Possible UPSC Questions
- Prelims: Which of the following is/are not signatories to the 1951 UN Refugee Convention? Identify India’s legal definition of “illegal migrant” under the Citizenship Act, 1955.
- Prelims: CAA-2019 excludes which communities and from which countries from the definition of “illegal migrant” (cut-off date)?
- Mains (GS-II): India has no national refugee law and is not a party to the 1951 Refugee Convention. Discuss legal and humanitarian implications in the context of the Rohingya.
- Mains (GS-II): Examine the tension between national security and India’s obligations toward vulnerable foreigners in the absence of a refugee statute.
Quick Outline of Key Facts
- Trigger: On 31 July, the Supreme Court indicated the first issue in the Rohingya cases is whether they are refugees or illegal entrants.
- Numbers in India: At least 2,09,028 refugees from Sri Lanka, Tibet, Myanmar, Afghanistan (NHRC report, July 2024).
- India’s legal position: No statutory definition of ‘refugee’; India not a signatory to the 1951 UN Refugee Convention/1967 Protocol.
- UN definition (1951): A refugee fears persecution on grounds of race, religion, nationality, membership of a social group, or political opinion; Convention prescribes State obligations and minimum standards.
- Illegal immigrant (Citizenship Act, 1955): A foreigner entering without valid documents or overstaying beyond visa validity; ineligible for Indian citizenship.
- CAA-2019 carve-out: Hindu, Sikh, Buddhist, Jain, Parsi, Christian from Afghanistan, Bangladesh, Pakistan, who entered on/before 31 Dec 2014, are not treated as illegal migrants.
- Effect on Rohingya: By current Indian law/policy, Rohingya are illegal migrants and cannot apply for citizenship.
- Entry/overstay offences (Immigration & Foreigners Act, 2025):
- Entry without documents: Up to 5 years’ imprisonment or ₹5 lakh fine.
- Overstay after legal entry: Up to 3 years’ imprisonment or ₹3 lakh fine.
- Who are Rohingya? Predominantly Muslim community from Rakhine (Myanmar), not recognised under Myanmar’s constitution; massive outflow after 2017 crackdown, largest current refugee crisis; majority in Bangladesh camps.
Summary (≈400 words)
The Supreme Court’s latest hearing on the Rohingya focuses first on a foundational classification: are Rohingya in India refugees or illegal entrants? This matters because India lacks a national refugee law and is not a party to the 1951 UN Refugee Convention, which defines refugees, sets State obligations, and guarantees minimum protections. Consequently, India’s domestic framework treats all foreign nationals through general immigration and citizenship laws without a separate refugee category.
Under the Citizenship Act, 1955, an illegal migrant is one who enters without valid travel documents or stays beyond visa expiry. Such persons are ineligible for citizenship. The Citizenship (Amendment) Act, 2019 carved out an exception only for non-Muslim minorities (Hindus, Sikhs, Buddhists, Jains, Parsis, Christians) from Afghanistan, Bangladesh, Pakistan who entered on/before 31 December 2014—they are not treated as illegal migrants. This carve-out does not extend to Rohingya from Myanmar; hence, by current law and policy, Rohingya in India are classified as illegal migrants and cannot seek citizenship through this route.
Operationally, all foreigners must possess valid passports/visas to enter and remain in India. The Immigration & Foreigners Act, 2025 (as cited) prescribes penalties—up to five years’ imprisonment or ₹5 lakh for undocumented entry and up to three years or ₹3 lakh for overstay after legal entry. While India hosts over 2.09 lakh refugees from multiple theatres (Sri Lanka, Tibet, Myanmar, Afghanistan) per NHRC (July 2024), the absence of a refugee statute means protections and procedures often rely on executive discretion, UNHCR facilitation in select cases, and court directions.
The Rohingya—described by the UN as among the most persecuted—originate from Rakhine but remain unrecognised by Myanmar, driving recurrent exoduses, especially after 2017. Many reside in Bangladesh camps; some have entered India, raising debates on security, humanitarian obligations, and due process. The Supreme Court’s threshold question—refugee vs illegal entrant—thus sits at the intersection of sovereign border control and humanitarian protection in a legal vacuum.
Significance to the UPSC Exam
- GS-II (Polity/IR): Citizenship Act & CAA-2019, India’s non-signature to the 1951 Convention, separation of powers (judicial scrutiny), Centre-State coordination on law & order/relief.
- Ethics/Essay: Human rights vs national security; rule of law, non-discrimination, and administrative discretion.
- Prelims: Key dates, communities under CAA-2019, core elements of the 1951 Refugee Convention, basic definitions under Indian statutes.
