Sovereignty Over Solidarity: India’s Non-Accession to the 1951 Refugee Convention and the Consequences for International Protection

Introduction

In May 2025, forty Rohingya refugees holding United Nations High Commissioner for Refugees (UNHCR) documentation were reportedly transferred to Indian naval vessels, blindfolded, and deposited in international waters near the Myanmar coast. The UN Special Rapporteur on the situation of human rights in Myanmar described the incident as nothing short of outrageous and opened a formal inquiry.[1] When petitioners brought the matter before the Supreme Court of India, the Court declined to intervene, dismissing the account without independent inquiry. The question that episode forces is not simply one of political morality. It is a question of law: by what legal framework does a constitutional democracy commit acts that the United Nations characterises as a serious violation of international norms, and find itself largely unconstrained in doing so?

The answer lies, in large part, in a gap that has persisted since 1951. India has never acceded to the Convention Relating to the Status of Refugees (the Refugee Convention)[2] or its 1967 Protocol.[3] In the absence of both a treaty framework and any domestic refugee legislation, India governs all non-citizens ,including those fleeing documented persecution ,under the Foreigners Act of 1946,[4] a colonial statute that draws no legal distinction between a voluntary economic migrant and a survivor of genocide. The result is a protection regime that is discretionary, politically malleable, and, as this article submits, structurally discriminatory.

This article argues that India’s non-accession is not a passive administrative omission but a deliberate strategic posture that enables a tiered, religiously inflected refugee regime ,one that has become untenable under India’s own treaty obligations and constitutional commitments. Section II sets out the legal framework governing refugees in India. Section III analyses the relevant case law and its internal inconsistencies. Section IV evaluates the legal and political arguments critically, including the interaction of the Citizenship Amendment Act (CAA) 2019 with the refugee regime. Section V examines comparative models and proposes a framework for reform.

Legal Framework

The Refugee Convention and India’s Non-Accession

The Refugee Convention defines a refugee as a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside their country of nationality and unable or unwilling to avail themselves of its protection.[5] Article 33 of the Convention codifies the principle of non-refoulement, prohibiting the return of a refugee to a territory where their life or freedom would be threatened.[6] The 1967 Protocol extended these obligations to events occurring after January 1951, removing the original Eurocentric temporal and geographic limitations.[7]

India did not sign the Convention at the time of its adoption. The immediate context was the Partition of 1947, which had already produced the largest forced migration in recorded history, displacing an estimated 14.5 million people.[8] India’s negotiators raised substantive objections during the drafting process, arguing that the Convention’s definition of refugee was too narrow to capture the mass, conflict-driven displacement that characterised the South Asian experience. Article 1B of the Convention, which allowed contracting states to confine their obligations to events in Europe, confirmed India’s concerns about the instrument’s regional partiality. While the 1967 Protocol removed those limitations, India’s non-accession had by then become entrenched state policy.

What has followed is a legal vacuum. India has no dedicated refugee law. The only operative statute is the Foreigners Act of 1946,[9] which defines a foreigner as any person who is not a citizen of India and grants the Central Government sweeping powers to regulate, restrict, or expel any such person. The Act imposes the burden of proof on the individual to demonstrate lawful presence. It makes no provision for asylum claims, no protection against refoulement, and no procedural safeguards tailored to the circumstances of forced displacement.

Constitutional Provisions and Their Limits

India’s Constitution extends certain fundamental rights to ‘persons’ rather than citizens alone. Article 14 guarantees equality before the law and equal protection to all persons within India’s territory.[10] Article 21 protects the right to life and personal liberty, equally without distinction of citizenship. These provisions have, in a range of domestic cases, been applied to non-citizens and have provided a partial constitutional analogue to the protections that the Refugee Convention would otherwise offer. However, Article 19, which protects freedoms of movement, residence, and profession, is expressly limited to citizens. The constitutional architecture therefore provides a floor of protection, but not a comprehensive framework.

Critically, constitutional rights are enforced through litigation on a case-by-case basis. They do not create a systemic protection regime: there is no statutory definition of a refugee, no administrative determination procedure, and no institutional guarantee that a person with a well-founded fear of persecution will receive protection prior to deportation. The Constitution cannot substitute for legislation where legislation is what is required.

The Citizenship Amendment Act, 2019

The Citizenship Amendment Act (CAA), which came into force in March 2024, grants expedited pathways to Indian citizenship for persecuted religious minorities from Afghanistan, Bangladesh, and Pakistan.[11] The categories of eligible beneficiaries are Hindus, Sikhs, Jains, Buddhists, Parsis, and Christians. Muslims are expressly excluded. The government framed the CAA as a humanitarian measure to protect persecuted minorities in neighbouring states. Whatever its merits on those terms, the CAA has a direct and troubling interaction with India’s refugee architecture. It formally encodes religious identity as the criterion for protection eligibility, creating a two-track system in which some persecuted persons are fast-tracked to citizenship while others, principally Muslim displaced persons, are left without any legal status and subjected to deportation proceedings under the Foreigners Act.

III.  Case Law Analysis

Constitutional Protection Extended: Early Jurisprudence

The Indian judiciary has, at various points, recognised that Articles 14 and 21 of the Constitution generate obligations towards non-citizens that approximate the protections required under international refugee law. In Ktaer Abbas Habib Al Qutaifi v. Union of India,[12] the Gujarat High Court held that the principle of non-refoulement was not merely a rule of treaty law but was embedded in the constitutional right to life guaranteed by Article 21. The Court held that a person could not be deported to a country where their life or liberty faced a genuine threat, regardless of whether India was party to the Refugee Convention. This remains one of the most significant judicial affirmations of non-refoulement as a domestic constitutional obligation.

Further, in NHRC v. State of Arunachal Pradesh,[13] the Supreme Court affirmed that Chakma refugees, despite lacking formal legal status, were entitled to the protection of Articles 21 and 14. The Court held that the state government could not threaten or expel them and was obliged to ensure their physical safety. This line of authority suggested that India’s constitutional framework could, in practice, fill much of the protection gap left by non-accession.

The Retreat: Rohingya Jurisprudence

The optimism generated by earlier decisions has not survived contact with the Rohingya cases. In Mohammad Salimullah v. Union of India,[14] a constitutional bench of the Supreme Court declined to restrain the deportation of Rohingya refugees. The Court held that since India is not a signatory to the Refugee Convention, the principle of non-refoulement does not form part of Indian law. It further held that the right to reside and settle in India under Article 19(1)(e) is available only to citizens, and that the government’s characterisation of Rohingya as illegal immigrants and a national security threat was entitled to deference. The Court did not engage with the question of whether Article 21 independently required non-refoulement, a question that Ktaer Abbas had answered affirmatively.

The jurisprudential inconsistency is stark and has real consequences. The protection available to any given refugee in India depends on which line of authority the relevant court chooses to follow, which is itself influenced by the ethnic and religious identity of the group concerned and the political climate at the time of hearing. What emerges is not a principled legal regime but an ad hoc exercise of judicial discretion. Judicial discretion, unlike legal entitlement, is by definition both variable and revocable.

The 2025 Maritime Deportation and Judicial Non-Intervention

The events of May 2025 exposed the outermost limits of judicial protection. When petitioners sought emergency relief following reports of maritime deportations, the Supreme Court dismissed the allegations as a beautifully crafted story and declined to issue interim directions pending inquiry.[15]The Court made no independent finding of fact and did not examine UNHCR documentation held by the affected individuals. This approach represents a significant departure even from the limited protection extended in NHRC v. Arunachal Pradesh. A court that declines to inquire is, functionally, a court that has endorsed the executive act, and the act in question had been characterised by the United Nations as a potential violation of the prohibition on refoulement.

Critical Evaluation

Is India Bound by Non-Refoulement Despite Non-Accession?

The threshold question, whether non-refoulement binds India in the absence of Convention accession, admits of a more definitive answer than Indian courts have been willing to give. Non-refoulement has achieved the status of customary international law, binding on all states irrespective of treaty ratification.[16] The UNHCR’s Executive Committee has affirmed this position on multiple occasions, and the International Court of Justice has treated non-refoulement obligations as arising independently of any specific treaty regime where there exists a risk of serious harm.[17]

India is, in any case, bound through multiple treaty pathways. As a state party to the International Covenant on Civil and Political Rights (ICCPR),[18] India accepts obligations under Articles 6 and 7, which protect the right to life and prohibit torture and cruel, inhuman or degrading treatment. The UN Human Rights Committee has consistently held that these provisions prohibit the return of a person to a country where they face a real risk of such treatment, regardless of the legal classification of that person as a refugee.[19] India is also bound by the Convention on the Rights of the Child[20] and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),[21] both of which carry non-discrimination obligations directly relevant to the differential treatment of Rohingya refugees.

It is submitted that the Supreme Court’s holding in Salimullah that non-refoulement does not form part of Indian law, is incorrect as a matter of both domestic constitutional law given Ktaer Abbas, and international law. The Court’s reasoning conflates India’s non-ratification of the Refugee Convention with a general absence of non-refoulement obligations, when the two are legally distinct propositions.

The CAA as Structural Discrimination

The Citizenship Amendment Act deserves particular attention because it does not simply ignore Muslim displaced persons, it actively creates a legal architecture that disadvantages them. The CAA establishes religion as the operative criterion for protection eligibility among persecuted persons from designated countries. This is not a morally neutral categorisation. The Rohingya of Myanmar, the Hazara of Afghanistan, and the Ahmadiyya of Pakistan are among the most intensively persecuted Muslim communities in the world, yet all are excluded from the CAA’s ambit.

The combined effect of the CAA and the Foreigners Act creates what may properly be termed a legal black hole for Muslim displaced persons. Non-Muslim refugees from the same countries may access expedited citizenship; their Muslim counterparts are classified as illegal immigrants and subjected to detention and deportation. The CERD Committee, in its July 2024 early warning statement on India, expressed alarm at what it characterised as widespread racist hate speech targeting Rohingya and called for an end to arbitrary detention and forced deportations.[22] The differential legal treatment of refugee populations along religious lines is difficult to reconcile with Articles 14 and 15 of the Indian Constitution,[23] or with India’s obligations under ICERD.

Evaluating the Arguments Against Accession

Three arguments are commonly advanced against accession to the Refugee Convention, and each deserves honest appraisal. First, the burden argument holds that India, as a developing country, cannot absorb the financial obligations that Convention membership would entail. This argument overstates what accession requires. The Refugee Convention does not obligate states to grant permanent residence or citizenship to refugees. Its core obligations are procedural, to conduct fair status determinations, and protective, to refrain from refoulement. These obligations are financially manageable, and India already bears the de facto costs of hosting over 200,000 refugees without the legal framework that would enable efficient management of that population.

Second, the sovereignty argument contends that international oversight of India’s refugee practices would infringe on domestic border management prerogatives. This argument carries less weight when set against India’s existing treaty portfolio. India has already accepted monitoring mechanisms and reporting obligations under the ICCPR, ICERD, CRC, and CEDAW. The proposition that Convention accession would be uniquely sovereignty-threatening, when India already accepts analogous obligations in adjacent domains, is inconsistent.

Third, the regional asymmetry argument holds that unilateral accession would incentivise refugee flows toward India from neighbouring states, given that no other South Asian nation (with the exception of Afghanistan) has acceded to the Convention. This is the most practically significant objection and the one that most honestly captures why successive governments have resisted accession. It points, however, not toward indefinite inaction but toward the need for regional harmonisation, which India, as the largest and most influential South Asian democracy, is well placed to lead.

Comparative Perspectives and the Case for Domestic Reform

Models of Protection Without Accession

Several states have enacted domestic refugee legislation without acceding to the Refugee Convention, demonstrating that the two are not legally or practically linked. Thailand ,which hosts one of the largest refugee populations in Asia ,has operated a domestic screening mechanism and policy framework since 2019 governing the treatment of asylum seekers, providing procedural protections that the Refugee Convention would otherwise require.[24] Kenya, which has acceded to the Convention, offers a different instructive model: its Refugee Act of 2006 established a domestic statutory framework for refugee status determination, incorporating a definition of refugee drawn from both the Convention and the 1969 OAU Refugee Convention, which adopted a broader, conflict-based definition particularly suited to African displacement patterns.[25] India could draw productively on both models.

What a National Refugee Law Must Achieve

Even those unpersuaded by the case for Convention accession must grapple with the inadequacy of the current framework. The Foreigners Act of 1946 was designed for a fundamentally different purpose and cannot be adapted to serve as a refugee protection statute without legislative intervention. A domestic refugee law applicable in India should, at a minimum, accomplish four things.

First, it must define ‘refugee’ in terms that reflect India’s specific displacement context, capturing not only persecution-based flight but also conflict-induced mass displacement, given the situations of populations arriving from Myanmar, Afghanistan, and Sri Lanka. Second, it must establish a statutory Refugee Status Determination (RSD) process with clear timelines, access to legal representation, and an independent appellate mechanism. The current practice of UNHCR-administered RSD, while valuable, is not a substitute for a domestic legal procedure, because UNHCR determinations carry no legal force under Indian law and do not prevent deportation. Third, it must codify non-refoulement as a binding domestic obligation, thereby overriding the incorrect holding in Salimullah and aligning domestic law with India’s customary international law obligations. Fourth, it must extend basic welfare entitlements, access to healthcare, education, and lawful livelihoods, to persons with recognised refugee status, addressing the current anomaly whereby UNHCR-registered refugees lack the identity documentation required to access government services.

It is further submitted that any such legislation must apply on a non-discriminatory basis, without differentiation by religion, ethnicity, or national origin. The structural discrimination presently embedded in the interaction between the CAA and the Foreigners Act cannot be remedied by a refugee law that perpetuates the same distinctions.

Conclusion

India’s non-accession to the 1951 Refugee Convention is not a technical omission that can be left to administrative resolution. It is, as this article has demonstrated, a deliberate legal posture that enables a discretionary and increasingly discriminatory refugee protection regime. The governing statute is a colonial-era instrument that draws no distinction between a refugee and a migrant. The case law is incoherent, extending constitutional protections to some groups while withdrawing them from others along lines that track ethnic and religious identity. The Citizenship Amendment Act has formalised religious discrimination into the architecture of protection eligibility. And the 2025 maritime deportations, carried out against individuals holding UNHCR documentation, have resulted in a formal UN inquiry and demonstrated, in the starkest possible terms, where the current framework leads.

This article’s central submission is that India requires, as an immediate priority, a national refugee law that establishes a statutory definition of refugee, a fair determination procedure, a binding domestic codification of non-refoulement, and non-discriminatory welfare entitlements. Such legislation would not require Convention accession, would not compromise India’s sovereignty, and would not create an asymmetric burden that other South Asian states do not face. What it would do is bring India’s domestic legal regime into alignment with its existing treaty obligations under the ICCPR and ICERD, its constitutional commitments under Articles 14 and 21, and the standards that India itself espouses in multilateral forums.

A state that presents itself as a civilisational democracy and aspires to a permanent seat on the UN Security Council cannot simultaneously expel UNHCR-registered refugees into international waters and maintain that its domestic law provides adequate protection. The credibility of India’s international legal standing depends, in part, on resolving that contradiction and the tools to do so are already available within India’s own constitutional and legislative tradition.

Bibliography

Primary Sources

Cases

Ktaer Abbas Habib Al Qutaifi v Union of India (1999) 2 GCD 1299 (Gujarat High Court).

Mohammad Salimullah v Union of India, Writ Petition (Civil) No 793 of 2017 (Supreme Court of India, 8 April 2021).

NHRC v State of Arunachal Pradesh (1996) 1 SCC 742 (Supreme Court of India).

Legislation and Treaties

Citizenship (Amendment) Act 2019 (India).

Constitution of India 1950, arts 14, 15, 19, 21.

The Foreigners Act 1946 (India).

Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137.

Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267.

International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.

International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195.

Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3.

Organisation of African Unity, Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted 10 September 1969, entered into force 20 June 1974) 1001 UNTS 45.

Refugee Act 2006 (Kenya).

Secondary Sources

Books

Goodwin-Gill G and McAdam J, The Refugee in International Law (3rd edn, Oxford University Press 2007).

Hathaway J, The Rights of Refugees Under International Law (Cambridge University Press 2005).

Articles

Bharadwaj P, Khwaja A and Mian A, ‘The Big March: Migratory Flows after the Partition of British India’ (2008) 46(3) Economic and Political Weekly 39.

Chimni B, ‘The Geopolitics of Refugee Studies: A View from the South’ (1998) 11(4) Journal of Refugee Studies 350.

Reports and Other Sources

The Azadi Project, Expelled to the Sea: Rohingya Deportations from India (June 2025).

Human Rights Watch, ‘India: Scores of Rohingya Refugees Expelled’ (August 2025).

UN Committee on the Elimination of Racial Discrimination, Early Warning and Urgent Action Procedure: Decision on India (2 July 2024) UN Doc CERD/C/110/misc.

UN Human Rights Committee, General Comment No 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004).

UN Special Rapporteur on the situation of human rights in Myanmar (Tom Andrews), Statement on Forced Deportations of Rohingya from India (15 May 2025).

UNHCR, The 1951 Refugee Convention: Questions and Answers (UNHCR Media Relations and Public Information Service 2007).

Record of Law · Legal Research Internship Programme · 2026

[1] UN Special Rapporteur on the situation of human rights in Myanmar (Tom Andrews), Statement on Forced Deportations of Rohingya from India (15 May 2025).

[2] Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention).

[3] Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267.

[4] The Foreigners Act 1946 (India), s 2(a).

[5] Refugee Convention (n 2) art 1A(2).

[6] ibid art 33(1).

[7] 1967 Protocol (n 3) art I(2).

[8] Prashant Bharadwaj, Asim Khwaja and Atif Mian, ‘The Big March: Migratory Flows after the Partition of British India’ (2008) 46(3) Economic and Political Weekly 39.

[9] Foreigners Act 1946 (n 4) s 3.

[10] Constitution of India, art 14.

[11]  Citizenship (Amendment) Act 2019 (India), s 2.

[12] Ktaer Abbas Habib Al Qutaifi v Union of India (1999) 2 GCD 1299 (Gujarat HC).

[13] NHRC v State of Arunachal Pradesh (1996) 1 SCC 742 (SC India).

[14] Mohammad Salimullah v Union of India, Writ Petition (Civil) No 793 of 2017 (SC India, 8 April 2021).

[15] See reporting: The Azadi Project, ‘Expelled to the Sea: Rohingya Deportations from India’ (June 2025); Human Rights Watch, ‘India: Scores of Rohingya Refugees Expelled’ (August 2025).

[16] UNHCR Executive Committee, Conclusion No 25 (XXXIII) on International Protection (1982); see also Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn, OUP 2007) 201–212.

[17] Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v United Kingdom) [2016] ICJ Rep (Prelim Objs) (discussing erga omnes obligations); cf Case Concerning the Barcelona Traction, Light and Power Company Limited (Belgium v Spain) [1970] ICJ Rep 3, para 34 (on obligations owed to the international community as a whole).

[18] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171; India ratified 10 April 1979.

[19] UN Human Rights Committee, General Comment No 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004) para 12.

[20] Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3; India ratified 11 December 1992.

[21] International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195 (ICERD); India ratified 3 December 1968.

[22] UN Committee on the Elimination of Racial Discrimination, Early Warning and Urgent Action Procedure: Decision on India (2 July 2024) UN Doc CERD/C/110/misc.

[23] Constitution of India, arts 14, 15.

[24] Royal Thai Government, National Screening Mechanism for Undocumented Migrants and Displaced Persons (2019 Policy Framework); see UNHCR Thailand, ‘Overview of the National Screening Mechanism’ (2022).

[25] Refugee Act 2006 (Kenya), s 3; Organisation of African Unity, Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted 10 September 1969, entered into force 20 June 1974) 1001 UNTS 45, art I(2).