ON DECEMBER 5, 2025 various former judges, senior advocates, legal scholars, activists and members of the Campaign for Judicial Accountability and Reforms (‘CJAR’) authored an open letter addressed to the Chief Justice of India (‘CJI’) expressing deep disquiet regarding statements that appeared to equate Rohingyas, victims of genocide, with criminals who tunnel into a country.
Earlier on December 2, a bench comprising CJI Surya Kant and Justice Joymalya Bagchi heard a habeas corpus petition filed by scholar and human rights activist Dr. Rita Manchanda concerning the alleged custodial disappearance of Rohingya persons. During the hearing, the CJI raised pointed questions about the presence of Rohingya persons in India. He asked, “If an intruder comes, do we give them a red carpet welcome saying we would like to give you all facilities?". CJI Kant suggested that there was no clear problem in returning such individuals to their country of origin.
"First you enter, you cross the border illegally. You dug a tunnel or cross the fence and enter India illegally,” the CJI observed, “Then you say, now that I have entered, your laws must apply to me and say, I am entitled to food, I am entitled to shelter, my children are entitled to education. Do we want to stretch the law like this?"
These remarks triggered widespread concern within the legal community. The signatories of the open letter, which included the likes of the former High Court judges Justices A.P. Shah, K. Chandru and Anjana Prakash, noted that “invoking the plight of the poor in India to justify denying protections to refugees sets a dangerous precedent, being contrary to the principles of constitutional justice.” They cautioned that this style of reasoning erases the lived reality of a community that the United Nations has called the most persecuted minority in the world. The letter also sought to remind the CJI that, “Refugee status determination is declaratory in nature: a person does not become a refugee because of recognition, but is recognised because he or she is a refugee.”
India’s own Standard Operating Procedure acknowledges the criteria for refugee status, the letter stated. Indian courts have read the principle of non refoulement into Article 21 and the country has hosted Tibetans, Sri Lankan Tamils and millions who crossed into India during the 1971 crisis.
Comments signal a deferring to executive’s position on Rohingya refugees
It is true that judicial remarks do not operate in isolation. They influence police stations, border check posts, detention centres and lower courts. In August 2022, the Ministry of Home Affairs mandated that ‘illegal foreigners’ be held in detention centres until deportation and the United Nations High Commission for Refugees has noted that there are already 676 Rohingyas in detention as of late 2024, 608 of whom have no current court case or sentences pending.
In the light of such statements by the highest judicial authority, those in positions of power feel further licensed to act with suspicion rather than care which could further affect daily life in camps where the Rohingya struggle to access sanitation, drinking water and education. The open letter warns that public faith in the judiciary weakens when the most vulnerable lose even the assurance of empathy.
This concern is not limited to a single hearing. Over the past few years, the Court has taken a visible turn toward security driven reasoning. In Mohammad Salimullah (2021), the Court acknowledged that Article 21 applies to non citizens yet framed the right to life as a right that can be weighed against Article 19(1)(e) and the interests of the state. This move altered the earlier rights based vision of refugee protection and gave priority to executive discretion.
The trend continued. In Subaskaran (2025), earlier this May, the Court told a Sri Lankan Tamil who feared persecution that India cannot serve as a “dharamshala” for refugees. The same month, in Mohammad Ismail (2025), the Court refused interim relief to Rohingyas who were allegedly pushed out to sea. In another case, the Court doubted the credibility of UNHCR refugee cards and likened the process to a “showroom.” These observations do not have binding force, although they reveal a deeper shift in judicial instinct. They show a tendency to view refugees primarily through the lens of national security rather than through constitutional morality.
This shift is especially significant because the Supreme Court is set to examine critical questions in Jaffar Ullah v. Union of India, including whether Rohingyas should be recognised as refugees, whether the state has a legal duty to deport them if they are treated as illegal entrants, whether detention can be indefinite, and whether conditions in refugee camps meet the standards of humanitarian protection.
The open letter reminded the Chief Justice that the judiciary gains authority from the quality of its compassion and the courage of its reasoning and the power of the Court comes alive when it offers shelter to those who have nowhere else to turn.
A refugee fleeing genocide does not ask for a red carpet. They ask for the protection that the Constitution promises to every person on Indian soil. When a constitutional court treats women and children fleeing mass atrocities as intruders, it flattens the difference between forced displacement and unlawful migration, stripping Article 21 of its moral force.
The letter was signed by former High Court judges Justices A. P. Shah, K. Chandru and Anjana Prakash, senior advocates of the Supreme Court including Dr. Rajeev Dhavan, Chander Uday Singh, Colin Gonzalves, Kamini Jaiswal, Gopal Sankaranarayanan and Mihir Desai, as well as advocates Gautam Bhatia and Shahrukh Alam. Members of the CJAR also endorsed the letter, among them Prashant Bhushan, Nikhil Dey, Alok Prasanna Kumar, Indu Prakash Singh and Anjali Bhardwaj.
The signatories further included activists, policy analysts, writers and representatives of civil society groups, creating a collective voice drawn from the judiciary, the bar, transparency movements, women’s organisations and human rights networks.
