“India’s Position on Refugee Law a Comparative Study with UNHRC Guidelines”

Submitted by:

Adhiraj Singh

ABSTRACT:

India has a compounded history of refugee governance, while remaining outside the 1951 Refugee Convention and its 1967 Protocol has hosted communities such as Tibetans, Sri Lankan Tamils, Afghans and many more. India’s treatment of refugee is primarily governed under the Foreigners Act of 1946 and a case-by-case approach rather than having a properly stipulated law. The 2025 Immigration and Foreigners Bill marks a new chapter in this discourse, introducing categories like “refugees and asylum seekers”. This paper explores India’s refugee policy in 2025, its historical engagements, the evolving legal landscape, case studies, the role of NHRC, along with a comparative analysis with UNHRC standards on refugees. It argues for a comprehensive legal structure grounded in constitutional values and international humanitarian law along with the comparative analysis

Keywords: Refugee law, India, UNHCR, Immigration and Foreigners Bill 2025, NHRC, Rohingya, Afghanistan, Sri Lankan Tamils, Zoroastrians.

Introduction:

International refugee law, primarily was enshrined in the 1951 Refugee Convention held at UNHRC, Geneva, Switzerland which establishes fundamental principles for protecting those fleeing persecution. Key aspects include the definition of a refugee, the right to seek asylum, and the principle of non-refoulement, which prohibits forcibly returning a refugee to a country where they face persecution and UNHRC is a key player who implements these principles globally. Refugee protection is crucial because it safeguards the basic human rights and security of individuals who have fled their home country due to persecution or other serious threats. When a government is unable or unwilling to protect its citizen then the UNHRC steps in to ensure these rights are respected. There is a need of comparative study of refugee law in India as its domestic legal framework lacks practical implementation and relies on general laws such as the Foreigners Act (1946) and the Passport Act of (1920). Also, it is crucial due to the country’s significant role working outside the scope of 1951 Refugee Convention and the lack of specific refugee law in the legislation.  This results in arbitrary and discretionary refugee governance. The 2025 Immigration and Foreigners Bill introduces a formal structure for immigration and refugee categories but falls short of offering robust protection aligned with UNHCR standards. Given global displacement trends, particularly involving Afghan, Sri Lankan Tamil, and Myanmar refugees, a rights-based approach is urgently needed.

This study is needed to analyse the existing laws and policies, identify gaps in protection, and examine how India compares to other countries in terms of refugee rights and obligations. 

Research Questions/Objectives:

Methodology:

 This study adopts a doctrinal research approach, analysing statutes, case law, and policy documents. A comparative approach is also used to evaluate India’s refugee framework against UNHCR guidelines and international legal instruments such as the 1951 Refugee Convention.

Scope and Limitations:

 The study focuses on India’s treatment of refugees without specific refugee legislation. It does not cover the refugee policies of other countries in detail. It is limited by the lack of codified refugee law in India and relies on judicial pronouncements, policy papers, and secondary literature for analysis.

International Refugee law and UNHRC Guidelines:

The 1951 Refugee Convention and its 1967 Protocol are essential international standards for international refugee rights. The instruments define a refugee as someone who faces a well-founded fear of persecution stemming from race, religion, nationality, social group membership or political opinions while being outside their nation with an inability or unwillingness to obtain protection from their home country. Through these international documents, refugees obtain protection against non-refoulement, which ensures their safekeeping from forced deportation to situations where their life or freedom would be endangered. If refugee security standards are met, the principle will become part of international law and customs, and all refugee protection initiatives will be protected.

Under the Convention, refugees gain access to vital human rights such as legal identity, protection, freedom of movement, court access, employment opportunities, public education, and social welfare. The protections offered by the Convention provide refugees with dignified living conditions in their host countries to maintain self-reliance before realising one of the durable solutions, such as voluntary repatriation, resettlement, or local integration.

Since 1950, the United Nations High Commissioner for Refugees (UNHCR) has served the UN General Assembly by becoming the leading international body to implement these standards. The organisation defends refugee rights and well-being while giving humanitarian aid and building lasting solutions for displaced persons. The UNHCR collaborates with governing bodies, international civil society organisations, and nongovernmental organisations to support their operations and protect these standards.

Current interpretations of refugee protection show an expansion due to the UNHCR Guidelines for 2023–2025. The guidelines now cover emerging displacement categories through the expanded international scope of concern. According to the guidelines, their members acknowledge climate refugees as growing in numbers, but these refugees remain outside the definition established in 1951. The guidelines establish safeguards for both stateless individuals and minority groups, who experience intense persecution based on their sexual orientations and gender identities in their countries.

The new model of refugee protection works from the community perspective while embracing inclusivity to ensure dignity and intersectional safety, together with long-term resilience capabilities. The development shows that displacement dynamics change over time, so international cooperation becomes vital to solving humanitarian situations fairly while showing compassion.

India’s Legal Framework on Refugees:

India has neither ratified the 1951 Refugee Convention nor its 1967 Protocol, and does not have comprehensive national refugee legislation. Therefore, the refugee’s legal status is defined by a haphazard collection of laws such as the Foreigners Act, 1946; the Passport (Entry into India) Act, 1920; and the Citizenship Act, 1955 (as amended). These laws primarily apply to foreign nationals, do not distinguish between displaced people and other migrants, and often treat all seamlessly under the same legal framework.

Although India does not have a specific refugee law, courts have invoked provisions of the Constitution that offer some protection to refugees, notably under Article 21 of the Constitution, which provides all persons the right to life and personal liberty. A significant case is NHRC v. State of Arunachal Pradesh (1996), in which the Supreme Court intervened at the behest of Chakma refugees evicted by the Government of India to protect their right to life and dignity. Similarly, in Mohammad Salimullah v. Union of India (2021–2023), the Court recognised the principle of non-refoulement, which precludes sending back refugees to countries where they are oppressed. Even so, it has permitted the deportation of Rohingya refugees because of national security concerns.

In 2025, the Indian government introduced the Immigration and Foreigners Bill to codify immigration laws and enhance enforcement. The Bill includes setting up a National Immigration Authority (NIA) and an Integrated Immigration Management System (IIMS). It raises foreigners, “refugees and asylum-seekers,” and biometric identification and AI surveillance. However, though it recognises the fact of refugees, it leaves their rights uncharted, as it does not introduce a legal framework for asylum. There are concerns about protecting vulnerable populations rather than just surveillance and security, which will come across.

The National Human Rights Commission (NHRC) has fulfilled its key refugee protection responsibilities by issuing Suo motu actions and advisory reports. The organisation stepped into situations regarding Rohingya deportation policies and the living standard of refugee settlements. The NHRC issued a 2023 recommendation that pushed for the passing of legislation to protect refugees while adding non-refoulement provisions into the domestic legal framework. Although the recommendatory nature of its recommendations allows the body to make suggestions to policymakers, the executive frequently ignores those recommendations, which limits its policy-making authority.

India’s approach towards refugees has differed based on which region and communities are involved. Myanmar nationals from the Chin and Kuki-Zo communities and others have migrated from Myanmar to Manipur and Mizoram in the Northeast region. These states continue to reject deportation orders that stem from the central government through appeals to ethnic heritage, along with compassionate rationale. The lack of a federal refugee policy causes unfair treatment toward displaced populations between different state jurisdictions.

The legal standing of Afghan refugees became difficult to predict when the Taliban regained power across Afghanistan in 2021. More than 20,000 Afghan nationals came to India because their visas had expired. The Government of India selected security concerns to discontinue Afghan student visa benefits throughout 2023. The Citizenship Amendment Act (CAA) treats Hindu and Sikh Afghan refugees as eligible but excludes Afghan Muslims from protection, causing discrimination concerns.

India has accommodated more than 100,000 Sri Lankan Tamil refugees throughout the Sri Lankan Civil War, and they primarily live in Tamil Nadu. Though these individuals have lived in India for long periods, they still lack official citizenship status and experience difficulties. Still, some refugees now qualify for Indian nationality under the CAA regulations.

The Parsi Zoroastrians who had to escape Iran under religious persecution centuries ago successfully integrated into Indian society after they found welcome in this land. Despite minimal discrimination in institutions, they have positively impacted Indian law, its industrial sector and cultural landscape. The recent refugee situation stands in marked contrast to how peaceful assimilation occurred in the case of their assimilation – the refugee policies of India function via fragmented procedures with a primary focus on security. Refugee protection in India exists as an inconsistent system because there is no national refugee law, which leaves vulnerable populations without adequate defence. An approach based on refugee rights and humanitarian principles should be implemented immediately to achieve fair treatment of refugees across the board.

Comparative Analysis: India vs UNHCR Guidelines:

A. De Facto Protection by India versus De Jure Framework of UNHCR

India’s practice is impromptu and problem-solving, as directed by the executive with a point of reference to the common immigration legislation of the Foreigners 1946 Act, which is more than that of dedicated refugee legislation.

UNHCR offers a rights-based de jure framework (e.g., recognition of the rights of refugees, durable solutions and refoulement protection).

India provides de facto protection for political and diplomatic reasons rather than legal obligations under the 1951 Refugee Convention.

UNHCR demands that for the other acknowledgement of refugee status, one has to go for formal refugee status determination (RSD) and codified rights, which are missing in the Indian system.

B. Key Areas of Alignment

Non-Refoulement (Article 33 of the 1951 Convention):

It is not a statutory recognition in any sense in India, but is recognised through interpretation in some cases by Indian courts under Article 21 of the Indian Constitution.

Cases like NHRC v. State of Arunachal Pradesh and Mohd Salimullah v. Union of India indirectly accept non-refoulement.

Humanitarian Assistance and Basic Rights:

India typically permits refugees access to elementary health and education services via UNHCR partnerships and NGOS, although not consistently in the same way as UNHCR’s vision of guaranteeing minimum dignity and safety.

C. Key Gaps

Legal Recognition:

India maintains no legal separation between refugees, asylum seekers, and illegal immigrants in its laws.

UNHCR mandates legal recognition through a well-defined RSD process.

Status Determination Procedures:

There is no established method in India for asylum seekers to apply for status, which lacks transparency.

The Global Refugee Agency requires established procedures and equitable criteria free from discrimination to establish refugee qualifications.

Rights and Protection:

No legal rights guarantee the freedom to move freely or work in India, nor prevent the detention or deportation of refugees.

Under the Convention, UNHCR provides procedural guarantees to state parties that should implement them within domestic settings.

No National Refugee Law:

Official refugee legislation in India fails to produce a consistent treatment of refugees throughout various regions and diverse refugee communities.

UNHCR promotes national laws that protect refugee rights while creating defined fair procedures.

D. Role of Indian Judiciary vs. International Law Compliance

The Indian judiciary is the leading authority to extend refugee constitutional guarantees, but the country has taken no legislative steps to address this issue.

Indian courts apply a broad interpretation of Article 21 to protect non-citizens, which supports migration practices specified by UNHCR.

India chooses to comply with international law to fit domestic needs instead of complying with specific binding obligations.

Indian authorities have refused to approve the Refugee Convention, which prevents them from submitting to formal oversight procedures.

Regional and International Perspectives:

A. South Asian Context: SAARC and Regional Cooperation

South Asian Association for Regional Cooperation fails to establish a regional solution for refugee issues, as its member governments consider these challenges as domestic problems.

The South Asian nations lack a shared, united framework or protocols for safeguarding refugees while failing to establish cooperation mechanisms for handling regional population migrations.

Refugee situations repeatedly affect India, Bangladesh, Nepal, Pakistan and Sri Lanka, yet these countries maintain diverse reaction approaches.

Most states completely avoid collective refugee responsibility in their approach to regional cooperation.

B. Comparison with Other Non-Signatory States

Bangladesh:

The country did not join the Refugee Convention, but it accepted more than 1 million Rohingya refugees into its borders.

The country provides basic housing for displaced persons, though laws and regulations protect their rights.

The organisation cooperates with UNHCR in refugee issues but maintains full authority over refugee freedom and employment conditions.

Nepal:

In the 1990s, Nepal extended refugee sanctuary to Bhutanese refugees despite their nonparticipation in the Refugee Convention.

The country manages its refugee activities with direct support from the United Nations High Commissioner for Refugees and grants limited welfare and protective support.

Pakistan:

The country has accepted many Afghan refugees since the 1980s without accepting official refugee status.

Implementing Proof of Registration (Por) cards does not provide Bhutanese refugees with citizenship or permanent settlement options.

Contrasting with India:

These countries do not have official refugee laws but maintain administrative systems that work with UNHCR operations.

The Indian legal system operates based on executive decisions, primarily utilising state-specific policies and judicial interventions.

Need for Reform and the Way Forward:

Complete domestic refugee law has become crucial for India due to its necessity for defining refugee rights, asylum seeker protections, and fair status approval systems throughout the country. Such a properly formulated legal code would create transparency through legal frameworks that minimize executive decisions and make India’s refugee protection methods match international norms. The lack of official legal frameworks leads states to make spontaneous decisions, which expose defenceless groups to imprecise national and federal operational protocols.

A national refugee law must balance India’s commitment to protecting immigrants and its requirement for security principles. The security concern is justified, but proper, careful screening procedures can protect genuine refugees from denial of protection when addressing cross-border tensions. Non-refoulement stands included in domestic refugee law to stop Indian authorities from forcibly sending away asylum seekers while India strengthens its status as an ethical leader in the region.

A refugee law must create an unbiased Refugee Status Determination authority that maintains efficient and objective asylum claim procedures. Adopting UNHCR-issued documentation by the state would enhance operational coordination and diminish administrative confusion. A model bill for refugee protection should be drafted with UNHCR by incorporating refugee laws from non-signatory states that effectively maintain refugee support systems.

Judicial activism plays a good role in expanding refugee constitutional rights, though lasting change needs administrative system transformation. Training programs for border and immigration officials, as well as law enforcement personnel, enable them to understand refugee rights along with their international obligations, thus blocking discriminatory mistreatment of refugees.

Academia and civil society organizations should increase their involvement in refugee advocacy, research, and community-based rehabilitation initiatives. Social integration through policy development needs assistance from NGOs, legal aid organizations, and universities, which also help raise public awareness. The combination of different stakeholders will help India create a refugee protection structure based on rights that respect national constitutional principles and global obligations.

Conclusion:

The refugee management system of India finds itself at a critical juncture because of its inherited kindness toward displaced people, yet it does not possess specialised legal norms. Since the 1980s, India has provided asylum to refugees from various backgrounds, including Sri Lankan Tamils, Afghans, Tibetans and the Rohingya. However, its policies remain fragmented due to the use of the Foreigners Act in executive decisions and judicial interpretations. The 2025 Immigration and Foreigners Bill represents advancement, yet it fails to establish fundamental rights-based protections that adequately protect refugees. India lacks essential safeguards under the UNHCR framework based on the 1951 Refugee Convention and its 1967 Protocol, since it does not sufficiently preserve non-refoulement, legal identity, or socio-economic rights. Although the Indian judiciary serves as a key interpreter of constitutional protections, permanent reform must require legislative intervention. The demand for formal refugee management in India through a national law becomes more evident when considering differences between various regions, because this legislation should combine security interests with human rights commitments. The required bill must implement a refugee status determination system while affirming non-refoulement practices and upholding UNHCR standards. Strengthening institutions while involving civil society needs to happen alongside public awareness-building efforts to develop refugee policies successfully. A refugee framework approved by law that follows international protocols will strengthen India’s moral influence while protecting displaced individuals from injustice.

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