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The need for an Asylum Law

Refugees are not terrorists. They are usually the primary victims of terrorism-António Manuel de Oliveira Guterres.

What is Asylum Law?

Asylum in a natural translation to English would mean; the protection that is conferred by a country to a person against his or her state. Asylum in mere words means a person demanding a temporary or permanent stay in another country. Although there are many limitations on the eligibility of a person to get asylum in the country.

Asylum is mostly asked by refugees, whistleblowers or criminals who, because of the concern of getting persecuted by their country, get escaped to another. The best illustration would be Edward Snowden, who was termed as a "whistleblower" by the United States government because he leaked classified information.

Snowden was driven by the fear of not getting a fair trial & being persecuted by his country. This resulted in him escaping from the US and seeking "Asylum" in various countries. At last, it was Russia against the will of the US who conferred him an Asylum.

In the International arena, there exist various legal protection guaranteed to refugees under various conventions & treaties. Article 14 of the Universal Declaration of Human Rights (UDHR) assures that everyone has a right to seek asylum & enjoy in another country from the fear of being persecuted by his or her state.

Who are Asylum Seekers?

Asylum seeker is the term used for the person who is asking for asylum in various countries until he or she receives one. In another manner, this term can be utilized for the individual who has applied for asylum and has not received any confirmation from the concerned authority. This further implies that all refugees at some point were asylum seekers. Another deceit lies that a person can be a refugee & an asylum seeker at the same time.

Difference between Refugees & Asylum seekers

These two global terms ‘Refugee’ & ‘Asylum’ go hand in hand and create a lot of confusion because of the similarity in their nature. Asylum is conceptually distinct and predates refugee status. The basic distinction among the two terms is as stated below:

Asylum seeker:

The one who seeks international protection & whose appeal as a refugee is not determined yet. The reason could be to escape war or due to fear of persecution.


The 1951 Refugee Convention's article 1 (A) (2) elaborates as — A refugee is someone who was forced to retreat because their home nation is unsafe, and their particular government cannot or will not protect them and is not willing to return there,

Different types of Asylums:

The right of asylum falls into Two basic classes: Territorial and Extraterritorial
  1. Territorial Asylum:

    This type of Asylum means the states provide asylum within their territorial border with extradition as an exception.

    The United Nations General Assembly adopted the Declaration on Territorial Asylum in 1967 which states specific guidelines for allowing asylum. Also furthers that asylum granted by one state should be welcomed by all other states, and it should be a peaceful humanitarian act.

    Russia granting asylum to Edward Snowden in its territory would be the best example.
  2. Extra-Territorial Asylum:

    This particular type elaborates that the state does not grant asylum in its territory but preferably in embassies, commissions, ministries, warships, and merchant vessels in foreign territory.

    This is probably the most controversial type because people can easily misuse this right. The famous case of Julian Assange is the best fit for an example. Julian Assange ran from the United States because of charges upon him of hacking computers. Later he was granted asylum in Ecuador's embassy in London.

Who doesn't qualify for Asylum?

According to United Nations principles, "All civilians are entitled to seek asylum". Also states former soldiers are eligible, but people who are currently soldiers are not eligible. Also, the person who has committed severe crimes against peace or humanity & serious non-political crimes would not qualify for asylum status.

Why doesn't India have an International Refugee/Asylum Law?
The 1951 Convention relating to the Status of Refugees is the main pact even today that leads to the security of refugees. Later on, the 1967 Refugee Protocol was brought into effect to support the Refugee Convention.

These two laws govern & grant the rights of refugees & asylum seekers all over the world. Currently, 148 countries are signatory to the convention. The member states to the convention are bound to follow the rules. Although the rules abiding the treaty are not domestic laws for the member countries. The government decides on granting asylum on a case-to-case basis.

India, the most liberal democracy did not endorse the refugee convention. There has been no official statement by the Indian government which would clarify the reason for not signing the convention. Security should be granted to persecuted individuals, groups forced to flee, as well as those escaping environmental phenomena. India certainly has the highest number of refugees in the region of South Asia. Currently, India has 17.5 million refugees & ranks eighth in the world in hosting the number of refugees.

There have been various attempts to introduce a national asylum policy since the parliament first sat in 1952, but none could meet the ends. The latest was "Asylum Bill 2015" introduced by Congress Lawmaker Shashi Tharoor. However, the bill had not found the way forward yet.

Notwithstanding the huge count of refugees, India has negotiated them with high respect. Also, India has treated many persecuted inhabitants like Tibetans and Sri Lankans. The refugees normally live in India, so signing the UN refugee convention doesn't make much of a difference.

Effects of absence of Refugee/Asylum Law

  1. No recognition for Refugees

    The biggest migration in human history took place during Indo-Pak formation where millions of migrants fled from one side of the border to another and vice-versa. Yet India lacks a refugee policy. Nonetheless, the looms heading over India are the fact that a foreigner & a refugee are no different.

    The Constitution of India only revolves around who ought to be called Indian. While the Refugees would be governed beneath The Foreigners Act, 1946. Section 2 of the act hardly states that anyone who is not a citizen of India is a foreigner. This signifies the nonexistence of a law that would determine the status of Refugees, Asylum seekers etc.
  2. The status of Rohingyas in India:

    Rohingyas require no introduction. The Rohingya Muslims of Myanmar are the world's most persecuted inhabitants as per United Nations Human Rights (UNHR). India is home to almost 40,000 Rohingyas while most of the concentration is around Jammu. The rise in the number of Asylum seekers in India over the last decade cannot be ignored.

    The Rohingyas being treated as refugees would imply that they would not be granted necessary amenities that as an Indian citizen like Aadhar Card, Ration Card etc. In the absence of the law governing their particular identity but also not recognizing them would lead to big problems further. Furthermore, the Rohingyas are living in constant fear. The fear is formed because the Indian government is invariably making efforts to extradite the Rohingyas.
  3. The CAA conundrum:

    The widely hyped Citizenship Amendment Act (CAA) was passed by the Indian government in December 2019. Before the enactment of the act, there was enormous protest countrywide. Furthermore, the act also challenges the root of secularism — the tone of the principle on which this nation stands. The CAA bars Muslims in two ways. It highlights the oppression of non-Muslims in bordering Muslim countries and as well excludes Muslims in the list of favored migrants. Article 14 of the Indian Constitution also comes into play which guarantees every citizen of India equality.
However, since the enforcement of this Act, there has been a sparse decline in the number of refugees in India. Additionally, as the refugee graph tilted downward, the number of Indians seeking political asylum rose exceptionally. This also raises questions that India despite being the world's largest democracy is not a favored destination for refugees & asylum seekers.

Asylum Law is a critical aspect of International Law and needs to be controlled carefully. India has constantly treated refugees in the most abundant way. Also, India quite capably handled the largest human migration caused due to the colonial partition between India & Pakistan. Since the development & enactment of CAA, it seems that India's approach towards refugees has grown extra aggressive.

Despite being an accomplished democracy, India must comply with International policies & assign treaties to restrain a minimum breach of basic rights. If not, a domestic law India should at least consider International Law for assistance. India on the asylum part has done well with no laws but can certainly do much better. So yes, India needs a National Asylum Policy.

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