Rohingya Deportation | Day 11: State constitutionally obligated to protect refugees of genocide, petitioners argue
Rohingya DeportationJudges: Surya Kant J, Dipankar Datta J, N.K. Singh J
On 8 May 2025, a Special Bench of Justices Surya Kant, Dipankar Datta and N.K. Singh briefly heard the case concerning the deportation of Rohingya refugees. The Rohingyas, an ethnic minority from Myanmar’s Rakhine state, fled their country to escape violent persecution by the military junta.
Senior Advocate Colin Gonsalves and Advocate Prashant Bhushan appeared for the petitioners. Solicitor General Tushar Mehta appeared for the Union. Gonsalves informed the Court that several men, women and children were deported just a day before the hearing.
Gonsalves: “Are you going to detain our clients just a day before our case?”
Gonsalves submitted that the Court had protected the Rohingya refugees “for 10 years” and that the Union could not undo this till the matter was decided. In light of the recent deportations, he questioned if more refugees would face a similar fate. “Are you going to deport our clients overnight? Just before the case?” he said.
Bhushan pointed to an affidavit from the Manipur government, which states that Myanmar refuses to accept the refugees, labelling them “stateless persons.” He also cited reports by the UN Special Rapporteur on Human Rights, who stated that the Rohingyas should not be deported under international law.
In response, Mehta referred to an April 2021 interim order where a three-judge Bench denied an interim stay on the deportation of refugees. The Order held that refugees are entitled to the fundamental rights under Articles 14 and 21 of the Constitution. However, the right to reside and settle in India guaranteed under Article 19(1)(e) applies only to citizens. The order acknowledged national security concerns arising from the influx of Rohingya refugees, allowing deportations to proceed if due process is followed.
Justice Datta: Interim orders are res judicata
Justice Datta remarked that the April 2021 Order had attained finality. Bhushan disagreed, stating that an interim order does not constitute res judicata. He pressed that the case required a full hearing for finality. However, Justice Datta maintained that the interim order stands until the matter is fully concluded. Deportations could legally continue if they followed due process.
Gonsalves relied on NHRC v State of Arunachal Pradesh (1996), popularly known as the Chakma Migrants case. The Supreme Court had held that the Union was responsible for protecting the 65,000 Chakmas who had migrated from Bangladesh. He asserted that the Rohingyas are victims and must not be sent back to the country where they once faced “killing, death, and genocide.”
India, he said, had the constitutional obligation to uphold the well-established principle of non-refoulement, which prohibits returning individuals to a country where they face persecution. The principle is found under the Refugee Convention of 1951, to which India is not a signatory.
Justice Datta, however, reiterated that the right to reside in India under Article 19(1)(e) is limited to Indian citizens. He concluded that all foreign nationals would be governed by the Foreigners Act, 1946, which outlines the procedure for deportation.
The case will be taken up for arguments on 31 July 2025.