Statements made by judges from the bench are not casual utterances. They can shape constitutional meaning, signal judicial priorities and frame how the law understands those who stand before it. When the Chief Justice of India speaks, especially in matters involving vulnerable communities, the language used matters as much as the eventual outcome. It is for this reason that the observations made by Chief Justice Surya Kant on December 2, during the hearing of a Public Interest Litigation concerning Rohingya refugees, warrant serious legal scrutiny.By invoking the imagery of “intruders” tunnelling across borders and questioning whether such persons deserve food, shelter or education, the court adopted a framing that goes beyond rhetoric. It carries legal consequences. It collapses constitutional questions of due process into moral judgments about illegality. In doing so, it risks distorting settled principles of constitutional and international law.The core claim of the petition before the court was limited and precise. The petitioners did not ask the judiciary to declare Rohingyas as refugees, nor did they challenge the state’s power to regulate immigration. Their argument was narrower: They contended that any detention or deportation process must comply with constitutional due process. This argument applies regardless of whether the individuals concerned are formally recognised as refugees.However, the Chief Justice’s remarks appeared to respond to a different claim altogether. The court proceeded on the assumption that since the government had not recognised Rohingyas as refugees, they had no right to remain in India and, therefore, no claim to protection. This reasoning constructs a strawman. The absence of refugee recognition does not extinguish the obligation of the state to follow lawful procedure when depriving a person of liberty.Article 21 of the constitution guarantees that no person shall be deprived of life or personal liberty except according to procedure established by law. The text deliberately uses the word “person” and not “citizen.” Indian constitutional jurisprudence has consistently affirmed that non-citizens are entitled to the protection of Article 21. Due process is not a reward for lawful entry. It is a constitutional floor that applies precisely when the state exercises its most coercive powers.Also read: Contrary to SC Ruling, Manipur HC Reading of ‘Non-Refoulement’ Recognises Right of Asylum SeekersBy rhetorically asking whether the law should be “stretched” to provide food, shelter or education to those who entered illegally, the court inverted constitutional logic. The constitution does not “stretch” itself to protect the vulnerable – it restrains the state from acting arbitrarily. While access to welfare schemes may legitimately vary based on legal status, procedural safeguards do not evaporate at the border.The remarks also reveal a misunderstanding of the legal nature of refugee protection. They proceed on the assumption that refugee rights arise only after formal recognition by the host state. That is incorrect. Refugee status determination is declaratory, not constitutive. That is, a person does not become a refugee because a state recognises them as such. A state recognises them because they meet the criteria of being a refugee under international law.This distinction is central to the principle of non-refoulement, which prohibits the return of individuals to territories where they face persecution, torture or death. Non-refoulement does not depend on formal recognition. It applies until a proper determination of status has been made. Deporting first and asking questions later is precisely what the principle forbids.An elderly man with a child walks past makeshift tents at the Rohinya refugee settlement area in Kalindi Kunj, New Delhi, August 17, 2022. Photo: PTI/Ravi ChoudharyThe Supreme Court refusing to apply non-refoulement because India is not a signatory to the 1951 Refugee Convention reflects a persistent misconception. Non-refoulement is a principle of customary international law that is binding on all states. Indian constitutional jurisprudence has accepted that customary international law forms part of domestic law, unless it conflicts with a statute. Some scholars even argue that non-refoulement has attained the status of a jus cogens norm, a peremptory principle from which no derogation is permitted.The recent observations on Rohingyas are not an isolated episode. Justice Surya Kant has previously dismissed reports that certain Rohingya refugees were picked up and pushed into the sea by Indian authorities as a “beautifully crafted story”. A different bench of the court, in May 2024, remarked that India is not a “dharamshala” (charitable resthouse) for refugees from across the world. This language echoes earlier Supreme Court jurisprudence that framed migration in Assam as an “invasion” and immigrants as dangers to national security and culture. That history should caution us, not guide us.Also read: ‘Thrown Into the Sea’: How India Allegedly Deported 38 Rohingya Refugees Without Due ProcessAgainst this legal backdrop, the remarks from the Bench are not merely unfortunate. They are doctrinally unsound. Equally concerning is the constitutional message they send. Courts are meant to test executive claims, not amplify them. When judicial language adopts the state’s security narrative wholesale, especially at the threshold stage of a hearing, it risks foreclosing meaningful adjudication. The question before the court was whether due process applies. By framing the issue as indulgence towards illegality, the court shifted the terrain from law to suspicion.The public exchange of open letters following the remarks illustrates the gravity of the moment. The first letter raised principled concerns about constitutional values and judicial language. The second sought to defend the Chief Justice by questioning motive. But constitutional analysis is not a matter of loyalty: it is a matter of fidelity to legal principle.The deeper issue is not one judge’s phrasing but a recurring judicial instinct to create zones of exception. Immigration has increasingly been treated as an area where ordinary constitutional safeguards are negotiable. This is a dangerous trajectory. Exceptionalism has a habit of expanding. What begins with refugees soon reaches citizens. The constitution does not ask whether a person deserves rights. It asks whether the state has the power to take them away. That distinction is the foundation of constitutionalism. When courts lose sight of it, they risk becoming participants in exclusion rather than guardians against it.India has no comprehensive refugee law. In that vacuum, constitutional courts carry an even greater responsibility. They cannot abdicate that role by deferring entirely to executive classification or by allowing metaphors of invasion to substitute for legal reasoning.The Rohingya case is not about red carpets or open borders. It is about whether the constitution continues to mean what it says when the person before the court is unpopular, foreign and powerless. If due process applies only to those who enter correctly, then it is not due process at all. It is privilege dressed up as law. Judicial authority rests not on rhetoric, but on restraint. When the court speaks of intruders instead of persons, it is not just refugees who are diminished. It is the constitution itself.Rudraksh Lakra is an advocate and policy analyst based in Delhi. Views expressed are personal.