Angshuman Choudhury is a Senior Researcher at the Institute of Peace and Conflict Studies, where he coordinates the South East Asia Research Programme. He is also a former GIBSA Visiting Fellow to the German Institute for International and Security Affairs, Berlin. He works on armed conflict, foreign policy, forced displacement and citizenship.
“I take this opportunity to renew the commitment of India, a generous host to and not a source of refugees, for the protection of refugees and cooperation with the international community,” declared Dr Sadre Alam, India’s First Secretary at India’s Permanent Mission in the UN headquarters in Geneva, during the fifth round of formal consultations on the Global Compact on Refugees (GCR) held in June 2018. India reiterated the same narrative in all the other consultative rounds, and even spoke against the dilution of the non-refoulement principle in the Compact’s first thematic discussion.
Barely three years later, in early March 2021, as people from neighbouring Myanmar fled into India to escape the brutal crackdown of a new military regime, the same Indian government that Dr Alam spoke on behalf of in Geneva sent a certain letter to four Northeastern states sharing a border with Burma, which said the following:
“It has been reported that illegal influx from Myanmar has started. Attention is invited to MHA letter…wherein instructions were issued to sensitize all law enforcement and intelligence agencies for taking prompt steps in ‘identifying the illegal migrants’ and initiate the deportation processes expeditiously and without delay.”
The letter, exuding much urgency in tone, went on to remind the governments of these border states that they have no power to grant “refugee status to any foreigner” and that India has not ratified the 1951 UN Refugee Convention or its 1967 Optional Protocol. This missive from the Narendra Modi-led central government in New Delhi came two days after the coup regime in Myanmar requested India to hand over eight Burmese police officers who had defected and fled to the neighbouring Indian state of Mizoram some days earlier.
Later that month, the Home Department of the Manipur government, led by the Bharatiya Janata Party (BJP), shot off an even more terse letter to five district chiefs, directing the local administrations and civil society organisations “to not open any camps to provide food and shelter” to the fleeing asylum seekers who had entered India from Myanmar. It even asked the district administrations to “politely turn [the asylum seekers] away”. The peculiarly uncharitable letter quickly caught the attention of Indian media (and social media) and fueled widespread outrage, ultimately forcing the government in Imphal to withdraw it.
The glaring contradiction between India’s stated position on refugees at international forums and the reality of its asylum policy at home isn’t lost on anyone. In fact, the entire episode is a profound reflection of the Indian state’s pathological anxiety over its Northeastern borders. More importantly, it reveals a changing attitude towards asylum seekers within the current political context – one from passive acceptance to sweeping rejection. This, however, is hardly the full story.
While New Delhi has gradually softened its position on the incoming Burmese refugees since the initial overreaction, its first response – deploying paramilitary forces to seal the border and directing states to instantly deport the asylum seekers – shows New Delhi’s shifting stance towards refugees. There was a time not long ago when the Indian government welcomed anti-military dissenters from Myanmar with open arms and even set up camps for them. While that benevolence was eventually seen by successive Indian governments as politically damaging and India became more reticent in admitting Burmese asylum seekers, people kept trickling in over the decades without New Delhi bothering too much.
The refugee streams mostly included Chins and later, the Rohingya, who were fleeing extreme persecution and sectarian violence in Myanmar’s Rakhine State. Many of them were registered by the UN High Commissioner for Refugees (UNHCR) office in New Delhi as refugees, with the previous UPA government even issuing Long Term Visas to several with refugee cards. UNHCR was also able to largely undertake its operations with limited interference from the government.
“Despite increasing security concerns, refugees and asylum-seekers continue to have access to the territory of India and asylum procedures. The Government allows all refugees and asylum-seekers to have access to public health, education services and the national legal system. However, a lack of awareness of these services and the local language, constitute practical barriers to effective access,” noted the 2012 UNHCR report on India as part of the Universal Periodic Review process at the UN Human Rights Council.
India, notably, did all of these despite not being a state party to the 1951 UN Refugee Convention or its 1967 Optional Protocol. But today, the message from New Delhi is somewhat different. It is that India is no longer willing to use its executive discretion to shelter asylum seekers, least of all recognise them as ‘refugees’; that people in dire straits outside India shouldn’t take her open-door policy for granted; and that if those in India’s neighbouring countries still manage to reach the Indian border from their side, they should be ready to confront paramilitary personnel or worse, court arrest.
For a nation that has always fretted about its borders and territorial sovereignty, and yet allowed all manner of persecuted people to take shelter within its borders during troubled times, this is a tragically uncharacteristic memo to send out to the world.
There is a chink in this otherwise dreary story – one that offers hope and drives a profound point about not just Indian federalism, but also its judicial integrity.
Just a few weeks after the Modi government ordered four Northeastern states to prevent the refugee influx and send back “illegal migrants” to Myanmar, Zoramthanga, the current Chief Minister of Mizoram (which has so far received the lion’s share of Burmese refugees) sent a rare letter of defiance to the Prime Minister. Labeling the situation in Myanmar as a “human catastrophe of gigantic proportions”, he plainly stated that New Delhi’s order was “not acceptable to Mizoram”.
“India cannot turn a blind eye to this humanitarian crisis unfolding right in front of us in our own backyard,” Zoramthanga wrote, without mincing words.
While the central government hasn’t yet publicly responded to the letter, it hasn’t outrightly stopped Burmese asylum seekers from entering India or hindered local humanitarian work since Zoramthanga dissented. On the contrary, Union Home Minister, Amit Shah, even offered to provide limited humanitarian assistance to the refugees (it is another matter that the offer is yet to materialise). It is perhaps because of the Mizo CM’s letter that the number of refugees from Myanmar has steadily climbed up to a sizable 16,000. More are expected to enter India in the months to come, as Myanmar descends into a full-fledged civil conflict.
Zoramthanga’s letter is a reminder of a certain reality, which no policymaker or political leader in New Delhi can wittingly dodge – that the central government cannot have a veto on every single matter in the country even if it wants to. Local interests and social dynamics will continue to have great sway over both national politics and statecraft, including on matters concerning other countries.
This is particularly true in the case of India’s Northeast – a complex, multi-ethnic, heterogeneous region with historical ties to its border regions. A large chunk of those fleeing across the border from Myanmar to India happen to be Chins, who share the common ‘Zo’ ethnic umbrella with the Mizos. Both communities have maintained a fraternal relationship for centuries that transcends international borders and the very history of postcolonial state-making. A single letter from the Home Ministry in New Delhi wasn’t going to break that ancient legacy of ethnic togetherness.
In fact, the Modi government’s knee-jerk attempt to bypass Aizawl while deciding its asylum policy on Chin refugees is a pinpoint reflection of how detached the Centre in India remains from its peripheries, despite its concerted attempts to co-opt the Northeast into its political-cultural fold and foreign policy narratives (such as the ‘Act East Policy’).
Since Zoramthanga’s refusal to toe New Delhi’s line, the refugees from across the border have found a familiar home in Mizoram. Despite severe logistical and material insufficiencies, compounded by the looming threat of a COVID-19 surge, ordinary Mizos have gone the extra mile to ensure that the displaced have a roof above their heads and two square meals a day. In one video posted on Twitter, for instance, locals were seen building makeshift shelters for refugees in Mizoram’s Saikah village. This, perhaps, is what a “whole of society approach” – a phrase so very frequently recalled in the global refugee literature – really looks like.
In that sense, the collective Mizo response to the Burmese refugees may be seen as a revolt against the political border. In a way, it is a rejection of the postcolonial nation-state as an entity that punctuates natural ethnographic continuities. However, it is not a rejection of those who cross the border. This is in stark contrast to the ethnonationalist view of the India-Bangladesh border in Assam wherein the border itself as a national entity is embraced, but those crossing it are rejected overwhelmingly. For the Assamese nationalists, the border is a subject of constant anxiety and an essential instrument of ethnic self-preservation that is vulnerable to “external aggressors” (read: undocumented migrants). On the other hand, for the Mizos, it is a banality that must be transcended precisely for the same objective – ethnic self-preservation. It is a different matter, however, that the Mizo response might have been different if they did not share ethno-cultural affinities with those crossing the border – like in the case of Assam. Rejection of border-crossers who are seen as the “other” by the population in destination regions is a pattern visible across most international borders, with variations in the degree and nature of the backlash.
Alongside Zoramthanga’s letter, another intervention – a judicial one this time – punctuated New Delhi’s restrictive asylum policy on Burmese refugees. In early May, the Manipur High Court directed the government to provide “safe transport and passage” to seven refugees working for Myanmar’s Mizzima news media portal – to travel to New Delhi and seek protection from the UNHCR. Not just that, the court validated their status as ‘asylum seekers’ – not ‘migrants’ – and established their legal right to not be sent back to Myanmar.
“They did not enter our country with the clear-cut and deliberate intention of breaking and violating our domestic laws. They fled the country of their origin under imminent threat to their lives and liberty,” the bench said.
The entire order, in fact, is in stark contrast to an earlier one passed by the Supreme Court of India in April, which allowed the central government to deport hundreds of Rohingya refugees currently detained in Jammu back to Myanmar. The apex court bench – led by former Chief Justice of India, S.A. Bobde – had taken an unusually obtuse view of the Rohingya refugee situation, refusing to cross-examine the government’s submission that they are a ‘national security threat’ to India or do its own research on the threatening ground reality in Myanmar, where the Rohingya remain a stateless minority who were violently chased out only four years ago.
In an almost antithetical judicial reading, the Manipur High Court noted that “no material [was] produced in support” of the government’s claim that the seven refugees posed a “possible threat” to the “security of our country”. It went on to argue that “the media coverage that has surfaced from within Myanmar after the military coup, even if discounted to some extent, leaves this Court in no doubt that these Myanmarese persons, given their links with the banned Mizzima Media Organization, face imminent threat to their lives and liberty if they return.”
Notably, the meticulously-researched order also highlights specific provisions within Indian law that offer certain safeguards to asylum seekers, such as the principle of ‘non-refoulement’ – the norm of not sending asylum seekers back to their home countries where they face a clear threat of persecution. It lays down the whole spectrum of binding and non-binding international instruments that contain the non-refoulement principle in one form or the other (including the most recent GCR) and ties it all to Article 51 of the Indian Constitution, which “casts a non-enforceable duty upon the ‘State’ to promote international peace and security, apart from fostering respect for international law and treaty-obligations in the dealings of organized peoples with one another.” It further goes on to remind the government that Articles 14 (equality before law) and 21 (right to life) of the Indian constitution guarantee certain legal safeguards even to non-citizens, and backs this up with past case precedents (such as the landmark National Human Rights Commission vs. State of Arunachal Pradesh and Another).
Most importantly, it argues 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.” There truly cannot be a more unequivocal reaffirmation of the non-refoulement principle by any Indian court, and one can only hope that future benches in the Supreme Court and other High Courts look to this order for precedence while adjudicating over asylum-related cases.
But, this is just one order. In general, the Indian legal framework is not very friendly to asylum seekers. In the absence of a national refugee law, the heavily punitive Foreigners Act 1946 comes into play, allowing governments to sweepingly portray asylum seekers as “illegal migrants”, which then courts could validate on legal technicalities. The sitting government, instead of broadening the legal-policy space for asylum, has only made it discriminatory and sectarian by introducing legal provisions that exempt migrants from six specific, non-Muslim religious groups belonging to three specific, Muslim-majority neighbouring countries from the punitive provisions of the Foreigners’ Act. These amendments made in 2015 eventually paved the way for the controversial Citizenship Amendment Act (CAA) 2019. Needless to say, asylum seekers from Myanmar aren’t covered under this law.
Is India violating international law?
The key premise that the Modi government cited while closing India’s borders to the fleeing Myanmar refugees or sending those who had already entered back to Myanmar is that India is not a state party to the 1951 UN Refugee Convention or its 1967 Optional Protocol. In itself, this isn’t wrong.
The Convention provides the most explicit legal basis for refugee protection amongst all international treaties, and since India hasn’t ratified it yet, it is neither obligated to take in asylum seekers, nor bound by its core principle of ‘non-refoulement’. It is municipal law that takes precedence here, according to which, anyone who enters India without valid papers (such as a visa) is in violation of the Foreigners Act 1946 and is classified as an “illegal migrant” under the Citizenship Act, 1955
However, this is the narrowest possible interpretation of India’s international obligations to asylum norms. In fact, one may firmly argue that by sending Burmese asylum seekers who have already entered India back to Myanmar where they face a clear threat of persecution and torture by the military regime, India would be violating international law. There are two main reasons for this.
One, ‘non-refoulement’ has been recognised as a peremptory norm of international law (or jus cogens), taking it beyond the sole remit of the Refugee Convention. This means that even those countries that have not ratified the 1951 Convention or its 1967 Optional Protocol, like India, are bound by it.
To be clear, whether the non-refoulement principle really has reached the status of jus cogens remains up for debate amongst international law theoreticians and practitioners. At the same time, a growing body of academic literature and more importantly, a series of advisory opinions (see Point 21 of this) issued by the Executive Committee of the UN High Commissioner for Refugees (UNHCR) have validated the universally binding nature of non-refoulement based on “consistent State practice combined with a recognition on the part of States that the principle has a normative character”.
Two, the non-refoulement principle is enshrined within other international instruments that India has ratified or signed. Primarily, this includes the International Covenant on Civil and Political Rights (ICCPR), which India ratified way back in 1979. According to a UNHCR advisory opinion (see footnote 37), the principle is woven into the Covenant through the Right to Life provision in Article 6. This simply means that a member state may not send an asylum seeker back to their home country where their right to life may be violated.
In the Myanmar refugees’ context, this is relevant because more than 1049 civilians have been killed by the military regime since the 1 February coup, according to one estimate. Further, in Chin State and Sagaing Division, both sharing borders with India, intense clashes between regime forces and civilian militias have erupted in recent weeks, fueling a growing humanitarian crisis and even driving accusations of war crimes against civilians.
Secondarily, India remains normatively committed, though not legally obligated, to the non-refoulement principle by virtue of signing the Convention Against Torture (CAT) and the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), both of which enshrine it. Since the coup, Myanmar has seen hundreds of enforced disappearances and extensive use of torture in detention. Even the Universal Declaration of Human Rights (UDHR), which India has signed, contains the non-refoulement principle in Article 14.
The Global Compact on Refugees, which was officially affirmed by the UN General Assembly in December 2018 and in the development of which India “took an active role”, explicitly recognises the non-refoulement principle as “a cardinal principle” (see Clauses 5 and 87 of the Compact). While these are only soft commitments, abiding by them steadfastly would place India as a positive norm-setting country in the domain of international humanitarian law.
Refugees are people, not pathogens
It is a rather jarring juxtaposition of circumstances – how the Indian government scrambled heavily-armed paramilitary forces to keep away a few thousand refugees even as it mobilised resources to also keep a rapidly-spreading deadly virus at bay. For a moment, it looked like refugees who were literally fleeing for their lives were no different from a mutating pathogen that is out to take lives – as if both threatened Indians in equal measure. In fact, one could argue that the central government was more proactive in stopping the refugees than the new strains of Coronavirus.
Yet, this stoic, if not hostile, attitude towards the new refugees from Myanmar is hardly surprising. The majoritarian political ideology that drives the ruling dispensation in New Delhi today is inherently and reflexively anti-immigrant (and ‘refugees’ are, broadly speaking, a certain class of immigrants). It is premised on the idea of maintaining a sense of national demographic purity (eventually segueing to cultural purity) by keeping “the outsiders” away and appearing muscular while doing so. While the impulse to preserve territorial and demographic integrity through border control has been a longstanding trait of the Indian state, regardless of the government in power, the current regime has only dialed it up with an intent to deploy it as a hypernationalistic political tool.
An attendant aspect of such an ideology is projecting asylum seekers as threats to India’s ‘national security’ and territorial integrity, and the very act of border-crossing as a de facto criminal act. This heavily securitised approach to immigration and borders, which predates the BJP, has been most pronounced in India’s Northeast, a region that is seen by the politico-security establishment in New Delhi as particularly vulnerable to external security threats because of its porous borders, ethnic rebellions, and historical-cultural continuities with neighbouring countries. If the idea is to ‘tame’ the region, then taming the borders becomes the sine qua non.
This is exactly why successive governments and even the higher judiciary have borrowed terms such as “external aggression” from the Indian Constitution to characterise cross-border migration, as in the context of the India-Bangladesh border. The ruling government has only successfully doubled down on this hyper-securitised border policy while also introducing a political element to it.
The Indian state is not likely to shed this institutional thinking anytime soon, not at least under the current BJP-led political regime in power at both the centre and various border states in the Northeast, despite its blustering rhetoric about humanitarianism and protecting persecuted minorities in the neighbourhood. After all, this is the same government that reiterates its “commitment on protection of refugees” every year at the UN and at the same time, declares in the country’s highest court that “India cannot be the refugee capital of the world.”
This contradictory policy approach allows the government to dodge criticism at the UN while enjoying the freedom to push its anti-migrant political propaganda at home. Ultimately, the homeland approach is designed to serve as a deterrent against asylum-seeking and entrench a certain idea in the popular imagination that India’s borders are sacrosanct, regardless of what international or municipal law may stipulate. This is sour news not just for prospective asylum seekers in strife-torn neighbourhood countries, such as Myanmar, but also for asylum seekers and undocumented migrants who are already in India. Yet, India remains a vast country with a deeply pluralistic demography and border regions that carry complex transnational legacies. Delhi may find it hard to rule by decree in such quarters, as it did this time when the Mizo Chief Minister put his foot down to help his people.