In our daily lives, we often overlook the comforts that make life easier, like access to healthcare, education, and legal protections. This leads us to think about the challenges faced by refugees in our society. Refugees are people who have fled their home countries due to fear of persecution, war, or violence. According to the 1951 Refugee Convention, a refugee is someone outside their country of nationality who has a strong fear of persecution for different reasons. Although they are supposed to receive certain protections, their experiences upon arrival can be tough. Many refugees deal with problems like language barriers, limited job opportunities, and insufficient housing and healthcare. These issues often create feelings of isolation and uncertainty as they try to adjust to a new and sometimes unwelcoming environment. Understanding the refugee experience shows our shared humanity and pushes us to support policies that help them integrate and thrive. By acknowledging their struggles, we can work towards building a more inclusive society that offers the benefits we have to those in need and it is extremely important to understand the Legal Status of Refugees in India.
DEFINITION AND TYPES OF REFUGEES
Article 1 para. 2 of The United Nations 1951 Convention defines the ‘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.” It is important to recognize that there are clear and specific criteria that must be met for an individual to be classified as a ‘refugee.’ These criteria are based on a credible fear of persecution and consider various factors that may influence the situation, either separately or in combination. India, though a host to many forced migrants, is not a party to this convention. This has led to an informal system where refugees are often confused with the category of foreigners. All persons who are not Indian Citizens are foreigners, including refugees. However, refugees are different from the categories of foreigners that have been recognised. We mainly have three well defined groups of foreigners who are different from refugees.
The first category is temporary residents, tourists, and travellers. These people come to India for a specified duration with a specified purpose. However, it is possible for these people to become refugees if during their time in India, the situation in their country deteriorates to a point where returning to the country wouldn’t be viable and would be dangerous to their lives and liberty. An example of the same is during the reign of the Shah of Iran, when multiple Iranians came to India for studies. Consequently, after his fall in 1978 and the revolutionary government taking over, the Iranians stayed back in India as refugees. Moreover, it is important to note and understand that any foreigner who may have left their country to migrate to another country for purely better economic prospects, without authorization from either the home country or the migrating country, will not be considered a refugee. The same is because there is no element of compulsion or coercion compelling the individual to leave the country of origin. The migrants from Bangladesh are examples of the same. Criminals, spies, infiltrators and militants do not get the right to be called refugees and are prosecuted by appropriate laws. Another facet of people is the internally displaced persons. They are those who have left their home but still remain in the same country. They aren’t considered refugees as they haven’t crossed international boundaries yet.
The legal implications of each of these categories of people must be highlighted. While refugees may seek asylum and have limited rights. Economic and illegal immigrants are subjected to immigration laws which, if not complied with, result in detention or deportation. IDPs are protected under the particular country’s domestic laws, but they lack any international status as refugees.
Now that we understand what separates refugees from others, let’s understand the different types of refugees we find in India. We have the partition refugees who entered India in 1947. It was by far the largest influx of refugees entering our country, with an estimated 14-16 million people. Mainly, there are Hindus and Sikhs from Pakistan and Bangladesh. Secondly, we had the Dalai Lama and his Tibetan refugees in 1959. When the Chinese took over Tibet, Dalai Lama, along with his 80000 followers, took refuge in our country. The total count of Tibetan refugees is around 100000, mainly seen in Karnataka. Himachal Pradesh, etc. The civil war in Sri Lanka saw waves of Tamilian refugees enter India in the 1980s and 1990s. Most importantly, the Rohingya refugees who flee Myanmar with their count going up to 40-000 to 50000. We have provided shelter to Afghan refugees who fled from the Taliban regime, the Soviet invasion, and the War on Terror led by the United States. This number is as high as 20000. Among the other groups of refugees are the Chakmas and Hajongs, and individuals from Sudan and Somalia, as well as people of Indian origin from Kenya and Uganda. It’s important to recognize that different groups of refugees are treated differently. For instance, Tibetans and Sri Lankans often find it easier to obtain government-issued documents and access welfare services. In contrast, the same cannot be said for the Rohingyas and Afghans, who face greater challenges in these areas.
INDIA’S INTERNATIONAL OBLIGATIONS AND POSITION
India is not a undersigned to the 1951 Convention or the 1967 Protocol. We are thus not bound by its provisions. India is however, does engage in refugee issues as a member of the Executive Committee of the High Commissioner’s Programme, a body which approves and supervises the programmes of the UNHCR. We have voted on major resolutions such as the UN Declaration on Territorial Asylum 1967, and the New York Declaration for Refugees and Migrants 2018. Thus, it can be said that India endorses humanitarian norms. India has provided several reasons for not becoming a signatory to the aforementioned treaties. Firstly, the country has porous borders with unstable neighbors, including Pakistan, China, Bangladesh, and Myanmar, which often face conflicts. This situation raises concerns about an influx of refugees that could pose security risks. Secondly, the socio-economic pressures currently facing India do not support the accommodation of further influxes of people. Lastly, the political complexities involved in distinguishing refugees from illegal migrants present a significant challenge. India is known for its ad hoc approach, allowing discretion in determining who is admitted or deported, thus aligning admissions and denials with its diplomatic priorities.
CURRENT LEGAL FRAMEWORK IN INDIA
Coming to the Indian legislature on refugees, we lack a specific law governing the same, but the refugees are bound by acts such as the Indian Penal Code 1860, Passport (Entry into India) Act 1920, Registration of Foreigners Act 1939, Foreigners Act 1946 and Passport Act 1967. The Foreigners Act 1946 grants the Central government power to regulate the entry, exit stay of foreigners in India. They further have the power to restrict the same for national security reasons. This act includes refugees. The Registration of Foreigners Act, 1939 defines foreigners and mandates registration; violations may result in imprisonment or fines. The Passport Entry into India Act 1920 authorizes the government to mandate passports and valid documents for entry into India. The Extradition Act 1962 deals with the extradition of individuals in accordance with bilateral treaties or international law. The Citizenship Act 1962 deals with the acquisition and loss of Indian citizenship.
Thus, it can be said that India’s refugee law framework is contained in executive and court orders and not legislative frameworks. The administrative measure includes the Bureau of Immigration and Foreigner Regional Registration Offices under the Ministry of Home Affairs (MHA), responsible for vetting applications for asylum. They have developed a standard operating procedure for the same. This SOP mandates the process for registering and managing refugees. The UNHCR operates in indian to determine refugee status for non-neighbouring countries while the government deals with the immediate neighbouring countries. UNHCR runs registration and RSD offices in Chennai and Delhi. Refugees recognized by UNHCR receive some protection per India’s SOP, notably the principle of non-refoulement, though they lack official recognition in law. Refugees may face detention or deportation under these regulations, often without adequate due process, as the Foreigners Act grants the government “absolute and unfettered” authority. The lack of a formal refugee law results in inconsistent and arbitrary treatment, thereby significantly increasing the risks of refoulement—the involuntary return to a country where they may encounter threats.
CONSTITUTIONAL RIGHTS
Though there might be a lack of specific laws governing the refugees, that must not lead us to the conclusion that the refugees do not have any rights in our country. We have key constitutional provisions that give the refugees basic human rights and the same will be discussed in this segment. The most important and vital and almost basic right offered to the refugees is Article 21, the right to life and personal liberty. The SC has, in multiple judgements, reiterated that Article 21 applies to all irrespective of whether they are citizens of India or not. The same is lies of the reasoning for adopting the rules of natural justice to the situation of the refugees. UNHCR also plays an imp role. A common The Hon’ble High Court of Guwahati has recognized the issue of refugees in several judgments. It has allowed refugees to approach the UNHCR for determination of their refugee status and has stayed the deportation orders issued by the district court or the administration.
The same has been seen through multiple judgments. Gurunathan and others vs. Government of India and others and in the matter of A.C. Mohd. Siddique vs. Government of India and others, the HC of Madras refused to let the refugees return to si lanka against their will. P.Nedumaran vs. Union Of India before the Madras High Court, Sri Lankan refugees had prayed for a writ of mandamus directing the Union of India and the State of Tamil Nadu to permit UNHCR officials to check the voluntariness of the refugees in going back to Sri Lanka, and to permit those refugees who did not want to return to continue to stay in the camps in India. The Hon’ble Court was pleased to hold that” since the UNHCR was involved in ascertaining the voluntariness of the refugees’ return to Sri Lanka, being a World Agency, it is not for the Court to consider whether the consent is voluntary or not.” Syed Ata Mohammadi vs. Union of India, was pleased to direct that “there is no question of deporting the Iranian refugee to Iran, since he has been recognised as a refugee by the UNHCR.” The Hon’ble Court further permitted the refugee to travel to whichever country he desired. Such an order is in line with the internationally accepted principles of ‘non-refoulement’ of refugees to their country of origin.
CHALLENGES FACES IN REFUGEE POLICY
India lacks a refugee-specific law, which is leading to ad hocism, undermining fairness. As seen above, the government treats different refugees in different ways. This is an arbitrary method that differs case by case, resulting in no uniformity. Political and religious factors impact decisions about refugee status and treatment, compromising the equal protection guarantee. Humanitarianism and Security: Humanitarian commitments are frequently subordinated to national security considerations, resulting in restricted laws and procedures. Lack of Integration Rights: The majority of refugees are left vulnerable and marginalized because they are unable to work, obtain an education, own property, or apply for citizenship.
Risk of Arbitrary Detention and Deportation: Given the extensive authority provided by the Foreigners Act, refugees are constantly at risk of being arrested or deported without following the proper procedures.
CAA GAME CHANGER
The Citizenship Amendment Act has introduced a shift in the atmosphere for refugees. It offers an accelerated pathway to citizenship for specific religious minorities, namely Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan who entered India on or before 31 December 2014. This was introduced in March 2024 and allows these groups to apply for citizenship even if they lack valid travel documents. This is if they can demonstrate their continuous residence and proficiency in the Indian language. However, the CAA explicitly excludes Muslim refugees from these countries, as well as other persecuted groups like the Rohingyas and Sri Lankan Tamils, despite their long-standing presence and vulnerability in India. This marks the first time religion has been used as a criterion for citizenship under the indian law. The CAA sparked debates and unrest throughout the country, creating a legal track for certain refugees and leaving others in a legal limbo.
WAY FORWARD AND RECOMMENDATIONS
The National Human Rights Commission and various law commissions have constantly recommended the enactment of a refugee law that clearly defines the status, rights, and responsibilities of refugees. This would provide consistency in the treatment of all people on a justifiable ground, upholding principles of natural justice. This would further help us clearly define terms and avoid overreach of the Foreigners Act. Moreover, a statutory body should be constituted to oversee refugee matters, which will oversee status determination, coordinate with UNHCR and provide local legal aid. Talking about international principles, though India is not a party to the 1951 convention, it should integrate its principles, such as non-refoulement, voluntary repatriation, and family reunification. A uniform SOP should be established and followed for every asylum application and for running a refugee camp.
CONCLUSION
This article assesses the legal status of refugees in India. In modern times, there is a pressing need for a rights-based legal framework. Refugees often find themselves vulnerable and overlooked due to the current patchwork of legislation, which fails to provide adequate protection. By enacting specific refugee laws and establishing fair processes, India can move away from ad hoc measures and position itself as a responsible global actor dedicated to upholding human dignity. Ensuring that those fleeing persecution can live with the safety, rights, and hope that were denied in their home countries is just as crucial as managing the population.
About Author
Vianca Venkatesh, a law student at Symbiosis Law School, Hyderabad, is an enthusiastic legal learner with a keen interest in Corporate, Criminal, Civil, and Constitutional law. Passionate about understanding the intricacies of legal systems, she actively seeks opportunities to explore diverse legal fields and deepen her knowledge through writing, research, and hands-on experience.