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I. Introduction
The global refugee crisis presents one of the most pressing challenges in the contemporary human rights landscape. As displacement continues to rise due to conflict, persecution, political instability, and environmental degradation, international refugee law has struggled to provide consistent, adequate, and humane protection. At the heart of this legal conundrum lies the disparity between the normative aspirations of international refugee instruments and their implementation, especially within national frameworks. Nowhere is this disparity more evident than in India—a country with a storied tradition of providing refuge, but which lacks a codified legal framework to govern refugee protection.
India has historically served as a haven for persecuted communities, ranging from Tibetans and Sri Lankan Tamils to Rohingya and Afghani asylum seekers. Yet, despite its moral commitment, India has neither ratified the 1951 Convention Relating to the Status of Refugees nor its 1967 Protocol. Consequently, the country relies on ad hoc administrative responses, devoid of consistent legal protections or procedural fairness. This article undertakes a comprehensive examination of international refugee law and its key challenges, with particular emphasis on the gaps in India’s refugee policy, advocating for a codified, human-rights-based approach rooted in the principles of equality, dignity, and non-refoulement.
II. Evolution of International Refugee Law
The legal framework for refugee protection began to crystallize in the aftermath of the World Wars, when mass displacements demanded collective international responses. Early efforts included the League of Nations’ appointment of Fridtjof Nansen as High Commissioner for Refugees in 1921 and the creation of the Nansen Passport for stateless individuals. However, the foundational text remains the 1951 Refugee Convention, which defined a 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… to avail himself of the protection of that country”¹.
The 1967 Protocol removed geographical and temporal restrictions, thereby universalizing the Convention’s applicability. Despite its comprehensiveness, the Convention is frequently criticized for being outdated, particularly its narrow persecution criteria that fail to reflect contemporary displacement causes such as climate change, economic collapse, or generalised violence.
Beyond the Convention, other human rights instruments such as the Universal Declaration of
Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and regional mechanisms like the OAU Convention and Cartagena Declaration have attempted to expand the protective net². Yet, the absence of binding enforcement mechanisms continues to weaken these frameworks.
III. Key Doctrines and Normative Principles
A. The Principle of Non-Refoulement
Central to refugee protection is the principle of non-refoulement, enshrined in Article 33 of the 1951 Convention, which prohibits states from returning refugees “to the frontiers of territories where their life or freedom would be threatened”³. This norm is widely recognized as part of customary international law and is binding on all states regardless of treaty ratification.
However, state practice shows frequent violations. Refugees are often denied entry at borders, detained in substandard facilities, or deported under national security justifications. Even states that are party to the Convention have adopted restrictive interpretations, creating a legal and moral paradox.
B. Refugee Status Determination (RSD)
Determining refugee status is an inherently complex process. It requires balancing sovereign immigration control with humanitarian obligations. In individual asylum systems, credibility assessment plays a central role, but it is often influenced by political, economic, and cultural considerations⁴. In large-scale influxes, states have opted for prima facie recognition, though this raises questions about procedural fairness and long-term legal certainty.
C. Asylum and State Sovereignty
Although the UDHR affirms the right to seek asylum (Article 14), no corresponding duty exists upon states to grant asylum. This legal gap reinforces the supremacy of state sovereignty over humanitarian considerations, often to the detriment of refugee rights. Consequently, access to asylum remains a privilege, not a right.
IV. Refugee Protection in India: An Ad Hoc Approach
India’s approach to refugee protection is marked by inconsistency, informality, and politicization. While India has hosted several refugee populations over decades, its reluctance to adopt a codified refugee law has resulted in a vacuum of rights and protections.
A. Constitutional and Judicial Framework
Although there is no specific refugee law in India, certain constitutional provisions and judicial pronouncements have indirectly extended protections to refugees. Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty, has been interpreted to include non-citizens⁵. In NHRC v. State of Arunachal Pradesh, the Supreme Court held that even refugees are entitled to the right to life and dignity⁶.
Moreover, the principle of non-refoulement has been upheld in several court decisions. In Ktaer Abbas Habib Al Qutaifi v. Union of India, the Gujarat High Court emphasized that the government must not deport asylum seekers to countries where they may face persecution⁷.
B. Categories of Refugees in India
India classifies refugees into three broad groups:
- Government-recognized refugees (e.g., Tibetan and Sri Lankan Tamil refugees), who receive material and legal support.
- UNHCR-mandate refugees (e.g., Afghans, Rohingya), who depend on the UNHCR for documentation and basic services.
- Undocumented and unrecognized refugees, who live in precarious legal conditions without formal recognition.
Such classification results in unequal treatment, violating principles of non-discrimination and equality before law.
C. Legislative and Policy Gaps
India’s failure to adopt the Refugees and Asylum Seekers (Protection) Bill, introduced in various forms since 2006, underscores the government’s ambivalence. In its absence, immigration law—principally the Foreigners Act, 1946—is arbitrarily applied to refugees, conflating them with illegal migrants.
Detention of asylum seekers without due process, deportations without proper hearings, and lack of access to education, employment, and healthcare reflect systemic failures. Additionally, national security rhetoric has increasingly been used to justify discriminatory policies, as evident in the treatment of Rohingya refugees⁸.
V. Refugee Challenges in the Contemporary Context
A. Environmental Displacement
Environmental degradation has emerged as a significant driver of displacement. Rising sea levels, floods, and desertification have created “climate refugees,” a category not recognized under existing international law⁹. Countries like Bangladesh and island nations in the Pacific face existential threats, yet the international community remains divided on extending refugee protection to those displaced by environmental factors.
B. Internally Displaced Persons (IDPs)
IDPs, unlike refugees, do not cross international borders and therefore fall outside the scope of the 1951 Convention. However, their protection is equally urgent. In India, the plight of Kashmiri Pandits, displaced due to militancy, and communities uprooted by development projects reflect the need for a comprehensive IDP policy backed by legislative guarantees.
C. Securitization of Asylum
Globally and in India, the refugee discourse is increasingly framed in security terms. Refugees are often perceived as threats rather than victims. This shift in narrative undermines humanitarian principles and facilitates restrictive policies, such as pushbacks, detention, and surveillance.
VI. International Responsibility and Burden Sharing
Refugee protection is not merely a legal duty but a moral imperative, premised on international solidarity and burden sharing. Unfortunately, the responsibility continues to fall disproportionately on developing nations. According to the UNHCR, 85% of the world’s refugees are hosted by low- and middle-income countries¹⁰.
Wealthier nations often adopt deterrence measures—offshore processing, third-country agreements, and safe third country doctrines—to avoid legal responsibility. This asymmetry not only erodes the international protection regime but also disincentivizes cooperation.
VII. The Way Forward: Toward a Rights-Based Refugee Policy in India
India must move toward a codified, rights-based refugee policy that integrates constitutional guarantees with international legal standards. Such a policy should include:
- Legal recognition of refugee status, based on fair procedures and transparent criteria.
- Access to socio-economic rights, including education, employment, and healthcare.
- Non-discriminatory treatment, irrespective of nationality, ethnicity, or religion.
- Judicial oversight of deportation and detention orders.
- Coordination with UNHCR and NGOs for refugee welfare and resettlement.
Regional cooperation through SAARC and engagement with the Global Compact on Refugees can further strengthen India’s refugee protection framework.
VIII. Conclusion
The dichotomy between legal norms and ground realities characterizes the modern refugee regime. While international refugee law has laid the foundation for a rights-based approach, its effectiveness depends on national implementation. India, despite its historical generosity, must shed its ad hocism and embrace a comprehensive legal framework grounded in human rights, justice, and compassion.
A consistent, non-discriminatory, and legally enforceable refugee policy is not merely a diplomatic or political necessity—it is a constitutional and moral imperative. In a world where displacement is fast becoming the norm rather than the exception, upholding the dignity of the displaced must remain at the heart of legal and policy discourse.
References
- Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150.
- UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III); International Covenant on Civil and Political Rights, 1966; OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, 1969.
- Convention Relating to the Status of Refugees, Article 33.
- Hathaway, James C., “The Law of Refugee Status,” Butterworths, Canada, 1991.
- Constitution of India, Art. 21.
- National Human Rights Commission v. State of Arunachal Pradesh, (1996) 1 SCC 742.
- Ktaer Abbas Habib Al Qutaifi v. Union of India, 1999 CriLJ 919 (Gujarat HC).
- Amnesty International, “India: Rohingya Face Risk of Forced Return,” Report (2018).
- UNHCR, “The Environment & Climate Change,” www.unhcr.org/environment.
- UNHCR, “Global Trends: Forced Displacement in 2023,” https://www.unhcr.org/globaltrends.
Divyanshu Sharma , BALLB(Hons.) , Amity Law School , Amity university ,Gwalior, Madhya Pradesh
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