Authored By: Nisha Kumari
S.S. Khanna Girls Degree College, Prayagraj, University of Allahabad
Abstract
A refugee is any person whose life is under threat, fear or his living conditions are very bad for his healthy survival. So, they flee to another country for shelter. The term refugee is defined in the convention but it is not complete because it doesn’t include the present-day problems related to refugee protection. This Article highlights the rights of the refugee in the country where he settles after left their own country. India is one of major host country where large number of refugees settles but there are no specific laws in India which protect the refugee rights but this article explains how judiciary plays a crucial role to protect refugee in India. International conventions like convention relating to status of refugees 1951, but India is not a signatory of this convention. This article also provides information regarding laws and conventions for refugees.
Keywords – Refugees, laws, Conventions, Judiciary, Convention relating to status of Refugees, 1951
Introduction
In a world where individuals are left their own countries due to threats such as violence, persecution or war etc. are regarded as a refugee. Due to fear, they left their homes and settle into other countries.
The international conventions relating to refugee also defined the term refugee. The refugee has certain rights in international law. There are various international conventions which provide protection to the rights of refugee.
Refugees are different class of persons from other migrants or aliens. However, in recent time the refugees are considered as foreigners in India. So, they given all rights like as a foreigner and their dispute is also resolved according to those laws which are applicable on a foreigner.
India hosts the largest population of refugees in all of south Asia. But India is not a signatory to the 1951 Refugee Convention or to its 1967 protocol on the status of Refugees.
India lacks any specific legislation for the protection of refugees but judiciary plays an important role to protect the rights of refugee by interpreting laws or any other way.
Who is Refugee?
A refugee is a person who has been forced to leave their own nation due to the fear of violence, persecution, war or other forms of conflict.
In simple terms, a person who unwillingly left their own country due to fear and settle into other countries is considered to be refugee. A refugee is unable to return their own countries due to a fear of persecution.
The term refugee is defined by various international conventions and treaties.
As per Article 1 of the convention relating to the status of Refugees 1951, defines a refugee in three ways- Inclusion, Cessation and Exclusion.
Article 1(A) is an inclusionary provision that lays down the requirement to be met with to fall under the definition of a refugee, including alienage.
The clause also states that there must be a well- founded fear among the members and this fear must be reasonable. It also lays down five grounds for prosecution – race, religion, nationality, membership of a particular social group and political opinion.The grounds mentioned in this article are broad enough to cover any persecution based on gender, caste etc and thus expands the scope of the meaning of refugee.
Article 1(C) describes when a person who was previously classified as a refugee loses their status. This section lays down several situations where a person ‘s refugee status ceases to exist due to acts done by a person or changes in circumstances that indicate that the risk of persecution no longer exists.
Article 1(D)-(F) specifies which members will not classify as refugees and excludes them from the definition.
According to 1(D)- This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance[1].
As per 1(F)- The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) He has been guilty of acts contrary to the purposes and principles of the United Nations[2].
The definition of refugee given under the convention is widely recognised and has become a customary rule of international law.
Rights of Refugee
There are various rights granted to a refugee and for the protection of their rights are responsible to their host country. These rights of refugee are written down in the refugee conventions and in human rights treaties.
- Right to Asylum – A refugee is entitled to right to seek and enjoy asylum in another country if he left their country due to fear.
- Freedom from discrimination- A refugee must not be discriminated on the grounds of race, religion, nationality or political opinion.
- Basic human rights- Human right is an inherent right. So, every human being has entitled to basic human right. Thus, a refugee has a basic human right including the right to life, liberty, security, freedom of thought, conscience and religion etc[3].
- Right to work – every refugee has right to work in another country to earn for his livelihood.
- No penalty for irregular entry- No penalty given by refugee for entering or staying in a country irregularly.
- Non- Refoulement- It is a right that prevents refugee from being returned to their own country where he threatened. An important right refugees, asylum-seekers and others who fear for their lives or freedoms have. These people have a right not to be removed, in any manner whatsoever, by their host country to their country of origin, or any other country, where they are at risk of being seriously harmed. This right, called the principle of non-refoulement, is written down in the Refugee Convention and in other human rights treaties. It is also part of so-called customary international law, and must therefore be guaranteed by all countries[4].
- Protection of intellectual property – The original work including literary, dramatic, artistic, scientific as well as invention etc. of the refugee are protected in another country.
International laws for protection of refugees
International law protects the rights of refugee through various conventions and treaties. The important international legal frameworks for refugee rights can be studied under three main heads: –
- International refugee law
Under International refugee law there are two main conventions-
- Convention relating to the status of Refugees 1951
The convention was formulated after the second world war. It provides the meaning and scope of the term refugee. It provides several responsibilities to a country where a refugee resides after left their own country due to threat. It provides right to refugees are not forced back to their home country.
- Protocol ,1967
The Main purpose of the protocol to remove the limitations given under the convention 1951. It redefined the application of the term refugees. The protocol ensures the application of the content of the convention 1951 to all persons falling within the definition of a refugee.
- International human rights law
Universal Declaration of Human Rights 1948
It is adopted by the United Nations on 10 December,1948. It states that every human being is entitled to all the basic human rights and freedoms. It also protects the individuals from the discrimination on the grounds of race, religion, nationality or caste etc.
- International humanitarian law
Geneva Conventions of 1949 and the Additional protocols agreed in 1977
The Geneva conventions of 1949 and their additional protocols are also known as the Humanitarian Law of Armed conflicts. It provides protection for those people who does not involve in fighting or are not in a position to fight. This is applicable on a large number of persons from sick and wounded soliders. Its main purpose to protect person not be a member of a conflict.
Indian legal framework for the protection of refugees
India does not have any specific legislation which addresses the problem of refugees and asylum seekers. In the absence of any specific laws for the protection of refugees in India, the refugees come under the purview of Foreigners Act,1946 and the Registration of Foreigners Act, 1939. The Passport (Entry into India) Act,1920 and The Passport Act, 1967 regulated the entry and departure of the person including refugee.
The various overarching laws like the Criminal Procedure Code, 1973 (Bharatiya Nagarik Suraksha Sanhita), The Indian penal code, 1860 (Bharatiya Nyaya Sanhita), The Indian Evidence Act, 1872, (Bharatiya sakshya Adhiniyam) and others are also applicable on the refugees.
In current time, the refugees are considered as foreigners in India. The domestic laws which deal with Foreigners like the Foreigners Act, 1946, the Registration of Foreigners Act, 1939, the passport (Entry into India) Act, 1920, the Extradition Act ,1962, the Citizenship Act, 1955 etc are are also applicable on refugees. Now, there is no distinction between the broader term ‘foreigner’ and a refugee or the foreigner requiring special protection under these laws.
The Government of India adopted a Standard Operating Procedure (SOP) in 2011. This procedure is followed by law enforcement agencies while dealing with ‘foreign nationals who claim to be refugees. The procedure was amended by Lok sabha in 2019. It provides Long Term Visa (LTV) to refugees and thus allows them to freely work and study in India also.
For the first time, the Standard Operating Procedure provide distinct criteria for the identification of certain foreigners as refugees.
Constitutional Framework for refugee’s protection
There are some Articles under the Indian Constitution which are equally applicable on non- citizens like citizens of India. In India, refugees are considered as foreigners. So, they are also entitled to rights enjoyed by the foreigners under the Constitution of India. The Constitution of India guarantees certain Fundamental rights like Article 14 (Right to equality), Article 21 ( Right to life and personal liberty), Article 20(Right to protect in respect of conviction of offences), Article 22(Right to protection under arbitrary arrest), Article 25(Freedom of religion), Article 32( Right to approach Supreme Court for enforcement of Fundamental rights) are applicable on both citizens as well as non- citizens including refugees[5]. Refugees also have the right to life and dignity and this doesn’t imply drudgery or mere animal existence.
Louis De Raedt v Union of India [6]
In this case, the court held that even a person who is non- citizens have the fundamental right to life, liberty and dignity. This right to life is followed by right against arrest and detention.
Role of Indian judiciary towards Refugees
The Indian judiciary plays a crucial role in protecting the refugee’s rights. It provides various landmark judgements for the protection of refugees. It ensures justice for individuals who have sought refuge within the country. While India legislature fails to enact special legislation which exclusively deals refugee rights. So, the judiciary interpreted constitutional provisions and international commitments to safeguard the rights and dignity of refugees.
The Supreme Court of India has consistently held that the fundamental right enshrined under Article 21 of the Constitution of India regarding to the Right to life and liberty applicable to all irrespective of whether they are Indian citizens or not. The various High Courts have literally adopted the law of natural justice to deal with refugee issues.
The United Nations High Commissioner for Refugees also plays important role in the protection of refugees.
National Human Rights Commission v. State of Arunachal Pradesh[7]
The Supreme Court interpreted the Article 21 and suggest that the refugees are a class distinct from the foreigners so, they have protection under Article 21 of the Constitution of India.
The Supreme Court also held that “we are a country governed by the Rule of Law. Every person is entitled to equality before the law and equal protection of the laws. Therefore, no person can be deprived of his life and personal liberty except according to procedure established by law as per Article 21 of the Constitution. Thus, the state has responsibility to protect the life and liberty of every person either he is citizen or not.
Sivashankar v State of Tamil Nadu [8]
In this case, the petitioner was a Tamil refugee from Sri Lanka who had been in judicial custody under various sections of the Indian penal code (Bhartiya Nyaya Sanhita) and the Foreigners Act. The petitioner got a judicial order of detention under the Nation Security Act, 1980. So, he filed petition for challenging the judicial order.
The High Court held that there were no valid grounds for detention and this order violating the Article 22(5) of the Constitution of India. Hence, the High Court quashed the judicial order for detention of the refugee.
Ms. Zothansangpuii v. The State of Manipur[9]
In this case, the High Court granted a period of 1 month to visit UNCHR and seek asylum in India to a petitioner who was a citizen of Myanmar, though she had completed her sentence under the Foreigners Act, 1946.
Syed Ata Mohammadi v. Union of India[10]
In this case, the Bombay High court was pleased to direct that there is no question of deporting the Iranian refugee to Iran, since he has been recognised as a refugee by the United Nations High Commissioner for Refugees.
The High Court also permitted the refugee to travel to whichever country he desired.
Conclusion
Every person has basic human rights. So, a refugee has also a human right and it is the duty of a host country to protect it. There are certain responsibilities over a country where a refugee settles due to fear in their own nation given under the international convention 1951. There are various conventions formulated for the protection of the Refugee rights.
A large number of refugees also settle in India. Since India has no uniform law for determining refugee status and no specific body deals with the refugee. So, the refugee problem is major issue in India in current scenario. The issue of refugees many times settle by judiciary. So, the Indian judiciary plays piovtal role in protecting the refugee’s right.
References
[1] https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-relating-status-refugees
[2] https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-relating-status-refugees
[3] https://help.unhcr.org/global/rights-and-duties/
[4] https://help.unhcr.org/global/rights-and-duties/
[5] The Constitution of India
[6] Louis De Raedt and ors v Union of India, (1991) 3 SCC 554
[7] National Human Rights Commission v. State of Arunachal Pradesh (1996) 1 SCC 742
[8] B. Sivashankar v State of Tamil Nadu High Court of Madras, Habeas Corpus Petition No. 2718 of 2013
[9] Ms. Zothansangpuii v. State of Manipur, Civil Rule No. 18 (Gauhati High Court Oct. 5, 2023
[10] Syed Ata Mohammadi v. Union of India ,A. D. 1458 of 1994
Published On: December 8th 2025
