Supreme Court Rules Rohingya Refugees as Foreigners, Faces Deportation Under Indian Law

New Delhi: In a landmark ruling, the Supreme Court of India has declared that Rohingya refugees, if identified as “foreigners” under the Foreigners Act, 1946, will be subject to deportation in accordance with Indian law. The decision, delivered by a three-judge bench comprising Justices Surya Kant, Dipankar Datta, and N. Kotiswar Singh on May 8, 2025, has sparked intense debate over the legal status and human rights of Rohingya refugees in India.

Background of the Case

The Supreme Court was hearing a batch of petitions challenging the Central Government’s authority to deport Rohingya refugees, a stateless Muslim minority group primarily fleeing persecution in Myanmar. The petitioners, represented by senior advocate Colin Gonsalves and advocate Prashant Bhushan, argued that Rohingya refugees, recognized by the United Nations High Commissioner for Refugees (UNHCR), are entitled to constitutional protections against deportation to Myanmar, where they face the risk of torture and death. The Rohingya, declared stateless by Myanmar, have been subject to severe human rights violations, prompting their exodus to countries like India.

The Solicitor General, Tushar Mehta, representing the Central Government, countered that India is not a signatory to the 1951 UN Convention on Refugees or its 1967 Protocol, and thus, the UNHCR identity cards held by the Rohingya do not confer legal protection against deportation. The government emphasized that national security concerns and the provisions of the Foreigners Act, 1946, grant the Centre absolute power to detain and deport foreign nationals residing illegally in India.

Supreme Court’s Observations

The bench, led by Justice Surya Kant, made it clear that if Rohingya refugees are classified as “foreigners” under the Foreigners Act, they will be dealt with according to the law. Justice Kant remarked, “If they have a right to stay here, it will be acknowledged. However, if they do not have a right, they will be deported as per the procedure prescribed in law.” The court scheduled a detailed hearing for July 31, 2025, to decide the matter conclusively, emphasizing that interlocutory orders would be avoided in favor of a final resolution.

Justice Dipankar Datta reinforced the government’s position, stating, “If they are all foreigners and if they are covered by the Foreigners’ Act, then they will have to be dealt with as per the Foreigners’ Act.” He further clarified that while the rights to life and due process under Article 21 and equality under Article 14 of the Indian Constitution are available to all persons, including non-citizens, the right to reside or settle in India under Article 19(1)(e) is exclusive to Indian citizens. Addressing the petitioners, Justice Datta asserted, “You do not have a right to settle here.”

The court also referenced its April 8, 2021, order in the case of Mohammad Salimullah and Ors vs. Union of India and Ors, which held that the right not to be deported is ancillary to the right to reside or settle under Article 19. This precedent underscores that non-citizens, including refugees, cannot claim a fundamental right to remain in India.

Legal Framework Governing Refugees in India

India lacks a specific law to address the status of refugees, treating them as “aliens” or “foreigners” under existing statutes. The key legal provisions relevant to the case include:

• Foreigners Act, 1946: Section 3 empowers the Central Government to detain and deport foreign nationals residing illegally in India.
• Passport (Entry into India) Act, 1920: This allows the government to order the removal of foreigners who enter India without valid passports or visas.
• Constitutional Provisions: Articles 258(1) and 239(1) delegate powers to States and Union Territories to enforce deportation measures.

India is not a signatory to the 1951 UN Refugee Convention or its 1967 Protocol, which means it is not legally bound to grant refugee status or protections as defined by these international frameworks. Instead, refugee cases are evaluated on a case-by-case basis, guided by bilateral policies. However, India has accepted the principle of non-refoulement as outlined in the Bangkok Principles on Status and Treatment of Refugees, 1966. This principle prohibits the transfer of individuals to jurisdictions where they face a substantial risk of fundamental rights violations.

The petitioners argued that non-refoulement has attained the status of jus cogens (a peremptory norm) in international customary law, compelling India to refrain from deporting Rohingya refugees to Myanmar, where they risk persecution. They also invoked India’s ratification of the Genocide Convention, warning that deportation could expose the Rohingya to genocidal conditions in Myanmar.

Contentions of the Petitioners

Senior advocate Colin Gonsalves described recent deportations of Rohingya refugees, including women and children holding UNHCR cards, as “alarming” and “shocking.” He argued that these actions amounted to an overreach of the Supreme Court’s authority, particularly in light of a prior judgment directing the Indian government to protect Rohingya refugees despite India’s non-signatory status to the Refugee Convention. Gonsalves emphasized that deportations violate the Rohingya’s rights under Article 21, which guarantees the right to life and personal liberty.

Advocate Prashant Bhushan urged the court to consider India’s obligations under the Genocide Convention, arguing that deporting the Rohingya to Myanmar would “open the door to one.” He cited media reports claiming that some petitioners, along with other UNHCR cardholders, were detained and deported on the eve of the May 8 hearing, raising concerns about the timing and legality of these actions.

Government’s Response

Solicitor General Tushar Mehta reiterated that India’s non-signatory status to the UN Refugee Convention limits the legal weight of UNHCR identity cards. He referenced the Supreme Court’s interim order, which affirms the government’s “absolute and unlimited” power under Section 3 of the Foreigners Act to regulate the entry and departure of foreigners, particularly when national security is at stake. Mehta also argued that Article 51(c) of the Constitution, which calls for respect for international law, applies only when international obligations align with domestic law.

In response to concerns about ongoing deportations, Mehta assured the court that any actions would comply with Indian laws. Justice Kant noted this assurance, emphasizing that deportations would follow due process.

Reported Deportations and Humanitarian Concerns

The petitioners highlighted media reports alleging that some Rohingya refugees, including women and children with UNHCR cards, were detained and deported on the night before the hearing. These claims intensified the urgency of the case, with Gonsalves warning of further deportations. The Rohingya, who have settled in areas like Jammu, face precarious living conditions, as evidenced by images of their settlements published by PTI in November 2024.

The principle of non-refoulement, central to the petitioners’ case, underscores the humanitarian crisis facing the Rohingya. Myanmar’s declaration of the Rohingya as stateless has left them vulnerable to persecution, with reports of torture and killings prompting their flight to India and other countries. The petitioners argued that deporting them to Myanmar would violate their fundamental rights and expose them to grave danger.

Broader Implications

The Supreme Court’s ruling has significant implications for India’s approach to refugees and its obligations under international law. By classifying Rohingya refugees as “foreigners” under the Foreigners Act, the court has prioritized domestic law over international refugee protections, reflecting India’s cautious stance on non-signatory status to the UN Refugee Convention. This decision could set a precedent for how India handles other refugee groups, particularly in the absence of a dedicated refugee law.

The case also highlights tensions between national security and humanitarian concerns. The government’s emphasis on its deportation powers under the Foreigners Act underscores its commitment to regulating illegal immigration, while the petitioners’ reliance on non-refoulement and the Genocide Convention reflects a broader appeal to human rights principles.

Next Steps

The Supreme Court’s decision to postpone a detailed hearing until July 31, 2025, indicates its intent to thoroughly examine the legal and humanitarian dimensions of the case. By avoiding interim orders, the court aims to deliver a definitive ruling that balances India’s sovereignty with its international obligations. The outcome will likely shape the future of Rohingya refugees in India and influence the country’s refugee policy.

Conclusion

The Supreme Court’s observation that Rohingya refugees, if deemed foreigners, must face deportation under the Foreigners Act marks a critical juncture in India’s refugee policy. While the government asserts its authority to regulate illegal immigration, the petitioners’ appeal to constitutional protections and international law highlights the humanitarian stakes. As the court prepares for a comprehensive hearing in July 2025, the fate of the Rohingya in India hangs in the balance, with far-reaching implications for human rights and national security.

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