Legal Narrative
Abstract
India has received refugees from different parts of the world despite not having a comprehensive domestic refugee law and despite not being a party to the 1951 Convention Relating to the Status of Refugees or its 1967 Protocol. Refugees in India are therefore largely regulated through general laws applicable to foreigners, executive policies and judicial intervention. This creates an important legal question: what protection is available to a person who faces persecution or serious threats if returned to the country of origin? The principle of non-refoulement provides an important answer. Indian courts, particularly through Article 21 of the Constitution, have recognised that foreigners are entitled to protection of life and personal liberty. The Supreme Court's decision in National Human Rights Commission v. State of Arunachal Pradesh and the Gujarat High Court's decision in Ktaer Abbas Habib Al Qutaifi v. Union of India demonstrate the role of constitutional courts in protecting refugees. At the same time, the Supreme Court's approach in the Rohingya case shows that such protection is not absolute. This article examines the legal position and argues for a clearer domestic framework balancing refugee protection with national security and immigration control.
Keywords: Refugees, Non-Refoulement, Article 21, UNHCR, Foreigners Act, Judicial Protection, Refugee Law, India.
I. INTRODUCTION
India has a long history of receiving persons fleeing conflict, persecution and political instability. Tibetan refugees, Sri Lankan Tamils, Chakmas, Afghans, and more recently Rohingyas are examples of different refugee movements into India. However, India does not presently have a comprehensive domestic statute dealing specifically with the identification, status, rights and protection of refugees.
India is also not a party to the 1951 Refugee Convention or the 1967 Protocol. Consequently, refugees do not receive protection under a single statutory refugee-status determination system. Instead, their legal position is affected by general immigration legislation, executive decisions, international obligations and constitutional remedies.
This legal position creates a significant distinction between an ordinary foreigner and a person seeking protection from persecution. A refugee may have entered India without the documents ordinarily required for lawful entry, but that fact does not necessarily answer the separate question whether returning that person would expose them to persecution, torture or serious threats to life.
The central issue is therefore the principle of non-refoulement, under which a person should not be returned to a territory where there are substantial grounds for believing that the person's life or freedom would be threatened. The principle is expressly recognised in Article 33(1) of
the Refugee Convention and is also treated by UNHCR as a fundamental component of international refugee protection.1
Indian constitutional courts have addressed this issue even in the absence of a domestic refugee statute.
II. INDIA'S LEGAL VACUUM REGARDING REFUGEES
The principal difficulty in India is the absence of a uniform legal definition and procedure for refugees. Refugees are generally dealt with within the broader legal category of foreigners. The Foreigners Act, 1946 gives the Central Government extensive powers concerning the entry, presence and departure of foreigners.
This framework is primarily concerned with immigration control rather than refugee protection. It does not create a comprehensive mechanism for determining whether an individual qualifies as a refugee, examining a claim of persecution, or providing a structured appeal against an adverse decision.
This does not mean that refugees have no legal protection. Articles 14 and 21 of the Constitution use the expression "person" and have therefore been applied to non-citizens in appropriate circumstances. The Supreme Court has repeatedly recognised that foreigners are entitled to the protection of Article 21, although they do not possess all rights reserved exclusively for citizens.2
The result is a fragmented system: executive authorities retain substantial power over foreigners, while constitutional courts may intervene where fundamental rights are threatened.
III. NON-REFOULEMENT AND ARTICLE 21
Non-refoulement is the most important principle in the refugee-protection debate. In simple terms, it prevents a State from returning a person to a place where the person faces a real threat to life or freedom on recognised grounds of persecution. UNHCR considers the principle applicable not only to formally recognised refugees but also to asylum-seekers before a final determination of their protection needs.3
The Indian constitutional position has developed through judicial interpretation.
In National Human Rights Commission v. State of Arunachal Pradesh, the Supreme Court dealt with the protection of Chakmas living in Arunachal Pradesh. The Court made an important constitutional statement: the State is required to protect the life and liberty of every human being, whether citizen or otherwise.4 The Court directed the State authorities to protect the Chakmas against forcible eviction and threats to their lives and liberty.5
The importance of this decision extends beyond the particular community involved. It establishes that the absence of citizenship does not place a person outside the protection of Article 21.
The Gujarat High Court subsequently dealt more directly with non-refoulement in Ktaer Abbas Habib Al Qutaifi v. Union of India. The petitioners were Iraqi refugees who sought protection from deportation and requested intervention involving UNHCR. The Court discussed Article 33 of the Refugee Convention and held that the principle of non-refoulement was encompassed within Article 21, subject to considerations concerning national security.6
This reasoning is significant because India was not a party to the Refugee Convention. The Court therefore approached international refugee principles through constitutional protection and India's broader commitment to international law.
IV. THE ROLE OF UNHCR
In the absence of a national refugee authority, the United Nations High Commissioner for Refugees has an important practical role in India. UNHCR undertakes refugee-status determination for persons falling within its mandate and provides protection and assistance to refugees and asylum-seekers.
However, UNHCR's role should not be confused with that of an Indian statutory authority. Its protection activities do not replace the sovereign authority of the Indian State over immigration, national security and deportation.
The role of UNHCR becomes particularly relevant where an individual has no effective domestic mechanism through which refugee status can be determined. In Ktaer Abbas, the Gujarat High Court recognised the humanitarian role of UNHCR and directed the authorities to consider the petitioners' situation while preventing their immediate deportation.7
Thus, UNHCR operates as an important protection mechanism, but its position also demonstrates the weakness created by the absence of a domestic refugee statute.
V. JUDICIAL PROTECTION: FROM CHAKMAS TO ROHINGYAS
The Indian judicial approach is not completely uniform, and this is important to acknowledge.
In the Chakma case, the Supreme Court strongly protected life and liberty and prohibited forcible expulsion except according to law. The Court's reasoning was based primarily on constitutional protection under Article 21.8
The position became more complicated in Mohammad Salimullah v. Union of India, concerning Rohingya refugees detained in Jammu. The petitioners argued that non-refoulement formed part of Article 21 and that the Rohingya faced serious risks upon return to Myanmar.
The Union Government opposed the relief, relying, among other things, upon India's non-party status to the Refugee Convention and national-security concerns.9
The Supreme Court did not grant the requested blanket protection against deportation. However, it directed that deportation could take place only after following the prescribed procedure.10
The decision demonstrates an important limitation: Article 21 does not automatically create an unconditional right of every foreign national to remain in India. The Court must balance individual protection against the State's authority over foreign nationals and legitimate national-security concerns.
This distinction is central to understanding refugee protection in India. Non-refoulement cannot simply be treated as an unrestricted right to residence. At the same time, immigration control cannot automatically justify returning a person to a situation involving a serious threat to life or liberty.
VI. THE NEED FOR A DOMESTIC REFUGEE FRAMEWORK
The present framework creates uncertainty for both refugees and government authorities. Different refugee groups may receive different forms of administrative protection depending upon the circumstances of their arrival, bilateral relations, executive policy and judicial intervention.
A domestic refugee law could address this uncertainty by creating:
1. a statutory definition of "refugee" and "asylum-seeker";
2. an independent and transparent refugee-status determination procedure; 3. procedural safeguards before deportation;
4. an express statutory recognition of non-refoulement;
5. access to legal representation and appeal;
6. defined circumstances in which national-security exceptions may operate;
7. institutional coordination between the Central Government, State authorities and UNHCR; and
8. minimum standards relating to detention, documentation, education, healthcare and livelihood.
Such legislation need not eliminate the government's power to regulate immigration. Instead, it could distinguish between ordinary immigration control and persons claiming international protection.
A domestic framework would also reduce excessive dependence upon writ jurisdiction. Constitutional courts should remain available for protection of fundamental rights, but refugee status should ideally not depend upon approaching a High Court or the Supreme Court in every serious case.
VII. CONCLUSION AND SUGGESTIONS
India's refugee protection framework presently exists between two legal spheres: immigration control under domestic law and humanitarian protection developed through constitutional and international principles. The absence of a comprehensive refugee statute has not prevented courts from protecting the basic rights of refugees. Article 21 has provided an important constitutional foundation, while cases concerning the Chakmas and Iraqi refugees demonstrate the relevance of judicial protection and non-refoulement.
At the same time, the Rohingya litigation illustrates that judicial protection is not equivalent to an unconditional right to remain in India. The State retains authority over foreigners and may invoke legitimate considerations of national security and immigration control, subject to law and constitutional limitations.
The more sustainable solution is therefore a clear domestic refugee framework. Such a framework should recognise non-refoulement, establish a fair refugee-status determination process, provide procedural safeguards against arbitrary removal and clearly define the relationship between refugee protection and national security. UNHCR can continue to provide technical and humanitarian assistance, but the primary legal responsibility should remain with domestic institutions.
India's historical experience shows that refugee protection cannot be addressed adequately through an entirely ad hoc approach. A transparent statutory framework would provide greater certainty to refugees, government authorities and courts while preserving the State's legitimate power to regulate its borders.
FOOTNOTES
1 ConvenƟon RelaƟng to the Status of Refugees art. 33(1), July 28, 1951, 189 U.N.T.S. 137; U.N
2 Louis De Raedt v. Union of India, (1991) 3 S.C.C. 554; NaƟonal Hum. Rts. Comm'n v. State of Arunachal Pradesh, (1996) 1 S.C.C. 742.
3 U.N. High Comm'r for Refugees, Access to Territory and Non-Refoulement, supra note 1.
4 NaƟonal Hum. Rts. Comm'n v. State of Arunachal Pradesh, (1996) 1 S.C.C. 742.
5Id
6 Ktaer Abbas Habib Al Qutaifi v. Union of India, 1999 Cri. L.J. 919 (Guj.).
7 Id.
8 NaƟonal Hum. Rts. Comm'n, (1996) 1 S.C.C. 742.
9 Mohammad Salimullah v. Union of India, 2021 SCC OnLine SC 342.
10 Id.
