India should ensure a clear, non-discriminatory and inclusive refugee policy

Providing protection, and a home, to refugees facing persecution of any kind is a welcome idea but the Citizenship (Amendment) Act (CAA) has faced more questions about the people it excludes than those it takes in its ambit. Jayant Sriram speaks to Gautam Bhatia (columnist and Constitutional lawyer) and Priya Pillai (international lawyer and head of the Asia Justice Coalition secretariat) on what would the contours of a more humane law be. Edited excerpts:

When it comes to the Citizenship (Amendment) Act (CAA), what according to you would be a more humane way to address the question of the status of refugees from India’s neighbouring countries? I think we all agree that there are parts of it that are good, but how do we broaden this?

Gautam Bhatia (GB): I think the inclusive aspect of the Act is obviously good. It’s the exclusionary part of it that creates a problem. So, look at the legal regime that existed before the CAA. There was a 2011 Standard Operating Procedure (SOP) issued by the Home Ministry, which is not yet in the public domain. And, according to that, anyone who could establish persecution of any form — not just religious, but also social persecution, caste-based and so on, would be entitled to a long-term visa in India. And, this would be examined on a case-to-case basis. So, that SOP actually provides you the base for what could be a decent legal regime. Of course, that also had a lot of discretion given to the Home Ministry. But something along those lines is what I think would be a good idea.

Priya, I want to ask you about the international law aspect. What does international law say on dealing with refugees? Does the CAA meet the tests?

Priya Pillai (PP): I want to preface this whole discussion by saying that some aspects of this in terms of the focus on refugees and refugee law are a bit of a red herring, in terms of looking at the larger context of what this is about, including the NRC [National Register of Citizens]. Having said that, there are a few aspects to this: one is that India has not signed the Refugee Convention [1951] and protocol. India has not signed on to the Statelessness Convention. But it is good to remember that the basic premise of a refugee law is that humanitarian concerns motivate the whole idea of having an inclusive regime. So, the fact is that India has not had any formal refugee policies; there are ad hoc provisions. If India is serious about ensuring that persecuted people are protected, there are few very simple things to do: sign and ratify the conventions; and ensure that you have a clear, non-discriminatory, inclusive policy. And the fact that the 1951 Convention has 145 state parties but India has not signed up to it is highly problematic.

I’ll just add one more thing as well, which is that there’s a basic premise of refugee law, which is called non-refoulement, which is that you don’t send people back if they are in fear of life or of persecution for reasons of race, religion, nationality, membership of a particular social group or opinion. The CAA does not cater to [this principle]. Non-refoulement is a customary international law norm, which means that even if you’ve not signed up to the treaty, it is something that still binds you.

Gautam, I want to draw you out a little bit on the religion test for granting citizenship and also for determining who is a persecuted minority. How can a better law actually broaden these definitions?

GB: I think it’s problematic on two points. One is to elevate religion and religious persecution to a level that links it with citizenship and ignore other forms of persecution that are as severe and have as serious consequences. For example, persecution of Tibetans, political persecution, and so on. So, I think the very act of elevating religion above other forms of persecution and giving it this special link with citizenship affects the secular character of the Constitution. And, of course, the second issue is one that has been discussed multiple times, and is there in the petitions challenging this law, which is that there is no rational connection between the countries and communities singled out and the goal of protecting people from religious persecution. So, even if you take the goal at face value, it leaves out Rohingya Muslims in Myanmar, it leaves out Tamil Hindus in Sri Lanka and so on. So even within the subset of ‘religiously persecuted people’ from neighbouring countries, the CAA is irrational and exclusionary.

And Priya, what can you tell us about cases from other countries where similar laws have used religion as a basis for framing citizenship laws?

PP: The Refugee Convention article talks about what it means to be persecuted and what it means to be a refugee. And, by that logic and definition, you can assert that you were persecuted on the basis of religion, race, or a combination of factors, but it is not for the state to discriminate on these bases. So, your cause of persecution may vary, and it might just be religion, but the whole idea of non-discrimination on the part of the state is that it doesn’t have the ability and cannot cater to those categories. If you say you’re being persecuted on whatever basis, then it’s incumbent on the state to ensure that there’s humanitarian protection and you are granted certain protections within the context of the refugee regime. That’s really the fundamental point that I would emphasise, looking at the Rohingya case specifically.

I'd also like to draw attention to that because India has 40,000 Rohingya within the country. There have been statements made by the government of India that they are going to be deported. And, of course, this is a case that is pending before the Supreme Court right now. The persecution there is on the basis of ethnicity, of religion. And it’s very, very problematic to have the government say that they are going to send them back, given that the UN fact-finding mission has clearly articulated that there is evidence of the possibility of genocide. So, the CAA is a very, very problematic terrain.

Gautam, even before this law was brought, and a few years back, when there was a discussion about clearing a path to citizenship for certain communities from certain countries, there was also a discussion about how India doesn’t have a proper policy on refugees. Is there a sort of legal history to this? Has this been challenged in the courts? Have there been attempts to get this in legislation?

GB: The problem is that the courts have been even more strident on this issue, in fact much more strident than the executive. So you have this judgment in 2005, Sarbananda Sonowal v Union of India, which according to me was the worst judgment in our history. It refers to migrants as this ‘horde of people’ streaming in from outside who constitute an external aggression onto the territory of India. So, I think that the courts have proven to be even more hostile to this entire issue than the [government]. And that’s saying something, you know.

There has been a lot of discussion about the state’s power to frame citizenship laws. Is this an absolute right?

PP: Absolutely not. There’s a myth that state sovereignty is everything and state sovereignty is sort of fundamentally what dictates all these issues; but there is such a thing in international law called ‘state responsibility’ as well and the ability of the state is not unfettered.

India has signed a number of other international treaties and this means that there are international legal obligations on the state to ensure that fundamental principles such as non-discrimination are included within whatever laws the government frames. So, the argument that this is unfettered, that is completely untrue.

There needs to be a recognition that the legal norms that emanate from the obligations that states signed up to are also enforceable. I mean, traditionally, international law has always been seen as quite weak in terms of implementation and enforcement. But I would emphasise that there are a number of other legal avenues that are opening up now. And, there are various committees that monitor these international conventions, and those are now gaining strength.

Have there been examples of international legal bodies actually intervening to place checks and balances on states, other countries enacting citizenship laws?

PP: Yes. The one example that I will give you, of course, links again to the Rohingya crisis right now. In 1982, Myanmar actually enacted a very discriminatory Citizenship Law, which excluded the Rohingya from a lot of basic rights and services, essentially created a system of apartheid within the country, and marginalised the Rohingya to an extreme extent.

Two weeks ago, the International Court of Justice (ICJ) was seized of a case brought by Gambia against Myanmar on the basis of the persecution of the Rohingya and allegations of genocide. And, I think is important to trace the evolution of the mass atrocities, hate speech and the persecution or the Rohingya Muslims to this pivotal point of a really discriminatory citizenship law. There is also a case moving forward at the International Criminal Court (ICC). And, in terms of other treaty bodies, they are also looking at inter-state disputes. So, there are multiple legal avenues and fora.

Assuming that this law does go forward, if you were able to write in a few amendments, what are the things that you would include?

GB: One is to adopt a national standard. And that should be the standard that the law follows. And second, I think there is a dichotomy in that we either look at people as ‘illegal immigrants’ or as citizens [but] there are a range of statuses that exist between those two — temporary work visas, long-term visas and so on.

So, we need to expand the conversation on migration to beyond this binary of ‘illegal immigrants’ and citizens. I think under the new law, I would definitely have a number of provisions that deal with the reality of economic migration, other kinds of migration and the appropriate statuses that go with that.

PP: Honestly, I would just echo that. And, I would just add one more thing, given that this is about prosecution and engaging refugees and the norms around refugees. This is an opportunity for the government to actually sign up to the Refugee Convention as well as the protocol and the Statelessness Convention and, you know, show that it is serious about this issue beyond the narrow optics that are currently playing out right now.