When a person becomes a subject to torture and discrimination in their own country, many a times, they run almost in haste to other countries to seek shelter. Article 1 (A) (2) of the 1951 United Nations Convention Relating to the Status of Refugees (“Refugee Convention”) defines a refugee as someone who, because of the fear of persecution, comes to other country and is not able to get protection from that nation. In International law, there is a very important principle of non-refoulement. This principle of non-refoulement is prohibition of States from returning the refugees to their territories where there is probability of inhumane treatment.
Article 33 of the Refugee Convention of 1951 is the primary source which codifies this principle. The principle of non-refoulement has been accepted as international customary law. An international customary law is one of the primary sources of the international as per section 38 (1) (b) of the Statute of the International Court of Justice.  A principle becomes an international customary law when it is a consistent practice by the States and there is compulsory adherence to it because of the rule making it mandatory (opinio juris).
The United Nations High Commissioner has observed that the along with the non-refoulement principle under the Refugee Convention, the prohibition of refoulement of refugees under the international human rights make it clear and checks all the requirements for the principle of non-refoulement to be declared as an international customary law. Also, States that are non-members of the Convention have also consistently been demonstrating their acceptance of this rule by giving refuge to the asylum-seekers and whenever proceeded for refoulement of such persons, they have provided with explanations.
India And Non-Refoulement
India is surrounded by countries that have their internal problems and wars going on – which leads to a huge number of asylum-seekers crossing the borders to seek refuge here. However, India is neither a signatory to the Refugee Convention of 1951 nor it has a domestic legal framework for refuge protection. It is a signatory to the UN Declaration of Human Rights which encompasses a similar rule to that of non-refoulment – recognizes the “right of asylum-seekers from persecution”. Even in the absence of an express refugee protection statute, Indian Government, through its actions, has catered to the incoming refugees. The Indian Judiciary has given judgments while keeping this principle of non-refoulement intact. Furthermore, in Ktaer Abbas Habib Al Qutaifi and Anr. v Union of India, the Gujarat High Court held that Article 21 of the Indian Constitution incorporates the essence of the principle of non-refoulement. In the case of Louis De Raedt v Union of India, the Court iterated that even the non-citizens have right to life, liberty and dignity.
The criticism towards Indian law regarding refugee protection is that there is no legal or political guarantee if the refugee shall not be sent back to its territory where they might get persecuted. One of the arguments that circulated for it not being practical for India to become a signatory to the Refugee Convention is that the countries surrounding India are non-members; if India becomes one of the signatories to the Convention then all the asylum-seekers coming to south Asia will be taking refuge in India. Since decades, India has been providing asylum to many refugees coming from the neighboring countries. It even passed laws to protect the interests of the refugees that crossed the India-Tibet border. India certainly continues its moral obligations to provide safety to those who are at risk of persecution at their own home Nations.
Citizenship (Amendment) Act, 2019 and Non-Refoulement
In 2019, the Indian Government passed the Citizenship (Amendment) Act which granted citizenship to all the persons residing in India since the commencement of the Indian Constitution. The applicability of the Act restricts itself from the tribal areas of East India and the states of Mizoram, Nagaland, and Arunachal Pradesh, along with completely excluding the Muslim community from its benefits. There were a total of 144 petitions filed before the Supreme Court and even the UNHCR, represented as amicus curie, moved against the legislation. Her contention was that the Act violated the International law and principle of non-refoulement and that the Act put the excluded community in risk of refoulement given the basis of differential treatment was ethnoreligious.
However, such allegations are said to be in apprehension. It also has to be noted that Article 33 (1) of the Convention does not in any way make it mandatory for the State to grant citizenship to the asylum-seekers. Any law which is for the asylum-seekers should be analysed in the tandem of the political environment and the relations of the States as well. On the other hand, it still stands true that the likely consequences of the Act should not be overlooked. It is now a known fact that the Rohingyas are at risk of persecution in their country and therefore, the implementation of the Act should not be putting such persons at a risk of torture and should be upholding the values of the principle of non-refoulement.
A number of legislations have had been passed in India under the seventh schedule of the Indian Constitution which dealt with the refugees. However, except Article 21 there is no other law in India that explicitly deals with the principle of non-refoulement. Despite having no binding International Conventions, India has continued to treat the refugees, keeping the basic human rights in sight.
Currently, it is also argued that the principle has received the position of jus cogens in the international law – this means that no State can derogate from non-refoulement and in case, it does, the refugees can challenge it. But the gap is highlighted when the principle is violated, then in India, there is mechanism that ensures their rights directly, except the fundamental rights. Therefore, what becomes important for India at this stage is to provide at least some direct statute or mechanism which ensures that no refugee is sent back to their country where they have the risk of being oppressed.
 Vladislava Stoyanova, The Principle of Non-Refoulement and the Right of Asylum-Seekers to Enter Territory, 3 Interdisciplinary Journal Of Human Rights Law (2008). Article 33, UN General Assembly, Convention in Relating to the Status of the Refugees, 28 July 1951, United Nations, 189 Treaty Series, 137 (Jul. 28, 1951).  Article 38(1), The Statute of the International Court of Justice, 59 Stat. 1031, 1060 (1945).  Military and Paramilitary Activities in and Against Nicaragua, Nicaragua v. The United States, (1986) ICJ Rep. 14.  UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III).  Ktaer Abbas Habib Al Qutaifi and Another v. Union of India and Others, 1999 CRIL. J 919. (India).  Omar Chaudhary, Turning Back: An Assessment of Non-Refoulement under Indian Law 39 No. 29 EPW 3257 (2004).  The Citizenship (Amendment) Act, 2019, Bill No. 370 of 2019 (India).  Id.  Application for Intervention, Deb Mukharji, IFS (Retd.) & Ors. v. Union of India & Ors., W.P. (Civil) No. 1479 of 2019 (India).  Id.  Jean Allain, The Jus Cogens Nature of Non-Refoulement, 13 Int’l J. Refugee L. 533 (2001).  Dabiru Sridhar Patnaik & Nizamuddin Ahmad Siddiqui, Problems of Refugee Protection in International Law: An assessment through the Rohingya Refugee Crisis in India 14 Socio-Legal rev. 1 (2018).
Author- Harshita Fatesaria (Jindal Global Law School)