The Case Against a Uniform Asylum Law

[Published in The Hindu on 1 November 2016]

Baloch leader Brahamdagh Bugti’s request for asylum in India has prompted calls for a uniform and apolitical asylum law. That would be a mistake. Asylum has always been a diverse institution, resistant to homogeneity and friendly to political dissidents. Last winter, three asylum bills were introduced in Parliament, including one by Shashi Tharoor, but they miss the mark because they perpetuate a rigid European view of asylum.

None of the three bills would protect Mr. Bugti because he does not fulfil the conventional idea of a refugee. Let us be clear. Protecting refugees in line with international law is a duty which India must meet. But denying the government the ability to make sovereign decisions about who can receive India’s asylum is counterproductive. We need a nuanced law which recognises that asylum and refuge need not overlap.

Asylees and refugees

Asylum and refugee status are different concepts although the terms are often used interchangeably. Asylum is an expansive institution of protection, refugees are a narrow category of people. An asylee need not be a refugee. Indeed, asylum predates the refugee regime by several centuries. In Europe, asylum was an ecclesiastical concept that provided safe haven in a place of worship. Asylum has no defining criteria other than the willingness of a state to grant it.

Refugee status is narrowly defined. The UN’s Refugee Convention of 1951 links refuge to persecution on racial, religious, national, social, or political grounds. Many countries including India disagreed with the UN’s definition. It set the bar for protection too high for ordinary people for whom proving targeted persecution is difficult. India did not sign the convention.

Africa broke ranks too. In 1969, it adopted its own convention which recognised that refugees are people who flee serious public disorder, external aggression, occupation, and foreign domination. In other words, Africa recognised that during war, people do not wait to be individually persecuted, they flee en masse, and they are all refugees.

Europe understood the shortcomings of the refugee regime during the Balkan conflicts of the 1990s. Many of those displaced were not technically refugees, forcing the European Union to create a new form of asylum distinct from refugee status. The United Nations High Commissioner for Refugees (UNHCR) followed suit. The distinction between asylum and refugee status has been recognised by the EU Court of Justice and several countries.

Politics versus humanitarianism

The duty to protect refugees is a widely accepted, binding norm of international law. But the refugee convention refuses protection to people accused of “serious non-political crimes” such as terrorism. So governments routinely slap trumped-up terror accusations against their dissidents. For such people, asylum is a beacon. Because it is undefined, asylum has been widely interpreted by states to result in multiple forms of protection.

Latin America has a rich and long-standing tradition of protecting political dissidents who are excluded from refugee status. Even coup leaders and guerrillas have been protected. In 1954, Latin American states recognised each other’s sovereignty to grant asylum to dissidents. This conception of asylum travelled to Africa to aid the struggle against colonisation. Black liberationist leaders who were accused of terrorism by colonial authorities were protected as asylees abroad. Anti-apartheid fighters benefited too.

Asylum need not be tied to national territory. It can be granted by diplomatic missions abroad as it has been to Julian Assange by Ecuador’s embassy in London. The political versus humanitarian conflict that some believe afflicts the heart of asylum is really no conflict at all. Asylum can be granted for political reasons and refuge for humanitarian reasons and the twain need not meet, even if contained in the same statute.

Asylum and extradition are related concepts. Extradition law exempts a country from handing over a criminal if the offence for which she is wanted is of a political character. This is known as the ‘political offence exception.’ It enables political asylum. It is recognised in the Extradition Act, 1962 and earlier laws too — perhaps an indicator of the legislature’s intent to allow people like Mr. Bugti to shelter in India at the government’s discretion.

If Mr. Bugti is accepted, it would not be the first time that Indian asylum has been politicised. The political repercussions of welcoming the Dalai Lama in 1959 continue to be felt. The Dalai Lama has never been officially recognised as a refugee; he remains an “honoured guest” — diplomatese for political asylee. On the other hand, India hosts refugees from Tibet and elsewhere who fled persecution and conflict. For refugees, a law will regularise their stay in India and guarantee essential freedoms. But the law need not be uniform. Indeed it should vary so that victims of targeted persecution are individually protected, large groups fleeing war are protected as a group, and people displaced by natural disasters are given transient protection. The same law can allow the government to grant asylum to anyone it pleases, irrespective of what that person has done or where in the world he or she is located.

The principle that governments have wide discretionary powers regarding foreigners is as old as the concept of sovereignty. It has been reiterated by the Supreme Court several times. It can be expressed in an asylum law without contradicting the duty to protect refugees. What India needs is a discretionary political asylum regime for people like Mr. Bugti as well as a mandatory refugee regime to ensure humanitarian protection.


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