Farriz Parwez*
Refugees present in India are not governed by any specific law or provision but rather mainly by an act meant to regulate the presence of foreigners and immigrants in India. Indian law as such does not make a distinction between “foreigners” and “refugees”. This is concerning because the legal implications of “foreigner”, “immigrant” and “refugee” vary widely. Foreigners are defined in a negative sense as any person who is a “non-citizen” under Section 2(f) of the Immigration and Foreigners Act, 2025. An immigrant is any person who moves or migrates from his country of origin to another country with the intent of settling there; it is pertinent to note that immigrants leave the home country of their own volition. In India, an “illegal migrant” is defined under Section (1)(b) of the Citizenship Act, 1955. A refugee, defined under Article 1A(2) of the 1951 Refugee Convention, is any person who is unable to return to their state or forced to flee therefrom as the prospect of returning presents a threat of persecution on grounds of race, religion, nationality, political opinions or membership of a social grouping. As such, since India is not a signatory to the 1951 Convention or its1967 Protocol, this definition is not legally binding upon India.
However, despite not having a specific law governing refugees, India has historically and largely done justice to its two largest refugee populations, the Sri Lankans and Tibetans. However, with respect to other groups such as those from Myanmar, China and other states, India’s record falters. Historically, refugee policy in India has been governed through a piecemeal approach, which is largely executive-centric. According to the National Human Rights Commission, Sri Lankan and Tibetan groups can register themselves with the Home Ministry directly; however, all groups except the aforesaid have to register themselves with the UNHRC Office in Delhi through its Refugee Status Determination (RSD) mechanism. As such, there exists a dual system wherein certain groups are accorded refugee status by the domestic government while others are determined as such by an international body. Importantly, the legal status of the latter’s refugee recognition occupies a complex legal space as it is not recognised explicitly under domestic law and may be said to possess persuasive value in courts, at best.
Under international obligations, such as the Bangkok Principles, 1966, India is committed to non-refoulement. However, such a commitment is not often demonstrated in its actions. The apex court has not linked Article 21 to non-refoulement, despite multiple high courts’ rulings in favour of it. The apex court has reaffirmed the central government’s absolute right to deport foreigners, holding that non-refoulement is not an absolute right available to refugees under Indian law. The court also distinguished that while Article 21 applies to foreigners, it does not guarantee a right against deportation or to reside indefinitely in Indian territory.
The case of Mohammad Salimullah v. Union of India highlights the legal zone UNHCR refugee recognition occupies in domestic law, as the court refused to stay the petitioner’s deportation notwithstanding their holding of a UNHCR refugee card. The grounds for this were that their deportation was in the greater domestic interest. The court, however, ruled that deportation must only be done in accordance with the prescribed procedure.
However, it can be argued that India’s policy on refugees is also in violation of its own Article 21, as it is largely arbitrary, with no publicly available prescribed procedure for determining refugee status and/or deportation of said refugees. Furthermore, the return of refugees who face certain persecution in their state stands as a violation of non-refoulement and, moreover, the right to life with dignity, enshrined in Article 21. As such, India needs to address this lacuna within its legal landscape, which allows the state to violate the rights of individuals due to the absence of a specific law on refugees.
Furthermore, the approach of the state is an unequal one, in arguable violation of Article 14’s guarantee of equal treatment under the law, wherein Tibetan and Sri Lankan refugees receive structured state support for financial inclusion; other groups from Afghanistan, China and Myanmar do not receive any such support or recognition, remaining economically and socially excluded from India’s landscape.
Indian courts have not recognised the non-refoulement; as such, it occupies a doubtful legal space wherein India is obligated under international law but, at the same time, under domestic jurisprudence such an obligation is not explicitly recognised.
According to the NHRC, there exist discrepancies with regard to issuance of formal documentation to Tibetan refugees. Moreover, the Home Ministry in 2018 stated that “those having UNHCR cards are also not entitled to an Aadhaar card in India and instructions have been issued to the UIDAI for not issuing the card to illegal immigrants”. As such, Africans, Rohingyas and Afghans possessing UNHCR documentation are prohibited from holding an Aadhaar card, which essentially excludes them from the formal sector and economic landscape of the country. Lastly, Indian institutions, including the NHRC itself, have expressed support for a refugee-centric law to address these lacunae and form a consolidated law for refugees in India.
The latest Immigration and Foreigners Act, 2025 and its accompanying orders, especially the Immigration and Foreigners (Exemption) Order, 2025 solidified exemptions for certain groups of refugees, however, at the same time it reinforced the earlier stance of the Home Ministry wherein religious minorities from Bangladesh, Afghanistan and Pakistan could not be deported for lack of documentation and/or expired visas if they had immigrated due to religious persecution or fear thereof. The Citizenship (Amendment) Act, 2019 and it accompany rules, notified in 2024, allow for fast-tracked citizenship for Parsis, Hindus, Christians, Sikhs, Buddhists and Jains from the aforesaid three states.
While this is a positive step in some ways, it also highlights the political convenience of India’s policy of offering asylum/refugee status. The CAA has been criticised by Bhatia as failing the “intelligible differentia” test of Article 14. Further, the CAA and the 2025 Rules both notably exclude minorities such as the Rohingyas and Uyghurs from their text, as such according no protection to both future populations of such denomination who may enter India or the present refugee population belonging to these denominations. Moreover, the CAA and the 2025 Rules do not include any individuals originating from Myanmar and Iraq in their text. These exclusions in both the statutes are in spite of the law stating that it seeks to offer protection to persons who have been subject to religious persecution due to their minority status in the aforesaid three nations. This aspect ignores that Eelam Tamils and Rohingyas have been persecuted on grounds of being a religious minority in their respective states, which share a border with India.
As such, while history is evidence that India has been kind to its two biggest refugee populations, Sri Lankan Tamils and Tibetans, other groupings such as Rohingya, Chakma, Uyghur, Chin and other West Asian individuals have not been extended the same kindness. The governments have been able to take such a stance due to the absence of a consolidated law on refugees, as such deciding refugee status on a case-by-case basis through executive orders.
In order to remedy the current situation and ensure that any deportations and decisions taken are in accordance with due process of law and not arbitrary in nature, it is advisable to develop a specific law on refugees in India. This could be developed independent of the 1951 Convention and 1967 Protocol, as it has been recognised that India is not a party to the same due to policy considerations. However, abstention from signing international documents cannot be a reason for ignorance towards the development of a sound system to address a major humanitarian concern.
Firstly, and most importantly, “refugee” as a term must be differentiated from “foreigner” and “migrant”. This would differentiate and clarify the legal position of a refugee from an illegal immigrant or an unauthorised foreigner. Currently, the law finds no difference between a person escaping from persecution and one being forced to flee and a person who is merely illegally in the country without any fear of persecution in his country of origin. The refugee can be anyone fleeing from persecution due to race, religion, nationality, political opinion or membership of a social grouping. Further, in order to address security concerns regarding militancy, individuals can be subject to prior screening, and anyone found guilty of a charge of crime against peace, humanity and terror shall not be accorded the status of a refugee.
In order for such a system to be effective, there needs to be a proper system that should be put in place to register and accord refugee status. Presently, a dual system, as elucidated earlier, operates in India, wherein certain refugees can register themselves with the domestic government while others can only register themselves with UNHCR. Further, the status accorded by the UNHCR holds little legal relevance in domestic courts, as seen in the Mohammad Salimullah case. As such, the idea of refugee status determination needs to be consolidated under one authority. Herein, there are two options: India can either centralise refugee status determination by allowing the Ministry of Home Affairs to consider and accord refugee status to individuals. On the other hand, India can establish a Commission for Refugee Status Determination, in order to accord independence to the process and avoid a conflict that arises by allowing the same executive which handles security policy to handle refugee status determination.
Further, the principle of non-refoulement should be codified, while recognising that security concerns may, at times, override humanitarian concerns. As such, this exclusion clause to non-refoulement can be modelled after Article 1(F) of the 1951 Convention, which allows for exclusion of individuals who have committed serious crimes against peace and/or humanity or have been a part of non-political crimes. This can be expanded to include individuals who have been residing in India and have been convicted of a crime during the period of their stay, prior to the grant of refugee status.
Furthermore, in line with Article 3 of the 1951 Convention and in order to address concerns arising from the CAA and 2025 Rules, a non-discrimination clause should be integrated which disallows non-grant of refugee status on grounds solely related to race, religion, caste and/or membership of a certain social group. As such, ensuring that Article 14 and 21 are respected.
The rights of those to whom refugee status has been granted must be delineated in a holistic manner. In Mohammad Salimullah v. Union of India, it was affirmed that Article 21 applies to non-citizens, as such, according all protections under the right to life and personal liberty to all individuals. As such, refugees must be able to live a life with dignity and access to bare necessities, as held in Maneka Gandhi. To such an extent, the refugees must be allowed access to employment, even in the absence of an LTV. Under Article 21A, education is a fundamental right up to 14 years. Thus, all refugees and children thereof must be accorded this right under Article 21A.
Furthermore, in 1996 the apex court held that Article 14 and 21 apply to non-citizens as well. As such, all refugees must be treated equally before the law unless they can satisfy the test of reasonable classification. This obligates the State to treat all refugee groups in an equal manner, unless an intelligible differentia exists between them. More importantly, Article 14, through its interpretation in E.P Royyapa and Maneka Gandhi by the apex court, is also a guarantee against arbitrariness. This obligates the State to ensure that all procedures with respect to refugees must not be arbitrary.
On the issue of deportation, the principle of non-refoulement must be adhered to with certain exceptions as elucidated earlier. Furthermore, any procedure prescribed for deportation of refugees must be just, fair and reasonable under Article 21. In cases of deportation, a Refugee Tribunal must be established so that both parties can be heard and to ensure that the executive pursuing deportation of the refugee is not involved in decision-making of the appeal. An appellate structure must be established in order to ensure that the executive is held accountable in all cases of deportation, if necessary.
Indian jurisprudence has reaffirmed that protections under Article 21 and 14 extend to non-citizens; these protections also include the right to be heard, equal treatment before law, the right to a life with dignity and access to basic necessities. Furthermore, India is bound by non-refoulement principles under international obligations through the Bangkok Principles, 1966. These protections and access thereto need to be solidified through codification of the law relating to refugees, such that protections available to them are not violated due to the non-availability of mechanisms to actualise them.
* The author is a is a Second-Year Law student at Symbiosis Law School, Pune. He may be contacted at farrizp@gmail.com.
This blog reflects the personal views of the author and does not necessarily represent the views of The Policy Chronicle.