From Persecution to Protection: Upholding Asylum as a Beacon of Human Rights

A refugee is someone who has survived and who will build the future. - Amela Koluder

ABSTRACT: In a world where global displacement due to conflict, persecution, and climate change is on the rise, asylum is vital to the preservation of human dignity and an assertion of international solidarity. Any number of international frameworks are in place to legitimize and further implement the right to asylum (the 1951 Refugee Convention or the principle of non-refoulement), however, there are still ongoing disparities in its enforcement, inclusivity, domestic implementation in countries in the Global South, and in states like India where there is no formal asylum law. Thus, this essay will investigate the historical and cultural evolution of asylum as a legal and moral thing, will assess India's commitment to asylum seekers (or lack thereof), and ascertain potential routes to an approach that is more rights-based. The methodology is qualitative, the study uses a doctrinal approach, and the analysis consists of international legal instruments, constitutional provisions in India, Indian judicial authorities relevant to asylum seekers, and any contemporary public policy trends. The findings suggest that while India appears to offer refuge to asylum seekers on many morally and humanitarian grounds, the absence of a prescribed law regarding asylum leads to arbitrary and inconsistent notions of lawfulness and legality for all asylum seekers. Consequently, the essay concludes that putting law into asylum, as a formal legal construct, is necessary in India and that a coherent legal framework grounded in constitutionalism, law, and morality is possible with the recognition of asylum as both a humanitarian goal and a constitutional state obligation - implying greater accountability at both a global level and national level.

INTRODUCTION

In a world splintered by warfare, political oppression, ethnic cleansing, and ecological collapse, asylum stands as one of the most critical embodiments of our collective human consciousness. Asylum is not a new idea: it is grounded in ancient practices of sanctuary. Asylum has become a critical legal and humanitarian principle and element of the contemporary international order. It is recognized in article 14(1) of the Universal Declaration of Human Rights and in the 1951 Refugee Convention, and its corresponding 1967 Protocol, along with various regional frameworks. Asylum acts as a 'bulwark' for those fleeing persecution and a 'test' for global solidarity. Asylum represents something more than another legal anachronism; it is a moral obligation to extend to those who are fleeing persecution, a product of the darkest moments of human history including the Holocaust, post-colonial struggle, and today, civil war. People are leaving their home countries not only because of war and political persecution but also because of systemic oppression, violence against women and girls, religious persecution, and climate displacement. Yet, under the shadow of rising nationalism, securitized borders, and increasingly hostile migration regimes, the very essence of asylum is being challenged. This paper will review asylum from a multi-disciplinary perspective by examining the legal basis of asylum, the ethical basis for asylum-seekers and refugees, and the operational complexity of providing asylum in a rapidly changing geopolitical world. The paper will argue that asylum seekers are not only a state obligation in international law, but represent a shared responsibility of humanity to protect those whose rights and dignity are being violated. Committing to asylum takes more than ensuring compliance with legal obligations - it requires a global commitment to non-refoulement, non-discrimination, and by extension, dignified treatment of all who seek it. As the lines between persecution and displacement fade in an era of complex emergencies, reaffirming asylum as a human rights pillar is not only important but urgent.

THE ESSENCE OF ASYLUM IN HUMAN RIGHTS

Asylum is not simply a political act of kindness, it is a legal entitlement based on international human rights law and humanitarian principles. The 1951 Refugee Convention and 1967 Protocol define refugee to mean someone who, “owing to well-founded fear of being persecuted... is unable or unwilling to return to their country of origin.” Then, Article 14 of the Universal Declaration of Human Rights (1948) further underlined the importance of asylum, stating that “everyone has the right to seek and to enjoy in other countries asylum from persecution.” This premise is not merely theoretical; it confirms the fundamental proposition that no human being should experience violence, discrimination or oppression without the prospect for safety and dignity. The right to asylum acts as a bulwark against egregious state-based abuses, including religious persecution, political repression, ethnic cleansing and torture. When a state grants asylum, it is not simply granting an individual a safe haven; it is objective recognition of that individual’s humanity and purposeful affirmation of the collective commitment of humanity to protect the most vulnerable from regimes that seek to dehumanize or exterminate them.

THE HISTORICAL AND LEGAL DEVELOPMENT OF ASYLUM

The history of asylum indicates that it has long been clear that individuals require protection from danger. In ancient Greece and Rome, there was a concept of sanctuary whereby temples and sacred locations were thought to confers a site of sanctuary or inviolability from injustice. That epistemology was seen in other ancient societies, including ancient India, when the king and religious sites extended asylum to people who are being persecuted. However, asylum was either spiritual and/or symbolic, and was legally unenforceable. Only after the Second World War, when the world was attempting to comprehend the human toll associated with the Holocaust, and the displacement of millions, did asylum start to codified as a legal right. The milestone in this event arose with the adoption of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. Both provided definition for a refugee, a principle of non-refoulement which prohibits a person being returned to a territory or part of a territory were their life or freedom would be threatened. This was a significant step forward in asylum: it actually became an internationally binding obligation rather than a practically charitable act grounded in intentional mercifulness and in a somewhat ironic manner reflected a desire not to exacerbate the risk of persecution. By law articulating asylum post-war society, established an obviously global arena that was based on a premise that the protection of human dignity must be viewed globally and that the international community should not deny suffering and injustice to others.

THE MORAL RESPONSIBILITY OF ASYLUM

Asylum, as much as it sits in a legal context, is still a breathtaking moral commitment to promoting the dignity, safety and equality of all human beings. Asylum is a globally endorsed declaration that whether an individual is persecuted based on nationality, religion, political opinion, ethnicity, gender or some social subgroup, it should not matter. As such, asylum is an avenue to safety; it is not a mere legal process - it is sanctuary, for those fleeing from the horror of unimaginably adverse conditions including genocide, repression (or persecution), both sexually and gendered-based violence, repression from the callous clutches of authoritarian regimes to individuals and communities who experience oppression, injustice and persecution. Asylum is not simply about physical security; it is ownership of their lives, their future and restoring humanity to their existence. To refuse an application for asylum is, to remit a person to an infinitely circular path of suffering, statelessness, suffering or death. It is not just a failure of law but also failure of conscience. Upholding the right to asylum includes more than honouring an obligation through a treaty; it is moral standard we have committed our obligations and represents the values we endorse as members of a community of people living collectively on the earth. In a polarized world - larger borders are being constructed, walls are being erected, and xenophobic rhetoric is rampant; how we care for those who are most vulnerable is a reflection on us as a human collective. Upholding asylum is a choice - do we share a built in desire to create a world based on compassion, solidarity and inclusion or create a world of exclusion, fear and moral indifference?

LEGAL FOUNDATIONS OF THE RIGHT TO ASYLUM: GLOBAL AND REGIONAL STRUCTURES

The right to seek and enjoy asylum was first set out in the 1948 Universal Declaration of Human Rights (UDHR), adopted in the wake of the depths of the Second World War. Article 14(1) states that “everyone has the right to seek and to enjoy in other countries asylum from persecution.” Despite the fact that the UDHR is not legally binding, it has been an immensely important moral instrument, inspiring future treaties and national legislation. The UDHR framed asylum as a human right, as opposed to a discretionary act by the state. The UDHR proposed asylum as a global legal and ethical obligation.

The 1951 Refugee Convention and 1967 Protocol are the principal legal instruments regarding the treatment of refugees. The Refugee Convention relates, defines, and outlines who is a refugee and their rights (such as access to courts, education, and the right to work, etc.). Article 33 is the most important, as it codifies the principle of non-refoulement (the practice of denying refugees entry into a country, returning them to places of serious harm) and implies that the refugee is due protection. The 1967 Protocol expanded the Convention by eliminating the Convention’s time and geographical limits, and thereby making the protections in the Convention universally applicable.

The International Covenant on Civil and Political Rights (ICCPR), 1966, while not refugee specific, nevertheless contributes to the protection of asylum seekers by ensuring procedural safeguards. Articles 9 and 13 provide the right to liberty and protection from arbitrary detention as well as fair procedures in expulsion cases. The Human Rights Committee expounded on these rights and confirmed that they apply to all persons, including asylum seekers. They embedded due process and dignity into asylum processes.

At the regional level, Europe, Africa and Latin America have created complementary instruments. The European Convention on Human Rights (ECHR) Article 3 prohibits torture and inhuman or degrading treatment. The European Court of Human Rights (ECtHR) has interpreted this provision to encompass the prevention of deportation to countries where these kinds of treatments are likely to occur. Furthermore, the Common European Asylum System (CEAS) aims to create harmonized asylum practices across Member States, with the aim of promoting consistency and shared responsibility.

In Africa, the 1969 OAU Convention provided a much broader conceptualization of who could qualify as a refugee by extending the definition to those fleeing not only persecution but also war, foreign domination or events that have seriously disturbed public order. This broader approach is a function of Africa's colonial history and colonial legacy, further suggesting that this understanding is instrumental to law, not merely legal. Africa's regional approach manifests its strong political commitment to refugee protection, which often exceeds the scope of international conventions.

Similarly, the Cartagena Declaration of 1984 in Latin America, although it is non-binding has influenced many of these countries and their domestic laws related to asylum processes. The Cartagena Declaration includes a broader definition of who qualifies as a refugee, to include those who have fled generalized violence, internal strife and mass violations of human rights. Countries such as Mexico and Brazil have enshrined and adopted many of these broader principles, demonstrating regional solidarity and responsiveness to complex and fast moving humanitarian stresses.

While India is not a party to the 1951 Convention or the 1967 Protocol there has been a tradition of hospitable refuge. The Indian judiciary has been an important component in ensuring the rights associated with asylum. In NHRC v. State of Arunachal Pradesh the Indian Supreme Court specifically prevented the eviction of Chakma refugees by reaffirming their constitutional rights under Articles 14 and 21. While India has no formal refugee law or status, judgments such as this provide de facto compliance such that there are at least unwritten domestic national standards that arguably pertain to international norms, despite inconsistencies and at the discretion of the executive.

FUNDAMENTAL PRINCIPLES OF ASYLUM LAW

Non-refoulement, which forbids returning refugees to territories where they may be subjected to persecution, torture, or death. Non-refoulement is defined in Article 33(1) of the 1951 Convention and regarded as a customary international law which, therefore, is binding on all State actors, regardless of whether they are party to the Convention. The European Court of Human Rights reaffirmed the nature of non-refoulement in Chahal v. United Kingdom (1996), ruling it is absolute, even in the case of national security. Unfortunately, non-refoulement is becoming increasingly undermined by deterrent measures, such as offshore processing and safe third-country agreements. In India, the situation is complex. Our judiciary has, for example, given affirmations of these principles through its decisions in the Rohingya deportation cases. Nevertheless, there is no legal architecture in place — it is up to the discretion of the States — so the protections afforded are inconsistent, and often, at the mercy of the whims of the migrants.
Non-discrimination, requiring the equal consideration of all asylum seekers upon the basis of identity, origin, or belief. Article 3 of the Refugee Convention outlines non-discrimination and is affirmed under Articles 2 and 7 of the UDHR, as well as Articles 2 and 26 of the ICCPR. Nevertheless, despite all this, geopolitics and prejudice often skew case outcomes. Increasingly, consider the global legal communities position the evolving interpretation of gender identity and sexual orientation as grounds for persecution and legitimate claims for asylum, placing already marginalized individuals who face criminalization in countless country contexts at further risk. This has important implications for sensitivity and decision-making practice moving forward, in order to avoid systematic stereotyping and political influence.
Right to a fair and efficient asylum process is fundamental. As laid out in Article 13 of the ICCPR and the UNHCR’s Refugee Status Determination Handbook, asylum seekers are entitled to legal representatives, interpreters, and a reasonable opportunity to present their case. These protections must be implemented quickly and with cultural sensitivity. Unfortunately, many countries, including India, administer dated or vague laws, like the Foreigners Act, 1946, which leads to arbitrary detention and deportation. Without transparent iteration of procedures, asylum seekers in India could unknowingly be exposed to executive overreach and inconsistent treatment.

INTERNATIONAL SOLIDARITY

Not only does (or should) asylum protection stand on legal footing, but the global context of burden-sharing is also critical to its viability. Countries such as Jordan, Uganda, Turkey and Germany have sustained millions of refugees with relatively limited resources, while most wealthier countries are busy pushing restrictive ways to admit asylum seekers. Recognizing this disparity, the Global Compact on Refugees (2018) concluded with a goal of finding equitable burden-sharing and developing resettlement schemes, as well as offering sustained technical and financial assistance to frontline host countries. Beyond symbolism, solidarity must include binding commitments and durable arrangements, if there is to be any meaningful progress related to international protection.

ETHICAL AND HUMAN RIGHTS MATTERS

As mentioned earlier misunderstanding human rights obligations surrounding asylum is only one issue we face. Beyond legal obligations and human rights, asylum is fundamentally a moral obligation that is a reflection of our concern for human dignity and shared humanity. Article 1 of the UDHR states that "All human beings are born free and equal in dignity and rights". To turn someone away from asylum for whom there is a well-founded fear is not only unethical because it causes suffering, but demonstrates a sort of failure in one's ethical responsibilities as a global citizen. Prior historic tragedies - beyond the holocaust, the genocide of Rwanda or the Syrian civil war, for example - point to the potential very real consequences of indifference proposition. We owe it to ourselves to uphold that token right to asylum and to defend the moral conscience of our society, and our humanity overall.

CASE STUDIES: JURISPRUDENTIAL AND INTERNATIONAL LESSONS IN ASYLUM LAW

A very helpful way to look at how asylum law works in practice is with case studies. They show how key concepts non-refoulement, political asylum, statelessness and state responsibility are utilized by courts and governments in different political, legal, and cultural contexts. The case law and humanitarian crises below show the various ways asylum protection is being applied, adapted to the current evolving circumstances, and past limits.

1. Chen Guangcheng v. China (USA, 2012)

Chen Guangcheng was a blind human rights lawyer who sought asylum in the US after escaping house arrest due to opposing the coercive enforcement of China's one-child policy. He was granted asylum status in the US and in doing so, emphasized the central role asylum plays as a safeguard for individuals persecuted by sovereign state actors for claiming their rights and exercising their responsibilities to free expression and advocacy. The case also exemplified the intersection of international diplomacy and asylum law, which encompasses wider promises of upholding human rights and assuring international protections for dissenters.

2. A.S.(Namibia) v. Union of India (Delhi High Court, 2023)

India has not ratified the 1951 Refugee Convention; nonetheless, the Delhi High Court in this case recognized that constitutional protections as a matter of right, namely Article 21 (right to life and liberty), obliges the country to uphold the idea of non-refoulement. A Namibian asylum-seeker, A.S., claimed he would face serious threats in the event of his deportation. The Court ruled that in the face of the questions posed and the obligations of the constitution and customary international law purposes, there was no need to legislate refugees, specifically in regards to non refoulement. The judgement does not have a national precedent. However, this is a step in the evolution of Indian jurisprudence in the regard of integrating refugee rights into constitutional protections.

3. The Syrian Refugee Crisis (2011-Present)

The civil war in Syria has elicited one of the largest modern refugee crises, causing more than 13 million people to be displaced from their homes; and along the way they have uncovered the structural deficits surrounding international responsibilities for the hosting of refugees. Germany based its humanitarian leadership on the aspirations sought by Angela Markel through the welcomed refugees. What she asked of her country, its global counterparts did not only deny but discarded, through border closures and trusted in actions involving externalizing refugees. As a human experience, this crisis in forced migration highlights the need for international harmonization in large scale influx as well as a need for reform stemming from deep systemic flaws in the global governance of asylum.

4. The Rohingya Crisis

The Rohingya ethnic minority group in Myanmar are not faced with just persecution from the state, they had the state bring them into the abyss of statelessness where their children are also excluded from state inclusion. The genocide committed in Myanmar has received the condemnation of the world. After mass atrocities and ethnic cleansing, more than one million Rohingya fled to neighbouring Bangladesh, which received them despite considerable limitations on resources. The crisis showed the inadequacies of existing legal frameworks in responding to statelessness; the need for a solid international legal basis and long-term solutions, as well as renewed consideration of the expanded definitions of refugee found in the Cartagena Declaration and the OAU Convention as they better reflected the contemporary drivers of displacement.

5. Afghanistan under Taliban Rule (2021–present)

The return of the Taliban in 2021 initiated another wave of asylum claims, particularly from women, human rights activists, ethnic minorities and former government officials. The international response varied, with some States offering immediate resettlement and humanitarian visas and others closing their borders or adopting restrictive processing approaches. This context exposed the limits of asylum systems' flexibility and fairness and highlighted the importance of gender-sensitive processes, non-discriminatory access to protection, and proactive implementation of non-refoulement in asylum situations linked to conflict.

EMERGING CHALLENGES TO ASYLUM PROTECTION

Regardless of the normative weight of international asylum law, it is also structurally eroding in many ways, including:

1. Politicization and nationalist narratives

Asylum is increasingly conflated as a component of irregular migration, terrorism, or economic burden - particularly in developed States. The politicization of migration has fuelled xenophobia and opens the door to exclusionary practices, such as border walls, pushbacks at sea, prolonged detention, and the externalization of asylum processes (i.e. Australia's "Pacific Solution", EU's deal with Turkey). These exclusionary measures violate obligations to provide asylum under the Refugee Convention, and undermine the moral basis for protection.

2. Bureaucratic and procedural obstacles

Bureaucratic demands for strict documentation, even punitive responses for irregular entry, and overcrowded asylum system backlogs narrow any access to protection. This challenges Article 31 of the 1951 Convention that recognizes the complexities faced by refugees arriving without documentation due to flight urgency within the context of asylum. At a time when equality and access to justice is on the rise, legal assistance and adequate interpreters are limited, while delays in decision-making continue to frustrate access.

3. Discrimination and the credibility gap

Women, LGBTQ+, and stateless individuals, often face additional structural barriers. Claims of gender-based persecution, including forced marriage, FGM, or domestic violence, are still under-acknowledged in many jurisdictions. LGBTQ+ asylum seekers often endure further intrusive credibility testing as documented in various reports. For those categorized as stateless, the lack of due legal identity means they are further hampered from asserting claims or accessing even a minimal scope of rights.

4. Climate-induced displacement

Although there is more evidence of climate-emigré scenarios, the prevailing legal framework is currently ill-prepared for environmental degradation-related displacement. The 1951 Convention does not recognize climate change as grounds for asylum, which remains a significant protection gap. Although UNHCR has proposed to broaden humanitarian protections in relation to climate, there are no binding frameworks on "climate refugees," domestically or globally.

5. Disparate global burden-sharing

Most of the world's refugees are hosted by low- and middle-income States, a fact that is compounded in its seriousness when limited facilities and funding are added to the mix. The more prosperous - and often disingenuous - States seem primarily focused on constructing new barriers for irregular migrant/asylum seekers or outsourcing to third countries. This disparity not only violates the principles of international solidarity and equitable sharing of responsibility, but also creates sustainability issues for the global protection regime.

ASYLUM IN INDIA: THE DILEMMA OF PROTECTION WITHOUT GUARANTEES.

From a duty of care, India has been compelled to provide asylum to people from Tibet, Sri Lanka, Afghanistan, and Myanmar. Part of this is an acknowledgement of a humanitarian obligation. However, if to provide this protection was to be realized, across the board, in the long-term then there would be a clear legal framework for obtaining asylum status in India. India is not a state party to the 1951 Refugee Convention and 1967 Protocol, and there is no asylum process in domestic law. Refugees are dealt with discretionally at an executive level under government authority stemming from statutes such as the Foreigners Act (1946) and the Passport Act (1920). This absence of legal protection has normative ramifications which can lead to capricious treatment, as is demonstrated through recent deportation threats to Rohingya refugees despite being registered with UNHCR documentation, and were broadly protected as people with rights under, articles 14 and 21 of the Constitution. Legal scholars and civil society organizations have long called for a National Asylum and Refugee Law which would imbue rights, and outline process and accountability. Such a law would not only encompass India's constitutional obligations but would initiate the project for determining obligations, for the Indian state, from various international norms whilst providing certainty and institutional safeguards for one of the most persecuted groups in the world.

CONCLUSION: RECONCEPTUALISING ASYLUM AS A MORAL GUIDE

Asylum is more than a legal institution--it is about the protection of the person itself, and an acknowledgement of the humanity of those individuals who are displaced. It also had the effect of transforming people from being despaired to dignified; excluded to belonging. To honour asylum is not merely a choice; it is both a legal responsibility and a moral obligation to do so. To make legal obligations a reality, we need to go back to our duties, and our hopes. We need to rethink our frameworks, and to cultivate empathy and public engagement. And, in the words of Hannah Arendt, the "right to have rights" begins with the right to be somewhere. Asylum literally granted that place. At a time when our world is beset by authoritarianism, war, and climate catastrophe, our models of asylum must be a lighter projection and not darkened. It ought to excite our collective duty and colours us with our legacy for the next generation.

. . .

REFERENCES:

Discus