Legal Position Of Rohingyas In India - An Analytical Perspective

Author: LawSphereX

Category: General Law

Published: 2026-08-23T20:31:17.606732+00:00

Updated: 2026-08-26T17:10:40.881+00:00

LEGAL POSITION OF ROHINGYAS IN INDIA: AN

ANALYTICAL PERSPECTIVE

Kumaresh. S, Guest lecturer, Government Law College, Dharmapuri.

ABSTRACT

The Rohingya crisis represents one of the most severe cases of statesponsored persecution in recent history. Forced to flee Myanmar due to systemic violence and denial of citizenship, Rohingya Muslims have sought refuge across South Asia, including India. Despite international condemnation, India’s legal stance on Rohingya refugees remains ambiguous—caught between constitutional human rights guarantees and national security concerns. This article examines the legal status of Rohingyas in India through the lens of domestic laws, international obligations, judicial precedents, and policy challenges. It argues that India’s refusal to recognise Rohingyas as refugees contradicts its constitutional ethos and international human rights commitments. The article concludes with recommendations for a rights-based refugee policy.

Keywords: Rohingya, Refugee Law, Non-Refoulement, Human Rights, Foreigners Act, India “Refugees are mothers, fathers, sisters, brothers, children, with the same hopes and ambitions as us, except that a twist of fate has bound their lives to a global refugee crisis on an unprecedented scale. Together, in solidarity with refugees, we must demand that world leaders take collective responsibility for finding fair, lasting solutions to this crisis. Together we must ensure humanity and compassion triumph over fear and intolerance,” -Khaled Hosseini1 1 Khaled Hosseini or KhalidHusseini isan Afghan-American novelist, UNHCR goodwill ambassador, and former physician.

Introduction The Rohingya crisis is not just a humanitarian tragedy—it’s a litmus test for how nations uphold human rights in the face of fear, politics, and shifting global priorities. The Rohingya, a Muslim ethnic minority from Myanmar’s Rakhine State, have faced systemic persecution for decades. Stripped of citizenship under Myanmar’s 1982 Citizenship Law, they were rendered stateless in their homeland. 2 This legal exclusion laid the groundwork for years of marginalization, culminating in the violent military crackdown of 2017. 3 Labelled a “textbook example of ethnic cleansing” by the United Nations4, the assault forced more than 700,000 Rohingyas to flee— most to Bangladesh, but thousands also made their way to India, hoping for safety. 5 India, known for sheltering refugees from Tibet, Sri Lanka, and Afghanistan, has taken a starkly different stance toward the Rohingyas.

Despite a legacy of asylum, the Indian government has chosen a securitised narrative. 6 Citing threats to national security, it categorises the Rohingyas as “illegal immigrants” under the Foreigners Act of 1946 rather than as refugees fleeing violence. This position has led to detentions, deportation efforts, and growing legal ambiguity around their rights and status. 7 At the heart of the Rohingya question in India lies a more profound dilemma: how does a democracy commit to constitutional values and international human rights reconcile those ideals with concerns over sovereignty and security? India lacks a codified refugee law, leaving the fate of displaced communities like the Rohingyas to be determined by shifting policies and court rulings rather than consistent legal principles. 2 Olivier, “The Rohingya Refugee Crisis - Persecuted and stateless generation?

” Humanium, 2018available at: https://www. humanium. org/en/rohingya-refugee-crisis-persecuted-and-stateless-generation/ (last visited April 5, 2025). 3 Mohsin Alam Bhat and Rudabeh Shahid, “Introduction: mutual attrition of citizenship, democracy and the rule of law in South and Southeast Asia,” 50 Journal of Ethnic and Migration Studies 4787–808 (2024). 4 “UN human rights chief points to ‘textbook example of ethnic cleansing’ in Myanmar,” UN News, 2017available at: https://news. un. org/en/story/2017/09/564622-un-human-rights-chief-points-textbook-example-ethniccleansing-myanmar (last visited April 5, 2025).

5 THE ROHINGYA CRISIS the Shameful Global Response to Genocide and the Assault on Religious Freedom,

2018. 6 Aaratrika Bhaumik, “On India’s international obligations towards Rohingya refugees | Explained” The Hindu, 2024available at: https://www.thehindu.com/news/national/indias-international-obligations-towards-rohingyarefugees-explained/article69015375.ece (last visited April 5, 2025).

7 “Shadow of Refuge: Rohingya Refugees in India - Refugees International,” Refugees International,

2023available at: https://www.refugeesinternational.org/reports-briefs/shadow-of-refuge-rohingya-refugees-inindia/ (last visited April 5, 2025).

This article, written from a law student’s perspective, seeks to explore and unpack this complex legal landscape. It examines the Rohingyas’ position in India through four key lenses: the domestic legal framework, India’s international obligations, judicial pronouncements, and evolving policy responses. Each section aims to dissect the legality of India’s current approach and the broader ethical and constitutional questions it raises. Ultimately, this analysis asks: Can a nation founded on justice and liberty craft a refugee policy that balances national interest with human dignity? Domestic Legal Framework Governing Refugees in India India does not have a specific law dedicated to refugees, which leaves groups like the Rohingyas to be managed under outdated, general laws intended for foreigners.

These include the Foreigners Act of 1946, the Registration of Foreigners Act of 1939, and the Passport (Entry into India) Act of 1920. 8 None of these statutes differentiate between refugees fleeing persecution and other categories of foreign nationals. For instance, under Section 2(a) of the Foreigners Act, a “foreigner” is defined simply as any non-citizen. In contrast, Section 3 gives the central government sweeping authority to regulate their entry and deportation. This legal structure, while efficient for immigration control, is ill-suited for addressing the humanitarian dimensions of forced displacement. This rigid legal treatment has allowed the Indian government to classify Rohingyas as “illegal immigrants” despite clear evidence of persecution in their home country.

The Ministry of Home Affairs’ 2017 circular directing states to identify and deport Rohingyas is grounded in this framework. 9 As a result, many Rohingyas in India face indefinite detention, are denied legal protection, and live under the constant threat of deportation. The legal lens sees them not as victims of ethnic cleansing but as undocumented intruders. However, the Indian Constitution offers a more inclusive approach. Article 21 guarantees the right to life and personal liberty to “all persons” within Indian territory, regardless of citizenship. This right has been interpreted by the Supreme Court in landmark cases to include the right to live and live with dignity. In National Human Rights Commission v.

State of 8 Aishwarya Birla, “Evaluating the Indian Refugee Law Regime: How Has the Judiciary Responded to Refugee Claims in Light of International Law Obligations, and How Can It Do Better? ,” 35 International Journal of Refugee Law 81–100 (2023). 9 Jessica Field, Anubhav Dutt Tiwari and Yamini Mookherjee, Urban Refugees in Delhi Identity, Entitlements and Well-Being, 2017.

Arunachal Pradesh,10 the Court explicitly extended Article 21 protections to Chakma refugees, recognising their right to asylum and protection from forced eviction. Similarly, Article 14 ensures equality before the law for all persons, reinforcing that even non-citizens must be treated fairly and without arbitrary discrimination. Though not enforceable in court, article 51(c) commits the Indian state to respect international law and treaty obligations. While India is not a signatory to the 1951 Refugee Convention, the non—refoulement principle—prohibiting individuals’ return to places where their life or freedom would be at risk—has become part of customary international law. This should, in principle, influence India’s refugee policy. 11 Yet, judicial responses to the Rohingya issue have been inconsistent. In Mohammad Salimullah v.

Union of India,12 the Supreme Court permitted the deportation of detained Rohingyas, sidestepping the non-refoulement principle and instead emphasising national security concerns. The Court linked the right against deportation to Article 19(1)(e)—the right to reside and settle in India—which applies only to citizens. This reasoning contradicted earlier jurisprudence that extended Article 21 protections to all persons, raising concerns about the judiciary’s shifting stance on refugee rights. The national security argument has since dominated official discourse. In a 2024 affidavit to the Supreme Court, the Ministry of Home Affairs claimed that Rohingyas pose a threat to national integrity and public order. The affidavit alleged the involvement of some individuals in illegal activities, including acquiring forged documents, though such claims have rarely been substantiated.

Meanwhile, conditions in detention centres—like the Matia Transit Camp in Assam—have deteriorated. A Supreme Court-mandated inspection revealed overcrowding, lack of medical facilities, and the separation of families, all of which undermine constitutional protections under Articles 14 and 21. 13 The Citizenship Amendment Act (CAA) 2019 adds to this exclusionary climate. By offering fast-track citizenship to non-Muslim refugees from neighbouring countries, the CAA

10 National Human Rights Commission vs State Of Arunachal Pradesh & Anr on 9 January, 1996.

11 Megha Purohit and Mayank Purohit, “AN ANALYSIS OF NON-REFOULEMENT IN INDIAN LEGAL

FRAMEWORK,” 2 Jamia Law Journal (2017).

12 Mohammad Salimullah vs Union Of India on 8 April, 2021.

13 Anusha Soni, “Affidavit calling Rohingyas security threat is ‘incomplete’, not the final version, government says” India Today, 2017available at: https://www.indiatoday.in/india/story/rohingyas-threat-to-nationalsecurity-cannot-stay-in-india-government-tells-supreme-court-1044613-2017-09-14 (last visited April 5, 2025).

institutionalises religious discrimination. Rohingyas, being both Muslim and stateless, are categorically excluded from this framework despite facing one of the world’s worst cases of ethnic persecution. The law effectively closes off any legal path to citizenship or long-term protection for the Rohingya in India. 14 India’s legal approach to the Rohingyas reflects a profound contradiction. While the Constitution extends fundamental rights to all persons, statutory laws and policy actions continue to treat Rohingyas as illegal outsiders. This legal disconnect undermines the country’s constitutional values and places India at odds with its international commitments. A more coherent and rights-based legal framework that moves beyond national security rhetoric and recognises the human reality of forced displacement is needed.

International Legal Obligations and India’s Position on the Rohingya Crisis India’s approach to the Rohingya refugee crisis is heavily influenced by its non-signatory status to the 1951 Refugee Convention and its 1967 Protocol. 15 These instruments form the backbone of international refugee law, defining a refugee as someone with a “well-founded fear of persecution” and enshrining the principle of non-refoulement under Article 33(1)—a prohibition against returning individuals to countries where they face serious threats to life or freedom. 16 While these treaties do not legally bind India, the principle of non-refoulement is widely considered customary international law, binding on all states regardless of treaty status.

Given the well-documented atrocities against Rohingyas in Myanmar—including findings of genocide by the UN Fact-Finding Mission in 2018—this principle is directly relevant to their protection. 17 Despite not acceding to the Refugee Convention, India is a signatory to other international instruments that reflect similar obligations. The International Covenant on Civil and Political Rights (ICCPR), which India ratified in 1979, protects the right to life under Article 6 and 14 Meryl Sebastian, “Rohingya and CAA: What is India’s refugee policy? ” Bbc. com (BBC News, 2022)available at: https://www. bbc. com/news/world-asia-india-62573446 (last visited April 5, 2025).

15 Poetika Puspasari and Prawita Meidi Handayani, “Contrasting Humanitarian and Security Considerations in Refugee Protection in Indonesia: Rohingya Refugees Case Study,” 10 Jurnal Pertahanan Media Informasi ttg Kajian & Strategi Pertahanan yang Mengedepankan Identity Nasionalism & Integrity 220–41 (2024).

16 A Guide to International Refugee Protection and Building State Asylum Systems Handbook for

Parliamentarians N° 27, 2017 Acknowledgements,. 17 “Head of Human Rights Fact-Finding Mission on Myanmar Urges Security Council to Ensure Accountability for Serious Violations against Rohingya | Meetings Coverage and Press Releases,” Un.org, 2018available at: https://press.un.org/en/2018/sc13552.doc.htm (last visited April 5, 2025).

prohibits torture and cruel treatment under Article 7. The UN Human Rights Committee, in its General Comment No. 31, has interpreted these provisions to include protection from refoulement where a risk of irreparable harm exists. India has also signed the Convention Against Torture (CAT), which explicitly prohibits returning individuals to countries where they may face torture (Article 3). Though India has yet to ratify the CAT, the prohibition against torture is widely acknowledged as a jus cogens norm—an overriding principle of international law that binds all states. 18 19 In addition to treaty commitments, India’s Constitution under Article 51(c) encourages respect for international law and treaty obligations.

While this provision is not enforceable in court as it is part of the Directive Principles of State Policy, it reflects an aspirational commitment that can inform legal interpretation and policy decisions. Furthermore, though non-binding, the Universal Declaration of Human Rights (UDHR) affirms in Article 14 that everyone has the right to seek and enjoy asylum from persecution—reinforcing the moral imperative for protection. Indian courts have sometimes embraced international legal standards, selectively incorporating them into domestic jurisprudence. In Vishaka v. State of Rajasthan,20 the Supreme Court relied on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to frame guidelines on sexual harassment, signalling a willingness to align domestic law with global norms in the absence of local legislation. However, in the case of Mohammad Salimullah v.

Union of India,21 the Court dismissed the Rohingyas’ plea against deportation, emphasising India’s sovereign prerogatives and its non-signatory status to the Refugee Convention. This decision departed from the earlier progressive stance and revealed the judiciary’s reluctance to apply non-refoulement principles when framed against national security concerns. India’s selective engagement with international legal norms thus underscores a complex legal landscape. While not formally bound by the Refugee Convention, India is entangled in a web

18 “India has a Responsibility towards Myanmar Refugees in India,” Economic and Political Weekly,

2022available at: https://www.epw.in/engage/article/india-has-responsibility-towards-myanmar-refugees (last visited April 5, 2025). “International Covenant on Civil and Political Rights,” OHCHR, 2025available at: https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-politicalrights (last visited April 5, 2025).

20 Vishaka & Ors vs State Of Rajasthan & Ors on 13 August, 1997.

21 Mohammad Salimullah vs Union Of India on 8 April, 2021.

of other treaties and customary principles that support the protection of refugees, like the Rohingyas. The inconsistency between its constitutional ideals, treaty obligations, and judicial reasoning raises critical questions about the coherence and credibility of India’s international legal posture on refugee protection. 22 Judicial and Policy Responses to Rohingya Refugees: A Critical Analysis India’s judicial stance on the Rohingya crisis reflects a deeper conflict between constitutional protections and state-driven security narratives. The Supreme Court’s ruling in Mohammad Salimullah v. Union of India23 allowed the deportation of detained Rohingyas despite arguments invoking the principle of non-refoulement under Article 21. The Court held that the right not to be deported stems from Article 19(1)(e)—a right reserved for citizens—thereby excluding Rohingyas from its protection.

This position sidelined India’s constitutional guarantees in favour of unsubstantiated national security claims, marking a sharp departure from earlier humanitarian jurisprudence. In contrast, lower courts have shown a more rights-based approach. In Ktaer Abbas Habib Al Qutaifi v. Union of India (1999),24 the Gujarat High Court recognised non-refoulement as implicit in Article 21, shielding Iraqi refugees from forced repatriation. Similarly, in Nandita Haksar v. State of Manipur (2021),25 the Manipur High Court upheld the constitutional rights of Rohingya asylum seekers, directing the government to ensure their safe passage to Delhi to seek UNHCR protection. These rulings demonstrate a judicial willingness to interpret constitutional provisions in line with international human rights norms—an approach absent in the apex court’s handling of Salimullah.

The fragmented nature of these rulings highlights a lack of judicial consistency in refugee matters. While some courts recognise that the right to life and dignity extends to all persons, the Supreme Court’s deferential stance toward executive power undermines this principle, 22 refugeelawinitiative, “India’s Problematic Stance on Non-Refoulement: The Deportation of Rohingyas - Refugee Law Initiative Blog” Refugee Law Initiative Blog, 2021available at: https://rli. blogs. sas. ac. uk/2021/06/07/indias-problematic-stance-on-non-refoulement-the-deportation-ofrohingyas/ (last visited April 5, 2025).

23 Mohammad Salimullah vs Union Of India on 8 April, 2021.

24 Ktaer Abbas Habib Al Qutaifi And Anr. vs Union Of India (Uoi) And Ors. on 12 October, 1998.

25 Nandita Haksar v. State of Manipur on May 3, 2021.

especially in the face of the rising securitisation of refugee identity. 26 Policy-wise, India’s treatment of the Rohingyas reflects what B. S. Chimni (2004) terms “strategic ambiguity”—a deliberate lack of a formal refugee framework that allows the state to apply protections selectively. Historically, India granted de facto refuge to groups like Tibetans, Sri Lankan Tamils, and Afghans, often allowing access to services and identity documents without legal status. However, the Rohingyas face a drastically different response: mass detentions, restricted movement, and threats of deportation. The 2017 repatriation of seven Rohingya men to Myanmar—despite UN warnings—marked a turning point in India’s refugee policy. The Citizenship Amendment Act (CAA) 2019 further institutionalises this selectivity.

By offering citizenship to non-Muslim refugees from Pakistan, Bangladesh, and Afghanistan while excluding Muslim groups like the Rohingyas, the Act violates the equality mandate under Article 14. Critics argue that the law is discriminatory and legitimises religious bias in India’s asylum and citizenship policy (Bhattacharjee, 2020). The government’s security narrative compounds this discriminatory tilt. Authorities have repeatedly linked Rohingyas to terrorism and illegal activities, yet these claims lack evidence. Analysts like Christophe Jaffrelot (2021) argue that this narrative aligns with rising Hindu nationalist politics, where Muslims are increasingly framed as security threats. Detention facilities in Jammu and Assam, housing hundreds of Rohingyas under vague charges, further signal a policy of “legalisation” over protection (The Wire, 2021). In N. D. Pancholi v.

State of Delhi (2013),27 the Delhi High Court emphasised balancing national security with humanitarian responsibilities. While the state has the right to safeguard public order, this cannot come at the cost of fundamental rights and international commitments. Unfortunately, this balance seems absent in current policy, where Rohingyas are treated not as vulnerable individuals fleeing persecution but as illegal migrants unworthy of legal or moral protection. In sum, India’s judicial and policy responses to the Rohingyas reveal a troubling departure from 26 Mohsin Alam Bhat and Rudabeh Shahid, “Introduction: mutual attrition of citizenship, democracy and the rule of law in South and Southeast Asia,” 50 Journal of Ethnic and Migration Studies 4787–808 (2024).

27 “Nuzhat Jahan vs Govt. Of Nct Of Delhi & Anr. on 7 August, 2013.

its humanitarian legacy. The absence of a clear refugee law, the selective application of rights, and a growing reliance on national security rhetoric undermine both constitutional guarantees and international obligations. Reimagining Legal Protection for Rohingya Refugees in India The legal position of the Rohingyas in India reveals a profound contradiction: a country with a progressive Constitution and a longstanding tradition of sheltering the persecuted has chosen a restrictive, security-driven approach toward one of the world’s most vulnerable minorities. Despite the universal guarantees under Articles 14 and 21 of the Indian Constitution, the lack of a dedicated refugee framework and the judiciary’s deference to executive narratives have left the Rohingyas in legal limbo.

The Mohammad Salimullah (2021) decision reflects this tension, narrowing the scope of constitutional protections and overlooking India’s customary and treaty-based obligations, particularly the principle of non-refoulement. As a law student concerned with legal coherence and human rights, I propose a multi-pronged approach to address this gap. First, India must enact a national refugee law defining refugee status and codifying the non-refoulement principle. The Asylum Bill 2021, though yet to be passed, provides a starting point for building a transparent, rights-based legal structure. Second, the Supreme Court should revisit its position in Salimullah and integrate non-refoulement within the ambit of Article 21, drawing on its precedent in the Vishaka case, where international norms were used to expand constitutional interpretation.

Third, India should formally recognise UNHCR-issued refugee cards as valid documentation, enabling access to essential services and reducing the statelessness that compounds the Rohingyas’ vulnerability. Fourth, the policy must shift from criminalising refugees toward a humanitarian model—emphasising protection, exploring options for resettlement, and pursuing regional diplomacy with Myanmar. Finally, national security concerns, if raised, must be substantiated with credible evidence and subject to judicial scrutiny to prevent arbitrary or discriminatory actions. The Rohingya crisis offers India a test of its legal and moral resolve. Reconciling constitutional values with international obligations is not merely a legal necessity but a reflection of India’s democratic identity.

A more humane, rule-based approach would affirm the country’s commitment to justice, dignity, and the rule of law.

References

1. Amnesty International. (2017). Caged Without a Roof: Apartheid in Myanmar’s

Rakhine State.

2. Bhattacharjee, S. (2020). The Citizenship Amendment Act: A Constitutional Analysis.

Indian Journal of Constitutional Law, 9(1), 45-67.

3. Chimni, B.S. (1998). The Law and Politics of Regional Solution to the Refugee

Problem. Refugee Survey Quarterly, 17(2), 54-72.

4. Chimni, B.S. (2004). From Resettlement to Involuntary Repatriation. International

Journal of Refugee Law, 16(2), 269-294.

5. Constitution of India, 1950.

6. Citizenship Amendment Act, 2019.

7. Foreigners Act, 1946.

8. Goodwin-Gill, G.S., & McAdam, J. (2007). The Refugee in International Law. Oxford

University Press.

9. Human Rights Watch. (2018). India: 7 Rohingya Deported to Myanmar.

10. ICCPR General Comment No. 31. (2004). UN Human Rights Committee.

11. Jaffrelot, C. (2021). Modi’s India: Hindu Nationalism and the Rise of Ethnic

Democracy. Princeton University Press.

12. Ministry of Home Affairs. (2017). Circular No. 24013/29/Misc./2017-CSR.III, August

8.

13. Myanmar Citizenship Law, 1982.

14. Oberoi, P. (2001). South Asia and the Creation of the UNHCR. Refugee Survey

Quarterly, 20(1), 52-73.

15. PRS Legislative Research. (2021). The Asylum Bill, 2021.

16. The Wire. (2021). Rohingya Refugees Detained in Jammu Face Uncertain Future.

17. UN Fact-Finding Mission on Myanmar. (2018). Report of the Independent

International Fact-Finding Mission on Myanmar. A/HRC/39/64.

18. UN Human Rights Council. (2018). Myanmar: UN Expert Calls for Accountability.

19. UNHCR India. (2022). Refugee Statistics.

20. United Nations Convention Against Torture (CAT), 1984.

21. United Nations Refugee Convention, 1951.

Case Law

1. Francis Coralie Mullin v. Union Territory of Delhi, AIR 1981 SC 746.

2. Ktaer Abbas Habib Al Qutaifi v. Union of India, 1999 GLH (1) 264.

3. Mohammad Salimullah v. Union of India, Writ Petition (C) No. 793 of 2017, Order

dated April 8, 2021.

4. Nandita Haksar v. State of Manipur, 2021.

5. National Human Rights Commission v. State of Arunachal Pradesh, (1996) 1 SCC 742.

6. Vishaka v. State of Rajasthan, (1997) 6 SCC 241.