No one leaves home unless
home is the mouth of a shark.
you only run for the border
when you see the whole city
running as well...

— Warsan Shire, a British Somali poet.

Mizoram Chief Minister Zoramthanga has announced that his government will provide food and shelter to Myanmar refugees who came to India following the military coup in the country. Why has his decision, which is based on basic humanitarian principles, become a point of controversy?

Among the 700 or more Myanmarese people who have taken shelter in Mizoram are 19 policemen who did not want to be a party to the brutal killing of their fellow citizens. These people were compelled to leave their country. If they would have not carried out the orders of the military, they would have been arrested, tortured and possibly executed for the crime of supporting the movement for democracy in Myanmar.

The Central government has directed the Mizoram government not to allow anyone from neighbouring Myanmar to enter India and, if necessary, to push them back to their certain death. The Centre has reminded the Mizoram government that the state government has no power to issue refugee certificates.

Foreigners without documents

Under Indian law, people seeking refuge are defined as “foreigners” under the Foreigners Act, 1946 and are liable to be arrested or deported if they enter the country without valid travel papers. According to the Foreigners (Report to the police) Order, 2001, made under the Foreigners Act 1946, anyone giving shelter to such a foreigner has to report him or her to the police within 24 hours.

But what if a foreigner is seeking asylum in our country? In other words, what if he or she is a political refugee seeking asylum in our country? What is the definition of refugee?

Defining refugee

A refugee is a special category of foreigner who is compelled to seek refuge in another country because of persecution in the country of their origin.

According to Article 1(A)(2) of the 1951 United Nations Convention, “the term ‘refugee’ shall apply to any person who …..owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.

But India is not a signatory to the UN Convention on Refugees. So is India bound by the provisions of the UN convention?

It is true that India is not a signatory to the UN Convention of Refugees, 1951 and India does not have any domestic laws to protect refugees. But that does not mean that foreigners seeking refuge in India do not have any right to legal protection under the Indian Constitution.

Rohingya refugees rest at a temporary shelter in New Delhi. Photo credit: AFP

Constitutional protection

First of all, all people living within the borders of India, including foreigners, migrants, refugees, have two very important rights under the Indian Constitution. The rights under Article 14 and Article 21 of the Constitution are available for all persons, whether they are citizens or foreigners, whether they are legally inside the country or not.

Article 21 of the Constitution of India states that no person shall be deprived of his life or personal liberty except according to procedures established by law. It could be said that the “procedure under the law” allows foreigners who have come into our country to be deported back to their country of their origin. However, the question is what if the deportation would result in the person being arrested, tortured and possibly executed?

Here comes the protection of Article 14 of the Indian Constitution. Article 14 states: “The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” This is a protection against the arbitrary use of the law, procedures and abuse of state powers.

Human rights lawyers have successfully argued that Article 14 and Article 21 of the Constitution, in fact, protect a foreigner seeking refuge from deportation because such deportation would lead to the deprivation of his or her life and liberty and would amount to an arbitrary procedure depriving the refugee equal protection of the law.

Non-refoulement principle

The basic protection for anyone seeking asylum under any refugee law is the right to non-refoulement.

The principle of non-refoulment prohibits nation-states from transferring or deporting individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment or other serious human rights violations.

Non-refoulement is a right under refugee law which is a part of international humanitarian law. But since deportation could lead to torture, imprisonment and other human rights violations the prohibition of refoulement is explicitly included in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Convention for the Protection of All Persons from Enforced Disappearance.

India is a signatory to international human rights treaties and is under obligation to respect basic human rights principles.

The courts have accepted these arguments and have recognised the rights of a refugee in India. But the problem still remains. If a person is allowed to stay, what legal documents will one have to prove that he or she is not an illegal foreigner?

A Tibetan living in exile attends an event to mark the 61st anniversary of the Tibetan uprising in McLeod Ganj. Photo credit: Sajjad Hussain / AFP

Refugees in India

Although India does not have a domestic refugee protection law, it has welcomed lakhs of refugees from all over the world – starting from Tibetans from China, Chakma and Hajong from what used to be East Pakistan, Burmese refugees in 1990, Afghan refugees, a small number of refugees from African countries such as Somalian, Ethiopian and refugees from Iran, Iraq and other West Asian countries.

In each case, the Indian government found different solutions. In the case of the Tibetans, India issued identity cards, but for the most part, the country allowed the United Nations High Commission for Refugees to offer protection under its mandate.

This meant the UNHCR would ascertain whether a person is qualified to be a refugee and then issued them an identity card, helped them with a stipend, and often resettled the refugees in third countries. Many thousands of Burmese refugees who fled from their country during the military crackdown in 1990 were allowed to stay in India and later resettle in other countries such as Norway, the United States and Australia.

The Burmese had crossed into Manipur and Mizoram where the local people had welcomed them, and extended to them solidarity by providing shelter, food and other material help. It is in that tradition that the Mizoram chief minister extended his help and the people in the North East are welcoming refugees from Myanmar.

Giving shelter to the refugees is a humanitarian act that is not necessarily a reflection of Indian foreign policy. Shelter to refugees is never considered a hostile act. Therefore, if India decides to officially support the military regime in Myanmar, it does not stop it from offering refuge to those who seek refuge in Indian democracy.

India is a country where the Hindu shastras have spoken of the world being one human family, or Vasudhaiva Kutumbakam. It is a core principle of Hindu culture and it would be a wonderful way to demonstrate the principle by extending our hospitality and love to our neighbours.

Nandita Haksar is a human rights lawyer and author, most recently, of The Flavours of Nationalism.