Legal Rights of Refugees and Asylum Seekers in India
- ByAdmin --
- 06 May 2025 --
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India, despite not being a party to the 1951 Refugee Convention or its 1967 Protocol, has a long-standing tradition of offering refuge to those fleeing persecution. From Tibetans and Sri Lankan Tamils to Rohingya Muslims, India has hosted diverse refugee populations. However, the legal framework for refugees in India is a mix of constitutional guarantees, judicial interventions, and ad-hoc administrative policies.
Constitutional Protections
Though there is no specific refugee law, several constitutional provisions extend protection to refugees:
- Article 14: Right to equality before the law and equal protection of laws — applies to all persons, including refugees.
- Article 21: Right to life and personal liberty — interpreted broadly to include refugees' right against arbitrary expulsion or detention.
- Article 22: Protection against arbitrary arrest and detention — applicable to refugees facing criminal charges.
The Supreme Court has reaffirmed that fundamental rights are available to both citizens and non-citizens (refugees included).
International Legal Instruments and India's Position
- 1951 Refugee Convention and 1967 Protocol:
- India is not a signatory to either.
- However, India respects the principle of non-refoulement (i.e., not sending back refugees to a country where they face danger).
- Universal Declaration of Human Rights (UDHR), 1948:
- Article 14: Recognizes the right to seek asylum from persecution.
- India, as a founding member of the United Nations, is bound by UDHR principles.
- UNHCR (United Nations High Commissioner for Refugees):
- Operates in India through agreements with the government.
- Issues identity cards and provides limited legal assistance to refugees, particularly those not covered by government protection like Afghan or Rohingya refugees.
Key Legislations Relevant to Refugees
Although India lacks a specific refugee law, some general laws are applied:
- Foreigners Act, 1946:
- Regulates the entry, stay, and exit of foreigners.
- Does not distinguish between refugees, asylum seekers, and other foreigners.
- Passports Act, 1967:
- Penalizes individuals without valid travel documents.
- Refugees often have to rely on humanitarian considerations to avoid prosecution under this Act.
- Citizenship (Amendment) Act, 2019 (CAA):
- Provides fast-track citizenship to non-Muslim minorities (Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians) from Pakistan, Bangladesh, and Afghanistan.
- Has been criticized for excluding Muslim refugees like Rohingyas.
Judicial Approach to Refugee Rights
The Indian judiciary has played a significant role in safeguarding refugee rights through landmark decisions:
- NHRC v. State of Arunachal Pradesh (1996):
- Supreme Court protected the rights of Chakma refugees.
- Directed the State to ensure that Chakmas were not forcibly evicted.
- Ktaer Abbas Habib Al Qutaifi v. Union of India (1999):
- Gujarat High Court recognized the principle of non-refoulement as part of Article 21 protections.
- Gujarat High Court recognized the principle of non-refoulement as part of Article 21 protections.
- Mohammad Salimullah v. Union of India (2021):
- Concerned the deportation of Rohingya refugees.
- Supreme Court allowed deportation but emphasized the need to respect humanitarian obligations and obtain Myanmar’s assurance on safety.
Rights Available to Refugees in India
- Right to life and personal security.
- Right against arbitrary detention.
- Access to education and healthcare (limited, often facilitated through NGOs or UNHCR).
- Freedom of movement (subject to restrictions in some states)
- Protection against forced deportation, though not absolute.
Limitations and Challenges
- No formal refugee status: Legal uncertainty prevails.
- Arbitrary detention: Refugees without documents risk imprisonment under the Foreigners Act.
- Political sensitivities: Refugee issues often get entangled with national security debates.
- Limited access to rights: In practice, access to education, jobs, and healthcare is difficult.
Conclusion
While India's judiciary and constitutional ethos offer crucial protections to refugees and asylum seekers, the absence of a dedicated refugee law leaves them vulnerable. To uphold humanitarian traditions and align with global human rights standards, India may need to consider enacting comprehensive refugee legislation that balances national security concerns with human rights obligations.
A rights-based, structured refugee policy would help India handle future refugee situations more effectively, ensuring dignity, safety, and justice for all displaced individuals.
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