Non-refoulement forbids a State from sending a person back to a country where their life or freedom would be threatened. India has never acceded to the treaty that states the rule, and has never enacted a refugee law of its own.
Because India has no refugee law, a person facing removal has no status to apply for and no authority to apply to. The executive carries out a removal order before any court has tested it, and once the person is across the border the writ court has nothing left to restrain. Counsel therefore argue non-refoulement at the interim stage, on an application to stay a deportation, and almost never at a final hearing on whether the rule binds India.
The rule counsel are invoking sits in Article 33(1) of the Convention relating to the Status of Refugees, 1951, under which no Contracting State shall expel or return (“refouler”) a refugee “in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened” on grounds of race, religion, nationality, membership of a particular social group or political opinion. The drafters wrote it so that a State could not achieve by removal what it was forbidden to do directly, which is to hand a person over to persecution. That obligation runs against Contracting States, and those two words are what the Government of India relies on.
Standing outside the Convention does not by itself put India outside the rule, because non-refoulement is accepted as customary international law and custom binds States that have signed nothing. What custom cannot do on its own is reach an Indian court. The Supreme Court held in Gramophone Company of India Ltd. v. Birendra Bahadur Pandey, (1984) 2 SCC 534 that rules of international law may be accommodated in municipal law without express legislative sanction, provided they do not run into conflict with Acts of Parliament.
That proviso carries more weight now than it did a decade ago. The Immigration and Foreigners Act, 2025 came into force in September 2025, repealing the Foreigners Act, 1946 and three other statutes, and the word “refugee” appears nowhere in its text. The Supreme Court is meanwhile hearing a batch of petitions on whether Rohingya living in India are refugees or illegal entrants at all, a question the Chief Justice framed by asking where the order of the Government of India declaring them as refugees was.
India’s position on the Refugee Convention and the customary rule of non-refoulement
A person resisting removal from India has no instrument to plead, because India is not a Contracting State to the Convention relating to the Status of Refugees, 1951 or to its 1967 Protocol, and no Indian statute creates a refugee status. The argument that would be obvious anywhere else therefore fails before it reaches the merits. Counsel cannot open on Article 33, for the reason that Article 33 speaks to States that joined the Convention and India did not.
India’s distance from the Convention is not distance from the refugee system, or from the wider body of international asylum law. Since 1995 India has sat on the Executive Committee of the United Nations High Commissioner for Refugees, the body that approves UNHCR’s programmes and adopts its protection conclusions. India acceded to the International Covenant on Civil and Political Rights in 1979, and Article 7 of that Covenant prohibits torture and cruel, inhuman or degrading treatment. The Convention against Torture, which India signed in October 1997, has still not been ratified.
Refugees in India are accordingly registered by UNHCR rather than by any Indian authority. By the end of 2024 more than 240,000 refugees and asylum seekers had been identified and registered by UNHCR in cooperation with the Government, most of them from Myanmar and Afghanistan, and it is UNHCR’s Delhi office that conducts the status determination no Indian statute provides for. The card that office issues records the outcome of that determination. It is not a document issued under Indian law, and no Indian statute attaches any consequence to holding one.
Even inside the Convention the rule is not absolute, which changes how the Indian argument has to be pitched. Article 33(2) withdraws the benefit from a refugee whom there are reasonable grounds for regarding as a danger to the security of the country, and from one who has been convicted by a final judgment of a particularly serious crime and constitutes a danger to the community. A person relying on non-refoulement in India therefore has to win twice, first on the rule reaching Indian law at all, and then on the security exception that every source of the rule carries.
What that double burden looks like on a real file is easiest to see in one short example. A journalist from a neighbouring State fled after a coup in which the army arrested her colleagues, crossed into India without a passport, and is sheltering with a cousin in Delhi. She holds a card issued by UNHCR recording her as a refugee, and she has been served with a notice requiring her to leave India.
Two difficulties then appear on the file. The card was not issued under any Indian statute, so nothing in Indian law obliges the officer who served the notice to treat it as proof of her status. Her entry without a passport is itself an offence, punishable under Section 21 of the Immigration and Foreigners Act, 2025 with imprisonment of up to five years, a fine of up to five lakh rupees, or both.
Neither difficulty can be answered out of the Convention, because India never joined it. The argument has to be built instead out of Article 21 of the Constitution, which protects the life and personal liberty of every person in India and not only of citizens, and out of the customary status of the rule she wants to rely on.
Customary status of non-refoulement and Article 51(c) of the Constitution
The customary status of non-refoulement is the only basis on which it reaches an Indian court, and Article 51(c) of the Constitution is the provision through which courts have received it. That provision directs the State to endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another. It sits in Part IV among the Directive Principles, so it is not enforceable by itself and works as a direction on interpretation rather than as a source of rights.
The Supreme Court stated the conditions on which such a rule is received in Gramophone Company of India Ltd. v. Birendra Bahadur Pandey, a customs dispute decided on 21 February 1984 about cassettes in transit to Nepal. Chinnappa Reddy J held that “the comity of Nations requires that Rules of International law may be accommodated in the Municipal Law even without express legislative sanction provided they do not run into conflict with Acts of Parliament”. He added the limit in the same passage: “Comity of Nations or no, Municipal Law must prevail in case of conflict. National Courts cannot say yes if Parliament has said no to a principle of international law.”
Both halves of that test were manageable for a refugee claimant while the governing statute was the Foreigners Act, 1946, which conferred a general power over the presence of foreigners and said nothing at all about persecution. Parliament replaced that Act in 2025 with a statute conferring an express power of removal on the Central Government. How much room the Gramophone proviso leaves after that replacement is a question no court has yet answered.
Fundamental rights that carry a non-refoulement claim for a non-citizen
A non-citizen in India can plead Articles 14 and 21, and an argument framed as a right to remain in the country will lose, because the right to reside and settle in any part of the territory of India is given by Article 19(1)(e) to citizens alone. That distinction decides how the petition is drafted. A case about where the person is entitled to live fails at the threshold, while a case about what may lawfully be done to them survives it.
That line was drawn on the petitions of three foreign missionaries whose applications to extend their stay in India the Government had refused in 1987. The Supreme Court held in Louis De Raedt v. Union of India, (1991) 3 SCC 554 that “the fundamental right of the foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country, as mentioned in Article 19(1)(e), which is applicable only to the citizens of this country”. Article 14 runs alongside Article 21 in the same way, since both are framed in terms of persons rather than citizens.
Indian courts have used that reach to protect a refugee population directly. The Chakmas displaced from what is now Bangladesh had been served quit notices by a students’ union in Arunachal Pradesh, and the National Human Rights Commission took their case to the Supreme Court under Article 32. The Court held in National Human Rights Commission v. State of Arunachal Pradesh, (1996) 1 SCC 742 that “the State is bound to protect the life and liberty of every human-being, be he a citizen or otherwise”, and directed that they not be evicted save by due process. That reasoning turned on Article 21 and due process rather than on non-refoulement, so the case establishes who holds the right and not what the rule requires.
What survives, then, is an argument about process and consequence rather than about entitlement. Counsel can say that a removal carried out without a hearing, or to a place where the person faces a real risk to life, offends Article 21 as applied to every person present in India. What counsel cannot say is that the person has a right to stay in the country, and the Supreme Court used precisely that gap in 2021.
Article 19(1)(e) and the executive power to expel a foreigner
Article 19(1)(e) matters a second time here, for the expulsion power it leaves untouched. A Constitution Bench held in Hans Muller of Nurenberg v. Superintendent, Presidency Jail, Calcutta, [1955] 1 SCR 1284 that the power of the Government in India to expel foreigners is absolute and unlimited, and that there is no provision in the Constitution fettering that discretion. The Court in Louis De Raedt restated that holding and added that the executive Government has an unrestricted right to expel a foreigner.
Neither of those judgments was decided against a claim of persecution, and that is the opening a petitioner works with. Hans Muller was a West German national whom the Calcutta police arrested in September 1954 and whom the West Bengal Government then detained under the Preventive Detention Act, 1950 with a view to arranging his expulsion, while Louis De Raedt concerned missionaries whose permits had run out. Neither Court was asked whether the expulsion power extends to sending a person to a place where they face a real risk to life.
The petition is therefore pitched at the manner of the removal rather than at the power to order it. A court asked to hold the expulsion power unlimited in the abstract will say yes, on authority that has stood since 1955. A court asked whether an executive order may send a particular person to a particular place, without a hearing and on undisclosed material, is being asked a different question, and that is the question on which relief has actually been granted in these cases.
High Court authority placing non-refoulement inside Article 21
Three High Courts have placed non-refoulement inside Article 21, and every one of them attached national security to it in the same breath, so the protection a petitioner cites arrives already qualified. The qualifier is not a later gloss added by an unsympathetic bench. It sits in the sentence that grants the protection.
None of these rulings binds a court outside its own jurisdiction, and the Supreme Court has adopted the reasoning of none of them. They remain the strongest authority a petitioner has, for the plain reason that they are the only Indian judgments treating non-refoulement as a rule an Indian court can apply to a person in front of it.
Three High Court rulings on non-refoulement between 1998 and 2021
The Gujarat High Court decided the first of them, Ktaer Abbas Habib Al Qutaifi v. Union of India, 1999 Cri LJ 919, on 12 October 1998. Two Iraqi boys aged sixteen and seventeen had been held at a joint interrogation centre in Bhuj since November 1997, and asked to be released to UNHCR instead. Mathur J held that “the principle of ‘non-refoulment’ is encompassed in Article 21 of the Constitution of India and the protection is available, so long as the presence of the refugee is not prejudicial to the national security”. He reached Article 21 through Articles 51(c) and 253, on the reasoning that international law and treaty obligations are to be respected and that courts may apply those principles in domestic law.
The Delhi High Court followed that reasoning seventeen years later in Dongh Lian Kham v. Union of India, decided on 21 December 2015 in WP(Crl) 1884/2015. The petitioners were a village pastor whom the Burmese army suspected of sympathising with an insurgent group, and a taxi driver accused of injuring an army officer, both of them recognised as refugees by UNHCR. Ashutosh Kumar J held in paragraph 30 that non-refoulement “is required to be taken as part of the guarantee under Article 21 of the Constitution of India”, and stated in the same paragraph that “this protection is available to a refugee but it must not be at the expense of national security”. The operative direction was narrow, requiring the Foreigners Regional Registration Officer to hear the petitioners and explore a third country option for their deportation with UNHCR’s inputs.
The Manipur High Court applied the principle to the Myanmar coup in Nandita Haksar v. State of Manipur, decided on 20 April 2021. Seven Myanmar nationals had crossed into India and were being sheltered by the petitioner, three of them journalists with a news service the junta had banned and the rest the wife and three minor children of one of them. Chief Justice Sanjay Kumar and Justice Lanusungkum Jamir held, on an interim application and not after a full hearing, that “the principle against refoulement, i.e., the forcible return of refugees to a country where they are liable to be subjected to persecution, can prima facie be read into Article 21 of the Indian Constitution”.
The relief matched that finding rather than exceeding it. The Court directed that the seven be transported safely from Moreh to Imphal under escort, that their biometric and biographic details be registered with the Senior Immigration Officer before they were moved, and that no coercive action be taken against them in the meantime by the State or the Centre. Across all three rulings the courts did the same three things. Each granted an interim protection, each routed the person towards UNHCR, and none of them decided the person’s status.
National security as the qualifier on every non-refoulement holding
The qualifier’s position inside each sentence is what makes it difficult to argue around. Mathur J made the protection available “so long as the presence of the refugee is not prejudicial to the national security”, and Ashutosh Kumar J wrote that it “must not be at the expense of national security”. A petitioner citing either judgment is citing the exception along with the rule.
Under the Foreigners Act, 1946 the State had to argue a security claim rather than certify one. That Act conferred a general power over the entry and presence of foreigners and listed no grounds, so an order removing a person was defended on the general power, and security was a submission rather than a statutory category.
Section 29 of the Immigration and Foreigners Act, 2025 has changed that position. It makes “an adverse security report” a free-standing ground on which the Central Government may direct removal, standing alongside contravention of the Act and requiring no contravention of anything. The judicial caveat and the statutory ground now say the same thing, which means the exception the High Courts wrote into Article 21 is the exact category the statute asks the executive to certify.
Supreme Court limits on the non-refoulement argument
The Supreme Court has never rejected non-refoulement outright, and it has declined to stay a deportation every time it has been asked, which comes to the same thing for the person facing removal. The claim fails at the interim stage, on an application to restrain a removal, before any bench decides whether the rule binds India.
The order that set that pattern came out of the Rohingya deportation petition, two months after the coup in Myanmar. Chief Justice S.A. Bobde and Justices A.S. Bopanna and V. Ramasubramanian decided an interlocutory application on 8 April 2021 in Mohammad Salimullah v. Union of India, Writ Petition (Civil) 793 of 2017. The application was brought on behalf of Rohingya in Jammu, put at about 6,500 in the petition, of whom roughly 170 were held in a sub-jail converted into a holding centre and were said to be facing deportation to Myanmar.
Three moves in the reasoning did the work. The Court accepted that “the rights guaranteed under Articles 14 and 21 are available to all persons who may or may not be citizens”. It then held that “the right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e)”, which is the Article confined to citizens. Third, the bench noted that India is not a signatory to the Refugee Convention and that non-refoulement applies to Contracting States.
The order refused one thing and gave another. Interim relief was declined, and the Court directed that the Rohingya in Jammu “shall not be deported unless the procedure prescribed for such deportation is followed”. A person in that position cannot stop a removal on the ground that it would return them to persecution, and can require the executive to follow the procedure the statute lays down before carrying it out.
Orders of May 2025 and the refugee status question now pending
Two orders in May 2025 refused relief to people who said they faced persecution on return. On 19 May 2025, Justices Dipankar Datta and K. Vinod Chandran declined relief to a Sri Lankan Tamil who had completed a seven-year sentence under the Unlawful Activities (Prevention) Act, 1967 and had been directed by the Madras High Court to leave India, holding that his liberty had been taken in accordance with the procedure established by law and that the right to settle in India under Article 19 belongs to citizens. The remark reported from the hearing, that India is “not a dharamshala that we can entertain foreign nationals from all over”, was an oral observation during argument rather than part of the reasoning.
Three days earlier, in Mohammad Ismail v. Union of India, W.P.(Crl.) No. 204/2025, Justices Surya Kant and N. Kotiswar Singh refused interim orders on a petition alleging that 43 Rohingya had been taken to Port Blair, put aboard naval vessels and left in international waters. The Court treated the allegation as unsubstantiated on the material filed, and a three-judge bench had declined interim directions in a connected matter on 8 May 2025. Nothing in either order decides whether the allegation was true.
The underlying question is now squarely before the Court and remains undecided. In the habeas corpus petition concerning five Rohingya who held valid UNHCR cards and were taken into custody in Delhi in May 2025, Chief Justice Surya Kant and Justice Joymalya Bagchi gave the Union two weeks on 16 December 2025 to file a status affidavit, and listed the matter with the tagged petitions for 13 January 2026. The Chief Justice had earlier asked counsel to point to “the order of the Government of India declaring them as refugees”, refugee being in his words “a well defined legal term” that a prescribed authority confers. No judgment has issued on that batch, so whether Rohingya in India are refugees or illegal entrants is at present an open question before the Supreme Court.
Executive power over removal under the Immigration and Foreigners Act, 2025
Protection from removal in India is granted by the executive through a Gazette order keyed to a person’s community, country of origin and date of entry, which is a different instrument from the doctrine and reaches a different set of people. Non-refoulement asks what a particular person faces if returned. The Immigration and Foreigners Act, 2025 and the order made under it ask which category the person belongs to.
The Act came into force on 1 September 2025 and repealed four statutes by Section 36(1), namely the Passport (Entry into India) Act, 1920, the Registration of Foreigners Act, 1939, the Foreigners Act, 1946 and the Immigration (Carriers’ Liability) Act, 2000. Parliament passed it in the Lok Sabha on 27 March 2025 and in the Rajya Sabha on 2 April 2025, and the President assented on 4 April 2025. The words “refugee”, “asylum” and “refoulement” appear nowhere in its text, so the statute now governing every foreigner in India says nothing at all about people who cannot go home.
Four provisions carry the removal architecture between them. Under the second proviso to Section 3(1), a foreigner found inadmissible on account of a threat to national security, sovereignty and integrity, relations with a foreign State or public health may not enter or stay, and “the decision of the Immigration Officer in this regard shall be final and binding”. Section 7(1) lets the Central Government make provision by order for “prohibiting, regulating or restricting the entry of foreigners into India or, their departure therefrom or their presence or continued presence therein”. Section 16 places on the person the onus of proving that they are not a foreigner of a particular class, notwithstanding the Bharatiya Sakshya Adhiniyam, 2023.
Section 29 supplies the removal power itself, providing that the Central Government “may, by general or special order, direct the removal of a foreigner from India for contravention of any of the provisions of this Act or any rule or order made thereunder or an adverse security report”. An adverse security report is thus a ground standing on its own, needing no contravention of anything, which is where the statute meets the national security qualifier the High Courts had already written into Article 21. Section 7(2)(d) adds that a foreigner directed not to remain in India must meet the cost of his own removal from any resources at his disposal.
Protection by exemption order rather than by refugee status
Protection under this Act comes from Section 33, which lets the Central Government exempt any individual foreigner or class or description of foreigner from all or any of its provisions by an order published in the Official Gazette. The Immigration and Foreigners (Exemption) Order, 2025, notified on 2 September 2025, exempts Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan who entered India on or before 31 December 2024 because of religious persecution or fear of it, from the requirement to hold a valid passport, travel document or visa. Sri Lankan Tamils registered and sheltered in India up to 9 January 2015 are covered as well, as are Tibetans, graded by date of arrival. The exemption confers neither citizenship nor refugee status, and what it does is remove the penal and removal consequences of being undocumented.
Everyone outside those categories is left with the doctrine and nothing else. Rohingya from Myanmar are not among the six named communities, and Myanmar is not among the three named countries, so the route that protects a Hindu family from Pakistan is closed to them. The journalist who crossed the border after the coup holds a UNHCR card that Indian law does not recognise, and she falls outside an exemption order written for other communities. What she has is Article 21, a rule of customary international law, and a question the Supreme Court has not yet answered.
Frequently asked questions
Is India bound by non-refoulement even though it has not signed the 1951 Refugee Convention?
India is bound by non-refoulement as a rule of customary international law, and there is no Indian statute through which a person can enforce it. Customary rules reach municipal law on the condition stated in Gramophone Company of India Ltd. v. Birendra Bahadur Pandey, (1984) 2 SCC 534, which is that they do not conflict with an Act of Parliament. The Supreme Court in Mohammad Salimullah v. Union of India noted in 2021 that the Convention obligation runs against Contracting States, and India is not one.
Does a UNHCR refugee card protect a person from deportation in India?
A UNHCR refugee card is not issued under any Indian statute and carries no statutory consequence, so it does not by itself bar removal. In practice it has mattered as evidence: the Delhi High Court in Dongh Lian Kham v. Union of India directed the Foreigners Regional Registration Officer to consider a third country option with UNHCR’s inputs for card-holding petitioners, and the Manipur High Court routed seven Myanmar nationals towards UNHCR in 2021. The Chief Justice of India questioned the legal standing of such cards while hearing the pending Rohingya batch in December 2025.
Which Indian court decisions have read non-refoulement into Article 21?
Three High Court decisions have done so. The Gujarat High Court in Ktaer Abbas Habib Al Qutaifi v. Union of India (1998) held that the principle is encompassed in Article 21 so long as the refugee’s presence is not prejudicial to national security; the Delhi High Court in Dongh Lian Kham v. Union of India (2015) held that it forms part of the Article 21 guarantee but not at the expense of national security; and the Manipur High Court in Nandita Haksar v. State of Manipur (2021) held that it can prima facie be read into Article 21. The Supreme Court has not adopted any of these holdings.
Did the Immigration and Foreigners Act, 2025 create a refugee status in India?
The Immigration and Foreigners Act, 2025 created no refugee status, and the words “refugee” and “asylum” do not appear in it. It repealed the Foreigners Act, 1946 and three other statutes with effect from 1 September 2025, and Section 29 empowers the Central Government to direct the removal of a foreigner for contravention of the Act or on an adverse security report. Relief from the Act comes through exemption orders under Section 33, the current one being the Immigration and Foreigners (Exemption) Order, 2025.
Can a person facing removal from India approach the High Court?
A person facing removal can move the High Court under Article 226 or the Supreme Court under Article 32, and the writ has to be filed before the removal is carried out, since a court cannot restrain an order that has already been executed. Habeas corpus is the usual route where the person is in custody, as in the pending petition concerning five Rohingya detained in Delhi in May 2025. The realistic relief sought at that stage is an interim direction that the person not be removed except by the procedure prescribed, which is what the Supreme Court granted in Mohammad Salimullah.
References
Case law
- Dongh Lian Kham v. Union of India, WP(Crl) 1884/2015 (Delhi High Court, 21 December 2015)
- Gramophone Company of India Ltd. v. Birendra Bahadur Pandey, (1984) 2 SCC 534 (AIR 1984 SC 667)
- Hans Muller of Nurenberg v. Superintendent, Presidency Jail, Calcutta, [1955] 1 SCR 1284
- Ktaer Abbas Habib Al Qutaifi v. Union of India, 1999 Cri LJ 919 (Gujarat High Court, 12 October 1998)
- Louis De Raedt v. Union of India, (1991) 3 SCC 554 (AIR 1991 SC 1886)
- Mohammad Ismail v. Union of India, W.P.(Crl.) No. 204/2025 (Supreme Court, 16 May 2025)
- Mohammad Salimullah v. Union of India, W.P. (C) No. 793 of 2017 (Supreme Court, 8 April 2021)
- Nandita Haksar v. State of Manipur, W.P.(Crl.) No. 6 of 2021 (Manipur High Court, 20 April 2021)
- National Human Rights Commission v. State of Arunachal Pradesh, (1996) 1 SCC 742
Statutes and instruments
- Convention relating to the Status of Refugees, 1951, United Nations Treaty Series vol. 189 (Articles 33(1) and 33(2))
- Constitution of India (Articles 14, 19(1)(e), 21, 51(c), 226, 253 and 32)
- Immigration and Foreigners Act, 2025 (Act 13 of 2025) (sections 3, 7, 16, 21, 29, 33 and 36)
- Immigration and Foreigners Bill, 2025, as introduced in the Lok Sabha (Bill No. 22 of 2025)
Secondary sources
- Bar and Bench, on the Supreme Court order of 19 May 2025 in the Sri Lankan national’s case
- LawBeat, on the order of 16 December 2025 in the Rohingya habeas corpus petition
- UNHCR, India country page
This article is for informational and educational purposes only and does not constitute legal advice. The position on refugee protection in India is being litigated before the Supreme Court and may change. Readers facing removal or detention should consult a qualified advocate.