Supreme Court Questions Extent of Protection for Undocumented Rohingya Migrants

The Supreme Court of India has once again placed the spotlight on the legal and constitutional status of undocumented Rohingya migrants, raising fundamental questions about the rights available to illegal entrants and the limits of judicial protection. The bench, led by Chief Justice of India Surya Kant and Justice Joymalya Bagchi, expressed strong reservations about extending welfare-oriented rights to individuals who entered the country without legal permission.

Supreme Court’s Observation: “Cannot Roll Out a Red Carpet”

During the hearing of a plea alleging the custodial disappearance of five Rohingya individuals previously detained by authorities, the bench remarked that courts and governments cannot be expected to “roll out a red carpet” for persons who cross borders illegally.

The Court emphasised that while humane treatment is non-negotiable, illegal entrants cannot demand rights on par with Indian citizens, especially when millions of citizens still struggle for basic entitlements such as food, shelter, education, and healthcare.

Questioning the “Refugee” Label

The bench underlined a key distinction: the term “refugee” has a specific legal meaning. Thus, undocumented entrants cannot automatically be referred to as refugees unless the Government of India formally accords that status. The Court questioned the petitioner’s counsel:

“How do you call them refugees? Refugee is a well-defined term. Have they been given that status or are they just intruders?”

This issue is central to the ongoing litigation because refugee status triggers specific protections under international and domestic frameworks, while illegal migrant status mandates deportation under Indian law.

Concerns Over Judicial Overreach and PIL Scope

Solicitor General Tushar Mehta supported the Court’s concern that Public Interest Litigations (PILs) filed by unrelated parties increasingly seek sensitive operational documents and expand their scope beyond established legal limits.

He argued that individuals with no direct connection to the detainees are filing wide-ranging petitions, creating complexity in matters involving national security and border management.

Pending Issues Before the Court: July 31 Framework

The present case links to a larger batch of 22 petitions concerning Rohingya migrants. On 31 July, the Supreme Court had framed three key legal questions:

  1. Whether undocumented Rohingyas are “refugees” or “illegal migrants”.

  2. If they are classified as illegal entrants, whether they can be detained indefinitely or must be released on bail.

  3. Whether individuals housed in detention camps are entitled to basic amenities such as drinking water, sanitation, and education.

The outcome of these questions will shape the legal framework governing Rohingyas in India.

India’s Legal Position: Not a Signatory to Refugee Conventions

India is not a signatory to the 1951 UN Refugee Convention or its 1967 Protocol. Consequently, refugee rights under international law are not automatically enforceable in Indian courts.

The Government maintains that national security concerns must take precedence, especially given the Rohingya issue’s sensitivity along the northeastern and eastern borders.

Supreme Court’s Earlier Position: Deportation Permissible Under Law

In Mohd. Salimullah v. Union of India (2021), the Supreme Court held that:

  • The right against deportation is not available to non-citizens under Article 19 of the Constitution.

  • The Union Government may take measures for deportation in accordance with law.

This precedent continues to guide the judicial approach on Rohingya-related deportation issues.

Relevant Statutes Governing Illegal Migrants

Foreigner’s Act, 1946

The central statute empowering the Government to:

  • Identify illegal entrants

  • Detain them

  • Deport them

Sections 3 and 4 authorise the Government to restrict movement, control residence, and issue deportation orders for foreigners.

Foreigners (Tribunals) Order, 1964

Empowers tribunals to identify illegal migrants and determine nationality disputes.

Passport (Entry into India) Act, 1920

Section 3 makes it mandatory for individuals entering India to possess valid travel documents. Violation results in arrest, detention, and deportation.

Citizenship Act, 1955

Defines citizenship and provides grounds on which non-citizens are removable, especially those entering unlawfully.

Constitutional Provisions Relevant to Rohingya Cases

Article 14

Guarantees equality before law to all persons, including non-citizens.
However, equal treatment does not imply equal rights in matters of citizenship, deportation, or welfare entitlements.

Article 21

Protects the life and personal liberty of every person.
Courts have held that even illegal migrants cannot be subjected to torture or illegal detention.

Article 19

Specifically restricted to citizens; non-citizens cannot claim the right to reside, settle, or move freely in India.

Key Judicial Precedents on Foreigners and Illegal Migrants

  1. Hans Muller of Nurenburg v. Superintendent, Presidency Jail (1955)
    The Supreme Court held that the Government has absolute authority to deport foreigners.

  2. Sarbananda Sonowal v. Union of India (2005 & 2007)
    Immigration control is an essential aspect of national security; illegal migration is a threat to sovereignty.

  3. Mohd. Salimullah v. Union of India (2021)
    Rohingyas cannot claim protection from deportation under Article 19; the Centre may deport them following due process.

  4. Louis De Raedt v. Union of India (1991)
    Foreigners have no fundamental right to remain in India.

Current Status and Next Hearing

The present petition concerning the alleged custodial disappearance will be heard again on December 16. The Court will also consider:

  • Whether the five individuals were deported or disappeared

  • The wider legal classification of Rohingyas in India

  • The rights, if any, owed to undocumented entrants

This hearing is expected to play a decisive role in shaping India’s evolving jurisprudence on refugee status, border management, and national security.

Conclusion

The Supreme Court’s remark — “Can’t roll out a red carpet” — reflects the judiciary’s cautious approach to balancing humanitarian concerns, constitutional protections, and national security priorities. While humane treatment is assured under Article 21, the Court has reiterated that welfare rights cannot be extended to individuals who entered the country illegally, especially without formal refugee recognition.

The upcoming hearings promise to further clarify the legal boundaries on the rights of Rohingyas in India and the responsibilities of the State in dealing with illegal migration.


Location: Pune, Maharashtra, India

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