Invisible Lives, Constitutional Mandate and Promises: Examining the Refugee Rights under the Indian Constitution

Introduction

Most people in the world have the experience of leaving the place where they grew up or were born. Some move to nearby cities or places, and others may move to distant places. They may have to leave their country completely, for a shorter period or for the rest of their lives. Every day, several people leave their homes and move elsewhere in the hope of a better future. There are various reasons for such displacement: some move to study, for jobs, or for business. These are forms of positive displacement, but many people are displaced because they are not safe in their own country. They move because of violence, threats, torture, ill-treatment, and human rights violations at home. People are targeted because of their religion, race, or political views, or because they belong to a particular association.[1]

The terms refugee, asylum seeker, and migrant refer to people who have left or been displaced from their country and have crossed borders into another country.[2] These terms are often used interchangeably, but there is a legal difference between them, as set out below.

Generally, refugees are people who have fled their country forcibly and are seeking asylum in another country. They cannot return to their country owing to a fear of persecution based on religion, race, nationality, political views, and the like. There were a total of 42.5 million refugees in the world by the end of June 2025, of whom 30.5 million were under the protection mandate of the UNHCR,[3] the UN Refugee Agency. A further 6.1 million refugees needed international protection, and the remaining 5.9 million Palestinian refugees are supported by the UNRWA,[4] an agency specially established in 1949 for the protection of Palestinians.[5] Refugees are among the most vulnerable and marginalised members of society, as they live in miserable conditions and have already lost their rights through displacement from their country. To protect them and to provide the rights necessary for a dignified life, the UN Convention Relating to the Status of Refugees, also known as the 1951 Refugee Convention, was adopted on 28 July 1951 at Geneva, Switzerland, and its Protocol was adopted on 31 January 1967 at New York. This Convention was based on Article 14 of the Universal Declaration of Human Rights, 1948 (UDHR),[6] which recognises that a person may seek asylum in another country if facing persecution in their own.[7] The Convention established certain rights for refugees, such as the right to seek asylum, the right to non-refoulement, the right to protection against discrimination, and the right to access basic amenities and services for livelihood.[8]

Understanding the position of refugees in the indian context

India has an old tradition of welcoming refugees, reflected in the Sanskrit saying “Atithi Devo Bhava”, which means “the guest is like a God”. It conveys that guests must be welcomed with respect and kindness. This idea is the outcome of old religious scriptures such as the Upanishads and reflects the cultural values of the nation.[9]

India’s approach combines both kindness and practical challenges. On the one hand, Indian culture and history reflect a positive approach of welcoming refugees and providing them shelter with kindness; on the other hand, India lacks a specific domestic law for refugees. The decision whether asylum should be granted or a person deported is based on government policy, which is informed by national security and political or diplomatic considerations. For this reason, refugees do not always receive equal protection, as it depends on the situation and other relevant factors, and the legal rules are not fixed.[10] Moreover, there is a striking contradiction: refugees are present in India, but their identity is invisible in law. Indian law does not define the term refugee, nor is there a single law that defines the rights and liabilities of refugees; their status, rights, liabilities, and privileges are all based on the ad hoc policy of the government and on judicial intervention.

A. The 1951 Refugee Convention, its 1967 Protocol and India

India is not a signatory to the 1951 Refugee Convention or its 1967 Protocol; hence, India is not legally bound to follow their provisions. This often gives rise to the presumption that India does not support or protect refugees. However, this is not entirely true, because India has granted, and continues to grant, asylum to a large number of refugees from neighbouring countries. India also respects the mandate of the UNHCR by granting asylum to nationals of neighbouring countries, mainly from Myanmar and Afghanistan.[11]

B. Influx of Refugees in India Since 1947: A Historical Journey to the Present

Since India’s independence, a large number of refugees have come to India and received asylum. They came from several nations and regions of the world. The region-wise and time-wise data on refugees is given below.

1. Partition Refugees (1947). After the independence and partition of India, a large number of people were exchanged between Pakistan and India. Cities such as Faridabad (Haryana) were developed for the resettlement of these displaced people. The freedom fighter and social worker Smt. Kamaladevi Chattopadhyay played a vital role in the rehabilitation of the Partition refugees. Around 14 to 15 million people were displaced between India and Pakistan.[12]
2. Tibetan Refugees (1959). When China annexed Tibet, the Dalai Lama, along with around 100,000 followers, came to India. Subsequently, from the 1960s to the 1990s, many more Tibetan refugees came to India and settled in various parts of the country.[13]
3. Bangladesh Refugees (1971 War). When the Bangladesh Liberation War occurred, a huge number of refugees came to India. The data indicate that around 10 million people entered India in 1971 and settled in Indian territory.[14]
4. Sri Lankan Tamil Refugees (1983 Onwards). When the Sri Lankan civil war and riots occurred in 1983, lakhs of refugees came to India from Sri Lanka. The data indicate that about 304,000 Sri Lankan Tamils came to India between 1983 and 2012. Although many were returned to Sri Lanka, by 1 April 2019 about 60,438 persons were living in 107 refugee camps located in Tamil Nadu.[15]
5. Afghan Refugees (1980s Onwards). A large number of Afghan refugees took shelter in India after the Soviet invasion of Afghanistan in 1979. Reports of the World Bank and the UNHCR state that about 200,000 Afghans are currently living in Indian territory.[16]
6. Rohingya Refugees (2010 Onwards). Arising from the Myanmar crisis, especially after 2017, about 40,000 Rohingya Muslims escaped from Myanmar and took shelter in India. Recently, the UNHCR issued identity cards to 16,500 Rohingya refugees, stating that this would help protect them against detention, deportation, and unlawful arrest. The Indian government, however, has categorically stated that these people are illegal immigrants and a security threat to India.[17]

All these facts and data show that India has a rich history of welcoming refugees, as well as a positive governmental approach towards the grant of asylum.

Legal framework of india for refugees

The entire legal framework of India with respect to refugees can be classified into two categories, as follows.

A. Refugees under Indian Domestic Laws

Under this category, the relevant domestic laws applicable to refugees, directly or indirectly, are discussed.

1. The Foreigners Act, 1946. This Act gives wide powers to the Central Government with respect to foreigners. Under it, the government can identify foreigners, impose restrictions on their movement, and issue orders for the detention and deportation of foreigners. The right to expel and the power to compel compliance with the relevant statutory provisions are also included. Therefore, refugees and asylum seekers have sometimes faced prolonged detention and penalties under this Act. The Act further fails to differentiate between refugees, asylum seekers, and illegal migrants.[18]
2. The Passport (Entry into India) Act, 1920. This Act regulates the entry of a person into India. It authorises the authorities to expel a person who does not hold valid documents.[19]
3. The Registration of Foreigners Act, 1939. This Act requires foreigners in India to register their details with the authorities. It empowers the Central Government to make rules requiring foreign nationals to inform officials of their arrival, stay, travel within the country, and departure. The purpose is to record all the details of foreigners, who may also be asked to provide identification and other necessary information.[20]
4. The Citizenship Act, 1955. This Act lays down the procedure and modes by which a person can acquire Indian citizenship, such as by birth, descent, registration, or naturalisation. It also explains how a person can give up, lose, or be deprived of citizenship under certain conditions. Overall, it serves as the main legal framework for all matters relating to citizenship in India.[21]
5. The Citizenship (Amendment) Act, 2019. A recent step taken by the Indian government towards refugees and asylum seekers is the Citizenship (Amendment) Act, 2019. This law has become a matter of debate: some consider it a positive step towards refugees, while others regard it as a discriminatory measure. It provides an option for certain immigrants who came from Afghanistan, Bangladesh, and Pakistan to acquire Indian citizenship on the ground of religious persecution. It applies only to members of the Hindu, Sikh, Buddhist, Jain, Parsi, and Christian communities who entered India on or before 31 December 2014.[22] For these groups, if the stated conditions are fulfilled, the earlier rules of the parent Act of 1955 are relaxed. Earlier, the minimum residency period for naturalisation was 11 years, but after this amendment it has been reduced to 5 years.[23]

As noted, this law has become a point of debate, as it is based on religious community. Some have therefore raised concerns about its fairness and have described it as a discriminatory policy. A further argument is that it does not include refugees from Myanmar and Sri Lanka, nor does it cover persecution based on ethnicity or language.[24]

B. Refugees and the Indian Constitution

Primarily, refugees obtain certain rights and protection under Part III of the Indian Constitution, which deals with fundamental rights. Because India has no specific domestic legislation for refugees, they do not receive rights and protection under any dedicated domestic law; the few domestic laws that deal with refugees are restricted to procedural aspects. Hence, their main option is to claim protection under the Indian Constitution. Some articles of the Constitution are available to citizens as well as non-citizens, and the rights under those articles can therefore be claimed by foreigners, including refugees. These are mainly Articles 14, 20, 21, 22, 25 to 28, 32, and 226, as follows.

1. Right to Equality / National Treatment. Article 14 provides two types of equality: equality before the law and the equal protection of the laws. The first means that all are equal before the law, giving refugees the right to equal national treatment, with no discrimination between citizens and refugees. The second, equal protection of the laws, means that like should be treated alike, so that equal protection is given to those who are equally situated. Therefore, refugees cannot claim the same protection as citizens where citizenship is a precondition; otherwise, they are entitled to equal protection.[25] In essence, refugees must be treated fairly and not arbitrarily. Even if the government decides to deport a refugee, the procedure must be fair and reasonable.[26]
2. Right to Life and Liberty. The right under Article 21 is the most important right for the protection of refugees. It provides that every person, including a refugee, has the right to life and personal liberty, which cannot be deprived except according to the procedure established by law.[27] In a landmark case, Justice Bhagwati observed that the right to life includes the right to live with human dignity, which includes the bare necessaries of life such as adequate nutrition, clothing, and shelter, and facilities for reading, writing, and expressing oneself.[28] Under this article, the Indian courts have established that refugees cannot be deported by arbitrary action. The principle of non-refoulement has further been upheld indirectly: a person whose life is in danger should not be returned to a territory where such a threat exists. The court has stated that the protection of Article 21 extends to citizens and non-citizens alike, and that refugees must be protected unless their presence in India is prejudicial to the national interest.[29]
3. Protection against Conviction. Article 20 provides that a person cannot be punished for an act that was not an offence when it was committed. This provision also applies to refugees. It further protects against double jeopardy, meaning that a person cannot be punished twice for the same offence, and also protects against self-incrimination.[30]
4. Protection against Arbitrary Arrest and Detention. A common practice in the case of refugees is that they are detained for a lack of proper documents. Article 22 provides protection in this respect. Any person, including a refugee, who is arrested has the right to know the grounds of arrest and the right to consult a lawyer during interrogation, and the authorities are required to produce the person before a magistrate within 24 hours of arrest.[31]
5. Freedom to Profess Religion. Refugees often come to India owing to persecution based on religion, such as Tibetans and Rohingyas, and so they need protection together with the right to practise their religion. Articles 25 to 28 provide such freedom, with the help of which they can profess their religion without interference.[32]
6. Right to Enforcement of Fundamental Rights. Articles 32 and 226 are the most important provisions for the enforcement of fundamental rights. Refugees can directly approach the Supreme Court under Article 32 and the High Court under Article 226 if their fundamental rights are infringed. If they are detained unlawfully, they can file a writ of habeas corpus, and the court can issue a writ of mandamus if the authorities are not performing their duties lawfully.[33]

The approach of the judiciary towards refugees

India is not a signatory to the 1951 Refugee Convention or its 1967 Protocol, and is therefore not bound by that Convention. However, the protection of refugees is ensured under the Indian Constitution and by the higher courts of the country through the timely interpretation of constitutional provisions in their judgments. There are a few important cases in which the rights of refugees were protected.

In Hans Muller of Nurenburg v. Superintendent, Presidency Jail, the Supreme Court held that the Indian government has complete and full power to expel foreigners under the Foreigners Act, 1946. The Court further stated that foreigners do not have a fundamental right to reside in India.[34]

The judgment in Hans Muller was upheld in Louis De Raedt v. Union of India, where two points were settled: foreigners also have a right to life under Article 21, but they do not have the right to reside in India.[35]

In State of Arunachal Pradesh v. Khudiram Chakma, the Supreme Court, deciding the status of Chakma refugees, held that the Chakmas were foreigners and not Indians. They did not have a fundamental right to reside in India, but could claim temporary protection under Article 21 of the Constitution.[36]

In National Human Rights Commission v. State of Arunachal Pradesh, the Supreme Court held that refugees are entitled to the protection of life and liberty under Article 21. The apex court directed the Government of Arunachal Pradesh not to forcibly deport or expel the refugees, and to perform its duty of safeguarding their lives.[37]

In Ktaer Abbas Habib Al Qutaifi v. Union of India, the Gujarat High Court recognised the principle of non-refoulement in India, stating that it is indirectly enshrined in Article 21 of the Constitution, and ordered that refugees not be deported where their life is in danger.[38]

In another important case, Dongh Lian Kham v. Union of India, the Delhi High Court affirmed that the principle of non-refoulement is implicit in Article 21 of the Constitution, though subject to national security.[39]

Recently, in Mohammad Salimullah v. Union of India, an interlocutory application filed by two applicants in the main writ petition, relating to the deportation of Rohingya refugees, was disposed of. The applicants prayed for protection against deportation. Disposing of the application, the Supreme Court held that Articles 14 and 21 are available to both citizens and foreign nationals, but that the right not to be deported is concomitant to the right to reside and settle, which is covered under Article 19(1)(e) and is available only to citizens. The Court further held that, as India is not a signatory to the 1951 Refugee Convention or its 1967 Protocol, the government is not bound to follow the Convention. However, the applicants were not to be deported unless the procedure established by law had been followed. The Court also highlighted the need to balance national security and human rights.[40]

Challenges faced by refugees in india

Refugees in India face a range of practical challenges.[41] There is no determination of legal status, as no domestic law recognises the status of a refugee. Refugees face the risk of detention and deportation, limited access to employment and difficulty in finding stable jobs, the absence of uniform identity documentation, the absence of a uniform domestic law, and the lack of legal protection under any fixed law apart from the Indian Constitution. They also experience social exclusion, as citizens sometimes do not accept refugees and behave rudely towards them, and they live in fear of the authorities, which can encourage corrupt practices in government departments.

The real barriers to the enforcement of rights under the constitutional framework are that, without legal recognition and proper identification documents, basic necessities such as renting a house, obtaining water and electricity connections, accessing health schemes, and opening a bank account cannot be availed. This gap between reality and constitutional protection poses a real challenge at the ground level.

Conclusion

The present study shows that the position of refugees in India is a mix of constitutional protection and practical challenges. Although constitutional protection is available, its practical implementation remains less effective. India, despite not being a party to the 1951 Refugee Convention or its 1967 Protocol, has historically followed a humanitarian approach by providing shelter to large numbers of displaced persons. However, this approach depends largely on executive discretion rather than on a structured legal framework.

The analysis of constitutional provisions, especially Articles 14 and 21, shows that refugees are not entirely without protection. By using the term “person” rather than “citizen” in certain fundamental rights, the Indian Constitution extends basic human rights, such as equality before the law and the right to life and dignity, to refugees as well. Judicial decisions have further strengthened this protection by interpreting these rights in a broader and more inclusive manner. The courts have repeatedly emphasised that refugees cannot be subjected to arbitrary detention or deportation, and have indirectly recognised important principles such as non-refoulement.

At the same time, the study reveals a significant gap between constitutional promises and ground realities. Refugees in India continue to face serious challenges, such as a lack of legal recognition, the absence of uniform identity documentation, limited access to employment, and the constant fear of detention or deportation. The situation is made more complex by the absence of a dedicated refugee law, which results in the inconsistent treatment of different refugee groups. The selective nature of policies, as seen in the context of the Citizenship (Amendment) Act, 2019, further raises concerns regarding equality and non-discrimination.

Thus, while the constitutional framework provides a strong moral and legal foundation for the protection of refugees, it is not sufficient on its own to address the complexities of refugee issues in modern times. Reliance on judicial interpretation and administrative policy creates uncertainty and does not ensure uniform protection. Refugees therefore continue to live in a condition of legal invisibility, where their rights exist but are not fully realised in practice.

In conclusion, India stands at a crucial point where it must move from a discretionary and fragmented approach towards a more structured and rights-based system. Recognising refugees not merely as outsiders but as human beings entitled to dignity is essential for fulfilling the true spirit of constitutional values.

Suggestions and recommendations

A. Enactment of a Comprehensive Refugee Law

India should introduce a specific and comprehensive refugee law that clearly defines the term “refugee”, lays down procedures for status determination, and ensures uniform rights and protection. This would reduce ambiguity and bring consistency to decision-making.

B. Incorporation of International Principles

Even if India does not formally accede to the international conventions, it should incorporate key principles such as non-refoulement into domestic law to ensure that refugees are not returned to unsafe conditions.

C. Uniform Treatment of Refugees

The government should adopt a non-discriminatory approach and ensure that all refugee groups are treated equally, irrespective of religion, nationality, or political considerations.

D. Proper Documentation System

A structured system for issuing identity documents should be developed so that refugees can access basic services such as housing, healthcare, banking, and education without unnecessary obstacles.

E. Access to Livelihood Opportunities

Refugees should be allowed limited and regulated access to employment so that they can live with dignity and reduce their dependency on aid.

F. Strengthening Judicial Safeguards

The courts should continue to play a proactive role in protecting refugee rights and should ensure that constitutional protections are effectively implemented at the ground level.

G. Awareness and Sensitisation

Government authorities and society at large should be sensitised to refugee issues in order to reduce discrimination, xenophobia, and social exclusion.

H. Balancing National Security with Human Rights

While national security is important, it should not override basic human rights. A balanced approach must be adopted in which both concerns are addressed simultaneously.

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Footnotes

[1] Refugees, Asylum Seekers and Migrants, Amnesty International (last visited Apr. 29, 2026).

[2] Id.

[3] United Nations High Commissioner for Refugees.

[4] United Nations Relief and Works Agency for Palestine Refugees in the Near East.

[5] UNHCR, Who We Protect: Refugees, https://www.unhcr.org/about-unhcr/who-we-protect/refugees (last visited Apr. 29, 2026).

[6] Convention Relating to the Status of Refugees, Wikipedia, https://en.wikipedia.org/wiki/Convention_Relating_to_the_Status_of_Refugees (last visited Apr. 30, 2026).

[7] Universal Declaration of Human Rights art. 14, G.A. Res. 217A (III), U.N. Doc. A/810 (Dec. 10, 1948).

[8] Harper Ellington, Exploring the Rights of Refugees in International Law, IJCentral, https://ijcentral.org/exploring-the-rights-of-refugees-in-international-law/ (last visited Apr. 30, 2026).

[9] Taittiriya Upanishad, ch. 1, sec. 1.11, verse 1.11.2, Shlokam, https://www.shlokam.org/text/taittiriya-upanishad.htm (last visited Apr. 30, 2026).

[10] Khusboo Gehlot & Niranjan Pratap Singh, Non-Refoulement in India: Between Humanitarian Obligations and National Security Concerns, VII IJLLR 1329, 1330 (2025).

[11] UNHCR, UNHCR India Fact Sheet (2011), https://www.unhcr.org/ie/sites/en-ie/files/legacy-pdf/4cd96e919.pdf (last visited May 1, 2026).

[12] BYJU’S, Post-Independent India: Impact of Refugees, https://byjus.com/free-ias-prep/post-independent-india-impact-of-refugees/ (last visited May 1, 2026).

[13] Id.

[14] Martand Jha, India’s Refugee Saga, from 1947 to 2017, Mint, https://www.livemint.com/Sundayapp/clQnX60MIR2LhCitpMmMWO/Indias-refugee-saga-from-1947-to-2017.html (last visited May 1, 2026).

[15] Radhakrishnan R. et al., Rohingyas and Sri Lankan Tamil Refugees in Tamil Nadu: A Replicable Model of Semi-Permanent Resettlement in Low-Resource Settings, 41 Equality, Diversity & Inclusion: An Int’l J. 778, 780 (2022).

[16] Martand Jha, supra note 14.

[17] Id.

[18] National Human Rights Comm’n, Refugees in India, https://nhrc.nic.in/sites/default/files/Refugees_in_India.pdf (last visited May 2, 2026).

[19] Refugee Crisis in India: UN Framework, Challenges, Way Forward, Vajiram & Ravi, https://vajiramandravi.com/current-affairs/refugee-crisis-in-india/ (last visited May 2, 2026).

[20] Id.

[21] Id.

[22] Nikhil Jain, The Citizenship (Amendment) Act, 2019: A Critical Analysis Through a Human Rights Perspective, Indian Law Inst., https://ili.ac.in/pdf/15.pdf (last visited May 2, 2026).

[23] The Citizenship Act, 1955, No. 57, Acts of Parliament, 1955, Third Sch., cl. (d) (India).

[24] National Human Rights Comm’n, supra note 18.

[25] India Const. art. 14.

[26] National Human Rights Commission v. State of Arunachal Pradesh, (1996) 1 SCC 742 (India).

[27] India Const. art. 21.

[28] Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746 (India).

[29] Ktaer Abbas Habib Al Qutaifi v. Union of India, 1999 Cri. L.J. 919 (Guj.) (India).

[30] India Const. art. 20.

[31] India Const. art. 22.

[32] India Const. arts. 25–28.

[33] India Const. arts. 32, 226.

[34] Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta, AIR 1955 SC 367 (India).

[35] Louis De Raedt v. Union of India, AIR 1991 SC 1886 (India).

[36] State of Arunachal Pradesh v. Khudiram Chakma, AIR 1994 SC 1461 (India).

[37] National Human Rights Commission v. State of Arunachal Pradesh, supra note 26.

[38] Ktaer Abbas Habib Al Qutaifi v. Union of India, supra note 29.

[39] Dongh Lian Kham v. Union of India, W.P. (Crl.) No. 1884/2015 (Del.) (India).

[40] Mohammad Salimullah v. Union of India, AIR 2021 SC 1789 (India).

[41] Priya Goenka, Evolution of Refugee Protection in India, Legal Service India, https://www.legalserviceindia.com/legal/legal/article-20603-evolution-of-refugee-protection-in-india.html (last visited May 2, 2026).