On April 14, the United Kingdom (UK) signed a migration partnership with Rwanda. As part of the deal, a vast majority of asylum seekers who arrive in the UK either via boat or hiding in trucks will be sent to Rwanda to be resettled. However, many have argued that Rwanda’s human rights record is not clean, and that deporting people to centres in the country is “dangerous, cruel and inhuman.” Moreover, UK is part of the Refugee Convention signed in 1951, which in turn builds on the Universal Declaration of Human Rights of 1948. The convention allows persons seeking refuge a right to entry and to certain jus cogens rights of trade, practice etc. However, it is silent on the matter of citizenship since it is a domestic affair of a sovereign country.
India is not part of the refugee convention but a member of the United Nations, which has given the subsidiary treaty of the “Refugee Convention”. So can asylum seekers enter India? We do not know yet.
The entry to India is regulated by the foreigner’s act, which empowers the Government of India to deny “illegal immigration” into India. Since India is not a party to the refugee convention, it is also not bound by the principle of “non-refoulment” — the practice of not forcing refugees or asylum seekers to return to a country in which they are liable to be subjected to persecution.
Being not part of the refugee convention, India also has its own right of determination of the entry requirements and is not obligated to receive refugees except for the Citizenship (Amendment) Act, 2019, requirements. The Supreme Court of India has also struck down the Illegal Migrants (Determination by Tribunals) Act, 1983.
So the critical questions that need to be answered are:
Can India accept refugees?
Depending on what India determines through legislation.
Can the entry of illegal migrants be restricted?
Yes, on a combined reading of the Citizenship Act and Foreigners Act.
Is India obligated to provide refuge?
No, as it categorises the same as a domain reserve of the Sovereignty of India, which includes who is part of the sovereign, unlike the European Union or the parties to the refugee convention.
Can India rely on the domain reserve of sovereignty and national security, as envisaged in the Preamble and the Constitution?
Yes, though this has been called into question in the judiciary as on date.
Can India enter into such agreement with another country to send its refugees and illegal immigrants?
No.
Srikant Parthasarathy is a professor of International Law and an alumnus of the Hague Academy
Amirthalakshmi R is a principal counsel at Chambers of Dr Srikant Parthasarathy
The views expressed are personal
