India has been an asylum country since independence, and a large number of refugees have found shelter here, including from Tibet, Sri Lanka, Bangladesh, Myanmar, and Afghanistan. Even though it is a tradition to be very humane, there is no specific law governing asylum or refugee protection in India.
Unlike the signatories to the 1951 United Nations Refugee Convention and its 1967 Protocol, India does not have a specific asylum law. This results in an ad-hoc approach towards dealing with asylum seekers.
The article critically analyzes the gaps in India’s asylum policy, the constitutional and international law dimensions, and the urgent need for a comprehensive legal framework. Legal scholars such as B. S. Chimni, Upendra Baxi, and V. Vijayakumar have vigorously debated India’s asylum policy and its compatibility with constitutional principles and international obligations. Historical and Policy Context
India has hosted refugees for decades, including Tibetan exiles since 1959, the influx of Bangladeshis during the 1971 Liberation War, and Tamil refugees following the Sri Lankan civil war. More recently, Rohingya Muslims from Myanmar and Afghan refugees have sought refuge in India. However, India’s response has remained inconsistent, driven by political and diplomatic considerations rather than a structured legal policy.
B. S. Chimni, a leading scholar on refugee law, argues that India’s refugee policy is shaped by executive discretion rather than codified legal principles, leading to arbitrary decisions.
While Tibetans and Sri Lankan Tamils received structured assistance, Rohingyas have been labeled as “illegal migrants,” raising concerns over selective treatment. The Foreigners Act, 1946 under which most asylum-related decisions are taken treats refugees as foreigners without any differentiation between the voluntary migrants and those fleeing persecution.
This lack of differentiation is legally problematic and at odds with India’s constitutional values. India’s Constitution, though silent on asylum, provides significant protections under Articles 14 (Right to Equality), 21 (Right to Life and Personal Liberty), and 51(c) (Promotion of International Law Obligations). The Supreme Court, in National Human Rights Commission v. State of Arunachal Pradesh (1996), upheld refugee rights by preventing the forcible repatriation of Chakma refugees, reinforcing that even non-citizens have constitutional protections.
Upendra Baxi argues that India’s asylum approach contradicts its constitutional commitments by allowing executive discretion to override fundamental rights.
The principle of non-refoulement, which prohibits returning refugees to a place where they face persecution, is recognized under Article 21.
However, in cases like the deportation of Rohingya refugees, India’s actions have been criticized for violating this principle. In Mohammad Salimullah v. Union of India (2021), the Supreme Court refused to intervene in the deportation of Rohingyas, citing security concerns, but this decision has been questioned for its lack of engagement with international legal principles.
International Legal Obligations and India’s Position Although India has not signed the 1951 Refugee Convention, it is supportive of several initiatives under the auspices of UNHCR and has, in international forums, voted for refugee protection measures. There is so much hesitancy in ratifying the convention due to issues related to sovereignty and an aversion to being obligated to accept large-scale influxes.
However, V. Vijayakumar notes that India’s reliance on customary international law and UNHCR’s framework has created inconsistencies, where some refugees receive protection while others face deportation.
The UNHCR in India operates in an informal capacity, processing asylum applications primarily for non-Tibetan and non-Sri Lankan refugees. Tibetans and Sri Lankan Tamils fall under government-controlled administrative mechanisms, creating a fragmented system that lacks uniformity.
This dual structure has been criticized for legal uncertainty and discrimination. Comparing India’s policy with other non-signatory states like Bangladesh and Thailand, both of which have adopted legal mechanisms for refugee protection despite not being part of the Refugee Convention, highlights India’s lag in developing a structured asylum policy.
Challenges in the Absence of a Legal Framework The absence of a dedicated asylum law creates significant challenges, particularly in the areas of legal recognition, access to rights, and security concerns. Without a formal refugee status determination mechanism, asylum seekers often live under precarious legal conditions, without access to work permits, education, or healthcare. The classification of all asylum seekers under the Foreigners Act, 1946, subjects them to the threat of detention and deportation.
B. S. Chimni emphasizes that the lack of a legal framework fosters insecurity and exploitation, as asylum seekers remain dependent on discretionary policies that can change with shifting political narratives.
For instance, while Tibetan refugees have received relative protection, Rohingyas have faced hostility, illustrating the unpredictability of India’s asylum policy. This selective approach contradicts the humanitarian principles India has historically espoused.
Security concerns have also been an influential factor in shaping asylum policy. The government has argued that the refugees pose national security risks because of alleged links between Rohingyas and extremist groups. However, scholars argue that security considerations should not override fundamental human rights, and an asylum law with built-in security mechanisms would be a more effective approach rather than broad deportation policies.
The Need for a Comprehensive Legal Framework
Legal experts have consistently advocated for an Asylum and Refugee Protection Act to provide a clear, structured, and rights-based approach to asylum seekers. A robust asylum law should incorporate the principle of non-refoulement, establish a transparent process for refugee status determination, and ensure equal access to legal, social, and economic rights.
B. S. Chimni suggests that India’s asylum framework should be regional in focus, engaging with South Asian nations to create a cooperative approach under SAARC or BIMSTEC frameworks. Such an initiative would prevent unilateral refugee policies that create diplomatic tensions, as seen in India’s handling of Rohingya refugees vis-à-vis Myanmar.
An effective asylum law should also align with international human rights treaties that India has ratified, including the Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (ICCPR). These treaties obligate India to uphold human rights protections, including for non-citizens. V. Vijayakumar argues that India’s failure to codify these protections weakens its global standing as a champion of humanitarian values.
India’s historical commitment to refugee protection stands in stark contrast to its lack of a formal legal framework for asylum seekers. The reliance on executive discretion, coupled with the absence of a structured asylum policy, has created legal uncertainties and human rights concerns.
Scholars such as B. S. Chimni, Upendra Baxi, and V. Vijayakumar have consistently called for a comprehensive asylum law that balances humanitarian obligations with national security concerns.
A structured asylum framework, grounded in constitutional protections and international legal principles, is the need of the hour to bring in consistency, transparency, and fairness in handling asylum seekers.
Considering India’s geopolitical position and its role as a regional leader, a formal asylum policy would not only strengthen its domestic legal framework but also enhance its international credibility.
The need for an Asylum and Refugee Protection Act is no longer just a legal imperative but a moral and humanitarian necessity.
By
Himanshu Mishra – Advocate Rajasthan High Court
