FIR, Arrest of Myanmar Nationals in Manipur: Why India Needs a Refugee Law

India is not a signatory to the 1951 UN Convention, nor does it have a refugee policy, or a refugee law of its own.

The Mizoram National Front (MNF) government, led by Zoramthanga, had welcomed these refugees as fellow brethren invoking a common indigenous lineage and deep ethnic bonds despite the Centre's order to close its border following the coup in Myanmar.

(Photo altered by The Quint)

No one in 1988, who witnessed the extension of the Manipur government's compassionate hand to Myanmarese refugees, could have predicted the events that unfolded on 28 June 2022 at Churachandpur, Manipur.

On 28 June, Myanmar nationals, including children fleeing the Military Junta, were apprehended by the state's police signaling another possible collusion between New Delhi and the military junta in Naypyidaw.

Later on 10 August, the police reported that five Myanmar nationals, including a woman, were arrested again, after observing due formalities in Churachandpur, for illegal intrusion.

Further investigation is ongoing, and a First Information Report (FIR) has been registered under section 14 of the Foreigners Act. Since the Myanmar nationals could not produce any documents of identity and citizenship of any sort, they were arrested, claimed Manipur Chief Minister N Biren Singh.

In an interesting juxtaposition, its neighbor Mizoram, which shares a 510-km long border with Myanmar, sheltered more than 20,000 Myanmarese refugees across its 11 districts as of February 2021.

The Mizoram National Front (MNF) government, led by Zoramthanga, had welcomed these refugees as fellow brethren invoking a common indigenous lineage and deep ethnic bonds despite the Centre's order to close its border following the coup in Myanmar.

Non-Governmental Organisations (NGOs) like the Young Mizo Association (YMA), the Church and Civil Society Groups, and the state government have been at the forefront of providing the refugees with food and shelter.

Domestic Debate on Refugees in India

India has been a host to refugees from various parts of the world in the past. Nearly 3,00,000 people are categorized as refugees in the country. But India is not a signatory to the 1951 United Nations Convention or the 1967 Protocol, nor does India have a refugee policy or a refugee law of its own. These unprecedented events have revived the domestic debate on refugees in India.

The duty of the state to protect and safeguard the interest of refugees goes beyond the formal principles laid out in its legislature, the Refugees Convention (1951), or in other forms, such as the international human rights law.

While they are essential, refugee laws, on their own, do not carry a strong legitimacy unless they are grounded in ethically more affluent, more robust, and demanding principles of justice.

Lack of a Legal Framework for Refugees

India's response to the refugee problem, as it exists today, is not entirely devoid of such backing and can be characterized as one that relies on what Michael Walzer called the "duty of mutual aid." This is the "charitable" or "humanitarian" idea that a state must assist refugees simply because they need our help.

It also makes any prior political relationship for such assistance irrelevant and leaves the state with considerable freedom to cherry-pick whom to assist, when, and in what way. But this leaves us with a problem.

If India is actually a mature democratic state, or if it harbors any desire to become one, can it rely on a shallow arrangement that grounds ad-hocism and legitimizes discrimination?

India is not a part of the 1951 Refugee Convention and does not ratify the 1967 Protocol. All refugees in India are swept under the same blanket as illegal immigrants or 'foreigners' (as per the Foreigners Act, 1946).

The lack of a legal framework for refugees is something that shows callousness on the part of the government to commit the categorical mistake of treating – say, a person who has fled for her life from the repressive junta in Myanmar, the same as someone who left his native place in Bangladesh in search of better opportunities in India.

This is not to trivialise their economic hardships or even to treat one as superior over the other, but to suggest that a proper definition of a 'refugee' is essential. Moreover, such a definition would necessarily have to show why a heavier moral duty is owed to refugees than just any other "foreigner". But why so?

The short answer is that refugees are borne out of a more pressing circumstance.

While the longer answer, we believe, invites us to delve deeper into the principle of non-refoulement. Non-refoulement, as per Article 33 of the Refugee Convention, prohibits contracting States from expelling or returning refugees to a country "where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion."

Moral Sanction or State Control?

Besides this, the principle is also a widely accepted international customary law that applies to persons already present within a territory and those who seek entry into it.

This may suggest two things – one, the principle of having extra-territorial acceptance is based on an underlying moral sanction and two that the opposite of it, that is, the ability to deny entry or asylum can be read as an extension of the state's control over extra-territorial subjects, albeit not in absolute terms.

As a moral question, the principle of non-refoulement explicates a puzzle very much like the "drowning child analogy" given by Peter Singer in his essay "Famine, Affluence and Morality (1972)."

In the scenario of a drowning child, most people would come to aid, even if at some cost to themselves. This is because one would hardly deny any drowning person safe harbour given their pre-political right to life, as it were, and more so, if the person drowning is considered someone with whom you share common cultural and ethnic linkages, as was the reasoning given by the Government of Mizoram.

In such a case, violating the principle would be the moral equivalent of harm, or in the more extreme case, even murder.

Much of how India handles its refugees is disappointing. If the state indeed has a say over the lives of its refugees when they come to seek its protection, or more, if they are subjected to the laws of the land in whatever form, does this not mean that the state owes a duty for their protection and to accord them legal protection?

Duty Owed by the State

By enjoying a monopoly on the legal use of force over refugees and their citizens, the state must establish a normative relationship with its refugees. This is for the same contractual reason that a citizen who surrenders their pre-political rights is secured protection from the state.

The duty that the state owes to its refugees becomes one of the many essential conditions of the state for its legitimacy.

This duty cannot by default grant refugees the same rights – such as citizenship – guaranteed to its citizens unless India has independent reasons of its own to do so in the long run.

This would amount to owing them more than their immediate claim to "sanctuary", as was argued by David Miller. With any better opportunity, most refugees would prefer to re-establish themselves in their home country, where they led a more complete, moral, and social life.

Further, it is difficult to argue that a state is always obliged to give protection to refugees. To begin with, not all refugees are in a situation as catastrophic as the Myanmarese experience.

It seems unlikely that in a non-ideal world, India would want to posture itself as a sort of Shangri-La for all the refugees out there when it has other strategic and financial interests.

In any case, it seems unlikely that India would see an end to its refugee problem soon, given the precarity of its surrounding neighbourhood.

Although it's hard to know if any sustainable remedy exists to what may seem like an intractable crisis, we believe India could be in a much weaker position without any appropriate legal or policy measures that systematically address the issue.