IN A RECENT RATHER PECULIAR ORDER in Mohammad Ismail v. Union of India (2025) , the Supreme Court of India refused to halt the future deportation of Rohingyas from India, labelled the petitioner’s allegations as fanciful stories and disputed the status of Rohingyas as refugees. This despite the fact that the Court has a long history of stopping unjustified deportations, that the petitioner had presented a tape recording of victims as proof, and that the United Nations High Commissioner for Refugees as well as the International Court of Justice, has recognised Rohingyas as refugees.
The present article critically analyses the position taken by the Court from multiple perspectives in order to reveal its dubious understanding with respect to domestic as well as international protection of refugees.
Constitutional protection to refugees
India has no refugee-specific provision in the Constitution and hence, refugees are treated as same and at par with aliens or foreigners. In this respect, all foreigners including refugees are entitled to the following fundamental rights: Article 14, and Articles 20-28. The Supreme Court, too, has on multiple occasions reiterated that foreigners are entitled to certain fundamental rights and in particular the right to equality and right to life and personal liberty enshrined in Articles 14 and 21, respectively.
In State of Arunachal Pradesh v. Khudiram Chakma (1993), the Supreme Court categorically laid down that the protection of Article 21 applied with equal force to both citizens and non-citizens. In Louis De Raedt v Union of India (1991), the Court held that the right to life and liberty of refugees is also likewise protected under Article 21. Again, in National Human Rights Commission v State of Arunachal Pradesh (1996), the Supreme Court observed that the State and its instrumentalities are bound to protect the life and liberty of every human being. The most notable case in this line, however, is K. A. Habib v Union of India (1998) wherein the Gujarat High Court held that refugees must be protected from persecution in their home country, as long as their presence in India is not prejudicial to national security. In other words, higher courts in India have been quite progressive in the protection of refugees through broad interpretation and expansion of the meaning of Article 21 of the Constitution.
