INTERNATIONAL HUMANITARIAN LAW

Module 15 | Detailed Study Notes

Laws Relating to Refugees in India

PART A: INTRODUCTION TO REFUGEE LAW

1. What is Refugee Law?

Refugee law addresses two core dimensions: first, the obligations of nation-states towards persons
forcefully displaced from their own countries; and second, the rights of such displaced persons
themselves. The causes that trigger refugee situations are wide-ranging — ethnic conflict, civil war,
international conflicts, and many more.
An important distinction must be noted at the outset: migrants who move in pursuit of better economic
or educational opportunities are NOT considered refugees. This distinction is legally and practically
significant.
Modern international refugee law primarily developed following the Second World War, which resulted
in the displacement of millions of people across Europe and beyond.

2. Definition of a 'Refugee' under International Law

The term 'Refugee' has a precise and specific meaning in international law. Its legal definition is laid
down in the United Nations 1951 Convention relating to the Status of Refugees ('the 1951 Convention')
and its 1967 Protocol.

📌 Article 1 Para. 2 of the 1951 Convention defines 'Refugee' as: "A person who owing to well-founded
fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group
or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling
to avail himself of the protection of that country."

From this definition, it is clear that there are well-defined and specific grounds that must be satisfied
before a person qualifies as a 'refugee.' These grounds are founded upon:
• Well-founded fear of persecution
• The persecution must be on grounds of race, religion, nationality, membership of a particular
social group, or political opinion
• The person must be outside their country of nationality
• The person must be unable or unwilling to avail themselves of the protection of that country

3. Who is NOT a Refugee? — Four Distinct Categories

India's refugee policy framework recognises four categories of foreigners who are distinctly different
from 'refugees':
(i) Temporary Residents, Tourists and Travellers
Persons who come to India for a specific purpose and duration with prior Government permission.
However, if during their stay the situation in their home country deteriorates such that returning would
endanger their life and liberty, they may become eligible to claim refugee status.

(ii) Illegal Economic Migrants

Any foreigner who leaves their country of origin solely to improve economic prospects, without due
authorisation from authorities, is NOT a refugee. The crucial factor is the absence of persecution or
coercion that compelled the individual to leave. Economic betterment is not a ground for refugee
status.

(iii) Criminals, Spies, Infiltrators, Militants

None of these can ever become eligible to be refugees. They are to be dealt with under Indian criminal
laws and special laws in force, even if they possess valid travel documents.

(iv) Internally Displaced Persons (IDPs)

Persons fleeing persecution from one region of the same country and seeking refuge in another region
of the same country are categorised as 'Internally Displaced Persons' (IDPs). They CANNOT be
categorised as 'refugees' since they have not crossed any international border. They remain under the
protection of their own national government.

PART B: REFUGEE SCENE IN INDIA — HISTORY & STATUS

1. Historical Overview
Pre-Independence
India is one of the few countries to have experienced significant refugee situations over the last half
century. Indian history bears evidence of large-scale migration of people from different countries
through two main geographical routes: the Hindukush Mountains in the West and the Patkoi range in
the East. Even before formal international refugee legislation existed, refugee populations such as Jews
and Parsis lived in India.

Post-Independence: A Timeline of Refugee Influx

The first twenty-five years of independent India were spent accepting responsibility for approximately
20 million refugees — primarily a consequence of the Partition of India and Pakistan. India was
compelled to provide relief to displaced persons from West Pakistan.
• 1947 — Partition refugees: Hindus and Sikhs from Pakistan and East Pakistan (now Bangladesh).
160 relief camps were organized; expenditure was approximately Rs. 60 crores. The key
legislation passed was the Rehabilitation Financial Administration Act, 1948.
• 1959 — Dalai Lama and his Tibetan followers sought and were granted Political Asylum in India.
• 1971 — Large numbers of Bengali refugees fled to India due to war and genocide in Bangladesh.
• 1983 — Sri Lankan Tamil refugees crossed the sea to enter Tamil Nadu following the outbreak
of civil war.
• 1986 — Refugees from Bangladesh.
 • 1989 — About 3,000 Myanmar nationals sought refuge when their government suppressed the
pro-democracy movement; GOI declared no genuine refugee from Myanmar would be turned
back.
• End of 1992 — India hosted 2,000,000 migrants and 237,000 displaced persons.
• 2021 — Afghan Sikhs and Hindus granted e-visas following Taliban takeover, with access to
education and work.

2. Current Refugee Groups in India

India has historically provided shelter to diverse refugee groups, including:
• Tibetan exiles (led by the Dalai Lama)
• Sri Lankan Tamils
• Afghan refugees (fleeing the Taliban government, Soviet invasion, and the American War on
Terror)
• Rohingyas (from Myanmar)
• Chakmas and Hajongs
• Refugees from Sudan, Somalia
• People of Indian descent from Kenya and Uganda
• Syrians, Palestinians, Ethiopians, Christians, and Persians
Notably, some of these groups — especially those who arrived centuries ago, like the Parsi community
— possess Indian citizenship and are Indian in every respect.

3. India's Unique Position

A significant observation is that there has not been a single occasion of any refugee originating from
Indian soil, except for the trans-boundary movement during the Partition of 1947. India has invariably
been a receiving country. This has enlarged India's multi-cultural and multi-ethnic fabric. In keeping
with its secular policies, India has been home to refugees belonging to all religions and sects — from
neighbouring countries as well as distant countries like Afghanistan, Iran, Iraq, Somalia, Sudan, and
Uganda.
As of 2024, UNHCR India had approximately 2.4 lakh registered refugees.

PART C: NATIONAL FRAMEWORK FOR REFUGEE PROTECTION IN INDIA

1. India's Position on the 1951 Convention

India has NOT ratified the 1951 Refugee Convention OR its 1967 Protocol. However, this does not place
India entirely outside the refugee protection framework for the following reasons:
• India is a part of the UNHCR's High Commissioner's Program Executive Committee (ExComm),
which authorises and oversees UNHCR programs.
• India has favoured the New York Declaration for Refugees and Migrants (2018).
• India has supported the UN Declaration on Territorial Asylum (1967).
• India is a signatory to multiple UN and World Conventions on Human Rights and refugee-
related matters.
 • India has voted affirmatively to adopt the Universal Declaration of Human Rights, which affirms
rights for all persons — citizens and non-citizens alike.
Even States which are not signatories to the Conventions are not outside the purview of the mandate to
fulfil the basic rights of refugees, as these rights have acquired customary nature in international law.

2. Why Has India NOT Signed the 1951 Refugee Convention?

India's decision to stay outside the international refugee framework is based on several long-standing
arguments:
• Eurocentric Definition — India claims the Convention's refugee definition is narrow and
Eurocentric, not addressing economic displacement prevalent in South Asia.
• Sovereignty and National Security — Signing would create binding legal obligations, potentially
compromising India's autonomy in managing its borders and in making decisions based on
national security.
• Resource Constraints — India is concerned about the financial and infrastructural burden of
legally mandated refugee rights, given its large population and developing-nation status.

3. Constitutional Provisions Available to Refugees

While India lacks specific refugee legislation, the Constitution of India extends several protections to
refugees present on Indian soil. Treatment of asylum people is divided into three heads:

(a) National Treatment

The same as citizens of India. Key Constitutional provisions include:
• Article 14 — Right to equality before law (equal protection to all persons)
• Article 21 — Right to life and personal liberty (applies to ALL persons, not just citizens — this is
the single most important Article for refugees)
• Article 25 — Religious freedom
• Right to social security and educational rights (Part III)

(b) Treatment Accorded to Foreigners

Rights related to practical living needs, drawn from the 1951 Refugee Convention:
• Article 17 of the Convention — Right to employment or profession
• Article 26 of the Convention — Freedom of residence and movement
• Article 21 (Constitution) — Right to housing
• Article 15 of the Convention — Right to form association
• Article 13 of the Convention — Right to property

(c) Special Treatment

Includes identity and travel documents (Article 28 of the Convention) and exemption from penalties
under Article 31(1) of the 1951 Refugee Convention for refugees who enter illegally directly from a
territory where their life or freedom was threatened.
Other Constitutional Articles available to non-citizens including refugees: Articles 5–12, 20, 22, 25–28,
32, and 226.
4. Laws Applicable to Refugees in India
In the absence of a specific refugee law, the following general and special laws govern the status of
refugees in India:
• Foreigners Act, 1946 (No. 31 of 1946) — The main legislation; vests absolute and unfettered
discretion in the Central Government to expel foreigners
• Citizenship Act, 1955 (No. 57 of 1955) — Includes provisions for certain types of refugees
• Citizenship Amendment Act, 2019 — Permits Buddhists, Hindus, Jains, Parsis, Christians and
Sikhs from Afghanistan, Pakistan, and Bangladesh to obtain citizenship more quickly through
naturalization
• Registration of Foreigners Act, 1939 (No. 16 of 1939)
• Passport (Entry into India) Act, 1920 (No. 34 of 1920)
• Passport Act, 1967 (No. 15 of 1967)
• Extradition Act, 1962 (No. 34 of 1962)
• Illegal Migrant (Determination by Tribunals) Act, 1983
• Bharatiya Nyaya Sanhita (formerly Indian Penal Code, 1860)
• Protection of Human Rights Act, 1993 (No. 10 of 1994)
• Immigrants (Expulsion from Assam) Act, 1950
• Administration of Evacuee Property Act, 1950
Note: From April 2025, various pre-Independence laws like the Foreigners Act, 1946 and the Passport
(Entry into India) Act, 1920 were streamlined into the Immigration and Foreigners Act.

📌 India does have the Refugee and Asylum (Protection) Bill of 2009, but it has not been enacted into law.
Efforts to draft legislation through the Model National Law on Refugees and the Protection of Refugees
and Asylum Seekers Bill have also not resulted in a distinct central refugee law.

5. India's Refugee Policy — Operational Framework

Since India lacks a uniform code, the refugee policy works as follows:
• The Central Government determines refugee status on an individual, case-by-case basis.
• UNHCR's headquarters in India assists the government in identifying refugees and ensuring
their fundamental rights are upheld.
• Asylum applications are screened by the Ministry of Home Affairs' (MHA) Bureau of
Immigration and Foreigner Regional Registration Offices.
• The MHA has developed Standard Operating Procedures to determine rights and amenities
granted to different refugee groups.
• UNHCR often performs Refugee Status Determination (RSD) for urban refugees and provides
'Refugee Cards' that often prevent arbitrary arrest by local police.
Judicial rulings and Presidential Orders comprise the majority of India's actual refugee law system in
practice.

6. Core Dilemma: Differentiating Refugees from Infiltrators

The absence of a formal refugee law creates a fundamental ambiguity — how does one objectively
distinguish a genuine refugee fleeing for their life from an 'infiltrator' or illegal migrant?
India does not legally define 'refugee.' Without a refugee policy document, a genuine asylum seeker can
be categorised as an 'illegal migrant' or 'infiltrator' under the Citizenship Act, 1955, risking harassment
and deportation.
National Security Concerns
• Cross-Border Infiltration: Illegal Rohingya infiltration from Bangladesh and Myanmar via porous
borders in Tripura and Assam is a significant concern; the MHA highlighted this in 2023, leading
to increased border fencing and surveillance.
• Alleged Terrorism Links: The Centre cited alleged Rohingya links to terrorism when advocating
deportation.
• Blurring Lines with Illegal Migrants: The 2019 Assam NRC (National Register of Citizens), which
excluded 1.9 million people, revealed the scale of the undocumented-resident problem.

PART D: ROLE OF THE JUDICIARY IN REFUGEE PROTECTION

1. Significance of Judicial Intervention

The judiciary has played a vital and often decisive role in protecting refugees in India, filling the gap
created by the absence of specific legislation. The Supreme Court has consistently taken recourse to
Article 21 of the Constitution to regulate and justify the stay of refugees. The judiciary has also
facilitated refugee protection through the tools of Social Action Litigation (SAL) and Public Interest
Litigation (PIL).

2. Key Case Law

The following landmark cases constitute the backbone of Indian refugee jurisprudence:

Hans Muller of Nuremburg v. The Supreme Court gave the Government 'absolute and unfettered' power
Superintendent, Presidency Jail to expel foreigners from India.

Louis De Raedt & Ors. v. Union Upheld the absolute power of the Government to expel foreigners.
of India Simultaneously held that (i) fundamental rights to life, liberty and dignity are
available to non-citizens; and (ii) foreigners have the right to be heard
before expulsion.

NHRC v. State of Arunachal The Supreme Court directed the Government of Arunachal Pradesh to
Pradesh (1996) safeguard the life, health and well-being of Chakma refugees residing in the
State, and that their applications for citizenship be forwarded and not
withheld. Landmark application of Article 21 to refugees.

Ktaer Abbas Habib Al Qutaifi v. Gujarat High Court held that the principle of non-refoulement prevents
Union of India ejection of a displaced person where their life or freedom would be
undermined on grounds of race, religion, nationality, social group
membership, or political opinion. The principle ensures life and liberty
irrespective of nationality.

Malavika Karelkar v. Union of The Supreme Court stayed deportation orders against 21 Burmese refugees
 India and allowed them to seek refugee status under UNHCR — a landmark on
Non-Refoulement and the Right to Refugee Status.

P. Nedumaran v. Union of India The Court emphasised the voluntary nature of repatriation and held that the
UNHCR, as a world agency, was the appropriate body to ascertain the
voluntariness of the refugees; it was not for the Court to determine whether
consent was voluntary.

Vishakha v. State of Rajasthan The Court observed that reliance can be placed on international laws and
conventions for the purpose of interpretation of constitutional guarantees,
including gender equality and right to work with human dignity under
Articles 14, 15, 19(1)(g) and 21.

Mohammad Salimullah & Ors. Decided the question of whether the Government could deport Rohingya
v. Union of India & Ors. refugees. The Government had refused refugee status on grounds of
national security and the threat of terrorist elements.

INS v. Cardoza Fouseca On interpretation of 'well-founded fear': so long as an objective situation is

established by evidence, it need not be shown that the situation will
probably result in persecution; but mere possibility of persecution is not
enough.

R v. Secretary for the Home The 'test' for well-founded fear should consider whether there is evidence of
Department, ex parte a 'real and substantial danger of persecution.'
Sivakumaran

3. Non-Refoulement — The Core Principle

Non-refoulement is the most fundamental principle of refugee protection. It prohibits the expulsion or
return of a refugee to a territory where their life or freedom would be threatened on grounds of race,
religion, nationality, membership of a particular social group, or political opinion. India has
acknowledged this principle on paper, though its practical application has not always been consistent —
as seen in the Rohingya deportation controversy.
The NHRC has consistently opposed the forced return (refoulement) of vulnerable groups, issuing
notices against deportation of Rohingya refugees and emphasising that humanitarian concerns must
balance national security.

4. Documentation for Refugee Status Claims

For a claimant refugee to put forward a genuine claim, it is crucial to accumulate all possible supporting
documents. These may include:
• Identity card evidencing employment with a governmental agency in the country of origin
• Identity card indicating membership of a particular group
• Names of persecutors, leaders of groups involved in persecution
 • Details of areas where persecution is committed
Statements made by the claimant must be consistent across different interviews and different times.
Contradictions between statements, or between the claimant's account and general information about
the country of origin, may lead to rejection of the refugee status claim.

PART E: ROLE OF NHRC, SAARC & OTHER INSTITUTIONS

In South Asia, the protection of refugees involves a complex interplay between national statutory
bodies, regional diplomatic forums, and international agencies. Because many countries in the region —
including India — are not signatories to the 1951 Refugee Convention, these institutions fill a critical
legal and humanitarian void.

1. National Human Rights Commission (NHRC)

The NHRC (India) functions as a 'watchdog' to ensure that the State treats refugees in accordance with
constitutional and humanitarian standards. Its key roles include:

(a) Judicial Advocacy

The NHRC has historically intervened in the Supreme Court to protect refugees. The landmark case is
NHRC v. State of Arunachal Pradesh (1996), where the Commission successfully argued that Article 21
(Right to Life) of the Indian Constitution applies to ALL 'persons' — including Chakma refugees —
protecting them from forcible eviction.

(b) Preventing Refoulement

The NHRC has consistently opposed the forced return (refoulement) of vulnerable groups. It has issued
notices against the deportation of Rohingya refugees, emphasising that humanitarian concerns must
balance national security imperatives.

(c) Legislative Pressure

The Commission has repeatedly recommended that the Government enact a National Refugee Law to
replace current ad hoc policies with a transparent, uniform legal framework.

(d) Monitoring and Grievance Redressal

The NHRC conducts field visits to refugee camps and detention centres (for example, in Assam and
Tamil Nadu) to monitor living conditions. It also handles individual complaints regarding human rights
violations against refugees.

2. SAARC (South Asian Association for Regional Cooperation)

SAARC provides a regional platform for diplomatic engagement on refugee and migration issues, though
its progress is often hindered by political tensions among member states. Its contributions include:

(a) Model National Law on Refugees (2004)

In 2004, the SAARC Model Law on Refugees was proposed. It aimed to: (i) provide a standard definition
of 'refugee' across South Asia, including those fleeing 'external aggression' or 'serious violation of
human rights'; and (ii) establish a formal status-determination procedure common to all member
states.
(b) Climate Change Displacement
Recent SAARC initiatives — including the Thimphu Statement (2010) and the Action Plan on Climate
Change — address the emerging threat of 'climate refugees.' These encourage member states to
collaborate on managing displacement caused by natural disasters and rising sea levels.

(c) Bilateral Facilitation

While SAARC officially avoids controversial bilateral issues, its summits often serve as the only venue
where leaders of host and home countries (e.g., India and Pakistan) can meet on the sidelines to discuss
migration and border security matters.

(d) Regional Consultations — SAARCLAW

SAARCLAW (South Asian Association for Regional Cooperation in Law) is an association of legal experts
that plays a significant, though mostly academic and consultative, role. It has organised and participated
in regional consultations, including the Fourth Informal Consultation on Refugee and Migratory
Movements in South Asia (1997). It was also instrumental in drafting the Model National Law and works
to bridge the gap between regional aspirations and international legal obligations.

3. Other Key Institutions

(a) UNHCR — UN Refugee Agency
In the absence of national refugee laws, the UNHCR performs Refugee Status Determination (RSD) for
urban refugees (like those from Afghanistan and Myanmar). It provides 'Refugee Cards' that often
prevent arbitrary arrest by local police. The UNHCR headquarters in India assists the Government in
identifying refugees and ensuring their fundamental rights are upheld. Asylum seekers can obtain
refugee status from UNHCR if the status is not protected by the Indian Government.

(b) ICRC — International Committee of the Red Cross

The ICRC focuses on the 'protection of dignity.' It facilitates Family Links programmes to reconnect
refugees with their relatives and visits detention centres to ensure international humanitarian
standards are being met.

PART F: PROBLEMS FACED BY REFUGEES IN INDIA

1. Structural Problems
The absence of a specific refugee law creates systematic gaps:
• No uniform code for determining refugee status — cases are decided on an ad hoc, case-by-
case basis
• No central body to deal exclusively with refugees
• No clear legal definition of 'refugee' in Indian domestic law
• Genuine asylum seekers can be categorised as 'illegal migrants' or 'infiltrators,' making them
vulnerable to harassment and deportation
• Inconsistency in the procedure for determining refugee status

2. Problems Specific to Rohingya Refugees

Rohingya refugees in India face particularly difficult conditions:
 • Open drains, unsanitary surroundings, and slum-like conditions in camps across India
• Child deaths reported due to pneumonia during winter
• Disease outbreaks including dengue and diarrhea; snakes appearing during rains
• Reported instances of harassment against women refugees
• Anxiety within the community due to deportation announcements by the Union Government
• Alleged links to terrorism cited by the Government, complicating humanitarian aid

3. The Danger of Refoulement, Detention and Deportation

When refugees are detained or arrested by Indian authorities, there is always the danger of
refoulement, repatriation, or deportation. Those arrested for illegal stay can be detained under
administrative orders without formal charges. The Foreigners Act vests absolute and unfettered
discretion in the Central Government to expel foreigners.

QUICK REVISION SUMMARY

📌 India is NOT a signatory to the 1951 Refugee Convention or its 1967 Protocol, yet it is home to one of
the largest refugee populations in the world. Protection is provided through: Constitutional provisions
(chiefly Art. 21), existing laws (Foreigners Act 1946 being primary), judicial interpretation, UNHCR
assistance, and NHRC oversight. The core principle of Non-Refoulement has been judicially recognised.
The absence of a dedicated refugee law remains the central structural gap.

— End of Module 15 Notes —