Disorder, said Foucault, is often a manifestation of underlying structure. India’s lack of a refugee policy is a good example of this. The absence of a refugee law is not the product of legislative oversight but the means by which the state maintains arbitrariness towards various refugee groups.The United Nation High Commissioner for Refugees (UNHCR) theme for World Refugee Day 2026, Until Everyone Is Safe asserts that safety is indivisible. It is a claim that sounds philosophical until you place it against India’s non-accession to the 1951 Refugee Convention. For a country born out of partition, an event that triggered one of the largest mass migrations in human history; this trajectory is particularly significant. Surrounded on nearly every side by conflict-affected, refugee-generating countries and territories such as Myanmar, Bangladesh, Afghanistan, Sri Lanka, Tibet etc. India’s evolving approach to refuge, citizenship and belonging deserves far greater analysis than it has so far received.Illustration: Pariplab Chakraborty.B.S. Chimni’s calls it strategic ambiguity: By declining to codify refugee protection in domestic law, the state has preserved maximum flexibility, extending protection when it is in alignment with its foreign policy and withholding when it is not. The consequences have been visible across decades. Tibetan refugees have been hosted in structured settlements; geopolitical assets carefully managed to neither fully antagonise China nor surrender the leverage they provide. Tamil Sri Lankan refugees were received across Tamil Nadu in a gesture that resonated with ethnic solidarity and regional politics. Afghan Sikh and Hindu refugees were evacuated to safety as well; neatly aligned with India’s domestic and foreign politics optics. India’s approach to humanitarian protection is openly driven by foreign policy and domestic political calculations.Recent legislative developments in India suggest a shift from this earlier model of strategic flexibility toward a more formalised regulatory framework, codifying the prevailing arbitrariness. The Citizenship Amendment Act 2019 (CAA) and the Immigration and Foreigners Act 2025 together mark a decisive departure from strategic ambiguity toward a more structured regime of citizenship and migration governance through constitutional legitimacy. This is what scholars of democratic backsliding have begun to call populist constitutionalism: the deployment of legal and constitutional instruments by elected governments to redefine who belongs, who deserves protection, and who can be legitimately excluded, all within the formal bounds of democratic procedure.The reasoning behind the CAA is quite simple, although the significance it carries is contentious. The law allows for the expeditious conferment of citizenship on some minority religious groups from Afghanistan, Bangladesh, and Pakistan but does not include Muslims in its scope. Through this, religion is brought out explicitly as a criterion in the citizenship framework, marking a notable departure from the previous approaches that were not formally structured around explicit religious identity. This distinction has prompted much discussion in terms of its constitutional, political, and humanitarian ramifications. Critics argue that the Act deviates from India’s usual practice in matters of refugee law, which takes into consideration only individual cases, as opposed to the inclusion of religion in this new Act as a determinative factor that affects one’s right to citizenship. The shift is widely read by scholars as reflecting the ideological framework of contemporary Hindutva politics, in which belonging is increasingly understood through religious and civilisational classifications. As Jayalakshmi Itla Ragiri argues, immigration law functions as an infrastructure of sorting that decides whose movement is travel and whose is invasion or ‘infiltration’, whose suffering counts and whose does not. The CAA institutionalises precisely such a logic, now embedded in Indian statute.The Immigration and Foreigners Act 2025 consolidates this architecture further. By swapping fragmented legislation with an integrated approach that enhances state power of detaining, deporting and classifying individuals, it reduces the room for manoeuvre that was possible through discretionary administrative powers. Considered collectively, these laws may be seen as representing a major change in the law regulating immigration and citizenship, with substantial repercussions for refugee rights and the possibility of gaining legal status.The consequences of this approach is perhaps clearly visible through India’s treatment of the Rohingyas. Fleeing genocide and statelessness in neighbouring Myanmar, Rohingya refugees in India continue to endure legally precarious conditions governed by surveillance, biometric registration and the constant risk of detention and deportation, caught between humanitarian claims for protection and the state’s concerns over security, migration and border governance.During the Supreme Court hearing of a case related to Rohingya deportation in 2025, the Union government maintained that Rohingyas are governed by India’s existing legal regime for foreigners due to India’s non-accession to the 1951 Refugee Convention. Consequently, the Supreme Court viewed their case within the purview of the Foreigners Act, leaving the door open to their detention or deportation. Such developments have renewed discussions about the applicability of the principles of humanitarian protection like non-refoulement in the absence of a proper refugee protection regime. The absence of an asylum law in India means that such questions continue to be answered through the broader immigration and foreigners’ legislations. An Asylum Bill was introduced in Parliament in 2015 and again in 2021, but was never passed..According to the International Rescue Committee, 118 million people remain forcibly displaced worldwide, a figure that has doubled over the past decade. Resettlement is at its lowest since 2011. Asylum backlogs have grown over the years. Nearly 70% of refugees are hosted not in wealthy nations but in low and middle-income countries, many of them India’s neighbours. The global architecture of protection is under strain everywhere. The evolving laws in India raise some pertinent issues concerning the provisions of protection and the need for balance between refugee management and considerations of sovereignty, security and citizenship.The UNHCR theme says Until Everyone Is Safe. However, the trend in recent legislative measures indicates that there is an increasing emphasis on legislative categorisation of who qualifies as a refugee and who is excluded from this category, which is based on religion, nationality or political interest. The implications of this question extend far beyond refugees and asylum seekers, shaping the contours of protection, humanitarianism, citizenship, and belonging in India in the years ahead.Kaveri is an assistant Professor at Azim Premji Universit. Jyoti Singh is an advocate based in Delhi and a PhD Scholar at the University of Delhi.This piece was first published on The India Cable – a premium newsletter from The Wire – and has been updated and republished here. To subscribe to The India Cable, click here.