REFUGEES AS “FOREIGNERS”: CONSTITUTIONAL PROTECTION, EXECUTIVE DISCRETION, AND THE LEGAL STATUS OF ROHINGYAS IN INDIA

In the wake of an anti-immigration drive against Rohingyas, and the Supreme Court’s pending consideration in Jaffar Ullah v. Union of India of critical questions concerning the legal status and protection of Rohingya refugees, this paper aims to analyse the absence of a comprehensive legal framework which enables the executive to expel refugees with near-total impunity. The absence of a statutory definition of “refugee” and the overriding authority of domestic legislation, particularly the Foreigners Act, over customary international law has led to discriminatory treatment of refugees along lines of religion, ethnicity, and origin. The paper examines the precarious status of refugees in India, with particular attention to the discriminatory logic underpinning the CAA and NRC, which selectively target Muslim refugees in contravention of constitutional guarantees of equality and liberty. It also assesses India’s disregard for the principle of non-refoulement, while advancing the argument that obligations under treaties such as the ICCPR and ICESCR, both ratified by India, continue to hold weight despite the overarching authority of the Foreigners Act and India’s non-accession to the 1951 Refugee Convention and its 1967 Protocol. Further, the study interrogates the scope of fundamental rights available to Rohingya refugees and the inconsistent judicial application of Article 14 and 21. The ambiguity with which courts have interpreted the right to life has led to an erosion of its protective value, as the judiciary oscillates between safeguarding refugees against unlawful deportation and deferring to executive discretion. Finally, the paper argues that the absence of a refugee framework is not confined to legislative gaps, but also permeates judiciary, administrative practices and deportation policies. It concludes by foregrounding the ethical stakes of this exclusionary regime and offering policy recommendations to address the urgent need for a coherent and rights-based refugee law in India. Keywords: Executive Discretion, Non-Refoulement, Refugee Protection, Articles 14 and 21, Legalised Vacuum.