Need For A Refugee Law And Sensitisation Of Higher Judiciary

Even though there is no specific law dealing with the issue, the stand of government on refugees, is reflected in the statement of Union Home Minister – Mr Amit Shah's reply to the discussion over 'The Immigration and Foreigners Bill, 2025' bill on 27th March 2025, where Mr Shah remarked that, “India is not a Dharamshala where anyone can come and settle for any reason, the Parliament has the authority to stop those who pose a threat to national security”. Though the Supreme Court had been proactive in protecting the human rights of refugees, recent cases show a marked departure from the past. While acknowledging that the Apex court is a polyvocal court, the change in the stand of the Supreme Court is apparent from the recent events.

India has a long history of providing asylum and assistance to refugees based on international humanitarian principles and constitutional morality. Supreme Court and High Courts have been taking a proactive stand in protecting the human rights of refugees, though they are not citizens.

Status of Refugees in India

In India, we don't have a specific law defining the term' refugee'. Most often, the term 'migrant' has been used while referring to refugees. Migrants and refugees are persons not being citizens of India but are fleeing into India under different circumstances. According to UNHCR, Migrants are people who, by choice of their own, voluntarily move to other countries looking out for better economic opportunities. On the other hand, refugees are individuals who flee their home countries due to a well-founded fear of persecution based on political opinion, religion, language, race, or other grounds. They seek protection under international humanitarian laws because their lives are at risk in their own country

In the absence of a specific Indian law defining ' refugee', we deal the situation with following laws and policies;

a) The Foreigners Act, 1946: This is the primary legislation that governs the entry, stay, and departure of all foreigners, including those who may be refugees. Refugees are often treated as "foreigners" under this Act. Section 3 of this Act grants the Central Government wide powers to regulate foreigners, including deportation.

b) The Passport (Entry into India) Act, 1920: This Act regulates the entry of individuals into India and can be used to remove foreigners who enter without valid travel documents.

c) The Citizenship Act, 1955 (and its amendments, including the Citizenship Amendment Act, 2019) The Citizenship Act and its various amendments lay down the provisions for acquiring Indian citizenship.

d) The Constitution of India : Article 14 (Right to Equality) guarantees equality before the law and equal protection of the laws to all persons within the territory of India. Article 21 (Right to Life and Personal Liberty): is a crucial article that has been interpreted expansively by the Indian judiciary. The Supreme Court of India has held that the right to life and personal liberty under Article 21 extends to all persons, including refugees. This has been invoked to protect refugees from arbitrary detention and deportation, and to ensure humane treatment.

e) Refugee Status Determination (RSD):

India has a dual system for Refugee Status Determination:

Government-recognized groups: Historically, India has granted protection to large groups of refugees from neighbouring countries based on political and administrative decisions (e.g., Tibetans, Sri Lankan Tamils). The government directly handles their status and assistance.

UNHCR-mandated refugees: For asylum seekers from other countries (including Myanmar), the United Nations High Commissioner for Refugees (UNHCR) in India conducts RSD in line with the 1951 Convention. While the Indian government is not legally bound by UNHCR's RSD, it generally tolerates the presence of UNHCR-recognized refugees and allows them to seek protection. However, UNHCR-issued refugee cards are not always uniformly recognized by all state authorities.

India often cites national security concerns as a reason for not signing international refugee conventions and for its cautious approach to refugee matters.

f) Immigration and Foreigners Act, 2025

The Immigration and Foreigners Bill, 2025, was introduced in the Lok Sabha on March 11, 2025. The Bill received Presidential assent on April 4, 2025, becoming the Act but not notified yet. The new Act, replaces four existing, older laws:

• The Passport (Entry into India) Act, 1920
• The Registration of Foreigners Act, 1939
• The Foreigners Act, 1946
• The Immigration (Carriers' Liability) Act, 2000

Though the new Act is designed to consolidate India's laws related to the entry, stay, and exit of foreigners , does not define refugees. The specific exclusion shows that union government wanted to ignore the crisis of refugees assigning them the status 'refugees' under international laws.

It is to be noted that during the “Open Discussion on Protection of the Basic Human Rights of Refugees and Asylum Seekers in India” held by the National Human Rights Commission (NHRC) on January 20, 2022, the Commission acknowledged the necessity for a dedicated legal framework, but the progress of having one is stalled since then. Despite of being a signatory to UDHR which entails “right to seek and enjoy in other countries asylum from persecution”, the country has shown poor cooperation w.r.t upholding of principle of non-refoulment which could be seen from the recent trend in treatment of refugees who were arbitrarily deported to their place of origin where they face persecution. It is also to be noted that as per the report by the NHRC, India had shown no progress in ratifying the Convention Against Torture and Other forms of Cruel, Inhuman and Degrading Punishment or Treatment, which was signed by India on 14 October 1997.

However, UNHCR-India works for the benefit of refugees and asylum seekers by providing limited protection and assistance services. But to the dismay of the legal fraternity, during the hearing relating to the fate of Rohingya refugees, Justice Surya Kant, Justice Dipankar Datta asked “What is UNHCR?”, and the lawyers had to explain it to the bench. This incident shows the awareness on UN Institutions for refugees working under International humanitarian law, even amongst the judges of the Apex court who deal with refugee-related cases.

The absence of legislation or being a non-signatory to conventions can't be a ground to treat the issue of refugees unsympathetically, rather, it only portrays the feeble fabric of the country's law in upholding the rights of stateless people. However, on different occasions the Supreme Court reiterates that International Treaties are binding with the Judicial Process in India. The Article 51 is the one of important Constitutional provision which mandate the International law application with the domestic law of the country.

Article 51 Promotion of International Peace and Security; The state shall endeavour to –

a) promote international peace and security

b) maintain just and honourable relations between nations

c) foster respect for International Law and Treaty obligations in the dealings of organized people with one another and

d) encourage settlement of International dispute by arbitration.

Following constitutional mandates, the Supreme Court has not missed any opportunity to interpret constitutional provisions in tandem with international law when ambiguity arises regarding their application. In Kesavananda Bharati[i], Chief Justice Sikri emphasized that:"

“while referring to the provisions of the UN Charter on human rights, observed: in view of Art 51 of the directive principles, this Court must interpret the language of the Constitution, if not intractable, which is after all a municipal law, in the light of the United Nations Charter and the solemn declaration subscribed to by India.”

While India is not a signatory to the 1951 Refugee Convention, it is still obliged to adhere to the principle of non-refoulement, which forms a crucial part of customary international law. The principle of non-refoulement is one that is binding on every state, whether or not that state has ratified the 1951 Refugee Convention or its 1967 Protocol. Article 3 of the 1984 Torture Convention states that,

1. No State Party shall expel, return (refouler) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights

Nevertheless, while international legal clauses may be invoked in Indian courts, their implementation is subject to there being no existing conflict between domestic and international law and, further, no violation of the spirit of national legislation and the Indian Constitution. If any conflict does exist, it has been well established that it is the domestic law which shall prevail.

One can't deny the fact that the Indian Judiciary, from now and then have recognised and protected the rights of refugees and asylum seekers, but what is necessary is a proactive approach based on international humanitarian laws. It is a must to protect the porous borders of the nation and keep the nation's security, sovereignty and integrity as the top priority, but it is equally important that we treat refugees and asylum seekers similarly to other democratic, civilised nations.