More Norms, Less Justice: Refugees, the Republic, and everyone in between

Abstract

The paper argues for conflating refugees and internally displaced persons (IDPs) as two sides of a work-in-progress postcolonial state. To be sure, aliens, refugees, IDPs, and stateless persons are separate legal entities. Nevertheless, this fragmented normative regime stands testimony to more laws and less justice. Many Asian states have no domestic refugee law. India, a common law system, takes a case by case approach as refugees are given “temporary shelter on humanitarian considerations”. Ironically, a work-in-progress postcolonial state sustains even de jure citizens as de facto stateless persons; the erstwhile Indo-Bangla enclaves for more than half a century were an apt example. Surely, the raison d’être of international law on refugees is to end human suffering, if needed, by transcending the absence of positive laws. A constitutional and political desire to minimise human suffering alone could cut the rigour of such positivist legal narratives. The Delhi High Court seemingly walked that path in Koul v Estate Officer noting “refugees and IDPs appear to be similarly situated”. Rising terrorism has made states increasingly believe in a security narrative all the same. A simultaneous emergence of a demographic anxiety particularly in India’s North-eastern states increasingly pits aliens and refugees against the domiciled indigenous and tribal people.