Recently, the Supreme Court of India upheld the deportation of a Sri Lankan Tamil national, reiterating that India cannot be a “dharamshala” for foreign nationals.
Current Deportation Issue: The Case of Subaskaran
- Background: Subaskaran was convicted under Section 38(1) of UAPA for being associated with the banned LTTE.
- Originally sentenced to 10 years, reduced to 7 years by the Madras High Court in 2022.
- Plea Rejected: Despite claims of threat to life in Sri Lanka and familial ties in India, the Court refused to intervene in the deportation process.
Supreme Court Observation
- The right to reside and settle in India is exclusively available to Indian citizens under Article 19(1)(e).
- While Articles 14 and 21 apply to all persons, they do not create a right to stay in India for foreign nationals.
- The Court reaffirmed that foreign nationals have no automatic right to stay in India and that their continued presence must comply with national laws.
What is Deportation?
- Deportation is the forced removal of a foreign national from a country due to violations of immigration laws or national security concerns.
| PW OnlyIAS Extra Edge
Deportation vs Extradition: Deportation is unilateral removal by the host country; extradition is a bilateral legal process based on treaties. |
- Grounds for Deportation:
- Visa violations
- Illegal entry or overstay
- Involvement in criminal activities
- Threats to public safety or national security
Asylum Seeker vs Refugee vs Illegal Migrant
| Term |
Definition |
Reason for Movement |
Rights under International Law |
Indian Context |
| Asylum Seeker |
A person who has fled their country and is seeking international protection, but whose claim for refugee status is not yet determined |
Fleeing persecution, war, or violence |
Protected under international refugee law while claim is being processed |
No national asylum law in India.
Handled case-by-case (e.g., via UNHCR) |
| Refugee |
A person who has been recognized under international law (e.g., 1951 Refugee Convention) as needing protection due to well-founded fear of persecution |
Persecution based on race, religion, nationality, political opinion, or membership of a group |
Protected under 1951 Refugee Convention and non-refoulement principle |
India is not a party to 1951 Convention but follows non-refoulement in practice (e.g., Tibetans, Sri Lankan Tamils) |
| Illegal Migrant |
A person who enters or stays in a country without legal authorization (e.g., no valid visa, passport, or overstays visa) |
Often economic reasons.
No specific threat in home country |
Not protected by refugee law; subject to domestic immigration law |
Considered a threat to sovereignty.
SC upheld deportation rights (e.g., Rohingya case, Sonowal v. UoI) |
Major Deportation Cases
| Case |
Year |
Charges / Background |
Country Involved |
Legal Outcome |
| Rohingya Deportation Case |
2021 |
Rohingya refugees from Myanmar detained in Jammu; India planned deportation citing illegal immigration |
Myanmar |
- SC refused to stop deportation of 7 Rohingya to Myanmar.
- Citing they were illegal immigrants and Myanmar accepted their return
|
| Bangladeshi Illegal Immigrants Case |
Ongoing
(SC observations in 2005, 2014) |
Influx of undocumented migrants from Bangladesh; focus on Assam and West Bengal |
Bangladesh |
- SC in Sarbananda Sonowal v. Union of India (2005) struck down the Illegal Migrant Determination Tribunals (IMDT) Act.
- SC held that it encouraged illegal migration and called it threat to sovereignty
|
Refugee Crisis in India
| Refugee Group |
Origin Country |
Estimated Numbers |
Nature of Entry |
Government Response |
| Sri Lankan Tamils |
Sri Lanka |
~1,00,000 |
War refugees (1983 ) |
- Given shelter in Tamil Nadu.
- Not recognized as refugees under law;
- Mostly settled in camps.
- No citizenship rights.
|
| Rohingyas |
Myanmar |
~40,000 |
Illegal migration |
-
- Viewed as illegal immigrants.
- SC rejected plea to stop deportation.
- Some were held in detention camps.
|
| Bangladeshi Migrants |
Bangladesh |
Millions (est.) |
Economic migration |
- Considered illegal migrants.
- Targeted through NRC and CAA for classification.
|
| Afghans (Post-Taliban) |
Afghanistan |
~20,000 |
Fleeing Taliban rule |
- India offered e-visas on humanitarian grounds.
- No formal asylum or refugee status.
- Restricted movement.
|
| Tibetans |
Tibet (China) |
~100,000 |
1959 onwards |
- Recognized as refugees.
- They were given residential permits.
- Allowed to form settlements like Dharamshala.
|
| Chakmas and Hajongs |
Bangladesh |
~65,000 |
Post-1960s |
- Resettled in Arunachal Pradesh.
- Faced opposition.
- Some were granted citizenship after SC intervention.
|
State’s Right to Regulate Entry and Stay
- Principle of Sovereignty: Under international law and India’s Constitution, a sovereign nation has the exclusive right to control who enters and remains within its territory. This principle Guides:
- Visa regulations
- Deportation orders
- Denial of asylum or refugee status
- Legal Basis in Indian Laws:
| Law |
Enactment Year |
Key Provisions |
| Foreigners Act |
1946 |
Regulates entry, presence, and deportation of foreigners. |
| Passport (Entry into India) Act |
1920 |
Prohibits entry without valid passport and visa. |
| Registration of Foreigners Act |
1939 |
Requires registration of foreigners staying beyond a certain period. |
| Immigration (Carriers’ Liability) Act |
2000 |
Penalizes airlines for ferrying undocumented foreigners. |
- No Fundamental Right to Settle: As per SC’s observations, Article 19 rights are reserved for Indian citizens. Foreign nationals have no right to claim permanent settlement.
![Deportation]()
National Security Vs Humanitarian Concerns
- Security Considerations:
- Involvement of foreigners in terrorist activities (e.g., LTTE, ISIS, Rohingya-linked groups) raises concerns.
- Illegal immigrants may strain law enforcement and complicate demographic management, particularly in sensitive border states like Assam, Jammu & Kashmir, and West Bengal.
Immigration and Foreigners Act, 2025
Objective: To consolidate and modernize India’s immigration and foreign management laws into a single, comprehensive legislation.
Key Features:
- Repeal of colonial-era laws including the Foreigners Act (1946), Registration of Foreigners Act (1939), and Passport Act (1920).
- Creation of a legal framework to regulate visas, travel documents, and conditions for deportation.
- Definition of grounds for refusal of entry, such as:
- Threat to public safety
- Infectious diseases
- Invalid travel documents
- Extradition cases
- Repeat offenders
|
- Humanitarian Obligations:
- India is not a signatory to the 1951 UN Refugee Convention or its 1967 Protocol but has historically offered refuge on humanitarian grounds.
- Courts have emphasized that Article 21 guarantees basic rights to all persons, which includes protection from torture or inhumane treatment.
- However, this does not imply a right to reside indefinitely.
- Judicial Balancing Act:
- The Supreme Court’s 2021 and 2025 rulings assert that humanitarian concerns cannot override national security or legal provisions.
- Refugees at risk may approach UNHCR or third countries for relocation.
- For example India has helped with humanitarian aid for many Rohingyas in Bangladesh.
Challenges Regarding Indian Law for Illegal Immigrants
- Overlapping Legal Provisions: Multiple laws such as the Foreigners Act, Passport Act, and Citizenship Act govern illegal immigrants, leading to administrative confusion.
- Lack of a Unified Legal Framework: There is no single comprehensive law to classify and manage refugees, asylum seekers, and other illegal immigrants.
- Absence of a Specific Refugee Law: India does not have a dedicated refugee law, relying instead on outdated colonial-era legislations.
- Ambiguity in Deportation Procedures: No clear and consistent procedure exists for deporting illegal immigrants, resulting in delays and legal challenges.
- Inconsistent Temporary Stay Policies: Temporary shelter and legal stay are decided on a case-by-case basis, often lacking uniformity.
- Policy Discretion Over Legal Rights: Decisions often depend on executive discretion rather than legal entitlements, affecting transparency and fairness.
Way Forward
- Enactment of Immigration Law: Expedite the implementation of the Immigration and Foreigners Act , 2025 to streamline entry, stay, and deportation procedures.
- This will replace colonial-era laws and create a unified legal framework, reducing administrative ambiguity.
- Institutionalizing Refugee Policy: Draft a specific Refugee and Asylum Law to define rights, obligations, and categorization of asylum seekers.
- Countries like the U.S. and Germany have structured frameworks ensuring both security and humanitarian safeguards.
- Better Border Screening: Use biometric systems (like Aadhaar-linked Foreigners’ Tracking) and regional coordination to prevent illegal entry.
- Aligns with global practices like the EU Schengen Visa Information System.
- Balancing the action: Offer temporary protection (e.g., e-visas for Afghan refugees) while collaborating with UNHCR for relocation.
- Ensure Article 21 protections against inhumane treatment without granting permanent residency.
- Regional Cooperation: Foster SAARC-level consensus on refugee and migration management.
- Shared strategies can ease regional pressure, as seen in ASEAN’s joint Rohingya responses.
Conclusion
India’s refugee policy balances humanitarian compassion with sovereign and legal imperatives. The Supreme Court’s stance and the Immigration and Foreigners Act , 2025, highlights India’s intent to regulate foreign presence while safeguarding national security and resources.
Additional Reading: Immigration and Foreigners Act , 2025, UAPA
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