Shashi Tharoor’s Asylum Bill Misses the Mark

[First published in The Wire on 31 October 2016]

Late last year, three asylum bills were introduced in the Lok Sabha on the same day. Of the three, Shashi Tharoor’s Asylum Bill, 2015 was the most comprehensive. Tharoor claimed his bill would “put India at the forefront of asylum management in the world”. Let us test that claim.

A good asylum law should do more than privilege a narrow category of refugees, it should enable political asylum too. And in respect of refugees only, the law should reflect India’s international concerns and domestic experience.

The international outsider

India is an anomaly in the international order for neither signing the UN’s 1951 Refugee Convention nor having a domestic asylum law. This is a needless embarrassment because the country has a distinguished record of protecting refugees. There were understandable reasons for not signing the convention when it was drafted. It focused solely on Europe, a racist approach that privileged Europeans lives over refugees elsewhere. The record of the negotiations show that Indian objections to the convention’s language were dismissed.

The convention did not address India’s concerns on ‘burden sharing’ — sharing the costs of hosting refugees. At the time, the country was grappling with the “largest mass migration in human history” stemming from the subcontinent’s colonial partition. Told that Partition survivors were not technically refugees because they did not lack state protection, India walked away from the negotiations.

There are other criticisms too. The convention is structurally biased against ‘mass influxes’ — when refugees arrive in large numbers, usually fleeing war. Mass influx refugees often cannot prove they were individually ‘persecuted,’ so they fall short of the convention’s protection threshold. Moreover, nowadays most refugees travel in ‘mixed flows’ alongside economic migrants. Europe’s migrant crisis is brought on by the convention’s inability to differentiate between people in mixed flows.

Refugees in the life of the nation

Born into a refugee crisis, India struggled with Partition in its infancy. The first test of its ethics arrived with the Dalai Lama and his followers in the late 1950s. They were given India’s protection but with significant political costs. The decision helped to propel the young country into a punishing war with China. Asylum for Tibetans was a moral act inspired in large part by Jawaharlal Nehru’s sense of fairness. But the experience taught India to temper hospitality with political realism.

A far, far greater challenge presented itself in 1971 when 10 million refugees arrived from East Pakistan, mostly Hindus and minorities bearing the scars of genocide. Indira Gandhi vowed to protect them, saying “India has always kept its doors open for people in distress, whatever the cost, whatever the burden.” It was a masterful case of posturing. After touring the world’s capitals and enlisting the sympathy of the foreign press, Gandhi embarked on regime change. India’s army dismembered Pakistan, the refugees returned en masse, and Bangladesh was born.

“Mother India will take care of them”

Politics aside, the experience of mass influx is the crucible from which contemporary Indian refugee policy has emerged. Partition, the Tibetans, the 1971 refugees, the Sri Lankan Tamils who arrived in waves from the 1980s — they have imprinted refugee protection on the national consciousness. India’s unique imagination of itself has helped. In a country conceived in pluralism, it is easier for refugees to find acceptance.

That singular approach was evidenced in the late 2000s after Bhutan expelled its Lhotshampa minority, forcing them to travel through India to reach their camps in Nepal. Many chose to stay on in India. According to Mahendra Lama, when asked what the government thought about the situation, the late J.N. Dixit, former national security adviser, said “Mother India will take care of them.”

This is a recurring motif in Indian asylum: the mother salving the wounds of the exiled. It facilitates inclusivity which is arguably a core project of the Indian nation-state. But because maternalism is patronising and dependency-creating, it deprives refugees of agency and participatory citizenship.

The four pillars of future asylum law

Neither pluralism nor rhetoric is a predictable guarantor of protection. Only law is. Past mass influxes pushed the government into creating frameworks for refugee protection, but they are not institutional, they are ad hoc, and therein lies the nub of the problem. Freed from law’s command, the government in power can arbitrarily treat asylum as a gift, bestowing it on some and denying it to others. A law is required to forge a modern asylum regime out of the wilderness of unsystematic state practice.

The Indian nation-state is unique, so is its experience of refugees and migration. Future asylum law must acknowledge the country’s exceptionalism. An intelligent asylum regime should: (i) create different forms of protection; (ii) address mixed flows; (iii) prioritise mass influxes; and (iv) proactively govern refugee situations.

Differentiated asylum and mixed flows

Just as refugees flee their homes for a variety of reasons, asylum is not a monolithic concept. For people fleeing generalised violence, asylum law should be able to protect them as a group without demanding individualised proof. For individuals fleeing persecution which can be proved according to the Refugee Convention, the law should give them a mechanism to do so. For the government, it’s discretion to grant asylum to anyone it wants should be recognised. People fleeing natural disasters and climate change need case-by-case solutions.

Mixed flows entered Europe’s consciousness fairly recently but in the subcontinent they are historic. Migration is as old as Bengal. There have been bi-directional flows across Bengal’s shifting borders throughout the twentieth century. Inward flows into India have included refugees, economic migrants, trafficked persons, and others. Economic migrants too are not easily boxed; they could be long-term or seasonal migrants, or even daily commuters.

There are also large mixed flows across the frontier with Nepal. During that country’s civil war, those flows included refugees. They are aided by a deliberately open border. For Nagas spread across India and Myanmar, the borders may not be open but they are porous. Asylum law should be able to distinguish the refugees from the rest, differentiate between the many types of refugees, and match each type with a corresponding form of protection.

Mass influxes and refugee governance

Mass influxes have shaped India. The overwhelming majority of India’s refugees have arrived in mass influxes. By numbers, India has hosted more refugees than the current population of Greece. If Partition survivors and Nepali refugees are added to the mix, the number increases to around 24 million people — roughly the population of Australia.

Successive governments have refrained from turning refugees away at the border or expelling them after they enter, an action that is strictly prohibited in international law. Refugees in most influxes were registered at the border and housed in camps with food and basic healthcare. But screening mechanisms were lax during the Sri Lankan crisis allowing members of armed groups to enter.

Refugee situations call for governance. Just as wars need exit strategies, mass influxes need closure strategies. For Tibetans and Chakmas who have lived in India for generations, courts have begun ordering the government to end their statelessness by giving them citizenship. Refugee camps on Indian soil must be demilitarised. Refugees and migrants should have access to gainful employment, perhaps through a work permit scheme.

Weighing Tharoor’s bill

Where does Tharoor’s bill lie in this landscape? It should be welcomed, but it can be vastly improved. Tharoor’s bill is very nearly a replica of an earlier proposal in 2006. But much has changed in the intervening decade, not least the migrant crisis in Europe which offers valuable lessons for mixed flows and refugee governance. But Tharoor’s bill is oblivious to all that. It adds nothing new and that is its biggest disappointment.

In fact, in one crucial respect, Tharoor’s bill actually weakens the earlier 2006 proposal. He qualifies the protection against expulsions to refugees already in India, leaving those at the frontiers vulnerable to rejections. The bill also lacks differentiated asylum features, tools to deal with mixed flows, protection against statelessness, guarantees against militarisation, and refugee governance models.

So will Tharoor’s bill create a world-leading asylum regime? No, it will not. But it is a first step in that direction.

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