Refugee Rights and International Humanitarian Law: An Indian Perspective

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Published On: December 19th 2025

Authored By: Zainab Syed Amjad
Keshav Memorial College of Law, OU, Hyderabad

Abstract:

Refugees are the most vulnerable people who seek refuge and protection of their stripped off rights and dignity. They are mostly survivors and victims of the war’s aftermath. This article is written with the intention of explaining the protection of refugees from an international humanitarian perspective, as well as its implications from an Indian Perspective. The most valid arguments and declarations are taken from THE 1951 CONVENTION RELATING TO THE STATUS OF REFUGEES AND ITS 1967 PROTOCOL and the INDIAN CONSTITUTION to have a comparative yet subjective overview of the overlapping perspectives.

Introduction:

The United Nations Declaration of Human Rights has clearly stated the Right to Life, Liberty, Food, Shelter, and Dignity as basic human rights for survival. But when a person is brutally shut off from accessing or being able to withhold any of these certain rights, it’s a crime against humanity. This situation occurs when a state is negligible towards the well-being of its own citizens to the extent that the citizen resorts to either escaping or fleeing to find refuge in another country. Such of person is defined as a ‘Refugee’. And the UNDHR protects the rights of such people as they are treated as a first priority by the International Humanitarian Law standards.

Refugee Rights and International Humanitarian Law: An Overview

A refugee is a vulnerable, often an eyewitness to the horrors that occurred in his/her own country. The protection, shelter, and acceptance of such victims is necessary on humanitarian grounds. And to ensure that, the United Nations initiated the ‘1951 CONVENTION relating to the Status of Refugees AND ITS 1967 PROTOCOL’ . It is the legal framework that consists of the rights, laws, and duties that provide the basis for universal refugee acceptance.
The World Wars, both I & II, had a massive impact on the world as a whole. And the United Nations was an aftermath declaration to maintain peace and prosperity. But, throughout the 20th century, these international committees and societies had laid down the framework and foundation for the convention and protection of refugee rights- the main victims of the horrendous war crimes and atrocities endangering their lives.
A refugee deserves the bare minimum enjoyed by any normal national living in a nation. The 1951 Convention establishes a groundwork and legal maxim, such that the deserved rights and life are granted to the refugee seeking asylum or refuge in another country. It also implies the resonance of international unity in understanding and providing the requested refuge to these poor individuals.
The 1951 Convention has laid its base foundation on one highlighting principle that is the NON-REFOULEMENT PRINCIPLE stated in Article 33 . This implication suggests that a refugee should not be refuted from seeking refuge in a country or, in simple words, not refused or returned to the country it was fleeing from, as it puts him/her in a dangerous situation, endangering their lives or freedom.

Refugee Rights and Laws: An Indian Perspective

India has not declared any specific rights guaranteed to people seeking refuge from other countries. This is solely because India is not a signatory member, exclusive of the 145 State Members of the ‘1951 CONVENTION relating to the Status of Refugees AND ITS 1967 PROTOCOL.’
Now, this does raise arguments and questions about the rights and laws regarding refugees. India follows the Indian Constitution and ad hoc provisions stated for foreigners to evaluate the position of refugees. It follows Articles 14, 21, and 22 of the Indian Constitution. It has ad hoc provisions such as the Foreigners Act-1946, Registration of Foreigners Act-1939, and Passport Act-1967.
India has always been in the limelight of criticism for not having an individual right or law declared for Refugees. And to a certain level, it should be under scrutiny as India has been a refuge to numerous levels of refugees from neighbouring countries such as Myanmar, Pakistan, Sri Lanka, and Bangladesh. The Rohingya Community emerging from Myanmar is a special case of the emergence of refugees from Myanmar. The minorities of Pakistan and Bangladesh are often asylum seekers in the Indian territory. Groups of people from the Middle East and Tibet have also sought refuge in India.
The indulgence of refugees is not a current cause or current trend in India. It has always dwelt on the arrival of refugees ever since the partition of 1947. Even though, a sturdy history of arrivals of refugees, India still has not established a legal framework that accepts and protects them. Sure, India has somehow managed the refugee situation using the above articles and provisions, but the management has always had loopholes or even craters. Refugees are still considered illegal immigrants without proper documentation, if seen from the proper lens of the Indian System.

Criticism: Reviewing the Indian System towards Refugees

There are multiple cases of arrests, deportation, detention, and even violation of the non-refoulement set by the international standards reported in India in the face of refugee representation.
Further on, if we take a deep dive, there are also instances of the refugees who sought refuge being treated based on the minority, group, or community of origin. This implies the fact, emphasizing the provisions of Sri Lankan and Tibetan individuals and the contradictory provisions for Bangladeshi and Pakistani individual minorities. This shows the ironic situation of India’s generosity, yet its cruelty in discriminating against the refugees.
Not only this, but there is a stark difference between a political refugee and a local refugee in occurrence of recent times. Understandably, a political figure requires higher security, but when the contrast contradicts so much that it violates basic human rights, it is very deserving of scrutiny.
For example, Sheik Hasina, the ex-Prime Minister of Bangladesh, who fled from a civil war in Dhaka on August 5th, 2024, had been protected in a high-security safe house in New Delhi, facilitated with the best of the best living facilities. In the huge, explosive contrast, the conditions of the Rohingya Community of Myanmar living in India are gruesome as it gets- deportation, violence, detention, considered ‘illegal immigrants’, and even ‘national security threat’, such that it is labelled as the Rohingya Crisis. The colossal difference sparks an even debate on how India treats refugees, not based on its ad hoc provisions, but clearly on political and commercial stances. The absence of a firm legal framework fuels the fire as the resistance to adequate refugee provisions continues to backlist India’s unequal stance on refugee acceptance.

Case Studies of Refugee Status in the Indian Judiciary:

National Human Rights Commission v. State of Arunachal Pradesh (1996) –The Chakma Refugees Case

  • Facts: The Chakma refugees (originally from East Pakistan – now Bangladesh) had settled in Arunachal Pradesh and were facing threats of eviction and violence from local elements. The State government was unwilling to protect them.
  • Issue: Is the State constitutionally bound to protect the lives and liberty of refugees in India?
  • Judgment: The Supreme Court decided that:
    1. Refugees are entitled to protection under Article 21 (Right to Life).
    2. State authorities are obliged to protect the refugees from harassment and violence.
    3. The Chakmas could not be evicted against their will or denied protection.
  • Significance: The Supreme Court recognized that refugees, although not citizens of India, enjoy fundamental human rights there.

Louis De Raedt v. Union of India (1991)

  • Facts: A Group of Belgian missionaries challenged the government’s decision to cancel their visas and expel them. They claimed their rights as persons in India were being violated.
  • Issue: Does anyone other than an Indian citizen has the right to reside under the Constitution of India?
  • Judgment: The Supreme Court said- While foreigners have no fundamental right to reside and settle in India (this right is exclusive to citizens per Article 19), they are entitled to the protection of Article 21 (life and personal liberty). This meant the government could not act arbitrarily – the process of expulsion must comply with the standard of natural justice.
  • Criticism/Significance: The case reflects the legal void in India: refugees (and potential refugees) in India do not have specific legal rights to reside in India, whereas (genuine) refugees should have their legal status recognized. At present, refugees would continue to be treated or viewed as any other person subject to Indian immigration and foreign laws. Immigration and foreigners’ law to date are general laws that belong in the realm of control and enforcement of the law (including but not limited to deportation), rather than conferring protection on refugees. The India Law recognized the right to life, but did not recognize the stronger obligations on states towards asylum seekers (and stronger rights).

Recommendations:

  • Enact a comprehensive refugee law – This will provide clarity, certainty, and legal protection for refugees beyond executive policies.
  • Codify the Principle of Non-Refoulement – Even though India is not a party to the 1951 Refugee Convention, national and humanitarian legal obligations require the government to protect individuals from being forcibly returned following the Principle of Non-Refoulement.
  • Establish a National Refugee Authority – This authority will serve as a statutory body that registers, documents, and manages refugees, ensuring transparency.
  • Distinguish refugees from migrants – In law and policy frameworks, we must ensure that genuine asylum seekers are not included with economic migrants.
  • Enhance judicial oversight – Courts must balance national security and humanitarian principles, establishing consistent jurisprudence.
  • Utilize international collaboration – To facilitate burden-sharing and coordinated responses, we can collaborate with the UNHCR and our regional partners in the SAARC and BIMSTEC contexts.
  • Support community integration – Providing refugees with access to education, healthcare, and work opportunities is a positive measure of protection and can help reduce exploitation and security risks.
  • Use technology-based documentation – Electronic or biometric ID and digital record-keeping systems can be used to keep track of refugees without compromising their dignity. This also solves the issue of sovereignty and the differentiation of refugee’s vs foreigners.
  • Engage civil society organizations and NGOs – Partnering for humanitarian assistance and rehabilitation, and advocacy is a positive measure of protection. Especially, the National Committee of Human Rights could partake in this major inclusion.
  • Adhere to International Humanitarian Law (IHL) – Adopting principles of IHL into refugee protection in India will raise its moral standing in the world.

Conclusion:

The situation regarding the approach of India to the refugee rights and international humanitarian law is dual. On one hand, India has long welcomed communities in distress, including Tibetans and Sri Lankan Tamils, in accordance with its civilizational value of hospitality. On the other hand, without a domestic refugee law, responses have been erratic, security-focused, and politically timed, as seen with the Rohingya refugees. The courts have stepped in to fill a small portion of the gap, particularly through Articles 14 and 21 of the Constitution, which guarantee the right to life and equality for all persons, but are limited without accompanying legislation. In an era of mass displacement globally, India can no longer depend on midnight colonial statutes like the Foreigners Act to deal with complex refugee issues. By codifying non-refoulement, developing an independent refugee agency, and harmonizing domestic refugee practice with international humanitarian standards, India can assure the appropriate balance between sovereignty and humanitarianism. Such a principled, legally-based approach to its refugee policies would also protect vulnerable populations while enhancing India’s reputation in the world as an accountable democracy respecting human rights. The question for India is simple: continue with patchwork, ad hoc solutions, or take the lead in the region with a systematic, fair, transparent and humane refugee solution.

References

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