Baloch leader Brahumdagh 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 none of them would protect Mr. Bugti. 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.
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.
[Abstract] Following recent election campaign statements, migration from Bangladesh has again received national attention. For several reasons, including cultural affinity and a porous border, migration across Bengal’s borders has been constant. It fuelled ethnic conflict that prompted the Assam Accord in 1985 to bring a temporary peace. The IMDT Act, ostensibly enacted to secure fair deportations, caused more cynicism when it failed to result in mass removals. The Supreme Court struck down the IMDT Act in 2005, on questionable grounds, and then censured the government when the latter tried to replace it with executively created due process. Yet, it is precisely this due process, which is absent from the Foreigners Act, that is needed to temper the deportation power. Future legal changes, which look increasingly likely, must not lose sight of fairness and procedural safeguards.
[Abstract] India’s laws in respect of extradition and deportation, both colonial inheritances, have an uneasy relationship. Extradition and deportation are unique powers that stand apart from regular criminal law for their control by executive discretion. In relation to deportation, executive discretion is almost absolute to create an unfettered power to remove foreigners. On the other hand, extradition law is bound by due process, even if the legacy of colonialism retains dual procedures in the Extradition Act to favour special countries. Subjecting the extradition law to the overriding power of deportation will result in “disguised extraditions”, which may be liable to judicial review.