The phenomenon of forced migration has become one of the defining challenges of the twenty-first century. Refugees, displaced by war, persecution, and environmental crises, seek protection across borders, often arriving in states unprepared with adequate legal safeguards. India, historically a host to diverse refugee populations from Tibetans and Sri Lankan Tamils to Afghans and Rohingyas has responded with a mix of generosity and pragmatism. Yet, unlike many nations, India has no codified refugee law. Its refusal to accede to the 1951 Refugee Convention and the 1967 Protocol has left refugee protection dependent
on executive discretion and judicial creativity, producing a fragmented and uncertain regime.

This absence of a statutory framework raises pressing questions: How are refugees to be distinguished from other categories of migrants? What rights and protections should they enjoy under Indian law? How can India reconcile humanitarian commitments with concerns of national security and demographic stability? The article explores these questions, highlighting the gaps in the current system and making the case for codification. By enacting a refugee law, India would not only provide legal certainty and procedural fairness but also reaffirm its constitutional values of dignity, equality, and justice in the global humanitarian landscape.

ABSTRACT

India has long been a destination for displaced populations, hosting refugees from Tibet, Sri Lanka, Afghanistan, Bangladesh, and Myanmar. Yet, despite this historical and ongoing engagement, the country lacks a codified refugee law. India is not a party to the 1951 Refugee Convention or its 1967 Protocol, and refugee management has been conducted through a patchwork of executive orders, judicial pronouncements, and administrative discretion. This ad hoc approach has produced inconsistencies in recognition, rights, and protections, leaving refugees vulnerable to political contingencies and security anxieties.

This article argues for the urgent codification of refugee law in India. Codification would establish clear definitions, procedures, and rights, ensuring both humanitarian protection and national security. It would also align India’s practices with international norms while reflecting its constitutional ethos of justice, liberty, and fraternity. By enacting a refugee law, India could transform its moral and historical commitment to displaced populations into a coherent legal framework, strengthening both domestic governance and its global humanitarian standing.

HISTORICAL DEVELOPMENT IN INDIA

Ancient & Pre-Independence Traditions: India has a civilizational ethos of hospitality, welcoming persecuted groups since antiquity (e.g., Jewish refugees fleeing Roman persecution in 70 CE). Refugee protection was seen as a moral duty rather than a legal obligation, rooted in cultural and religious traditions of compassion.

Post-Independence Refugee Movements:

1947 Partition: The largest displacement in South Asia, with millions crossing borders between India and Pakistan. Refugee rehabilitation was handled through administrative measures, not codified law.
1959 Tibetan Refugees: India granted asylum to thousands fleeing Chinese occupation, establishing settlements and schools but without a legal framework.
1971 Bangladesh Liberation War: India hosted over 10 million refugees, again relying on executive discretion and humanitarian aid rather than statutory law.
1980s–2000s Sri Lankan Tamils: Waves of refugees were accommodated, but their legal status remained uncertain.
Recent Rohingya Refugees: India continues to host Rohingya from Myanmar, but their protection depends on constitutional guarantees (Articles 14 & 21), immigration statutes, and UNHCR’s limited mandate. (Sarkar, 9 september, 2025)

RELATED CASE STUDIES

National Human Rights Commission v. State of Arunachal Pradesh (1996) 
The case arose when local groups in Arunachal Pradesh sought to expel Chakma refugees (originally from East Pakistan, later Bangladesh) despite their long residence in India. The Supreme Court held that refugees are entitled to the right to life and personal liberty under Article 21 of the Constitution, regardless of
citizenship. The Court directed the State to protect Chakma refugees from harassment and ensure their safety.

Ktaer Abbas Habib Al Qutaifi v. Union of India (1999)

Two Iraqi nationals detained under the Foreigners Act sought protection against deportation, arguing risk of persecution if returned. The Gujarat High Court emphasized that Article 21 protects refugees from arbitrary deportation and that India must respect the principle of non-refoulement.

Dongh Lian Kham v. Union of India (2015)
A group of Myanmarese refugees challenged their detention and deportation order. The Delhi High Court reiterated that refugees cannot be treated merely as illegal migrants and must be afforded protection under Article 21.dividuals to countries where they face persecution).

CRITICAL ANALYSIS

India’s refugee policy has always been shaped more by humanitarian instinct and political necessity than by law, and that is precisely where the problem lies. On one hand, the country has shown remarkable generosity whether during the Partition, the Tibetan influx of 1959, or the millions who fled Bangladesh in 1971. Yet, on the other hand, this compassion has never been translated into a clear legal framework. Courts have stepped in to fill this gap, as seen in NHRC v. State of Arunachal Pradesh (1996), where the Supreme Court protected the Chakmas’ right to life, and in Ktaer Abbas Habib Al Qutaifi v. Union of India (1999), where the Gujarat High Court recognized the principle of non-refoulement. These judgments highlight both the strength and fragility of India’s approach: while constitutional safeguards extend protection, they do so inconsistently and only when challenged. A dedicated refugee law would not only bring uniformity and predictability but also balance India’s humanitarian obligations with its security concerns.

CONCLUSION

In conclusion, India’s refugee policy has been guided by humanitarian traditions and judicial safeguards, but the absence of a codified law leaves protection inconsistent and fragile. A dedicated refugee statute is urgently needed to ensure clarity, uniformity, and justice for those seeking refuge.