Snowden case: Why experts & activists disagree with govt's decision to deny asylum

Experts point out that the problem lies in the fact that India refused to ratify the 1951 Refugee Convention, which set up a framework for countries to deal with asylum seekers.

Should the decision to give asylum to an individual be a political decision that is left to the discretion of the government of the day? Or should it be backed by legislation and a process that would clarify why India does or does not agree to give shelter to individuals or groups who seek it?

A debate on these lines has started after India earlier this week decided not to give asylum to US security contractor Edward Snowden who has been declared a wanted man by the US for bringing to light surveillance programmes that penetrated countries across the world India included. External affairs minister Salman Khurshid was categorical in his response on the matter and said India was not an open house for asylum seekers.

Skirting the Issue

Experts, who do not agree with the view taken by the government on Snowden, point out that the problem lies in the fact that India refused to ratify the 1951 Refugee Convention, which set up a framework for countries to deal with asylum seekers; it gave direction on how they were to engage with, categorise and decide upon the future of these candidates.

The convention was adopted after the World War II and was initially restricted to post-war Europe. In 1967, in an effort to give the convention universal application, a protocol that removed the restrictions on the limits of the convention was added. However, India has not ratified the convention and has instead chosen to deal with refugee influxes through executive action. This action is usually determined by the government's policy towards the country of origin.



According to Bhairav Acharya, a lawyer who specialises in refugee protection, India has a history of accepting mass influxes and at the same time denying refuge to individuals who come from specific situations of persecution. Taslima Nasreen and the Dalai Lama would be among a handful of such people who were provided asylum by India.

This is partly because India makes its decisions based on the view taken by the government whereas ideally the nation should take a decision after giving the person concerned a chance to be heard, says Acharya. "If we had a law on refugee rights, people like Snowden would have had an opportunity to be heard; the legal process would then deem whether he was genuinely persecuted and whether he should be allowed to stay in the country," adds the lawyer.

Arvind Kejriwal, leader of the Aam Aadmi Party and one of the founders of the transparency movement in India, condemned the denial of asylum to Snowden and attacked the government for justifying the surveillance programmes conducted by the US.

Roshni Shanker of Ara Legal Initiative says in an ideal situation, India would have spelt out the reasons behind its decision to deny asylum to the whistleblower. "India has historically had a generous policy towards asylum seekers and now the government has stated that we have a restrictive policy towards them. We need to have a uniform framework to deal with the question of asylum seeking," says Shanker, an advocate who provides legal assistance to refugees in India.

She pointed out that the European Union in its framework had mandated that the asylum seeker must be on the territory or at the border of the state with which he intends to submit an asylum application and this was cited as the reason by many EU countries as coming in the way of Snowden's request. According to Shanker, the fact that a decision on Snowden's case was taken in such haste and the lack of a uniform domestic policy raise concerns that the government's decisions appear to be ad hoc.

Not Welcome

Transparency activists also say it is ironical that India has denied asylum to a man who had thrown light upon surveillance programmes that targeted the country. Activists say while the number speaks of India's ability to empathise with refugees — India has an estimated 2 lakh refugees — their status in the country remains unclear. This leaves them insecure and in constant fear of being asked to leave.

In the absence of a specialised framework, the country relies on the Foreigners Act 1946 to govern the arrival and stay of all foreigners into India. The law makes no distinction between people who were forced to flee their homes and those who come here on a holiday. Since refugees in India do not enjoy any special protection, they are treated virtually on a par with foreigners and illegal immigrants. Most of the orders issued under the Foreigners Act have to do with controlling the movement of foreign nationals in India.

This has meant that refugees have had to live under complete insecurity in India. Although most Tibetan and Sri Lankan refugees have spent the better part of their lives in India, they continue to be counted as non-entities.

The Human Rights Law Network had conducted a survey of refugee populations from across the world a few years ago and found that none of them had access to any kind of identity papers, assured access to healthcare and so on. The survey, for instance, said that the Somali refugees in India, who do not know the local language and have not been issued any papers, find the going extremely difficult.

"The Somalis find it difficult to gain access to education, medical treatment and employment. There are two reasons for this. First, the majority of the Somali community in India cannot speak English or Hindi," the report said. "Secondly, they are discriminated against because of their colour. They stand out from the local population. Somali refugees report that it is extremely difficult for them to find housing since many Indians do not want to lease properties to them."

Until India signs off on a clear legislation on asylum seekers, life will continue to be tough for them in a country that is often described as an "ancient civilisation".

Source : By K P Narayana Kumar, ET Bureau