While hearing a Habeas Corpus petition on missing Rohingyas, the Supreme Court recently held that illegal immigrants have no legal rights, stressing that benefits must prioritise citizens, though custodial torture of illegal entrants remains prohibited.

Key Observations by the Supreme Court

• Illegal Immigrants Lack Enforceable Rights: Illegal entrants or overstaying foreigners, labelled as “intruders” under the Citizenship Act, 1955, cannot demand residence, settlement, or access to State resources, since these rights belong exclusively to Indian citizens.
• Citizens Must Be Prioritised for Resources: The Court stressed that India must use its limited welfare resources primarily for its own citizens, especially vulnerable groups who depend heavily on public services.
• Fundamental Rights Apply Only in a Limited Sense: Illegal immigrants cannot claim rights under Article 19, but they still retain basic rights under Articles 14 and 21, which ensure equality before the law and protection from arbitrary or cruel treatment.
  • Articles 14, 19 & 21 form India’s Golden Triangle– Article 14 ensures equality for all persons, Article 19 protects citizens’ freedoms, and Article 21 guarantees life and liberty through fair, non-arbitrary procedures, shaping all State action.
• Humane Treatment is Non-Negotiable: While the State may detain or deport illegal migrants, it cannot subject them to torture, abuse, or degrading treatment, reflecting India’s constitutional commitment to dignity.

India’s Legal & Policy Framework for Refugees

• India’s International Legal Stance: 
  • India’s Position on the 1951 Refugee Convention and 1967 Protocol: India has not signed either instrument, choosing to retain sovereign discretion in determining who qualifies as a refugee and what protections they receive.
    • This allows flexibility in responding to geopolitical concerns but also limits India’s ability to claim leadership in global refugee governance.
  • Recognition of Non-Refoulement as Customary Law: Despite being a non-signatory, India acknowledges the principle of non-refoulement—the prohibition on returning individuals to a place where their life or freedom is threatened.
    • Article 51(c) directs the State to foster respect for international law; courts read customary non-refoulement into Article 21 using the Vishakha Guidelines logic.
    • The Supreme Court frequently enforces this principle through Article 21, which protects every person on Indian soil.
  • Engagement with Global Humanitarian Norms: India selectively follows humanitarian traditions rooted in its civilisational ethos—Atithi Devo Bhava and Vasudhaiva Kutumbakam.
    • However, the absence of formal treaty commitments makes refugee protection ad hoc, executive-driven, and vulnerable to shifts in diplomatic priorities.
• Domestic Statutory Vacuum and the ‘Foreigner’ Classification: India has no national asylum law, resulting in refugees being treated as regular foreigners under general immigration statutes.
  • Passport (Entry into India) Act, 1920: Criminalises entry without valid documents—an unavoidable reality for many people fleeing persecution.
  • Registration of Foreigners Act, 1939: Requires mandatory registration and periodic reporting by foreigners, enabling administrative surveillance.
  • Foreigners Act, 1946: The central instrument. It grants the Union Government broad powers to regulate the entry, stay, and exit of all non-citizens. Refugees are legally indistinguishable from illegal immigrants under this Act.
  • Citizenship Act, 1955: Governs acquisition and loss of citizenship; explicitly excludes illegal migrants from applying for Indian citizenship.
  • CAA 2024 Rules: “Citizenship Amendment Act, 2019 (rules notified March 2024) fast-tracks citizenship for persecuted non-Muslim minorities from Pakistan, Bangladesh & Afghanistan (entered before 31.12.2014) — but excludes Muslims including Rohingyas.
• Executive Mechanism and India’s Policy of ‘Strategic Ambiguity’: In practice, refugee protection in India operates through executive guidelines, not statutory entitlements. This creates a dual system:
  • Ministry of Home Affairs (MHA)–Managed Groups: Handles refugee communities viewed as geopolitically significant (e.g., Tibetans, Sri Lankan Tamils).
    • Grants protection through executive orders, rehabilitation schemes, or long-term visas—not through enforceable legal rights.
  • UNHCR-Managed Groups: The UN High Commissioner for Refugees (UNHCR) conducts Refugee Status Determination (RSD) for groups not directly managed by the Government (e.g., Rohingyas, Afghans, African nationals).
    • UNHCR documentation assists in humanitarian protection, but it has no binding force on Indian authorities for detention, deportation, or stay rights.
    • This dual-track system enables flexibility but results in inconsistencies, unequal treatment across communities, and legal uncertainty.
• Judicial Safeguards- Courts as De Facto Guardians: With no statutory refugee law, the judiciary has emerged as a key protector of refugee rights:
  • Article 21 as a Constitutional Shield: The Supreme Court has repeatedly used Article 21 to prevent deportation when there is a credible threat to life, effectively operationalising non-refoulement.
  • Ensuring Humane Treatment: Courts insist that refugees and even illegal migrants cannot be subjected to torture, cruel treatment, or arbitrary detention.
  • Case-by-Case Oversight: Judicial protection remains individualised and reactive, dependent on litigation rather than a uniform policy.
  • 2018 Rohingya Case: In Mohd. Salimullah (2018), the Supreme Court held that the right against deportation to persecution is part of Article 21; this position has not been overruled in 2025.

Judicial Precedents Supporting the Supreme Court’s Stand

• Sarbananda Sonowal (2005) Highlighted Security Threats: The Court held that large-scale illegal migration into border states like Assam amounts to “external aggression”, giving the Union government a constitutional duty to act under Article 355.
• Louis De Raedt (1991) Limited Foreigners’ Rights: The Court ruled that foreigners enjoy only Article 21, not Article 19 freedoms, reinforcing that no foreign national has a right to stay, except under State permission.
• Contrast With Expansive Rights Jurisprudence: While in cases like Maneka Gandhi Case (1978) and Chandrima Das Case (2000), the SC expanded the meaning of personal liberty, the Court has now underlined boundaries where national sovereignty supersedes broad rights interpretation.

Arguments Supporting the Supreme Court’s Stand

• National Security and Internal Stability: Porous borders—particularly the 4,096 km India–Bangladesh stretch—create multiple security risks, including infiltration, insurgency linkages, demographic shifts, and organised trafficking routes. 
  • Undocumented populations are frequently exploited by transnational criminal networks for narco-terrorism, arms smuggling, and hawala-based illicit financial flows, undermining India’s internal security architecture. 
  • The absence of identity documentation also increases the risk of sleeper cells, radicalisation, and other anti-national activities, making strong border control a sovereign necessity.
• Economic Pressure and Public Resource Allocation: With more than 21% of Indians living below the poverty line, the Court emphasised that scarce public resources—housing, food, healthcare, education—must primarily serve Indian citizens. 
  • Further, the presence of undocumented migrants often leads to wage suppression in the informal labour market, displacing low-skilled Indian workers and deepening economic vulnerability among local populations.
• Institutional Discipline and Executive Competence: Immigration, deportation, and diplomatic negotiations fall squarely within the Executive’s domain, and cannot be compelled through habeas corpus petitions. 
  • The Court sought to prevent judicial overreach into policy areas that require sensitive geopolitical balancing, intelligence inputs, and bilateral coordination.
• Social Cohesion and Demographic Anxiety: Large-scale undocumented migration fuels identity-based tensions in border states, drawing parallels to the Assam Agitation and the Assam Accord (1985). 
  • Sudden demographic shifts strain social cohesion, political representation, and cultural identity. In major cities, migrant settlements often develop in informal slum clusters, intensifying pressure on sanitation, health, housing, and urban infrastructure.
• Security vs. Humanity: The issue raises a deep ethical conflict between the State’s sovereign duty to protect national interest and India’s civilisational values of karuna (compassion) and Vasudhaiva Kutumbakam (world as one family). 
  • While the State must regulate borders, undocumented migrants face high vulnerability to trafficking, bonded labour, sexual exploitation, and other human rights abuses—necessitating safeguards rooted in Article 21 and constitutional morality.

Critical Concerns & Counter-Arguments

• Conflict With Humanitarian and International Norms: India is not a party to the 1951 Refugee Convention, yet the global principle of non-refoulement—not sending individuals back to places where they face persecution—is recognised as customary international law. 
  • Deporting Rohingyas to Myanmar, where UN-documented human rights abuses persist, raises serious humanitarian concerns.
    • Approximately 40,000 Rohingyas in India (UNHCR, Oct 2025); around 2,000 detained in Jammu, Delhi and Hyderabad, many for over five years without charges.
  • Risk of Misidentifying Refugees: By treating all undocumented entrants as “illegal immigrants,” India risks conflating economic migrants with genuine asylum seekers, undermining its longstanding humanitarian reputation.
• Threats to Constitutional Morality and Human Dignity: A narrow reading of Article 21 may weaken India’s constitutional commitment to dignity, fairness, and compassion, which has shaped earlier rights-expanding judgments.
  • Violation to Basic Structure Doctrine: An absolute denial of human dignity even to illegal entrants risks violating the basic features of ‘rule of law’ and ‘humanism’ recognised as part of the basic structure in Kesavananda Bharati (1973) and Minerva Mills (1980).
  • Human Trafficking & Rights Violations: Undocumented migrants are highly vulnerable to forced labour, human trafficking, and gender-based violence, creating a serious human-rights crisis that challenges India’s ethical obligations rooted in karuna and Vasudhaiva Kutumbakam.
  • Arbitrary and Unequal Treatment: In the absence of a formal Refugee Status Determination (RSD) system, decisions on detention, release, and deportation depend heavily on executive discretion, resulting in inconsistent or discriminatory outcomes.
  • Concerns Over Indefinite Detention: Long-term or indefinite detention without a clear deportation pathway echoes concerns raised in Sunil Batra (1978) regarding custodial dignity and humane treatment.
• Soft Power, Diplomacy, and India’s Global Standing: A restrictive or ad-hoc approach can strain diplomatic relations with Bangladesh and Myanmar, complicating repatriation efforts and border cooperation.
  • Impact on India’s International Image: Criticism from UNHCR, international bodies, and human-rights organisations may erode India’s soft power and credibility as a responsible global leader, especially in human-rights discourse.

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Way Forward

• Enact a Comprehensive Refugee & Migration Law: Introduce a statute that distinguishes refugees from economic migrants, embeds non-refoulement, and provides clear procedures for screening, protection, residence, and deportation. 
  • Existing drafts like the Refugee and Asylum Seekers (Protection) Bill, 2015 and Asylum Bill, 2019 offer workable templates.
• Create an Independent RSD Authority: Establish a quasi-judicial Refugee Status Determination (RSD) Authority for objective, fair, and time-bound assessment of asylum claims, reducing executive arbitrariness and strengthening procedural justice.
• Strengthen Border Management: Expand the Comprehensive Integrated Border Management System (CIBMS) with laser walls, drones, sensors, and coordinated intelligence to curb illegal entry while enabling regulated movement in sensitive border zones.
• Reform Detention Protocols: Notify statutory rules on detention limits, legal aid, basic amenities, and mandatory judicial review to prevent long-term or arbitrary detention, in line with principles affirmed in Sunil Batra (1978).
• Enhance Diplomatic Coordination: Work with Myanmar, Bangladesh, and the UNHCR to ensure voluntary, safe, and monitored repatriation for individuals ineligible for refugee protection.
• Ensure Judicial Oversight Under Article 21: Courts must continue to safeguard detainees from torture, coercion, degrading treatment, and indefinite confinement, while permitting deportation only after fair procedure.
• Adopt Lessons from Global Non-Signatory Models: Countries like Kenya (Refugees Act 2021) and South Africa (Refugees Act 1998) show that robust refugee protection laws can exist without signing the 1951 Convention.
• Prepare for Climate-Induced Displacement: With Intergovernmental Panel on Climate Change (IPCC) estimates of 21.5 million climate migrants annually by 2050, India must create a temporary protection regime for environmental displaces who fall outside traditional refugee definitions.

Conclusion

The Supreme Court’s stance, though constitutionally sound, exposes India’s refugee-policy vacuum. A national refugee law is essential to balance border security with human dignity, enabling India to uphold sovereignty while honouring its constitutional and civilisational commitment to justice and compassion.

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