This piece of the article is authored By:- Kathakali Chaulia
Student, LL.M., School of Law, Sister Nivedita University.
INTRODUCTION
“The measure of a civilisation is how it treats its weakest members.”
— Mahatma Gandhi
The situation of the Rohingya refugees is one of the most urgent humanitarian and legal crises in South Asia today. The Rohingyas, a Muslim ethnic minority from Myanmar’s Rakhine State, have faced ongoing persecution and have been denied citizenship, leaving them without a nation. In 2017, following a brutal military crackdown described by the United Nations as a “textbook example of ethnic cleansing,” over 700,000 Rohingya fled Myanmar. Most sought refuge in Bangladesh, while some went to India.
The Rohingyas, also known as Arakanese Indians, are seen by the UN as one of the most persecuted minorities globally. Myanmar’s 1982 Citizenship Law excluded them from recognised ethnic groups, effectively taking away their citizenship. The violent actions of Myanmar’s military forced them to flee entirely. In August 2017 alone, over 6,700 Rohingyas were killed. Although many reached India, the Indian government does not officially recognise them as refugees. It is estimated that around 40,000 Rohingyas live in states like Assam and West Bengal, despite India’s refusal to accept them for reasons of national security.
Indian courts have provided important constitutional guidance. The Delhi High Court confirmed that the principle of non-refoulement is part of the right to life under Article 21 of the Constitution, no matter the person’s nationality. Similarly, the Supreme Court stated that the State must protect the life and liberty of every person, whether citizen or not. Despite these rulings, India is still hesitant to provide protection or assistance to Rohingya refugees.
Historically, India has been a refuge for oppressed communities including Tibetans, Afghans, and Sri Lankan Tamils. However, it now faces a difficult constitutional and humanitarian challenge. The absence of a dedicated refugee law and India’s choice not to sign the 1951 Refugee Convention and the 1967 Protocol have created inconsistent policies. These policies swing between humanitarian concern and security-driven exclusion. As a result, this issue goes beyond just asylum seekers; it raises larger questions about India’s constitutional values, moral duties, and commitment to human rights.
CONSTITUTIONAL PROTECTION AND JUDICIAL INTERPRETATION
India has long served as a safe haven for displaced communities, welcoming refugees from Iran, Afghanistan, Sri Lanka, Somalia, Sudan, and Uganda. Although India has no specific refugee law, its constitutional framework offers several protections to all individuals, including non-citizens. Articles 14 and 21 guarantee equality and the right to life and personal liberty, forming the basis of refugee protection. Over time, judicial decisions have expanded these safeguards. Courts have consistently upheld refugees’ rights, acknowledged the UNHCR’s role in determining refugee status, and reinforced the principle of non-refoulement. Cases involving Chakma, Sri Lankan, Iranian, and Afghan refugees demonstrate the judiciary’s commitment to voluntary repatriation and protection from persecution.
Asylum seekers in India fall under three main treatment categories: national treatment, foreigner-related rights, and special protections such as travel documents or protection from penalties for illegal entry. Despite this, gaps remain, especially in areas like arrest and detention. Legal complications also arise in international airport zones where refugees have limited access to judicial remedies, leaving administrative authorities as their only option. Nevertheless, constitutional safeguards, including Articles 22 and 25 ensure that no person, citizen or foreigner, can be deprived of life, liberty, or property without due process, forming an essential part of India’s legal commitment to refugee protection.
ROLE OF THE JUDICIARY FOR THE PROTECTION OF REFUGEES
The judiciary in India has been crucial in protecting the rights and dignity of refugees, particularly in the absence of a specific refugee law. Through mechanisms like Social Action Litigation and Public Interest Litigation, courts have made it easier for vulnerable refugees to access justice. Refugees detained for illegal entry or stay often face the threat of being sent back or deported. The Foreigners Act gives the Central Government wide discretionary power to remove foreigners from India. The Supreme Court supported this interpretation in Hans Muller of Nuremberg v. Superintendent, Presidency Jail. It later reaffirmed this view in Louis De Raedt v. Union of India. Additionally, the Court emphasised that foreign nationals must be allowed to be heard before any adverse order is passed against them.
The Gujarat High Court recognised the principle of non-refoulement as essential for protecting the life and freedom of displaced individuals, no matter their nationality, religion, or political views. Similarly, the Supreme Court halted the deportation of 21 Burmese refugees and allowed them to apply for refugee status from the UNHCR. These decisions show the judiciary’s commitment to balancing state security with humanitarian responsibilities.
The UNHCR has been active in India since the influx of Tibetan refugees and the 1971 Bangladesh crisis. It monitors voluntary repatriation, decides refugee status, and offers assistance through NGOs. Its primary goal is to ensure that refugees are not forcibly returned to unsafe situations.
PROBLEMS FACED BY ROHINGYA REFUGEES IN INDIA
Around 40,000 to 50,000 Rohingya refugees currently live in India, mainly in Jammu, Delhi, Haryana, Hyderabad, and Rajasthan. Most of them stay in temporary camps that lack sanitation, clean water, and stable housing. Since India does not officially recognise them as refugees, they have limited access to healthcare, education, and legal jobs, which leaves them socially and economically isolated. Women and children are particularly at risk; they face trafficking, exploitation, harassment, and gender-based violence. The poor living conditions make their situation worse. Open drains lead to disease outbreaks, harsh winters cause child deaths, and monsoons bring snakes, flooding, dengue, and diarrhoea. Negative stereotypes that label them as “terrorist sympathisers” increase discrimination and limit support. Although the UNHCR provides some help, the lack of formal state protection keeps the community in a state of insecurity. Periodic deportation announcements from the government create further fear and uncertainty, worsening their already fragile situation in India.
THE PRINCIPLE OF NON-REFOULEMENT
The principle of non-refoulement is a key part of international refugee law. It prevents states from returning individuals to areas where they may face persecution. Although India has not ratified the Refugee Convention, this principle is part of customary international law and has been accepted by Indian courts as essential to Article 21’s guarantee of life and liberty.
The Gujarat High Court concluded that non-refoulement arises from the constitutional protection of human rights. Similarly, the Delhi High Court confirmed that the State cannot deport individuals to face persecution or death.
Despite these court rulings, India has periodically deported Rohingyas, justifying their removal on the grounds of national security. Such actions threaten India’s commitment to international human rights standards, including the Universal Declaration of Human Rights (Article 14) and the International Covenant on Civil and Political Rights (Article 6).
NEED FOR REFUGEE LAW REFORM IN INDIA
The Rohingya crisis highlights the urgent need for a solid refugee protection law in India. While India hosts several groups of refugees, the lack of a consistent legal framework results in discrepancies in status determination, rights, and protections. The Refugee and Asylum Seekers (Protection) Bill, 2021 provides a clear framework by defining refugees, supporting the principle of non-refoulement, and proposing a National Refugee Commission to review asylum claims. This legislation would align with Article 51(c) of the Constitution, strengthen India’s moral leadership, and bring domestic practices in line with international humanitarian standards.
Without statutory law, the Supreme Court has relied on Article 21 to protect refugee rights. The Court ordered protection for the Chakma’s life and well-being and mandated the processing of their citizenship requests. Other rulings stressed that refugees should not face arbitrary detention or deportation and may seek help from the UNHCR. The Court emphasised voluntary repatriation in P. Nedumaran and acknowledged the importance of international law, as seen in Vishakha. However, cases like Louis de Raedt support broad executive power to expel foreigners. In recent Rohingya cases, such as Mohammad Salimullah, national security arguments influenced the Court’s view on deportation.
RECONCILING SOVEREIGNTY AND HUMAN RIGHTS
Concerns about national security, especially in border areas, cannot be ignored. However, security should not be used as a reason to deny basic human rights. Creating a clear asylum process would help authorities differentiate genuine refugees from irregular migrants while ensuring fairness in procedures.
India’s civilizational value of Vasudhaiva Kutumbakam (the world is one family) provides a timeless base for a compassionate yet practical refugee policy. Protecting refugees does not threaten sovereignty; it enhances India’s constitutional democracy by showing that humanity and security can work together.
CONCLUSION
“Injustice anywhere is a threat to justice everywhere.”
— Martin Luther King Jr.
The Rohingya refugee crisis tests India’s commitment to its constitutional values and its position in the world. It urges the nation to reconcile its democratic principles with its geopolitical challenges. India’s commitment to refugee protection must go beyond moral statements to include legal measures. Enacting comprehensive refugee legislation would institutionalise compassion, align domestic and international responsibilities, and reinforce the ideals of equality and human dignity in the Constitution. Protecting refugees is not an act of kindness; it affirms India’s constitutional spirit. By choosing humanity over hostility, India can reclaim its historic identity as a refuge and reaffirm that justice, not fear, defines the Republic.
References
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