwaj, a lawyer and researcher based in New Delhi, co-founded the Jagdalpur Legal Aid Group that offered legal services to adivasis in Chhattisgarh. The views expressed are personal.