Editorials/Opinions Analysis For UPSC 16 October 2025

Content

1. Refugees, infiltrators
2. The road to gender equity in courts

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Refugees, infiltrators

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Why in News ?

• Union Home Minister Amit Shah (Oct 2025) reiterated the need to distinguish between refugees and infiltrators, highlighting governance, security, and humanitarian dimensions.
• This comes amid the implementation of the new Immigration and Foreigners Act (April 2025) — which replaced three colonial-era laws but still lacks a comprehensive refugee policy.
• The recent notification (Sept 2025) exempted undocumented Sri Lankan Tamil refugees (entered before Jan 9, 2015) from penal provisions under the new Act — raising debates on religion-based and selective refugee treatment.

Relevance:

• GS Paper 2: Governance, international relations, rights of vulnerable sections, constitutional protection for refugees.
• GS Paper 3: Internal security implications of illegal migration.
• GS Paper 1: Human geography and population migration issues.

Practice Questions:

• Discuss the need for a comprehensive national refugee policy in India in light of the new Immigration and Foreigners Act, 2025. (250 words)

Background: India’s Refugee Framework — The Legal Vacuum

1. Absence of a National Refugee Law

• India is not a signatory to the 1951 UN Refugee Convention or its 1967 Protocol.
• Hence, there is no statutory definition of a refugee or uniform asylum process.
• Refugees are legally treated as foreigners under general laws.

2. Pre-2025 Legal Regime

• Foreigners Act, 1946: Empowered government to detain or deport any foreign national.
• Registration of Foreigners Act, 1939: Required registration of foreigners staying beyond prescribed periods.
• Passport (Entry into India) Act, 1920: Controlled entry without valid documents.
• Immigration (Carriers’ Liability) Act, 2000: Penalized transporters bringing undocumented migrants.

3. Post-2025 Consolidation

• The Immigration and Foreigners Act, 2025 consolidated all four laws, aiming for administrative streamlining.
• However, it does not define “refugee” or distinguish humanitarian entry from illegal infiltration.

Constitutional and International Dimensions

A. Constitutional Context

• Article 21: Protects “Right to Life and Personal Liberty” — extended by SC to all persons, including foreigners (National Human Rights Commission v. State of Arunachal Pradesh, 1996).
• Article 14: Equality before law applies to all persons.
• Directive Principles (Art. 38, 39): Mandate humane treatment and social justice for all, forming moral basis for refugee protection.

B. International Law

• India’s stance: Though not a signatory to the UN Refugee Convention, India follows customary international law, including non-refoulement (no forced return of refugees to danger zones).
• UNHCR in India: Operates in coordination with MEA; manages asylum determination for non-neighboring country refugees (e.g., Afghans, Africans).

Refugee Demographics in India (as of mid-2025)

Origin	Approx. Population	Legal/Administrative Status
Sri Lankan Tamils	~90,000 (in camps, TN)	Protected by administrative orders
Tibetans	~63,000	Rehabilitation Policy, 2014
Rohingyas (Myanmar)	~21,000 (UNHCR registered)	Stateless; facing deportation risk
Afghans	~15,000	Humanitarian visas; UNHCR assistance
Chakmas & Hajongs (Bangladesh)	~45,000	Settlement in NE States; no clear legal status
Africans, West Asians	~2,000	UNHCR-mandated

Total: ~2.1 lakh refugees/persons of concern (UNHCR, June 2023).

Recent Policy Developments (2024–25)

Immigration & Foreigners Act (April 2025):

• Unified immigration and foreigner management.
  • Subsumed old laws, but still no “refugee” recognition.

Exemption Notification (Sept 2025):

• Tamil refugees (before Jan 2015) exempted from penal provisions.
  • Significance: acknowledges humanitarian ground but exposes selective treatment.

Citizenship (Amendment) Act, 2019:

• Provided citizenship pathway for non-Muslim minorities from Pakistan, Afghanistan, Bangladesh.
  • Excluded Rohingya Muslims and Sri Lankan Tamils, leading to allegations of religious bias.

UNHCR-India Cooperation (2025):

• Strengthened digital refugee registration system.
  • Yet, UNHCR access remains restricted in border regions (e.g., North East, J&K).

Issues and Concerns

1. Absence of a Uniform Refugee Policy

• Ad hoc treatment based on bilateral ties, religion, or ethnicity.
• Creates legal uncertainty and policy inconsistency.

2. Conflation of Refugees with Illegal Migrants

• Citizenship Act defines undocumented entrants as “illegal migrants”.
• Leads to harassment, detention, or deportation of genuine asylum seekers.

3. Security vs Humanitarian Balance

• Refugee inflow from Myanmar, Afghanistan, or Rohingya regions poses security monitoring challenges.
• However, blanket suspicion undermines humanitarian commitments.

4. Discrimination in Application

• Selective recognition (e.g., Tibetans get rehabilitation; Tamils do not).
• Religion-based exclusions post-CAA undermine secular principles (Articles 14 & 25).

5. Administrative Gaps

• No centralized refugee registry or biometric database.
• State-level discretion causes inconsistent implementation.

Need for a Comprehensive Refugee Policy Document

Key Principles Proposed

1. Legal Definition of Refugee: Distinguish from economic migrant and illegal infiltrator.
2. Due Process: Transparent asylum application, appeal, and review mechanisms.
3. Rights Framework: Access to health, education, work permits under administrative supervision.
4. Non-Discrimination Clause: Uphold Articles 14 & 21 across religion, ethnicity, nationality.
5. National Refugee Commission: Coordinate with UNHCR, States, and security agencies.
6. Digital Refugee Registry: For documentation, welfare targeting, and security vetting.

Comparative Perspective

Country	Legal Framework	Key Feature
USA	Refugee Act, 1980	Annual admission ceilings; asylum hearings
Germany	Basic Law + EU Directives	Constitutional right to asylum
Kenya	Refugee Act, 2006	Recognition + Refugee Affairs Secretariat
Bangladesh	No refugee law (like India)	Ad hoc management of 1.2 million Rohingyas

India remains one of the few major democracies without a codified refugee protection regime.

Way Forward

• Draft a Refugee and Asylum Bill: (similar to 2015 draft by MP Shashi Tharoor) for legal uniformity.
• Integrate Security Screening + Humanitarian Relief: Joint oversight by MHA & MEA.
• Regional Cooperation: Use BIMSTEC and SAARC to manage cross-border displacement.
• Ratify 1951 Convention selectively or adopt a “South Asian Refugee Compact.”
• Public Awareness & Local Integration: Reduce xenophobia, foster community acceptance.

Conclusion

• India’s moral leadership and democratic values demand a clear, humane, and non-discriminatory refugee policy.
• While security concerns are real, policy arbitrariness undermines constitutional ideals of equality and compassion.
• A codified refugee framework—rooted in Articles 14 and 21 and aligned with international norms—can ensure humane protection, national security, and global credibility in an era of rising displacement.

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The road to gender equity in courts

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 Why in News

• India Justice Report 2025 revealed persistent gender imbalance in the higher judiciary.
• Women constitute only 14% of judges in High Courts and 3.1% in the Supreme Court (only 1 woman out of 34 judges).
• Only one woman Chief Justice heads a High Court out of 25.
• The issue has regained national focus as the only woman judge of the Supreme Court is poised to become India’s first woman CJI, potentially leaving zero female representation afterward.
• Parallelly, the debate on creating an All-India Judicial Service (AIJS) has resurfaced, with President Droupadi Murmu (Nov 2023) advocating a merit-based, transparent, national-level recruitment system for judges.

Relevance:

• GS Paper 2: Polity, Governance, Judiciary reforms, Gender equality.
• GS Paper 1: Role of women and social empowerment.
• GS Paper 4: Ethics — inclusion, fairness, transparency in institutions.

Practice Questions:

• “An inclusive judiciary is essential for an inclusive democracy.” Examine the causes and consequences of women’s under-representation in India’s higher judiciary. (250 words)

Background: Gender Gap in Indian Judiciary

Current Composition (2025)

Level	Total Judges	Women Judges	% of Women
Supreme Court	34	1	3.1%
High Courts (25)	~1,080	150	14%
Subordinate Judiciary	~19,500	~7,400	38%

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• High representation in lower judiciary due to competitive exams with gender-neutral access.
• Underrepresentation in higher judiciary linked to opaque Collegium system, limited career mobility, and gendered professional networks.

Structural Reasons for Underrepresentation

Collegium System Bias

• Higher judiciary appointments are made via Collegium (CJI + 4 senior-most SC judges) — an insular, network-driven process.
• Lack of transparency, subjectivity, and elite legal circles allegations marginalize women, regional candidates, and first-generation lawyers.

Lack of Institutional Pipeline

• Few women reach senior advocate or High Court judge positions.
• Career breaks due to family responsibilities further limit eligibility.

Infrastructure Deficiencies

• 20% of district courts (as of 2023, CRP–SC Report) lack separate toilets for women, affecting participation and retention.
• Limited childcare and safety facilities in court premises.

Absence of Affirmative Policies

• No gender quota, reservation, or targeted mentorship for women in higher judiciary.
• State diversity and social representation also remain low (SC, ST, OBC underrepresented).

Constitutional & Institutional Framework

• Article 14 & 15(3): Equality and State empowerment to make special provisions for women.
• Article 39(a): Equal opportunity in justice delivery.
• Article 312: Empowers Parliament to create All-India Services, including All-India Judicial Service (AIJS).
• Directive Principles (Art. 38, 39A): Obligation to ensure justice and equality of opportunity.

All-India Judicial Service (AIJS): Concept & Debates

A. Rationale

• To establish a uniform, transparent, competitive national recruitment for judges (District & Higher Judiciary).
• To replace Collegium arbitrariness with UPSC-like meritocracy.
• To enhance social, gender, and regional diversity.

B. Supporters’ Arguments

• President Droupadi Murmu (2023): Advocated AIJS to “offer opportunities to less-represented social groups”.
• Justice A.M. Khanwilkar (retired): Called AIJS a “constitutional necessity”.
• UPSC’s success proves competitive exams can ensure diversity and transparency:
  • 2024 UPSC Data:
    • 1,009 total selections → 318 OBC, 160 SC, 87 ST, 109 EWS.
    • 11 of top 25 were women.
    • IPS intake (2024): 54 women (28%).

C. Opponents’ Concerns

• Fear of executive interference undermining judicial independence.
• States and High Courts fear loss of control over appointments.
• Critics argue that judicial temperament requires more than exam-based merit.

D. Proposed Safeguards

• UPSC conducts exam, but eligibility, syllabus, and standards set by SC/HCs.
• Training under SC/HC control post-selection.
• Service control vested in Supreme Court, not executive.

Comparative Context: Global Benchmarks

Country	Women Judges in Higher Judiciary	Reform Measures
USA	~35% (SCOTUS: 4 of 9)	Diversity mandates in appointments
UK	~30%	Judicial Appointments Commission (merit + diversity)
Canada	~43%	Open merit-based federal recruitment
India	3.1% (SC), 14% (HC)	Collegium-based opaque selection

Reform Imperatives

1. Institutionalize AIJS under Article 312 with Parliamentary sanction.
2. Ensure gender-responsive infrastructure — restrooms, childcare, and safety mechanisms in courts.
3. Introduce reservation or diversity benchmarks in higher judiciary.
4. Mentorship pipeline: Senior judges/lawyers to mentor women lawyers for elevation.
5. Transparency in Collegium: Publish shortlists, diversity data, and selection rationale.
6. Performance-linked promotions: From lower to higher judiciary through objective evaluation.

Broader Significance

• Justice accessibility: Diverse benches enhance legitimacy and sensitivity in gender, caste, and minority issues.
• Democratic representation: Judiciary reflects social realities.
• Public trust: Transparency and inclusiveness reduce elite capture perception.
• Gender justice: Aligns with India’s constitutional and SDG 5 commitments (Gender Equality).

Conclusion

• India’s judiciary stands at a moral and structural crossroads — between elitist continuity and democratic reform.
• Without structural correction, the higher judiciary risks representational bankruptcy.
• A transparent, merit-based All-India Judicial Service, modeled on UPSC standards and insulated from executive pressure, could democratize access, normalize women’s leadership in law, and strengthen the constitutional promise of equal justice for all.

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