Between Protection And Peril: A Case-Law Analysis Of Refugee Rights And National Security In India
- IJLLR Journal
- Aug 15
- 1 min read
Nishita, B.A. LL.B., Lovely Professional University. Jalandhar
ABSTRACT
India hosts diverse refugee populations but lacks dedicated refugee legislation and has not ratified the 1951 Refugee Convention. Refugees are primarily governed under the colonial- era Foreigners Act, 1946, creating legal uncertainty and undeveloped procedural safeguards. This paper analyzes India’s refugee protection framework through constitutional guarantees under Articles 14 and 21 and judicial recognition of non- refoulement as customary international law. Landmark judgments illustrate judicial evolution from expansive protection to deference amid national security concerns, especially regarding the Rohingya community. The Citizenship Amendment Act, 2019, is critically examined for introducing religious discrimination in citizenship pathways. Detailed case studies highlight systemic disparities based on religion, ethnicity, and perceived security risks. The study advocates comprehensive refugee legislation, procedural reforms, and institutional strengthening to harmonize India’s humanitarian obligations with national security imperatives. Ultimately, it calls for aligning constitutional rights, international law, and pragmatic governance to ensure consistent refugee protection while safeguarding sovereignty.
I. Introduction
India, home to some of the world’s largest and longest-standing refugee populations, has absorbed exiles from Tibet, Bangladesh, Sri Lanka, Afghanistan, and Myanmar. Yet, it has neither acceded to the 1951 Refugee Convention nor legislated a comprehensive refugee code. Instead, the Foreigners Act, 1946, remains the principal legal tool for regulating entry, stay, and removal of all non-citizens, resulting in a unique hybrid system where both courts and the executive play central roles. Questions therefore arise: Do refugees have enforceable rights? What is the balance between constitutional guarantees and national security? This paper employs doctrinal and case-law analysis to address these questions in the contemporary Indian context.
