Supreme Court to decide whether Rohingyas are ‘refugees’ or ‘illegal immigrants’: Is the judiciary again overstepping its boundaries and playing the role of the government

The Supreme Court, on Thursday (31st July), said that it would decide the question of whether the illegal Rohingyas living in the country are ‘refugees’ or ‘illegal immigrants’. While hearing a slew of petitions concerning Rohingyas, a three-judge bench of Justices Surya Kant, Dipankar Datta, and N Kotiswar Singh said that the court would extensively hear the case for three days.

The court listed several issues to be dealt with during the hearing of the case, which included-

1) Whether Rohingyas are entitled to be declared as refugees; if so, what protection emanates from the right they are entitled to?

2) If Rohingyas are illegal entrants, are the Government of India and the states obligated to deport them in accordance with the law?

3) Even if Rohingyas have been held to be illegal entrants, can they be detained indefinitely, or are they entitled to be released on bail subject to conditions?

4) Whether Rohingyas who are not detained but living in refugee camps have been provided basic amenities like sanitation, drinking water, education, etc. (in conformity with Article 21)?

Indian government has been deporting illegal Rohingyas

The Indian government has been identifying and deporting Rohingyas, who entered the country illegally. Considering the threat these illegal Rohingyas pose to law and order, national security and demography, the Union government has been making efforts to identify and deport them. However, the government’s action had triggered several foreign-funded human rights organisations and NGOs, which have approached the apex court seeking rights for them, at par with those available to Indian citizens, and to prevent the Indian government from deporting them.

Notably, in May 2025, during the hearing of the petitions against the deportation of illegal Rohingyas by the Indian government, the Supreme Court displayed remarkable judicial clarity by refusing to pander to the petitioners who wanted the court to address the matter with great urgency.

NGOs want to protect the illegal Rohingyas who pose threat to national security

The petitioners want the Indian government to adopt a ‘humanitarian’ approach towards the illegal Rohingyas, many of whom are found engaged in serious criminal activities like human trafficking. These illegal immigrants lay claim to the resources of a country which already has a vast population to cater to.

However, with the so-called human rights activists and advocates voicing their concerns nationally and internationally, these illegal immigrants have gradually spread their roots across the country. Many of them have obtained fake Aadhaar Cards and other local ID cards by taking advantage of appeasement politics.

As per the UNHCR data as of 31st December 2024, over 95,000 Rohingya Muslims are staying in India, including 22,500 refugees and asylum seekers considered stateless by the United Nations High Commissioner for Refugees.

India not legally bound to keep the illegal Rohingyas

The 1951 Refugee Convention, an international treaty which defines who refugees are and lays down obligations of its signatories regarding the refugees/asylum seekers, including not to return the refugees/asylum seekers to the country where they are persecuted. India is not a signatory to the 1951 convention, therefore, it is not bound by the provisions of the convention, which means that India is not bound to keep the illegal Rohingyas and can deport them.

Constitution empowers Parliament to decide on citizenship

Even though the Supreme Court has stepped in to decide on the question of the legal status of the illegal Rohingyas, it is the legislature which is primarily empowered to decide the issues relating to their legal status and citizenship. Article 11 of the Constitution empowers the Parliament to regulate citizenship by framing laws relating to the acquisition and termination, and all other matters relating to citizenship.

The Union Ministry of Home Affairs is primarily responsible for implementing the laws relating to citizenship and dealing with matters relating to citizenship. The Parliament has enacted the Indian Citizenship Act, 1955, which lays down the framework for the acquisition, renunciation and deprivation of Indian citizenship. Rohingyas, being illegal immigrants, are not governed by the Citizenship Act. The constitutional mandate of the Supreme Court is to interpret the law enacted by the legislature and to ensure that the law is applied fairly.

The Indian government has maintained that the Rohingyas are illegal immigrants with no right to enter or stay in the country and, therefore, the government is deporting them. Considering the fact that letting certain elements permanently reside in the country can have serious implications for the law and order as well as the people of the country, it makes sense that the decision is left with an institution like the Parliament, which has direct public accountability.

Now that the Supreme Court has taken upon itself to decide the matter relating to the status of illegal Rohingyas, it is expected that it is not only guided by dry logic and bare legal provisions, but also by the interests of the nation and its people.

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