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The standard operation procedure for handling refugees in India

To say that we do not have a law as far as refugees are concerned, we perhaps have what is known as a standard operating procedure that came out in I think 29th December 2011, and the NDA government has subsequently applied same standard operating procedure. I will just read out the standard operating procedure, so that it becomes useful and it’s relevant to the discussion because this is also something that we have cited as part of our documents before the Supreme Court.

This is by, this on the 6th of August 2014, from the government of India Ministry of Home Affairs, law for refugees in India, this is what it says, and this one paragraph more or less captures the sum and substance of India’s position when it comes to refugees. OK, so just pay attention to this.

India is not a signatory to the 1951 United Nations convention on the status of refugees. Point number one, please note this. So, we are not a signatory to this. Therefore, all obligations that apply to the signatories of this particular convention, they don’t apply to us. Okay, we have not ratified, we have not signed, we are not signatory or a member of this particular convention.

Second, and the 1967 protocol as well. So, every instrument, international instrument has a master document and then you have subsequent protocols that come pursuant to it. So, neither are we parties or signatories to the 1951 convention nor are we parties to the 1967 protocol, point number 1. Therefore, the obligations that apply and that attend and visit on signatories don’t apply to us. Two, there is no national law on refugee at present. This is the position of the government of India, which is a fact. Government has circulated a standard operating procedure for dealing with foreign nationals who claim to be refugees to all state governments on 29th of December 2011. So, the Central government in December 2011 has circulated a standard operating procedure to all state governments saying, Bhaiyya, agar aap ke pradeshon mein ek illegal refugee aa jatha hai ya phir refugee aa jatha hai uske saath aap kaise deal karenge, uske liye aapka ek template hai. This is the template, please follow this. That template has been adopted and continues to be adopted even today.

Is our position with respect to Rohingyas, violative of the standard operating procedure, is the only question I have to answer because that is the only position that applies to refugees today. This is the only legal framework that applies to refugees today. This standard operating procedure stipulates that cases which are prima facie justified on grounds of a well-founded fear of persecution, on account of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion can be recommended by the state government to the Ministry of Home affairs, for grant of long term visa, after due security verification. A foreigner to whom LTV is permitted by the Ministry of home affairs will be allowed to take up employment in the private sector. Therefore, what is the mechanism? The state government will escalate a request to the Ministry of Home affairs. The Union ministry of Home Affairs, saying a particular individual or a group is entitled to long term visas after due security verification is undertaken.

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