ABSTRACT
This research paper offers an exhaustive and critical examination of India’s refugee protection regime, juxtaposing its historical tradition of “strategic ambiguity” and hospitality against the contemporary, securitized response to the Rohingya refugee crisis. Despite hosting one of the largest refugee populations in the world—comprising Tibetans, Sri Lankan Tamils, Afghans, and others—India remains outside the 1951 United Nations Refugee Convention and lacks a domestic statutory framework for asylum. This paper traces the evolution of India’s legal and political approach from the humanitarian accommodation of the post-Partition era to the exclusionary “intruder” narrative dominating the current discourse.
Through a detailed analysis of the Foreigners Act of 1946, the Citizenship Amendment Act (CAA) of 2019, and administrative Standard Operating Procedures (SOPs), the study illuminates the precarious legal existence of refugees in India. It scrutinizes the judicial trajectory from the expansive interpretation of Article 21 in NHRC v. State of Arunachal Pradesh (1996) to the retrogression observed in Mohammad Salimullah v. Union of India (2021) and the contentious Supreme Court proceedings of December 2025 led by Chief Justice Surya Kant. The paper further investigates the geopolitical drivers involving Myanmar and China that underpin the specific exclusion of Rohingyas, dissects the debates surrounding non-refoulement as customary international law, and evaluates legislative attempts like the Asylum Bill, 2015. Concluding with a robust set of recommendations, the paper argues that the Rohingya crisis has exposed the fragility of India’s ad-hoc asylum policy, necessitating an urgent shift toward a codified, rights-based refugee framework.
Keywords: Refugee Law, Rohingya Crisis, Article 21,Foreigners Act 1946,Citizenship Amendment Act.
1. Introduction: The Paradox of the Unlegislated Haven
The Republic of India presents a singular paradox in the landscape of international humanitarian law. It is a nation that has, since its agonizing birth amidst the Partition of 1947, served as a sanctuary for millions of displaced persons fleeing persecution, war, and genocide. Yet, it stands as a staunch outlier in the global legal regime governing these very populations, steadfastly refusing to sign the 1951 United Nations Convention Relating to the Status of Refugees or its 1967 Protocol. This dichotomy—of a state that practices protection without legislation and offers hospitality alongside legal precarity—defines the Indian perspective on refugee crises.
For seven decades, the Indian state has managed mass influxes through an ad hoc administrative framework, described by legal scholar B.S. Chimni as “strategic ambiguity”.[1] This approach relies on the executive’s discretionary power to grant or withhold protection based on geopolitical calculations, domestic political exigencies, and civilizational affinities, rather than on binding legal obligations. Under this unwritten code, Tibetan refugees fleeing the Chinese occupation in 1959 were welcomed as “honored guests,” granted land, and allowed to form a government-in-exile.[2] Similarly, Sri Lankan Tamils fleeing the civil war in the 1980s were accorded specific state protection, housed in camps, and provided welfare benefits.
However, the trajectory of this policy has undergone a radical rupture with the advent of the Rohingya refugee crisis. The Rohingyas, a stateless Muslim minority from Myanmar’s Rakhine State, have faced what the United Nations and the International Court of Justice (ICJ) have characterized as genocidal violence.Yet, unlike their Tibetan or Tamil predecessors, the Rohingyas in India have been met not with “calculated kindness” but with “securitized exclusion.” Since 2017, the Indian Ministry of Home Affairs (MHA) has officially categorized them as “illegal immigrants” and “security threats,” initiating deportation proceedings and confining them to detention centers.
This paper posits that the Rohingya case represents a paradigmatic shift in India’s refugee policy, moving from a paradigm of humanitarian management to one of hyper-nationalist securitization. This shift has not only exposed the vulnerabilities inherent in the absence of a national refugee law but has also triggered a profound crisis within India’s constitutional jurisprudence. The “golden triangle” of fundamental rights—Articles 14 (Equality), 19 (Freedoms), and 21 (Life and Liberty)—which once served as a judicial shield for non-citizens, is arguably being dismantled in the context of the Rohingya.
The urgency of this analysis is underscored by recent developments in the Supreme Court of India. The interim order in Mohammad Salimullah v. Union of India[3], which permitted the deportation of Rohingyas subject to “procedure established by law,” and the subsequent remarks by Chief Justice of India Surya Kant in December 2025 regarding “red carpet welcomes” for “intruders,” signal a judicial retreat from the principle of non-refoulement. These developments raise fundamental questions about the universality of human rights in the world’s largest democracy and the robustness of its constitutional checks against executive power.
Through an exhaustive examination of statutory laws, judicial precedents, geopolitical factors, and legislative proposals, this paper aims to deconstruct the Indian perspective on refugees. It seeks to understand how a nation with a civilizational ethos of Atithi Devo Bhava (The Guest is God) navigates the complex collision between humanitarian obligation and sovereign border control in the 21st century.
[1]Bansari Kamdar, “Indian Refugee Policy: From Strategic Ambiguity to Exclusion?” available at: https://thediplomat.com/2020/02/indian-refugee-policy-from-strategic-ambiguity-to-exclusion/ (last visited November 10, 2025).
[2]C. G, “The Geopolitics of India’s Refugee Policy • Stimson Center” Stimson Center, 2022available at: https://www.stimson.org/2022/the-geopolitics-of-indias-refugee-policy/ (last visited November 10, 2025).
[3] AIR 2021 SC 1789.