India, along with Bangladesh, was the only democracy among eight countries that attended a military parade in the capital Naypyitaw on March 27 to mark Tatmadaw Day or Myanmar’s ‘Armed Forces Day’. No doubt, such attendance also gives certain validation to the military coup that was staged nearly two months ago to depose the Aung San Suu Kyi’s government. Other countries to attend the military parade were China, Russia, Pakistan, Bangladesh, Vietnam, Laos and Thailand. While China, Thailand, Vietnam and Laos don’t have democracy, Pakistan and Russia’s democratic electoral process harbour suspicions and mistrust. The incapability of the international community to stop the massacre, is allowing Military of Myanmar’s military to get away with the murder of hundreds of protestors. Though US and western democracies are issuing warnings, calling off trade ties and imposing economic sanctions, regional powers such as India, China and members of ASEAN are silent on the issue.

Military chiefs of nearly a dozen nations such as the US, Canada, Australia, Germany, Japan, Italy, Greece, the United Kingdom, Denmark, Netherlands, Republic of Korea etc. have condemned the Myanmarese military for excessive use of force against the protesters and called Myanmar to follow international standards of military professionalism. The first statement from the External Affairs Ministry of India came on 1st February and since then it has maintained silence and been cautious. Surprisingly, to oppose the UN Security Council (UNSC) resolution drafted by the United Kingdom for more robust action against the military junta, democratic India has also joined countries like Russia China and Vietnam. Interestingly, the Union Government has also directed bordering states and the Assam Rifles to block the inflow of Myanmar nationals by sealing the border. They’ve ordered to push back fleeing dissidents as the refugee crisis looms large. India is already home to some 16,000 Rohingyas refugees who fled the Rakhine province of Myanmar following the military crackdown (whereas India’s own estimate is that over 40,000 Rohingya refugees are living in the country). 

Unlike European countries or the US, Myanmar is India’s immediate neighbour sharing a 1,600 km long border which might also be a reason it is reluctant to play a role in the ongoing crisis.. China’s presence in Myanmar is also a concern for the Indian government and it does not want to further push the military junta into the arms of the Chinese. Protesters have already initiated the nationwide boycott of Chinese goods and India has both strategic and commercial interest in Myanmar in terms of capturing their market. Traditionally,  India has also enjoyed a close relationship with the regimes in Myanmar, especially the military. Indian Army and Myanmar’s military have a long history of fighting insurgencies together to bring peace specifically to the north-eastern states. It has forced India to walk a tightrope because of its interest and need of Tatmadaw to fight the insurgencies in Northeast. Upsetting Tatmadaw can provoke inaction against the rebel groups from India’s Northeast based in Myanmar’s Sagaing Division.

Refugee Policy In India

The United Nations High Commissioner for Refugees (UNHCR) on March 31 2021, issued a statement directing all the neighbouring countries of Myanmar to offer protection as well as refuge to people who are fleeing the country for their safety and wellbeing. 

The Manipur government released the order on March 26 to restrict the state from offering food or shelter to refugees that came from Myanmar. The order further clarified that only medical shelter or services could be granted to the refugees in case of ‘grievous injuries’ on “humanitarian grounds”. As soon as the order was released in the public domain it faced strong criticism, and therefore, in the chaos of all this criticism, the Manipur government decided to issue a revised order later, which was sent on March 29. In the revised order, the authorities clarified that their intent was misconstrued and misinterpreted. They have ensured that the state government is taking all humanitarian steps such as treating injured Myanmarese nationals at Imphal.

In contrast to what Manipur did, Mizoram, another eastern state followed a completely different way to tackle the current scenario. Mizoram’s Chief Minister Zoramthanga has asked the Centre to accept all the incoming refugees from Myanmar that cross the international border. Though, such issues are collectively dealt with by the administrative power of New Delhi, but at a time like this when it seeks support globally, countries should not elude  the humanitarian responsibility which majorly includes ‘fulfillment of food, shelter and medical care to refugees’. 

Though India is not a party to the UN Refugee Convention of 1951 and its 1967 Protocol nor inclined towards any convention or treaty, there seems to be an under the belt principle which has been formally laid down under 1951 Refugee Convention, and is also covered under customary international law guidelines that are now being followed by the nations. However, India is a signatory of the UN Convention Against Torture (UNCAT) and Article 3 of the UNCAT contains a clear provision against return or extradition of a person “to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture”. Similarly, the provision of “right to be free from torture or other cruel, inhuman or degrading, treatment or punishment” has been laid down in the International Covenant of Civil and Political Rights (ICCPR), drawing reference from Article 7 ICCPR. It can also be constructed with the help of the Human Rights Committee in its General Comment No.20 to include ‘protection against refoulement’. 

The International Law has a clear stand on non-refoulement in consonance to which Indian courts have also not shied away from captivating non-refoulement to be a part of Article 21 of the Indian Constitution. The same has been reflected in the landmark cases of Ktaer Abbas Habib Al Qutaifi v. Union of India and Dongh Lian Kham v. Union of India. In the past years, innumerable refugees from Myanmar have found respite within the territory of India, including those both registered and unregistered with UNHCR. Surprisingly, during the pro-democracy movement, in the year 1988, India opened its gates for people coming from Burma, and several refugee camps were opened for student activists in Manipur and Mizoram. 

Criticism over handling Rohingya Refugees 

Hundreds of Rohingyas including women and children were summoned by police as a part of a “verification” exercise and others were picked up during raids on camps on the outskirts of Jammu city where about 5,000 Rohingya live. India has also faced criticism due to its harsh response towards thousands of desperate Rohingya refugees. It is currently playing a game of issuing contradictory directives to North-Eastern border states. By not accepting and throwing asylum-seeking Chin and Rohingya refugees, India has not only lost its dignified position in the international community but is also losing the support of its own people living near the border. 

A straightforward stand on the military coup is touch and go due to the multi-faceted background of the India-Myanmar relationship. Such strategic considerations have completely overshadowed the pure humanitarian grounds. If Delhi continues to turn its back and refuses aid to a few hundred refugees, it might soon run short of favours in its own strategic backyards. 

Dikshi Arora is a second-year law student at Rajiv Gandhi National University of Law, CPL 2021-22 Public Policy Fellow and Columnist for Centre for New Economics Studies, O.P. Jindal

Global University. 

Riya Aggarwal is a second-year law student at Dr. DY Patil College of Law and legal content writer for Law Sikho.