US President Donald Trump has been true to his electoral promise. In a chilling executive order issued just days after he was sworn in, the president banned the entry of people from war-torn Syria, Iran, Iraq, Yemen, Somalia, Libya and Sudan into the US.

The order claims to strike a blow against terrorism, blames the 9/11 attack on a lenient US State Department, and breezily asserts that “numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001”. If Trump does not have numbers to support his claims, he has feelings. In a paragraph that is rich in irony, the order also speaks of people who engage in acts of bigotry and hatred, such as “persecution of those who practice religions different from their own”.

Despite Trump’s protestations that it is not targeted at people from a particular faith, the order invokes “American carnage” and its great antidote, the “Muslim ban”. The fate of millions of refugees will be decided by the vagaries of an election.

This is happening in a country with a well-defined refugee policy and international commitments towards resettlement. In India, on the other hand, refugees and migrants are unshielded against political whim or expedience.

A silence

In India, where the violence of Partition created millions of refugees overnight, the fledgling state struggled to account for and settle displaced populations. After the frenzy of those initial years, however, legislative action concentrated on weeding out so-called foreigners, and a curious institutional silence descended on the question of refugees.

Compare this to American volubility on the subject. To begin with, the US is signatory to the United Nations convention on the status of refugees and stateless persons and the 1967 protocol. These statutes define a refugee as “someone who has been forced to flee his or her country because of persecution, war, or violence”, and who “has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group”.

India has held off from signing the convention, either because of its traditional mistrust of the UN or because, with limited infrastructure and stretched public resources, the Indian state does not want to be responsible for the large volumes of refugees created by the churning of an unstable subcontinent.

Second, America has passed legislation explicitly recognising the rights and needs of refugees, starting from the aftermath of the Second World War. The Displaced Persons Act was passed in 1948 and the Immigration and Nationality Act in 1954. The Vietnam War and the rush of Indo-Chinese refugees into the US brought in the Refugees Act of 1980.

It provided for the admission of up to 50,000 refugees a year, though the president was authorised to let more in. It also set up mechanisms for entry and resettlement, including an annual presidential report on the number of refugees foreseeable that year, agencies to oversee funding, healthcare and jobs as well as processes of naturalisation.

India, in contrast, has no domestic regulation that mentions the word “refugees”, relying instead on a thicket of other laws to take care of them. The flow of foreign nationals in the country is meant to be regulated by the Foreigners Act of 1946, the Foreigners Order of 1948, the Passport (Entry of India) Act of 1920, the Passport Act of 1967, and the Registration of Foreigners Act of 1939.

As for refugee status, successive judgments ruled that “well-founded fear” would have to be backed up by evidence of “real and substantial danger of persecution”.

A Rohingya colony in Delhi. Money Sharma/AFP
A Rohingya colony in Delhi. Money Sharma/AFP

Selective rights

Over the decades, a large and largely undocumented number of refugees have drifted into India, with every conflict in the subcontinent setting off a fresh wave of migration. Tibetans fleeing Chinese atrocities in the 1950s found refuge in various parts of the country. The Bangladesh war in 1971 sent thousands over the border. Sri Lanka’s civil war injected ethnic Tamils into the south in the 1980s, and Afghanistan’s decades of conflict created a noticeable expatriate population in Indian cities.

The rights and facilities afforded to these various groups remained erratic, decided on a case to case basis. Refugees from some groups were given land, granted Aadhaar and PAN cards, allowed to open bank accounts, and work in the country. Tibetans were even allowed to set up a government-in-exile.

Others groups remained huddled in miserable camps, dependent on the good offices of the UN or the charity of non-governmental organisations. It became evident, over time, that some refugees were more welcome than others.

Refugees and infiltrators

The question of who got government patronage and who did not is not innocent of politics, usually illiberal politics. The ghosts of Partition still haunt government policies that would affect refugees in the country, giving these a communal hue.

In the aftermath of Independence, the movement of Hindus into the country was seen as a “natural homecoming”. With the rise of Hindutva, the flow of refugees came to be described as “infiltration”. The ideas of homecoming and infiltration exerted a polarising influence on Indian politics for decades.

The legacy of the Assam Accord, signed in 1985, is a case in point. The movements for ethnic self-determination in the North East were accompanied by the demand to expel “foreigners”, usually branded “illegal Bangladeshi immigrants” or “IBI” in those parts. With the accord, the Centre agreed to change existing citizenship laws so that migrants who had entered the country before 1966 would be recognised as citizens, those who had arrived between 1966 and 1971 would have to go through a process of naturalisation and those who came after March 24, 1971, would have to be expelled.

It effectively delegitimised most of those who had sought refuge after the Bangladesh war of 1971 and gave way to a regime of Foreigners Tribunals, aimed at expelling “illegal migrants”. The accord had provided for the expulsion of all Bengali settlers, Hindu or Muslim. In political discourse, the bogey of the IBI was communalised and increasingly identified as Muslim. Over time, the Congress played on the insecurities of Bengali Muslim settlers to create a captive votebank, while the BJP raised fears of Muslim “infestation” from across the border that brought with it the threat of terror.

A Tibetan monk in Dharamsala. Arko Datta/Reuters
A Tibetan monk in Dharamsala. Arko Datta/Reuters

Which minorities?

These fears were resurrected before the Lok Sabha elections of 2014 and, over the last few years, the Centre has quietly introduced a slew of changes that reinforce the old ideas: India is a “natural home” for Hindus, non-Muslim refugees may be welcome, Muslims are not.

Soon after coming to power, the National Democratic Alliance tweaked the Passport (Entry into India) Rules of 1950 and the Foreigners Order of 1948, easing regulations for minorities from Bangladesh and Pakistan to stay on in the country. In July 2016, the government approved a number of relaxations for minorities from Pakistan, Afghanistan and Bangladesh, allowing them greater access to the rights of citizenship. The Citizenship (Amendment) Bill, 2016, which has been introduced in the Lok Sabha, states that Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Pakistan, Afghanistan and Bangladesh would no longer be considered illegal migrants and proposes to ease the process of naturalisation for them.

The aim, argues the government, is to give shelter to minorities fleeing religious persecution in neighbouring countries, which usually have Muslim majorities. But it seems oblivious to the plight of Muslim minorities in surrounding countries. What of Ahmadis in Pakistan, declared non-Muslim and attacked for their beliefs? Or Shias, whose mosques and homes are targeted by Sunni fundamentalist groups?

Or the Rohingya in Myanmar, branded stateless and systematically being wiped out by the military junta there? While thousands of Rohingya live in Delhi, Haryana, Jammu, Jaipur and Chennai, only about 500 have been granted long-term visas. The rest depend on refugee certificates and jobs handed out by the UN or other NGOs. Most live in cramped camps. Some eke out a living as daily wage labourers. Never mind owning land, the Rohingya cannot even legally get SIM cards for cell phones.

Indeed, the only Muslim minority that seems to have attracted the Centre’s sympathy are Baloch separatists fighting a battle for self-determination in Pakistan. Last year, as Pakistan came out in support of pro-freedom protests in Kashmir, the Centre announced its decision to give asylum to Baloch leader, Brahumdagh Bugti.

Meanwhile, in Kashmir, the state government in December announced identity certificates for West Pakistan refugees. Mostly Hindu migrants from Pakistan-occupied Kashmir, they had lived without any rights of citizenship for decades. In tandem with the state government’s move, the Centre announced a Rs 2,000 crore package for such refugees. Whatever their intentions, the timing of these measures reactivated anxieties about demographic change in the Valley.

Laws of the land

The prejudices that have shaped political attitudes to refugees in India are not unlike those behind Trump’s Muslim ban. Though blanket immigration bans have been avoided so far, the fate of refugees in India cannot depend on the goodwill of politicians.

Desperately needed is legislation that lays out a refugee policy that does not differentiate between communities and is aimed at protecting people fleeing war, persecution and famine rather than warding them off as outsiders or infiltrators.

The trouble is, no party has shown evidence of the political will to draft such a law. The Asylum Bill of 2015, a private member’s bill fielded by Congress politician Shashi Tharoor, attempts to introduce a unified policy. Though it has been criticised for leaving vital gaps in protection granted to refugees and stateless persons, and for failing to recognise complexities thrown up by contemporary political scenarios, the bill might have been a step in the right direction.

Not surprisingly, the bill was not even taken up for consideration. Even if it had, the chances of it finding support from parties on either side of the aisle were bleak. In all the politics surrounding refugees in India, the idea of giving refuge has taken a backseat.