Non-Refoulement in India: Constitutional Promise or Executive Discretion?

Abstract

India has long offered shelter to people fleeing war, persecution, and political unrest, from Tibetans and Bangladeshis to Sri Lankan Tamils, Afghans, and Rohingyas. Yet the country still has no dedicated refugee law, and refugees remain governed by ordinary immigration statutes. The Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920 have now given way to the Immigration and Foreigners Act, 2025, but this new law too makes no distinction between refugees and other foreign nationals. India is also not a party to the Refugee Convention and its Protocol. Even without a specific statutory framework, Indian courts have on occasion read the principle of non-refoulement into the constitutional guarantees of equality and life under Articles 14 and 21. Cases such as Gurunathan v. Government of India, National Human Rights Commission v. State of Arunachal Pradesh, and Nandita Haksar v. State of Manipur show this constitutional willingness, while Mohammad Salimullah v. Union of India marks a shift toward a more restrictive approach, one that gives primacy to national security and executive discretion. This paper asks whether non-refoulement has genuinely become a constitutional guarantee in India or whether refugee protection still hinges on executive policy. It examines the international legal position, India's constitutional and statutory framework, and the sweeping powers under the Immigration and Foreigners Act, 2025 and argues for a comprehensive refugee law, a fair asylum determination process, and stronger judicial oversight so that protection rests on legal right rather than discretion.