In 1685, the Edict of Nantes was revoked, stripping Protestant Huguenots in France of their religious freedom and civil rights. As a result, over 400,000 fled to England. These displaced people, known as “réfugié,” gave rise to the modern term “refugee.”
India has welcomed refugees from its neighbouring regions since its independence. The history of India and refugees goes back to 1947, when refugees of partition were habilitated by India, and later during the 1948 Indo-Pakistan war, the city of Faridabad was built just for the rehabilitation of refugees. In 1959, the Dalai Lama, along with 100,000 of his followers, sought refuge in India, permanently straining Sino-Indian relations in the process. The 1971 Bangladesh War of Independence led to a massive exodus of approximately 10 million refugees into India. Similarly, over the years, India has accepted refugees from communities such as Sri Lankan Tamils, Chakma, Hejong, and even Afghans. In 2023, reports indicated that over 45,000 refugees and asylum seekers were registered with UNHCR India. Based on this historical approach of India in managing refugee populations, the UNHCR previously affirmed that India generally upholds and adheres to the principle of non-refoulement.
Non-refoulement is a keystone principle of international law that says a country cannot force a person to return to a place where they would face danger, such as persecution, torture, or serious harm. It’s like a safety net for people fleeing danger, ensuring they aren’t sent back to a place where their life or freedom is at risk.
The ‘1951 Refugee Convention’ and the ‘1967 Protocol’ are the primary legally binding international instruments that delineate the principle of non-refoulement. To this date, India retains its non-signatory status to the said instruments, even though it has followed the principle to a major extent. With no primary international obligation or major legislation that deals with refugees, India’s position regarding refugee laws and international customs becomes a significant question of law that must be dealt with.
Is Non-Refoulement A Customary International Law?
Customary international law (CIL) refers to rules that have developed over time through the consistent practices and behaviors of states, which are followed because countries recognize them as legally binding. These rules are not written down in treaties, but they are widely accepted and adhered to by the international community, much like traditions that become established norms within a society. CIL must be followed by all countries, even if they are not signatories to the legally binding documents that obligate them.
Article 38(1)(b) of the Statute of the International Court of Justice lists international custom as one of the primary sources of international law. As per the North Sea Continental Shelf judgment, a treaty law can also be a CIL if it satisfies three requirements –
- The rule must be seen as fundamental and essential in creating norms that guide behavior.
- The rule should be supported by a wide range of countries, especially those most impacted by it (state practice).
- Countries must consistently follow the rule as a legal obligation (Opinio Juris).
It has been argued that non-refoulement fulfills all requirements to be a CIL. Supaat argues that non-refoulement has been agreed upon by countries at the UN Conference on the Status of Stateless Persons, which shows a general agreement between the states regarding it. This rule is found not only in the Refugee Convention but also in many other international agreements as well, such as Article 3 of the 1967 Declaration on Territorial Asylum, Article 45 of the Fourth Geneva Convention on the Law of War, Part III, Paragraph 5 of The Cartagana Declaration on Refugees, Article 2 of the OAU Convention, etc. The UN and
countries around the world regularly protest any violations of this principle. Furthermore, Article 33 of the Refugee Convention has a norm-creating character, building the foundation for a CIL.
As a response to the Federal Constitutional Court of Germany, UNHCR in 1994 clarified that non-refoulement is deemed to be a part of CIL due to its widespread acceptance, incorporation in various international treaties, and its reaffirmation by the ExCom of the high commissioner’s conclusions and the UNGA resolutions. Lauterpacht and Bethlehem argued the same in 2000.
Furthermore, UNHCR has claimed that even when countries were not parties to any convention that obligates non-refoulement, they still felt the need to explain or justify their actions that seemed not to follow the said principle. This shows that countries have felt a sense of legal obligation to follow non-refoulement and justify the derogations, even when they were not legally obligated by any convention or treaty. Derogations from the principle were observed in very rare circumstances, and as per the ruling of Nicaragua v. United States of America, exceptions to a rule should be treated as violations of the rule, rather than the
creation of a new one.
However, in 1986, Hailbronner called non-refoulement being a CIL as nothing but ‘wishful legal thinking’. The reasons can be speculated.
The Unfulfilled Promise of International Refugee Regime
After the failure of the League of Nations, it was realized that civil and transnational conflicts are persistent in nature, and the presence of refugees is something that will stick with the foundation of the global order forever. ‘A Study of Statelessness’ published by the UN in 1949, had various recommendations to deal with these tragic scenarios through international regime. Its recommendations led to the formation of UNHCR, beginning its work with 33 staff members and a budget of $30,000. The 1951 refugee convention and 1967 protocol soon came into being as well, serving as primary instruments for the refugees.
Statelessness, a complex and often overlooked issue, was also formally acknowledged in key international instruments like the ‘1954 Convention relating to the Status of Stateless Persons’ and the ‘1961 Convention on the Reduction of Statelessness’. It is the condition of not being recognized as a citizen by any country, leaving individuals without legal rights or protections. The refugee crisis routinely acts as a stimulant for statelessness by depriving individuals of documentation, exposing them to discriminatory citizenship laws, creating protracted refugee situations, severing their legal ties to home countries due to conflict or state collapse, etc.
These efforts were lauded by all, but today, the responsibility of refugees and the stateless is taken only by a few. NRC notes how countries like Lebanon, which are themselves facing unemployment and currency crises, are the ones accepting the most refugees, and richer countries like Japan and China have almost no contribution to their rehabilitation.
85% of the refugees are hosted by only low- and middle-income countries. The presence of refugees in these already overburdened countries create increased tensions for both the local population and the migrants. Developed countries have been adopting reforms to make it easier to reject and detain asylum seekers and push responsibility onto third countries. Refugees are forced to live like criminals or prisoners in several host states. Plans to deport or detain refugees is common sight to international news readers. Furthermore, the increase in right-wing extremism has turned common citizens into enemies of the migrants.
Blatant non-compliance with the principles of non-refoulement can be observed, for example, the European Union’s Pushback Policies, US Repatriation of Haitians, Chinese Repatriation of Uyghurs, Turkish Repatriation of Syrian Refugees, etc., for various reasons such as lack of resources, maintenance of public order, national security, and others.
Non-refoulement, at its core, threatens the sovereignty of states. It endangers the autonomy of countries to decide who can stay within their territories. The exceptions of national security, public order, and the persistent objector rule (to a minor extent) are used by states periodically as arguments to escape their responsibility under international principles. Consequently, scholars have argued that non-refoulement constitutes a weak form of CIL, with states demonstrating a low degree of commitment to its adherence.
The fact is, international agreements and conventions are effective only when they provide actual benefits to their signatories. Trade and finance treaties mostly do produce the intended effects and consensus; however, the same cannot be said for human rights and environmental treaties. They are often signed, celebrated, and ignored. Even if non-refoulement is included in numerous international treaties and even domestic legislations, its effectiveness is undermined by how easily states can circumvent it, often without facing any meaningful consequences. Few actions, like revoking membership from international bodies, economic
sanctions, etc., are often taken to minimize the suffering of the refugees, however, it rarely helps.
It’s been more than 5 years since the ICJ’s order to protect the Rohingyas, and their condition has only worsened. Through widespread atrocities, including mass killings, rape, and arson, the military has forcibly displaced over 700,000 Rohingyas, driving them into refugee camps of Bangladesh and India. The international fact-finding mission by the Human Rights Council already termed the crisis as a genocide in 2018. Yet, the genocide continues unabated, met with the worlds passive observance.
Is India Bound by The Principle of Non-Refoulement?
The non-signatory status of India to major legally binding agreements relating to refugees depicts India’s intention to have sovereign discretion in such matters. India does not have specific legislation related to refugees. Instead, the laws of India treat all non-citizens, including refugees, as foreigners.
It has a comprehensive and broad legal framework that deals with immigration and foreigners, such as The Passport (Entry into India) Act of 1920, The Passports Act of 1967, The Registration of Foreigners Act of 1939, Foreigners Act of 1946 (The Foreigners Act), and others.
Section 2(a) of the Foreigners Act of 1946 defines a foreigner as anyone who is not a citizen of India, and Section 3 of the same empowers the central government for ‘prohibiting, regulating, or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein.’ The apex court of India in Hans Muller of Nuremburg v. Superintendent, Presidency Jail Calcutta and Others confirmed that ‘The Foreigners Act confers the power to expel foreigners from India. It vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion, in the Constitution, an unrestricted right to expel remains.’
Hence, the domestic legislation of India allows it to regulate foreign presence within its borders, which may involve mandating departure for foreigners. The principle of non- refoulement has not been incorporated or recognized in the Indian legislation.
But it doesn’t mean that India completely ignores international law and their customs. Article 51 of the Indian Constitution encourages international laws and treaties, and Article 253 gives parliament the power to make laws for the implementation of any international convention, treaty, or agreement. Landmark judgements like Vishaka Ors vs State of Rajasthan (“Vishaka”) have emphasized the significance of international law.
However, the precondition that India follows before international law is read into its domestic laws is that domestic laws should be absent on the particular field, and the existing laws shouldn’t be inconsistent with international law.
As delineated in the Vishaka case, “The international conventions and norms are to be read into them in the absence of enacted domestic law occupying the fields when there is no inconsistency between them. It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law.”
The Supreme Court of India has reaffirmed this legal principle in further judicial pronouncements as well. In Gramophone Company of India Ltd vs Birendra Bahadur Pandey & Ors, it was stated, “The doctrine of incorporation also recognises the position that the rules of international law are incorporated into national law and considered to be part of the national law, unless they are in conflict with Act of Parliament. Comity of Nations or no, Municipal Law must prevail in case of conflict. National Courts cannot say yes if Parliament has said no to a principle of international law.” Furthermore, in Mohammad Salimullah vs Union of India, the Apex Court declared that national courts may draw on international treaties unless they contradict domestic law.
With regards to non-refoulement, India has laws that govern the presence of foreigners, including refugees, and the laws are also inconsistent with international principles, as Indian legislation gives unfettered powers to the union government to mandate the departure of foreigners. Hence, even if non-refoulement is a CIL, it cannot be read into the domestic legislation of India as the current Indian laws don’t allow the same.
The Complications
The essence of refugee law in India lies in ambiguity and ambivalence. Judicial precedents in this regard have also been inconsistent. High Court judgments such as Dongh Lian Kham and Ktaer Abbas Habib Al Qutaifi have emphasized non-refoulement and declared it to be encompassed under the fundamental rights of the constitution. Proponents 1 argue that it is a guarantee under Article 21 through the apex court judgment of NHRC v. Arunachal Pradesh. However, other scholars have contended that the case does not hold enough merit to overturn other significant judgments and legislations that stand on the contrary.
Due to the legal ambiguity, refugee-related issues are addressed on an ad hoc, case-by-case basis, mostly at the central government's discretion. In recent years, this discretion has been widely and indiscriminately misused.
Rohingyas, often recognized as the ‘most persecuted minority in the world’, have been facing differential humanitarian treatment in India. The Ministry of Home Affairs declared Rohingyas to be illegal immigrants in 2017 and linked them to terrorist activities. In 2019, Amit Shah (Minister of Home Affairs of India) pledged to throw Rohingyas into the Bay of Bengal and referred to them as ‘termites’. They have been enduring deportations and severe prolonged detentions. India contends that Rohingyas pose a risk to the safety of the citizens and asserts that they have no right to reside in their country. On 2 nd July 2024, The UNCERD called upon India to end all kinds of racial discrimination towards Rohingyas and urged them to cease forceful repatriation and arbitrary detention. Several reputed NGOs over the years have condemned the discriminatory and tyrannical actions of the Indian government against the Rohingya community.
In the absence of any legally binding international agreements or specific Indian legislation addressing refugees, the realm of refugee law in India remains in darkness, providing unrestrained discretion to the central government on their treatment and repatriation.
Concluding Remarks: What can be done?
To this date, India’s stance on refugee law is subjected to debates and deliberations. Its absence allows the central government for a systemic mistreatment and discrimination of various refugee groups. In recent times, India departed from its longstanding tradition of providing refuge to those in need. The Rohingya crisis serves as a sobering reminder that the values of compassion and hospitality, once integral to Indias identity, are now under strain. If India fails to uphold fundamental standards of protection and refuge, or worse, forces genocide survivors back into the hands of their tormentors, it risks undermining its ambitions
for global leadership.
India needs a specific legislation that addresses refugees. Refugees are helpless survivors of persecution who have been forced to flee their home countries due to persecution, conflict, violence, or serious human rights violations. They arrive out of desperation, seeking safety and survival, and must not be treated similarly to other foreigners.
Domestic refugee law is the solution to the ambiguity and inconsistency that exist in Indian legislation, and it will furthermore help in bringing an end to the discriminatory practices against certain refugee groups. Justice P.N. Bhagwati has been a strong advocate for such specific legislation that addresses refugees.
In 2022, The Asylum Bill, 2021, was presented in the Lok Sabha by Shashi Tharoor, which enshrined the principles of the Indian constitution and India’s international obligations. The bill aimed to establish clear and consistent criteria for recognizing asylum seekers as refugees and defining their rights within the country. However, there have been no talks on its implementation or further discussions.
The demand for a domestic refugee law needs to grow louder. The basic humanitarian treatment of refugees should not be based on the political whims and ideologies of the government but on comprehensive legal principles. In the modern era, it should not be a debate about whether basic humanitarian treatment is deserved by all or not. It must be a globally accepted fact that even if a person is not a citizen of a country, he still deserves to be treated with dignity. The existence of ambivalence in such crucial sections of Indian legislation threatens its foundation
