Refugees and Asylum — India's Position

India hosts one of the largest refugee populations in South Asia and yet, in 2026, has no dedicated refugee statute on its books. The country is not a party to the 1951 Convention relating to the Status of Refugees, nor to the 1967 Protocol that universalised that Convention. Asylum-seekers and refugees who reach Indian territory are funnelled through a clutch of pre-Independence statutes — the Registration of Foreigners Act, 1939, the Foreigners Act, 1946, the Foreigners Order, 1948, and the Passport (Entry into India) Act, 1920 — each of which uses the single, undifferentiated category of “foreigner”. The doctrinal architecture that protects the refugee, then, is built not by Parliament but by the executive grant of stay on a case-to-case basis, by the High Courts and the Supreme Court reading Article 21 expansively, and by the National Human Rights Commission speaking up where the political branches will not.

For the judicial-services aspirant, this chapter sits at the awkward seam between public international law (where the rules are clear) and Indian municipal practice (where the rules are improvised). It is also a frequent essay-paper question and a regular MCQ quarry: the distinction between the asylum-seeker and the refugee, the difference between territorial and diplomatic asylum, the principle of non-refoulement, the holding in the Asylum Case (Colombia v. Peru, ICJ 1950), the position taken in NHRC v. State of Arunachal Pradesh on the Chakma settlers, and the running Rohingya litigation in Mohammad Salim Ullah v. Union of India. Each is set out in turn below, against the broader frame of the sources of international law and the jurisdictional limits of the territorial sovereign.

Asylum: meaning, justification, and the international setting

Asylum, derived from the Greek asylia (“inviolable place”), is the protection or refuge that a State grants on its territory — or on premises under its control — to a person who would face risk of harm in his home country. Two elements distinguish asylum from mere immigration: a shelter that is more than temporary refuge, and a degree of active protection by the authorities of the territory of asylum. The person seeking asylum has no enforceable right under international law to demand it; the sheltering State has no corresponding international duty to grant it. The asylum relationship is, classically, an attribute of the territorial sovereignty of the granting State, an inference from its plenary right to admit aliens to or exclude aliens from its territory.

The principal international instruments do not tilt this balance. The Universal Declaration of Human Rights, 1948 (UDHR), in Article 14(1), recognises “the right of everyone to seek and enjoy in other countries asylum from persecution, except where the persecutions arise from non-political crimes or acts contrary to the purposes and principles of the United Nations”. But the UDHR is a declaration, not a treaty, and the language was deliberately diluted from the original draft (“seek and to be granted”) to the operative text (“seek and enjoy”). The International Covenant on Civil and Political Rights, 1966 (ICCPR), the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR), and even the European Convention on Human Rights, are silent on a right to be granted asylum.

The 1951 Convention relating to the Status of Refugees, and the 1967 Protocol that removed its temporal and geographic restrictions, set out the legal definition of “refugee” (a person who, owing to a well-founded fear of being persecuted on Convention grounds, is outside his country of nationality and is unable or unwilling to avail himself of its protection), and define an extensive set of rights for those recognised. They do not, however, confer a right to be granted asylum. What the Convention does confer — and this is the operative norm — is the principle of non-refoulement in Article 33: no contracting State shall expel or return (“refouler”) a refugee, in any manner whatsoever, to the frontiers of territories where his life or freedom would be threatened on Convention grounds.

The 1967 Declaration on Territorial Asylum, adopted by the UN General Assembly on 14 December 1967, restated the position: a person seeking asylum should not be subject to rejection at the frontier or, if he has already entered, to expulsion or compulsory return to a place of persecution. If asylum cannot be granted on national security grounds, the State should consider provisional asylum and assist passage to another State. A 1974–75 Draft Convention on Territorial Asylum took the project further, but stopped short of an absolute right and ultimately failed because States could not agree on the class of beneficiaries.

The asylum-seeker and the refugee: a procedural distinction

The two terms are used interchangeably in lay speech, but the international taxonomy is precise. An asylum-seeker is a person who has crossed an international frontier and is seeking protection in another country, but whose claim has not yet been determined. A refugee is a person whose claim has been recognised — either by the host State or, in many jurisdictions including India, by the United Nations High Commissioner for Refugees (UNHCR) under its mandate. The asylum-seeker becomes a refugee at the moment the claim is sanctioned. The two categories carry materially different protections: the refugee enjoys the full rights set out in the 1951 Convention (where applicable), while the asylum-seeker enjoys only the negative duty of non-refoulement and the procedural right to have the claim assessed.

State's right to grant asylum, individual's right to seek it

The classical formulation, attributed to Grahl-Madsen, breaks the “right of asylum” into three faces: the right of the State to grant asylum, the right of an individual to seek asylum, and the right of an individual to be granted asylum. The first is settled — it is an attribute of territorial sovereignty under Article 1 of the Convention on Territorial Asylum, 1954, and States have practised it since antiquity. The second is implied in Article 14 UDHR and in the right to leave one's own country. The third does not exist as a freestanding rule of international law: an individual has no enforceable right under general international law to be granted asylum.

What the individual does have, however, is the negative protection of non-refoulement — the duty of every State (whether a party to the 1951 Convention or not, since the rule has now ripened into customary international law) not to send a person back to a place where his life or liberty would be in danger on Convention grounds. As the Convention's drafters intended and as State practice has confirmed, non-refoulement is narrower than asylum: it does not require admission, residence, or protection, only that the State not actively push the person back into harm. This is the doctrine on which Indian courts have built almost the entirety of their refugee jurisprudence, and it is examined in greater detail below.

The State's general right is, of course, not absolute. A State that has bound itself by an extradition treaty cannot grant asylum in derogation of that treaty. A State that has assumed Charter and Security Council obligations to deny safe haven to persons financing, planning, supporting or committing terrorist acts (Security Council Resolution 1373 (2001)) cannot shield those persons under the asylum label. And asylum cannot be granted to those for whom there are well-founded reasons to consider that they have committed a crime against peace, a war crime, or a crime against humanity — a carve-out preserved in Article 1(2) of the 1967 Declaration on Territorial Asylum.

Kinds of asylum — territorial, extra-territorial, neutral

Asylum, in the textbook scheme, falls into three categories.

Territorial asylum

Territorial (or internal) asylum is granted by a State on its physical territory. It is the standard form, and it is an uncontroversial incident of territorial sovereignty. Every State has a plenary right to admit foreigners to its territory and to grant them refuge from the authorities of the State of nationality, subject only to such restrictions as the granting State has voluntarily accepted by treaty.

India's grant of territorial asylum to His Holiness the Dalai Lama and to the Tibetan refugees who followed him after 1959 is the textbook example. The grant strained Sino-Indian relations and was contested in diplomatic exchanges, but the right itself was unimpeachable in international law: India was sovereign over its territory; the Tibetan exiles were on Indian soil; the grant did not violate any treaty obligation owed to China. The 1967 Declaration on Territorial Asylum expressly provides that the grant of asylum shall not be considered an unfriendly act.

Extra-territorial or diplomatic asylum

Extra-territorial (or diplomatic) asylum refers to refuge granted in embassies, legations, consulates, warships, or military installations situated in foreign territory. It is far more controversial. Because the embassy or consulate sits on the soil of the territorial State, a grant of asylum within those premises operates as a derogation from the sovereignty of the host State. International law accordingly recognises no general right of a head of mission to grant asylum: the practice has crystallised in regional custom in Latin America, but is not a general principle.

The leading authority is the Asylum Case (Colombia v. Peru), decided by the International Court of Justice in 1950 against the backdrop of the failed Peruvian uprising of 1948. Victor Raul Haya de la Torre, the leader of the rebellion, took refuge in the Colombian embassy in Lima. Colombia granted him diplomatic asylum and sought safe passage out of Peru, relying on a regional Latin American custom. The ICJ held that, while diplomatic asylum did exist as a regional custom in Latin America, Colombia had not proved that the custom was so settled or so generally accepted as to bind Peru in the particular case; nor had Colombia shown that Peru had specifically acknowledged the right. The grant of diplomatic asylum, the Court emphasised, derogates from the sovereignty of the territorial State by withdrawing the offender from its jurisdiction; such derogation cannot be presumed and must be established in each case, by treaty or by customary rule. The companion Haya de la Torre Case (1951) confirmed that, while the grant was irregular, the ICJ could not order Colombia to surrender Haya de la Torre to Peru — the only resolution was diplomatic.

Extra-territorial asylum may be sub-categorised by site: asylum in legations and embassies (recognised only as a temporary measure for individuals in physical danger from mob violence, or where there is a binding local custom, or under a special bilateral treaty); asylum in consulates (on the same restricted footing); asylum in the premises of international institutions (only in case of imminent violence); asylum in warships (which, under the law of the flag and the regime explored in the law of the sea, are exempt from the local jurisdiction of the host State and may grant asylum on humanitarian grounds in cases of extreme danger, or to political offenders); and asylum in merchant vessels (which are not exempt from local jurisdiction and therefore cannot grant asylum to local offenders).

Neutral asylum

Neutral asylum is the asylum that a neutral State grants on its territory to belligerent troops during a war, on condition that the troops submit to internment for the duration of the conflict. It rests on the law of neutrality rather than the general law of asylum and does not arise often in modern judicial-services questions, but the term should be on the candidate's tongue.

India's position on diplomatic asylum

India has stated her position on diplomatic asylum with unusual precision for a State that prefers to leave such matters to executive discretion. By a circular issued on 30 December 1967 to all foreign diplomatic missions in India, the Government of India made clear that it does not recognise the right of such missions to give asylum to any person within their premises. Missions were requested to refuse any request for asylum, temporary shelter, or refuge. The position was further explained on 3 November 1975, when the Indian delegate told the Sixth Committee of the General Assembly that diplomatic privileges and immunities are functional, that the functions are spelt out in the Vienna Convention on Diplomatic Relations, and that any unilateral expansion of those functions by a mission would be an encroachment on the territorial State's authority.

State practice, the delegate accepted, does permit a mission to give within its premises temporary refuge to a person in imminent danger to his life until the cessation of that danger — a humanitarian carve-out, not a withdrawal of the person from the jurisdiction of the territorial State. The Indian view, in short, is that diplomatic asylum is not a rule of general international law; that it persists as regional custom in Latin America; that India does not accept it on her territory; and that the Vienna Convention framework on diplomatic privileges and immunities is the four corners within which a mission must operate.

Refugees in India — a framework without a statute

India is not a party to the 1951 Refugee Convention or the 1967 Protocol. The official explanation, repeated in successive Government positions, has been that the Convention's definition is too narrow (it excludes those displaced by environmental, economic, or generalised armed-conflict reasons — categories which dominate the South-Asian refugee flow) and that ratification would create binding obligations of admission and protection that the State is not equipped to undertake at scale. The result is that the legal status of every refugee on Indian soil is defined not by a refugee statute but by the residual category of “foreigner”.

The statutory architecture: foreigner, not refugee

Four pre-Independence enactments do the work. The Passport (Entry into India) Act, 1920 requires every person entering India to hold a valid passport; the Government may make rules requiring a visa, may detain persons entering without authority, and may direct removal. The Registration of Foreigners Act, 1939 and the rules made under it require every foreigner above the age of sixteen to register with the appropriate authority within a stipulated period. The Foreigners Act, 1946 is the operative criminal-law statute: Section 2(a) defines a “foreigner” as a person who is not a citizen of India; Section 3 confers on the Central Government an extraordinarily wide power to make orders prohibiting, regulating or restricting the entry of foreigners or their departure or continued presence; Section 14 makes contravention a criminal offence carrying imprisonment up to five years. The Foreigners Order, 1948, made under Section 3, sets out the operational machinery, including the powers of arrest and detention exercised by the Central Government, the State Governments, and immigration officers.

Two features of this architecture matter for the refugee. First, the Acts make no distinction at all between an economic migrant, a tourist who has overstayed, an undocumented entrant, and a person fleeing persecution: each falls within the single category of “foreigner”, with the same exposure to detention, prosecution and deportation under Section 14. Second, the discretion conferred on the executive under Section 3 of the Foreigners Act is plenary in form. The doctrinal task that has fallen to the High Courts and the Supreme Court has been to read Article 21 of the Constitution into that statutory discretion so that, even in the absence of a refugee statute, the State cannot send a refugee back to face persecution.

Ad hoc grant: registration, long-term visa, and the UNHCR mandate

India's actual practice is bifurcated. For groups that the Government recognises as refugees — the Tibetans (since 1959), the Sri Lankan Tamils (since 1983), the Chakmas and the Hajongs from the Chittagong Hill Tracts (since 1964), the Bhutanese, and a smaller class of Afghans — protection has been by executive grant: long-term visa, residential permit, and access to schooling and basic services. For all other refugee populations — most of the Afghans, the Iranians, the Somalis, the Iraqis, the Sudanese, the Burmese including the Rohingya, and others — the State leaves recognition to the UNHCR India office. UNHCR conducts refugee status determination under its mandate and issues a refugee certificate; that certificate has no statutory force in Indian law, but it is in practice respected by the police and the immigration authorities, and it has been treated by the courts as a relevant administrative instrument when assessing whether deportation is permissible.

The Asylum Bill, 2015, introduced as a private member's Bill, would have created a statutory framework, defined “refugee” in line with the 1951 Convention, established a National Commission for Asylum, and laid down a procedure for refugee status determination. It has not been enacted. The legislative gap remains.

Article 21, non-refoulement and the constitutional reading-in

The constitutional doctrine that has done most of the work is the now-settled reading of Article 21 to extend its protection of “life” and “personal liberty” to every person within the territory of India, citizen and foreigner alike. The text of Article 21 says “no person”, and the Supreme Court has consistently read that text literally. Once Article 21 is engaged, the State cannot deprive a person of life or personal liberty except in accordance with a procedure that is just, fair and reasonable — the test laid down for citizens in Maneka Gandhi v. Union of India (1978) 1 SCC 248. Deportation to a country where the deportee will face a credible risk of torture, persecution, or arbitrary execution is, on this reasoning, an act of the State that abridges Article 21; non-refoulement, although not a treaty obligation binding on India, becomes a constitutional obligation by reading-in.

NHRC v. State of Arunachal Pradesh (1996) 1 SCC 742

The leading authority is National Human Rights Commission v. State of Arunachal Pradesh (1996) 1 SCC 742, decided by a Bench presided over by Ahmadi C.J. The Chakma and Hajong refugees from the Chittagong Hill Tracts had been settled in Arunachal Pradesh from 1964 onwards under a Central Government scheme. By the early 1990s, sections of the local population, working through the All-Arunachal Pradesh Students' Union, were demanding the eviction of the Chakmas. The Union approached the NHRC, which moved the Supreme Court under Article 32. The Court held that the State of Arunachal Pradesh was constitutionally bound to protect the life and personal liberty of every Chakma residing within the State, regardless of citizenship. “No State Government worth the name can tolerate such threats by one group of persons to another group of persons; it is duty bound to protect the threatened group from such assaults”. The Court directed the State Government to ensure that the life and personal liberty of every Chakma was protected; that any application for citizenship made by a Chakma was forwarded to the Central Government and processed in accordance with law; and that the Chakmas were not evicted from their homes save by procedure established by law. The decision is the touchstone authority for the proposition that Article 21 protects the foreigner, including the refugee, on Indian soil.

Ktaer Abbas Habib Al Qutaifi v. Union of India (1999 Cri LJ 919, Gujarat HC)

The Gujarat High Court in Ktaer Abbas Habib Al Qutaifi v. Union of India took the doctrine a step further. Two Iraqi nationals had entered India without valid travel documents and had been arrested under the Foreigners Act. UNHCR India had recognised them as refugees and had begun the process of resettling them in a third country. The Government proposed to deport them to Iraq. The High Court held that the principle of non-refoulement — the duty not to return a refugee to a country where his life or liberty would be at risk — was, although embodied in Article 33 of the 1951 Convention to which India is not a party, an inseparable concomitant of the protection of life and personal liberty under Article 21. The deportation order was set aside, and the petitioners were directed to be handed over to UNHCR for resettlement. The judgment is widely cited for the constitutional reading-in of non-refoulement and for the operational respect accorded to UNHCR mandate certificates.

The Burmese, Sri Lankan Tamil, and Afghan cases

Other High Courts have followed the same line. The Bombay High Court in Maiwand's Trust of Afghan Human Freedom v. State of Punjab (1989) recognised that Afghan refugees enjoyed Article 21 protection. The Madras High Court in a series of cases concerning Sri Lankan Tamil refugees has held that even Foreigners Act detainees are entitled to the constitutional procedural safeguards, that bail must be considered on Article 21 principles, and that involuntary repatriation is impermissible. The Calcutta and Guwahati High Courts have applied the same reasoning to Burmese Chin refugees. The cumulative effect is a body of High Court jurisprudence that approximates, in operational terms, the protection that the 1951 Convention would confer if India were a party.

The Rohingya litigation: Mohammad Salim Ullah v. Union of India

The most contested chapter in this jurisprudence concerns the Rohingya. After the 2017 military operations in Myanmar's Rakhine State, an estimated 40,000 Rohingya entered India through the porous Bangladesh and northeastern frontiers. UNHCR India recognised a substantial number under its mandate. The Government of India announced, by a series of communications to the State Governments in August 2017, that the Rohingya were illegal migrants and were liable to be deported. Two Rohingya refugees registered with UNHCR — Mohammad Salim Ullah and Mohammad Shaqir — moved the Supreme Court under Article 32, seeking a writ restraining their deportation. The petition raised the question whether non-refoulement, read into Article 21 by the High Courts and by the NHRC line, could bar deportation in the face of the Government's national-security determination.

By an interim order dated 8 April 2021 in Mohammad Salim Ullah v. Union of India, the Supreme Court refused to stay the deportation of approximately 150 Rohingya detained in Jammu. The Bench (S.A. Bobde C.J., A.S. Bopanna and V. Ramasubramanian JJ.) recorded the Government's submission that the Rohingya were a serious national-security concern, that the Foreigners Act conferred plenary power on the Central Government, and that India was not a party to the 1951 Convention or the 1967 Protocol. The Court, while noting that “the rights guaranteed under Articles 14 and 21 are available to all persons who may or may not be citizens”, held that “the right not to be deported is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e), which right is available only to the citizens of this country”. The deportation, the Court directed, must follow the procedure prescribed under the Foreigners Act, but no stay was granted. The substantive constitutional questions — the contour of non-refoulement, the relationship between the executive's national-security determination and Article 21, and the binding character of the UNHCR mandate certificate — remain pending in the proceedings.

The order has been criticised in the academic literature for treating the right not to be deported as a function of Article 19(1)(e) (which in terms protects only citizens) rather than Article 21 (which by its own text protects every person). The criticism notwithstanding, the order is the operative pronouncement of the Court today. For exam purposes, the candidate must hold both lines in view: the NHRC–Ktaer Abbas reading of Article 21 to absorb non-refoulement, and the Salim Ullah qualification that the right not to be deported is not unqualified and that the Foreigners Act framework remains in operation.

Distinguishing extradition, deportation, and asylum

Because the chapter sits in the same family as extradition and other forms of inter-State surrender, the doctrinal lines need to be kept clean.

1. Asylum and extradition are conceptual opposites. Asylum's purpose is to bring the person under the protection of the granting State; extradition's purpose is to surrender him to the requesting State. “Asylum stops where extradition or rendition begins”. A request for asylum cannot be entertained if extradition is pending, and an extradition court will not hear a case against a person already granted asylum.
2. Asylum and deportation are not opposites but they sit on different planes. Deportation is a unilateral act of the territorial State, performed in its exclusive interest, ordering an alien out. It is not a consensual exchange between two States. Under the Foreigners Act, 1946, the Government may deport any “foreigner” on a number of grounds, criminal or non-criminal. Asylum, in contrast, is positive protection extended to the alien, often at the cost of the political relationship with his State of origin.
3. Extradition and deportation overlap in their effect (the alien leaves the country) but differ in legal character. Extradition, governed in India by the Indian Extradition Act, 1962, is consensual and treaty-based, performed in the interest of the requesting State on the basis of a formal request, and adjudicated by a magistrate. Deportation is non-consensual and unilateral, performed in the interest of the expelling State, and is essentially executive in character, although subject to the procedural requirements of Article 21 and to limited judicial review.
4. Refoulement and deportation overlap further but are not identical. Every refoulement is a deportation; not every deportation is a refoulement. Refoulement is the specific case of returning a refugee or asylum-seeker to a country where his life or liberty is at risk on Convention grounds. The duty of non-refoulement bars that specific subset; ordinary deportation of an undocumented economic migrant to his country of origin (where no persecution risk exists) is unaffected.

Persons excluded from the asylum/refugee protection

Even within the asylum framework, certain categories of persons are excluded. The 1967 Declaration on Territorial Asylum carries forward the exclusion in Article 1F of the 1951 Convention: a person with respect to whom there are well-founded reasons for considering that he has committed a crime against peace, a war crime, or a crime against humanity, or a serious non-political crime outside the country of refuge, or acts contrary to the purposes and principles of the United Nations, is not entitled to the protection. Security Council Resolution 1373 (2001), adopted in the immediate aftermath of 11 September 2001, requires all States to deny safe haven to those who finance, plan, support or commit terrorist acts. The exclusionary clauses are reflected in the Indian executive practice of refusing long-term visa or residential permit to persons with adverse intelligence or criminal records.

In the international setting, the exclusionary clauses interact with the doctrines of individual criminal responsibility for international crimes, with the principle of aut dedere aut judicare (extradite or prosecute) embedded in the major counter-terrorism conventions, and with the obligations of co-operation owed to the international community under the United Nations Charter framework.

The international protection regime in outline

The protection regime, in its formal-international setting, has three layers. The first is the 1951 Convention and the 1967 Protocol, supervised by UNHCR under its mandate. The Convention provides a definition (well-founded fear of persecution on grounds of race, religion, nationality, membership of a particular social group, or political opinion); a substantive prohibition (Article 33 non-refoulement); and a catalogue of rights (free access to courts, public education, public relief, freedom of religion, employment for wages, and so on). India is not a party but, as a matter of customary international law, is bound by the non-refoulement core.

The second layer is the universal human rights framework: the UDHR (Article 14 right to seek and enjoy asylum); the ICCPR (Article 7 prohibition on torture or cruel, inhuman or degrading treatment, which the Human Rights Committee has read to encompass an implied non-refoulement obligation); the Convention against Torture, 1984 (CAT), Article 3, which expressly prohibits return to a country where there are substantial grounds for believing that the person would be in danger of being subjected to torture; and the Convention on the Rights of the Child, 1989, Article 22, on refugee children. India is a party to the ICCPR and to the CRC and a signatory but not a party to the CAT. The protection is enforced through the treaty-body system and, in India, through the constitutional machinery of Article 21 read with the established Indian techniques of treaty-incorporation by judicial reading-in.

The third layer is the institutional one: UNHCR, established by UN General Assembly Resolution 428(V) of 14 December 1950, with a mandate to provide international protection to refugees and to seek permanent solutions through voluntary repatriation, local integration, or third-country resettlement. UNHCR India operates under a 1981 understanding with the Government of India and conducts mandate refugee status determination for non-recognised groups. Its certificates carry no statutory force but are accorded administrative respect.

South-Asian regional context

Of the SAARC States, only Afghanistan is a party to the 1951 Convention; India, Pakistan, Bangladesh, Sri Lanka, Nepal, Bhutan and the Maldives are not. The South-Asian flow is therefore governed almost entirely by national executive practice, by UNHCR mandate work, and by domestic constitutional jurisprudence. The Eminent Persons Group of South Asia has produced a model national law on refugees, but no SAARC State has enacted it. The result is a region with one of the world's largest refugee populations and the world's least-developed regional protection framework. The Indian model — ad hoc executive grant supplemented by Article 21 jurisprudence — is, despite its conceptual untidiness, the most generous of the regional practices in operation.

Conclusion: the doctrine in three movements

The picture, for the judicial-services candidate, breaks into three movements. First, in international law: asylum is the granting State's right and the seeking individual's hope, not the seeking individual's enforceable claim. The 1951 Convention does not confer a right to be granted asylum; it confers the negative protection of non-refoulement, which has now ripened into customary international law. Diplomatic asylum is regional Latin American custom, not a general rule, and the Asylum Case (Colombia v. Peru) is its locus classicus.

Second, in Indian municipal law: there is no refugee statute, and the four pre-Independence enactments — the Passport Act, 1920, the Registration of Foreigners Act, 1939, the Foreigners Act, 1946, and the Foreigners Order, 1948 — do all the work, treating every refugee as a “foreigner”. Recognition is by executive grant for the favoured groups (Tibetans, Sri Lankan Tamils, Chakmas, Hajongs, Bhutanese), and by UNHCR mandate for the rest. The Asylum Bill, 2015, has not been enacted.

Third, in the constitutional reading-in: Article 21 has been read by the Supreme Court in NHRC v. State of Arunachal Pradesh and by the High Courts in Ktaer Abbas, the Afghan cases and the Sri Lankan Tamil cases to extend life-and-liberty protection to refugees on Indian soil and to absorb the non-refoulement principle. The reading-in has been qualified by the Supreme Court in Mohammad Salim Ullah v. Union of India, where the Court held that the right not to be deported is concomitant to the citizen's right under Article 19(1)(e) and is not available unqualifiedly to the foreigner; the Rohingya proceedings remain pending. For now, the doctrinal map is held together by Article 21, by UNHCR's operational presence, and by the High Courts' continuing willingness to read non-refoulement into the procedural machinery of the Foreigners Act. A statute, when it comes, will alter the landscape; until it does, the framework is one constructed case by case, in the seam between international law and Indian constitutional practice. For a wider doctrinal frame, see the chapter on international human rights law, the chapter on customary international law and general principles, the chapter on recognition and succession, and the survey of subjects of international law. For the broader treaty-formation backdrop, see the chapter on treaty formation, validity and termination; for India's dualist tradition, the International Law for Judiciary notes hub, the chapter on the Indian Constitution and international law, and the chapter on the public-private international law distinction; and for the threshold concepts, the chapter on the nature, definition and basis of international law.

Frequently asked questions

Is India a party to the 1951 Refugee Convention or the 1967 Protocol?

No. India has consistently declined to ratify either instrument. The official explanation is that the Convention's definition of "refugee" is too narrow for the South-Asian context (it excludes persons displaced by environmental, economic or generalised armed-conflict factors) and that ratification would create binding obligations of admission and protection that the State is not equipped to undertake at scale. India is, however, bound by the customary-international-law core of non-refoulement, which the High Courts and the Supreme Court have read into Article 21 of the Constitution.

What is the principle of non-refoulement, and is it binding on India?

Non-refoulement is the duty of a State not to expel or return (refouler) a refugee, in any manner whatsoever, to the frontiers of territories where his life or freedom would be threatened on Convention grounds. It is set out in Article 33 of the 1951 Refugee Convention. Although India is not a party to the Convention, the principle has now ripened into customary international law, binds India in that capacity, and has been absorbed into Article 21 of the Constitution by the Gujarat High Court in Ktaer Abbas Habib Al Qutaifi v. Union of India (1999 Cri LJ 919) and by the line of High Court authority that has followed it.

What did the Supreme Court hold in NHRC v. State of Arunachal Pradesh on the Chakma refugees?

In National Human Rights Commission v. State of Arunachal Pradesh (1996) 1 SCC 742, the Supreme Court held that the State of Arunachal Pradesh was constitutionally bound to protect the life and personal liberty of every Chakma residing within the State, regardless of citizenship status. The Court directed the State to ensure that the Chakmas were not evicted from their homes save by procedure established by law, and that any application for citizenship was to be forwarded to the Central Government and processed in accordance with law. It is the touchstone authority for the proposition that Article 21 protects every person, including the foreigner and the refugee, on Indian soil.

What is the difference between territorial and diplomatic (extra-territorial) asylum?

Territorial asylum is granted by a State on its physical territory and is an uncontroversial incident of territorial sovereignty — every State has plenary power to admit aliens. Diplomatic or extra-territorial asylum is granted in embassies, consulates, warships or military installations on the soil of another State and operates as a derogation from the host State's sovereignty. The International Court of Justice in the Asylum Case (Colombia v. Peru, 1950) held that diplomatic asylum exists as regional custom in Latin America but is not a general rule of international law. India does not recognise diplomatic asylum, as set out in the Government's circular of 30 December 1967 to all foreign missions in India.

What did the Supreme Court hold in Mohammad Salim Ullah v. Union of India on the deportation of the Rohingya?

By an interim order dated 8 April 2021, the Supreme Court refused to stay the deportation of approximately 150 Rohingya detained in Jammu. The Bench (S.A. Bobde C.J., A.S. Bopanna and V. Ramasubramanian JJ.) held that while the rights guaranteed under Articles 14 and 21 are available to all persons whether or not they are citizens, the right not to be deported is ancillary to the citizen's right under Article 19(1)(e) and is not unqualifiedly available to the foreigner. The deportation was directed to follow the procedure prescribed under the Foreigners Act, 1946. The substantive constitutional questions on non-refoulement remain pending in the writ proceedings.

What is the difference between an asylum-seeker and a refugee?

An asylum-seeker is a person who has crossed an international frontier and is seeking protection in another country, but whose claim has not yet been determined. A refugee is a person whose claim has been recognised — either by the host State or, in jurisdictions like India that have no statutory determination procedure, by the United Nations High Commissioner for Refugees (UNHCR) under its mandate. The asylum-seeker becomes a refugee at the moment the claim is sanctioned. The two categories carry different protections: the refugee enjoys the full Convention rights (where applicable), while the asylum-seeker has only the negative protection of non-refoulement and the procedural right to have the claim assessed.