Despite being a melting hot-pot of the population dislocation and forced migration, most of the countries in South-Asia do not have a national, regional or international policy for the protection of its refugee population. There are no official documents to explain this policy absence, however, over the past decade many reasons have been inferred and attributed to this peculiar south-Asian behaviour. In the current piece, I provide an overview of how the humanitarian laws in India particularly have developed. 

The 1947 Partition and population exchange

India saw one of the most historic population exchanges in the history of the world during the partition of Indian and Pakistan in 1947. Millions of people displaced across the border found themselves in numerous camps in Delhi and Punjab as refugees, uncertain of their future and prospect in a newly created nation which was now home.

On the other hand, the only Refugee instrument of the time the 1951 Refugee convention was created to accord refugee protection to the people displaced as the aftermath of World War II. The euro-centric nature of the convention was originally stated in its limitation in application to the events occurring in ‘Europe or elsewhere before 1 January 1951’ and in its accordance of the refugee status to ‘who has lost the protection of their state of origin or nationality’. This essentially meant that 1951 Convention in its original form was only applicable to the person who has fled a state-sponsored (or state-supported) persecution. The partition of India and Pakistan and the migration of 1947 while falling within the timeline prescribed by the Convention did not fall into the category of ‘state-supported/sponsored persecution’. States in Indian and Pakistan maintained a non-persecutory gesture towards its people, going to the extent of reassuring minorities that their rights will be protected in the newly independent nation. It is worth remembering that the people who migrated during 1947 partition were forced into displacement due to ‘social persecution’ instead of ‘state-sponsored persecution’ or ‘war’. The subsequent concerns of both India and Pakistan to attribute a more liberal meaning to the term ‘refugee’ in order to include people who are internally displaced or displaced due to social rifts were rejected at the International level. This led to the development of an overall scepticism towards the 1951 Refugee Convention.

Expanding the convention

The 1967 Protocol eventually removed the time period limit of the 1951 convention and attempted a broader categorization of ‘refugee’ keeping in view the growing universal refugee situation. India choose to remain outside the ambit of both the Convention and its Protocol due to the fear of international criticism and unnecessary interference in what it terms as an ‘internal matter’. The Convention by this point required that the signatory host nations must accord a minimum standard of hospitality towards those it accepts as refugees. The pours nature of borders in South-Asia, continued demographic changes, coupled with the very real problems of poverty, resource crunch and internal political discontent made it impossible for India to accede to the protocol at the time. Myron Weiner a known scholar on India explains that signing of 1951 convention or its protocol would have meant allowing international scrutiny of ‘India’s internal security, political stability and international relations’ which continue to be influenced by the porous borders and demographic movement across these borders.  

The 1971 exodus

The military repression in East Pakistan led close to 10 million people seeking refuge in India by the end of 1971. Such an exodus inevitably produced extraordinary problems for the host country and increasingly it was realised that international assistance would be needed to cope with the massive refugee influx and prepare for their repatriation. The problem was compounded by the sheer number of refugees housed by 330 camps across Assam, Tripura and Meghalaya. As some researchers have previously noted the problem was not only of the enormity of the exodus but also of where these camps were located. For example, the camps in Tripura housed over 900,000 refugees against an indigenous population of 1.5 million. There was a heightened sense of crisis which was worsened by the outbreak of cholera in the camps.

At the end of May 1971 Hindustan Standard reported: Many of the refugees are suffering from infectious diseases. Some 626 doctors and 60 refugee doctors are trying to cope with this overwhelming situation, aided by some 800 paramedical personnel. Over 2,700 beds have been added to the existing 42 hospitals, but what will the situation be tomorrow? On this day a further 100,000 refugees have arrived in the Nadia district alone.

Indira Gandhi’s government in New Delhi expected the international community to refund a major part of the expenses it was now incurring in looking after a sick refugee population. The Permanent Representative of India at the United Nations, Samar Sen, requested international aid. In May 1971 UNCHR mission made it clear that it would be unrealistic to expect the United Nations to bear full responsibility for the financial burden nevertheless an appeal for assistance was launched which led to a pledge of measly US$70 million for an assistance operation responsible for 10 million refugees. The UN High Commissioner Sadruddin Aga Khan along with the Secretary-General at the time U Thant at the time also unanimously decided that the UNHRC should act as the ‘Focal Point’ for the coordination of all UN assistance. The absence of a direct aid commitment to Indian Government coupled with Sadruddin Aga Khan’s visit of East Pakistan on the insistence of General Yaya Khan, made Indira Gandhi and her ruling party highly suspicious of the ‘neutral’ operations of UN, making the Indian stance towards the International Refugee regime even more sceptical. Subsequently, the reparation operation in 1971, and the ones initiated in 1973 and 1974 were conducted with the UNHCR offices housed in Dhaka.

UNHCR in India

The 1971 exodus continues to mark a high-point for determining India’s attitude towards the International Refugee Regime and UNHCR’s own institutional constraints in dealing with massive population movements. However, since 1981 UNHCR has been operational in India with a limited mandate of assisting Indian government to support refugees and asylum-seekers. The UNHCR works in close cooperation with the Government, NGOs and civil societies allowing refugees and asylum-seekers to access public health, education and legal aid services. However, the policy on grant of refugee, asylum or temporary assistance to people displaced due to persecution in their home countries are determined by the Indian government through a bilateral or multilateral process, in line with its International Relations agenda.

Nevertheless, any decision of the Indian government for granting refugee or asylum status can not be isolated from its International Responsibility under the Universal Declaration of Human Rights, the Convention Against Statelessness, The Child Rights Convention to which Indian is signatory. These international regimes coupled with Indian constitution makes it necessary for India to adopt a Refugee policy which is non-discriminatory and inclusive of all people who have faced persecution, despite their nationality, religion, gender or place of birth.