Authored By: Fizza Bashir
Kinnaird College For Women,Lahore
ABSTRACT
India has a history of giving space to refugees and hosts a significant refugee population every year but remains without a national refugee law and is also not a party to the 1951 Refugee Convention or its 1967 Protocol. This article examines India’s legal and constitutional obligations toward refugees protection despite lacking legislative framework, Indian constitutional provisions Articles 14 and 21, and landmark court cases judicial precedents. Recent developments of the deportation of Myanmar nationals, and inconsistencies in Refugee Status Determination reveals growing tensions between International legal obligations and state practices. It further identifies major gaps in the legal and administrative framework and offers policy recommendations for the gaps , which includes enacting a comprehensive law for refugee protection, enhancing judicial oversight, and promoting regional cooperation. It concludes that India must shift from security-driven responses to a humane refugee protection regime that aligns with both its democratic values and international commitments.
INTRODUCTION
In India, refugee movements began Pre-independence. Massive migrations occurred through the Hindukush and Patkoi ranges. Post-independence, India faced the challenge of rehabilitating nearly 20 million refugees due to Partition. The government set up 160 relief camps and spent around ₹60 crores for the protection of refugees. Acts like, Rehabilitation Financial Administration Act, 1948, were enacted to support displaced persons during this period.During the Bangladesh Liberation War in 1971, millions of refugees fled to Bangladesh from East Pakistan. Internal strife led to the arrival of refugees from Sri Lanka and Bangladesh in 1983 and 1986, respectively. By the end of 1992, India had housed around 2 million migrants and over 237,000 displaced people, demonstrating its continuous significance as a safe haven for those fleeing calamities.[1]
According to Article 1 of the United Nations Convention on the Status of Refugees, refugees are those who are unable or unwilling to seek protection in their home country due to a well-founded fear of persecution based on race, religion, nationality, social group membership, or political opinion.[2] India has one of the world’s largest refugee populations. Despite the fact that India accommodates a diverse population of refugees, including Syrians, Afghans, Palestinians, Persians, Ethiopians, and Christians, the country lacks refugee-specific domestic laws and policies.Although India is not a party to the 1951 Refugee Convention or its 1967 Protocol, and does not have a national refugee protection framework, still it continues to provide shelter to refugees from neighbouring countries.
Asylum seekers in India can receive refugee status from the UNHCR if not granted by the government.Under UDHR, all individuals are entitled to dignity and basic rights, which includes refugees too. The principle of non-refoulement is applicable on countries like India , even if they are not signatories to 1951 Refugee Convention to prevent states from sending people back to countries where they face danger.[3]
India has generally followed a humanitarian approach, hosting various refugee groups from neighbouring countries. However, India has no coded refugee law due to regional tensions and security concerns. Despite this, India welcomes refugees and provides protection to those in need by relying on Court Precedents and Executive policies rather than a legal framework.
INDIA’S LEGAL AND CONSTITUTIONAL FRAMEWORK FOR PROTECTION OF REFUGEES
India’s legal treatment of refugees lacks a codified statute for protection of refugees and relies on a patchwork of constitutional provisions, administrative practices, judicial precedents, and international norms This legal vacuum has been partially filled through judicial interpretations, international treaty and customary obligations.Rights of refugees are governed by general legislation like the Foreigners Act, 1946, which gives the executive wide powers over entry, detention, and deportation to the Foreign nationals. These laws do not distinguish refugees from “illegal immigrants” or “foreigners” generally. As a result, the answer to the question whether someone is treated as a refugee or not , often depends on judicial interpretation and administrative practices.[4]
India has ratified the International Covenant on Civil and Political Rights (ICCPR) in 1979. Under ICCPR Articles 6 (right to life) and 7 (prohibition of torture or cruel, inhuman, degrading treatment),India is bound to protect “all persons” within its territory.[5] Under juscogen norm of prohibition of torture, India is not allowed to India deport individuals to places where they would face torture even if India has not ratified the Convention Against Torture (CAT)[6], meaning that India, even as a non‑party to the 1951 Refugee Convention, is bound not to return persons to states where they face persecution, death, or torture.
Furthermore, certain provisions have been incorporated into the Constitution which are essential in providing refuge to asylum‑seekers. Article 21 (Right to Life and Personal Liberty) has been interpreted by courts that it includes duties not only to protect citizens but all persons within Indian territory from actions that may affects life, liberty or expose them to persecution, torture, or other grievous harm. Article 14 (Equality before Law) further ensures that non‑citizens cannot be subjected to any arbitrary discrimination by the State. Furthermore, Article 51(c) which requires India to respect international law serves as a constitutional provision for interpreting domestic law with reference to international treaty and customary obligations. [7]
Judicial precedents have played a critical role in protecting refugee rights in India. In Nandita Haksar v. State of Manipur (2021)[8], The Manipur High Court held that the principle of non-refoulement is a fundamental international principle forbidding the return of asylum seekers to countries where they face persecution is related to Article 21 of the Indian Constitution. This case protected seven Myanmarese nationals, including journalists fleeing persecution after the 2021 military coup. Court classified them as refugees and not migrants. The court stated that refugees are those individuals, forced to flee due to war or persecution unlike migrants who move for better living standards.
This ruling contrasts with the Supreme Court’s interim order in Mohammad Salimullah v. Union of India (Rohingya deportation case)[9], which denied Rohingya refugees the right to remain in country stating national security concerns.The petitioners argued that Articles 14 and 21 protect Rohingya refugees from deportation. The Supreme Court acknowledged that Articles 14 and 21 apply to all persons, whether citizens or not but held that the “right not to be deported” is ancillary to Article 19(1)(e) which stated that the right to reside or settle in India is explicitly a citizen’s right.[10]
On the other hand, In NHRC v. State of Arunachal Pradesh (1996)[11], the Supreme Court dealt with the forced eviction of Chakma refugees living in Arunachal Pradesh. They were facing threats from local groups, UNHCR approached the Court to protect them. The Court held that even though the Chakmas were not Indian citizens, they were entitled to the protection under Article 21 of the Constitution, which guarantees the right to life and personal liberty to all persons, regardless of nationality.
These cases show a clear tension between refugee protection jurisprudence .Cases like NHRC v. State of Arunachal Pradesh adopt a rights-based approach which gives protection to refugees under Article 21, others like Mohammad Salimullah v. Union of India prioritize national security over refugee protection. This inconsistency stems from the absence of a legal framework for protection of refugees in India, Scholars like P. Saxena argue that India needs a proper refugee law to ensure clear definitions, protection against forced return, and a fair, independent system for handling refugee claims. Without such a law, refugee protection remains uncertain, inconsistent, and open to political influence.[12]
GAPS, CHALLENGES AND TENSIONS
India is not a signatory to 1951 Refugee Convention and it’s Protocol.Domestic laws of India like Foreigners Act, 1946 and The Citizenship Amendment Act,2019 donot distinguish between refugees and foreigners.[13] This has resulted in inconsistent treatment: Afghan refugees under UNHCR receive documentation and support, while Rohingya Muslims face detention and deportation under security pretexts.
Furthermore, there is also no formal refugee status determination process in India. The proposed National Model Law (NML) tries to fill these gaps by introducing a structured process which includes legal aid for the refugees, interpreters, and special safeguards for women and children in the refugee camps. However, this approach may not suit India’s because of its vast administrative landscape.
Despite progressive court rulings and refugee rights jurisprudence in India , refugees lack basic rights to work, healthcare, or education. National security concerns often influence the policy for refugee protection, leading to arbitrary detention without clear legal safeguards. While India’s approach has been flexible, the absence of a clear legal framework for refugee protection weakens accountability and refugee welfare.To overcome this situation, India must consider adopting a rights-based refugee law, reform existing statutes or to become signatory to 1951 Convention and work toward regional cooperation.
RECOMMENDATIONS
As India has a long history of hosting refugees and still lacks a formal legal framework to manage refugee protection. To address this India must take certain steps: the first step should be to adopt a domestic refugee law. This law would clearly differentiate between refugees, migrants and foreigners.This law must have a key part to institutionalise the Refugee Status Determination (RSD) mechanism. This would ensure that refugee claims are assessed fairly, and efficiently, with proper legal and procedural safeguards.
The next step should be to codify the principle of non-refoulement, which protects refugees from being sent back to countries where they face grievous harm. Although Indian courts have upheld this principle in court rulings, including it in domestic law would strengthen legal protection.
India should also strengthen its collaboration with the UNHCR and should work with neighbouring countries to develop regional solutions for managing refugee camps and should raise public awareness and avoid politicising refugee issues. It would help to reduce fear, social tensions and discrimination.
At last, India can learn from examples in other countries that have successfully balanced refugee protection while focusing on National interest. By taking these steps, India can create a more effective and humane refugee system that reflects its constitutional values and international responsibilities both at same times.
CONCLUSION
While India is not a signatory to the 1951 Refugee Convention and its Protocol it has historically shown a humanitarian approach to refugee protection in the country, the lack of a formal legal framework has led to inconsistent protection and procedural gaps. Judicial interventions under Articles 14 and 21 cannot replace the need for legislation on the issue. The enactment of a Legal Framework would not only harmonize India’s obligations with international law but will also provide legal clarity and will uphold the country’s democratic values.By adopting a legal framework India would have the opportunity to lead in South Asia, balancing humanitarian commitments with security concerns. In the end, a dedicated refugee law is not just necessary but it is long overdue.
Reference(S):
[1] B.S. Chimni, Status of Refugees in India: Strategic Ambiguity, in Refugees and the State: Practices of Asylum and Care in India, 1947–2000 443 (Ranabir Samaddar ed., SAGE Publ’ns 2003) (India)
[2] Convention Relating to the Status of Refugees, art. 1, July 28, 1951, 189 U.N.T.S. 137.
[3] Convention Relating to the Status of Refugees, art. 33, July 28, 1951, 189 U.N.T.S. 137.
[4] Foreigners Act, No. 31 of 1946, INDIA CODE (1946).
[5] International Covenant on Civil and Political Rights, arts. 6, 7, Dec. 16, 1966, 999 U.N.T.S. 171.
[6] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85.
[7] Constitution of India art. 51(c) (1950).
[8] Nandita Haksar v. State of Manipur & Ors., W.P.(Crl.) No. 6 of 2021, Manipur High Court, May 3, 2021 (India).
[9] Mohammad Salimullah & Anr. v. Union of India & Ors., AIR 2021 S.C. 1789 (India), W.P.(C) No. 793 of 2017, Interlocutory Application No. 38048 of 2021.
[10] Constitution of India arts. 14, 21, 19 (1950).
[11] Nat’l Human Rights Comm’n v. State of Arunachal Pradesh, (1996) 1 S.C.C. 742 (India).
[12] Prashant Saxena, Creating Legal Space for Refugees in India: The Milestones Crossed and the Roadmap for the Future, 19 Int’l J. Refugee L. 246 (2007).
[13] Citizenship (Amendment) Act, No. 47 of 2019, INDIA CODE (2019).
