India Without a Refugee law: Balancing National Security and Human Rights

Abstract

India has a continuing humanitarian tradition of providing shelter to refugees fleeing persecution, conflict and violence despite not being a signatory to the 1951 refugee convention and its 1967 protocol. However, the absence of a specific domestic refugee framework leads to refugees being governed under the same general laws as foreigners creating uncertainty regarding their legal status and protection. This article examines India’s refugee framework and analyses the constitutional and judicial safeguards available to refugees, under Article 14 and Article 21 of the Indian Constitution. It also explores the reasons behind India’s decision not to accede to the 1951 Refugee Convention, including concerns relating to national security, mass influxes of refugees, and the need for a greater reform in refugee management. This article critically examines the judicial balancing of humanitarian obligations and national security through landmark decisions such as NHRC v. State of Arunachal Pradesh, Louis De Raedt v. Union of India, Ktaer Abbas Habib Al Qutaifi v. Union of India, and Mohammad Salimullah v. Union of India. It argues that although constitutional protection and judicial intervention have provided limited safeguards, they cannot substitute for a comprehensive statutory framework. The article concludes by advocating for a balanced domestic refugee law that clearly defines refugee status, establishes a fair refugee status determination process, incorporates the principle of non- refoulement, and also addresses national security concerns through appropriate regulatory mechanism.