Refugee Rights and International Humanitarian Law: An Indian Perspective

Abstract

The plight of refugees remains one of the most pressing humanitarian concerns of our time. Refugees, unlike migrants, are forced to flee their countries due to persecution, conflict, and gross violations of human rights. International Humanitarian Law (IHL) and refugee law frameworks attempt to safeguard their dignity and fundamental freedoms. While India has a long history of providing refuge, it is neither a signatory to the 1951 Refugee Convention nor its 1967 Protocol. This article critically examines refugee rights in India within the broader framework of IHL and international refugee law. It explores the legal vacuum, judicial interventions, government policies, and international obligations, analyzing how India’s unique geopolitical realities shape its approach. Finally, the article proposes reforms and strategies for harmonizing India’s domestic legal framework with international humanitarian principles.

Introduction

Refugees represent one of the most vulnerable groups in the international legal system. According to the United Nations High Commissioner for Refugees (UNHCR), the global refugee population has reached record levels due to protracted conflicts in Syria, Afghanistan, Ukraine, Myanmar, and several African states. Refugee protection is not merely a moral or political issue but a legal imperative grounded in international law, particularly the 1951 Refugee Convention, its 1967 Protocol, and customary international humanitarian principles.

India, by virtue of its geography and historical role, has always been a key destination for refugees from neighbouring regions—Tibetans, Sri Lankan Tamils, Afghans, Chakmas, and, more recently, Rohingyas. Despite its generous refugee practices, India’s legal stance remains ambivalent: it has not ratified the Refugee Convention and instead manages refugees through ad hoc executive and judicial measures.

This article interrogates India’s refugee policy and practice against the backdrop of international humanitarian law, asking whether India’s current framework adequately protects refugee rights or whether a codified refugee law is urgently required.

Conceptual Framework: Refugee Rights in International Law

1. Defining a Refugee

Article 1(A)(2) of the 1951 Refugee Convention defines a refugee as:

“A person who, owing to a 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, unwilling to avail himself of the protection of that country.”

This definition distinguishes refugees from migrants, who voluntarily move for economic or personal reasons. Refugees are compelled to flee due to persecution and violence.

2. International Refugee Law and Humanitarian Law Linkages

Refugee law and IHL often intersect. IHL, particularly the Geneva Conventions of 1949 and their Additional Protocols, seeks to protect civilians during armed conflict, many of whom become refugees or internally displaced persons (IDPs). Principles such as non-refoulement, humane treatment, and protection against discrimination are common to both.

3. Core Principles of Refugee Protection

• Non-refoulement: States must not return refugees to territories where their lives or freedoms are at risk.
• Right to life and liberty: Enshrined in international human rights law (ICCPR, UDHR).
• Access to asylum: Right to seek refuge in another country.
• Human dignity and minimum standards of treatment: Including housing, education, healthcare, and work opportunities.

Refugee Rights under International Humanitarian Law

IHL governs situations of armed conflict and offers protection to civilians, including refugees. Key obligations relevant to refugees include:

1. Geneva Conventions (1949): Protect civilians who are displaced or occupied. Refugees enjoy special safeguards against persecution.
2. Additional Protocol I (1977): Extends protection to civilians in international armed conflicts.
3. Additional Protocol II (1977): Protects civilians in non-international armed conflicts, which often produce refugee flows.
4. Customary IHL: Non-refoulement is considered part of customary international law, binding even on non-signatory states.
5. Human Rights Treaties: Instruments like the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture (CAT) apply to refugees irrespective of ratification of the Refugee Convention.

Thus, even without ratifying the Refugee Convention, India is not legally free to deny basic protections under IHL and human rights law.

Refugee Protection in India: Historical and Legal Overview

1. Historical Refugee Experience

India has hosted diverse refugee populations:

• Tibetans (1959 onwards): Granted asylum and rehabilitation.
• Sri Lankan Tamils (1980s–2000s): Housed in camps in Tamil Nadu.
• Bangladeshis (1971): Millions entered India during the Liberation War.
• Afghans (post-1979 Soviet invasion, Taliban rule, and recent crises).
• Chakmas and Hajongs (1960s): From East Pakistan (now Bangladesh).
• Rohingyas (2012 onwards): Fleeing persecution in Myanmar.

India’s tradition reflects a humanitarian ethos influenced by civilizational values, but responses vary depending on political and security concerns.

2. Constitutional Safeguards

Though India lacks a dedicated refugee law, constitutional provisions extend protection:

• Article 14: Right to equality before law.
• Article 21: Protection of life and personal liberty, applicable to “persons,” not only citizens.
• Article 22: Safeguards against arbitrary detention.
  The Supreme Court has consistently interpreted Article 21 to apply to refugees (e.g., National Human Rights Commission v. State of Arunachal Pradesh, 1996).

3. Absence of Domestic Refugee Legislation

India regulates refugees under:

• Foreigners Act, 1946: Governs entry, stay, and exit of foreigners, including refugees.
• Passport Act, 1967: Penalizes unauthorized entry.
• Extradition Act, 1962: May affect asylum seekers facing charges abroad.
  These laws treat refugees as “foreigners” without distinguishing them from migrants or tourists, leading to legal ambiguities.

4. Judicial Interventions

Indian courts have stepped in to fill legislative gaps:

• NHRC v. State of Arunachal Pradesh (1996): Directed protection of Chakma refugees.
• Ktaer Abbas Habib Al Qutaifi v. Union of India (1999): Gujarat High Court upheld non-refoulement.
• Mohammad Salimullah v. Union of India (2017–2021): Rohingya deportation case—Supreme Court permitted deportation citing national security, showing limits of refugee protection in India.

Challenges in India’s Refugee Framework

1. Absence of a Refugee Law: No legislative framework to differentiate between refugees and illegal immigrants.
2. Security Concerns: Influx of refugees often linked with terrorism, insurgency, and demographic shifts (e.g., Rohingyas, Bangladeshi migrants).
3. Burden Sharing: India bears significant refugee inflows without international financial support.
4. Inconsistent Policy: Tibetans enjoy far better treatment compared to Rohingyas, showing ad hocism.
5. Geopolitical Pressures: Refugee policies are often shaped by relations with neighboring countries.

India’s Position on International Refugee Law

India’s reluctance to ratify the 1951 Convention and 1967 Protocol stems from:

• Concern over sovereignty and external interference.
• Fear of being flooded with refugees from unstable neighbours.
• Perception that the Convention reflects Eurocentric post-WWII realities, not South Asian conditions.
• Preference for regional solutions (e.g., SAARC, BIMSTEC cooperation).

Nonetheless, India remains bound by customary IHL, human rights obligations, and moral commitments under the UN Charter.

Towards a Humanitarian Refugee Framework in India

1. Enacting a National Refugee Law

A comprehensive refugee law should:

• Define refugees, distinct from illegal migrants.
• Establish asylum procedures and refugee status determination (RSD).
• Guarantee rights (housing, education, work, healthcare).
• Codify non-refoulement, subject to narrow exceptions.

2. Strengthening Judicial Protection

Courts must balance national security with humanitarian obligations, ensuring proportionality and due process in deportation cases.

3. Regional Cooperation

South Asia lacks a refugee framework. India could spearhead a SAARC Refugee Convention, ensuring burden sharing.

4. Role of UNHCR

India allows UNHCR to function only in a limited capacity (Delhi). Expanding cooperation could strengthen protection and reduce administrative burdens.

5. Humanitarian Diplomacy

India’s global stature as the “world’s largest democracy” requires aligning refugee practices with international standards to enhance moral legitimacy.

Case Study: The Rohingya Crisis

The plight of Rohingya refugees illustrates India’s conflicting priorities:

• Humanitarian principles favour protection under Article 21 and non-refoulement.
• Security concerns (alleged links with extremist groups) push for deportation.
• India’s Citizenship Amendment Act, 2019, excludes Rohingyas from protection, raising concerns of discrimination.
  This tension epitomizes the need for codified refugee law that balances national interests with humanitarian duties.

Conclusion

India’s approach to refugees reflects a paradox: a long tradition of hospitality and moral commitment coexists with a lack of codified rights and increasing securitization. International Humanitarian Law obliges India to uphold minimum refugee protections, yet the absence of a national framework leaves refugees vulnerable to arbitrary treatment.

Adopting a domestic refugee law aligned with IHL and human rights obligations would ensure clarity, consistency, and justice. As global refugee crises intensify, India must transition from ad hocism to a principled, rights-based, and humanitarian refugee regime. Only then can India reconcile its national interests with its civilizational ethos and international responsibilities.