India shares a 1,643-km-long border with Myanmar which touches Arunachal Pradesh, Nagaland, Manipur and Mizoram. The ministry of home affairs (MHA) has written to the chief secretaries of Nagaland, Manipur, Mizoram and Arunachal Pradesh to ‘take appropriate action as per law to check illegal influx from Myanmar into India.’ The directive dated February 25 came after nearly a month after the military coup in that country.

The MHA reminded the state governments that they have no powers to grant ‘refugee status to any foreigner’ and India is not a signatory to the United Nations Refugee Convention of 1951 and its 1967 Protocol. The letter to the Northeast states reminded them of the 8 August 2017 circular ‘Wherein instructions were issued to sensitise 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 latest MHA letter also mentioned another set of guidelines to states sent on 28 February 2018 ‘advising them to sensitise the law enforcement and intelligence agencies for taking appropriate prompt steps for identifying illegal migrants, their restrictions to specific locations as per provisions of law, capturing their biographic and biometric particulars, cancellation of fake Indian documents and legal proceedings including initiation of deportation proceedings as per provisions of law.’

The MHA letter’s central concern is the danger of a flow of illegal migrants especially since this has been a sensitive issue in the Northeast and has led to large scale unrest in the recent past especially after the passing of the Citizens Amendment Act 2019 and the demands for National Register for Citizens by various Northeast states.

However, the influx of people from Myanmar in the wake of the military coup on 1 February 2021 do not consist of illegal migrants but refugees escaping the brutalities of a military rule and wanting asylum in democratic India. A refugee is very different from a migrant, whether legal or illegal.

The people in the Northeast states have already welcomed the refugees, providing them with food, clothes and shelter. The Nagas in Nagaland have raised funds to support the Nagas of Myanmar, the Kuki-Chin-Mizo tribes have been supporting the Chin refugees from Myanmar and in Manipur all the communities have welcomed the refugees from the neighbouring Myanmar.

Both the chief ministers of Mizoram, Zoramthanga, and Manipur, N Biren Singh, have openly stated that they intend to extend all humanitarian assistance to the refugees coming from across the border. The two chief ministers come not only from different political parties but different backgrounds too; while the former is the president of the Mizo National Front which during the 1960s led the insurgency against India, Biren Singh was once a member of the Indian National Congress until he joined the BJP.

Zoramthanga even held a virtual conference with the Myanmar foreign minister, Zin Mar Aung, in the government in exile of Aung San Suu Kyi’s National League for Democracy on March 21. He subsequently tweeted: ‘Had a fruitful meeting (online) this morning with Zin Mar Aung, Hon’ble Foreign Minister, Myanmar. Our thoughts and prayers are the #Myanmar in these trying times.’

The chief minister of Manipur issued a Confidential Memo on 29 March 2021 clarifying that the government of Manipur would continue to extend all humanitarian assistance to the Myanmar refugees.

The matter of recognition of refugees is beyond party interests and is a truly humanitarian one as demonstrated by the peoples of the Northeast and the elected state governments.

It is true that India is not a signatory to the UN Convention on Refugees 1951. The reasons for the refusal to be a party to the Convention lie in the Cold War politics and also the lack of support to India dealing with a massive refugee influx in the aftermath of the Partition and later the denial of international solidarity to the refugee influx during the Bangladesh war for liberation.

India does not have even a domestic law for the protection of refugees, yet India has welcomed hundreds of thousands of refugees not only from our neighbouring countries but from all over the world. Even though India did not officially recognise the office of the United Nations Humanitarian Convention on Refugees (UNHCR), until recently the organisation was able to function and grant protection to refugees under its mandate working under the UNDP.

The first major influx of refugees from Myanmar came in the wake of the national uprising in August 1988 and the subsequent military crackdown in 1990 when the Tatmadaw, the Myanmar military did not allow Aung San Suu Kyi to form a government even though she had led her party to an overwhelming electoral victory. Instead, the Myanmar military put her under house arrest, and she spent some 15 years under arrest. Hundreds of people dissenting were arrested, tortured and detained for years.

At that time too Mizoram and Manipur received the refugees. Having allowed the Burmese to enter at one time they were given identity cards and confined to camps. But the students who tried to leave the camps were arrested and put into jail for violation of Foreigners Act as they had entered the country illegally without a valid passport or visas.

It was then I filed several cases in Imphal and before the Guwahati High Court seeking relief for the refugees. The first case was of a 33-year-old Mizo woman from Myanmar, Zothangsangpuii who was in the jail in Imphal. I had argued that under the Indian Constitution even foreigners have rights under Article 21 (life to life and personal liberty) and Article 14 (right to protection from arbitrary use of law). I argued that if Zothangsangpui was deported she would be detained and in all likelihood tortured which would violate her right to life guaranteed under the Indian Constitution. She should be allowed to go to Delhi and seek protection under the mandate of the UNHCR.

In Zothangsangpuii case, Civil Rule No 981 of 1989 Justice Phukan (who subsequently became a Supreme Court Judge) stated in his Order of 20 September 1989: ‘We are of the view that the petitioner deserves some sympathy, and as such, we have to give suitable directions to enable her to go to Delhi for the purpose of seeking political asylum as stated in the petition.’

Without explicitly stating it the court had accepted the principle of non-refoulement or right not to be deported which is the core right for refugees. The problem was of the funds to take Zothangsangpuii from Imphal to Delhi because there was no provision for such funds and in that case the court gave me her custody.

This case set a precedent and I was able to help other Burmese refugees who then lived in Delhi for several years. Some of them were resettled in other countries especially Europe, North America and like Zothangsangpuii, in Australia. But there were many who returned to Myanmar after a semblance of democracy was restored and have continued to live there.

One of them who went back to Myanmar was Soe Myint and his case illustrates how the issue of refugee protection is truly above party politics and a humanitarian one. In 1990, world attention was focused on the Gulf War and the Burmese activists fighting brutal repression felt totally isolated. Two of these activists were students who had to leave their homes and take shelter with the Karens, a minority nationality which has long been fighting for independence from the Burmese Union. The two students decided to hijack a Thai Airways plane to focus world attention on the Burmese movement for democracy and with one demand: release of their leader Aung San Suu Kyi.

On 11 November 1990, the two hijacked a Thai Airways flight from Bangkok leaving for Rangoon (as it was then) and diverted it to Calcutta. They knew hijacking was a serious crime and they could well spend most of their life in an Indian prison. But they were willing to do so just for the right to hold a press conference in which they spoke of the condition of their people and arrest of their leader.

Both of the hijackers were released on bail within a few months when some 30 Indian members of Parliament made an appeal on their behalf. Soe settled in Delhi from where he started Mizzima, an online media network. The UNHCR even recognised him as a refugee within its mandate.

Meanwhile, Indian defence minister George Fernandes had opened his official home to the Burmese refugees. First his office was occupied by the Burmese, then one bathroom next to office was turned into a studio by a Burmese artist and then his entire home was more or less taken over by the Burmese. The only time he objected was when the Burmese started to play table tennis next to his bedroom at night on a table gifted to them by the wife of the British High Commissioner.

Mizzima came to get international recognition and when the Myanmarese Junta put pressure on the government of India to put the hijacker on trial, then all forces came together to ensure that Soe Myint would not spend the rest of his life in an Indian prison. There were appeals from every party against putting the two hijackers on trial. Even George Fernandes wrote to his staunchest political rival, Jyoti Basu, the veteran Communist leader and chief minister of West Bengal, appealing on behalf of the two hijackers. Justice Krishna Iyer, by then retired from the Supreme Court, also made an appeal on behalf of the hijackers and said an acquittal would uphold their right to life and personal liberty.

The trial did take place but the courts acquitted Soe Myint (the other hijacker was already abroad) of hijacking charges. When Aung San Suu Kyi was finally released in 2010, Mizzima carried a cover story in celebration. Two years later, Soe Myint and the Mizzima team returned to Yangon. Mizzima was the first exile-based media house to return. In 2019, Prasar Bharati signed a contract with Mizzima to share content and extended all help to Mizzima by offering free rights to broadcast Hindi movies with Burmese subtitles.

Just when Soe Myint was hoping his country would become a real democracy, the military staged a coup. On the first day of the coup, it revoked Mizzima’s TV license. The military raided the Mizzima office but Soe and his team were already in their hideouts from where they continued to broadcast. However, now two of the Mizzima journalists have been picked up.

Soe Myint cannot understand why India is turning away the Burmese from its borders when at one time he had been welcomed so warmly. Mizzima journalists are reporting under dire circumstances and the military has already bombed the region in which they are hiding. The villagers in the area have fled. Some friends from inside Myanmar said, ‘Soldiers are roaming in the streets and randomly shooting everything that moves. They are even using RPG (the launcher) to shoot grenades at the people.” There are snipers on top of buildings taking shots at the youth protesting peacefully, singing their songs and giving their three finger salutes demanding civil rule be restored.

And now, they will start shutting down the only remaining internet connections (wi-fi) service. They have already killed the phone internet service. It is going to be a total blackout.

Those who have lived under military rule in the past know how much suffering is in store for their people. The Assistance Association for Political Prisoners has kept some basic accounts; on March 30 it has recorded that 521 persons have been killed and 2,608 have been detained. There are thousands of internally displaced persons, but the protests are growing stronger and bigger.

India does not wish to antagonise the military junta because of the volatility of the Indo-Myanmar border. Several insurgents from north-eastern groups take shelter in Myanmar, while many insurgents from Myanmar are in India. But giving protection to the protestors taking refuge in our country is a basic human right. Whether it is students, or the policemen who refused to shoot at peaceful demonstrators or villagers fleeing from the Tatmadaw.

The act of giving asylum to refugees cannot be construed as a hostile act by the Myanmarese military because it is a purely humanitarian one of giving food, clothing and shelter to people escaping a crisis. It is a part of India’s obligation to uphold basic principles of international human rights and humanitarian law; principles which have been upheld by the courts in India.

(The writer is a human rights lawyer and author of several books.)