In the present climate of xenophobic impulses and right-wing nationalism, coupled with escalating allegations of terrorism and state security, establishing host state’s obligations to protect refugees is a painstaking challenge. It is generally claimed that non-refoulement (ban on forcing refugees to return to countries where they are likely to face persecution) has achieved the status of customary international law. Nevertheless, states often find justifications to defy its implementation. Refugees are commonly portrayed as a threat to the security of the host country, and this justification is suitably invoked to close their borders or deporting refugees to their country of origin. Further, there is a growing tendency to label them as ‘economic migrants’/‘illegal immigrants’. These restrictive policies have facilitated the erosion of non-refoulement in a functional sense.
There have been consistent efforts by states at implementing non-entrée policies to stop refugees (particularly those who do not possess political and ideological value) from reaching their international border. There are differential policies for different sects of people, which conveniently facilitate states in choosing the kind of others they prefer to welcome. These policies have taken the shape of a civilizing mission where the central idea is to ‘exclude’ the ‘un-civilized’ on the grounds of the state’s interest. It is pursued with the goal of securing electoral gains, demonstrating cultural superiority or establishing brute majoritarianism.
The rampant oppressive practice of the Indian government towards refugees is a textbook instance. India not being a signatory to the Refugee Convention and, in the absence of any defined statutory framework on refugees, has only ad-hoc mechanisms in place for refugees. As per the Foreigners Act, 1946, every foreigner, unless exempted, should be in possession of a valid passport or visa to enter India. Hence, if a refugee contravenes these provisions, she is likely to be indicted just like any other foreigner. Inconsistencies and arbitrariness rule in the absence of any clearly defined statutory standards. Thus, while we witness a generous behaviour being meted out to some categories of refugees, others are alleged to be ‘economic migrants’/‘illegal migrants’ and consequently detained, penalized and deported.
The recently-conducted process in Assam (a state in northeastern India) to update the National Register of Citizens (NRC) is a manifestation of India’s intensifying tyrannical inclinations. Historically, in the nineteenth and twentieth centuries, due to the development of railways, tea, and coal and oil industries, colonial Assam witnessed heavy migration from other provinces of British India. The colonial authorities also encouraged educated Bengalis to take up jobs as teachers and other such professions in Assam. These movements resulted in a change in the demographic profile of Assam.
Further, the Partition of India in 1947 and ensuing communal riots on the subcontinent gave rise to the influx of refugees from East Pakistan (present-day Bangladesh) in Assam chiefly due to its geographical proximity. Similarly, in 1971, during the Bangladesh Liberation War, Assam witnessed heavy migration from Bangladesh. Ever since, Assam has been experiencing a continuous migration flow from Bangladesh for various reasons, including climate change. Serious objections against this migration trend have been mounting in the ‘indigenous’ Assamese community. Allegations of depleting natural resources, increasing violence, marginalization and threat to their ‘Assamese identity’ began to amplify in the late ’70s, which gradually led to the Assam Agitation (1979-1985). The Movement, many claims, was triggered after the death of Hiralal Patwari, sitting Member of Parliament from Lok Sabha (House of the People) representing the Mangaldai (Assam) Constituency, which necessitated holding of by-elections. During the process of the election an abrupt and dramatic increase was witnessed in the number of registered voters and it was alleged that a large number of these voters were illegal settlers from Bangladesh.
To many Assamese it appeared as if the Bengali Hindus and Bengali Muslims together were now in a position to undermine Assamese rule. It was feared that the census would show a sharp decline in the number of Assamese speakers as Bengalis who had previously declared their language Assamese would now officially revert to Bengali. (Weiner 1983)
On the other hand, it was claimed that the movement involved careful planning by a few in order to retain the Assamese Hindu majority in the state assembly election, so that other communities, specially Muslims, could not reduce the Assamese Hindus to minority in the elections.
The movement further witnessed the horrific Nelli Massacre of 1983 which allegedly claimed the lives of almost 3000 Muslims in Assam. Two years after the massacre in 1985, the Assam Accord was signed which fixed 24 March 1971 as the cut-off date (as the Bangladesh Liberation War began on 25 March 1971). The Accord envisaged that all foreign nationals who entered Assam ‘illegally’ on or after 25th March 1971 were to be detected, their names deleted from the electoral rolls and subsequently deported under the Foreigners Act, 1946. Section 2(1)(b) of the Citizenship Act of 1955 defines an “illegal migrant” as a foreigner who entered India, (a) without a valid passport or prescribed travel documents or, (b) with a valid passport or other prescribed travel documents but remained in India beyond the permitted period of time.