Habeas Corpus and foreigners

Recently, a habeas corpus petition concerning the alleged disappearance of five Rohingya individuals from custody was filed in the Supreme Court.

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The Chief Justice of India has rightly asked if the court was expected to "roll out a red carpet" for illegal entrants and questioned whether the individuals had legal status or a government order declaring them as refugees.

This query gives birth to many legal and legitimate questions. And, of course, it is very difficult to answer those. Is habeas corpus applicable to foreigners in India? If not, is it not contrary to core constitutional values. Are Rohingyas entitled to the protection of Article 21 of the Constitution (right to life and personal liberty)? Can any person on Indian soil be subjected to inhuman treatment? This controversy has many dimensions within the ambit of past practices of the Supreme Court under Article 21 and international law.

While the Constitution does not use the exact term "human rights", these rights (liberty, life etc.) align with international human rights standards, making them justiciable claims against the state.

India is not a signatory to the 1951 UN Refugee Convention and 1967 Protocol and therefore, no legal status has been granted to the Rohingyas under Indian law. But the principle of non-refoulement (not returning refugees to danger) is considered part of customary international law, obligating nearly all states to uphold it.