India should also accede to the UN refugee convention
India is not party to, nor has it acceded to, the 1951 UN Refugee Convention, nor the 1967 Protocol to that Convention. Consequently, it can pick and choose the types of refugees it will accept or reject
Although nearly 75% of the countries in the world have adopted a uniform approach to refugees, India privileges people from certain groups and countries over others. Nearly 150 countries around the world, including the US, are party to the 1951 UN Convention on Refugees or the 1967 Protocol adopted pursuant to the Convention. Signatories to the 1951 UN Refugee Convention cannot deport people who have a fear of persecution or have been persecuted on the basis of their religion, nationality, race, political opinion, or particular social group. This world consensus on refugees developed in response to the Nazi’s persecution and killing of Jews and other minorities.
India, however, is not party to, nor has it acceded to, the 1951 UN Refugee Convention, nor the 1967 Protocol to that Convention. Consequently, it can pick and choose the types of refugees it will accept or reject. Buddhists from Tibet, fleeing China’s persecution, have been welcomed in India, but Rohingyas fleeing from religious persecution in Myanmar are generally denied entry into India. This selective approach that gives priority to certain refugees while rejecting others is reflected in the law -- the Citizenship Amendment Act (CAA) of 2019 -- that lead to widespread protests and violence in India recently. The Indian Parliament amended its nationality law, the Citizenship Act of 1955, to give a fast-track pathway to citizenship to Hindu, Sikhs, Buddhists, Jains, Parsis, and Christians (but Muslims) who had entered India before 2014 from Pakistan, Afghanistan, or Bangladesh.
Widespread protests around India erupted immediately after this law was passed. People gathered to read the preamble of the Indian Constitution to suggest that the government had violated the principles of the Constitution that requires it to treat all its residents equally. The CAA was seen to reflect a vision of India as a Hindu nation where Muslims are not welcome. These protests still going on across the country. On the other side, pro-CAA protests emerged, and shortly before Trump’s visit to India, violence began. Recent reports suggest that at least at least 53 people died in the violence in Delhi, most of them Muslims. The Indian government refuses to give a pathway to citizenship to Muslims minorities persecuted in Pakistan and Bangladesh.
While the objections to the CAA were forceful and from many corners, few people realise that the Indian government had already adopted the same approach to refugees as found in the CAA with two notifications from the ministry of home affairs years earlier in 2015 and 2016. In those notifications, the ministry amended the Passport (Entry into India) Rules of 1950 to allow “Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the December 31, 2014” to travel without valid travel document into India. Although the CAA is seen as a uniquely discriminatory law, the reality is that the unequal treatment of refugees and the privileging of certain group over others it not a new policy approach of the Indian government.
On the other hand, if, like most countries in the world, India had signed or acceded to the 1951 UN Refugee Convention or 1967 Protocol, it would not be permitted to privilege certain types of refugees over others. The 1951 UN Refugee Convention requires countries to admit and refrain from deporting refugees. To qualify as a refugee, a person must fear or have been subject to religious persecution (or certain other forms of persecution) in the country of his or her residence. If it were party to the UN Refugee Convention or Protocol, India could not adopt a policy that excluded Muslims or one that allowed refugees only from certain countries. Nearly 150 countries in the world follow the same approach to refugees; India should also accede to the 1951 UN Convention.
Sital Kalantry is a clinical professor of law, Cornell Law School, has published a book on women’s rights and migration in 2017, is faculty director of the Cornell India Law Center, and teaches international human rights and immigration law
The views expressed are personal