The Indian Constitution Advocates a Humane Approach

Newsreel Asia Insight #275
July 8, 2024

Mizoram Chief Minister Lalduhoma has communicated to Prime Minister Narendra Modi that the northeastern state will not engage in the forced deportation of Zo ethnic individuals from Bangladesh’s Chittagong Hill Tracts. Since 2022, about 2,000 civilian refugees have sought asylum in Mizoram in response to military operations against a local militia by the Bangladeshi Army. Lalduhoma’s refusal to deport the asylum seekers aligns with the spirit of India’s Constitution.

The Times of India reported on July 7 that Chief Minister Lalduhoma informed the central government that his state will not deport asylum seekers. He was quoted as saying that since 2022, many members of the Bawm tribe, an ethnic group within the Mizo community, have sought refuge in the state from neighbouring Bangladesh, with numerous others attempting to enter.

Mizoram’s approach to asylum seekers and refugees appears more humane compared to the central government, and the Indian Constitution is similarly humane. However, India’s handling of refugees is marred by contemporary legal and bureaucratic gaps.

On the one hand, India has a long history of providing refuge to diverse groups, reflecting a traditionally open and humanitarian approach – this legacy spans from offering asylum to Jews during the Holocaust to accommodating Tibetans in 1959, and various other groups over the decades. But on the other, India does not adhere to international conventions.

India has not ratified the 1951 UN Refugee Convention or its 1967 Protocol, partially due to historical circumstances such as the trauma of partition and subsequent security concerns, as articulated by historical leaders like Nehru and reflected in policies under different governments.

The lack of a formal refugee law leads to a reliance on ad hoc solutions and leaves a significant gap in guaranteeing consistent and fair treatment of refugees and asylum seekers.

While the Indian Constitution provides broad protections that should theoretically extend to all individuals within its territory, including refugees, the practical application of these protections is inconsistent.

“No refugee can be deported because our constitution protects not only citizens, but all those within the territory of India through Article 21, which obliges the state to protect the life and liberty of anyone within the territory. So the government is obliged to protect the lives of Rohingya,” argued Gonsalves, speaking to Al Jazeera in January.

The Bharatiya Janata Party (BJP)-led government doesn’t seem to have the will to ratify the 1951 UN Refugee Convention or its 1967 Protocol because they are “anti-minority,” Gonsalves said, adding, “The Congress government who were in power earlier were equally shortsighted.”

India should consider adopting a formal refugee law that aligns with international standards to provide clear, consistent and fair treatment of all refugees and asylum seekers. This would help reduce the ambiguity and variability currently seen in refugee treatment and ensure that humanitarian considerations are adequately balanced with security concerns.

Engaging with international frameworks could enhance India’s policy coherence and its international standing on humanitarian issues. Ratification would also provide a more robust framework for cooperation with international organisations like the UNHCR.

To address operational challenges, India could facilitate greater operational capacity for the UNHCR within its territory, especially in regions like northeast India, where local government support varies and is not always aligned with national policies.

Strengthening partnerships with NGOs and local communities that have historically supported refugees can improve the immediate living conditions and integration prospects for refugees. Ensuring that policies and their implementation are non-discriminatory and in line with both constitutional protections and international human rights standards is essential.