By Vijay Prashad. This article was first published on Telegraph India.

India’s lack of a proper refugee policy makes it easier for some political parties to express their exclusivist tendencies.

At Dandakaranya in Odisha

The Bharatiya Janata Party leader, Narendra Modi, while campaigning in Serampore, West Bengal, said, “You can write it down. After May 16, these Bangladeshis better be prepared with their bags packed.” What Modi suggests is that undocumented Bangladeshi migrants would be deported by a BJP government without ado. Modi’s statement echoes a long tradition in the BJP — with the Bangladeshi refugee story as part of the bedrock of the BJP’s rise in north India. In the early 1990s, fiercely anti-Bangladesh statements from the sangh parivar pushed an obscure administrative problem to the centre of political life.

As a lead-up to the 1993 Delhi elections, the BJP national executive attacked the “infiltration” of immigrants from Bangladesh, accusing the Congress of taking no action “because it views them as a vote bank”. The BJP in Delhi launched a “declaration of war” against Bangladeshis as the BJP-Shiv Sena government in Maharashtra called for Bangladeshis to “vacate the city on their own or be thrown out”. The BJP continued to blow this trumpet till the end of the decade, and then, in government, toned down its rhetoric (much to the displeasure of the Vishwa Hindu Parishad and the Bajrang Dal). Modi’s statement returns us to the days of Operation Pushback and Operation Flush Out — policies that derive as much from xenophobic political pressure as from India’s lack of a refugee policy fully in line with international law.

India is neither a signatory of the United Nations’s 1951 refugee convention nor of its 1967 protocol. The reasons why India did not join these was correct at those times — the 1951 convention defined “refugees” as Europeans who had to be re-settled and suggested that “refugees” were those who fled the “non-Free world” for the “Free world”. In December 1950, at the UN’s third committee, Vijaylakshmi Pandit objected to the Euro-centrism of the definition of refugee, “Suffering knows no racial or political boundaries; it is the same for all. As international tension increases, vast masses of humanity might be uprooted and displaced.” She was right. The refugee crisis across the world is now severe for reasons of war and economic distress. Three years later, the foreign secretary, R.K. Nehru, told the UNHCR representative that the UN agency helped refugees from “the so-called non-free world into the free world. We do not recognize such a division of the world”.

In spite of its reluctance to join these conventions, India has obligations under international law. India has signed onto the 1967 UN Declaration on Territorial Asylum and the 1948 UN Declaration of Human Rights. Even though it is not a member of the 1951 refugee convention that frames the work of the UNHCR, India is on its executive committee, which supervises the agency’s material assistance programme. Along the grain of such a human rights policy, the Indian Supreme Court ruled in 1996 that refugees could not be forcibly repatriated because of the protections to life and personal liberty in Article 21 of the Indian Constitution (National Human Rights Commission vs. State of Arunachal Pradesh).

India’s current refugee policy is governed by the Foreigners Act (1946) that does not even use the term “refugee”. Without a firm policy, Indian governments over the years have toyed with the different refugee populations for political ends — India’s treatment of Tibetans conforms to its relationship with China, for instance. The failure to have a sensible set of norms opened the door to the 1990s Operation Pushback, which used the Bangladeshi refugees as a tool for communal politics. It is what has allowed Modi to make his threatening statements against Bangladeshi migrants.

One of the bedrock principles of the international regime on refugees and asylum is that it be universal — all people who seek refuge should be treated equally. No tests of religion or ethnicity — or even politics — should be applied. The UN declaration is sensitive to the limits that states might place. For instance, the UN Declaration on Human Rights says that the right for refugee status “may not be invoked in the case of prosecutions genuinely arising from nonpolitical crimes or from acts contrary to the purposes and principles of the United Nations.” Criminals, therefore, can be denied the right to sanctuary (although even here extradition procedures protect those who flee from malicious accusations).

The BJP’s 2014 manifesto baldly states that “India shall remain a natural home for persecuted Hindus and they shall be welcome to seek refuge here”. Such a statement mimics the policy of only one other country, Israel — which sees itself as a sanctuary for Jews who are given an automatic right to enter the country and earn citizenship (to conduct Aliyah). In February, Modi said, “We have a responsibility towards Hindus who are harassed and suffer in other countries. India is the only place for them.”

But India — by its standing in various international protocols — has a responsibility to all asylum seekers and migrants, and must treat them equally. To do anything less than that would move India to join the wave of anti-immigration that has taken hold in Europe and North America, and has been structured into state policy in Israel.

Right before it makes this ill-considered statement in its 2014 manifesto, the BJP praises its “NRIs, PIOs and professionals settled abroad” who are a “vast reservoir to articulate the national interests and affairs globally”. But this population is able to live elsewhere because of the until now relatively liberal immigration policies of their countries of residence. It is telling that the BJP only points its finger at the professionals, saying nothing of the Indian workers across the world whose remittances support their families and Indian foreign exchange balances. Attacks on Bangladeshi slum-dwellers and disregard for Indian migrant workers indicate the class bias of the BJP. It is short-sighted as policy to create policies that discriminate within India, when Indians outside India rely upon non-discrimination for their own lives.

Not long after the shameful Operation Pushback, the former chief justice of India, P. N. Bhagwati, chaired a panel to create a model law for India on refugee rights. Bhagwati — who had also served as regional adviser for Asia and the Pacific for the UN High Commissioner for Human Rights — suggested that “an appropriate legal structure or framework” would give Indian states “a measure of certainty” in their policy-making and it would give “greater protection for the refugees”. Bhagwati’s model law defined refugees as people outside their country of origin who could not return there because of “a well-founded fear of persecution on account of race, religion, sex, ethnic identity, membership of a particular social group or political opinion.” This was a very broad and important standard, which would greatly improve Indian refugee policy. It would also protect refugees — often the most vulnerable population — from political games that are often played at their expense, most recently by Modi.

Bhagwati’s report — like so many other well-meaning commissions — has made little impact. It turned into a draft law — the refugees and asylum seekers (protection) bill — but was unable to leave the home ministry for Parliament because of pressure from the Indian security establishment and various political calculations. Why the United Progressive Alliance did not push for a rational refugee policy is a question that the home minister should answer. The impact of no policy, of course, means that refugees remain tinder for the incendiary rhetoric of Modi and his BJP.