Introduction

Every year millions of people are forced to abandon their homes and flee in search of safer and
better places to rebuild their lives. There are several reasons that cause people to leave behind
their entire life and move to an unknown place, including armed conflicts, human rights
violations, persecution and several other forms of exploitation.

The need for international protection of refugee rights arose right after the Second World War
when people around the people were forced out of their homes. This led to the formation of the
United Nations High Commissioner for Refugees, an international body that seeks to provide
protection to refugees and formulate lasting solutions to refugee problems.

Even though India does not have a framework for refugee protection and is not a signatory to
the 1951 Refugee Convention or the 1967 Protocol, the country continues to provide a home
to a large number of refugees from neighbouring countries. In the recent past, India's concerns
around security have led to a more restrictive approach on providing asylum.

However, there are still a large number of refugees seeking asylum in the country. This brings
in the need for a national refugee protection law that protects the human rights of those who
were persecuted out of their homes.

Understanding the term refugee

Refugees are 'migrants' in the broader sense of the term; yet they continue to be a distinct
category of people. They are referred to those persons who leave their States in which they
have permanent residents to escape persecution or military action. The Convention Relating to
the Status of Refugees of 1951 defines refugees under Article 1 as under:

Any person who owing to well founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is outside the country
of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the
protection of that country; or who not having a nationality and being outside the country of his
former habitual residence as a result of such events, is unable or, owing to such fear, is
unwilling to return to it.

The above definition lays down that only those persons shall be deemed refugees who have
well-founded fear of persecution, i.e., who has serious threat to life and liberty. Such persons
are said to be political refugees as opposed to ordinary migrants or economic refugees or those
who leave their Country for reasons purely for personal convenience. The crucial phrase in the
definition is “well founded fear of being persecuted” which comprises subjective state on the
part of the refugees (Fear) and objective facts about the country from which the refugees is
fleeing (‘well founded’, ‘persecuted’).
Although these terms have not been defined by the Convention, torture, discriminations of
Race, sex, religion, nationality, language or membership of a particular group and other reasons
may be regarded as the cause of persecution. Thus, those persons fleeing from political
persecution can effectively qualify for refugee status because persecution is a denial of human
rights.

Due to several misconceptions around who is a refugee, it is often assumed that "refugees",
"migrants" and "asylum seekers" mean the same and are used synonymously. However,
refugees constitute a special class of persons different from migrants and asylum seekers. This
difference must be noted in order to examine who can qualify as a refugee and be entitled to
several rights, protection and support under international laws and conventions.

A refugee, as generally understood, is a person who has been forced to flee their own country
due to the fear of violence, persecution, war or other forms of conflict. An immigrant, on the
other hand, is a person who makes a conscious decision to leave their country and move to a
foreign country, not due to fear of violence or threat, but to settle there and improve their
lifestyle. An asylum seeker is someone who claims to be a refugee, but their claim has not been
approved yet. Like refugees, they seek international protection from the threats present in their
home country. However, to classify as a refugee, they must prove to the authorities that they
fall within the legal definition of a refugee and are entitled to the protection and care available
to them.

• Article 1 of the Convention relating to the Status of Refugees 1951, defines a refugee in
three ways Inclusion, Cessation and Exclusion.
• Article 1(A) is an inclusionary provision that lays down the requirement to be met with to
fall under the definition of a refugee, including alienage. The clause also states that there
must be a well-founded fear among the members and this fear must be reasonable. It also
lays down five grounds for persecution - race, religion, nationality, membership of a
particular social group and political opinion. In order to determine if the risk of persecution
is reasonable, several factors must be looked at, such as violation of human rights, nature
and severity of the rights denied, and restrictions imposed, and so on.

The grounds mentioned under this article are broad enough to cover any persecution based on
gender, caste etc and thus expands the scope of the meaning of refugee.

• Article 1(C) describes when a person who was previously classified as a refugee loses their
status. This section lays down several situations where a person's refugee status ceases to
exist due to acts done by the person or changes in circumstances that indicate that the risk
of persecution no longer exists.
• Article 1(D)-(F) specifies which members will not classify as refugees and excludes them
from the definition. In order to legally classify a person as a refugee, they must be in
accordance with all clauses mentioned under Article 1.
International Refugee Law and Human Rights of the Refugees

International Legislations on Refugee Law

Internationally applying law governs the interests of forcibly displaced persons and ensures
them with proper protection and support in the foreign country. The important legal
frameworks for refugees can be studied under three main heads-

• International Refugee law;

International Refugee Law

The core instruments of the international refugee law are the 1951 Convention relating to the
Status of Refugees and the 1967 Protocol.

1. 1951 Convention relating to the Status of Refugees

The 1951 convention lays down the foundation for the international refugee law and was
formulated in the aftermath of World War 2. It lays down the meaning and scope of the term
"refugee", sets out several duties of the refugees in the host country and the responsibilities of
the states towards them. It also establishes one of the key principles to ensure that the refugees
are not forced back to their home country where there is considerable danger to their life or
basic human rights.

The convention was made in the context of the events during the Second World War and due
to this, the definition of the refugees was temporal and geographically limited as being
applicable to the events in Europe before 1 January 1951. However, over the years, there arose
a need for a universal instrument to ensure the protection of the refugees. This led to
amendments and the adoption of the 1967 Protocol.

2. 1967 Protocol

The protocol aimed at removing the limitations present in the 1951 convention but remained
integrally related to the convention. It redefined the application of the term refugees, thus
overcoming the time and space-related limitations. The protocol ensures the application of the
core content of the 1951 convention to all persons falling within the revised definition of a
refugee.
International Human Right Law

1948 Universal declaration of human rights

The international refugee law does not operate in isolation and must be in compliance with
several basic rights guaranteed under the declaration of human rights. Article 14(1) specifically
provides the right to seek and enjoy asylum in other countries.

In addition to stating the basic rights that are applicable to all humans, including refugees, the
human rights law also specifies the states obligation to respect, protect and fulfil the rights of
their citizens.

International Humanitarian Law

Geneva Conventions of 1949 and the Additional Protocols agreed in 1977

A large number of refugees are displaced in the midst of internal conflicts or war-like situations.
The principles of the International Humanitarian Law which deal with the laws of war or armed
conflict are applicable to protect them.

A major part of this law is covered in the Geneva Conventions of 1949 and Additional
Protocols of 1977. These ensure protection for those people who do not take part in fighting
or are not in a position to fight. This is applicable to a wide range of persons from sick and
wounded soldiers to civilians of the countries. This limits the effect of the conflict on the
members who are not directly involved.

The Aspect of Human rights of refugees

Importance to protect rights of refugees

As discussed, the international refugee law and the human rights law work conjointly. This
ensures that the rights of the refugees are not violated by the home country or the foreign
country they are forced to cohabit in.

The refugees are forced to leave behind their homes, livelihood and move to a new place, which
leaves them in a vulnerable and unstable position. In such a state, it becomes more important
to ensure that their human rights are restored and protected. It is also important that the host
country recognizes and upholds its rights.
The rights which need to be protected are as follows:

I. Principle of Non-refoulement

The principle of non-refoulement is stated under Article 33(1) of the 1951 convention. This
basic principle refers to the obligation of the states to not forcibly return or expel a refugee to
a territory that endangers or poses a threat to their life or freedom. However, just like all the
other principles, this principle has certain exceptions that have been stated under Article 33(2),
under which a refugee can be made to return to their home country. The exception can be valid
if there exists a sufficiently serious danger to the security of the host country or to its
community due to the refugee.

II. Principle of non-discrimination

The principle of non-discrimination is one of the core principles of all international laws. Any
discrimination on the basis of sex, religion, language, political opinion and so on is strictly
prohibited. Article 3 of the 1951 convention upholds this principle while obliging the states to
apply all provisions following the principle of non-discrimination.

It is thus a basic right of the refugees to not be discriminated against in the host country. All
provisions must be applied in a fair manner and as per this principle. The application of this
principle extends to all rights from granting the status of a refugee to the treatment and care
given to them in the host country.

III. Right to family life

The family is recognized as a fundamental group unit of the society and is thus entitled to be
protected from separation or breakage. When refugees are forced to leave their homes in a state
of fear and chaos, often many members of the families get separated from each other. This
increases their risks to violence and exploitation, which makes them entitled to protection by
the state.

The Conference of Plenipotentiaries that adopted the 1951 Convention reaffirmed the
"essential right" of family unity for refugees. The right to family unity has been read into the
right to family life, which is a basic right for all refugees. Family reunification in asylums is
thus, an important right that all refugees are entitled to.

Basic rights to be guaranteed by the host country

This is a socio-economic right that all refugees are entitled to. It enables the refugees to earn a
living for themselves and improve their standards of living. In addition, this also reduces the
dependence of the refugees on the state and thus, the burden of the state. It also contributes to
a more cohesive society by improving contact between refugees and the local community.

B. Right to education

Education is an essential requirement in order to enable the realization of other rights. Non-
discriminatory education is a fundamental right that protects refugee children from illiteracy,
abuse, exploitation, child labour and other evils. It also enables them to find better work and
reduce their reliance on the state for a livelihood.

C. Freedom of Movement

Freedom of movement within the host country is a key right recognized under Article 26 of the
1951 convention which gives refugees the right to choose their place of residence within the
territory and to move freely within the State. This ensures that the state does not impose
discriminatory restrictions that apply only to the refugees to confine them to a certain area.

D. Right to access basic facilities

The refugees also have the right to access several facilities to ensure social welfare and proper
health.

They have a right to a standard of living adequate for their health and well-being. This right
extends to their right to access the courts in case of violation of their rights and be treated in a
non-discriminatory manner before the court. However, in reality, many refugees are often
unable to access these facilities due to several challenges such as poverty, marginalization and
discrimination.

Challenges in Implementing International Refugee Law

Despite the legal framework, several challenges hinder the effective protection of refugees:

• Lack of Enforcement Mechanisms – Many states fail to implement international

Need for refugee laws in India

India is one of the most prominent refugees receiving countries in the world. On the face of it,
it appears that India, being home to such a huge number of refugees, is flexible and welcoming
in its treatment of the refugees. However, considering that the country is not a signatory of the
1951 convention and the 1967 Protocol and also has no national refugee law governing the
rights of the refugees, it is clear that the government is following an ad hoc policy regarding
the refugees.

The lack of a specific statutory framework or policy in order to protect the refugees poses wide-
ranging problems that need to be addressed. The absence of such a framework allows the
government to keep their options open while dealing with the refugees and provides them with
the leeway to declare such refugees as "illegal immigrants" and deport them under the
Foreigners Act of 1946. A major drawback of implementing this statute to the refugees is that
the legal status of the refugees is thus no different from those ordinary aliens whose presence
is regulated essentially by the Foreigners Act of 1946 and the Passports Act of 1920.

Due to the lack of a proper definition for a refugee as per Indian law, the government often
fails to distinguish between migrants, refugees and asylum seekers and places all the groups
under foreigners. What the government fails to take into consideration before classifying
refugees as "illegal immigrants" is that the refugees or asylum seekers are displaced out of their
countries by force and cannot return due to a threat to life and freedoms. Unlike migrants, they
do not make a conscious decision to shift to another country in a voluntary search for social
and economic betterment.

The main condition for the deportation of a foreigner is the lack of a valid passport or visa to
enter India. Considering that the refugees are driven out of their homes due to violent situations,
it is likely that they contravene these provisions and are thus liable to prosecution and can be
deported back to a place where there exists a fear or threat to their life or freedom. Such
treatment is in violation of the principle of non-refoulement established under the 1951
convention as it endangers the rights and safety of the refugees.

A lack of a specific statute governing the basic laws of the refugees also gives scope for the
government to formulate discriminatory laws against the refugees and implement them under
the pretext of illegal immigrants. Such discrimination could also lead to different refugee
communities being subjected to varying standards of protection. The lack of a proper definition
of refugee and collaboration with international bodies has led to the refugees receiving no
official acknowledgement. This makes it even more difficult to ensure proper care and
protection against harassment and discrimination.
However, despite the several drawbacks of the lack of a statutory framework or national policy,
there are several basic rights that are guaranteed to all persons under the Indian Constitution.
This also extends to refugees who abandon their country and seek asylum in India. The
constitution guarantees to every person, equality before the law and the right to protection of
life and liberty which is a fundamental right. In extension, all persons are also guaranteed the
right to a free trial in case of violation of rights.

The Supreme Court in the case of the National Human Rights Commission v. State of
Arunachal Pradesh (1996) has restricted the forcible expulsion of the Chakma refugees from
the state and asked the state to protect the refugee groups right to life and personal liberty. In a
number of such cases, the courts have protected the refugees right against refoulement and the
right to life, thus providing the refugees basic security in the host country.

From this analysis, we can observe that the Indian law around the refugee law is not clear and
explicitly stated and this has given scope to violate the human rights of the refugees. Even
though the courts have upheld certain rights of the refugees, the area regarding what rights of
the refugees are protected also remains unclear due to the lack of a proper policy. There is thus,
an urgent need for a proper statute specifying the rights and obligations of the refugees and the
state, and the procedure to be followed while handling refugees in India.

Legal obligations to protect refugees of Northeast India

The major international obligations to protect the rights of the refugees against refoulement,
discrimination etc specifically emerge from the 1951 convention and the 1967 protocol. India
is not a signatory and is thus not under any direct obligation to protect the rights of the refugees
in India. However, as discussed earlier, the International Refugee law cannot work in isolation
from other humanitarian and human rights laws.

Mere refusal to sign the 1951 refugee convention on India's part does not absolve it from
adhering to the basic humanitarian commitment to the protection of the refugees. Non-
signatories are very well under an indirect legal obligation to respect the basic rights of the
refugees if they are parties to the Human Rights Conventions. India is a member of this
convention and is thus indirectly obliged. Therefore, international law as a whole must be
looked at while evaluating its role in protecting the refugees of northeast India.

The United Nations High Commissioner for Refugees, which has an office in New Delhi,
recognizes nearly 185,000 refugees. However, the actual figures are contemplated to be much
higher. The lack of proper access due to India being a non-signatory has restricted the
commission from gathering a thorough estimate. A large number of these refugees are known
to be present in the north-eastern states as they share international borders with several
neighbouring countries and absorb large amounts of refugees from them.
As previously discussed, instead of having a codified law, the Indian government has been
administering the issue of refugees by political and administrative decisions. These actions of
the government are however governed by international humanitarian and human rights laws.
This can be understood in the context of the refugees' basic right against refoulement, which
has been stated under the 1951 convention and must be followed by all signatories. India is not
a signatory to the convention and thus is not directly obliged to follow this principle. However,
even non-signatories are indirectly obliged to respect this basic right of the refugees as per
other international conventions such as the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, the Fourth Geneva Convention of 1949
(Article 45) and the International Covenant on Civil and Political Rights (Article 7).

In addition, the Universal Declaration of Human Rights also places an obligation on all states
to guarantee certain basic rights to everyone and also specifically states the refugees right to
seek asylum. Thus, though India is not a signatory of the refugee convention and its protocol,
several other international legislations look over the actions of the government and safeguard
the basic rights of the refugee in northeast India.

Though India has been known to respect the refugees right against refoulement and provide a
home to huge numbers of refugees and asylum seekers, the recent events indicate that the
government is going back on this policy by refusing to host refugees and expelling them by
branding them under the umbrella of "illegal immigrants". Therefore, India’s approach towards
dealing with refugees lacks uniformity in law and policy which leaves the refugees in a
vulnerable position and at the will of the government.

Conclusion

Over 1% of the world's population is displaced from their homes today. It is essential to ensure
that these people are provided with immense care and protection from further threats. This
requires cooperation between the international bodies and all the countries.

India being home to a large number of refugees cannot ensure the proper support and protect
their rights in the absence of a specific statute. In order to ensure a uniform and fair procedure
while dealing with refugees, the government must enact a specific non-discriminatory law for
the refugees. It is also important that the country gives these refugees a legal status and does
not treat them under the ambit of "foreigners" or "illegal immigrants". Also, the denial of
asylum to refugees in need is not a solution to the huge influx caused over the years and cannot
be the reason to endanger their life or freedom.
 Case Study: Chakma Refugees in Northeast India
Background
The Chakma are an ethnic Buddhist community originating from the Chittagong Hill Tracts (CHT)
in present-day Bangladesh. Following the construction of the Kaptai Dam in 1962, which
submerged their lands, and increasing religious persecution, many Chakmas migrated to India’s
Northeast, particularly Arunachal Pradesh, Mizoram, and Tripura.
Legal and Political Challenges
. Citizenship Crisis
○ The Chakma refugees were initially settled by the Indian government, but they were
never fully integrated.
○ The Citizenship (Amendment) Act, 2019 (CAA) allows non-Muslim refugees from
Bangladesh, Pakistan, and Afghanistan to apply for Indian citizenship. However, many
Chakmas continue to face citizenship hurdles due to opposition from local
communities.
. Opposition from Indigenous Communities
4
○ Local tribes in Arunachal Pradesh see the Chakmas as outsiders threatening their
land and resources.
○ There have been instances of social and economic discrimination, including
restrictions on land ownership and employment.
. Supreme Court Intervention
○ In NHRC v. State of Arunachal Pradesh (1996), the Supreme Court of India ruled
3
against the forcible expulsion of Chakma refugees, affirming their right to life and
personal liberty (Article 21).
○ Despite this, efforts to grant them citizenship have been delayed due to political
resistance.
. Recent Developments
2
○ In 2015, the Supreme Court directed the government to expedite the citizenship
process for Chakma refugees, but implementation has been slow.
○ The Arunachal Pradesh government continues to oppose their settlement, citing
concerns over demographic imbalance.
Current Situation and Way Forward
● Many Chakmas remain stateless, lacking access to government schemes, education, and
healthcare.
1
● There is a need for a balanced approach that ensures citizenship rights for Chakmas
while addressing concerns of indigenous communities.
● Legal clarity on their refugee status and citizenship eligibility is essential to prevent further
marginalization.
This case highlights India’s inconsistent refugee policy and the challenges of integrating
displaced communities without a comprehensive refugee law.