Are the Rohingya ‘refugees’? Supreme Court will consider – but there is a problem

 

There is no national refugee law in India, which means that India does not legally recognise refugees or distinguish between refugees and other foreign nationals entering Indian territory

The Supreme Court will decide whether the Rohingya in India “are entitled to be declared as ‘refugees’” or whether they are “illegal entrants”. If they are refugees, the court will consider “what protections, privileges or rights they are entitled to”. And if they are not, whether the central or state governments are obligated to deport them in accordance with law.

The court recorded these questions on July 31 while hearing a batch of long pending petitions on the Rohingya, a stateless people whose presence in India has frequently led to discussions on national security and the infiltration of foreigners into the country.

However, it is unclear what legal frame of reference the court, which will hear the matter next month, will follow. While the Citizenship Act, 1955, defines an “illegal immigrant”, there is no definition of a “refugee” or their rights in Indian law.

The Rohingya, described by the United Nations as “the most persecuted minority in the world”, belong to Myanmar’s coastal Rakhine state, but are not recognised by that country’s constitution. Sectarian violence and a crackdown by the military have driven out nearly all of the 1.4 million Rohingya, most of whom now live in refugee camps in Bangladesh.

Definition of a refugee

The UN defines refugees as people who have been forced to flee their country of origin and are unable or unwilling to 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, lays down the obligations of states to protect refugees and grant them a minimum standard of care. The convention has been signed and ratified by 149 UN member states.

Refugees in India

A large number of refugees from Sri Lanka, Tibet, Myanmar and Afghanistan – at least 2,09,028, according to a report by the National Human Rights Commission published in July 2024 – live in India.

However, India is one of the 44 UN member states that is not a signatory to the UN refugee treaty. There is no national refugee law in India, which means that India does not legally recognise refugees or distinguish between refugees and other foreign nationals entering Indian territory.

In this situation, the treatment a specific refugee group receives often depends on political exigencies, rather than being based on a uniform and consistent legal framework. Thus, more than 70,000 Tibetans who fled persecution by China were allowed to form a government-in-exile in India in 1959, and to settle in various parts of the country and get aid from the government. And the Sri Lankan refugee population living in camps in Tamil Nadu numbered around 100,000 at the beginning of 2016, according to government data.

On the other hand, the more than 30,000 individuals who arrived from Myanmar – mainly Rohingya and Chin people – and about 14,500 Afghan refugees in India have only got temporary residence permits based on refugee certificates issued by the UN High Commission for Refugees (UNHCR). The actual populations of these groups in India are likely bigger.

Foreigners and refugees

Under the Immigration and Foreigners Act, 2025, individuals belonging to all of these groups are considered “foreigners”, at par with economic immigrants and tourists.

The law requires all foreigners to possess travel documents such as a passport and visa to enter and stay in India. A foreigner who enters Indian territory without valid documents faces imprisonment up to five years or a fine of up to Rs 5 lakh. Foreigners who enter legally but stay beyond the expiry of their travel documents face up to three years in jail or a fine up to Rs 3 lakh.

The 2025 law makes no exception for refugees, who may not be carrying or have access to such documents.

In 2011, the Union Home Ministry issued a Standard Operating Procedure for foreign nationals claiming refugee status, under which long-term visas may be issued to those fleeing persecution, and only those who are deemed unfit for long-term visas may be detained and deported.

However, it is alleged that the government stopped issuing long-term visas to Rohingya refugees, with few exceptions, from 2017 onward.

Illegal entrants

The Immigration and Foreigners Act does not use the term “illegal entrant”, but a synonymous term appears in the Citizenship Act, 1955.

The 1955 Act defines an illegal immigrant as a foreigner who enters India without valid travel documents or who stays in India beyond the expiry of the documents. Such a person is ineligible to apply for citizenship of India.

The Citizenship (Amendment) Act of 2019 excluded Hindu, Sikh, Buddhist, Jain, Parsi, and Christian persons from Afghanistan, Bangladesh, and Pakistan from the definition of “illegal migrants”, if they entered India on or before December 31, 2014. As per this definition, Rohingya are illegal migrants, and cannot apply for Indian citizenship.

Written by Vineet Bhalla

Source: Indian Express, 6/08/25