As India grapples with the Donald Trump government’s crackdown on illegal immigration, the Supreme Court is hearing a writ petition to grant a stay on a December 2024 circular from the Delhi government refusing admission to Rohingya children who the government categorises as ‘illegal migrants’.

On December 23, then Delhi Chief Minister Atishi said on X “...the Education Department of Delhi Government has passed a strict order that no Rohingya should be given admission in the government schools of Delhi.” 

While the circular only specifically says “illegal Bangladeshi migrants”, Atishi’s post on X clarifies that the denial of admission would extend to stateless Rohingya children in Delhi.

Over the years, the presence of Rohingya refugees and asylum seekers in India has become a political issue particularly before elections. In Nuh, Rohingya settlements were bulldozed for allegedly illegally occupying land after the riots in 2023 by local police, said media reports. In August 2022, former housing and urban affairs minister Hardeep Singh Puri had said that Rohingya would be given housing in Delhi, which snowballed into a controversy and was eventually denied by the home affairs minister Amit Shah. According to the 2025 Human Rights Watch report, “Rohingya Muslim refugees in India faced tightened restrictions, arbitrary detention, violent attacks often incited by political leaders, and a heightened risk of forced returns”.

IndiatSpend has reported on the conditions and challenges faced by Rohingya refugees and asylum seekers in India including problems faced in accessing adequate healthcare, livelihood opportunities, the lack of documentation and the fear of detention and deportation.

The Public Interest Litigation filed in January 2025 by the Rohingya Human Rights Initiative, an India-based NGO working on Rohingya rights issues, asks for a stay on the Delhi government order as its refusal denies children their fundamental right to education, as guaranteed under Article 21A of the Constitution. The parliament is expected to table a new bill on immigration and foreigners in India. It is expected to replace colonial era legislations including the Foreigners Act, 1946 which is usually invoked to arrest Rohingya who cross the international border into India without valid documentation fleeing persecution.

Who are Rohingya?

The Rohingya are a Muslim ethnic minority who have resided in a predominantly Buddhist Myanmar’s Rakhine state for centuries. The community “were made stateless by the enactment of the 1982 Citizenship Law and were eventually disenfranchised, in 2015, from the electoral process”, said a 2019 UN General Assembly resolution. They have faced waves of violence allegedly by the military and ruling regime over the years, forcing them to look for safe haven in other neighboring countries including India. They are the “most persecuted minority in the world”.

According to the UNHCR, the UN refugee agency, there are 22,500 stateless Rohingya refugees and asylum seekers in India, accounting for a quarter of all Myanmar refugees and asylum seekers in the country. In 2017, the union government said there were around 40,000 Rohingya in India, and that “illegal migrants (including Rohingyas) pose a threat to national security”.

While there are around 6.34 lakh Rohingya in Myanmar, more than 11 lakh refugees and asylum seekers have fled the country due to violence and persecution. Around 88 percent survive in congested Kutupalong and Nayapara refugee camps in Bangladesh’s Cox’s Bazar, while India hosts two percent of the Rohingya refugee population.

The International Court of Justice, in a case brought by The Gambia against Myanmar on allegations of genocide of Rohingya, said that it is of the “opinion that the Rohingya in Myanmar remain extremely vulnerable”. Based on a fact-finding mission’s report the ICJ further noted that “the Rohingya in Myanmar have been subjected to acts which are capable of affecting their right of existence as a protected group under the Genocide Convention, such as mass killings, widespread rape and other forms of sexual violence, as well as beatings, the destruction of villages and homes, denial of access to food, shelter and other essentials of life.”

In India, the Rohingya are not allowed to apply for Aadhaar cards or other relevant government documents, except UNHCR refugee cards. This makes it difficult for them to access government support other than through the UNHCR. Often, Rohingya refugees and asylum seekers are unable to find jobs and to support their families in India forcing many to work as waste pickers or low paying informal work, IndiaSpend reported in March 2022. They also find accessing adequate healthcare difficult leading to high out of pocket expenditure which make healthcare unaffordable. 

IndiaSpend also reported on how life on the margins constantly in fear of detention and deportation, and their trauma of violence in Myanmar has taken a toll on the community's mental health. We also reported in October 2024 how a Rohingya woman who was smuggled into India was raped and struggled to access abortion. She eventually was pushed back into Bangladesh.

The issue of racial discrimination against Rohingya came up as recently as June 2024 when the UN Committee on the Elimination of Racial Discrimination urged India to “end the arbitrary detention of Rohingya who fled Myanmar to India and refrain from forcible deportation and returns to Myanmar”. It also asked the government to remove restrictions preventing them from enjoying their rights without discrimination, in particular with regard to access to employment, health and education, especially by ensuring the issuance of long term visas and other identity documents.

‘Constitutional right under Article 21’

Often, those who cross the border are arrested and serve time in jail under the Foreigner’s Act, and tend to remain detained despite undergoing punishment for illegally entering without valid documentation.

While India is not a signatory to the 1951 UN convention on refugees and its 1967 protocol, it is a signatory to the Universal Declaration of Human Rights. Further, the Universal Declaration of Human Rights mentions that everyone has the right to education and that education shall be free, at least in the elementary and fundamental stages.

“The Rohingya issue is straightforward. They are victims of a genocide,” said Colin Gonsalves, senior advocate in the Supreme Court and human rights lawyer appearing for the petitioners in the January 2025 PIL. Rohingya are foreigners and they have not come to India with a visa, but they do have a legal right, he said.

“They also have a constitutional right under Article 21 which provides protection of life and liberty and is not limited to citizens. It is applicable to all those within the territory of India. It applies to Rohingya because their life is in danger due to the violence in Myanmar if they are deported,” Gonsalves explained.

According to media reports, the Supreme Court has assured that no child will be denied education, but asked for more data and information on Rohingya refugees and their circumstances in Delhi. In April 2017, the National Commission for Protection of Child Rights – on a complaint from Development And Justice Initiative, a non-profit promoting rights and access to justice for adivasis, refugees and migrant workers – had categorically said that “no admission is to be denied to any child seeking admission in a government or government aided school in Haryana”.

This is not the first instance where legal protection has been sought in the SC. There are three Writ petitions – Jafar Ullah (2013), Mohammad Yunus (2017), Fazal Abdali (2021) – pending in the SC. The January 2025 petition mentions that the union government and the government of NCT of Delhi have said, in 2018, that there was no discrimination against Rohingya. In 2018, the Delhi-NCT government’s compliance report of the committee on the status of health facilities for Rohingyas staying in Delhi, filed in the SC, said that no reports of any discrimination for admission in schools were reported by the inhabitants, showing that there was no concern with admitting children in government schools.

According to a 2025 affidavit filed by the petitioners, there are at least 17 children in Delhi's Khajuri Khas settlement who were denied school admission even before the December 2024 Delhi education department circular.

There have been Supreme Court judgements that have provided protection for refugees. In the National Human Rights Commission vs State Of Arunachal Pradesh, 1996 judgement, the apex court had said that it was the duty of the state to protect the lives of Chakma refugees who were displaced from their homes in Bangladesh.

In an October 2024 order on a writ petition by Social Jurist, a civil rights group, for granting admission to all Rohingya children in schools close to their homes, the Delhi High Court disposed the case stating that Rohingya are not legal entrants to India and home ministry may be approached for appropriate action. On February 17, the Supreme Court is reported to have observed, while disposing of the appeal, that the children should first approach the school where they claim eligibility, and approach the High Court if they are denied admission.

Though India does not have a domestic law on refugees and asylum seekers, India is bound to provide asylum to those who seek protection from persecution under the Universal Declaration of Human Rights and various court orders. But Gonsalves feels that if a legislation is presented, it will be a draconian one. “This situation of no law is better than a draconian one where refugees will not be recognised,” he said.

IndiaSpend has asked the Delhi education secretary and education department for their comments on the number of children affected and reasons for denying admission. We will update the story when we receive a response.

This report is republished with permission from IndiaSpend, a data-driven, public-interest journalism non-profit. It has been lightly edited for style and clarity.

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