Nandita Haksar v. State of Manipur, W.P.(Crl.) No. 6 of 2021

Read the judgment here

Date of decision: 03.05.2021

Court: Manipur High Court 

Judges: Chief Justice Sanjay Kumar and Justice Lanusungkum Jamir 

Summary: The Manipur HC held that the principle of non-refoulement was part of Article 21, thereby protecting Myanmarese nationals who entered India illegally under the threat of persecution by declaring them to be ‘refugees’ and not ‘migrants’.

Facts: The case arose out of a writ petition filed by the petitioner on behalf of 7 Myanmarese citizens before the Manipur HC. After the military coup in Myanmar during February 2021, the military junta banned Mizzima, an established Myanmarese media and news service, and arrested/detained several of its journalists. Of the 7 individuals represented in the petition, 3 were journalists, the others being the wife and 3 minor children of one journalist. They entered India and took shelter at Moreh in Tengnoupal district, Manipur, and sought the help of the petitioner as they feared that they would be sent back to Myanmar due to lack of proper travel documents.

The writ petition was filed on behalf of the 7 Myanmarese nationals, requesting passage for them to travel to New Delhi to seek protection from the United Nations High Commissioner for Refugees (UNHCR). 

The Home Ministry, Government of India, vide its letter dated 10.03.2021, had directed the authorities of the border States in North-East India to check the flow of illegal migrants coming into India from Myanmar. However, a letter dated 29.03.2021 was issued by the Government of Manipur stating that it would come to the aid of Myanmarese nationals who had illegally entered the State.

By its order dated 17.04.2021, the Manipur HC adjourned the case to enable the State and the Central Governments to put forth their stands. In its order dated 20.04.2021, the Court directed the State authorities to arrange for the safe transport and passage of these seven persons from Moreh to Imphal, where they resided in the petitioner’s local residence. 

Holding: The petitioner argued that the Home Ministry’s letter did not draw a distinction between a ‘migrant’ and a ‘refugee’ and that the 7 Myanmarese citizens were refugees, and sought their safe passage to approach the UNHCR at New Delhi for protection. 

The Manipur HC held that the Myanmarese citizens could not be categorized as migrants. According to the court, “The word ‘migrant’ is ordinarily understood to refer to a person who moves from one place to another, especially in order to find work or better living conditions. The word ‘refugee’, on the other hand, refers to a person who is forced to leave his/her country in order to escape war, persecution or natural disaster” (paragraph 6). As per the court, the 7 persons were compelled to flee Myanmar under threat of persecution, and were therefore asylum seekers, and not migrants. 

The HC also granted them safe passage to New Delhi to enable them to avail suitable protection from the UNHCR. This decision of the court was based upon its finding that Article 21 of the Constitution of India encompasses within its scope the principle of ‘non-refoulement’.

‘Non-refoulement’ is a principle of international law that forbids a country receiving asylum seekers from returning them to a country in which they would be in likely danger of persecution based on race, religion, nationality, membership of a particular social group or political opinion.

Significance: This decision clearly states India’s responsibilities towards refugees and asylum seekers despite India not being a signatory to the 1951 Refugee Convention. 

The Manipur HC read non-refoulement within Article 21 of the Constitution and concludes that “The far-reaching and myriad protections afforded by Article 21 of our Constitution, as interpreted and adumbrated by our Supreme Court time and again, would indubitably encompass the right of non-refoulement…” (paragraph 10). The Manipur High Court’s reading of non-refoulement into Indian law conflicts with India’s official position, and the court also takes a step that the Supreme Court was reluctant to take in its interlocutory order in the case of Mohammad Salimullah v. Union of India

The Central Government’s position is that since it is not a signatory to the Refugee Convention or the Protocol Relating to the Status of Refugees, it does not have any obligation to follow the principle of non-refoulement. It has even argued before the Supreme Court that it does not consider non-refoulement a part of customary international law. 

In Mohammad Salimullah (our analysis here), the Supreme Court had, by way of an interim order, rejected Rohingya refugees’ constitutional right to remain in India and allowed their deportation by the Government of India, on the ground that the right not to be deported was concomitant to the rights under Article 19(1)(e). This decision has been widely criticized for lack of sound legal reasoning. In Nandita Haksar, however, the Manipur HC correctly notes that Salimullah “was an interlocutory order and no ratio was laid down therein, constituting a binding precedent under Article 141 of the Constitution.” (paragraph 18). Unlike the Supreme Court in Salimullah, the Manipur High Court drew the principle of non-refoulement from Article 21, which extends to all persons regardless of nationality. Thus, despite India not being a signatory to the Refugee Convention, it has to follow the principle of non-refoulement since it is enshrined in Article 21 of the Constitution. 

This case also distinguishes itself from Salimullah on the argument of national security. The Manipur HC concluded that the petitioners presented no threat to national security, reaching this conclusion on the basis of various documents such as a certification of refugee status by UNHCR, and a sanction of ‘Visa Gratis’ by the Indian government to one of the petitioners. In Salimullah, on the other hand, the Supreme Court took note of ‘serious allegations of threat to internal security’ (paragraph 14) which was partly the reason it allowed the refugees’ deportation. Whereas the Manipur HC referred to several documents in order to assess whether the petitioners would be a threat to national security, the Supreme Court did no such analysis. 

This is also not the first time that a court has enshrined non-refoulement within Article 21. In Ktaer Abbas Habib Al Qutaifi v. Union of India, the Gujarat HC had reached a similar conclusion. In Ktaer Abbas, the petitioners were Iraqi refugees who sought release from detention and invoked the principle of non-refoulement to request that they be allowed to approach the UNHCR. The Gujarat HC allowed their request, holding that the principle of non-refoulement is encompassed in Article 21 of the Constitution, despite India not being a signatory to the Refugee Convention. 

While the Manipur HC’s decision is appreciable in that it protects the petitioners from persecution, its approach of distinguishing between migrants and refugees and privileging the latter over the former warrants criticism. The  migrant/refugee distinction has been criticized for ignoring the fact that economic violence can be a key driver of migration and is no less insidious than religious, political, or ethnic persecution, and it presents the danger of reinforcing a false distinction, namely that migrants, who are moving for economic reasons, may be less deserving of asylum and aid than refugees, who are escaping war or persecution. This could, in turn, lead to blurring or even legitimization of the injustice faced by migrants. Some scholars have even argued that the distinction should be done away with. The court, by merely defining the categories of refugees and migrants, falls short of engaging with the issue in the depth and nuance that it deserves. 

Table of Authorities:

  1. Mohammad Salimullah v. Union of India, 2021 SCC OnLine SC 296. 
  2. Ktaer Abbas Habib Al Qutaifi v. Union of India, 1999 CriLJ 919.


  1. Gautam Bhatia, Breathing Life into Article 21: The Manipur High Court’s Order on Refugee Rights and Non-Refoulement, Indian Constitutional Law and Philosophy, 3 May 2021.   
  2. Gautam Bhatia, Complicity in Genocide: The Supreme Court’s Interim Order in the Rohingya Deportation Case, Indian Constitutional Law and Philosophy, April 2021.   
  3. Snehal Dhote, Right to Life Encompasses Non-refoulement: Indian High Court Advances Refugee Policy, Jurist, 30 June 2021. 
  4. Heaven Crawley & Dimitris Skleparis, Refugees, migrants, neither, both: Categorical fetishism and the politics of bounding in Europe’s ‘migration crisis’, Journal of Ethnic and Migration Studies, 6 July 2017. 
  5. Dr. Ben Whitham, On seeking asylum from poverty: Why the refugee/migrant paradigm cannot hold, Mixed Migration Platform, 30 September 2017. 

This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India.This note was prepared by Radhika Dharnia.

Mohammad Salimullah v. Union of India, W.P. No. 793 of 2017

Read the judgment here

Date of decision: 08.04.2021

Court: Supreme Court of India

Judges: Chief Justice S.A. Bobde, Justice A.S Bopanna and Justice V. Ramasubramanian

Summary: The petitioners, Rohingya refugees, sought the release of detained Rohingya refugees in Jammu who were facing deportation. The Supreme Court allowed deportation of the refugees, holding that the right against deportation is concomitant to rights under Article 19(1)(e). 

Facts: In March 2021, several newspaper reports indicated that about 150­-170 Rohingya refugees detained in a sub jail in Jammu were facing deportation back to Myanmar. This was done in line with a 2017 circular issued by the Home Ministry to all State Governments/UTs, which advised them to initiate deportation processes against refugees housed in various camps across the country. The petitioners, who were themselves Rohingya refugees, sought, through an interlocutory application, release of the detained Rohingya refugees and a direction to the government to not deport them. The present petition was therefore an interlocutory application in the main case. 

Holding: The petitioners argued that despite India not being a signatory to the 1951 Refugee Convention, the principle of non-refoulement is part of the right guaranteed under Article 21 of the Constitution. 

The Supreme Court dismissed the plea and ordered that the detained refugees be deported, following proper procedure. The court stated that, “the right not to be deported is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e).” (paragraph 13), implying that India is not bound by the principle of non-refoulement. It also acknowledged the government’s concerns that refugees posed threats to internal security and would lead to increase in illegal immigration. 

Significance: While the Supreme Court’s decision can be understood as implying that the principle of non-refoulement is not a part of Article 21, this was not explicitly stated in the court’s order. So, it would be incorrect to say that the present case lays down an authoritative position of law with respect to non-refoulement and Article 21. 

The court’s decision is only an interlocutory order, and therefore should not be considered as laying down a ratio, as was also correctly noted by the Manipur HC in Nandita Haksar v State of Manipur (our analysis here). The issue of non-refoulement is a substantial question of law, and should be decided by a proper Constitution Bench. The petitioners’ arguments of Article 21 and non-refoulement amounted to a substantial question of law, which should have been referred to a Constitution Bench in line with Article 145(3). Instead, it was determined by a division bench in a mere interlocutory order. 

The court locates the right to not be deported within Article 19(1)(e), a misinterpretation of the petitioners’ arguments. The petitioners did not argue for a total right against deportation, they argued that that the refugees had a right not to be deported to a country accused of genocide against them. Deporting them would violate their right to life under Article 21, which is guaranteed to all persons. 

Further, the court acknowledged that, “National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law.” (paragraph 12), but in its order, it referred to no such sources of law. Nothing in Indian law contravenes the principle of non-refoulement, and therefore, by the court’s own reasoning, it had the leeway to read non-refoulement into Indian law which it did not do. The court disregarded the fact that other international treaties that India is a party to, such as the ICCPR, encapsulate the principle of non-refoulement and will stand breached if the refugees are deported. Such a breach would also violate Article 51 of the Constitution, which calls for honouring international treaty obligations. 

By disregarding international conventions, the Supreme Court also contradicted its own judgement in Vishakha v. State of Rajasthan, wherein it had held that international conventions that are consistent with fundamental rights must be read into the Constitution. 

The decision also represents a break from several High Court judgements that have read non-refoulement into Article 21. The Gujarat HC in Ktaer Abbas Habib Al Qutaifi v. Union of India, and the Delhi HC in Dongh Lian Kham v. Union of India, have both held non-refoulement to be a part of Article 21. Both cases involved refugees from different nations seeking protection against deportation. 

The court’s acceptance of the national security argument is also flawed and stands in contrast to the Manipur HC’s treatment of a similar argument advanced before it in Nandita Haksar v. State of Manipur. Unlike the present case, in Nandita Haksar, the Manipur HC concluded that the petitioners, Myanmarese refugees seeking safe passage to UNHCR, represented no threat to national security. In order to reach this conclusion, the court examined several documents of the petitioners, noting the circumstances under which they had sought refuge in India. However, in the present case, the Supreme Court undertook no such examination and seems to have relied on the government’s unsubstantiated arguments.


  1. Gautam Bhatia, Complicity in Genocide: The Supreme Court’s Interim Order in the Rohingya Deportation Case, Indian Constitutional Law and Philosophy, April 2021.   
  2. Shriansh Jaiswal and Ananya Kumar, India’s Response to Rohingyas, Jurist, July 2021. 
  3. Malcolm Katrak and Shardool Kulkarni, Refouling Rohingyas: The Supreme Court of India’s Uneasy Engagement with International Law, Journal of Liberty and International Affairs, June 2021.

This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and the latest developments in citizenship law and adjudication in India. This note was prepared by Radhika Dharnia.