Nandita Haksar v. State of Manipur, W.P.(Crl.) No. 6 of 2021

Read the judgment here

Date of decision: 03.05.2021

Court: Manipur High Court 

Judges: Chief Justice Sanjay Kumar and Justice Lanusungkum Jamir 

Summary: The Manipur HC held that the principle of non-refoulement was part of Article 21, thereby protecting Myanmarese nationals who entered India illegally under the threat of persecution by declaring them to be ‘refugees’ and not ‘migrants’.

Facts: The case arose out of a writ petition filed by the petitioner on behalf of 7 Myanmarese citizens before the Manipur HC. After the military coup in Myanmar during February 2021, the military junta banned Mizzima, an established Myanmarese media and news service, and arrested/detained several of its journalists. Of the 7 individuals represented in the petition, 3 were journalists, the others being the wife and 3 minor children of one journalist. They entered India and took shelter at Moreh in Tengnoupal district, Manipur, and sought the help of the petitioner as they feared that they would be sent back to Myanmar due to lack of proper travel documents.

The writ petition was filed on behalf of the 7 Myanmarese nationals, requesting passage for them to travel to New Delhi to seek protection from the United Nations High Commissioner for Refugees (UNHCR). 

The Home Ministry, Government of India, vide its letter dated 10.03.2021, had directed the authorities of the border States in North-East India to check the flow of illegal migrants coming into India from Myanmar. However, a letter dated 29.03.2021 was issued by the Government of Manipur stating that it would come to the aid of Myanmarese nationals who had illegally entered the State.

By its order dated 17.04.2021, the Manipur HC adjourned the case to enable the State and the Central Governments to put forth their stands. In its order dated 20.04.2021, the Court directed the State authorities to arrange for the safe transport and passage of these seven persons from Moreh to Imphal, where they resided in the petitioner’s local residence. 

Holding: The petitioner argued that the Home Ministry’s letter did not draw a distinction between a ‘migrant’ and a ‘refugee’ and that the 7 Myanmarese citizens were refugees, and sought their safe passage to approach the UNHCR at New Delhi for protection. 

The Manipur HC held that the Myanmarese citizens could not be categorized as migrants. According to the court, “The word ‘migrant’ is ordinarily understood to refer to a person who moves from one place to another, especially in order to find work or better living conditions. The word ‘refugee’, on the other hand, refers to a person who is forced to leave his/her country in order to escape war, persecution or natural disaster” (paragraph 6). As per the court, the 7 persons were compelled to flee Myanmar under threat of persecution, and were therefore asylum seekers, and not migrants. 

The HC also granted them safe passage to New Delhi to enable them to avail suitable protection from the UNHCR. This decision of the court was based upon its finding that Article 21 of the Constitution of India encompasses within its scope the principle of ‘non-refoulement’.

‘Non-refoulement’ is a principle of international law that forbids a country receiving asylum seekers from returning them to a country in which they would be in likely danger of persecution based on race, religion, nationality, membership of a particular social group or political opinion.

Significance: This decision clearly states India’s responsibilities towards refugees and asylum seekers despite India not being a signatory to the 1951 Refugee Convention. 

The Manipur HC read non-refoulement within Article 21 of the Constitution and concludes 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…” (paragraph 10). The Manipur High Court’s reading of non-refoulement into Indian law conflicts with India’s official position, and the court also takes a step that the Supreme Court was reluctant to take in its interlocutory order in the case of Mohammad Salimullah v. Union of India

The Central Government’s position is that since it is not a signatory to the Refugee Convention or the Protocol Relating to the Status of Refugees, it does not have any obligation to follow the principle of non-refoulement. It has even argued before the Supreme Court that it does not consider non-refoulement a part of customary international law. 

In Mohammad Salimullah (our analysis here), the Supreme Court had, by way of an interim order, rejected Rohingya refugees’ constitutional right to remain in India and allowed their deportation by the Government of India, on the ground that the right not to be deported was concomitant to the rights under Article 19(1)(e). This decision has been widely criticized for lack of sound legal reasoning. In Nandita Haksar, however, the Manipur HC correctly notes that Salimullah “was an interlocutory order and no ratio was laid down therein, constituting a binding precedent under Article 141 of the Constitution.” (paragraph 18). Unlike the Supreme Court in Salimullah, the Manipur High Court drew the principle of non-refoulement from Article 21, which extends to all persons regardless of nationality. Thus, despite India not being a signatory to the Refugee Convention, it has to follow the principle of non-refoulement since it is enshrined in Article 21 of the Constitution. 

This case also distinguishes itself from Salimullah on the argument of national security. The Manipur HC concluded that the petitioners presented no threat to national security, reaching this conclusion on the basis of various documents such as a certification of refugee status by UNHCR, and a sanction of ‘Visa Gratis’ by the Indian government to one of the petitioners. In Salimullah, on the other hand, the Supreme Court took note of ‘serious allegations of threat to internal security’ (paragraph 14) which was partly the reason it allowed the refugees’ deportation. Whereas the Manipur HC referred to several documents in order to assess whether the petitioners would be a threat to national security, the Supreme Court did no such analysis. 

This is also not the first time that a court has enshrined non-refoulement within Article 21. In Ktaer Abbas Habib Al Qutaifi v. Union of India, the Gujarat HC had reached a similar conclusion. In Ktaer Abbas, the petitioners were Iraqi refugees who sought release from detention and invoked the principle of non-refoulement to request that they be allowed to approach the UNHCR. The Gujarat HC allowed their request, holding that the principle of non-refoulement is encompassed in Article 21 of the Constitution, despite India not being a signatory to the Refugee Convention. 

While the Manipur HC’s decision is appreciable in that it protects the petitioners from persecution, its approach of distinguishing between migrants and refugees and privileging the latter over the former warrants criticism. The  migrant/refugee distinction has been criticized for ignoring the fact that economic violence can be a key driver of migration and is no less insidious than religious, political, or ethnic persecution, and it presents the danger of reinforcing a false distinction, namely that migrants, who are moving for economic reasons, may be less deserving of asylum and aid than refugees, who are escaping war or persecution. This could, in turn, lead to blurring or even legitimization of the injustice faced by migrants. Some scholars have even argued that the distinction should be done away with. The court, by merely defining the categories of refugees and migrants, falls short of engaging with the issue in the depth and nuance that it deserves. 

Table of Authorities:

  1. Mohammad Salimullah v. Union of India, 2021 SCC OnLine SC 296. 
  2. Ktaer Abbas Habib Al Qutaifi v. Union of India, 1999 CriLJ 919.

Resources:

  1. Gautam Bhatia, Breathing Life into Article 21: The Manipur High Court’s Order on Refugee Rights and Non-Refoulement, Indian Constitutional Law and Philosophy, 3 May 2021.   
  2. Gautam Bhatia, Complicity in Genocide: The Supreme Court’s Interim Order in the Rohingya Deportation Case, Indian Constitutional Law and Philosophy, April 2021.   
  3. Snehal Dhote, Right to Life Encompasses Non-refoulement: Indian High Court Advances Refugee Policy, Jurist, 30 June 2021. 
  4. Heaven Crawley & Dimitris Skleparis, Refugees, migrants, neither, both: Categorical fetishism and the politics of bounding in Europe’s ‘migration crisis’, Journal of Ethnic and Migration Studies, 6 July 2017. 
  5. Dr. Ben Whitham, On seeking asylum from poverty: Why the refugee/migrant paradigm cannot hold, Mixed Migration Platform, 30 September 2017. 

This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India.This note was prepared by Radhika Dharnia.

Mohammad Salimullah v. Union of India, W.P. No. 793 of 2017

Read the judgment here

Date of decision: 08.04.2021

Court: Supreme Court of India

Judges: Chief Justice S.A. Bobde, Justice A.S Bopanna and Justice V. Ramasubramanian

Summary: The petitioners, Rohingya refugees, sought the release of detained Rohingya refugees in Jammu who were facing deportation. The Supreme Court allowed deportation of the refugees, holding that the right against deportation is concomitant to rights under Article 19(1)(e). 

Facts: In March 2021, several newspaper reports indicated that about 150­-170 Rohingya refugees detained in a sub jail in Jammu were facing deportation back to Myanmar. This was done in line with a 2017 circular issued by the Home Ministry to all State Governments/UTs, which advised them to initiate deportation processes against refugees housed in various camps across the country. The petitioners, who were themselves Rohingya refugees, sought, through an interlocutory application, release of the detained Rohingya refugees and a direction to the government to not deport them. The present petition was therefore an interlocutory application in the main case. 

Holding: The petitioners argued that despite India not being a signatory to the 1951 Refugee Convention, the principle of non-refoulement is part of the right guaranteed under Article 21 of the Constitution. 

The Supreme Court dismissed the plea and ordered that the detained refugees be deported, following proper procedure. The court stated that, “the right not to be deported is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e).” (paragraph 13), implying that India is not bound by the principle of non-refoulement. It also acknowledged the government’s concerns that refugees posed threats to internal security and would lead to increase in illegal immigration. 

Significance: While the Supreme Court’s decision can be understood as implying that the principle of non-refoulement is not a part of Article 21, this was not explicitly stated in the court’s order. So, it would be incorrect to say that the present case lays down an authoritative position of law with respect to non-refoulement and Article 21. 

The court’s decision is only an interlocutory order, and therefore should not be considered as laying down a ratio, as was also correctly noted by the Manipur HC in Nandita Haksar v State of Manipur (our analysis here). The issue of non-refoulement is a substantial question of law, and should be decided by a proper Constitution Bench. The petitioners’ arguments of Article 21 and non-refoulement amounted to a substantial question of law, which should have been referred to a Constitution Bench in line with Article 145(3). Instead, it was determined by a division bench in a mere interlocutory order. 

The court locates the right to not be deported within Article 19(1)(e), a misinterpretation of the petitioners’ arguments. The petitioners did not argue for a total right against deportation, they argued that that the refugees had a right not to be deported to a country accused of genocide against them. Deporting them would violate their right to life under Article 21, which is guaranteed to all persons. 

Further, the court acknowledged that, “National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law.” (paragraph 12), but in its order, it referred to no such sources of law. Nothing in Indian law contravenes the principle of non-refoulement, and therefore, by the court’s own reasoning, it had the leeway to read non-refoulement into Indian law which it did not do. The court disregarded the fact that other international treaties that India is a party to, such as the ICCPR, encapsulate the principle of non-refoulement and will stand breached if the refugees are deported. Such a breach would also violate Article 51 of the Constitution, which calls for honouring international treaty obligations. 

By disregarding international conventions, the Supreme Court also contradicted its own judgement in Vishakha v. State of Rajasthan, wherein it had held that international conventions that are consistent with fundamental rights must be read into the Constitution. 

The decision also represents a break from several High Court judgements that have read non-refoulement into Article 21. The Gujarat HC in Ktaer Abbas Habib Al Qutaifi v. Union of India, and the Delhi HC in Dongh Lian Kham v. Union of India, have both held non-refoulement to be a part of Article 21. Both cases involved refugees from different nations seeking protection against deportation. 

The court’s acceptance of the national security argument is also flawed and stands in contrast to the Manipur HC’s treatment of a similar argument advanced before it in Nandita Haksar v. State of Manipur. Unlike the present case, in Nandita Haksar, the Manipur HC concluded that the petitioners, Myanmarese refugees seeking safe passage to UNHCR, represented no threat to national security. In order to reach this conclusion, the court examined several documents of the petitioners, noting the circumstances under which they had sought refuge in India. However, in the present case, the Supreme Court undertook no such examination and seems to have relied on the government’s unsubstantiated arguments.

Resources:

  1. Gautam Bhatia, Complicity in Genocide: The Supreme Court’s Interim Order in the Rohingya Deportation Case, Indian Constitutional Law and Philosophy, April 2021.   
  2. Shriansh Jaiswal and Ananya Kumar, India’s Response to Rohingyas, Jurist, July 2021. 
  3. Malcolm Katrak and Shardool Kulkarni, Refouling Rohingyas: The Supreme Court of India’s Uneasy Engagement with International Law, Journal of Liberty and International Affairs, June 2021.

This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and the latest developments in citizenship law and adjudication in India. This note was prepared by Radhika Dharnia.

Hostile Territory: Behind the Indian Government’s Response to the New Refugee Stream from Myanmar

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. 

Shifting attitudes 

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.

Counter-attitudes

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.

Judicial Interventions 

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.