As a 21st Century Indian pupil, the sensitive matter of Rohingya Muslims was my introduction
to the concept of refugees. After going deep into the topic, it fell under some light that India has
been acting as home to many refugees from ages. Through this blog, I have tried to highlight a
few points with respect to the topic of refugee’s law. Firstly, I have discussed the laws made at
the international level, most importantly The UN Refugee Convention of 1951 and The Protocol
- Further, I have noted that India is not a signatory to either which is backed with some
reasons and the laws by which the refugees are governed in India. Lastly, the blog is concluded
with the opinion and the answer for the question that whether it is necessary for India to be a
signatory to the Convention or not.
refugees, United Nations Convention Relating to the Status of Refugees 1951, Non-Refoulement,
The 1967 Protocol, South Asian Association for Regional Corporation (SAARC), 1971
Bangladesh War, UNHCR, The 1984 Convention Against Torture, Citizenship Amendment Act,
There are laws made at the international level for the smooth functioning of both, the countries
and the refugees. Still, there are no such particular provisions written in the Indian Constitution.
The initial framework was the United Nations Convention Relating to the Status of Refugees,
1951, which was drafted soon after the World War-2 and then came The 1967 Protocol. Though
India is a signatory member of neither the Convention nor The Protocol, it still has a good track
record when it comes to refugees.
Let’s find the reasons about the fact that why India is not a signatory and does it really need to be
a part of it.
The UN Refugee Convention 1951
The 1951 Refugee Convention is a critical legal document drafted post World War-2 for
refugees, in which the definition of refugees, the exact method to identify them, is stated. It also
outlines the rights of the displaced and the legal obligations to be followed by the respective
states to protect them. According to Article1(A)(2) of the UN Convention, 1951 ‘ a refugee is a
person being displaced or persecuted from a country due to the refugee crisis before 1 January
- The Refugee crisis refers to the reasons of race, religion, nationality, membership of a
particular social group, or political opinion.’
The core principle of The 1951 Convention is Non-Refoulement which asserts that a refugee
should not be returned to the parent state where there is a severe threat to life or freedom.
Now, this is considered as a Customary International Law.
The difference between the UN Convention 1951 and The 1967 Protocol
Where the 1951 Convention was solely based on the European situation, The 1967 Protocol
opened the doors to the entire world. It is based on non-discrimination, non-penalization, and
non-refoulement. The deadline of 1 January 1951 was also removed from the Convention. Both
the Convention and The Protocol has 140 signatories, an overwhelming majority of the world’s
190-odd nations, in which India has neither signed the 1951 UN Refugee Convention nor The
Some reasons behind India is not a signatory member
Earlier discussed that India is a signatory member of neither the 1951 Convention nor The 1967
Protocol which protects the refugee rights all over the world. But, a thing to notice is that none of
the South Asian Association for Regional Corporation (SAARC) members is also a part of The
According to various scholars and experts of this field, there are different reasons for this-
- The South Asian countries have porous borders- The term porous borders mean that these
countries don’t have very good protected borders. At some places, the borders are open, have
edges which are formed by a stream of water, etc., and because of this reason, there is a smooth
flow of entering and exiting through these borders. This conflict can result in a mass movement
of people which leads to our further purposes.
- The excessive flow of public will disturb the demographic balance of the area as it
happened in the states of Arunachal Pradesh, Assam, etc. After the 1971 Bangladesh War, there
was a sudden and massive flow of mass from Bangladesh to various northeastern states. The
already living citizens of that place and the government developed a fear that because of this
transfer of people the living natural tribe of the place will come in the minority, which results in
- The fear of loss of natural habitat and culture- The people of Assam are against the
Citizenship Amendment Act 2019 as they believe that because of this flow they will lose their
culture at their natural place.
- India is already land to billions of people where most of the population is living below
the poverty line, without being able to fulfill the necessities, with no proper infrastructure. In
these circumstances, the situation will take the worst form of fear if the government decides to
bear the burden of thousands and lakhs of people from outside the country.
- Former Indian leaders like Jawaharlal Nehru found the definition of refugees given in the
1951 Convention to be very narrow-minded. According to them the people also migrate due to
lack of opportunities for livelihood and in search of a better lifestyle.
- UNHCR played a stellar role during the repatriation of the millions of Hindu refugees
who came from Bangladesh; it also helped in mobilizing them and helped with huge
international finances to pay for the Indian bill. Though, it started talking about the repatriation
at the time when Pakistani atrocities were causing millions to flee to India, even after the fact
that India was emphasized the matter from the very start of the Bangladesh crisis which leads to
a sense where New Delhi felt the talk of repatriation at that time gave a wrong signal to the
whole world. This makes India retains a degree of distrust about UNHCR.
These are some of the mainstream reasons for not signing the documents as if India would have
become a signatory then there would be direct interference of the UN Commission in the matter
related to refugees and it would be bounded to the laws, lose the freedom to work according to
the circumstances, under the local laws.
India’s stand on Refugees
India is a land of varied culture which typically defines that it acts as a home to a large number
of people from different sects, backgrounds, and customs. India has always opened arms for all
the people who seek a roof on its land whether its Tibetans, the Afghans, or the Tamil Lankans,
India has always proved its motto of “Atithi Devo Bhava” Which means “Guest Is Like God”
real. Even during the time of Partition 1947, when India was facing an economic crisis, a
financial crisis, a time that was just after the struggle for Independence, India gave land to live
and identity to live with dignity to all the people who came from the other side of the borders.
Refugees in India are governed by some laws such as-
• Registration of Foreigners Act, 1939
• Foreigners Act, 1946
• The Passport Act, 1967
The most recent amendment in the Indian Constitution in which the status of refugees is defined
is the Citizenship Act, 1955 according to which the Centre will provide the Indian citizenship to
all the refugees who belong to the religious minorities in their own respective countries of
Afghanistan, Pakistan and Bangladesh and these include- Hindus, Sikhs, Christians, Jains,
Buddhists, and Parsis.
Even though India is not a part of the UN Refugee Convention 1951 but still a member of
various other autonomous bodies like UDHR, ICCPR-1966, etc., and because of these India is
bound to some laws like the non-refoulement as India has signed The 1984 Convention Against
Torture in which it is stated under Article 3.
Right now, it has no specific laws for refugees due to which they are treated like other foreigners
as they come under the status of both general and particular. In the absence of proper refugee
laws, all the remaining laws of India, like IPC 1860, CrPC 1973 are applicable to all the
refugees, just like the rest of India’s people. The Government of India also respects the principle
of non-refoulement and the Constitution of India guarantees some fundamental rights like the
Right to Equality, Right to fundamental Life, Right to have Respect of Conviction, Right to have
Religion, and Right to Constitutional Remedies.
• Ktaer Abbas Al Qutaifi v Union of India 1992, is a landmark case in which the Apex
Court held that State Government was under the constitutional and statutory obligations to
protect the threatened groups. The Court directed the Government of Arunachal Pradesh to
protect the life and liberty of the Chakmas who were displaced due to the Kaptai Dame Project
and came to take shelter in the North- Eastern Indian states.
• Dong Lian Kham v Union of India 2015 is another such example in which the petitioner
was a refugee who came from Myanmar, The Delhi High Court gave a statement which directed
that it is necessary to take a person under Article 21 irrespective of his/her country of origin.
However, after not being a signatory and not bound to the rules and regulations related of the
International Laws for Refugees, India has proved to be generous and considerate from time to
time. It has given a place to live with dignity, respect which is the right to every person on this
earth, and a sense of safety to each person who feared the loose of life and dignity in his/her own
country of origin. So, it is not necessary for India to the sign the Convention and it can be backed
by two major reasons-
• It had already fulfilled all the necessities which are expected by the signatory members.
• India is still a developing nation that needs to act upon a situation only after analyzing its
status and circumstances, which also included that it sometimes needs to change its ways to
protect the life, right to freedom, and cultural values of the legal citizens.
And if it would sign the documents it will be bound to follow the roles even after knowing that
they don’t go with the current situation.
On the other hand, India needs to have proper refugee laws as still it goes on a case-by-case
basis, standard operating procedures that change from government to government for the varied
political reasons one of which is the vote bank. It needs to have a signifactory set of rules to be
followed for refugees and the Citizenship Amendment Act, 2019 will not fill that vacuum as it is
discriminatory based on religion. The Constitution should have some robust laws to identify
refugees’ status to be given citizenship and to protect the borders of the country from illegal
immigration, which creates internal disturbance and havoc in the country.
Author: Harshita Agarwal, Amity Law School, Noida