‘We Should Look Upon Refugees As A Resource Not A Burden’

India has more than 270,000 refugees and asylum seekers. While there is no specific legislation for their protection, the colonial-era legislations have been invoked particularly in matters related to illegal entry into the country without documentation that affect refugees who flee violence and instability in their home countries.

As a human rights lawyer, activist and writer, Nandita Haksar, who has worked extensively with refugees, said that she wished that a law had been passed for the protection of refugees before or together with this new bill. “I recognise [right of] the government of a sovereign country to protect its borders and so as such there is nothing wrong with the section,” said Haksar. “However, there are many ways of handling the problem of “illegal” migrants.”

She added that despite the fact that India does not recognise the international convention or have a domestic law to protect refugees, India has been generous to refugees and allowed them to enter through the porous borders and allowed them to make India their home.

In an interview, Haksar shared her perspective on the proposed immigration bill and its impact on vulnerable refugee groups, and her writ petition to protect seven Burmese refugees.

Edited excerpts:

The Union government has introduced the Immigration and Foreigners Bill, 2025 this month. As a human rights lawyer who works with refugees and asylum seekers, what are the consequences that you foresee in the new bill? How is it different from the existing laws, some of which are colonial era legislations?

In order to answer this question we must understand the problem of classification of foreigners under Indian law. Article 14 [Equality before law] of the Indian classification allows for valid classification.

I would like to answer the questions specifically with the rights of refugees and asylum seekers because that is the category of foreigners with whom I have been especially concerned. Under the old law, foreigners who come to India can be divided into four broad categories: students coming to India to study, foreigners coming for business purposes, foreigners coming to India to get medical treatment, foreigners coming to India to attend conferences or research purposes and then there are tourists.

There were also those foreigners who came to India and lived for longer spans of time, these were the spouses of Indians; and then there were migrants.

Migrants are a special category of foreigners who go voluntarily to another country in search of better opportunities for themselves and children. These migrants could eventually become citizens of India through the process of naturalisation. However after The Citizenship Amendment Act, 2019 (CAA) amended the Citizenship Act, 1955 to fast-track those migrants, especially Hindu, Sikh, Buddhist, Jain, Christian, Parsi, from Afghanistan, Bangladesh, and Pakistan to be eligible to become Indian citizens who have fled from religious persecution, provided they came into the country on or before 31 December 2014. It excluded people from the Muslim community (the majority community of those nations).

Here the definition between a refugee and a migrant got conflated. This has happened in the world when the Western media called people fleeing from conflict areas in West Asia and Africa, in around 2007-8, ‘migrants’ even though clearly they had not “voluntarily” left their country.

By calling these people “migrants” the West had found a way to bypass their obligations under international human rights and humanitarian law. And the media was complicit in this project. It was Al Jazeera that first took a policy decision to call them refugees. An online petition urged the BBC to do the same.

India is following in the footsteps of the West. But is this in consonance with our national interest? We have in the past defied their advice and that is precisely why we did not sign the UN Convention on Refugees because it was passed during the Cold War to serve the interests of the Western states.

As we know India is not a signatory to the UN Convention on Refugees 1951 and for a long time did not allow the UNHCR [the UN Refugee Agency] to open its office in India. There is a background to why India took this stand. I cannot go into the history of the Convention except to point out the West and UNHCR never recognised the enormous problem India had to deal with in the wake of the bloody partition of British India into India and Pakistan; and later of the refugee problem in the wake of the creation of Bangladesh.

UNHCR or the West did not provide any support to the refugees and India had to handle the situation on her own.

Despite the fact that India does not recognise the international convention or have a domestic law to protect refugees, India has been generous to refugees and allowed them to enter through the porous borders and allowed them to make India their home.

However, India did accept two specific categories of foreigners as refugees: the Tibetans and the Tamils from Sri Lanka. They were given identity cards and housed in camps. Over time [due to] the intervention of human rights lawyers, the courts in India, including the Supreme Court, recognised a special category of foreigners called “refugees”. I think refugee protection law began in many ways when I filed cases on behalf of Burmese refugees coming to India after the military crackdown in that country in 1990. For instance, Khy-Htoon and Others versus State of Manipur.

The clause 3 (1) states that no foreigner shall be allowed to enter into or stay in India on account of threat to national security, sovereignty and integrity of India, relations with a foreign state or public health or on such other grounds as the Union government. These are sweeping powers vested in the government to deny entry or exit, particularly of vulnerable groups like refugees and asylum seekers, many of whom may not have valid documents. What do you think about this clause? And do you see wider ramifications when read with legislation like the CAA?

I would like to point out that I recognise [the right of] the government of a sovereign country to protect its borders and so as such there is nothing wrong with the section. However, there are many ways of handling the problem of “illegal” migrants. Insofar as these men and women and children come into our country without legal travel documents, they are “illegal”.

I still think there is a difference between those who come to India because they are fleeing political or religious persecution and those who come for better economic opportunities--although it is not easy to distinguish between a migrant and a refugee when people flee a civil war or a war. The situation is made much more complex when they are from a neighbouring country.

India had tasked the National Human Rights Commission [NHRC] with the job of drafting a domestic law on protection of refugee legislation. Unfortunately the NHRC has not done this and as a result if this Bill is passed, it will make the condition of the refugees precarious.

Would having a specific law for refugees and asylum seekers be pertinent at this point given that the Bill does not say anything about the issue?

NHRC has expressed concern about the condition of refugees and asylum seekers. The Minutes of the Open-House Discussion on Protection of the Basic Human Rights of Refugees and Asylum Seekers in India which took place on January 20, 2022 are available online.

There was a discussion on the question of refugee protection and the NHRC called for a national law to end adhoc-ism and ambiguity in dealing with refugees and asylum seekers in India. The panel felt that a legislation would help them to avail the benefits of government welfare measures while safeguarding the national security interests.

Shashi Tharoor tabled a private member's Bill in Parliament in 2015. No discussion has taken place, not even by the Congress party which is now vociferously opposing the present Bill.

I wish that law had been passed before or together with this new law so it would be clear that India would honour its international obligations under international human rights and humanitarian law.

Even the present Bill has provision for the Government to make an exception for a category of persons and Section 33 where the Government can make an individual foreigner or class or description of foreigner exempt from the provisions of the proposed law.

Perhaps rules made under this section could even include the category of refugees.

While there have been court judgments that offer refugees and asylum seekers protection from being deported, particularly those who are in grave danger in their home countries (principle of non refoulement), how does the new bill look at such groups? There is concern about illegal entry of people into India. But is the government conflating the issue of national security with genuine issues faced by asylum seekers?

Yes, you are right; the Government needs to make a distinction between criminalisation of refugees and asylum seekers and dealing with them administratively.

As of now, the UNHCR has been dealing with refugees and till India has its own law in place, it would be wiser to allow the UNHCR to continue functioning. However, in my experience the refugees who have been recognised under the mandate of the UNHCR have identity cards which local police stations do not respect. That is why so many refugees facing problems are left without any protection.

We should remember that refugees are not allowed to work except in the unorganised areas so they are not a threat to Indians. Even in Mizoram, where so many refugees from Myanmar have taken shelter are not permitted to work.

The UNHCR has outsourced much of the social work to Indian NGOs and many who actually did provide support to refugees in the area of health and education are unable to do so because their funds have been curtailed by the government.

By denying refugees their right to dignity, the Union government is only alienating them. Many of these refugees will go back to their countries and will go back with feelings of resentment and hate for India. We should look upon refugees as a resource, not a burden.

The Bill has provisions which make it mandatory for medical institutions and educational institutes to inform the police of the presence of foreigners, which will discourage them from helping refugees and migrants.

By depriving refugees of jobs and means of livelihood and not allowing them to have access to medical and educational facilities could drive them to committing crimes to survive.

We must deal with the problems of refugees (and by extension migrants) administratively, not criminalise their existence.

Your writ petition (Nandita Haksar vs State of Manipur) asked that seven named Myanmarese citizens, who entered India illegally, be allowed to travel to New Delhi to seek protection from the UNHCR. They feared being deported to Myanmar from where they were forced to flee due to unsafe circumstances. Could you briefly talk about the judgement of the Manipur High Court and its present status? How will such cases, where people have crossed into India for safe harbour, be seen by courts if the new bill is passed?

Let us look at the people on whose behalf I filed the case. They were three journalists working for Mizzima media and their family including three small children. One of the Mizzima journalists had entered India only in the previous year with a gratis visa as a guest of India. The CEO of Mizzima Soe Myint had signed a contract with Prasar Bharati in 2018. How could these friends of India be looked upon as a national security threat? Yet in 2021 after the military coup in Myanmar when the journalists fled to India, they were treated as illegal migrants and not allowed to move from Moreh on the Indo-Myanmar border to Imphal despite a very real threat of being infected by the Covid virus.

The High Court gave an excellent judgement upholding the right of refugees and the seven of them could come to Delhi and are recognised as refugees under the mandate of UNHCR. However, subsequently, the Court stopped giving the same relief to other Burmese refugees and then we had the violence in Manipur and suddenly, Burmese refugees found themselves becoming targets of the controversies and violence.

One year after the judgement, the Union government went in appeal against the judgement and the matter is pending in the Supreme Court. The main ground in the appeal (which has still to be officially admitted) is that the High Court was wrong in making a distinction between migrants and refugees. In fact all are “illegal migrants”.

Just at the time the appeal was filed as a Special Leave Petition one of the Mizzima journalists phoned to say his landlord had told him to vacate the premises. The landlord of the journalist phoned to ask me to tell the Burmese to leave the accommodation and said the police had intimidated him.

The present bill makes it illegal for the “keeper of accommodation” to keep “illegal migrants”. Even before the Bill has been passed, the refugees are facing harassment and do not know where to turn to for protection.

A clause in the new bill, as you said, requires every hospital, nursing home or any other such medical institution providing medical, lodging or sleeping facility in their premises to share information about foreigners with relevant authorities. Is this usual and does this stem from surveillance, where anyone is seen with suspicion?

First of all, this provision is unconstitutional because it violates the provisions of the Indian Constitution. Our Constitution gives every person, not only citizens, the right to life under Article 21 and protection against arbitrary use of state power under Article 14. It was because of these articles that the courts recognised the right to non refoulement because they read this right under refugee law with Article 21 and 14.

Therefore, to deprive the refugee, illegal migrant or anybody of medical treatment would violate our Constitution.

None of this is to say that there are no genuine national security concerns, especially in the Northeast part of India which shares a long border with Myanmar.

What are these concerns?

(a) There is insurgency in Northeast India, and in Myanmar there are the ethnic armed groups fighting. These have linkages between the two.

(b) Rising menace of drug trafficking which could be narco terrorism which implies that drug lords have influence on policy issues.

(c) humanitarian crisis.

The armed ethnic groups now control a significant amount of territory and therefore the Union government has been forced to begin dialogue with these armed groups and has started sending humanitarian assistance into Myanmar.

These steps are in the right direction but in the meanwhile, the genuine Burmese refugees are facing untold misery and more than 80 are in jail. One of them, U Aung Myint, died in jail of lung cancer. He had come into India to seek medical assistance but was arrested.

The humanitarian crisis along the Indo-Myanmar border has made the conflicts inside our country more complex.

Therefore, instead of arresting, detaining and depriving the Burmese people who have taken refuge in our country, we should offer humanitarian assistance and help the people living in our border areas. They need electricity, medicines, schools, clean water, tractors and seeds to restore their agriculture. If India could provide these, then the people would return back to their homes and villages.

One aspect of the civil war in Burma has been the Chins have taken to poppy cultivation which is the only means of living. They would stop if they are helped to rehabilitate. If they stopped coming across the borders, it would considerably ease the tensions. However, the humanitarian assistance is far too little and the repression is much more.

India has allowed the National Unity Government [in exile] to function in India. They have made a clear statement that they do not wish to interfere in the internal affairs of India. They are the best allies India has. This is the time to build bridges, not walls. The Bill, if passed into law, would do exactly the opposite and escalate the threats to national security, not curb them.

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