Abstract
The issue of refugee protection in India is a complex one involving a host of constitutional considerations, international obligations, and national security and State sovereignty concerns. Despite being a home to various refugee groups like Tibetans, Sri Lankan Tamils, Chakmas, Afghans, and Rohingya, India has not ratified the 1951 Refugee Convention and its 1967 Protocol, nor has it adopted a comprehensive refugee law. Thus, the protection of refugees continues to rely on judicial rulings, executive policies and administrative discretion, and constitutional protections. The paper attempts to shed light on the international refugee regime and the position of India without a Convention, and the implications of international human rights obligations for refugee protection. It explores the provisions of Article 14 and Article 21 of the Constitution, the development of the judiciary and the cases of Chakma refugees and non-refoulement. It also explores institutional and legal tools, including the Immigration and Foreigners Act, 2025, executive tools to recognise and practice of the United Nations High Commissioner for Refugees (UNHCR) and citizenship-related articles. The paper contends that the current system is not uniform, has no procedural fairness, and does not have enforceable safeguards. It demands comprehensive refugee legislation based on the principle of rights, a fair refugee determination process, protection from return, access to basic services and accountability of institutions, and the ability to address the legitimate concern of national security and the realities of the region in India.
Keywords: Refugee Protection, Constitutional Rights, Non-Refoulement, Immigration and Foreigners Act, 2025, Refugee Law Reform.
I. Introduction
In international law, refugee protection is a major issue, which lies at the crossroads of human rights, national security and state sovereignty. As the number of individuals seeking refugee status due to persecution, armed conflict, political violence and other forms of violence has grown, the importance of legally protecting displaced persons has been underscored. International law affords protection to refugees through the Convention Relating to the Status of Refugees of 1951 and the 1967 Protocol, but neither of these has been ratified by India. Moreover, India lacks a comprehensive domestic law for the identification, recognition and protection of refugees. Thus, the protection of refugees in the country is very much dependent on constitutional protection, decisions, executive policies and administrative discretion.
India has been a country of refuge for neighbours and other parts of the world where political and social turmoil rages. The Tibetan refugees, Sri Lankan Tamils, Chakmas and Hajongs, Afghans, Chin refugees and Rohingya have come for protection in India in different circumstances. Treatment of these communities, however, has not been consistent under the law. Some groups have been offered special administrative arrangements and rehabilitation, while others have faced questions about their legal standing and their rights to services and protection from deportation.
Important protection of the rights of refugees in India is based on the Constitution of India. It has been held that the right to equality before the law and the right to equal protection of the laws is guaranteed by Article 14, while the right to life and to personal liberty is guaranteed by Article 21. These provisions would apply regardless of whether or not the person is a citizen, and within the limits of the Constitution. The Supreme Court has, in a few cases, intervened to protect the life and liberty of Chakma refugees and to prevent their forced eviction through illegal methods, thus playing an important role in the resolution of these problems. However, refugee status alone, without more, does not automatically create a refugee status determination system, provide access to legal aid or protection from return to the place of origin where an individual may be subject to persecution or serious harm.
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