CAA: An Overt ‘Othering’ Artifice in Theological Secularism?
April 23, 2020
April 30, 2020


The enactment of the Citizenship (Amendment) Act, 2019 (hereinafter referred to as The Act) has emancipated the debate on the present lacuna in Indian legislation viz a viz., Refugees. The Act is currently being challenged before the Supreme Court on several grounds including being violative of India’s international obligations relating to the protection of Refugees, inter alia. Notwithstanding the exacerbation caused by the partition of the Indian territory in 1947, India is yet to address the exigencies relating to Refugees through a dogmatic and systemic legislation. While The Act seeks to grant fast-track citizenship to persecuted individuals belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities, the dire need for a legislation to address those who do not fall within the ambit of The Act due to its strict definition of the term ‘illegal migrant’ is yet to be addressed by policymakers. This blog aims to explicate the need for a comprehensive refugee policy in India in light of the incumbent cavity in Indian legislation and the dichotomy of illegal migrants and refugees.
Section 2(b) of The Act defines the term “illegal migrant” as a foreigner who has entered India without a valid passport, travel documents or any such document as may be prescribed by or under any law (or) with a valid passport, travel documents or any such document by or under any law but remains therein beyond the permitted period of time. The term Refugee has been defined in the 1951 Convention Relating to the Status of Refugees under Article 1 as an individual who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. Since India has neither signed nor ratified the 1951 Convention or signed its 1967 Protocol, the definition specified therein is not applicable to India. Given the narrow definition of the term “illegal migrant”, refugees are classified as illegal migrants and are therefore susceptible to the retributive penal provisions within the territory of India despite their special circumstantial nature.
In the case of INZ v. Cardoza Fonseca it was held that the “well-founded fear” standard for the definition of the term Refugee in the 1951 would indicate “so long as an objective situation is established by the evidence, it need not be shown that the situation would probably result in persecution but it is enough if the evidence shows a real and substantial danger of persecution.” Due to the legislative complacency of policymakers, the subjectivity of refugees is currently being determined through an objective definition which is limited in its scope thereby failing to take cognizance of circumstantial requirements.
The principle of non-refoulment prohibits states from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at the risk of irreparable harm upon return including persecution, torture, ill-treatment or other serious human rights violations. Although India has not ratified certain key conventions which have explicitly embodied the principle, including— The 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol, International Convention for the Protection of All Persons from Enforced Disappearance and theInternational Convention Against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment,India has ratified the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights (ICCPR) and had voted in favour of a resolution to which the UN Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summons was annexed. Article 5 of the UN Principles deals with the principle of non-refoulment while Article 7 of the ICCPR prevents states from subjecting any person to inhuman, cruel or derogatory treatment and Article 14 of the UDHR deals with the principle of non-refoulement.
 Furthermore, India has a consistent state practice and a subjective legal obligation (opinio juris) of providing refuge to persecuted minorities from neighbouring countries ever since the partition thereby bringing the obligation to follow the principle of non-refoulment under the realm of customary International Law. Despite India not being a party to the 1951 convention and the 1967 protocol, India has expeditiously adopted the principle of non-refoulment while dealing with refugees. Article 38(1)(b)of the Statute of the International Court of Justice recognises international custom as evidence of a general practice accepted as law. The subjective legal obligation has been evolved through judicial pronouncements and not by virtue of any legislation under the tutelage of any policymaker. Although the Standard Operating Procedure that was adopted in 2011 provided guidelines for dealing with Refugees, it was never codified into a legislation thereby leaving Refugees bereft of an Indian policy to effectively address their requirements. In the case of Khudiram Chakma v. State of Arunachal Pradesh, the Hon’ble apex court emphasized on the applicability of Article 14 of the UDHR. The Court held that every person who is seeking asylum in a state cannot be sent back to the state from where he has come if the risk of persecution is embedded. In another case of NHRC v. State of Arunachal Pradesh, the apex court reiterated the need for protecting the of rights of refugees in India in order to preserve the constitutional culture. The court held that  rule of law is the predominant segment in the Indian context. The constitutional sway in a country like India reflects the right to equality and thus, ensures right to dignified life to citizens as well as non-citizens. The court directed the state not to refoul the Chakma refugees who were nationals of Bangladesh on the basis of principle of non-refoulement.
A comprehensive refugee policy in a country with a diverse demographic structure calls for a qualitative analysis of the status quo in order to succinctly bridge the gap between The Act and an autonomous legislation dealing with refugees. Firstly, the policy must take into consideration the convergence between the applicability of the term “illegal migrant” and the nature of refugees. Albeit, India has not ratified the 1951 UN Convention, it is imperative to adopt a definition that is broader in its applicability in juxtaposition to the definition laid down under The Act. Secondly, the object of the policy must explicitly include the principle of non-refoulment thereby inoculating any lacuna in Indian policy relating to Refugees. Thirdly, the structure of the policy must be designed in a manner which is not inconsistent with The Act itself. The purpose of developing an autonomous legislation for Refugees must construe the differences between illegal migrants and refugees rather than juxtaposing The Act to the policy.
The enactment of the Citizenship (Amendment) Act, 2019 calls for the need to develop a comprehensive legislative policy for refugees in India— a demand that has been requisitioned multiple times in the history of Independent India notwithstanding the legislative failure to address the issue. Although India has not ratified key international conventions dealing with refugees, India has a customary practice of allowing refugees to seek asylum in India. The mere enactment of a legislation cannot denude policymakers of their responsibility to develop a policy that would serve as a panacea to the present lacuna in Indian legislation. 




Aaryyan Aathreya is a first year law student at School of Law, SASTRA University. He is an ardent debater, public speaker and wishes to become an United Nations Diplomat someday. His areas of interest include Public International Law, International Human Rights Law and Constitutional Law.





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