LLM Notes: Human Rights Protections for Refugees in Indian Law: Constitutional and Judicial Insights

Before moving ahead, it is crucial to understand the difference between some interchangeably used terms in the present context. The terms refugee, immigrant and internally displaced people (herein referred as IDPs) may sound to bear similar meanings but are “quite different in their nature and scope. According to the Merriam-Webster Dictionary, refugee means “a person who flees to a foreign country or power to escape danger or persecution” and immigrant means “a person who comes to a country to take up permanent residence”

 While the phrase “Internally Displaced People” is nowhere defined in the dictionary, United Nations High Commissioner for Refugees (UNHCR) defined IDPs as those people who have been forced to flee their homes by conflict, violence, persecution or disasters, however, unlike refugees, they remain within their own country. From the above definitions it can be inferred that refugees have no choice but to flee to a different country due to risk to their lives while immigration (whether legal or illegal) is voluntary as there is no imminent threat to life and liberty. While IDPs also suffer from the similar circumstances as that of refugees but they do not flee to another country. Just as the name suggests, IDPs are displaced within the territory of their country due to humanitarian crises.

 India, despite not being a signatory to the 1951 Refugee Convention or its 1967 Protocol, has a rich tradition of offering refuge to displaced individuals. However, the absence of a dedicated refugee law has led to an ad hoc approach in dealing with refugees, primarily guided by constitutional provisions, judicial interpretations, and international human rights principles. This article explores the human rights perspective of refugees in Indian law through constitutional safeguards, landmark judgments, and challenges.

Constitutional Framework for Refugee Rights

The Indian Constitution provides certain fundamental rights that extend to all individuals within its territory, including refugees. These rights form the cornerstone of refugee protection in India:

1. Article 21: Right to Life and Personal Liberty

   • Article 21 guarantees the right to life and personal liberty to all persons, irrespective of nationality. This provision has been interpreted by courts to include the principle of non-refoulement, which prohibits returning refugees to a country where they face persecution.

2. Article 14: Right to Equality

   • Refugees are entitled to equal protection under the law as guaranteed by Article 14. This ensures that they are not discriminated against solely based on their foreign status.

3. Other Rights

   • Refugees can also exercise rights such as freedom of religion (Articles 25-28) and access to remedies under Articles 32 and 226.

Landmark Judgments Shaping Refugee Rights

Indian courts have played a pivotal role in shaping the human rights framework for refugees. Below are some significant judgments:

1. NHRC v. State of Arunachal Pradesh (1996)

• The Supreme Court held that the state is bound to protect the life and liberty of every individual, including refugees, under Article 21. This case arose when Chakma refugees faced threats from local groups in Arunachal Pradesh.

2. Dongh Lian Khan v. Union of India

• The Delhi High Court recognized non-refoulement as part of Article 21, affirming that refugees cannot be deported if they face persecution in their home country.

3. Mohammad Salimullah v. Union of India

• This ongoing case involves the deportation of Rohingya refugees back to Myanmar. The petitioners argued that deportation violates Articles 14 and 21, as well as the principle of non-refoulement. While interim relief was denied, the case highlights judicial engagement with refugee rights.

4. Saidur Rahman v. Union of India (2022)

• The Gauhati High Court upheld the right of Myanmarese nationals to seek refugee status with the UNHCR despite their detention under immigration laws. The court directed authorities to facilitate their applications for refugee status.

International Human Rights Obligations

Although India is not a party to the Refugee Convention, it has ratified several international human rights instruments that influence its obligations toward refugees:

• Universal Declaration of Human Rights (UDHR): Article 14 recognizes the right to seek asylum.

• International Covenant on Civil and Political Rights (ICCPR): Protects civil liberties applicable to all individuals.

• Courts have often invoked these instruments alongside constitutional provisions to safeguard refugee rights.

Challenges in Refugee Protection

1. Lack of a Dedicated Refugee Law

   • India relies on outdated laws like the Foreigners Act, 1946, which do not distinguish between refugees and other foreigners.

2. Security Concerns

   • Refugees are often viewed through a security lens, leading to detention or deportation without due process.

3. Socio-Economic Vulnerabilities

   • Refugees face challenges in accessing basic services like education, healthcare, and employment due to their undocumented status.

4. Selective Approach

   • Policies like the Citizenship (Amendment) Act, 2019 fast-track citizenship for certain religious groups but exclude others like Rohingya Muslims, raising concerns about discrimination.

Conclusion and Recommendations

India’s constitutional framework and judiciary have extended significant protections to refugees from a human rights perspective. However, gaps remain due to the absence of specific legislation addressing refugee issues comprehensively.

Recommendations:

1. Enact a national refugee law aligned with international standards.

2. Explicitly incorporate non-refoulement into domestic law.

3. Ensure access to socio-economic rights for all refugees.

4. Shift from an ad hoc approach to a structured policy framework.

By adopting these measures, India can strengthen its commitment to human rights while balancing national security concerns—a step toward fulfilling its moral and constitutional obligations toward refugees.

 Refugee protection should carve out proper distinction between people who need genuine protection and those who have migrated illegally for other reasons. Under the Model Law on Refugee, to acquire refugee status, an individual must demonstrate the existence of a well-founded fear of being persecuted for reasons of race, religion, nationality or membership of a particular social group or political opinion. This definition may help in identifying the refugees and illegal immigrants but even though the model law acknowledges the need to protect refugees but does not adequately consider the impact of large-scale refugee inflows on local populations as it lacks provisions for the equitable distribution of refugees across different regions, resulting in disproportionate demographic and resource pressures on smaller, border states like Tripura and Assam. Additionally, a developing country like India shall not be given the burden of another country's failure to provide better living conditions to its citizens which has contributed to illegal immigration.

Print Page