Table of Contents
Introduction
Recently, elections were held in Myanmar and nearly 80% of the vote was in the favour of The National League for Democracy party which was headed by Aung San Suu Kyi. This was the third general election since the country’s new constitution was adopted in 2008. The Myanmar military-backed opposition Union Development and Solidarity Party refused to recognize the humiliating defeat. As a result, the Myanmar military said that Aung San Suu Kyi’s landslide win in the general elections was based on fraud and illegal activities. During her election campaign, the Myanmar military accused her of possessing illegal walkie-talkies and violating the COVID restrictions. More than 10.5 million ballots were allegedly forged, according to the military. The Myanmar election commission, on the other hand, continued to support the election results and denied all charges. If the coup had not occurred, the election results would have been approved by the new Parliament.
On the 1st of February 2021, the military declared a coup on the military-owned Myawaddy news channel. According to the news channel, the military has the authority to declare a national emergency under the 2008 Constitution. The military declared a one-year state of emergency and detained several NLD officials, including State Counsellor Aung San Suu Kyi and President Win Myint. The leaders were apprehended and held in Myanmar’s capital, Naypyidaw. The military even imposed a night-time curfew. Domestic television outlets were shut down, and banks were forced to close.
India-Myanmar Relationship
The November 8 elections were hailed by India as a move toward “democratic change in Myanmar”. India maintains strong diplomatic and economic relations with Myanmar and has expressed “serious concern” about the country’s current situation. Myanmar is bordered by four Indian states in the northeast (Arunachal Pradesh, Nagaland, Manipur, and Mizoram). In Myanmar, India has also undertaken several initiatives, including the Kaladan Connectivity Project. India has given Myanmar $1.75 billion in development aid and is currently working on a road project that will link India and Thailand through Myanmar. It is also assisting Myanmar in its battle against the coronavirus pandemic, having provided the country with 3.7 million vaccine doses. The Myanmar military, on the other hand, has aided India in combating insurgency in India’s north-eastern states.
The Free Movement Regime
The India-Myanmar border has a unique arrangement in a place called the Free Movement Regime (FMR). The FMR allows tribes living along the border to travel 16 kilometers across the border without requiring a visa. While the FMR has aided the tribes in maintaining their long-standing relations, it has also become a source of concern for security officials, as its provisions have been abused by Indian insurgents to cross into Myanmar without restriction and create safe-havens. Another clause of the FMR, which allows tribal people to carry headloads, has been misused to smuggle in narcotics, guns, and other contraband.
India’s response to the military coup
Following the coup, many Myanmar police officers fled to the Indian states of Mizoram and Manipur, claiming they were being persecuted in Myanmar. Myanmar’s government, on the other hand, has asked India to send the police officers back to Myanmar. If a large number of people move from Myanmar to India, a new crisis will emerge. Myanmar’s peace and prosperity are certainly a source of concern for India.
Why India has sealed all the Myanmar borders?
No one is allowed to enter India from Myanmar after the MHA directive, and the Assam Rifles, the border guarding force there, is keeping a close eye on things, according to a second local official. However, the border is porous, and unlike the Bangladesh border, which is fenced for over 60% of its length, the Myanmar border is unfenced, making complete closure impossible due to the difficult terrain. Myanmar and Mizoram share a 510-kilometer boundary.
India has sealed all entry points along its border with the Southeast Asian neighbor and is closely monitoring to prevent any Myanmar nationals from entering the country as around 300 Myanmarese nationals, including several police officers, crossed into India and sought refuge and at least 1000 people who were from chin state of Myanmar had crossed the Indian border after the Myanmar military overthrew the democratically elected government on February 1. Also, India’s Ministry of Home Affairs (MHA) has written to the governments of four northeastern states – Arunachal Pradesh, Nagaland, Manipur, and Mizoram – to “check illegal influx from Myanmar into India.”
Mizoram chief minister Zoramthanga on Sunday held an online meeting with Myanmar foreign minister in exile Zin Mar Aung for the same as chins are ethnically related to the mizos.
It is a difficult situation for central agencies and Assam Rifles on the ground to strike a delicate balance between implementing MHA orders and maintaining cordial ties with state agencies and locals.
The International law of Asylum
Asylum has derived from a Greek term that means “freedom from seizure”. Asylum has no precise meaning, but it can be defined as legal protection given to people who have fled their home countries due to war, conflict, persecution, or the threat of persecution. It is a possibility to stay in a country indefinitely or for a limited period. An ‘Asylee’ is an individual who seeks international asylum, also known as an asylum seeker.
Few declarations provide the ‘Right to Asylum’ like the Vienna Declaration on Human Rights, the Universal Declaration of Human Rights (UHDR), and Programme of Action, and the Convention on Political Asylum which was concluded by the Seventh International Conference of American States in 1933.
- Article 14 of the Universal Declaration of Human Rights: Individuals have the right to seek asylum in any country to avoid persecution under Article 14 of the Universal Declaration of Human Rights. As stated in clause 2 of Article 14, anyone with a criminal record that is incompatible with UN values is not eligible for asylum, and asylum may be refused for non-political reasons. It is regarded as the most important regulation. India, on the other hand, is not a party to it.
- Article 33(1) of the 1951 Refugee Convention forbids the expulsion or return of refugees and asylum seekers if their life or freedom is threatened based on their ethnicity, faith, social group membership, political opinion, or nationality.
- New York Declaration for Refugees and Migrants also reaffirms the “right to seek asylum” as well as an individual’s freedom to leave or return to their home country in the 2016 UN general assembly.
- Article 18 of the European Union’s Charter of Fundamental Rights also states that the right to asylum is guaranteed as per the Geneva Convention (28 July 1951) and its 1967 Protocol.
- In 1993, the Vienna Declaration and Programme of Action reaffirmed people’s rights to seek and receive asylum in other nations, as well as their right to return home.
The articulation of the law of the right to asylum, on the other hand, indicates that it is the state’s right to grant asylum. It is a matter of the state’s discretion to provide asylum or not. The state’s decision must be upheld by all other states. Before granting asylum, states must consider their economic situation, since it is the state’s responsibility to maintain economic stability.
India’s International Commitments
A specific and independent law to control refugees does not exist in India’s statute book. In the absence of such legislation, all existing Indian statutes, such as the Criminal Procedure Code, the Indian Penal Code, the Evidence Act, and others, apply to refugees. India is a signatory to several United Nations and World Conventions on Human Rights, Refugee Issues, and Related Matters, despite not being a signatory to the 1951 Refugee Convention or the 1967 Protocol. In 1995, India was elected to the Executive Committee of the High Commissioner’s Program (EXCOM).
The EXCOM is a United Nations organization that approves and monitors UNHCR’s material assistance program. EXCOM membership demonstrates a keen interest in and contribution to refugee issues. India voted in favor of ratifying the Universal Declaration of Human Rights, which guarantees rights to all people, both citizens and non-citizens. In 1967, India voted in favor of the UN Declaration of Territorial Asylum. The International Covenant on Civil and Political Rights (ICCPR)[12] and the International Covenant on Economic, Social, and Cultural Rights (ICESCR)[13] were both ratified by India in 1976. In 1989, India ratified the United Nations Convention on the Rights of the Child. In 1974, India ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which contains a legally binding requirement (Article 1). India agreed to the concept of non-refoulment as outlined in the Bangkok Principles of 1966, which were created to provide guidelines to member states on issues relating to refugee status and treatment. Repatriation, restitution, granting asylum, and the basic quality of care in the state of asylum are all covered by these Principles.
Constitutional Protection
Under the Indian Constitution, all citizens living within India’s borders, including immigrants, migrants, and refugees, have two very significant rights i.e., Article 14 and 21. Articles 14 and 21 of the Constitution provide rights to all people, whether they are citizens or foreigners, and whether or not they are lawfully present in the country.
Article 21 of the Indian Constitution states that no one’s life or personal liberty can be taken away from them unless they follow legal procedures. It could be claimed that the “legal process” requires foreigners who have entered our country to be deported back to their home country. However, what if the individual is detained, tortured, and likely executed as a result of their deportation?
Article 14 of the Indian Constitution comes into play here. “The state shall not deny to any individual within the territory of India equality before the law or equal protection of the laws,” according to Article 14. This is a safeguard against the arbitrary application of laws and procedures, as well as the misuse of state power.
Human rights lawyers have successfully argued that Article 14 and 21 of the Constitution protect a foreigner seeking asylum from deportation because deportation would result in the deprivation of his or her life and liberty, and would be an unfair process denying the applicant equal protection under the law.
Conclusion
The military coup has caused worldwide consternation. Myanmar appears to be returning to the stage from which it arose after decades of struggle. Myanmar could be returned to absolute military rule as a result of the military coup. The current crisis occurs as Myanmar’s economy continues to be devastated by the COVID pandemic, and the banking sector is struggling to stay afloat. The coup and the foreign sanctions would further destabilize the economy. The Myanmar military must recognize this and take a step back to allow the democratically elected government to take over.
Moreover, India is the largest democracy in the world and Myanmar’s immediate neighbor needs to do more and open up more in this matter. Therefore, India should have strongly intervened so that the refugees from Myanmar are given asylum and provided food and shelter here in the country. So, India should maintain the balance between human and humanitarian obligations and security, and national interest. This factor must be given due consideration if and when a separate ‘Refugee Law’ for the country is enforced. Security and law enforcement officials mustn’t ignore both the legal and underlying human aspects of the ‘refugee’ situation, especially the latter.
This article is authored by Yugal Jain, student at Ajeenkya D Y Patil University, Pune.
