The Legal Framework Surrounding India’s Refugee Policy Revisions in 2024

This article has been written by Sujal Shekhar, a law student from Delhi Metropolitan Education (IP University).

Abstract

Since India lacks a distinct national legal framework for refugees, its approach to refugee policy has always been characterised by a combination of strategic prudence and compassion. India started making major changes to its refugee policy in 2024 in response to the escalating worldwide displacement crises and regional instability. The goal was to make clear the rights and obligations of refugees and guarantee their incorporation into the legal system of the nation. The legal underpinnings, modifications, and new protections within the Indian legal framework are all examined in this article’s thorough review of India’s 2024 reforms to its refugee policy.

This article explains the development of India’s refugee policy through the prism of international agreements, recent court decisions, and constitutional restrictions. It seeks to comprehend the intricacies of India’s updated refugee framework by addressing significant obstacles, regional effects, and future opportunities while taking into account the country’s sociopolitical context and its responsibilities to strike a balance between humanitarian responsibility and sovereignty. India made major changes to its framework for refugee policy in 2024 in response to the growing complexity of forced migration and regional instability.

India has historically accepted refugees on an as-needed, humanitarian basis without establishing any official legal safeguards. This update reflects India’s attempts to bring itself closer to international norms, especially those pertaining to non-refoulement and the fundamental rights of refugees. The influence of these policy changes on India’s legal system, the constitutional underpinnings of these modifications, and the evolution of the judiciary’s involvement in forming refugee safeguards are all examined in this article. It explores the difficulties of striking a balance between humanitarian duties and national security, touching on issues of integration, security, and operational supervision. This essay examines India’s growing involvement in refugee protection and its strategic importance in South Asia via the prism of recent historic court decisions and worldwide comparisons.

Introduction

India, one of the world’s most populous and varied countries, has long struggled with displacement and migration. India has traditionally taken in millions of refugees from nearby nations, despite not being a party to the 1951 UN Refugee Convention or its 1967 Protocol. The lack of a special legal framework for refugees, however, has frequently led to difficulties, with refugees being subject to the same laws as foreign nationals. An important turning point in India’s refugee policy occurred in 2024, when the government revised the policy in response to mounting international criticism, regional instability, and refugee influxes.

By bringing clarity and structure to an area that has remained mostly informal, the new policy measures seek to bring India’s refugee framework into line with contemporary demands. In an effort to strike a balance between India’s commitment to national security and human rights, these amendments were guided by recent rulings by the Indian judiciary, non-refoulement norms, and constitutional ideals. This article examines the causes and effects of these modifications, examining the operational difficulties and legal ramifications of India’s new refugee policy.
With its enormous population and long history of embracing a wide range of ethnic groups, India has emerged as a vital destination for refugees escaping South Asian political, religious, and ethnic oppression.

Based on a legacy of hospitality, India has traditionally provided asylum to millions of people, even though it is not a party to the 1951 Refugee Convention or its 1967 Protocol. Nonetheless, difficulties have arisen due to the absence of a clear legal framework, placing refugees in a condition of legal ambiguity. By establishing safeguards and governing the admission, documentation, and integration of refugees, this year’s policy changes seek to solve these problems. It is anticipated that the policy would establish a delicate equilibrium between security considerations and humanitarian requirements, bringing India’s strategy into line with international best practices. Recent refugee crises, shifting demographics, and India’s responsibilities as a rising South Asian leader have all highlighted the necessity for such a change.

Historical Background of India’s Refugee Policy

Being a haven for refugees from South Asia and beyond, India’s refugee policy has always been influenced by its political and geographic setting. Among the significant historical developments are:

1. Pre-Independence Migration Patterns: Due to colonial-era policies and regional wars, India saw large migrant patterns prior to gaining independence in 1947. Millions of people were uprooted during the 1947 Partition as a result of the new political divides between India and Pakistan.
2. Post-Independence Refugee Influxes: India took in refugees from its neighbours after gaining independence, notably the Tibetans in 1959, the Bangladeshis in 1971, the Tamils of Sri Lanka in the 1980s, and, more recently, the Rohingya Muslims and Afghan refugees. India has frequently offered asylum based on humanitarian ideals and diplomatic concerns, even in the absence of a complete refugee statute.
3. Judicial Interpretation: Indian courts have established a corpus of case law pertaining to refugees throughout the years, frequently construing the right to life guaranteed by Article 21 of the Indian Constitution as including all individuals, including refugees. The 2024 policy modifications, which expand on the judiciary’s understanding of refugee rights within the larger context of Indian law, were made possible by this judicial recognition.

India’s approach to refugees has been shaped by historical events, cultural values, and Political factors, cultural norms, and historical occurrences have all influenced India’s refugee policy. India welcomed sizable refugee populations under challenging conditions in the years following independence, particularly from Tibet, Bangladesh, and Sri Lanka. Every immigrant wave presented different difficulties, requiring different solutions. For example, Sri Lankan Tamils were only given temporary shelter in 1959, whereas Tibetan refugees were permitted to form a government-in-exile. The inflow of Afghan nationals and Rohingya refugees escaping war has further increased the complexity of managing refugees. These disparate measures demonstrated India’s adaptable yet uneven refugee policy. By reflecting on these migrant waves, we can see that India’s ad hoc approaches have been both its asset and its drawback, exhibiting both empathy and the necessity for clearer legislative guidelines. The 2024 revision aims to unify this disparate history into a more comprehensive legal approach.

Legal Framework for Refugees Prior to 2024

Before 2024, India’s approach to refugees operated through a combination of ad hoc policies, constitutional provisions, and judicial precedents, given the absence of a specific national refugee law. Major elements of this framework included:

1. Constitutional Rights: Indian courts have upheld the fundamental rights guaranteed by the Indian Constitution, including the right to life (Article 21), equality before the law (Article 14), and protection from exploitation (Article 23). Through court action, refugees have been granted access to certain rights despite their status as foreigners.
2. Foreigners Act, 1946: All foreigners entering India, including refugees, are subject to the Foreigners Act of 1946. It gives the government the authority to monitor foreigners, impose travel restrictions, and deport them, but it makes no mention of the rights and safeguards of refugees.
3. Passports Act, 1967: This Act outlines penalties for entering India without a valid passport, but it lacks specific provisions exempting refugees from penalties for entering without documentation—a common issue for displaced individuals fleeing persecution.
4. Ad hoc Frameworks and Bilateral AgreementsIndia has frequently managed refugee populations through bilateral agreements and short-term solutions. For instance, accords with Sri Lanka and Bangladesh made it easier to accommodate Tamil refugees from Sri Lanka and Bangladesh. These frameworks were transient, though, and changed based on political factors.
5. United Nations High Commissioner for Refugees (UNHCR): While India is not a party to the UN Refugee Convention, it allows the UNHCR to operate within its borders, providing assistance to some refugee groups. However, the UNHCR’s mandate in India is limited, and the Indian government’s cooperation is contingent upon diplomatic discretion.

Until this year, India’s refugee legislation mostly depended on general rules that applied to all foreigners, such the Passport (Entry into India) Act of 1920 and the Foreigners Act of 1946. Instead of addressing the unique requirements of refugees, these rules were created to control migration, which frequently leads to refugees being regarded as illegal migrants. Refugees were able to assert their right to equality and life because to the limited assurances provided by Articles 14 and 21 of the Constitution. Although court interpretations have strengthened these safeguards, their implementation has been uneven and frequently influenced by political factors. Furthermore, while bilateral agreements have been utilised on occasion to temporarily house refugees, they have not always offered the stability and comprehensiveness that a formal legal framework might. This mishmash of laws and regulations left refugees in a state of legal limbo, highlighting the need for the comprehensive changes introduced in 2024.

2024 Refugee Policy Revisions: An Overview

In 2024, India introduced significant revisions to its refugee policy, motivated by the growing influx of refugees, increased regional instability, and evolving security concerns. The key features of the 2024 revisions include:

1. Codification of Refugee Protections: For the first time, India has codified protections for refugees within a legal framework, addressing areas such as registration, documentation, access to social services, and employment.
2. Non-refoulement Principle: Recognizing international norms, the policy prohibits the deportation of refugees to a country where they may face persecution, thus formalizing India’s commitment to non-refoulement, which was previously enforced only through judicial interpretations.
3. Differentiation between Refugees and Economic Migrants: The policy differentiates between refugees—who are entitled to certain protections—and economic migrants, addressing the challenges posed by mixed migration flows and ensuring that refugee protections are not diluted.
4. Special Provisions for Vulnerable Groups: The policy introduces targeted protections for vulnerable groups such as women, children, and stateless persons, recognizing the specific needs of these populations.
5. Streamlined Registration and Documentation: The policy mandates a streamlined process for registering refugees and issuing identity documents, facilitating access to social services, employment, and healthcare while preventing illegal immigration.
6. Integration of Refugee Children in Education: The policy allows refugee children to enroll in government schools and access educational services without discrimination, a significant step towards integrating refugee communities into Indian society.

India’s first deliberate attempt to codify refugee safeguards is represented by the 2024 policy reforms, which create a framework outlining the rights and responsibilities of refugees. This policy expressly separates refugees from economic migrants and contains non-refoulement principles, even if it does not specifically mention the UN Refugee Convention. Additionally, it streamlines the registration and paperwork processes, improving access to jobs, healthcare, and social services. These actions offer a standardised method of managing refugees, breaking with the previous reliance on ad hoc regulations. The new framework also has measures for women and vulnerable groups to get special safeguards, as well as for the participation of refugee children in educational institutions. With these changes, India hopes to handle security threats as well as humanitarian issues, offering a well-rounded strategy that puts India in line with other global players in refugee protection while safeguarding its national interests.

Constitutional Provisions Supporting Refugee Protections

The 2024 refugee policy revisions are grounded in several constitutional principles that Indian courts have historically interpreted as applicable to all persons within India’s territory:

1. Article 14: Right to Equality: Article 14 guarantees equality before the law and equal protection of the laws, which Indian courts have interpreted as applicable to refugees, granting them protection from arbitrary treatment.
2. Article 21: Right to Life and Personal Liberty: Article 21 has been pivotal in shaping refugee rights. Courts have interpreted the right to life expansively, encompassing the right to live with dignity, which includes access to basic necessities for survival.
3. Article 51(c): Promotion of International Peace and Security: This article encourages the Indian state to respect international law, aligning India’s refugee policy revisions with global human rights standards despite its non-signatory status to the 1951 Refugee Convention.
4. Directive Principles of State Policy: India’s approach to social justice and fairness is guided by these concepts, notwithstanding the fact that they are not legally binding. By providing protections to vulnerable refugee populations, the updated policy reflects India’s commitment to upholding its humanitarian duties and is in line with these values.
   Despite not specifically addressing refugees, the Indian Constitution has clauses that have been interpreted by courts to apply to them. The foundation of the safeguards provided to refugees is the guarantee of the right to life and personal liberty included in Article 21, which has been construed to apply to all people, regardless of country. The guarantee of equality before the law in Article 14 has also been crucial, since judges have highlighted how it applies to refugees and acknowledged them as unique people deserving of legal protections. The Directive Principles of State Policy strengthen these fundamental safeguards, which implore India to preserve justice and peace while adhering to international law. Additionally, Article 51 lays the groundwork for India’s humanitarian responsibilities by urging the state to promote adherence to international law. These tenets serve as the foundation for the 2024 policy changes, integrating refugee rights with India’s constitutional values and facilitating a framework that upholds the safety and dignity of all displaced people.

Role of Judicial Interpretation in Shaping Refugee Policy

Indian courts have played a pivotal role in recognizing and protecting refugee rights in the absence of a specific refugee law. Notable cases include:

1. NHRC v. State of Arunachal Pradesh (1996): The Supreme Court held that the government must protect Chakma refugees in Arunachal Pradesh from forced eviction, emphasizing that all persons in India, regardless of nationality, are entitled to the right to life under Article 21.
2. Mohammad Salimullah v. Union of India (2021): The Supreme Court addressed the deportation of Rohingya refugees, emphasizing that India’s obligation to uphold the principle of non-refoulement, though not legally binding, aligns with constitutional principles of human dignity and protection against arbitrary deportation.
3. Ktaer Abbas Habib Al Qutaifi v. Union of India (1998): The Gujarat High Court emphasized non-refoulement as a principle of customary international law, reinforcing India’s obligation to protect refugees from persecution even in the absence of domestic refugee laws.

These court rulings served as the basis for India’s 2024 policy changes, which explicitly include non-refoulement and bring the country’s refugee system into compliance with the life, liberty, and equality principles guaranteed in the constitution. In the lack of a codified refugee statute, Indian courts have been instrumental in providing refugees with fundamental safeguards. Historic rulings like NHRC v. State of Arunachal Pradesh (1996) and Mohammad Salimullah v. Union of India (2021) have highlighted India’s moral commitments and the constitutional rights of refugees. The Supreme Court emphasised the relevance of Article 21 in NHRC v. State of Arunachal Pradesh by ruling that the state has a duty to shield refugees from forcible displacement. Regarding the deportation of Rohingya refugees, Mohammad Salimullah v. Union of India upheld the idea that not refoulement. India’s refugee policy has been influenced by several court rulings, which have gradually increased the range of refugee rights. The court support for refugees is reflected in the 2024 changes, which combine these interpretations into statutory measures that give people seeking asylum in India procedural protections and legal certainty.

Challenges Addressed by the 2024 Revisions

The revised refugee policy attempts to address a range of longstanding challenges associated with refugee management in India:

1. Security Concerns: The new policy addresses security issues related to unlawful migration by implementing steps to enhance refugee identification and surveillance. Improved registration and verification processes reduce the possibility of unauthorised immigration while allowing the government to keep an eye on refugee populations.
2. Lack of Uniformity in Refugee Rights: Previously, refugee rights varied depending on the refugee’s country of origin and diplomatic relations. The 2024 policy establishes a standardized framework for all refugees, ensuring that protections are consistently applied.
3. Social Integration Barriers: By granting refugees access to basic rights, including healthcare, education, and employment, the policy facilitates integration and reduces the isolation of refugee communities.
   A number of significant issues that have previously hampered India’s ability to manage refugees effectively are addressed in the 2024 modifications to the refugee policy. First, a more efficient registration and documentation procedure that makes integration and monitoring easier allays security worries about unauthorised immigration. Second, there is less uncertainty about the rights of refugees since because all refugees, regardless of where they came from, are entitled to the same safeguards. This consistency upholds the equality tenets of the constitution and prohibits unfair treatment based on diplomatic ties. Social cohesiveness can be improved by the policy’s introduction of mechanisms for economic engagement, which allow refugees to contribute to their host communities. The updated policy resolves these long-standing problems and establishes a more open, predictable structure that complies with international humanitarian norms and India’s constitutional obligations.

International Context and Comparative Analysis

A increasing tendency among countries to create domestic refugee frameworks that meet international criteria while addressing local issues is seen in India’s 2024 modifications to its refugee policy. The new policy shows a commitment to international refugee protection principles, even though India is still a non-signatory to the 1951 UN Refugee Convention. This puts India’s strategy in line with those of other nations that hold comparable non-signatory views, such Bangladesh and Pakistan.

Even among countries that are not members to the UN Refugee Convention, formalised refugee safeguards are becoming more and more popular worldwide, and the 2024 amendments to the refugee policy place India in this trend. India’s strategy stands in contrast to the stricter regulations of South Asian nations like Pakistan, which frequently place restrictions on refugees. In a larger sense, India’s changes show a growing understanding of its responsibilities as a regional leader, especially in view of the expanding global population of people who have been forcibly displaced. In contrast, countries like Bangladesh, which is also not a member, have implemented short-term refugee management strategies. India’s shift to a more disciplined approach reflects a special fusion of national interest and humanitarian duty. These changes might operate as a template for other nations in the area, providing a useful approach to refugee management that respects international norms without compromising sovereignty.

Conclusion

Revisions to India’s refugee policy for 2024 represent a dramatic change in the country’s strategy for managing refugees, striking a balance between humanitarian commitments and national security. The updated policy establishes a more uniform and compassionate framework for refugees in India by codifying refugee safeguards and bringing them into line with constitutional norms. India’s new strategy may serve as a template for other nations in the area as the global refugee crisis worsens, showing how non-signatory governments may create efficient refugee frameworks that protect sovereignty and uphold human rights.
India’s approach to refugee protection has undergone a radical change with the 2024 modifications to its refugee policy, moving from an ad hoc framework to a systematic and rights-based paradigm. India fills up long-standing gaps and upholds its constitutional values to equality, dignity, and life by incorporating refugee rights into a formal legal framework. The changes show a more sophisticated view of India’s twin duty to protect national security and offer asylum to people in need. The policy functions as both a humanitarian endeavour and a tactical instrument as India deals with growing migratory movements in a hazardous area. Effective implementation of this strategy will be crucial going ahead, necessitating cooperation between local communities, international organisations, and government authorities. In the end, India’s changes to its refugee policy for 2024 highlight its growing influence on the international scene by striking a balance between pragmatic and compassion in a time of unparalleled displacement.