The constitutional case for protecting Rohingya refugees

Indian Express

20-05-2025

Last Friday, a division bench of the Supreme Court of India, consisting of justices Surya Kant and N Kotiswar Singh, refused to stay the alleged deportation of 43 Rohingya refugees. The petition alleged that the Delhi Police had transported the refugees to the Andaman and Nicobar Islands and dropped them off in international waters for deportation to Myanmar. The Bench refused to intervene or take cognisance of the telephonic evidence or the UN inquiry report presented to it. The Bench reasoned that the relief sought in this case had been referred to a three-judge Bench and cited the orders of the Chief Justice of India. The case was then scheduled for a hearing before the three-judge Bench on July 31, 2025.
Against this backdrop, larger questions emerge regarding the Indian government's outlook on the proliferation of refugee crises worldwide, particularly in India's neighbourhood. The Indian government views Rohingya refugees as a threat to national security, labelling them 'illegal immigrants' and advocating for their deportation. This stance infringes on constitutional guarantees under Articles 14 and 21, read with Article 51(c) of the Constitution. Articles 14 and 21 guarantee the right to equality and the right to life and personal liberty to all persons, including non-citizens, rendering these rights universally applicable and non-excludable. Article 51(c) requires fostering respect for international law and treaty obligations. Therefore, India's ratification of international conventions such as the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) prohibits the deportation of refugees when there is a serious risk of human rights violations. Constitutional provisions must be interpreted in a manner that aligns with the global human rights regime. This principle, known as non-refoulement, prohibits countries from sending individuals to a territory where they face a threat to their life. It is widely recognised as a fundamental tenet of international law and is accepted by most states as legally binding and non-derogable.
The Indian judiciary's stance on refugee rights has been inconsistent. Three cases are most relevant to note. In NHRC vs Arunachal Pradesh, concerning the deportation of the Chakmas (who had migrated from Bangladesh in 1964 and first settled in Assam before settling in Arunachal Pradesh), the Supreme Court ruled that Article 21 of the Indian Constitution applies to all individuals, regardless of citizenship. The Court directed the Arunachal Pradesh government to protect the refugees, fulfil its legal obligations to safeguard the lives of Chakmas in the state, and ensure they were not forcibly evicted. The Court also emphasised the protection of refugees' rights. In Ktaer Abbas Habib Al Qutaifi vs Union of India, the Gujarat High Court recognised that the principle of non-refoulement is included in Article 21 of the Constitution and underscored India's responsibility to respect international treaties and conventions concerning humanitarian law. The Delhi High Court took a similar stance in Dongh Lian Kham vs Union of India, recognising the principle of non-refoulement as integral to Article 21 of the Constitution. However, this approach seems to have faded as the Supreme Court has now taken a contrary stance on the deportation of the Rohingyas, ruling that the government's right to expel a foreigner is unlimited and absolute.
India claims that it is not bound by the 1951 Convention relating to the Status of Refugees ('1951 Convention') or the 1967 Protocol relating to the Status of Refugees ('1967 Protocol') and therefore is not obligated to adhere to Article 33(1) of the 1951 Convention regarding the principle of non refoulement. However, it is imperative to note that this principle applies not only to recognised refugees but also to individuals whose refugee status has not been formally recognised. Refugee status determination is declaratory in nature; a person is recognised as a refugee because they are one, not because of recognition. In the context of Rohingyas in India, India's refusal to recognise them formally should not negate their inherent rights under international humanitarian principles or the fundamental rights guaranteed by the Constitution.
Currently, India's treatment of different refugee populations is based on non-uniform assessments and the nation's geopolitical interests. This approach has resulted in different standards of treatment, protection and assistance for different refugee groups. For example, Tibetan refugees have received a more favourable response, including residence permits, access to education, and government-supported settlement. In contrast, Sri Lankan refugees were housed in camps and faced numerous restrictions. This discretionary approach stems from the absence of a standardised national framework, leaving refugees and their rights at the mercy of those in positions of power.
The world order appears to be shifting towards intolerance, with a surge in military conflict, the detrimental impacts of climate change, and geopolitical shifts leading to xenophobic tendencies. In this ever-shifting landscape, the traditional understanding of a 'refugee' — someone fleeing persecution, conflict or violence in their home country — is changing. This is due to the emergence of 'nouveau refugees', such as stateless persons and climate refugees, who do not conform to the traditional understanding of a 'refugee' from the old world order. To extend a non-discriminatory humanitarian hand would pave the way for India's leadership in kindness to forge a new world order of peace.
Yanappa leads the Karnataka team at Vidhi Centre for Legal Policy, where she works on urban governance, education, and data and technology regulations. Ullal is a research fellow at Vidhi, where she works on issues concerning urban governance, education and the environment