Non-Refoulement In India - Between Humanitarian Obligations And National Security Concerns
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NON-REFOULEMENT IN INDIA: BETWEEN
HUMANITARIAN OBLIGATIONS AND NATIONAL
SECURITY CONCERNS
Khushboo Gehlot, Jai Narain Vyas University Niranjan Pratap Singh, Jai Narain Vyas University
ABSTRACT
The principle of non-refoulement, which prevent the return of individual to their territories where they might suffer persecution, torture, or other stringent human rights violations stands as a foundational upright of international refugee protection and is now recognised as a customary international law. India showcases a unique anomaly in this context: despite not being a signatory to the 1951 Refugee Convention or its 1967 Protocol, it still accommodates countless refugee populations, including Tibetans, Bangladeshis, Sri Lankan Tamils, Afghans, and Rohingyas. However, India’s outlook on refugee protection has largely been ad hoc, affected by flickering political, diplomatic, and security rumination rather than by a structured legal framework.
The Indian judiciary has been instrumental in elucidating the principle of non-refoulement through Articles 14 and 21 of the Constitution, positioning domestic law with international humanitarian principles. Yet, judicial protection remains out of step with, particularly when national security concerns are prioritized. This paper explores the evolution of the non-refoulement principle in international law, revives India’s policies and judicial interventions, and critically examines the balance between humanitarian duties and sovereign security interests. It further advocates comprehensive reforms including the enactment of a national refugee law, establishment of an Independent Refugee Status Determination (RSD) mechanism, and implementation of transparent security-screening procedures to harmonize India’s constitutional ethos with its international obligations.
Keywords: Asylum, Non Refoulement, Refugees.
1. INTRODUCTION
“Atithi Devo Bhava” is a sanskrit phrase rooted in the ancient Indian philosophy, part of the very culture of India. The phrase literally translates as “The guest is akin to god”, which means the guest is like a god and must be treated like same, originating from the ancient Upanishads, this very phrase reflects the profound spiritual and cultural values of the Indian Society1. In the present time, this timeless value finds relevance in the modern legal and humanitarian principle known as non-refoulement, the principle that forbids returning back to a place where their life, liberty, or freedom may be in danger. This concept is more than an act of philanthropy; it indicates a global moral responsibility rooted in humanity, justice, and the right to life.
Within India’s constitutional framework, the spirit echoes powerfully in Articles 14 and 21, which affirm equality before law and the Right to life and personal liberty to every individual, irrespective of citizenship. Yet, India’s approach to refugees embodies a blend of compassion and complex reality. Its cultural and historical ethos has reflected a legacy of protection and tolerance. However India lacks in terms of codification of the refugee laws and has left crucial decisions on asylum and deportation largely to the executive’s discretion, often influenced by security, political, and diplomatic factors. Somehow, by this system the protection extended to refugees is inconsistent, as it is not on the basis of legal certainty, but determined by pragmatic considerations.
The Indian judiciary has assumed a pivotal role as a guardian of refugee rights, interpreting the Constitution to shield individuals from refoulement. Through precedents, courts has broadened the idea of the right to life2, emphasizing that the protection of the vulnerable is the heart of justice. However, contemporary concerns, particularly the growing concern over illegal migration, terrorism, and internal security pose significant challenges to maintaining equilibrium between humanitarian commitments and national interests3. 1 Dr. Pradip Kumar Das and Tanmoy Roy, Legal Position & Status of Refugees in India: A Critical Analysis, Volume 3 Int’l J. Legal sci. & Innovation 75(2021) available at; https://www. ijlsi. com/wp-content/uploads/Legal- Position-Status-of-Refugees-in-India. pdf
2 National Human Rights Commission vs. State of Arunachal Pradesh, AIR 1996 SC 1234.
3 NHRC, “Human Rights of Refugees and Asylum Seekers in India: Issues and Challenges,” Group Research Project (NHRC Internship June 2022), 32, 2022 available at; https://nhrc.nic.in/sites/default/files/Group%204%20June.pdf
The study delves into the relationship with the principle of non-refoulement through constitutional, judicial, and policy interpretations. It reflects how India’s timeless compassion coexists with the modern demands of sovereignty and security, and how courts have attempted to bridge the gap left by legislative silence. The paper also further questions whether India’s current approach, often described as one of “pragmatic humanitarianism” sufficiently ensures the rights of refugees, or whether a more structured and transparent framework is required. In conclusion, this research paper argues that India stands at a critical crossroads: one where it must harmonise its ancient moral philosophy with the demands of contemporary state responsibilities.
The enactment of comprehensive refugee legislation, establishing of equitable determination mechanisms, and reconciliation of security concerns with compassion would not only uphold the spirit of India’s constitution but also reaffirm India’s stature as a nation grounded in justice, humanity, and respect for life.
2. Evolution of Non-Refoulement in International Law.
We have been taught to welcome refugees and asylum seekers with open hands of generosity, treating them with respect and dignity within our community. Although India is not a signatory to the 1951 Refugee Convention and its 1967 protocol4, which states “Non-refoulement” as the core principle. There is no specific legislation or accession to international policies or convention, so it can be assumed that India is a non obligated by the principle non-refoulement. But the reality is different as the principle of non refoulement has acquired a status of peremptory5 norms of international laws.
India was already cognizant with the principle of non-refoulement as early as in 1966, with the its clear partaking in the development of the Bangkok Principles of 19666, which although did not mention the term “non-refoulement” directly, but the principles itself addressed the core concept of preventing the forcible return of a refugee to a place where they would face persecution. Under International law, failure to adhere to the principle of non-refoulement is expressly addressed in the United Nations Convention against Torture and other Curel, Inhuman or Degarding Treatment or Punishment (UNCAT) 19847, as well as in the 4 United Nations High Commissioner for Refugees, Global Appeal 2011 Update: India (2011), available at; https://share. google/s8UHdMcCx1qWJwahg 5 Aoife Duffy ‘Expulsion to Face Torture? Non-refoulement in International Law’ 20 (3) IJRL 388 (2008).
6 Bangkok Principles on Status and Treatment of Refugees, (24 June 2001), art. 3
7 Office of the United Nations High Commissioner for Human Rights, The Principle of Non-Refoulement under
International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) 20068, both of which continue to offer protection to refugees. International Treaties Shaping Refugee Protection: International human rights institutions, regional human rights courts, and national courts all emphasize that the principle of non-refoulement encompasses the obligations to respect, protect and fulfill human rights9. The principle of non-refoulement is embedded in the Convention Relative to the Protection of Civilian Persons in Times of War (Fourth Geneva Convention) 194910, which includes the provision that protects civilians from being forcibly displaced to areas where their life or freedom may be threatened due to factors such as their race, gender, religion, nationality, ideology or political beliefs11.
Though the principle was formally incorporated in the 1951 Refugee Convention, it does not clearly express and articulate the criteria for what constitutes persecution, leading to various loopholes. The 1951 Refugee Convention defines non-refoulement in Article 33 (1), which states : “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 account of his race, religion, nationality, membership of a particular social group or political opinion”. 12 However, the 1951 Convention fails to enlist as to what all actions would amount to persecution.
Furthermore, the protection guaranteed by Article 33(1) is not absolute since, Article 1(f) of the Convention which incorporates the exclusion clause13 and Article 33(2)14 International Human Rights Law (2018), available at; https://share. google/YrgUSio8UW0sYTo5m
8 Ibid
9 Ibid
10 Fourth Geneva Convention on the Protection of Civilian Persons in time of war, 1949, Article 45, paragraph 4.
11 Ibid
12 THE REFUGEE CONVENTION, 1951, Art 33 (1), 2-25 July 1951, 189, U.N.T.S 137 available at;
https://www.unhcr.org/sites/default/files/legacy-pdf/4ca34be29.pdf 13 Article 1(F) of the Refugee Convention, 1951 states that: “The provisions of the 1951 Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
lays down certain ground the existence of which will deprive an individual from seeking the protection of the 1951 Refugee Convention. However, there are other international instruments which also deal with the aspect of nonrefoulement. For example: Article 7 of the 1966 International Convention on Civil and Political Rights (ICCPR), reads as: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation”15 Article 16 of the International Convention for the Protection of All Persons from Enforced Disappearance (ICCPED) 2006 also prohibits the forcible eviction of an individual to a state where there are substantial grounds to believe they would be in danger of being subjected to enforced disappearance16.
Precisely, Principle 5 of the UN Principles on the Effective Prevention and Investigation of Extra Legal Arbitrary and Summary Executions says that no one can be ostracized against his/her will to any other place where that person may suffer the repercussions of extra-legal, arbitrary or summary execution17.
3. Indian Legal Framework and Non-Refoulement.
Now, Given that India does not adhere to the non-refoulement principle and also does not possess any specific legislation regarding the same principle, a major question arises : On what basis does India take its decisions ? The absence of codified asylum laws has resulted in the refugee management in India to rely heavily on arbitrary executive discretion, leading to 15 1966 International Covenant on Civil and Political Rights, (23 March 1976), available at: available at; http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf (last visited on Oct 7, 2025)
16 UN General Assembly, International Convention for the Protection of All Persons from Enforced
Disappearance (20 December 2006), available at: http://www.refworld.org/docid/47fdfaeb0.html (last visited on Oct 7 2025). 17 Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (24May, 1989), available at; available at; http://www.ohchr.org/Documents/ProfessionalInterest/executions.pdf (last visited on Oct 7, 2025)
inconsistencies between the humanitarian responsibilities and the state interests18. India’s asylum and refugee protection policy lacks a formalized legal framework, leaving responsibility within the executive’s discretion. This results in policy inconsistencies, as the treatment of refugees and asylum seekers may differ across circumstances. While discretion allows flexibility in responding to evolving political and security contexts, it simultaneously raises questions about how India upholds the safety and rights of those seeking refuge, especially regarding the principle of non-refoulement, which prevents returning individuals to territories where they may face serious harm. In the legal vacuum, international law like treaties and customary practices becomes increasingly important.
Although these international laws aren’t automatically binding in India’s domestic context, they still offer interpretive assistance to the judiciary ensuring that government actions conform to international human rights obligations. Consequently, despite the absence of codified refugees laws, India’s administrative approach to managing refugees are deeply influenced by international human rights principles and providing a platform for understanding how the judiciary interprets and aligns domestic law with these international responsibilities. When any instances of conflict between judiciary and international law arise, provided that there is no contradiction between the two, the latter shall prevail.
This can be interpreted to mean that international human rights instruments and the 1951 Refugee Convention, if not contrary to any existing domestic law, can be applied to refugees in India. Further, India is a part of several critical international human rights treaties including which are the Universal Declaration of Human Rights (UDHR) 194819, the United Nations Declaration on Territorial Asylum 196720, the International Covenant on Civil and Political Rights (ICCPR) 196621, the International Covenant on Economic,Social and Cultural Rights 18 Nilabati Behra v. State of Orissa, Vishaka v. State of Rajasthan, People's Union for Civil Liberties v. Union of India, Apparel Export Promotion Council v. A. K. Chopra. 19 Universal Declaration of Human Rights, GA Res. 217 (III), UN GAOR, 3d Sess. , Supp. No. 13, UN Doc. A/810 (1948).
20 Declaration on Territorial Asylum, GA Res. 2312 (XXII), 22 UN GAOR, Supp. No. 16, UN Doc.
A/6716(1967).
21 International Covenant on Civil and Political Rights, 999 UNTS 171, 19 Dec. 1966 (entry into force: 23Mar. 1976).
(ICESCR) 196622, the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) 197923, and the United Nations Convention on the Rights of the Child (UNCRC) 198924 and all of these mentioned treaties have the principle of non-refoulement embedded in them.
4. Constitutional Safeguards and the Applicability to Refugees
The Legislative Framework of India does not explicitly include the principle of nonrefoulement in the act but indirectly we can relate these principle in these laws as follow: The Passport (Entry into India) Act of 1920, The Registration to Foreigners Act of 1939, The Foreigners Act of 1946, The Citizenship Act of 1955, and the Passport Act of 1967 along with other laws25 in relevance to the refugees, fail to recognize the principle of non-refoulement. Fundamental Rights and Refugee Safety: Regardless of that, the constitution of India outlines several fundamental rights available to all individuals, including refugees and asylum seekers, specifically in the Articles 14, 20, 21, 22, 51, 32 and 226.
The Indian Judiciary which is often looked up to as the guardian of individual rights, has consistently adopted a liberal, realist and humanitarian interpretation to uphold the basic human rights of refugees in the country. As the concept of fundamental rights evolved in Indian law, the way Article 21 became increasingly intertwined with Article 14. Both provisions serve as safeguards of people rights and extend their coverage to non-citizens, encouraging courts to use similar criteria to determine whether certain laws meet the requirements standards. The Indian judiciary have consistently emphasized the principle of 'reasonableness’ in the interpretation of Article 1426, ensuring that the classification must be based on the ideas of reasonableness. It's pivotal to note that both Articles 14 and 2127 are primarily concerned with procedural aspects.
Article 14 ensures that individuals are not treated unfairly by authorities, 22 International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3, 19 Dec. 1966 (entry into force:
3 Jan. 1976).
23 Convention on the Elimination of All Forms of Discrimination against Women, 1249 UNTS 13, 18 Dec.1979 (entry into force: 3 Sep. 1981).
24 Convention on the Rights of the Child, 1577 UNTS 3, 20 Nov. 1989 (entry into force: 2 Sep. 1990).
25 P. Chandrasekhara Rao, The Indian Constitution and International law, 130, (Taxman publication) (1993).
26 Constitution of India, art 14
27 Constitution of India, art 21
which ties into the idea of whether a particular procedure is reasonable. Interestingly, Article 21 took on a more substantive meaning as its ‘reasonableness’ aspect began to merge with the standards applied for Article 19, which protects freedom of speech and association but is limited to citizens28. Moreover, it's noteworthy that while Articles 14 and 21 operate universally, citizens and noncitizens, Article 19 is exclusive to citizens. This overlapping structure of these rights influences how they operate differently for citizens versus non-citizens in the Indian constitution framework.29 The principle of non-refoulement is an essential part of the Indian Constitution under Article
21 as it states that all persons, including refugees are equally entitled to claim that any action
against the person concerned must be procedurally fair, just and reasonable30. Additionally Article 22 The Indian Constitution also applies to refugees, granting them protection against arbitrary detention. Furthermore, the refugees can also exercise the right to freedom of religion guaranteed in Article 25 of the Indian Constitution. Article 51(c) of the Indian Constitution which promotes “International peace and security” states that “the State shall endeavor to foster respect for international law and treaty obligations in the dealings of organized peoples with one another”31 Since this is a directive principle it is non-justiciable, meaning it cannot be enforced in court, but serves as a guideline for the government to shape its foreign policy and promote a just and peaceful international order.
This directive is non-justiciable, meaning it cannot be enforced by courts, but serves as a guideline for the government to shape its foreign policy and promote a just and peaceful international order32. Consequently, the principle of non-refoulement, recognized as customary international 28 Abhilash Arun Sapre, Non- Refoulement of refugees in India- a human Rights perspective, International Journal of Law and Social Sciences (IJLS)│Volume 5, 2019, available at; https://www. researchgate. net/publication/373286479_Non-refoulment_of_Refugees_in_India-_a_Human_Right s_Perspective 29 Megha Purohit & Mayank Purohit, An analysis of non refoulement in Indian Legal Framework,, Vol. 2, Jamia Law School, 167, 173 available at; https://docs. manupatra. in/newsline/articles/Upload/45325657-78F6-45C2- 90B5-BB0D35BA56BC. %20Megha%20Purohit%20&%20Mayank%20Purohit_Civil. pdf
30 Suryanarayan, V. Need for National Refugee Law. Indian Society of International Law Yearbook of
International Humanitarian and Refugee Law, (2001) : 254.
31 INDIAN CONST.art.51
32 Megha Purohit & Mayank Purohit, supra note at 28., 173
law, ought to be followed by India due to its significance in international jurisprudence. Prof. C. H. Alexandrowetz, suggest that the term ‘international law’ encompasses both customary international law and treaty obligations stemming from various international treaties and conventions33. It could be argued that Article 51(c) does not provide authoritative grounds for the application of international law34 within the country, given that it forms part of the Directive Principles of State Policy, and Article 3735 clarifies that these principles are not justiciable in courts. However, the latter part of Article 37 emphasizes that the principles in Part IV are crucial for governance, and it is the responsibility of the state to consider these principles when formulating laws.
The Supreme Court has often affirmed that merely because the provisions of Part IV are not enforceable does not diminish their significance36. India’s constitution gives power to pass laws ensuring the compliance with international obligations, and this authority remains largely unexploited in refugees protection. Article 253 and the Entry 14 of list I37 empowers Parliament for implemeting the authority to translate international treaties, agreement, and conventions domestically38. This provision could have allowed the codified humanitarian laws like the right to non-refoulement but this possibility has been overlooked. Consequently independent organizations, legal experts, and individual members of Parliament have taken the initiative to bridge this legislative gap.
Model Bills for Refugees Await Parliamentary Approval: Recently, The National Human Rights Commission (NHRC) and private members of parliament have both introduced or recommended various model laws and bills to the government in India39. For the first time, a model national law delineation specific rights and responsibilities for refugees and asylum seekers, known as the Refugees and Asylum Seekers Protection Act, 2000, was drafted by a distinguished group to integrate existing policies with constitutional and international obligations. This bill acknowledged non-refoulement but not 33 Alexandrowetz, C. H. International Law in India. International & Comparative Law Quarterly, (1952); 292.
34 Statute of the International Court of Justice, Article 38(1) (b)
35 Indian Constitution.art.37
36 In Kesavananda Bharati v. State Of Kerala, Minerva Mills Ltd v U.O.I, Unnikrishnan v. State of Andhra Pradesh, State of Tamil Nadu v L. Abu Kavier Bai 37 Entry 14, List I (Union List) states: “Entering into treaties and agreements with foreign countries and implementing treaties, agreements and conventions with foreign countries.”
38 State of Gujarat v. Vora Fiddali A.I.R. 1964, SC 1043
39 E.g., Lok Sabha Debates, Refugee Determination System, 16th Lok Sabha, Session Number 4, May 5, 2015, Question by Maheish Girri, available at http://mha1.nic.in/par2013/par2015- pdfs/ls-050515/6307.pdf (Last visited on October 11, 2025)
as an absolute right, providing an exception for individuals convicted of war crimes, crimes against peace, or crimes against humanity. Similarly, the National Asylum Bill, the Asylum Bill, and the Protection of Refugees and Asylum Seekers Bill were presented in Lok Sabha in 2015, recognizing non-refoulement. These draft laws aimed to "terminate a framework of ambiguity and arbitrariness that results in injustice to a highly vulnerable population," yet they did not advance to become law. Thus, it remains that India lacks a robust legal framework ensuring the security of refugees' lives. The government has been reluctant to advance legislation due to the management of migrant influx based on bilateral relations with origin countries, complicating the feasibility of a uniform law applicable across all refugee groups40.
5. Judicial Interpretation and Non-Refoulement in India
The judiciary has consistently advocated for the enforcement of ‘basic rights’ domestically so as to define boundaries for enhancing refugee protection administration and ensuring a dignified life and justice for individuals within the nation. The interplay between human rights and the evolving legal frameworks has fostered a comprehensive perspective on refugee protection through judicial initiatives. Landmark Court Cases Protecting Refugee: In the case of Ktaer Abbas Habib Al Qutaifi v. Union of India & Ors (1998)41 The petitioners were fleeing Iraq due to a decree that mandated severe punishments, including mutilation, for anyone evading military service. They sought refuge and requested to be handed over to the United Nations High Commissioner for Refugees (UNHCR).
42 The case dealt with the application of the international law principle of non-refoulement within the Indian legal system, specifically concerning the rights of refugees under Article 21 of the Indian Constitution, the right to life. The Gujarat High Court gave a landmark judgement upholding refugees' fundamental rights, despite the absence of specific refugee legislation in India, by linking the principle to India's 40 Bhairav Acharya, The future of asylum in India: Four principle to appraise recent legislative proposals, NUJS Law Review, 174, 173 (2016) Available at; https://nujslawreview. org/wp-content/uploads/2017/01/2016-9-3-4-Bhairav-Acharya-The-Future-of-Asylum-in-I ndia_-Four-Principles-to-Appraise-Recent-Legislative-Proposals. pdf
41 Ktaer Abbas Habib Al Qutaifi v. Union of India, 1999 Cri LJ 919
42 Ahmad. N., 23 Refugee Constitutionalism In India: Measuring Supremacy of Judicial Sovereignty Against Global Human Rights Standards, RELIGION AND LAW REVIEW, 37-118(2014)
constitutional obligations and international customary law, recognizing the principle of nonrefoulement, which prohibits sending individuals to a territory where they face danger to their life or freedom. The High Court referenced Article 33 of the 1951 Convention on the Status of Refugees43, Article 3 of the Universal Declaration of Human Rights, and Article 3 of the Convention against Torture to affirm that forcible return, expulsion, and torture are categorically prohibited by international law. In its ruling, the court underscored the necessity of safeguarding the dignity of refugees by invoking the Indian Constitution. Since these refugees posed no threat to India's security and demonstrated substantial fears of persecution, the court affirmed the nonrefoulement principle, which has since been practically adopted in numerous cases by the Indian judiciary. In the case of Dr.
Malavika Karlekar Vs. Union of India (1992)44, the Supreme Court of India issued an order consistent with the principle of non-refoulement by staying the deportation of Burmese nationals in the Andaman Islands whose refugee status determination was pending with the UNHCR, necessitating their pending status verification45. Subsequently, in the case of Khudiram Chakma Vs. State of Arunachal Pradesh46 (1993),The supreme court stressed Article 14 of the UDHR 1948, stating that no individual seeking asylum shall be returned to their country of origin if they face a risk of persecution47. Without question, the Indian Judiciary has played a pivotal role in advancing refugees' interests. These Judgements further emphasize that individuals who are requesting protection in another nation cannot be repatriated while their status determination is pending in the hostel country.
A corresponding stance was also validated by the Madras High Court in the case of
P.Nedumaran Vs. Union of India (1993)48, where Sri Lankan refugees were permitted to stay 43 UNHCR. (2007).Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, UNHCR, Geneva, 26 January 2007, available at; https://www.refworld.org/pdfid/45f17a1a4.pdf.
44 Cr. Petition No. 583/92.
45 Zonthansangpuii v. State of Manipur (Civil Rule No. 1981 of 1989 and No. 515 of 1990)
46 Khudiram Chakma Vs.State of Arunachal Pradesh AIR 1994 SC 1461.
47 Ruchi Lal, The Principle of Non- Refoulement in International Law and its Applicability in Protection of Refugees in India. 2019; 10(2), available at; https://www.rjhssonline.com/HTMLPaper.aspx?Journal=Research%20Journal%20of%20Humanities%20and%2 0Social%20Sciences;PID=2019-10-2-27
48 WMP 17372, 17424, 18085,
in India until their refugee status was adjudicated by the UNHCR49. “NHRC Vs. State of Arunachal Pradesh” (1996)50, the case in which the Supreme Court reaffirmed the imperative to protect refugee rights within India, thereby upholding constitutional values. The Constitution of India embodies the principle of equality and also guarantees a dignified existence for both the citizens and non-citizens. Following the same in this matter, the court directed that Chakma refugees, the nationals of Bangladesh, should not be repatriated based on the principle of non-refoulement51. In past cases such as “Jolly George Vs. Bank of Cochin” (1980)52 and “State of West Bengal Vs. Kesoram Industries” (2004)53 The Supreme Court acknowledged the doctrine of dualism, asserting that treaties do not become law until enacted by parliament under Article 253, reflecting India's dualistic approach.
However, Constitutional courts have progressively shifted from a dualist to a monist viewpoint54, wherein the rules of international law became operative upon the ratification of an international treaty or convention55. The Bombay High in the case of “Syed Ata Mohammad Vs. Union of India” (1994)56, Reiterated the principle of non-refoulement by ruling that the Iranian refugee recognized by the UNHCR could not be deported to Iran, where they fear persecution and was permitted to travel to any country of his choice. These cases clearly exemplify the Indian Judiciary’s dynamic approach towards recognizing and upholding the principle of non-refoulement under Article 21 of the Indian Constitution, while at the same time being in consideration with and following the International legal instruments, which establish the same principle57.
49 Ibid
50 SCC (1) 742
51 Megha Purohit & Mayank Purohit, Supra note at 175
52 Jolly George v. Bank of Cochin, 1980 AIR 470, 1980 SCR (2) 913
53 State of West Bengal v. Kesoram Industries, (2004) 10 SCC 201
54 Iram, Siddeeqa (2025) "Reimagining the Asylum Law in India: A Study on the Duty of Non-Refoulement," National Law School of India Review: Vol. 36: Iss. 1, Article 6. DOI: Available at: https://repository.nls.ac.in/nlsir/vol36/iss1/6 55 Visakha v. State of Rajasthan AIR 1997 SC 3011; Shatrughan Chauhan v. UOI, (2014) 3 SCC I; Vellore Citizens Welfare Forum v. UOI, AIR 1996 SC 2715 or (1996) 5 SCC 647; National Legal Services Authority v. UOI, 2014 INSC 275; Gramophone Company of India v. Birendra Bahadur Pandey, AIR 1984 SC 667.
56 Criminal writ petition no.7504/1994 at the Bombay High Court
57 Megha Purohit & Mayank Purohit, Supra note at 175
6. Exceptions to the Principle of Non-Refoulement
The 1951 Convention on Refugee Status delineates two exceptions regarding the limitations on the principle of non-refoulement, which are as follows :- (i) National Security and (ii) Public Order The above mentioned points mean that any potential threat to national security or a disturbance to the public order. Refugees may be expelled to their country of origin. The state has the primary responsibility of maintaining law and order for the nation and its citizens58. In the case of “Maiwand’s Trust of Afghan Human Freedom Petitioners Vs. State of Punjab & Otrs”59 The Supreme Court stayed the expulsion (deportation) of the Afghan refugees in this case. The basis was that since their claim for refugee status was pending (before UNHCR) and there was no material to show that their stay in India posed a danger or threatened national security. Similarly in the case of “N. D. Pancholi vs.
State of Punjab & Others” (1988)60, The Supreme Court prohibited the expulsion of Burmese refugees and others from the Andaman Islands, as there were no valid security concerns for India. Another essential aspect of the non-refoulement principle is the requirement of adhering to principles of natural justice. This means that individuals should not be deported based merely on arbitrary criteria. Consistent with this principle, the Indian Government has prioritized the interests of refugees61. These above stated two cases are such examples where the national security of the country was the matter of concern and only after being proven that there was no valid security threat from the refugees were they allowed to stay in India until their refugee status got verified, therefore following the principle of non-refoulement.
58 Megha Purohit & Mayank Purohit, Supra note at 176
59 WP No. (Cri.) No. 125 and 126 of 1986.
60 N.D. Pancholi vs. State of Punjab & Others [WP (civil) No. 1294 of 1987, unreported)].
61 Namrata gupta, Protection of Refugees in India, Vol. 7, 420, 428, 2017, U.S.A
Available at;https://www.ijmra.us/project%20doc/2017/IJRSS_OCTOBER2017/IJMRA-12388.pdf
7. Shortcomings in India's Current Legal Framework.
A great deal of issues existing within the current legal framework of India particularly in
regards to the principle of non-refoulement call for the rectification of both the legal framework and its implementation in India. Following of which can be done in consideration with the subsequent pointers:- (i) As observed, the Indian Constitution does not explicitly recognize the principle of nonrefoulement; rather, it has been adopted through judicial interpretation. While it has been acknowledged under the Article 21 of the Constitution, the lack of a specific and uniform law governing this principle connotes that India is not legally bound to adhere to. Moreover, nonstate actors are not obligated by Article 21. For instance, the Chakma refugees experienced harassment from residents of Arunachal Pradesh and were compelled to leave the state; in such cases, these individuals cannot also be held accountable under Article 21 of the Constitution.
This presents a significant challenge for the refugees. Therefore, legislation should be developed to ensure that private individuals can also be held liable for such acts against the spirit of non-refoulement62. (ii) Article 51(c) of the Indian Constitution which mandates that the State shall endeavour to foster respect for international law and treaty obligations in the dealings between organized peoples, which stands in support of the principle of non-refoulement but it is a well-established legal principle that the Directive Principles of State Policy are non-justiciable, meaning that if India fails to comply with any international convention governing its relations, individuals cannot seek judicial remedies for such violations. This presents an additional dilemma for refugees. (iii) An additional issue lies within India's municipal law.
The Foreigners Act fails to differentiate between foreigners and refugees, providing the government with unrestricted authority to expel any foreigner deemed to have entered illegally. Consequently, refugees may become the “scapegoats”, particularly when they lack status determination, although status
62 Megha Purohit & Mayank Purohit, supra note at 28., 177
determination is not an essential condition for non-refoulement. The application of this act contradicts the spirit of customary international law concerning non-refoulement63. (iv) Another major point of concern is that security issues frequently arise as a “risk factor” for refugees, most of whom are often perceived as a threat to national security in the light of terrorism concerns. In India, authorities essentially prioritize national security over individual fundamental rights64. While this perspective is respected, a proper mechanism should be structured and established, as indiscriminately blaming refugees does not resolve the issue at hand. (v) In addition, there exists another dilemma requiring improvement regarding the “international zones”. When refugees arrive through airports or seaports, the concept of “transit areas” becomes relevant.
These transit zones do not leave a pleasant experience and generate insecurity and instability to the refugees attempting entry into a country. For instance, A Palestinian refugee who had been deported from Kathmandu to New Delhi International Airport was returned to Kathmandu via the airport's transit lounge. He was sent back to New Delhi International Airport again, this time on the grounds that he was being held in an "International Zone”. 65 Such actions that contravene the non-refoulement principle. Legal portrayals like such prevent refugees from claiming safety, thereby posing serious threats to their lives, an issue which urgently demands attention.
8. Recommendations and the Way Forward
The rejection of asylum seekers at the borders of the country also forms part of duty under principle of non-refoulement,customary international law right under International Human Rights Law (IHRL). Even non signatories to the Refugee Convention are required to adhere to this principle. As a signatory to key human rights instruments such as the Universal Declaration of Human Rights (UDHR), India recognizes the right to grant asylum, which mandates that states cannot refuse entry to asylum seekers at their borders based on the non-refoulement
63 Megha Purohit & Mayank Purohit, supra note at 28., 176
64 Omar Chaudhary, “Turning Back: An Assessment of Non-Refoulement under Indian Law”, 39 EPW 3257-
3264 (2004), available at: http://www.jstor.org/stable/4415288
65 7T. Ananthachari, “Refugees in India: Legal Framework, Law Enforcement and Security”, 7 ISILYBIHRL (2001), available at: http://www.worldlii.org/int/journals/ISILYBIHRL/2001/7.html (last visited on December 28, 2016)
principle articulated in the International Covenant on Civil and Political Rights (ICCPR) and (UDHR).
Comparative Perspectives on Refugee Protection Moreover, member states of the Refugee Convention have incorporated these principles into their domestic laws to provide enhanced protection for refugees. One such example of a member state is Canada, Canada’s Immigration and Refugee Protection Act includes provisions for pre-removal risk assessments to ascertain whether an individual may face torture, threats to life, or inhumane treatment if returned to their country of origin. This assessment allows individuals to obtain protected person status and remain in Canada66. Similarly, the United States of America employs credible and reasonable fear screening processes to assess the immediate protection needs of asylum seekers, even if their applications for refugee status are ultimately rejected67.
The United Kingdom also entails screenings to identify potential persecution before granting asylum, though claims may be rejected if the individual traveled through a ‘safe third country’. Australia also evaluates asylum seekers who do not meet refugee criteria but are at risk of grave human rights violations to determine if they qualify for complementary protection under IHRL, potentially granting them a protection visa68. The Indian government could also incline towards developing domestic legislations of refugee intake process following non-refoulement principle inspired from the national legislations of such signatory nations in accordance with both International Refugee Law (IRL) and IHRL69. Policy Recommendations for Strengthening Refugee Protection: Adhering to the non-refoulement principle is a humanitarian obligation as well as a binding international legal requirement.
The Indian government may consider the following steps to incorporate and adopt the principle of non-refoulement nationally :-
66 ‘Claiming asylum in Canada-what happens?’ (Government of Canada) accessed 13 June 2023
67 ‘Asylum in the United States’ (American Immigration Council, August, 2022) accessed 14 June 2023
68 ‘Asylum Seekers and Refugees’ (Australian Human Rights Commission) accessed June 14 2023
69 1 Executive Committee of the High Commissioner’s Programme, Conclusion No. 6 (XXVIII) (1977) para. c
(i) Establish comprehensive national legislation aligned with both Indian constitutional law and customary international law, detailing the legal framework for refugees while distinguishing between refugees and other foreigners to ensure compliance with current legal standards70. (ii) Seek collaboration with international organizations such as UNHCR and Amnesty International, as well as the National Human Rights Commission, to revise draft model laws pertaining to asylum and to formulate a robust legal framework for refugees in India71. (iii) Introduce a regulatory system that allows asylum seekers temporary protection while their refugee status applications are pending or subject to denial, conforming to IRL standards, including the non-refoulement obligation.
(iv) Develop institutional bodies dedicated to accurate data collection on refugees, facilitating the effective implementation of sustainable solutions such as local integration, resettlement, and voluntary repatriation72. Implementation of such steps can really aid the development of refugee law and ensure that non-refoulement becomes part of national legislation rather than just judicial decisions, ensuring adherence to international human rights instruments and also making sure no injustice occurs to any refugee in need of a new home, while India is one of the most welcoming country, who welcomes refugees with open arms, we still need to work on developing a better refugee legislation particularly incorporating non-refoulement,So we can truly say “Atithi Devo Bhava”.
Conclusion India’s perspective to the principle of non-refoulement exemplifies a complex challenges between its deep rooted cultural ethos and the contemporary legal interpretations under its constitution. Despite not being a signatory to the 1951 Refugee Convention or its Protocol, India has actively protected refugees through constitutional interpretations Articles 14 and 21. However, the loopholes in the comprehensive legislative framework result in policy
70 Iram, Siddeeqa (2025)Supra note at 54
71 Megha Purohit & Mayank Purohit, supra note at 28., 176
72 supra note at 54,
inconsistencies and unpredictability, place significant discretion in the hands of the executive, often shaped by political and security concerns. The judiciary has been instrumental in bridging this legal vacuum, reinforcing India’s commitment to international humanitarian principles despite hurdles. However,Yet, increasing security concerns and absence of codified refugees laws emphasised the urgency for enacting comprehensive refugee law, establishing transparent Refugee Status Determination mechanisms, and offset humanitarian duties with national interests. By harmonizing its national legal framework with international customary law and treaty responsibilities, India has the opportunity to uphold its constitutional values of justice, equality, and dignity, while solidifying its identity as a safeguard of the vulnerable and a conscientious global participant.