Rohingya Refugee Status

Introduction 

India faces a complex legal challenge regarding the status of Rohingya people living within its borders. The Supreme Court is set to determine whether these individuals should be classified as 'refugees' entitled to protection or as 'illegal entrants' subject to deportation. This decision comes at a time when India lacks a comprehensive national refugee law, creating uncertainty about the rights and protections available to displaced populations. The outcome will have significant implications for how India treats vulnerable populations fleeing persecution. 

What Happened in Court and What Did the Judges Say in Jaffar Ullah and Anr. v. UOI and Ors. (2025) Case? 

• The Supreme Court recently addressed urgent concerns when petitioners' lawyers alleged that Rohingya refugees, including women and children holding UNHCR cards, were arrested and deported despite the matter being scheduled for hearing. Senior Advocate Colin Gonsalves expressed "shock" at what he called an "alarming" situation that constituted a "complete overreach of the Court." 
  • The bench, comprising Justices Surya Kant, Dipankar Datta, and N Kotiswar Singh, recorded several key questions on July 31, 2024: 
    • Whether the Rohingya are entitled to be declared as 'refugees' or are 'illegal entrants'. 
    • If they are refugees, what protections, privileges, or rights they should receive. 
    • If they are not refugees, whether governments are obligated to deport them according to law. 
• Justice Kant emphasized the need for finality, stating: "We will hear the matters finally... if they have a right to stay here, that should be acknowledged, and if they don't have a right to stay here, then they will follow the procedure and deport as per law." 
• The court also referenced its April 8, 2021 order, which observed that while rights under Articles 14 and 21 are available to all persons regardless of citizenship, "the right not to be deported is ancillary to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e)." 

Who Qualifies as a Refugee Under Law? 

• According to the United Nations, refugees are people who have been forced to flee their country of origin and cannot return due to a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion." 
• The UN Convention relating to the Status of Refugees (1951) establishes obligations for states to protect refugees and provide them with minimum standards of care. This convention has been signed and ratified by 149 UN member states, but notably, India is not among them. 
• In India's legal framework, refugees face a complex situation: 
  • Constitutional Protection: Article 21 (right to life and personal liberty) applies to all persons, including non-citizens. 
  • Legal Gap: No national refugee law exists to distinguish refugees from other foreign nationals. 
  • Practical Treatment: Refugee groups receive different treatment based on political considerations rather than uniform legal standards. 

Examples of varied treatment include: 

• Tibetan refugees: Over 70,000 allowed to form government-in-exile and settle with government aid. 
• Sri Lankan refugees: Around 100,000 living in camps in Tamil Nadu. 
• Rohingya and Afghan refugees: Only temporary residence permits based on UNHCR certificates. 

Are the Rohingya Actually 'Refugees' or 'Illegal Immigrants'? 

• About: 
  • The Rohingya present a particularly complex case. Described by the UN as "the most persecuted minority in the world," they belong to Myanmar's Rakhine state but are not recognized by Myanmar's constitution, making them stateless. 
• Arguments for Refugee Status: 
  • They flee sectarian violence and military crackdowns in Myanmar. 
  • Nearly all 1.4 million Rohingya have been driven from their homeland. 
  • They meet the UN definition of refugees facing persecution based on religion and ethnicity. 
  • Many hold UNHCR refugee certificates. 
• Legal Challenges: 
  • Under the Citizenship Act (1955), they are classified as "illegal immigrants" because they entered without valid documents. 
  • The Immigration and Foreigners Act (2025) treats them as "foreigners" at par with economic migrants. 
  • The Citizenship Amendment Act (2019) excludes Muslims (including Rohingya) from protection against illegal immigrant classification. 
  • Myanmar reportedly refuses to accept them back, considering them stateless. 
• Current Legal Status: 
  • Subject to imprisonment (up to 5 years) or fines (up to Rs 5 lakh) for illegal entry. 
  • Cannot apply for Indian citizenship due to illegal immigrant classification. 
  • Depend on temporary residence permits based on UNHCR recognition. 
  • Face potential deportation despite protection concerns. 
  • The Supreme Court must navigate this legal maze without clear statutory guidance, relying primarily on constitutional principles and international humanitarian law concepts like non-refoulement (the principle that prohibits returning refugees to territories where they face persecution). 

Conclusion 

The Supreme Court's upcoming decision will establish crucial precedent for refugee protection in India. Without national refugee legislation, the court must balance humanitarian obligations under Article 21 with immigration control under existing laws. The case highlights the urgent need for comprehensive refugee legislation that distinguishes between economic migrants and those fleeing persecution. Whatever the court decides, it will significantly impact not only the 30,000+ Rohingya in India but also set the framework for how India treats future refugee populations in an increasingly unstable global environment.