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India Needs a Refugee Law

The Indian state has treated a few refugee communities reasonably well but has not formulated a well-defined refugee law and judicial interventions have been case specific. The absence of clearly defined statutory standards subjects refugees and asylum seekers to inconsistent and arbitrary government policies.

The detention last year of three Burmese nationals1 who entered Indian territory to escape the military crackdown in their country under the provisions of the Foreigners Act 1946 yet again highlights the ad hoc nature of refugee law and practice in India and its failure to define “refugees” as a class of persons and their status, rights and entitlements.
In the popular understanding, any person who has left his or her home fearing for life and liberty or due to lack of subsistence is regarded as a refugee [Bose 2000]. However, international law defines refugees, subject to minor variations across different illegal instruments, as persons who have been forced to flee the country of their origin and are unable or unwilling to return there due to the fear of persecution on account of their race, religion, ethnicity, political beliefs, etc.2 Refugees form a special class of persons different from other migrants or aliens – legal or illegal who voluntarily leave their home country for a host of reasons [Sircar 2006].
India is one of the most prominent refugee receiving countries in the world. According to Refugee International estimates, India hosts around 3,30,000 refugees and its refugee population includes as many as 1,43,000 Sri Lankans, 1,10,000 Tibetans, an estimated 52,000 Chin and other minorities from Burma, 15,000 from Bhutan, about 11,400 from Afghanistan, an unspecified but massive number of Hindus from Bangladesh, a number of Nepalese who fled the Maoist insurgency, and more than 400 from other countries [Benoit 2004].
On the face of it, the Indian state has been very flexible in its treatment of some of the refugee communities [Chaudhary 2004]. Yet it has no national refugee law specifying the rights and governing the treatment of refugees [Anantachari 2001]. As a result, different refugee communities have been subjected to varying standards of protection. The debate on protection of refugees has become more intractable due to the fact that it has been conflated with the highly charged public discourse on the alleged influx of “illegal migrants” into India3 as most commentators on illegal migrants usually do not distinguish between migrants and refugees and paint all foreigners with the same brush.
This paper discusses the basic contours of treatment of refugees under Indian law and administrative practice and examines the impact of the current ad hoc nature of the legal regime that regulates refugees in India. It discusses India’s normative commitment to refugee protection, the judicial endeavours to broad base them and the administrative practices that govern the life of a refugee. Based on this discussion, it seeks to present an argument for adoption of separate legal frame­work that outlines the legal status of refugees in India.

International Commitments

The international obligations to protect refugees, including non-refoulement, non-expulsion or non-extradition and the minimum standard of treatment are traced in customary international law as well as in international treaty law in the form of United Nation’s Convention relating to the Status of Refugees, 1951 along with the Protocol of 1967. India has not signed the 1951 Convention or the 1967 Protocol. During the discussion on the adoption of the convention, Indian representatives averred that India was not convinced that there was a need to set up an elaborate international organisation whose sole responsibility would be to give refugees legal protection.4 After the adoption of the convention, there has been no official response from the government of India on its refusal to ratify the con­vention except for a statement by the external affairs minister in Parliament which indicated that the government was studying the implications of ratifying it.5
Several observers have argued that the reason for India’s refusal to sign the convention was that it was very Euro-centric and India viewed it and the United Nations High Commission for Refugees (UNHCR) as instruments of the cold war [Sen 2003]. Interestingly, the Indian government’s cold war influenced opposition to UNHCR has not prevented it from seeking the assistance of the organisation from time to time.6
It must be noted that India’s refusal to join the Refugee Convention of 1951 does not absolve it from basic commitment to humanitarian protection of refugees. The right of refugees to non-refoulement has been recognised, even if with some reservations, as a part of customary inter­national law [Chimni 2007]. Thus, respect for this right is incumbent on the Indian government as the Constitution of India mentions, as one of the directive principles of state policy, that “the state [India] shall endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another.”7 It is pertinent to note that it is now well-established that the phrase, “international law” represents customary international law (ibid).
In addition, India has signed numerous human rights instruments that articulate a commitment to protection of refugees. India is party to the Universal Declaration on Human Rights (UDHR) 1948 and has joined the International Convention on Civil and Political Rights (ICCPR-1966) and the International Convention on Economic, Social and Cultural Rights (ICESCR-1966) since 1979. It is also a signatory to the Convention on the Elimination of all forms of Racial Discrimination (CERD-1965) and the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Torture Convention-1984).
Article 14-A of the UDHR states: “Everyone has the right to seek and enjoy in other countries asylum from persecution”.
Article 13 of the ICCPR-1966 states: “An alien lawfully in the territory of a state party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.”
Article 3 of the Torture Convention – 1984 states: “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”. Reading together these provisions indicates that India is obligated to secure to refugees a right to status determination, a due process for such determination and a right against return to the country of origin.


Constitutional Rights

The Indian Constitution guarantees certain fundamental freedoms to all persons and not just to Indian citizens. Hence, persons who flee their country of origin and seek asylum in India have the protection of those fundamental rights, independent of the need for any recognition by the government of India or by any other international body like the UNHCR.
The fundamental rights that all persons, including asylum-seekers and refugees enjoy under the Constitution include:
Right to Equality before Law (Article 14): The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. This right entails that there shall not be any discrimination between people or classes of people without reasonable classification by the legislature between different classes thus discriminated and the basis of this discrimination should have nexus with the objective classification.8
Protection of Life and Liberty (Article 21): No person shall be deprived of his life or personal liberty except according to due procedure established by law. In Louis De Raedt vs Union of India9 and State of Arunachal Pradesh vs Khudiram Chakma10 case, the Supreme Court (SC) has held that foreigners are also entitled to the prote­ction of article 21 of the Constitution. The scope and ambit of this provision has been significantly expanded. While till 1978, article 21 was construed narrowly as a mere guarantee against executive action unsupported by law, it is now well-established by a series of decisions starting from Maneka Gandhi vs Union of India11 that it imposes a limitation upon law insofar as that the procedure stipulated therein must be just, fair and reasonable. Therefore in the specific context of refugee protection, it means that while earlier, the courts merely had to consider whether the decision to deport complied with the procedure laid down in the Foreigners Act, it had now to consider whether the procedure was fair, just and reasonable.
Right to Fair Trial: It has been recognised by the Supreme Court as a component of the right to protection of life and liberty. This also entails the right to be produced before a magistrate within 24-hours of arrest. These rights put a refuge and a citizen of India on the same pedestal as far as liberty is concerned.
Practice and Propagate Own Religion: Article 25 provides that subject to public order, morality and health and other fundamental rights, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate their religion.

Judicial Expansion of Rights

The judiciary has played a very important role in protecting refugees. Court orders have filled legislative gaps and in many cases have provided humanitarian protection to refugees [Parikh 2001]. Moreover, Indian courts have allowed refugees and intervening non- govern­mental organisations (NGOs) to file cases before them. Furthermore, the courts have interpreted provisions of the Constitution, existing laws and, in the absence of municipal law, provisions of international law to offer protection to refugees and asylum seekers.12
Indian courts have decided in a number of cases that the constitutional protection of life and liberty must be provided to refugees. In the earlier mentioned cases of Luis de Readt vs Union of India and State of Arunachal Pradesh vs Khudiram Chakma, the Supreme Court held that article 21 of the Constitution, which protects the life and liberty of Indian citizens, is extended to all, including aliens and the state is bound to protect the life and liberty of every human being.
In the case of National Human Rights Commission vs State of Arunachal Pradesh13 the SC restrained the forcible expulsion of Chakma refugees from the state. In its interim order on November 2, 1995, it directed the state government to ensure that the Chakmas situated in its territory are not ousted by any coercive action not in accordance with the law.14 The court directed the state government to ensure that the life and personal liberty of each and every Chakma residing within the state should be protected. The court also decided that the Chakmas shall not be evicted from their homes except in accordance with the law and the quit notices and ultimatums given by other groups should be dealt with in accordance with the law, and pending the decision on the citizenship applications of the refugees, they shall not be evicted. In a number of cases, Indian courts have protected the rights of refugees to non- refoulement15 and have protected them where there are substantial grounds to believe that their life would be in danger by allowing them to be granted refugee status by the UNHCR [Vijaykumar 2000]. In Zothansangpuri vs State of Manipur,16 the Imphal bench of the Gauhati High Court ruled that refugees have the right not to be deported if their life was in danger. In Dr Malvika Karlekar vs Union of India,17 the Supreme Court held that authorities should consider whether refugee status should be granted; and until this decision was made, the petitioner should not be deported.18 In Bogyi vs Union of India19, the Gauhati High Court not only ordered the temporary release of a Burmese man from detention but also approved his stay for two months so that he could apply to UNHCR for refugee status.
The Gauhati High Court issued a landmark ruling in the case of U Myat Kayew and Nayzan vs State of Manipur.20 It involved eight Burmese, aged 12 to 58, who were detained in the Manipur central jail in Imphal for illegal entry. These pro-democracy activists in Burma had voluntarily surrendered to the Indian authorities and were taken into custody. They were charged under section 14 of the Foreigners Act for illegal entry into India. They filed a petition for their release, however, to enable them to seek refugee status with UNHCR in New Delhi. The Gauhati High Court, under article 21, ruled that asylum seekers who enter India, even if illegally, should be permitted to approach the office of the UN high commissioner to seek refugee status.
In addition to the courts, the National Human Rights Commission has also functioned very vigilantly and effectively as a watchdog for the protection of refugees. The commission has approached the Supreme Court under article 32 of the Constitution and obtained protection of the Chakma refugees from the Chittagong Hills tribal areas of Bangladesh when their life and security were threatened by local politicians and youth leaders in the state of Arunachal Pradesh. Relief was granted by the SC on the basis of the rights of aliens under articles 14 and 21. The judiciary has also upheld a refugee’s right to leave the country. In Nuang Maung Mye Nyant vs government of India21 and Shar Aung vs government of India,22 the courts ruled that even those refugees against whom cases were pending for illegal entry should be provided exit permits to enable them to leave the country for third country resettlement.23 However, judicial interventions, by definition, are case-specific and as a result, every case of innovation has been matched by parallel tales of indifference and non-interference [Dhavan 2003]. Thus, in spite of some embryonic exposition of procedural rights for refugees, there has been no specific recognition of substantive rights [Chaudhary 2004].
Thus, it follows from the aforesaid discussion that the legal framework for protection of refugees in India has been characterised by an eclectic interplay of administrative ad hocism and judicial assertion of constitutional rights. The Constitution provides certain funda­mental rights to all persons and thus, they inhere in refugees as well. These consti­tutional precepts have also been supplemented by expansive judicial interpretation. However, as the subsequent part of this paper argues, the enjoyment of these rights has remained a pipe dream for the refugee community due to inconsistent and arbitrary government policies dictated more by political exigencies than by legal imperatives.

Administrative Practice

As discussed earlier, in spite of the emergent notion of refugee rights in India, legal protection has remained a chimera for most of the refugee communities residing in India with their very survival being at stake [Thames 2007]. Along with the tentative and imperfect judicial response, the other major cause for this distressing repudiation of judicial and constitutional mandate is the conspicuous absence of any defined statutory framework or even a policy on refugees. Thus there have been no defined standards for implementing the judicial and constitutional directives on refugee protection. India has chosen to deal with refugees at political and administrative levels. It has therefore only ad hoc mechanisms in place to deal with their status and problems and there is no separate law defining refugees and their entitlements. The legal status of the refugees is thus no different from those ordinary aliens whose presence is regulated essentially by the Foreigners Act of 1946.
Hence, the distinction between refugees and asylum seekers, on one hand and migrants and other aliens, on the other have been conflated [Dhavan 2003]. Refugees and asylum seekers are externally displaced persons forced out or forced to leave their countries and who cannot return because they have a well- founded fear of persecution.24 They are not bereft of ideas of social and economic betterment – an expectation to which they are entitled like anyone else. But, they are distinct from migrants who come to India voluntarily seeking a better life.
The Foreigners Act, 1946 deals with the matters of “entry of foreigners in India, their presence therein and their departure therefrom”. Paragraph 3(1) of the Foreigners Order, 194825 lays down the power to grant or refuse permission to a foreigner to enter India. It stipulates a general obligation that no foreigner should enter India without the authorisation of the authority having jurisdiction over such entry points. It is mainly intended to deal with illegal entrants and infiltrators. In case of persons who do not fulfil certain conditions of entry, sub-para 2 of the para 3 of the order authorises the civil authority to refuse the leave to enter India. The main condition is that unless exempted, every foreigner should be in possession of a valid passport or visa to enter India. If refugees contravene any of these provisions they are liable to prose­cution and thereby to the deportation proceedings just like any other foreigner or illegal alien.
Thus, there is no clearly defined category of refugees under Indian law. Foreigners generally are a classified category which can be further sub-divided as per the Foreigners Act regime, but no such sub-classification has been made for refugees. As such, refugees, like other foreigners, are generally subject to deportation with minimal due process.
Therefore, the status of refugees is presently determined by the extent of protection they receive from the government of India which in turn has been influenced more by political equations than by humanitarian or legal obligations.26 There are certain refugee communities like Tamil refugees from Sri Lanka, Jumma and Chakma refugees and Tibetan refugees who have received (at least normatively) full protection according to the standards set by the government of India.27 Apart from security screening, no formal status-determination procedures exist for these groups of refugees and there is a prima facie recognition. Asylum policies have been generous as far as these groups are concerned. They are accorded legal stay indefinitely through executive discretion exercised under the Foreigners Act.
There are few other communities like the Burmese, Afghan, Iranian, Somalian, Sudanese and Iraqi refugees whose presence in Indian territory is acknow­ledged only by the UNHCR and there is no protection from the government of India except those under the principle of non-refoulement. The home office has created a flexible (though unpredictable) procedure to enable resettlement. It has entered into an arrangement with the UNHCR under which the UNHCR determines the status of a refugee and gives a certificate to that effect. But such certification is only persuasive and provides no protection. They remain as foreigners and on the basis of UNHCR refugee certificates are issued temporary residence-permits under the Foreigners Act pending durable solutions. However, the condition of such communities is precarious. They do not have any work permit and are not able to eke out a subsistence for themselves. A small number of refugees who have been able to gain employment in the informal sector are subjected to persistent harassment and abuse from their employers and the police. The subsistence allowance that the UNHCR provides is meagre and entirely inadequate for survival. To make their survival more difficult, the UNHCR has arbitrarily started terminating payment of this subsistence allowance.28
There are other refugees like the Chin refugees in Mizoram who have entered India and have assimilated into local communities or have not been recognised by the UNHCR. Neither the Indian government nor the UNHCR acknowledges their presence. The government has also denied UNHCR access to the seven states of the north-east including Mizoram where the vast majority of Burmese refugees are sheltered. Thus, these refugees receive no official acknowledgement whatsoever. As such, they have been consistently subjected to harassment and periodic eviction drives by sections of civil society in Mizoram and other parts of the north-east.29


The above discussion clearly establishes that Indian law and practice provides a distorted and incomplete protection to refugees. Indian law even fails to recognise refugees as a distinct category of persons and treats them at par with all other foreigners. Thus, it fails to appreciate the special circumstances under which a refugee leaves his or her country of origin and the consequent incongruity in applying the requirements of valid travel that the general Foreigners Act regime mandates. The absence of a special law on protection, rights and entitlements of refugees has resulted in the denial of basic protection to the large number of refugees. This denial runs against the spirit of India’s human rights commitment under the international law and its own Constitution.
As discussed, the absence of a special legal regime on the status of refugees does not however mean that no protection and assistance is offered to refugees. The judiciary and allied institutions like the NHRC have tried to respond to the refugee question with innovative judicial interpretation to establish several procedural rights and in many cases, have prevented forced deportation. However, such interventions have been limited to specific cases and the judicial pronouncements have not been implemented across a wide spectrum. This has been occasioned due to the absence of a definite refugee law. This absence has certainly meant that arbitrary executive action and acts of discrimination are not easily remedied. This further means that the decision to treat a person or a group of persons as refugees or not is taken on the merits and circumstances of the cases coming before it as they are overshadowed by political considerations.
The absence of a national law on the status of refugees has also meant that refugees are dependent on the benevolence of the state rather than on a rights regime to reconstruct their lives with dignity. Thus, the refugees are left to the mercy of the state and have no recourse against systemic violations of its legal obligations by the state. Therefore, a just, fair and humane response to the question of refugees in India, in conformity with India’s international and constitutional obligations requires, as an immediate imperative, adoption of a definite statutory regime that clearly defines refugees as a distinct class of persons, spells out a fair procedure for determination of the status of refugees and outlines a due process for refugee protection in consonance with the right to non-refoulement and the right to a dignified life.


1 Three Myanmar Nationals Held for Illegally Entering Country, Free Imphal Press, October 7, 2007.
2 The United Nations Convention Relating to the Status of Refugees, 1951 defines refugees as persons 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, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” United Nations Convention Relating to the Status of Refugees, Article 1A (2), July 28, 1951, b/o_c_ref.htm
The OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, 1969, extended the definition in the 1951 Refugee Convention to include in the term ‘refugee’ also every person who, owing to external aggression, occupation, foreign domination, or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality. OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, Art 1 (1), September 10, 1969,
The Cartagena Declaration on Refugees of November, 1984 laid down that the definition of refugee could not only incorporate the elements contained in 1951 Convention and the 1967 Protocol (or the 1969 OAU Convention and General Assembly resolutions), but also cover persons who have fled their country because their lives, their safety or their liberty were threatened by a massive violation of human rights. Cartagena Declaration on Refugees, November 22, 1984, http:// www. asylumlaw. org/docs/inter­national/Central America.PDF
3 Sharp opposition to illegal presence of foreigners has come from several quarters in India. Security experts have raised the spectre of illegal migrants and foreigners compromising national security. See Interview of S K Sinha, ‘National Security Is Being Seriously Threatened’, July 26, 2000, (last visited May 6, 2007). Also see, Anand Kumar, ‘Assam: Electioneering Takes a Toll on National Security’ available at p://www. Cpapers18%5Cpaper1711.html (last visited April 30, 2007).
Along with these think-tanks, several communal and regional political parties have persistently spoken out against the possibility of demographic change in the border areas due to the infiltration by “Bangladeshi refugees”. See R Upadhyay, Illegal Immigrants in West Bengal: Legalised Voters? (March 2006), (last visited April 14, 2007).
These quarters felt vindicated by the recent judgment of the Supreme Court of India in Sarabananda Sonowal vs Union of India [(2005) 5 SCC 665] where equated the influx of “foreig­ners” with invasion, and mandated the central government to take necessary steps under article 355. The court also struck down Illegal Migrants (Detection Tribunal) Act as unconstitutional.
4 Summary Records of the Third Committee meeting 259 (November 10, 1949), GAOR, Sixth Session, p 8143, in South Asia Human Rights Documentation Centre (SAHRDC), ‘Refugee Protection in India’ (1997), (last visited May 2 , 2007).
5 India, Lok Sabha Debates, Vol XVII, May 7, 1986, col 32, cited in South Asia Human Rights Documentation Centre (SAHRDC), ‘Refugee Protection in India’, id.
6 The UNHCR assisted Tibetan refugees through the decade of the 1960s. Its office in India was discontinued in 1975. But following the influx of Iranian and Afghan refugees in 1980, it was re-established under the aegis of UNDP Since then, UNHCR has assisted in status determination of refugees.
7 Article 51 (c).
8 A S Iyer vs Baiaasubramaniam AIR 1980 SC 452.
9 (1991) 3 SCC 554.
10 (1994) Supp (1) SCC 615.
11 AIR 1978 SC 597.
12 A counter to this generally accepted proposition has been put forth by Omar N Chaudhary who argues that the historical development and sub-text of the decisions expanding Article 21 indicate that substantive rights are not available to aliens. He has also drawn attention to the implicit premise of the Supreme Court decision in the recent case of Railway Board vs Das [(2002) 2 SCC 465] where the rationale of the Court in upholding the fundamental right of a Bangladeshi citizen under article 21 seems to suggest that such rights can be denied to “aliens” if there is a compelling state interest. See Omar N Chaudhary, supra n.
13 (1996) 1 SCC 742.
14 Civil W P No 720; (1996) 1 SCC 295.
15 P Nendumaran vs Union of India, W P No 12298 and 12313 of 1992, Gurunathan vs Union of India WP 6708 and 79168 of 1992, A C Mohd Siddique vs Government of India and others 1998(47)DRJ(DB), Syed Ata Mohammadi vs Union of India Criminal Writ Petition no 7504/1994 at the Bombay High Court and Maiwand’s Trust of Afghan Human Freedom vs State of Punjab Crl WP No 125 and 126 of 1986.
16 Civil Rule No 981 of 1989.
17 (Criminal) 583 of 1992 in writ petition.
18 Also see N D Pancholi vs State of Punjab, Supreme Court (W P No 243/88).
19 Civil Rule No 981 of 1989.
20 Civil Rule No 516 of 1991.
21 CWP No 5120/94.
22 WP No 110 of 1998.
23 Union of India vs Mauns Mauns.
24 There are a host of definition of the term “refugees” provided by numerous international legal instruments like the United Nations Convention Relating to Rights of Refugees, 1951, Cartegena Declaration, OAU Convention, etc, that speak of “inabi­lity or unwillingness to return due to the fear of persecution”.
25 Paragraph 3 (1) of Foreigners Order states:
“No foreigner shall enter India –
(a) otherwise than at such port or other place of entry on the borders of India as a Registration Officer having Jurisdiction at that port or place may appoint in this behalf; either for foreigners generally or any specified class or description of foreigners, or
(b) without leave of the civil authorities having jurisdiction at such port or place.”
26 South Asia Human Rights Documentation Centre (SAHRDC), supra n 8.
27 In practice, there have been persistent allegations of violation of fundamental rights and systemic harassment of these refugee communities, particularly Tamil refugees who were detained in camps and subjected to crippling security restrictions.
28 Several refugee organisations and NGOs have also complained of the bureaucratic and non- transparent functioning of UNHCR that goes against the humanitarian objectives of the organisation.
29 See Nava Thakuria, ‘Talking About the Plight of Refugees in Mizoram’, October 2004, (last visited July 15, 2007).


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Bose, Tapan K (2000): ‘Protection of Refugees in South Asia: Need for Legal Framework’, South Asia Forum for Human Rights, Kathmandu.
Chaudhary, Omar N (2004): ‘Turning Back: An Assessment of Non-Refoulement under Indian Law’, Economic & Political Weekly, 39 (24), p 3257.
Chimni, B S (2007): ‘Development and Migration: Conspectus on International Law’, available at (last visited May 3, 2007).
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