Refugees and Human Rights

Author: Nayan David pursuing BBA LLB from Northcap University, Gurugram.

“No one puts their children in a boat unless the water is safer than the land.” — Warsan Shire

Refugees across the globe are being placed in sprawling camps with little access to basic amenities, being drowning at the hands of smugglers and are even being robbed by the mafia.

Everywhere from Argentina to Turkey, refugees are amassing at faster rates than ever before. But more often than not, it seems that the focus is placed on where refugees are running to, and not what they’re running from.

Refugees are helpless people who have either fled a war, lived in violence, conflict or even persecution and have crossed an international border in a hope to find safety and security in another country. The well-founded fear of loss of live or family is the reason that often drives one to flee their domicile and find a way of life in a different environment.

As per the 1951 Refugee Convention, refugee are defined as;

“Someone who is unwilling or unable to return to their country of origin due to fear of being persecuted for reasons of religion, race, nationality, membership of a specific social group, or their political opinion or ideology.” [1]

The 1951 Refugee Convention is the key legal document that forms the basis of duties to protect the interests of Refugees. It has been ratified​ by 145 countries. Along with defining the term ‘refugee’, the Convention outlines the rights of those who are displaced and includes the legal obligations of States to protect them.

The basic principle is non-refoulement, it asserts that a refugee is not to be returned to the country where they face serious threats to their life or freedom and this principle is now considered a rule of customary international law.

The universal body that is the guardian of this Convention is United Nations High Commissioner for Refugees (UNHCR) [2]. It was formed by the UN General Assembly in mid 1950s to duly deal with the aftermath of the second world war. It is not only the guardian of the 1951 Convention and but also its 1967 Protocol. According to this legislation, All member states are expected to fully cooperate with UNHCR in ensuring that the rights of all refugees are protected and respected.

By the end of 2019, there were 25.9 million refugee men, women and children registered across the world seeking a home and a basic life, a life with nothing more than dignity[3]

Indian Context


ndia is not a signatory to the 1951 Refugee Convention and it does not have a domestic legislation that is specific to Refugee Crisis. Yet India proudly, boasts of abiding by the common principle of non-refoulement and including refugee protection under the wide understanding of Article 21 of the Constitution. In spite of this, it is a host to the largest number of refugees across South-Eastern Asia. India has adopted an Ad-hoc administrative policy in order to accord protection to the refugees since independence. This results in problems of human right abuses of refugees, lack of basic amenities and sheer discrimination between refugees themselves.

In a form of remedy, the Indian Constitution guarantees certain basic rights to refugees, these fundamental rights namely, the right to equality (Article 14),right to protect in respect of conviction of offences (Article 20),the right to life and personal liberty (Article 21),right to approach Supreme Court for enforcement of Fundamental Rights (Article 32), freedom of religion (Article 25), are aseasily available to non-citizens, which includes refugees, as they are to citizens.

These constitutional rights protect the human rights of the refugees to live their life with dignity. The liberal and wide interpretation that Article 21 has received now includes right against custodial violence, right against solitary confinement, right to medical assistance along with shelter. The Apex Court has taken recourse to Article 21 in the absence of proper legislation to justify and regulate the stay of refugees in India. In the case of NHRC v. State of Arunachal Pradesh[4], the Govt. of Arunachal Pradesh was addressed to perform the duty of safeguarding the health, life and well-being of Chakmasthat resided in the State and their application for citizenship should be sent to the authorities concerned and not with held at any cost.In various other cases too, was held that refugees cannot and should not be subjected to any deportation or detention and that they are duly entitled to approach UNHCR for grant of a legit refugee status. In the case of P. Nedumaran v. Union of India [5] the necessity for the voluntary nature of repatriation was stressed upon and the Court held that the UNHCR, being a global agency, was to determine the voluntariness of the refugees and, therefore, it was not upon the Court to decide whether consent was voluntary or not. Similarly, as per B. S. Chimni, the Apex Court has erred in concluding in Louis de Raedt v Union of India[6] that there is no certain provision in the Indian Constitution fettering the unlimited and absolute power of the government to expel or send away foreigners under the Foreigners Act of 1946.

In reality Article 21 of the Constitution does impose specific constraints: any direct action of the State which deprives a non-citizen of her or his life and personal liberty without a proper procedure that is duly established by law would fall foul of it, and such an action would clearly include the refoulement of said refugees.


Rohingyas are Muslims of Myanmar living in the Rakhine province in the Arakan region. Myanmar government deliberately does not recognise Rohingyas as their citizens and only about 40,000 Rohingyas are acknowledged as citizens in their country. In Myanmar, Rohingya Muslims are referred to as Bengalis as their roots are believed to be of Bangladesh. The citizenship law 1982, of Myanmar does not recognise Rohingyas as an ethnic group and these people have been practically stateless for 35 years.

Rohingyas have made claims that they have lived in the Rakhine region for centuries now, However, most of ‘Rohigyans’ don't have documents that prove that their ancestors lived in Myanmar before 1948 which is the cut-off date under the 1982-Citizenship law.

India has the largest number of refugees in South Asia and has dealt with one of the biggest refugee crisis in the world during the partition, seven decades back, but still, India does not have a refugee specific law. The India Constitution only defines who is a citizen. The subsequent laws also do not specificallydeal with refugees. Before the current Rohingya crisis even broke out, there were "2,07,861 persons of concern in the country, of whom 2,01,281 were all refugees and 6,480 were asylum seekers" by the end of 2015, according to UNHCR[7]

There are about a total 16,000 UNHCR-certified Rohingya refugees in the country. The official estimate puts the figure of Rohingya refugees residing in India beyond 40,000 with maximum concentration in and around regions of Jammu.

Global Context

At the end of 2016, approximately 5.2 million refugees and various migrants reached European shores, going through a treacherous journey from countries like Iraq, Syria, Afghanistan and other countries that were torn apart by war and fear of persecution. For many, this desperate journey is their last. As thousands have already lost their lives or have gone missing since early 2015, and an ever increasing number of women and minor-unaccompanied children continue to take these perilous journeys in the search of safety, search of life. 2018, more than 138,000 people risked their lives trying to reach Europe by sea; more than 2,000 of them drowned.

Out of those who somehow make it, they are many of them who effectively imprisoned.

While a large numbers of people all across the globe continue to be denied their freedom of movement and are illegalised, their sheer determination to survive cannot not be defeated by huge walls and never-ending borders. Many migrant protest movements, such asthe black sardines (sardine nere) in Italy and the black vests (gilets noirs) in France show that there is plenty of resolve and willingness to fight back. The world must offer a different way of seeing migration; a pragmatic alternative that duly addresses colonialism and the massively unequal world that it has created.


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