Although India is not a signatory to the 1951 Refugee Convention or the 1967 Protocol, it is party to a number of international human rights instruments that create protection obligations toward refugees. It is difficult for refugees in India to enforce these rights because India does not have national legislation outlining refugee rights and state obligations, or a national monitoring body responsible for refugee status determination and protection. Under municipal law refugees are merely considered foreigners, and are thus denied the special protection they deserve. 

The 1951 Convention on the Status of Refugees (Refugee Convention) is the only treaty pertaining to refugees that has near universal ratification.[1] Unfortunately, India is not a party to the Convention. The Convention defines a refugee as someone who has a “…well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” and is unable or unwilling to avail him/herself of the protection of his/her country of origin.[2] The five qualifiers of this definition reveal a marked bias towards protecting those whose civil and political rights are being violated, excluding those who flee their countries for economic reasons or as a result of natural disasters.[3] Regional refugee conventions have provided a broader definition of a refugee by including “external aggression, occupation, foreign domination or events seriously disturbing public order” as genuine reasons to flee and seek asylum.[4] 

While there are no refugee conventions of regional scope in South Asia, in 1966 the Asian-African Legal Consultative Organization (AALCO) adopted the Principles on the Status and Treatment of Refugees (Bangkok Principles). India is a member of AALCO and this non-binding intergovernmental agreement was revisited in 2001. Like regional refugee conventions the Bangkok Principles expand the definition of a refugee beyond the narrow scope of the 1951 Convention.[5] Any future refugee legislation adopted by the Government of India should reflect this broader refugee definition.   

Refugee Rights under International Human Rights Law and International Refugee Law 

State obligations toward refugees are located within international refugee law (IRL) and international human rights law (IHRL). IHRL outlines the universal basic human rights that each individual has upon the society in which he/she lives independent of citizenship.[6] By contrast, IRL specific rights revolve around the fundamental inability of refugees to return to their state of origin and their subsequent dependence on the state of asylum where they, at least at first, do not enjoy the rights afforded to citizens.  

Although India is not a party to the 1951 Refugee Convention or its 1967 Protocol, it is signatory to a number of international legal instruments that impinge upon its obligations towards refugees. It is party to the 1948 non-binding Universal Declaration on Human Rights (UDHR), and the legally binding Covenant on Civil and Political Rights (ICCPR) and Covenant on Economic, Social and Cultural Rights (ICESCR).[7] The rights and freedoms contained in the ICCPR and the ICESCR consequently bind India to protect certain rights of refugees, although there is no international enforcement mechanism to ensure that India complies with its obligations. 

The Right to Seek and Enjoy Asylum 

The right to seek and enjoy asylum is included under Article 14 of the UDHR and the Declaration on Territorial Asylum (UNDTA).[8] Under the UDHR asylum refers to the right of states to grant asylum—a lawful act of territorial sovereignty. Similarly, the UNDTA stipulates that it remains up to the state to evaluate the grounds for granting such asylum.[9] Thus, unless stated in domestic legislation, a state’s obligations regarding asylum are unclear beyond non-refoulement.[10] Under Indian domestic law entrance to the country is only possible with proper documentation denoting permission from Indian authorities.[11] Without such permission a person is at risk of deportation as an illegal entrant. Most refugees have trouble obtaining passports and visas to facilitate their travel, and many of them flee under cover and travel across borders clandestinely. Despite the legal uncertainty around the right to seek and enjoy asylum, India is obligated to treat asylum seekers and refugees in accordance with applicable right standards as set out in IHRL.[12] 

Non-refoulement 

The most important state obligation toward refugees is non-refoulement, which includes non-rejection at the frontier, non-return and non-expulsion. Non-refoulement bars states from returning refugees to places where there is a high likelihood that they will face torture or severe treatment or punishment. Non-refoulement is protected under the Refugee Convention and the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). In Agiza v. Sweden the UN Committee against Torture stated that non-refoulement under the CAT is absolute even in the context of national security concerns.[13] This sentiment has also been expressed by the Human Rights Committee which stated that the prohibition against torture under the ICCPR cannot be derogated from even if times of national emergency.[14] Although India has not ratified the CAT, it signed it on 14 November 1997, indicating its support of the principles that CAT espouses. Furthermore, non-refoulement has been widely accepted as having attained the status of jus cogens. Thus India must comply with the principle of non-refoulement despite not having ratified the Refugee Convention or the CAT.[15]  

A Minimum Standard of Treatment 

State obligations to protect refugees also involve some provisions guaranteeing minimum standards of treatment that address the lack of rights refugees face as non-citizens. The content of this minimum standard of treatment varies depending on the international convention and is often left to the discretion of the state. While the Refugee Convention extensively outlines specific minimum standards of treatment for refugees, India is not a party to the Convention and thus is not bound by its provisions. India is, however, bound to afford refugees the basic human rights outlined in the ICCPR and the ICESCR. These provisions overlap on many accounts of minimum standards of treatment with the IRL provisions. Unfortunately, since a domestic legislative regime for refugees does not exist, and the current foreigners’ regime is preoccupied with migration control, these minimum standards are not legally enforceable in India. This situation must be remedied in order for the Government of India to comply with its IHRL obligations, to promote consistent treatment of all refugees in India, and demonstrate that it is a responsible international citizen.

Refugee Rights under India’s Domestic Laws 

India does not have a specific national law outlining the rights and treatment of refugees.[16] Refugees thus fall under the purview of the legislative framework that addresses all foreigners in India in the same way, under the Foreigners Act 1946.[17]  Section 2 of the Foreigners Act defines foreigners as “all those not citizens of India”.[18] The Act contains broad powers of detention subject to the discretion of the executive, and makes illegal entry into the country a crime punishable by up to 5 years with no exception for refugees and asylum seekers.[19] Also pertinent to determining the rights of refugees in Indian law are two pre-independence enactments that enable the government to impose stringent conditions of entry and stay in India.[20] This body of legislation indisputably gives the Indian executive excessive powers over foreigners in India, including the power to restrict movement inside India, to mandate medical examinations, and to limit employment opportunities.[21] This framework is problematic for refugees because the government’s unrestrained power of expulsion could possibly lead to refoulement and deny refugees their basis human rights while in India - in contravention of international obligations. 

The Extradition Act 1962 provides some protection to refugees facing extradition by restricting the government’s freedom to remove from its territory a particular category of foreigners.[22] This restriction, however, is so narrowly relevant that it does not provide any real safeguards for the majority of refugees in India whose removal from the territory is most likely to fall under the category of expulsion rather than extradition.  

Conclusion 

International law stipulates that refugees should enjoy a broad spectrum of rights derived by virtue of their humanity and their particular vulnerability. As India is not a party to any IRL instrument, its obligations under international law are limited to the human rights instruments it has ratified and to the relevant principles of customary international law. These include the principle of non-refoulement and the provision of a minimum standard of treatment that allows refugees to live a life of dignity. India’s international legal commitments thus encourage the development of an effective domestic legal framework that protects the rights of refugees in accordance with the standards of protection outlined under IHRL.

Developing a strong and streamlined national refugee determination process would demonstrate that India is a modern state capable of dealing with pressing national refugee issues in a consistent and just manner. Creating domestic refugee legislation and a national refugee protection body would also enable the Government of India to assert its sovereignty, by addressing refugee issues through effective national legal mechanisms rather than symbolic international ones.

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