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Rohingya Crises – The Absence of National Asylum Law in India

Abstract

Refugee policy in India exists in a legal and moral paradox. Despite hosting thousands of displaced individuals, including the persecuted Rohingya from Myanmar, the country has no dedicated national asylum law is not a party to the 1951 Refugee Convention. The Rohingya crisis brings to light the consequences of this legal vacuum, i.e., statelessness, insecurity and inconsistent treatment under laws that fail to differentiate refugees from illegal migrants. India’s reliance on the Foreigners Act and Citizenship Act results in arbitrary detention, limited access to rights and deportation threats, even for UNHCR (United Nations High Commissioner for Refugees) registered individuals. Judicial responses remain unpredictable, reflecting a broader policy shaped more by national interest than humanitarian need. This paper explores the intersection of statelessness, international obligations and domestic law, arguing for a structured legal framework that guarantees refugee protection while addressing genuine security concerns. A codified national asylum policy is not only a legal necessity but a test of India’s constitutional values and global leadership ambitions.

Keywords: Refugee, Rohingya, Statelessness, Non-refoulement, Asylum Law, Human Rights, National Security, Displacement

Introduction

Refugees are those forced to leave their home country owing to persecution based on their race, religion, nationality, political beliefs, or social group participation (UNHCR, 1951). The Rohingya are predominantly Muslim and have resided in Buddhist Myanmar for decades. There are around 1.1 million Rohingya in Southeast Asian countries. They are not one of Myanmar’s 135 listed ethnic groups and have been denied citizenship rights since 1982, forcing them to depart their home country. (Al-Jazeera, 2018)

India’s position on the Rohingya crisis has always been varied and multifaceted. The country has neither signed any international refugee conventions nor enacted a national asylum law (Yhome, 2016). Consequently, Rohingya refugees are treated as foreigners under domestic legislation, For instance, the Citizenship Act of 1955 and the Foreigners Act of 1946, recently amended in 2019, which apply directly to them (Nair, 2021). While India acknowledges the humanitarian dimension of the crisis, it has prioritized national security. As a result, the Rohingya remain caught in a web of borders, bureaucracy and brutality. In a nation that upholds the civilizational, Vasudhaiva Kutumbakam a ideal of “the world is one family”, the absence of a national refugee law speaks more profoundly than any proclaimed tradition of hospitality. To address the refugee issue effectively, a holistic strategy is essential, as refugees continue to face suspicion, surveillance and slow erasure. The paper examines the intersection between statelessness, human rights, and the legal gap in India’s refugee policy. Its objective is to advocate for the development of a robust and inclusive legal framework, incorporating measures such as resettling vulnerable refugees, providing safe spaces for asylum and supporting their integration through various initiatives in host countries (Lloyd College, Blog).

The Legal Void

India now has a greater need for comprehensive refugee laws because of the influx of displaced persons fleeing neighbouring countries including Afghanistan, Bangladesh, Tibet, Sri Lanka, and Myanmar. The absence of specific legal frameworks to address the difficulties faced by refugees creates a legal void that exposes them to a number of risks, including arbitrary detention, discrimination, prosecution, and obstacles to accessing essential services, even though India has a long history of welcoming migrants. Essential rights for refugees are guaranteed by the 1951 United Nations Refugee Convention.  India has a considerable Rohingya population, more than 46,000 have been officially recorded by the UNHCR but neither the 1951 Convention nor its 1967 Protocol has been signed.  This situation culminated in a significant event involving the deportation of unauthorized foreign nationals, including Rohingya, in 2017.

In the Indian context, refugee governance falls under two legislative frameworks. The Foreigners Act 1946, with its most recent amendment in December 2018, confers considerable authority to the Government regarding the regulation of foreigners’ entry and stay. Additionally, the Citizenship Act of 1955, modified in 2019, establishes religious affiliation as a criterion for Indian citizenship for refugees present in the nation. (Shreya Mishra, 2024) Despite numerous Rohingya possessing refugee documentation and UNHCR registration, the Indian authorities do not officially acknowledge their refugee status or provide protection. Consequently, these individuals face perpetual vulnerability to detention or deportation and are denied access to fundamental rights.

The manifestations of discriminatory practices against refugees and preferential aid have revealed an arbitrary interpretation of the non-refoulement principle. Since determinations made outside a structured legal framework tend to be arbitrary, unclear, and predominantly shaped by strategic and geopolitical considerations rather than humanitarian imperatives. This unsystematic methodology has resulted in inequitable, erratic and inconsistent handling of Rohingya. (Rajan, 2022) Without a thorough framework for determining refugee status, authorities struggle to distinguish between people trying to enter the country illegally and genuine refugees in need of protection. Inadequate vetting procedures place India at considerable risk of infiltration by persons with harmful intentions, creating serious national security vulnerabilities. Consequently, the lack of a thorough legislative structure governing refugee movements raises the critical issue of how the nation can appropriately balance protecting its national security interests while fulfilling its humanitarian obligations toward refugees.

The implications of an absence of thorough refugee legislation are substantial. Undocumented refugees experience heightened susceptibility to human rights infringements, while judicial bodies issue inconsistent decisions owing to legislative ambiguity. Concurrently, the state confronts challenges about security, population disparities, and resource depletion in receiving communities. Additionally, refugees become susceptible to mistreatment, exploitation, and illicit trafficking. The deficiency in refugee statutes also generates national security apprehensions. Furthermore, India’s international standing suffers due to the lack of comprehensive refugee regulations. The nation’s non-adherence to global refugee conventions remains a source of concern within the international sphere.  (Debbarma, 2024)

Statelessness and Security Concerns

The Rohingya problem is a result of decades of statelessness and persecution in Myanmar, which are rooted in the 1982 Citizenship Law that denies the rohingya their legal identity and rights by excluding them from recognized ethnic groups. Large numbers of people were displaced as a result of military operations, crackdowns, and systematic discrimination. Their movement has been used as an excuse for violence, leading to ethnic cleansing, especially in 2017, when more than a million people were forced to flee to Bangladesh. While Myanmar refuses international accountability, obstructing long-term solutions, generational statelessness increases poverty, marginalization, and vulnerability, aggravating regional instability. (Kyaw, N. N., 2017)

Approximately 40,000 of the 700,000 people who escaped went in India, while the majority went to Bangladesh. As India takes a mixed stance of shelter and deportation, their presence triggered discussions about security and humanitarian responsibilities (Brenner Yermi, 2019). According to the Indian government, there are significant risks to internal security as a result of the Rohingya refugees (Tantray, T. L., Kumar, S., Uppal, A., & Rani, N., 2025). The Rohingya are categorized as “illegal immigrants” due to irregular immigration, demographic pressures, and the possibility of social unrest in border regions (Home Affairs Ministry, 2017). The government filed an affidavit calling for the deportation of Rohingya migrants to Myanmar in order to safeguard national security (Mohammad Salimullah vs. Union of India, Supreme Court of India, 2017). India has previously hosted refugees from Tibet, Bangladesh, and Sri Lanka (UN, 1948). The Supreme Court has mostly deferred to the administration on security matters, although acknowledging humanitarian concerns. (The Indian Express, 2021)

Regarding the Rohingya minority in India, UNHCR has been actively involved. Since 2011, Rohingya refugees in India have been granted Refugee Identification Cards by UNHCR, mainly to offer a layer of protection against arbitrary detention and deportation, as well as to facilitate access to essential services and fulfill humanitarian goals by providing temporary recognition and aid while long-term solutions are sought (UNHCR, 2017). The UNHCR’s identification cards and the Rohingya refugee status are not formally recognized by the Indian government. In accordance with the Foreigners Act of 1946, India views the Rohingya as “illegal immigrants” who represent security risks, not-with-standing their UNHCR registration, based on intelligence claims of connections to extremist organizations. (Ministry of Home Affairs, 2017)

States’ reactions differed, with some supporting the center’s firm stance and others displaying greater tolerance. Human rights organizations, intellectuals, and civil society groups provide humanitarian assistance and call for protection for Rohingya refugees, pointing to India’s extensive history of providing shelter to displaced people. (Human Rights Watch, 2017)

Legal Challenges and Human Rights Discourse

An ongoing conflict between India’s constitutional principles, its international human rights obligations, and its changing political objectives is reflected in its approach to the Rohingya refugee issue. Although the country has offered refuge in the past to people fleeing conflict in Tibet, Sri Lanka and Afghanistan, it still does not have a national asylum law. The arrival of the Rohingyas, escaping targeted violence in Myanmar, exposed this legal and policy vacuum. What followed was a series of fragmented decisions, drawing attention to India’s lack of clarity in addressing refugee rights and humanitarian protection. Neither the 1967 Protocol nor the 1951 Refugee Convention are ratified by India. Regardless of whether they are migrants or asylum seekers, all undocumented people are treated equally under the Foreigners Act of 1946 in the lack of specific refugee legislation. In 2017, the Ministry of Home Affairs labeled Rohingya as illegal migrants, which paved the way for detention and deportation. The UNHCR operates in India and issues identification cards to some Rohingya, but these carry limited legal weight since their recognition depends on the discretion of Indian authorities.

Although Articles 14 and 21 of the Constitution guarantee equality before the law and the right to life to all persons, judicial interpretations have not always upheld these protections consistently in refugee cases. In NHRC v. State of Arunachal Pradesh (1996), the Supreme Court defended refugee rights. The deportation, states the principle of nonrefoulement is not enforceable without domestic legislation (Mohammad Salimullah v. Union of India, 2021). This position contrasts with the broader interpretation of Article 21 which emphasized procedural fairness and human dignity (Maneka Gandhi v. Union of India, 1978). India has ratified the Convention Against Torture and is bound by a number of international agreements, such as the International Covenant on Civil and Political Rights. Still, deportations of Rohingya occurred in 2018 and 2019 despite repeated warnings from the United Nations. Investigations by Amnesty International and Human Rights Watch revealed overcrowded detention centres, denial of education and health care and the heightened vulnerability of women and children to abuse and neglect.

This contrast leads to uncomfortable but necessary questions. Why does a country that often speaks of its humanitarian values remain largely silent when the United Nations describes the Rohingya crisis as ethnic cleansing? Is this silence driven by foreign policy priorities, such as maintaining ties with Myanmar, or does it serve a political narrative that portrays Rohingya as threats, often without substantial evidence? Why are groups like Afghan Hindus and Sri Lankan Tamils welcomed under the Citizenship Amendment Act, while Rohingya are excluded? Has India’s refugee approach shifted from constitutional secularism to selective compassion based on political and religious identity?

While concerns around security and regional diplomacy are understandable, they must be balanced with the promises enshrined in India’s Constitution and its commitments under international law. A clear, fair and rights- based refugee policy is no longer just desirable, it is necessary. Silence in the face of injustice does not project neutrality; it signals a withdrawal from moral responsibility.

The Way Forward: Why India Needs a National Asylum Law

India’s action towards the Rohingya crisis shows that there is a gap in India’s constitution regarding refugee laws. Even though India hosts one of the largest numbers of refugees in the world, it doesn’t have a proper national asylum law. Because of this, there are no standards in the case of handling refugees some are helped by the government, while others depend only on the UNHCR or are at risk of being arrested or sent back. For example, Tibetans and Sri Lankan Tamils are recognized by the government, but it is not so in the case of the Rohingya, Afghans, and Somalis often don’t get any help and face many problems. This fragmented, ad hoc approach creates bias towards certain people, legal uncertainty and confusion among the refugees.

Since India is not a member to the 1951 UN Refugee Convention, refugee protection is governed by antiquated statutes such as the Citizenship Act of 1955 and the Foreigners Act of 1946, which do not distinguish between undocumented migrants and refugees. To close this gap, MP Dr. Shashi Tharoor submitted a private member’s asylum bill in 2015, offering a set of rules to govern asylum processes and safeguard the rights of migrants. However, institutional and political obstacles prevented the bill from ever being passed. All individuals, including non-citizens, are guaranteed equality before the law and the right to life under Articles 14 and 21 of the Indian Constitution. But these are occasionally upheld in the case of refugees, instead of giving them a permanent solution. Not having any proper law means the protections given to the refugees are a temporary relief. Having a national law would also establish a standardized Refugee efficiency and accessibility. Currently, UNHCR’s Refugee Status Determination (RSD) office is in New Delhi, creating difficulties for distant refugees. A government-run refugee process that follows international rules and the Global Compact on Refugees would include important steps like legal help, translation, and the right to appeal, making the system fairer and more consistent.

India can adopt best practices from across the world in the process of creating law. Countries like Canada, Germany, and Australia have made their refugee laws based on the 1951 Refugee Convention. A national asylum law would help the government accept UNHCR documents, give refugees access to basic services, and keep the country safe by doing proper background checks. Making a national asylum law is not just something India needs legally, but it’s also important to treat people fairly and protect their rights. It will help treat all refugees equally which aligns with the sustainable development goal, support India’s values as a democracy, and show the world that India is a responsible and caring country.

References

Authors:

Afreen Manzoor – Introduction

Niharika Bajpai – The Legal Void

Ashwini Wagh – Statelessness and Security Concerns

Sanya – Legal Challenges and Human Rights Discourse

Sowmya – The Way Forward: Why India Needs a National Asylum Law

Author
Picture of Shoo Phar Dhie

Shoo Phar Dhie

Kang Bakso

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