The Supreme Court on Thursday signalled that the core constitutional question surrounding the presence of Rohingyas in India hinges on their legal status, whether they are to be treated as refugees or as illegal entrants under Indian law.
A Bench comprising Justices Surya Kant, Dipankar Datta and N Kotiswar Singh observed that this fundamental determination would shape the trajectory of all other associated issues raised in the pending petitions. “The first major issue is simple, are they refugees or illegal entrants,” observed Justice Kant during the hearing.
The court was hearing a batch of petitions that broadly question the status, treatment, and rights of Rohingyas living in India, many of whom are housed in refugee camps across various states.
Among the key questions framed by the Bench was whether the Rohingyas are entitled to be declared as refugees. “If so, what protections, privileges or rights they are entitled to?” the court asked.
Conversely, if they are deemed illegal entrants, the court said it would then have to consider whether the actions of the Centre and the states in detaining or deporting them were justified. The issue of indefinite detention was also raised by counsel during the proceedings.
“Even if the Rohingyas have been held to be illegal entrants, can they be detained indefinitely, or they are entitled to be released on bail, subject to such conditions as the court may deem fit to be imposed?” the Bench asked.
The court further took note of the humanitarian questions raised in the petitions, particularly concerning whether those living in refugee camps have been provided with basic amenities such as clean drinking water, sanitation and access to education.
Also read: 'No excuse for unannounced halt on highways,' rules Supreme Court
It also posed a legal query regarding the responsibility of the Union and state governments in the event that the Rohingyas are declared illegal entrants. “If the Rohingyas are illegal entrants, whether the Government of India and the states are obligated to deport them in accordance with law,” the Bench noted.
In an effort to streamline the adjudication, the Bench divided the pending matters into three categories, one specifically concerning the Rohingyas, another with unrelated issues, and a third which it said pertained to an entirely different matter. These would now be heard on consecutive Wednesdays, the court said.
The judges further indicated that while the court may lay down broad principles regarding deportation and detention, the actual implementation may remain within the executive domain.
During the hearing, the Bench questioned the rationale behind tagging several petitions together. The counsel for the petitioners replied that overlapping legal issues, particularly surrounding detention, justified the grouping.
One of the petitioners' advocates insisted that indefinite detention was not permissible. “The Rohingyas cannot be detained indefinitely,” he said.
The matter has had earlier flashpoints. On 16 May, the apex court had criticised a group of petitioners who alleged that 43 Rohingyas, including women and children, had been dropped into the Andaman Sea for deportation. Dismissing the claims, the court had remarked, “When the country is passing through a difficult time, you come out with fanciful ideas.”
The Bench had also questioned the veracity of documents submitted by petitioner Mohammad Ismail and others, and declined to halt further deportations—citing an earlier decision to deny similar relief.
Earlier, on 8 May, the court had reiterated its position that if Rohingyas were found to be foreigners under Indian law, they would have to be deported, regardless of identity documentation from international bodies.
The Bench noted then that the identity cards issued by the United Nations High Commissioner for Refugees (UNHCR) may not afford the Rohingyas any legal protection under India’s statutes.
As the matter moves forward, the Supreme Court appears set to define the legal boundaries of India’s refugee policy in the absence of a national law on asylum, its ruling likely to impact not just the Rohingyas, but future cases concerning displaced populations entering Indian territory.
Follow us
