(UPSC/APSC Syllabus: Indian Polity – Judiciary, Citizenship, Migration & Refugee Policy, Internal Security, Human Rights)

Why in the News?

The Supreme Court of India recently questioned the legal status of Rohingya residing in India while hearing a habeas corpus petition alleging disappearance of some Rohingya detainees. The Chief Justice raised sharp concerns about whether people who “enter India illegally” can seek full legal protection while the nation struggles with poverty and limited resources.

Who Are the Rohingya? 

• Rohingya are a Muslim minority group from Rakhine State, Myanmar.
• They have long faced persecution, statelessness, ethnic violence, and military crackdowns.
• The United Nations calls them “one of the most persecuted communities in the world”.
• Major Rohingya migrations into India occurred after 2012 and 2017 violence in Myanmar.

According to government estimates, over 40,000 Rohingya are living in India, mostly in Jammu, Delhi, Hyderabad, and Northeast India.

What Triggered the Supreme Court’s Concern?

A petition claimed that a few Rohingya detained by Delhi Police had gone “missing”. Hearing the case, the Supreme Court expressed serious concerns:

• “Should intruders be given a red carpet welcome when India’s own citizens are poor?”
• “If a person enters illegally, can he claim rights equal to citizens?”
• “What is the problem in sending them back if they have no legal status?”
• “Even if detained, they cannot be tortured—but can they demand entitlement?”

The bench noted that the first and most crucial issue is to decide:

Are Rohingya in India refugees or illegal entrants?

Because the classification determines their rights, deportation, detention, and protections.

India’s Legal Position: Refugee or Illegal Migrant?

1. No National Refugee Law in India

India does not have a specific refugee law. So cases for refugee ‘status’ are dealt with on a case to case basis based on the policy of bilateralism. Therefore:

• Rohingya are governed under the Foreigners Act, 1946,
  • Section 3 of the act empowers the Central govt. to detain & deport foreign nationals staying illegally in the country.
• The Registration of Foreigners Act, 1939,
• The Passport (Entry into India) Act, 1920.
  • Under it the  Central govt. May direct the removal of any foreigner from India who enters the country without a valid passport & visa.

Under these laws, a person entering without valid documentation is treated as an illegal migrant, regardless of humanitarian concerns.

2. UNHCR Cards Not Legally Binding

• UN High Commissioner for Refugees is a global organisation to protect refugees, forcibly displaced communities and stateless people.
• The Court reiterated earlier that UNHCR identity cards have no statutory force under Indian law.

International Law Protections

India is not a signatory to:

• The 1951 UN Refugee Convention
• The 1967 Protocol

But India follows the humanitarian principle of non-refoulement, envisaged in the Bangkok Principles on Status & Treatment, informally, meaning: 

A refugee should not be sent back to a place where their life is in danger.

However, the Supreme Court reminded that this principle cannot override Indian security laws.

In the Mohammad Salimullah and Ors vs. Union of India and Ors (2021) case the SC highlighted that rights under Articles 14 and 21 are available to all persons (including non-citizens). 

But the right not to be deported, is ancillary or concomitant to the right to reside or settle under Article 19(1)(e).

Key Constitutional & Legal Considerations

The Supreme Court identified five major legal questions:

• Can Rohingya be recognised as refugees and given protections?
• If they are illegal migrants, is deportation lawful and necessary?
• Can illegal entrants be detained indefinitely?
• Do they have the right to basic amenities like water, sanitation, and education?
• Does the Government have an obligation to deport all illegal entrants?

These questions will now be heard separately in grouped petitions.

Why the Case Matters 

• India shares porous borders with Bangladesh and Myanmar, making irregular migration a serious internal security challenge.
• The Rohingya issue overlaps with citizenship, national security, border management, communal harmony, terrorism risks, and foreign policy with Myanmar.
• The government has repeatedly informed the Court that some Rohingya have links with terror networks, though this is contested by rights groups.

Court’s Current Stand

The Supreme Court has not declared Rohingya as “illegal migrants” or “refugees” yet.
But the tone of the Court shows:

• Security and legality come first
• Humanitarian concerns matter, but not at the cost of national laws
• The status question must be decided before extending protections

The next hearing is expected to clarify India’s legal framework for irregular migration.

Exam Hook

Key Takeaways

• The Rohingya issue brings a clash between humanitarian protection and sovereign border control.
• India lacks a refugee law, relying instead on general foreigner-management laws.
• The Supreme Court’s remarks highlight the need for a clear national refugee policy.
• Classification as refugee vs illegal migrant determines rights and protections.

Mains Question 

“India does not have a dedicated refugee law. In this context, critically examine the Supreme Court’s recent observations on the legal status of Rohingya.”

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