A recent courtroom exchange involving Chief Justice of India (CJI) Surya Kant has ignited fierce debate. During hearings on petitions concerning the detention and deportation of Rohingya individuals, the CJI asked a straightforward legal question: who had conferred refugee status on them under Indian law? What followed was a wave of criticism portraying his remark as dehumanising. In response, 44 former judges of the Supreme Court and High Courts issued a statement defending the CJI, characterising the backlash as a “motivated campaign” arising from a distortion of normal judicial inquiry.
How the Rohingya Hearing Became a Flashpoint
The case before the Supreme Court concerned habeas corpus and allied pleas filed on behalf of Rohingya individuals detained in India or facing deportation. Petitioners repeatedly referred to them as “refugees,” arguing that their UNHCR cards and well-documented persecution entitled them to protection from removal.
The Bench—CJI Surya Kant and Justice Joymalya Bagchi—sought clarity on a foundational matter: whether Indian law, at any point, had recognised the Rohingya as refugees. Without such legal recognition, the Court observed, their status would default to that of “illegal entrants,” and the subsequent legal questions would flow from that classification. This inquiry triggered accusations from a separate group of former judges and senior lawyers, who claimed the CJI’s queries likened Rohingya to hostile “intruders” and risked legitimising discrimination against a vulnerable minority.
Counter-Response: Former Judges Defend Judicial Inquiry
In a detailed statement, 44 retired judges rejected the criticism. They asserted that the CJI’s remarks had been selectively quoted and stripped of context. The Bench, they noted, explicitly affirmed that no individual—citizen or foreigner—can be subjected to torture, disappearance, or inhuman treatment on Indian soil. To question the legal basis of a claimed status, they argued, is not to deny human rights but to locate the proper constitutional and statutory framework within which the Court must operate.
Their broader concern was the trend of targeting judges personally for routine legal questioning, a practice they warned threatens public confidence in the judiciary.
Legal Distinctions: Refugee vs. Illegal Immigrant in India
India lacks a dedicated refugee statute and is not party to the 1951 Refugee Convention or its 1967 Protocol. As a result, “refugee” is not a legally defined category. Groups fleeing persecution—Tibetans, Sri Lankan Tamils, Chakmas, Afghans—have been treated as refugees through executive discretion, administrative practice, or UNHCR processes, not through Indian legislation.
Yet courts have consistently held that all “persons” within India enjoy core fundamental rights. Article 21’s guarantee of life and liberty, the bar on arbitrary detention, and the tacit acceptance of the principle of non-refoulement together create a baseline of protection even for those without formal status.
By contrast, Indian law confers clear legal meaning on “illegal immigrants.” Under the Foreigners Act and Passport Act, anyone entering without valid documents—or overstaying a legitimate visa—is classified as an illegal immigrant. This triggers enforcement powers: detention, deportation, restrictions on residence and movement, and ineligibility for citizenship pathways.
Thus, the same individual may simultaneously be a refugee in humanitarian terms and an illegal immigrant in formal legal terms—a duality that shapes court proceedings.
A Debate That Reveals a Deeper Legal Vacuum
The dispute surrounding the CJI’s remarks underscores a structural problem: India adjudicates refugee issues without a refugee law. Judicial scrutiny of legal status is inevitable in this environment, but it can easily be misconstrued as moral judgment. The former judges’ intervention highlights the need to distinguish between principled critique of judicial reasoning and campaigns that personalise or politicise routine legal inquiry. Ultimately, the episode reiterates the gap between humanitarian realities and India’s statutory framework—a gap that courts, in the absence of legislative reform, must navigate case by case.
(With agency inputs)
