With the arrival of another boatload of over 90 Sri Lankan Tamils on Indian shores by 17 June, the ensuing issues of regulating the “illegal immigrants” and of “refugee management” in India has resurfaced. The government of India has raised “security concerns” given that not long back Sri Lankan boats were detained by the Indian Coast Guard for illegal fishing in Indian waters and for illicit drug trafficking. Uniquely on this occasion, Sri Lankan Tamils are not escaping persecution; rather they are avoiding the perils arising out of the ongoing economic crisis in their country.

As the world is recovering from the COVID-19 crisis and with the tourism industry across the globe facing the worst of its effects, Sri Lankan Tamils are finding themselves caught in a vicious circle. The country is reeling under an unprecedented economic crisis with prices of fuel and other essential commodities skyrocketing due to the misadministration of the government. Many commentators have attributed the “decisive policy towards minority” in the past by the populist government in Sri Lanka as also a cause behind the economic crisis. Having been let down by the post war reconciliation and reconstruction efforts, the economic crisis further amplifies the vulnerability of Sri Lankan Tamils as they continue to struggle for securing jobs and a meaningful participation in development. Given the current circumstances, the reconciliation process can potentially slow down.

In this backdrop the issue, unlike in the past, boils down to the status of fleeing “economic migrants” having a chequered history of “well-founded fear of persecution”. In a world order marked by positivism, can the economic refugees rely on law for their protection or are they to be left at the whims of the state? The latter is often exercised as the matter of sovereign grace.

While the 1951 UN Convention on the Status of Refugees and the subsequent 1967 Protocol restricts the coverage of refugee to the extent of persecution owing to “race, religion, nationality, membership of a particular social group or political opinion”, it is highly improbable that the economic migrants would enjoy the protection of international refugee law.

Further, assuming arguendo, the applicability of the Refugee Convention, in the instant case, the conferment of refugee status to the Sri Lankan Tamilians is ruled out as they had returned and re-established themselves in the home country upon the conviction that such "well founded risk of persecution" as it existed in the past is absent.

It is also worth mentioning that the surrogate character of protection accorded to the persons at-risk of serious persecution necessarily implies that these individuals must primarily rely on their State of nationality for protection failing which the role of the international community emerges.

As is evident from the situation, the economic migrants looking forward to refugee protection in India would be left disappointed from international refugee law given its inapplicability for not meeting the jurisdictional threshold set out in Article 1 of the 1951 Refugee Convention. Being a non-signatory to the Convention, the applicability of international refugee laws in India is limited to the fundamental principle of non refoulement as stated under Article 33 of 1951 Refugee Convention. The principle of non refoulement is applicable to India as it has entered into the corpus of customary international law which automatically stands to be incorporated ordinarily into its domestic legal system.

However, India is party to various international human rights treaties containing provisions which covers the protection of refugees. The international law obligation to protect the human rights of persons together with the constitutional directive of fostering respect for it as given in Part IV of the Indian constitution, India may protect these people.

It follows that the economic migrants who have reached India, at best, can rely upon the framework of human right protection afforded by the Indian Constitution. The constitution of India generously confers certain fundamental freedoms to all persons irrespective of their citizenship. The efforts of Indian courts in securing access to justice protection to the refugees through “creative interpretation” of the provisions of Indian Constitution is well known. In some instances, courts have also intervened to protect the socio-economic rights of refugees.

Moreover, India’s age-old civilizational value of welcoming (atithi) bears testimony to its track record of refugee protection. To defend India’s position on refugee protection, reliance is often placed on the ethical value of (karuna) compassion rooted in its vedic culture. Delivering on its leadership role in the region, New Delhi can take a more humane approach in refugee management.

In the absence of any specific law benefiting the economic migrants, human rights protection remains the only refuge for them.

Mr. Yash Vardhan is Assistant Professor of International Law at Rashtriya Raksha University India.