Published On: December 8th 2025
Authored By: Sameera Shetty
School of Law, Christ University
Introduction
India’s historical and contemporary engagement with refugee crises presents a compelling paradox. As one of the world’s largest host countries for displaced populations, India’s actions have often been lauded on humanitarian grounds. Yet, it remains a non-signatory to the 1951 Refugee Convention and its 1967 Protocol, a defining feature that grants it the flexibility to manage refugee flows on a discretionary, case-by-case basis rather than through binding international commitments.[1]
International Humanitarian Law (“IHL”) and International Refugee Law (“IRL”) are complementary legal frameworks that, while distinct, share the common goal of protecting the lives and dignity of individuals.3 IHL establishes rules for the conduct of armed conflicts, protecting persons not directly participating in hostilities.[2] A person fleeing armed conflict may not always meet the narrow definition of a refugee under the 1951 Convention, which requires a “well-founded fear of being persecuted” for specific reasons.[3] However, violations of IHL, such as indiscriminate attacks and the destruction of subsistence, are often the direct cause of the mass displacement that forces people to seek refuge.[4]
Internal Armed Conflict and the Plight of the Displaced
Counter-Insurgency Operations in Northeast India
The volatile Northeast India serve as a critical case study, where cross-border conflicts have led to significant refugee flows. The 2021 military coup in Myanmar, for instance, prompted thousands of Chin people to flee into the Indian state of Mizoram.[5] This influx is notable for the response it elicited from the local population. The ethnic Mizo majority in Mizoram shares deep kinship, language, and Christian faith ties with the Chin people of Myanmar, leading to a strong, grassroots humanitarian response.[6] The Mizoram state government has openly defied New Delhi by offering refuge, access to healthcare, education, and employment to the arrivals, while local voluntary associations, churches, and individuals have mobilized to provide food and shelter.[7]
This localized, kin-based humanitarianism stands in stark contrast to the central government’s policy, which has been hostile and restrictive. New Delhi has classified the Chin people as “illegal immigrants” and has, in some border states like Manipur, arrested Myanmar nationals.[8] This bifurcated response highlights a fundamental tension in India’s approach: while the central government often prioritizes border security and a hardline stance, local and state-level actors, influenced by ethnic and cultural affinities, provide a crucial humanitarian backstop.[9] However, this local-driven aid is under increasing strain due to shrinking resources and a lack of official recognition, leaving refugees in a precarious legal and logistical situation.[10]
A similar, yet more complex, narrative is found in the case of the Chakma and Hajong communities. These groups, who are Buddhist and Hindu respectively, fled religious persecution and displacement caused by the Kaptai dam project in East Pakistan (now Bangladesh) in the 1960s.[11] The central government of India resettled them in the North East Frontier Agency (NEFA), now Arunachal Pradesh, with a clear intention of permanent settlement.[12] Despite this official intent and the fact that the overwhelming majority of these individuals were born in India and thus qualify for citizenship by birth, they have been denied citizenship and land rights for decades.[13] This prolonged legal limbo has made them vulnerable to populist movements led by groups like the All Arunachal Pradesh Students’ Union (AAPSU), which fears demographic changes and influence on electoral outcomes.[14] The Supreme Court has repeatedly directed the government to process their citizenship applications and protect them from violence, but these directives have been stalled by political opposition.[15] This case illustrates how even a central government-sanctioned resettlement plan can be undermined by local xenophobia and a failure to implement judicial orders, exposing a significant gap in a consistent national policy.
Finally, the Armed Forces Special Powers Act (AFSPA), a law operative in “disturbed areas” of the Northeast and Jammu & Kashmir, exacerbates the climate of instability. AFSPA grants security forces wide powers to shoot to kill and arrest without warrant, while providing them with impunity from prosecution without central government permission.[16] This legislative framework, which has been linked to grave human rights abuses and extrajudicial killings, can be a direct driver of displacement and a source of pervasive fear for both host communities and those seeking refuge.[17] The existence of such a law highlights the dominance of a security-centric mindset that can override humanitarian considerations and contribute to the very conflicts that generate displacement.
The Role of Custom and Constitution
- The Applicability of IHL
The legal foundation for the protection of civilians in internal conflicts rests on Common Article 3 of the Geneva Conventions. This provision, often referred to as a “convention in miniature,” applies to non-international armed conflicts and protects persons not actively participating in hostilities from violence, murder, mutilation, and torture.[18] While India is a party to the ICCPR, which prohibits torture and extrajudicial killings even during national emergencies, the application of these principles in its domestic conflicts remains a contentious issue.[19] The existence of laws like AFSPA, which grant security forces wide-ranging powers and impunity, creates a clear tension between domestic legal frameworks and international human rights and humanitarian obligations.[20] The judiciary has attempted to impose some checks on these powers, but the conflict between state security and humanitarian principles persists.
- Constitutionalism and the Doctrine of Non-Refoulement
In the absence of a comprehensive refugee law, the Indian judiciary has consistently emerged as a crucial backstop, filling legislative gaps by invoking constitutional principles to protect refugees.[21] This judicial activism is a defining feature of India’s refugee protection regime. The courts have repeatedly invoked Articles 14 and 21 of the Indian Constitution, which guarantee the right to equality and the right to life and liberty to “all persons,” including refugees.[22] By doing so, the judiciary has recognized refugees as a distinct class of “foreigners” deserving of certain basic constitutional protections.[23]
The doctrine of non-refoulement, which prohibits the return of individuals to a country where they face irreparable harm, is a key principle upheld by the courts. Recognized as a part of customary international law, this principle is considered binding on all states, regardless of their non-signatory status to the Refugee Convention.[24] Indian courts have repeatedly cited this principle to prevent the deportation of asylum seekers and have, in some instances, allowed detainees with prima facie asylum claims to approach the UNHCR for status determination.[25] This approach is similar to the landmark Vishaka case, where the Supreme Court established guidelines on sexual harassment by referencing international conventions in the absence of a domestic law.[26] This demonstrates a willingness to use international standards as a guide for domestic jurisprudence.
However, the protection afforded by judicial activism is inconsistent and vulnerable to political pressures.31 The absence of a codified law means that each case is treated on an individual, ad-hoc basis, and the outcome often depends on the specific judicial bench and the prevailing political climate. The reliance on judicial discretion, while providing a crucial check on arbitrary executive power, is not a substitute for a formalized legal framework that would ensure uniform, predictable, and non-discriminatory treatment for all refugees.
Challenges
India’s ad-hoc approach is also challenged by structural impediments. The burden of refugee influx is disproportionately borne by border states, which often lack the resources to manage the humanitarian needs of large displaced populations.[27] This can lead to social tensions and a shrinking humanitarian space, as seen in Mizoram, where local support is strained by a lack of international funding and central government assistance.
More broadly, South Asia as a region lacks a cohesive, formalized refugee protection framework. Of the member states of the South Asian Association for Regional Cooperation (SAARC), only Afghanistan is a signatory to the 1951 Refugee Convention.[28] This regional vacuum perpetuates an ad-hoc, “calculated kindness” approach where countries select which refugee groups to welcome based on political, ethnic, or religious affinities.[29] This lack of a coordinated, predictable, and rights-based regional response exacerbates the challenges for both states and refugees, leading to inconsistent and often discriminatory outcomes.
Way Forward
The analysis points to a clear need for India to transition from a discretionary, ad-hoc model of refugee management to a rights-based, formalized legal framework. A comprehensive domestic refugee law would offer several critical advantages:
- Legal Predictability and Consistency: A domestic law would provide clear procedural standards, ensuring uniform and non-discriminatory treatment for all refugees, regardless of their origin or perceived threat level.[30] This would end the current system’s reliance on arbitrary executive orders and case-by-case judicial pronouncements.
- Institutionalizing Humanitarian Principles: Such legislation would institutionalize India’s long-standing humanitarian tradition, codifying principles like non-refoulement that are already recognized as part of customary international law.[31] This would provide a solid foundation for balancing national security concerns with humanitarian obligations.
- Strengthening International Cooperation: A formal law would clarify the roles of various stakeholders, including the UNHCR, and would provide a foundation for India to lead in establishing a regional refugee protection framework in South Asia.[32] Given its influence and extensive experience, India is uniquely positioned to spearhead such a regional initiative, addressing the current vacuum.
A domestic law would not require India to surrender its sovereignty but would instead provide a structured framework for exercising it responsibly. It would enable India to uphold its constitutional ethos, maintain its humanitarian credibility on the world stage, and provide a more secure and dignified existence for those seeking refuge within its borders.
Conclusion
In conclusion, India’s approach to refugee protection in contexts of armed conflict is defined by a significant but inconsistent role. Its history, from the large-scale humanitarian response of 1971 to the complex cases in the Northeast and Kashmir, showcases a nation capable of immense compassion but one that remains heavily reliant on ad-hoc decisions, historical precedent, and judicial intervention.[33]
The current discretionary model is unsustainable and vulnerable to political and security pressures. While the judiciary has acted as a vital backstop by grounding refugee rights in the constitutional principles of equality and the right to life, this protection is not a substitute for a comprehensive legal framework. For India to live up to its constitutional values and cement its long-term humanitarian credibility, it must formalize its refugee protection system. This transition from a regime of calculated discretion to a predictable, rights-based system is the essential next step towards a more just and consistent approach to forced migration in the region.
References
[1] Col Subodh Verma & Dr. K.B. Asthana, An Analytical Study of India Signing the United Nations Convention on Refugees: Legal, Political, and Humanitarian Dimensions (Sept. 3, 2025) (preprint), https://doi.org/10.21203/rs.3.rs-7499396/v1.
[2] International Committee of the Red Cross, Internally Displaced People, ICRC (May 19, 2022), https://www.icrc.org/de/node/119764.
[3] Supra note 2.
[4] U.N. High Commissioner for Refugees, Myanmar Situation, UNHCR, https://data.unhcr.org/en/situations/myanmar (last visited Sept. 15, 2025).
[5] Supra note 3.
[6] Lotty Clare, Myanmar Refugees in Mizoram Face Shrinking Aid and Political Conflict, Diplomat (Sept. 13, 2025), https://thediplomat.com/2025/09/myanmar-refugees-in-mizoram-face-shrinking-aid-and-political-conflict/.
[7] Emily Fishbein, In India’s Mizoram, Ethnic Ties Drive Response to Chin Conflict, Frontier (Mar. 15, 2023), https://www.frontiermyanmar.net/en/in-indias-mizoram-ethnic-ties-drive-response-to-chin-conflict/.
[8] Clare, supra note 5
[9] Fishbein, supra note 6.
[10] Fishbein, supra note 6.
[11] National Human Rights Commission v. State of Arunachal Pradesh & Anr., (1996) 1 S.C.C. 742 (India).
[12] Chakma Rights & Development Org’n, Rights, Chakma Rights & Development Organisation, https://crdo.chakma.in/topics/issues/rights/ (last visited Sept. 19, 2025).
[13] Id.
[14] Id.
[15] Id.
[16] Amnesty International, India: Briefing on the Armed Forces (Special Powers) Act, 1958 (2005), https://www.amnesty.org/ar/wp-content/uploads/2021/08/asa200252005en.pdf.
[17] Amnesty, supra note 14.
[18] Behind the Kashmir Conflict: The Applicable International Law, Human Rights Watch (July 1999), https://www.hrw.org/reports/1999/kashmir/intl-law.htm.
[19] Amnesty, supra note 14, at 2.
[20] Amnesty, supra note 14, at 2.
[21] Radhika Nair, Refugee Protection in India in the Absence of Specific Legislation: An Overview (Social & Political Research Foundation, Oct. 2021).
[22] Nair, supra note 28, at 4.
[23] Nair, supra note 28, at 4.
[24] “Examining the Issue of South Asian Climate Refugees From the Lens of Human Rights: India’s Policy in Focus Part II,” Law & Other Things (last visited Sept. 15, 2025), https://lawandotherthings.com/examining-the-issue-of-south-asian-climate-refugees-from-the-lens-of-human-rights-indias-policy-in-focus-part-ii/.
[25] Roshni Shanker & Hamsa Vijayaraghavan, Refugee Recognition Challenges in India, Forced Migration Review, no. 65 (Nov. 2020), https://www.fmreview.org/recognising-refugees/shanker-vijayaraghavan (last visited Sept. 19, 2025).
[26] Vishaka & Ors. v. State of Rajasthan & Ors., A.I.R. 1997 S.C. 3011 (India).
[27] Ria Kapoor, Making Refugees in India (2019), https://ora.ox.ac.uk/objects/uuid:a2d3b740-3036-4a24-a1ad-8a10fddb8a88/files/md58379cdab32ed2f49e0c25d0cb20bc9.
[28] Asif Iqbal, Regional Cooperation and the Protection of Refugees: A South Asian Perspective, INDIAN J. L. & LEGAL R. (July 5, 2025), https://www.ijllr.com/post/regional-cooperation-and-the-protection-of-refugees-a-south-asian-perspective.
[29] Elena Fiddian-Qasmiyeh et al., The Oxford Handbook of Refugee and Forced Migration Studies (Oxford Univ. Press 2014).
[30] Protection Mechanisms Outside of the 1951 Convention (“Complementary Protection”), Ruma Mandal, U.N. High Comm’r for Refugees, Legal & Protection Policy Research Series PPLA/2005/02 (June 2005), https://www.unhcr.org/sites/default/files/legacy-pdf/435df0aa2.pdf (last visited Sept. 19, 2025).
[31] Siddeeqa Iram, Reimagining the Asylum Law in India: A Study on the Duty of Non-Refoulement, Nat’l L. Sch. India Rev., Vol. 36, Iss. 1, Art. 6 (2025), DOI:10.55496/SDBS1501, available at https://repository.nls.ac.in/nlsir/vol36/iss1/6.
[32] Roshni Shanker & Hamsa Vijayaraghavan, Refugee Recognition Challenges in India, Forced Migration Review, no. 65 (Nov. 2020), https://www.fmreview.org/recognising-refugees/shanker-vijayaraghavan (last visited Sept. 19, 2025).
[33] Verma and Asthana, supra note 1, at 1.
