Selective Protection and the Principle of Non-Refoulement: A Critical Study of the Citizenship (Amendment) Act, 2019

Abstract

Abstract

The principle of non-refoulement is an important part of international refugee protection. In simple terms, it means that a State should not send a person back to a country where that person may be persecuted or face a serious threat to life or freedom. The principle is expressly recognised in Article 33 of the 1951 Convention Relating to the Status of Refugees. Although India has not ratified the Refugee Convention, the UNHCR regards non-refoulement as a principle of customary international law, and on that view the principle may apply to States even when they are not parties to the Convention. India does not at present have a single, comprehensive law dealing specifically with refugees. In the absence of such legislation, matters relating to refugees are generally addressed through laws concerning foreigners, citizenship and national security. The Citizenship (Amendment) Act, 2019 (“CAA”) created a special provision for obtaining Indian citizenship for persons belonging to six specified religious communities, namely Hindus, Sikhs, Buddhists, Jains, Parsis and Christians, who came from Afghanistan, Bangladesh or Pakistan and entered India on or before 31 December 2014, subject to the conditions prescribed under the law. The Citizenship (Amendment) Rules, 2024 later laid down the procedure for making applications under the amended citizenship provisions. This paper focuses on the relationship between the CAA and the principle of non-refoulement. The two deal with different legal questions. The CAA is primarily concerned with the acquisition of Indian citizenship, whereas non-refoulement is concerned with protecting individuals from being returned to a place where they may face persecution or serious harm. The CAA is nevertheless significant from the perspective of refugee protection in India because it creates a specific pathway to citizenship for certain groups facing religious persecution, while persons who do not fall within its specified categories are not covered by the same special route. This raises the question whether a citizenship-based mechanism such as the CAA can adequately address the broader need for refugee protection in India. Against this background, the paper also examines the relevance of Articles 14 and 21 of the Constitution of India and the approach adopted by Indian courts towards the protection of non-citizens.