In all three UN meetings in 2018, India had made it clear that it won’t treat irregular migrants on par with regular migrants
On 14 May 2018, in the preparatory process to adopt a Global Compact for Safe, Orderly and Regular Migration (GCM) at United Nations General Assembly, Tanmaya Lal, India’s Deputy Permanent Representative at UN, had said that India does not agree with any attempts to bring concerns relating to refugees into the compact discussion.
While stating that India agrees that the basic human rights of irregular migrants must be respected and protected and that they should have access to due process of law, the Indian official made it clear that irregular migrants cannot be treated at par under national laws with the legal migrants.
And he added that any such attempts to blur any sort of distinction of legal status between regular and the numerically far fewer irregular migrants can only disadvantage the larger interests of regular migrants and even incentivise irregular migration.
Two months later, on 09 July 2018, during the sixth round of negotiations of GCM at UN General Assembly, Tanmaya said that the compact text gives a disproportionate focus to the situation relating to irregular and illegal migrants.
“Our Global Compact must reflect and reinforce this reality. While a humane treatment of irregular migrants is essential, it is also important to not let the focus on regular migrants and their contributions be diluted in the Global Compact that we are working on,” Tanmaya said.
And on 11 December 2018, while adopting the GCM, A Gitesh Sarma, the Indian diplomat, said individual states can distinguish between regular and irregular migrants and determine the conditions of entry and stay of non-nationals in their jurisdiction and need not follow a prescriptive approach.
In all the three UN meetings, India had made it clear that it will not treat irregular migrants in par with regular migrants, which has become more evident with the implementation of the National Register of Citizens (NRC) and the adoption of the amendments to the Citizenship Act.
Through the NRC, which was applied in Assam first recently, the Indian government wanted to identify the Indian citizens - who are presently residents of the state - so that irregular migrants who entered the state after midnight on 24 March 1971, can be identified and deported.
And in a bid to aid NRC, the 1955 Citizenship Act was amended last week.
Through the amended Citizenship Act, the Indian government would regularise migrants belonging to Hindu, Buddhist, Jain, Christian, and Parsi communities residing in India but had migrated from Pakistan, Afghanistan, and Bangladesh before 2014.
And unfortunately, the Citizenship Act 2019 has left out the Muslim migrants in India to stand eligible for Indian citizenship. Leaving out Muslim migrants from the naturalisation process has triggered a pan-India protest creating chaos internally and embarrassment globally too.
The North East though is protesting as it does not want any naturalisation of any manner.
On 13 December 2019, Jeremy Laurence, Spokesperson for the UN High Commissioner for Human Rights, said that they are concerned that India's new Citizenship (Amendment) Act 2019 is fundamentally discriminatory.
According to the UN body, the amended law would appear to undermine the commitment to equality before the law enshrined in India's constitution and India's obligations under the International Covenant on Civil and Political Rights and the Convention for the Elimination of Racial Discrimination, to which India is a State party, which prohibit discrimination based on racial, ethnic or religious grounds.
“Although India's broader naturalisation laws remain in place, these amendments will have a discriminatory effect on people's access to nationality,” Laurence had said.
The UN reminds India that all migrants, regardless of their migration status, are entitled to respect, protection and fulfilment of their human rights.
“Just 12 months ago, India endorsed the Global Compact for Safe, Regular and Orderly Migration, which commits States to respond to the needs of migrants in situations of vulnerability, avoiding arbitrary detention and collective expulsions and ensuring that all migration governance measures are human rights-based,” the UN official said.
The global compact comprises 23 objectives for better managing migration at local, national, regional and global levels.
The compact aims to mitigate the adverse drivers and structural factors that hinder people from building and maintaining sustainable livelihoods in their countries of origin and intends to reduce the risks and vulnerabilities migrants face at different stages of migration by respecting, protecting and fulfilling their human rights and providing them with care and assistance.
In objective 11, the compact says that the countries commit to implement border management policies that respect national sovereignty, the rule of law, obligations under international law, human rights of all migrants, regardless of their migration status, and are non-discriminatory, gender-responsive and child-sensitive.
And in objective 15, the compact says that the countries which have adopted the same will ensure cooperation between service providers and immigration authorities do not exacerbate vulnerabilities of irregular migrants by compromising their safe access to basic services or unlawfully infringing upon the human rights to privacy, liberty, and security of person at places of basic service delivery.
Even though India has adopted the compact in 2018, news emerging from Assam and West Bengal show that India is failing to adhere to the objectives of the compact.
While railway stations and empty trains are set on fire in West Bengal, three have been already shot dead in Assam reportedly by police.
The UN body while calling on the authorities to respect the right to peaceful assembly, and to abide by international norms and standards on the use of force when responding to protests, it has also said that the goal of protecting persecuted groups is welcome but should be done through a robust national asylum system that is premised on the principle of equality and non-discrimination.
As the government has passed the Citizenship Act, now the political parties and activists have approached the Supreme Court to repeal the Act and the UN body hopes that the apex court will consider the pleas carefully the compatibility of the law with India's international human rights obligations.
And unfortunately, India has not acceded to the 1951 UN Convention relating to the Status of Refugees and (UNCSR) along with its 1967 Additional Protocol, nor does it have a national law for refugee protection.
India only boasts of adhering to securing refugee protection under Article 21 of the Indian Constitution, which reads that “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”
This right has been held to be the heart of the Constitution, the most organic and progressive provision in our living constitution, the foundation of our laws.
However, the untoward incidents happening now prove that political selectivism and ill-conceived policies will further the human rights abuses of migrants and refugees and deprivation of basic needs and discrimination between refugees’ groups themselves, even if India has adopted global compacts.