By: Anum Merchant, USCRI Policy Intern (Winter 2026)
Edited by Alexia Gardner, Policy Analyst
In 1947, millions of people crossed the borders between the newly independent India and newly formed state of Pakistan. The Partition would become the largest mass migration in human history, and one of the most violent as well. On both sides, majority communities used egregiously violent tactics to drive out the minority, with communal riots, faith-based killings, sexual violence, and even infanticide plaguing both sides. 14 million people found themselves uprooted in a matter of months — entire communities dissolved, and ancestral homes abandoned. Those fleeing violence found refuge in hastily constructed refugee camps as both countries grappled with the mass influx of refugees in each country. At this point, the international community had no provisions for refugees, leaving the Partition refugees with little recourse. There were no criteria for refugee status determinations (RSD), nor were basic rights for refugees yet enshrined in international law. Most of the world would go on to sign the 1951 Refugee Convention, providing refugees with a set of rights guaranteed under international law. But India never signed it.
This explainer outlines how India’s refugee protection system operates in the absence of formal legal commitments under international refugee law. It begins by situating India’s decision not to sign the 1951 Refugee Convention, before examining its fragmented legal and administrative framework that governs refugees today. It then considers how this system functions through both historical examples of protection and more recent restrictive trends, with particular attention to the treatment of Rohingya refugees. The piece concludes by reflecting on the broader implications of India’s approach for refugee protection in an increasingly state-centric global order.
For a backgrounder on the refugee definition, see “Defining ‘Refugees’—An Exclusionary Legacy” published by USCRI in May 2025.
India as a Non-Signatory to the 1951 Convention and its 1967 Protocol
During the drafting of the 1951 Convention, India hoped to play an important role as one of the leaders of what would later be known as the ‘Third World Coalition’. However, several countries, including India and Pakistan, found themselves disillusioned by the drafting process of the Convention, viewing it as a product of colonialism skewed by eurocentrism, asserting that that the Convention and Protocol failed to capture regional experiences of displacement and the views of States most impacted. Instead, they chose to view refugee protection as an internal domestic matter.
Non-signatory status, however, does not amount to a clean break from international refugee law and its protections. Central to its provisions for refugees is the principle of non-refoulement. Non-refoulement prohibits states from sending people back to a place where their life or liberty would be seriously threatened. This principle has reached the status of jus cogens, a norm—like the prohibition against torture—of such moral importance that even countries who are not signatories of relevant human rights treaties must adhere to the principle. India has also signed the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT) and the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). These two treaties explicitly prohibit the return of those who face danger to their life or freedom. Thus, despite not signing the Refugee Convention, India must still provide protection to those fleeing persecution.
To date, there is no national law regulating the rights and treatment of refugees in India. Instead, the process is fragmented and divided based on where the refugee comes from. It is divided between the government and the UN High Commissioner for Refugees (UNHCR). Refugees fleeing from non-neighboring countries, including Myanmar, must travel to New Delhi, India’s capital, to register with the UNHCR which assess their case through the refugee status determination process. This journey itself is dangerous, as migrants risk arrest if they do not have the proper paperwork to be in India; which refugees often do not. Often, refugees flee in haste, taking only what they can gather and carry quickly, when their risk of persecution and imminent danger becomes apparent. Refugees from neighboring countries such as Sri Lanka must approach the Indian government directly which handles their cases in an ad hoc manner with no standardized rules. The result is a system that is shaped through executive orders that apply to specific groups and does not account for the Refugee Convention’s individualized foundation.
Under the Indian legal system, the same set of laws cover all foreigners, refugees, asylum seekers and the stateless. These acts include the Foreigners Act of 1946, and the Citizenship Act of 1955. In recent years, India has adopted a hardline stance towards refugees from certain countries and has frequently invoked the Foreigners Act to detain hundreds of refugees for illegal entry and stay. This act defines a ‘foreigner’ as anyone ‘who is not a citizen of India’ and allows the executive branch to deport foreign nationals with minimal judicial intervention. This is problematic because refugees occupy a fundamentally different position from tourists or work-based migrants yet are governed by the same legal framework. For example, the Refugee Convention provides protection against detainment if a refugee enters a country utilizing fraudulent documents acknowledging their unique situation. However, the Foreigners Act makes no such recognition and allows refugees to be detained and prosecuted on such grounds.
In conjunction with the Foreigners Act, the Government of India draws on the Citizenship Act of 1955, which defines all foreigners who enter India without valid travel documents as illegal immigrants. Without the proper documentation and frameworks, refugees are often viewed as illegal immigrants and struggle to acquire the appropriate status. However, as amended in 2019, the Citizenship Act (CAA) provides fast-track citizenship to ‘illegal’ migrants belonging to Hindu, Buddhist, Sikh, Christian, Jain and Parsi communities who escaped persecution and entered India on a visa before 2014. Most individuals who fall in this category typically entered India legally but remain in the country on expired visas. However, the CAA excludes Muslim refugees from claiming citizenship, including those who are persecuted minorities such as the Ahmadiyya and Shia in Pakistan. It is open to non-Muslim minorities from certain countries but is limited to the countries mentioned, effectively excluding groups such as Sri Lankan Tamil Hindus. The government argues that it is not discriminatory but simply aims to assist those who have been ‘persecuted’, ignoring that many excluded populations are also persecuted.
The CAA is not only in line with the inconsistency of the Indian protection regime but fits the ruling party’s Hindu majoritarian isolationist agenda and overall anti-Muslim sentiment. The inconsistency of India’s refugee framework has also enabled such discrimination, with no dedicated statutes or absolute protections, refugees have no firm legal ground on which to appeal. None of India’s laws mention refugees, and the most common legal status for them remains as ‘foreigner’. Despite this, due to the sheer number of statutes that apply to refugees under the umbrella term of foreigners, the Indian government has previously that there is no reason or cause for India to have a single law to deal with refugees since it has enough administrative and legal frameworks in place to adequately handle refugees.
India’s Generosity: An Attitude of the Past
In the past, India has provided protection to several different refugee groups. In 1959, India offered refuge to the Dalai Lama and any Tibetan who was escaping violence and persecution. India also temporarily hosted over 9.4 million refugees fleeing the 1971 war between Pakistan and Bangladesh. Over the years, India has also extended protection to Sri Lankan Tamils fleeing the discriminatory practices of the Sri Lankan government, and small groups of Afghan refugees. However, as noted above, since India lacks any focused domestic legislation for the protection of refugees, its practices are rather piecemeal. For example, refugees from Tibet received material assistance, land, and residency rights whereas Tamil refugees from Sri Lanka were housed in camps and eventually some were forcefully returned to Sri Lanka. Nevertheless, for a long time India’s practices reflected a country that was willing to host refugees and honor the principle of non-refoulement, a stance that has changed markedly in the last decade.
Recent years have shown a decline in this generous attitude as exhibited by government directives but also opinions from the judicial branch. Recent Supreme Court decisions illustrate this shift vividly. For example, in one case (Subaskaran, Jeevan, Raja, Prabha v State Rep by the Additional Superintendent of Police) the apex court declined to intervene in the continued detention of a Sri Lankan Tamil refugee who had entered India on a visa and then sought refuge. In rejecting the appeal, Justice Dipankar Datta commented: “Is India to host refugees from all over the world? We are struggling with 140 crores (1.4 billion people). This is not a Dharmshala (shelter) where we can entertain foreign nationals from all over.” Even when the petitioner submitted that returning to Sri Lanka would pose a threat to his life, Justice Datta questioned what right the petitioner had to settle in India. Justice Datta’s remarks are not isolated but reflect a broader institutional attitude towards certain refugee groups in India. This hostility is perhaps most consequentially illustrated in the treatment of the Rohingya refugee population.
The Rohingya in India
The UNHCR estimates that around 1.5 million refugees have fled Myanmar. Most of these refugees are the Rohingya, a predominantly Muslim ethnic minority in Myanmar, who have sought refuge in several South Asian countries with India being one of them. Despite being registered with the UNHCR, the Rohingya in India face detention and criminal imprisonment as authorities selectively choose not to recognize their paperwork. The government’s stance was made explicit in 2017 when an Indian official asserted: ‘I want to tell the international organizations whether the Rohingyas are registered under the United Nations Human Rights Commission or not, they are illegal immigrants in India.’
This official position has been translated into systematic detention and deportation practices on the ground. Rohingya refugees are routinely detained under provisions of the Foreigners Act for entering the country using forged documents or procuring identity cards such as Aadhaar. In the case of Mohammad Tahir v The State of Telangana, a Rohingya refugee was arrested and remanded to judicial custody for obtaining official documents with forged certificates. Even though the petitioners appealed to the life and liberty clause under the Indian Constitution and other international treaties, the court ruled in favor of the government, permitting the continued detention of the refugee until deportation proceedings were completed. This case underscores others in which the courts have upheld the government’s position that the Rohingya in India are ‘foreigners’ and ‘illegal immigrants’.
The hostility towards Rohingya refugees has intensified in recent years. In 2017, the Indian government directed authorities to identify ‘illegal immigrants’, primarily targeting Rohingya refugees, and to commence deportation proceedings. This directive culminated in a shocking Supreme Court decision in April 2021, which upheld the government’s decision to deport Rohingya refugees back to Myanmar. In its decision, the Supreme Court prioritized ‘national security concerns’ and permitted deportation, marking a stark departure from previous judicial precedents that had protected asylum seekers from return to potential harm.
In May 2025, 40 Rohingya refugees were thrown into the sea near the India-Myanmar border. The group had been detained in New Delhi, India’s capital city, and was then handed over to the Indian Navy, who reportedly cast them into the sea. The Office of the High Commissioner for Human Rights (OHCHR) condemned the act as ‘unconscionable, and unacceptable’. The OHCHR urged the Indian government to refrain from inhumane treatment of Rohingya refugees, including their repatriation into life-threatening conditions in Myanmar. Though this might have been an extraordinary circumstance, it is another breach in India’s already weakening commitment to non-refoulement, specifically in the case of Rohingya Muslim refugees.
A Cautionary Tale
India’s refugee protection regime demonstrates what protection looks like in the absence of a domestic law that codifies core principles of international refugee law. Without it, a system is rendered discretionary, inconsistent, and changed at the whims of political power. The 1951 Refugee Convention established a baseline of protection that states were bound to honor, regardless of changing circumstances.
India’s current approach to refugee protection mirrors that of the Trump Administration’s proposal at the UN General Assembly in September 2025. The concept note, which USCRI covered at the time, asserted that every nation has the absolute right to control its borders, frames asylum as temporary by default, and proposes that states retain sole authority over return decisions, rather than international bodies. What the concept note proposes, India has already built. Its refugees have lived in this reality for years. Without sustained commitment from the international community, the rest of the world may not be far behind.
USCRI, founded in 1911, is a non-governmental, not-for-profit international organization committed to working on behalf of refugees and immigrants and their transition to a dignified life. For press inquiries, please contact: For policy inquiries, please contact: [email protected].
