Refugee Protection in India: An Analysis of International
Obligations and Domestic Practice in Contemporary Periods
Shubhali
Chandra1, Dr. Sheikh Arshad2
1 Research
Scholar, School of Law ,IIMT University, Meerut, Uttar Pradesh, India
ska222210@gmail.com
2 Assistant Professor,
Integrated School of Law, Inmantec Institution, Chaudhchaudhary Charan Singh
University, Meerut, Uttar Pradesh, India
Abstract: India hosts one of the
largest refugee populations in South Asia, yet remains conspicuously absent from
the 1951 Refugee Convention and its 1967 Protocol. In the absence of dedicated domestic
legislation, refugees in India are governed by a patchwork of colonial-era statutes
designed for foreigners, leaving them vulnerable to arbitrary detention, deportation,
and systemic denial of basic rights. This article critically examines the international
legal obligations India bears toward refugees, the constitutional and judicial protections
that have partially filled the legislative vacuum, the structural inadequacies of
existing domestic law, and the role of international and national human rights bodies.
It further analyses the contemporary challenges posed by the Rohingya crisis and
the Citizenship Amendment Act, 2019 (CAA), arguing that India's ad hoc approach
is no longer tenable. The article concludes by advocating for the enactment of a
dedicated national refugee law and the development of a South Asian regional refugee
framework.
Keywords: Refugee, Non-refoulement,
UNHCR, NHRC, Article 21, Foreigners Act, CAA 2019, Rohingya, Domestic Refugee Law
Under international law, a
refugee is someone who is outside of their home country and cannot or will not seek
protection there because they are afraid for their life because of their race, religion,
nationality, membership in a social group, or political beliefs. Foreign refugee legislation is based on this term,
which is part of the 1951 Refugee Convention. Unfortunately, its narrow focus means
it doesn't include those displaced by things like natural disasters, environmental
catastrophes, internal armed conflicts, or persecution based on gender identity
or sexual orientation.
The strange position that India,
the biggest democracy in the world, holds inside the international refugee framework
is not surprising. First, India is bound implicitly to safeguard refugees' rights
under a number of international human rights conventions that it has ratified. Contrarily,
it has not accepted the 1951 Convention or its 1967 Protocol, and it has not passed
any domestic laws that address the rights, status, and rehabilitation of refugees
adequately. Despite this legal vacuum, India continues to host one of the largest
refugee populations in South Asia.
The problem is multi-dimensional.
First, India's existing legal framework primarily colonial-era statutes makes no
distinction between a refugee and a foreigner, exposing genuine refugees to the
risk of arbitrary detention and deportation. Second, the government's approach has
been entirely ad hoc, determined by diplomatic considerations and political expediency
rather than legal principle. Third, contemporary developments most notably the Rohingya
crisis and the Citizenship (Amendment) Act, 2019 have introduced a troubling religion-based
dimension into India's refugee practice, raising grave constitutional and human
rights concerns.
This article analyses these
issues systematically. After establishing the interplay between international refugee
law, human rights law, and humanitarian law, it examines India's reasons for non-ratification
of the 1951 Convention, the constitutional and judicial protections available to
refugees, the inadequacy of domestic legislation, and the role of the UNHCR and
NHRC. It concludes with concrete recommendations for legislative and institutional
reform.
·
To
examine India's international obligations towards refugees.
·
To
analyse constitutional and judicial protection available to refugees.
·
To
evaluate contemporary challenges in refugee protection.
·
To
suggest legal and policy reforms.
The present study adopts a doctrinal research methodology. The study is primarily
based on secondary sources including international conventions, statutes, judicial
decisions, reports of international organisations, academic articles, books and
government documents. An analytical and descriptive approach has been employed to
evaluate India's international obligations and domestic refugee protection framework.
Even before the current international
refugee system came into existence, India was involved in the displacement of significant
numbers of people. Roughly twenty million displaced people crossed the newly formed
boundaries between Pakistan and India after the 1947 partition of British India
caused the greatest forced migration in history. The government's initial response
was through the Rehabilitation Financial Administration Act, 1948, though this legislation
addressed administrative rehabilitation rather than legal status.
Another wave of refugees arrived
in the decades that followed. By granting political sanctuary to the Dalai Lama
and some 80,000 Tibetan exiles in 1959, India was acting on humanitarian grounds.
The Bangladesh Liberation War, which began in 1971 and culminated in the exodus
of around ten million people from East Pakistan into India, was a catastrophe of
unprecedented scale that put India to the test. Tamil Nadu saw a flood of Sri Lankan
migrants in 1983 and 1986, while the northeastern regions became home to Chakma
people from Bangladesh. More recently, over forty thousand Rohingya Muslims from
Myanmar have sought refuge in India, becoming the most contentious refugee issue
in contemporary Indian politics.
This history underscores a
consistent pattern: India has responded to refugee crises politically and diplomatically
rather than through a principled legal framework. Each group of refugees has been
treated differently depending upon the geopolitical relationship between India and
the country of origin, with Tibetan refugees enjoying the most favourable treatment
and groups such as the Chakmas and Rohingyas facing severe restrictions or deportation
threats.
India's decision not to ratify
the 1951 Convention has attracted sustained criticism from the international community
and refugee rights scholars. Several official and scholarly justifications have
been advanced for this position.
First, India regards the Convention
as fundamentally Eurocentric a product of post-Second World War European experience
that does not adequately address the mass influx situations characteristic of South
Asian displacement. The Convention's individual determination procedure, designed
for case-by-case adjudication, is ill-suited to situations of mass exodus. Second,
India contends that ratification would constrain its sovereignty and diplomatic
flexibility, particularly regarding its relationship with China and its neighbours
especially sensitive given the presence of Tibetan refugees and the Dalai Lama's
government-in-exile on Indian soil.
Third, there exists a genuine
apprehension that ratification would blur the distinction between economic migrants
and genuine refugees, intensifying the problem of infiltration that India has experienced
particularly from Bangladesh and Myanmar. The assassination of Prime Minister Rajiv
Gandhi by a Sri Lankan national who had entered India as a refugee is frequently
cited in this context as evidence of the national security dimension of refugee
admission. Fourth, there is what may be described as a 'fear of the unknown' uncertainty
about the precise obligations that ratification would impose and the consequences
of non-compliance in terms of India's international standing.
Indian courts have held that
the Convention's non-refoulement principle (Article 33) and other sections constitute
customary international law and are therefore enforceable on India regardless of
whether or not the treaty is ratified. In practice, India applies many of the Convention's
substantive articles: it does not penalise illegal entry, guarantees freedom of
religion, provides access to courts, and upholds non-refoulement in its judicial
decisions. The gap, however, lies in the
absence of a systematic and enforceable legal framework.
At its core, international
refugee law rests on the principle of non-refoulement, which states categorically
that no one may remove a refugee from a country where they fear for their life or
freedom. All governments are bound by it, regardless of whether they have ratified
the Refugee Convention or not, since it is now generally recognised as a standard
of customary international law. Although not explicitly stated in law, this notion
has been upheld by the Indian judiciary and the constitution.
Supreme Court of India v. Ktaer
Abbas Habib Al Qutaifi was a watershed moment in, The Gujarat High Court ruled that
Article 21's guarantees of life and personal liberty include the norm of non-refoulement.
The court ruled that two Iraqi nationals should be put in the care of UNHCR India
rather than deported as long as they were in danger to their lives and freedom.
Similarly, in Malvika Karlekar v Union of India, the Supreme Court granted a stay
on the deportation of Burmese refugees, allowing them to apply to UNHCR for refugee
status determination a decision grounded expressly in non-refoulement.
Notwithstanding these judicial
affirmations, the principle is frequently violated in practice. India has carried
out deportations of Rohingya refugees in circumstances where credible threats to
their lives existed, and state governments have forcibly repatriated refugees citing
national security and public order grounds. The absence of a statutory embodiment
of non-refoulement means that its application remains contingent on judicial intervention,
which is neither systematic nor universally accessible to vulnerable refugee populations.
The Indian Constitution provides
certain fundamental rights to all 'persons' not merely to citizens and this distinction
has been the primary basis upon which courts have extended protection to refugees.
In Visakha v State of Rajasthan, the Supreme Court affirmed that international conventions
consistent with fundamental rights must be read harmoniously with Part III of the
Constitution, thereby incorporating international human rights norms into domestic
constitutional interpretation.
The most significant constitutional
provisions applicable to refugees are: Article 14, guaranteeing equality before
the law and equal protection of laws; Article 21, protecting the right to life and
personal liberty; Article 22, providing safeguards against arbitrary arrest and
detention; and Articles 25–28, securing freedom of religion. In Louis De Raedt v
Union of India, the Supreme Court unequivocally held that even non-citizens possess
the fundamental right to life, liberty, and dignity under Article 21.
Judicial intervention has extended
this constitutional protection in practical ways. In Majid Ahmed Abdul Majid Mohd
Jad Al-Hak v Union of India, the Delhi High Court directed that food and medical
care be provided to detained refugees as minimum essentials of survival. In cases
involving Burmese refugees detained in Manipur, the Guwahati High Court granted
interim bail without insisting on local sureties a practically sensitive decision
given the refugees' lack of social networks in India.
However, the constitutional
protection available to refugees is qualified and uneven. Article 19, which guarantees
rights such as freedom of movement and the right to reside anywhere in India, is
available only to citizens, meaning that refugees have no enforceable right to freedom
of movement. Refugees are not entitled to work permits or self-employment. Tibetan
refugees enjoy significantly greater privileges including land grants, access to
education, and valid travel documents compared to refugees from Myanmar, Sri Lanka,
or Bangladesh, creating a constitutionally troubling disparity.
India's domestic legal framework
governing refugees is largely constituted by legislation designed for foreigners
generally, with no provisions specifically addressing the unique vulnerability of
refugees. The principal enactments are the Foreigners Act, 1946; the Foreigners
Order, 1948; the Passport (Entry into India) Act, 1920; the Passport Act, 1967;
and the Registration of Foreigners Act, 1939.
The Foreigners Act, 1946 the
most consequential of these statutes vests sweeping powers in the central government
to detain, arrest, and deport 'foreigners', with no procedural distinction drawn
between a refugee fleeing persecution and an economic migrant. Section 3 of the
Act grants the government virtually unlimited discretionary authority, subject to
minimal judicial oversight. The Passport (Entry into India) Act, 1920 and the Passport
Act, 1967 similarly make no accommodation for refugees who, by the nature of their
flight, are unlikely to possess valid travel documents. Under these statutes, the
absence of a passport renders a refugee liable to arrest and deportation the precise
threat they are fleeing.
The Foreigners Order, 1948
grants state authorities powers to refuse entry to foreigners on broad and loosely
defined grounds including 'loathsome disease' and 'public safety' terms left undefined
by the statute and therefore susceptible to arbitrary application. Refugees intercepted
in transit areas such as airports and seaports are treated as not having legally
entered Indian territory, limiting them to administrative rather than judicial remedies
and placing their fate in the hands of customs and immigration officials who may
lack any training in refugee protection.
The Indian Penal Code applies
equally to refugees, exposing them to prosecution for offences such as forgery and
fabrication of documents despite the compelling circumstances that typically deprive
refugees of genuine travel papers. The cumulative effect of this legislative framework
is that refugees in India exist in a permanent state of legal precarity, dependent
on administrative discretion rather than legal entitlement for whatever protection
they receive.
The absence of a dedicated
refugee law also means there is no standardised procedure for refugee status determination
at the domestic level. UNHCR conducts refugee status determination (RSD) in India,
but only for refugees who are not from South Asia — the very region from which India
receives the largest numbers of displaced persons. This geographic limitation in
UNHCR's mandate in India is a significant structural gap.
The United Nations High Commissioner
for Refugees (UNHCR) has maintained a significant presence in India since India
joined its executive committee in 1995. UNHCR conducts legal interviews for refugee
status determination, provides legal aid, arranges medical care, supports NGO-delivered
vocational training and primary education, and facilitates travel documentation.
Refugees recognised under the UNHCR mandate enjoy substantially better protection
than those without such recognition illustrating both the importance of UNHCR's
role and the inadequacy of state provision.
However, UNHCR's capacity in
India is structurally constrained. Its mandate excludes South Asian refugees, its
access to refugee camps is frequently denied by state governments, and its very
presence in India is contingent upon the goodwill of the central government rather
than any treaty-based right. UNHCR funding primarily from international organisations
and NGOs is insufficient for the scale of refugee presence in India, and there have
been documented instances of arbitrary denial of subsistence allowances.
NHRC, established under the
Protection of Human Rights Act, 1993, has played an important albeit limited role.
Its most significant intervention was the landmark case of National Human Rights
Commission v State of Arunachal Pradesh, in which the Supreme Court intervened to
protect Chakma refugees from violent intimidation by local organisations and held
that the state government was obligated to protect their life and liberty under
Article 21.
In 2000, the NHRC under the
chairmanship of Justice P.N. Bhagwati proposed a model national refugee law a comprehensive
draft that defined refugee rights and obligations and established a clear framework
for protection. This proposal, however, has not been enacted into legislation to
date. The NHRC also directed the Tamil Nadu government in 1994 to provide immediate
medical care to Sri Lankan refugees in camps an order whose implementation remained
partial.
The Rohingya Muslims of Myanmar
represent perhaps the most pressing contemporary refugee challenge for India. Described
by the United Nations as among the most persecuted minorities in the world, Rohingyas
began fleeing systematic ethnic and religious violence in Myanmar's Rakhine State
in large numbers from 2012 onwards. According to government estimates, approximately
forty thousand Rohingyas reside in India, of whom more than fourteen thousand are
UNHCR-registered refugees.
The Indian government has adopted
a position characterising all Rohingyas as 'illegal immigrants' under the Foreigners
Act, 1946, and has proceeded with deportations despite credible evidence of the
genocidal conditions they would face upon return to Myanmar including an International
Court of Justice order in 2020 recognising that Rohingyas faced serious risks of
genocide. In Mohammad Salimullah v Union of India, the Supreme Court has repeatedly
declined to stay deportation orders, holding that the right against deportation
under Article 19(1)(e) is available only to citizens, notwithstanding the right
to life under Article 21 which applies to all persons. The court's failure to engage
substantively with India's customary international law obligations under non-refoulement
has been widely criticised.
The Citizenship Amendment Act,
2019 (CAA), implemented through Citizenship (Amendment) Rules, 2024 notified in
March 2024, represents a structurally different but equally significant development.
The CAA fast-tracks citizenship for persecuted religious minorities Hindus, Sikhs,
Buddhists, Jains, Parsis, and Christians from Afghanistan, Bangladesh, and Pakistan
who arrived in India before 31 December 2014, while explicitly excluding Muslims.
By creating a religion-based citizenship pathway, the CAA introduces for the first
time a discriminatory criterion into India's refugee and citizenship framework,
directly conflicting with the equality guarantee of Article 14 of the Constitution
and India's obligations under international human rights conventions.
Amnesty International, Human
Rights Watch, and numerous international legal scholars have characterised the CAA
as inconsistent with India's constitutional values of secularism and equality, and
incompatible with its international human rights obligations. The exclusion of groups
such as Rohingya Muslims, Sri Lankan Tamils, Bhutanese Nepali-Hindus (Lhotshampas),
and Hazara Shias from Afghanistan all of whom face credible persecution underscores the arbitrary and politically motivated
nature of the legislation.
While India has not ratified
the 1951 Refugee Convention, it has ratified a significant number of international
human rights instruments that create overlapping obligations relevant to refugee
protection. These include the Universal Declaration of Human Rights (1948), the
International Covenant on Civil and Political Rights (ICCPR, 1966), the International
Covenant on Economic, Social and Cultural Rights (ICESCR, 1966), the Convention
Against Torture (CAT, 1984), the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW, 1979), and the Convention on the Rights of the Child (CRC,
1989).
The Convention Against Torture
is of particular significance, as its Article 3 absolutely prohibits the return
of any person to a state where there are substantial grounds for believing they
would face torture a prohibition that applies directly to deportation and non-refoulement.
India's deportation of Rohingya refugees in the face of well-documented evidence
of torture, killings, and genocide in Myanmar constitutes a prima facie violation
of its obligations under CAT.
The ICCPR's Article 13 provides
procedural protections against the expulsion of aliens, requiring that expulsion
decisions be reviewable by competent authority. India's practice of deporting refugees
without independent judicial review and without adequate opportunity to challenge
deportation orders falls short of this standard. Article 51(c) of the Indian Constitution
itself mandates that the state shall endeavour to foster respect for international
law and treaty obligations a directive principle that courts have used to incorporate
international norms into constitutional interpretation.
India finds itself at a critical
juncture in its approach to refugee protection. The historical generosity that marked
India's response to Tibetan, Bangladeshi, and Sri Lankan refugees has given way
to an increasingly restrictive and politically motivated policy. The absence of
a domestic refugee law, combined with the extension of the Foreigners Act to refugees,
has created a regime of legal precarity in which the rights of some of the world's
most vulnerable people depend on judicial benevolence and administrative discretion
rather than enforceable legal entitlement.
The contemporary challenges
posed by the Rohingya crisis and the CAA 2019 reveal the urgent need for systemic
reform. The Supreme Court's unwillingness to engage with India's customary international
law obligations in the Rohingya deportation cases, and the legislature's enactment
of a religion-based citizenship statute, suggest a troubling retreat from the constitutional
values of equality, human dignity, and the rule of law.
The solution does not necessarily
require ratification of the 1951 Convention India's objections, while debatable,
have some legitimate basis. What is non-negotiable, however, is the enactment of
a domestic refugee law that provides a clear, fair, non-discriminatory, and enforceable
framework for refugee protection. Supplemented by a South Asian regional convention
and institutional strengthening, such a law would allow India to fulfil both its
international human rights obligations and its historic role as a country of refuge,
while addressing its legitimate security and sovereignty concerns through transparent
legal mechanisms rather than arbitrary executive discretion.
Without such reform, refugees
in India will continue to possess rights only on paper — privileges granted and
revoked at the will of the state, rather than entitlements protected by law.
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2.
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