The lifeless clause: Refugees and Article 21 of the Indian Constitution

This Independence Day, a look at the status of refugees and asylum seekers in India and how they are left adrift of protection from non-refoulement.

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ARTICLE 21 of the Constitution of India provides that no person shall be deprived of their life or personal liberty except according to procedure established by law.

In recent decades, this provision has been understood as more than a bare restriction on the executive. Instead, Article 21 has been interpreted as a broader guarantee of the right to live with human dignity, encompassing and protecting a wide array of substantive and procedural rights necessary to enjoy life and liberty.

But Article 21 falls short of its promises when it comes to protecting refugees and asylum seekers in India against refoulement (that is, removal to countries where they may face persecution).

On a consistent view, refoulement of a refugee or an asylum seeker is a clear breach of Article 21— it is the State's conduct directly jeopardising a person's life or liberty. Yet, India's courts have proven cautious and ineffectual in allowing Article 21 to protect the rights and safety of refugees and asylum seekers.