New Delhi: A group of former judges, senior advocates and members of the Campaign for Judicial Accountability and Reforms (CJAR) on Friday (December 5) has written an open letter to Chief Justice of India (CJI) Surya Kant expressing “deep concern” over remarks made by a Supreme Court bench which was headed by the CJI himself on December 2 while hearing a plea on the alleged custodial disappearance of Rohingya refugees. The signatories underlined that the CJI's words "carry weight not simply in the courtroom but in the conscience of the nation" and the move to deny constitutionally guaranteed entitlements to refugees "sets a dangerous precedent".

The letter states that the comments made during the hearing particularly those “questioning the legal status of the Rohingya as refugees,” equating them with “intruders illegally entering India,” likening them to people “who dig tunnels,” and asking “whether such entrants are entitled to food, shelter and education” are “contrary to core constitutional values.” Further, the signatories mentioned that the remarks have “had the effect of dehumanising Rohingya refugees whose equal humanity and equal human rights are protected by the constitution, our laws and by international law.”

The habeas corpus petition in question was filed by Rita Manchanda seeking information on the location of five Rohingya illegal immigrants who could not be traced after being detained – a request opposed by solicitor general Tushar Mehta.

“Where is the order of the Government of India declaring them [Rohingyas] as refugees? Refugee is a well defined legal term and there is a prescribed authority by the Government to declare them. If there is no legal status of a refugee, and somebody is an intruder, and he enters illegally, do we have an obligation to keep that fellow here?” Justice Surya Kant was quoted as saying by Live Law during the hearing.

Further, the CJI said, “Once these illegal migrants are in India, they claim right to food and shelter and help for their children. We have many poor people in the country. They have a right over the country’s resources, not the illegal migrants. True, the illegal migrants cannot be subjected to custodial torture.”

The signatories include former judges Justice A.P. Shah, Justice K. Chandru and Justice Anjana Prakash; senior legal figures such as Mohan Gopal, Rajeev Dhavan, Chander Uday Singh, Colin Gonsalves, Kamini Jaiswal, Mihir Desai, Gopal Shankar Narayan, Gautam Bhatia, Shahrukh Alam; and CJAR members and activists such as Prashant Bhushan, Nikhil Dey, Anjali Bhardwaj, Amrita Johri, Apar Gupta, Vipul Mudgal, Beena Pallical, Annie Raja, Meera Sanghamitra, among others.

The signatories argued that invoking domestic poverty to deny constitutionally guaranteed entitlements to refugees “sets a dangerous precedent” and reasserted that the Rohingyas, like any person in India, are protected under Article 21. Citing NHRC v. State of Arunachal Pradesh (1996), they reminded the court that “the state is bound to protect the life and liberty of every human being, be he a citizen or otherwise.”

"Further, 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. The Rohingya, as indeed any person residing in India, is entitled to the protections of Article 21 and not just protections from “third degree measures”. This fundamental right is available to an individual who is a citizen or any other person residing in India," the signatories wrote.

They noted that the Rohingyas have been described by the United Nations as “the most persecuted minority in the world” and are fleeing “ethnic cleansing and genocide.” Comparing them to intruders, they argued, “weakens the moral authority of the judiciary.”

"They are an ethnic minority in Buddhist majority Myanmar who have endured decades of violence and discrimination. Denied citizenship, the Rohingya are stateless. They have fled to neighbouring countries in waves over the past many years, escaping what has been described by the International Court of Justice as ethnic cleansing and genocide at the hands of the armed forces. They are fleeing to India, like centuries of refugees before them, seeking basic safety," the letter mentioned.

Further, the letter stressed that refugee status determination is declaratory and that India’s own Standard Operating Procedure for Foreign Nationals Claiming to be Refugees aligns with international law. Refoulement without due process, the signatories argued, violates Article 21.

"Any refoulment, imprisonment or detention without having individually and formally determined their claim as a refugee, is therefore illegal. It is gutting the right to non-refoulment which the Courts have held to be a part of Article 21," the letter mentioned.

The signatories recalled India’s long history of hosting Tibetan, Sri Lankan and Bangladeshi refugees and noted that the country has always treated refugees as occupying a “qualitatively different status” from migrants.

Appeal to the CJI

Addressing Chief Justice Surya Kant, the signatories wrote: “Your words carry weight not simply in the courtroom but in the conscience of the nation and have a cascading effect on the high courts, the lower judiciary and other government authorities.”

They warned that rhetoric hostile to the dignity of persecuted groups “threatens the foundational values of our constitution” and risks eroding public trust in the judiciary’s ability to protect the vulnerable.

They urged the CJI to reaffirm “in public statements, remarks in court and judicial verdicts” the judiciary’s commitment to constitutional morality, human dignity and justice “regardless of origin.”

"The majesty of the Supreme Court and your office is measured not merely by the number of verdicts or administrative measures but more by the humanity with which those verdicts are delivered and considered," the letter stated.

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