International Refugee law:

 2 instruments:
 1951 convention on the status of refugees
 1967 protocol (removed temporal and geographical limitation of 1951 convention)
 Definition of refugee: Article 1.
 Persons 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 his country.
 India is neither a party to the convention nor the protocol.
 Before partition, India hosted a number of refugees- Poland feeling USSR intervention, Jews
from Germany, provided assistance, sanctuary, and identity certificates to Russian refugees
etc.
 However, post-partition, it had been faced with its own refugee problem, and ‘had been
unable to give anything more than moral support to the International Refugee Organization’
 The Indian representative pointed out that this ‘was not from lack of sympathy with its aims,
but from lack of resources’.
 Although India engaged in the formal drafting process of the convention, it expressed various
concerns such as the definition of refuges and not addressing the refugee issues resulting
from partition- euro-centric- however their views were met with resistance.
 India stated that the ‘objections raised confirmed their belief that fundamental differences
existed’.
 As a result, India and other South Asian states decided to develop mechanisms which were
aligned with their regional concerns and addresses their specific needs.

India:

 According to 2022 data, there are 2,42,853 refugees mainly from Tibet, Nepal, Sri Lanka and
Bhutan and more than 46000 asylum-seekers in India, mostly from Myanmar and
Afghanistan.
 India hosts its own share of refugees although the practice is not consistent:
 Tibetan Refugees in India:
 Soon after the arrival of the Dalai Lama in 1959, India formally granted him
asylum— and by extension, to any Tibetan fleeing violence.
 This policy was initially a response to public opinion and a feeling of kinship.
 Subsequently, India initiated relief efforts to assist Tibetan refugees.
 At the peak of the Tibetan refugee movements into India in 1961, the Lok
Kalyan Samiti (a Delhi-based NGO) and the Central Relief Committee for
Tibetan Refugees were involved in providing aid.
 The Indian government also welcomed aid from voluntary organizations, and
the Central Relief Committee was responsible for receiving and coordinating
it.
 In addition to international aid, the Indian government provided Tibetan
refugees with ‘subsistence money, land to settle, and administrative
support upon arrival’.
 They were also issued with Indian Registration Certificates on a prima facie
basis, which they could use as an identity document as well as a residence
permit.
 They also have free movement, access to residence and work permits
  In comparison to other refugees, Tibetan refugees have received far better
treatment
 Bangladeshi refugees:
 India and Pakistan went to war in 1971 over the right of East Pakistan to
secede
 These geopolitical instabilities were manifestations of postcolonial nation-
building and the politics of newfound nationalism
 This prompted a mass forced migration into the neighbouring Indian states
of West Bengal, Tripura, Meghalaya, and Assam.
 Within 7 months in 1971, the influx from East Bengal- 9.5 million.
 Sri Lankan refugees:
 In 1983, soon after the anti-Tamil riots in Sri Lanka, several thousand
refugees arrived in India
 By the mid-1980s, many Sri Lankan refugees were living in government-
assisted refugee camps, most of which were situated in the southern Indian
state of Tamil Nadu.
 While India’s response to the exodus of Tamil refugees was positive initially,
over time their presence began to be viewed as a threat to national security.
 This was the result of the assassination in 1991 of the former Prime Minister
of India, Rajiv Gandhi
 The state government of Tamil Nadu had imposed rigid restrictions on the
movement of Sri Lankan Tamil refugees after the assassination.
 The government also initiated repatriation procedures, and many Tamil
refugees began to be settled in temporary transit camps in Sri Lanka.
 The programme was suspended after concerns were raised about their
security.
 This led to UNHCR establishing an office in Chennai, based on a
memorandum of understanding between the Indian government and
UNHCR.
 They are given food, shelter, access to informal labour market and
allowances in designated refugee camps.
 Today, there are still more than 62,000 Tamil refugees living in 107 camps in
Tamil Nadu, and around 37,000 refugees living outside of the camps
 India has instituted a policy to grant them residence visas and work permits.
However, little has been done to enable them to apply for citizenship and
many continue to live in a state of limbo.
 Rohingya refugee:
 According to Human Rights Watch, an estimated 40,000 Rohingyas are in
India
 India has maintained its position not to host them.

Principle of non-refoulement:

 Considered as the bedrock of international protection of refugees

 Without this principle, no legal protection to refugees becomes meaningful and complete.
 The principle strictly forbids expulsion of refugees where they may be exposed to threats to
their life or freedom
  However, the 1951 refugee convention subjects the rule of non-refoulement to national
security and public order exceptions (Article 33(2))- security of the country and danger to the
community of that country
 Article 33 (2) of the same allows State Parties to expel a refugee to persecutory places if they
pose danger to the security of the country or having being convicted of serious crimes-
safeguard their security or the safety of the community in which the refugee is staying.
 In this connection, there has been a persisting debate on whether the State of asylum is
required to apply the test of proportionality before it sends a refugee to places where
his/her life or freedom may be endangered
 Many Scholars and several national courts maintain divergent views on the issue with still no
consensus in sight.
 Although the scope of its application is still debated, non-refoulement is considered to be a
rule of customary international law- but jus cogens?
 OAU, Cartagena, CAT. Regional Human rights courts- non-refoulement without exception.

Test of proportionality/balancing test:

 Besides the validity of non-refoulement exceptions, there is also vigorous debates in both
academia and judicial practice, on the application of the test of proportionality especially in
circumstances where refoulement is triggered by national security grounds.
 Is the State of asylum required to balance between its security interests and the possible
danger facing the refugee or should the fact that he is a national security danger be the only
condition precedent to send him to a territory where he faces risks of persecution?
 Many scholars oppose this balancing test-
 Firstly, they argue that the drafters have already inculcated proportionality in the
provision by contemplating refoulement only for exceptional and extreme
circumstances, thus; there is no need to bring in an additional balancing test.
 Secondly, given that the objective of article 33(2) is the protection of the most
fundamental interests of the host State and its community, the introduction of
proportionality test would be contrary to this objective.
 Many scholars also argue for the requirement of the test:
 argues that there should be balancing of the refugee’s fear of persecution against
the danger that he or she presents to the security of the country.
 It also argues that it requires the asylum-State to give full consideration to the nature
of risk faced by the refugees before executing its deportation order.
 Many courts have supported the proportionality test (UK Court of Appeal in Regina v. SSHD,
Suresh v. Canada).
 Many courts also rejected the proportionality test (Appeals in Zaoui v Attorney-General)
 From a purely textual point of view, there is therefore nothing that forbids States, if they
wish, from weighing their security interests with the harm the refugees may encounter in the
country of return. All the same, there is nothing which obliges them to do so

Constitutional provision and case law:

 Since India is not a party to the two international instruments on refugees, the judiciary plays
a proactive role in developing the jurisprudence of refugee protection.
 India international obligation to instruments such as ICCPR, CRC, UDHR creates an obligation
on the courts to give due regard if it is not inconsistent with its domestic laws.
 Article 51 (c)
  National Human Rights Commission v. State of Arunachal Pradesh (1996)
 Ktaer Abbas Habib Al Qutaifi v Union of India (1999) originated from a special civil
application to the High Court of Gujarat, which sought direction to release two Iraqi asylum
seekers from detention in Gujarat.
 The petitioners sought a stay of deportation, based on the principle of non-
refoulement, and release from detention.
 The court noted the Supreme Court’s ruling in NHRC that the Constitution
guarantees certain fundamental human rights to non-citizens, and held that ‘the
principle of non-refoulement prevents expulsion of a refugee where his life or
freedom would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion’
 The court further stated that this aligned with ‘Article 21 of the Constitution, so long
as the presence of refugee is not prejudicial to the law and order and security of
India. All member nations of the United Nation including our country are expected
to respect for international treaties and conventions concerning Humanitarian law.
 Nandita Haksar v. State of Manipur (2021)

Relationship with UNHCR:

 India has permitted UNHCR to operate in its territory- 1981 Delhi and 1992 Chennai.
 In some cases, on account of the absence of a formal legal framework governing the
treatment of refugees and the lack of an administrative framework to determine refugee
status, UNHCR undertakes refugee status determination (RSD) itself.
 For instance, in India, UNHCR is actively engaged in protection activities including the
registration of asylum seekers, RSD, and the provision of documentation facilitating their
right to stay in India without the risk of deportation or detention.
 It conducts RSD for certain groups of refugees, whereas others, such as Tibetan and Sri
Lankan refugees, are assisted directly by the Indian government.
 This is an example of how, in India, different refugee groups enjoy different privileges.
 In some other cases, UNHCR has undertaken RSD at the insistence of the judiciary
 For instance, in Bogyi v Union of India (1989), the High Court of Assam stayed the
deportation order of an asylum seeker from Myanmar and directed the UNHCR
office in New Delhi to consider his application for political asylum.
 Similarly, in Malavika Karlekar v Union of India(1992), the Supreme Court of India
stayed the deportation of 21 Burmese Nationals from the Andaman Islands, pending
their RSD by UNHCR.