“Give me your tired, your poor, your huddled masses yearning to breathe free.” — Emma Lazarus
India hosts more than two lakh refugees and is at the centre of refugee movements in the South Asian region. It has been a home to refugees from numerous neighbouring countries.
Since India’s independence and partition, it has had an influx of migrants from its neighbours, and this incident is not pertinent to the partition of India. The issue of the economic burden India has to bear and the significant demographic changes brought about by this inflow were frequently raised. In addition to economic and demographic problems, the refugee crisis also endangers India’s security. The legal demands of migrants, internally displaced people, and refugees have all been controlled by existing laws, although this has not yet been formally acknowledged. Although the matter has been partially addressed by current law and court involvement, there are still significant obstacles to resolving the bigger issue. Existing domestic laws regulating foreign nationals’ entry, stay and exit in normal circumstances are inadequate to deal with refugees. In the absence of domestic law for refugees and asylum seekers, there should be a domestic protocol on their status, assigning specific responsibilities to specific agencies. This will ensure prompt response and enhance accountability.
India follows the principle of dualism when it comes to Refugees; that is, international law is not directly applicable domestically and must be implemented through law by Parliament. But in the light of current international situations, we need to review the current scenario from a legal and humanitarian perspective. It is high time that a proper legal framework is set up for the same! Refugees and illegal immigration are also two distinct concepts. However, both groups are treated equally under Indian law because of the Foreigners Act of 1946.
An individual seeking international protection from persecution is called an asylum seeker, and a country may grant refugee status to an asylum seeker. But sadly, there is no clear definition in India regarding this! Moreover, India is not a party to the 1951 Refugee Convention and its 1967 Protocol – vital legal documents about refugee protection in International Law. As a result, the government’s policies and solutions to address these problems lack clarity and policy value. This leads to India’s refugee policy being guided primarily by ad hocism! This enables the government in office to pick and choose ‘what kind’ of refugees it wants to admit for political or geopolitical reasons. This is sad; ultimately, the refugees end up suffering.
However, India has signed numerous Human Rights Instruments that articulate a commitment to the protection of Refugees. India is a party to the Universal Declaration of Human Rights (UDHR) 1948 and has joined the International Covenant on Civil and Political Rights (ICCPR) -1966 and the International Covenant on Economic, Social and Cultural Rights (ICESCR)- 1966 since 1979. India is also a signatory to -the convention on eliminating all forms of Radical Discrimination (CRED in 1965), which ensures equal human rights to all human beings without discrimination.
Moreover, Article 51(c) of the Indian constitution directs the state to respect and uphold International Law. Keeping all this in mind, we can say that a Refugee law has been awaited for a long time. With the recent enactment of the Citizenship Amendment Act, 2019 (CAA), India further fails to address the real issue of refugees and exclusively addresses the issues of illegal immigrants, which are not the same as refugees. Furthermore, the CAA act goes against the basic principles of our democracy, like equality and religious non-discrimination enshrined in the constitution!
With traditional knowledge and values, progressive nations and economic behemoths like India might function as impetuses for international aid and asylum management.
By passing national refugee legislation, India may better calibrate its treatment of asylum claims in light of the global humanitarian and economic crises.
Patriotism is the most sublime feeling and India breathes patriotism. But a vast majority of patriots don’t even know what they stand for. What drives this feeling? Since time immemorial, India has always taken pride in its cultural heritage and diversity, and yet, we are ready to trade it off. In fact, we are diluting it for reasons that we never ponder upon. With great honor, we celebrate Republic Day and Independence Day, but are we really independent?
The Constitution of India has always stood as the hallowed shrine of Democracy and yet we barely read anything beyond the preamble. My article from here on, though very easy to misrepresent, raises 2 major concerns- 1. Recognizing the colonial gaze.
2. Decolonialising India on an individual as well as community level.
So, the next set of questions that pops up is –
How do we recognize the loss of cultural heritage if we don’t even recognize its existence?
How do we research the ways we are still colonial?
The answer is simple but subjective. We tap into our own experience. People resonate with the country, and experiences resonate with society at large.
To explain this, let’s assume that every society has a core and it is fashioned in the form of concentric causation- with every fringe that moves away from the epicenter, the quality of commitment to the tradition deteriorates. The outermost fringe of society- which does not practice the tradition at all, does not live the experience in any way, is hoping to impose a system of the universal standard on the core practitioners owing to their inability to practice the discipline and experience themselves, thereby diluting the very foundation itself, as opposed to it being the other way round. This is cultural fascism and essentially what colonialism does.
In an idealistic scenario, assuming that it is theoretically possible to adopt a uniform and universal standard- it is important to take everyone’s input into account. There’s a certain degree of compromise that all of us are bound to make and a certain degree of retention that all of us are entitled to, and that’s how we realize what is core- what is important and what is not. This is, unfortunately, being muddled as moral relativism. That’s not how a system is imposed. Discussion and deliberation are important. When Colonialisation peaked in the 17th and 18th centuries, did anyone take into consideration the origins of other cultures? When you approach other cultures with a sense of benevolent condescension and try to fix them or with a sense of superiority- you infantilize other cultures. Universal standards do not translate into the universalization of one particular standard. At the very least, it means basic participation by the major cultures across the world.
It is amusing to think that a civilization that has lived far more than any other civilization wouldn’t have encountered this problem. And this is why, I am sure that we can emerge immensely powerful, provided we believe in our culture and learn from our heritage.
There’s a saying- “history distorts those who distort history”. And unfortunately in India, we’ve been robbed of accessing our history, our experiences, and what makes us a society. We do not talk about the massive psychological damage, dehumanization, disruption of society’s structure, and undermining of social traditions and of cultural heritage- all in colonial interest and many of the problems today including the persistence in some cases the creation of racial and ethnic and religious tensions that were a direct consequence of our colonial experience. It is rather rhetoric that our history books promote the fallacies of Aryan Invasion Theory and India as the world’s oldest civilization is barely talked about. If this isn’t colonialism, then what is?
Unaware of our own laws and customs and the diverse ethos, we haven’t been able to get rid of the “fixing” or “civilizing the natives” narrative. This ‘colonial gaze’ is so well internalized, that even after several decades of being “independent”, we still employ it in our ethics, rights, science, polity, and policies. We look at our own culture and social problems with this borrowed colonial apparatus.
In fact, India is in fundamental conflict with the idea of “Bharat” or the Indian civilization and it is evident everywhere: deeming Coloniality and modernity inseparable, the linguistic apartheid promoted by the state, the Collegium System of an Elitist Judiciary, and intrinsic corruption in every government body.
The sacrosanct foundational stone of this conflict is the Indian Constitution.
The British India Act of 1935 was the longest Act ever passed by the British parliament. It was a 4000 pages long binding document solely aimed at governing India with a sense of racial and intellectual superiority. According to Pt. Nehru, it was a charter of slavery. History suggests that the courts promulgated a new constitution and we became a republic in 1950 after it was accepted. But what we are unaware of is that ironically, the constituent assembly with no representation of the people of free India, used the same act as a template to formulate the constitution of the Indian Republic.
Contrary to popular belief, Sir Benegal Rao was really the framer or the writer of the constitution and not Dr. Ambedkar who was the chairperson of the drafting committee. While the committee only made suggestions, Sir BN Rao, ICS and the companion of the order of the Indian Empire, knighted in 1938 for his loyalty towards the British Empire, constitutional adviser to the constituent assembly 1946, travelled to various countries and presented the initial draft in 1948.
Even the constituent assembly was itself a colonial institution. There was no separate ratification body. Unlike countries like Brazil- there wasn’t even a referendum to consider the votes of citizens. The colonized elite who were subservient to the British Empire imposed this structure on the masses who were simply the passive recipients of the ordinance. How did we even arrive at “ We the people of India”? Most importantly- where is free India?
This can be easily understood in the following manner:
People’s representatives- Non-Colonial State/ Free State
Fix the people or teach discipline or moralize them- Colonial State
Now, the USA is considered a superpower and has one of the most efficient institutional systems in the world. It also has the world’s oldest written constitution. It’s a 4500 words essay in plain English ( 7700 words with amendments). The motto is that the constitution protects the citizen from the tyranny of a govt. It is the sovereign, not omnipotent. The father of this same US Constitution- James Madison believed in simpler language and natural rights. When we draw a parallel, we realize that not only is it against the basic principles, the most odious and disturbing feature of the Indian constitution is that the Indian Constitution is 150000 words written in legalese- the legacy of the British to subjugate India. What good is the law if the people can’t even understand it?
We got Independence in 1947 but if we look at the institution of the state- it is exactly the same as it was pre-independence. The Constitution is held as the ‘Law of the Land’ and yet has no roots in our land and no history of jurisprudence in our land.
According to the Government of India Act, the federal courts were set up, and “his majesty” decided his bench for law enforcement. The qualification criteria being: the person has to be 5 years judge of HC in British India or Federated state or a barrister of England or Northern Ireland of 10 years standing or a member of the faculty of advocates in Scotland of at least 10 years standing. I won’t be exaggerating if I say that exchanging “Federal” with “Supreme” and making a few tweaks gave us the idea of the Supreme Court of independent India which not only is inherently elitist but has a collegium system for the appointment of judges.
The Legislature continues to exist as Assembly and Council and the police as the Executive continues to thrive on the power of Lathi Charge. Linguistic Apartheid of the SC compels the usage of the English language. In contemporary India, owing to its colonial history, linguistic discrimination that is pushed by the State is the most severe and ordinary form of discrimination that people experience in everyday life- jobs, army, academia, social hierarchy, Supreme Court, etc. What justice will be served if 90% of people cannot even speak the language? Even the emergency proclaimed in 1975 used exactly the same act. All these reasons constitute the argument why this is not constitutional Morality but British Colonialism.
With corruption at its peak, the basic flaw in our institutional system is that the system is not based on the state servicing the needs of the people, but on imposing requirements. To bring more people into the formal economy- we need to dismantle the colonial idea of extortion first. Where getting a company registered is a Herculean task, an English-only IT-enabled GST cannot bring people into the formal economy. This is why the informal economy seems a good escape from colonial methods.
Power tends to corrupt. State tends to destroy. The state has no business to be in business. Limiting the state power by separating the power to legislate, tax, and spend and vesting them in distinct bodies is the key to a free market and economic freedom. Radical decentralization of the state is important. Longer the accountability loop, the more the potential for corruption, and the lesser efficiency is the delivery. Corruption is not the attribute of the morality of Indian people- it’s an attribute of the colonial system which is why privatization yields better results.
We also need to understand that Justice and Judgement are different. Free and Freedom are different.
Colonialisation did not just mean recession, poverty, hunger, and famines. It also meant the loss of our heritage. Our intellectual humility and the inferiority complex bolstered by colonialization have led to us disrespecting and dismissing Indian knowledge systems. We have been conditioned to believe that science has also emanated from the West and there’s only one way to look at it. Practitioners of our sciences, rich traditions and jurisprudence have either become passive or are so abysmally low that we try to justify the ancient sciences using modern science which by the way is minuscule in comparison to ancient science. We ridicule Ayurveda and term our menstrual practices as orthodox without proper scientific articulation. For ex: In the Sabrimala issue- despite the protests, the ruling was decreed upon.
As a historically knowledge-driven society, it is extremely important for us to take back the agency as to how we perceive knowledge and thereby get rid of the colonial apparatus.
With my article, I do not mean to justify the shortcomings of India as a society nor do I wish to bring every ancient practice into the present, but we must reassess the needs of our society. Delve for solutions within our culture before outsourcing them. The colonial state wanted to fix society but let’s not forget that society is our strength. Decolonization translates into the need to recognize and realize the true power of India as a civilization, and for that, we must acknowledge its existence.
It’s the acknowledgement that matters that reparations are owed and not how much or to whom it should be paid. ~Shashi Tharoor
Take pride in our motherland, celebrate the true spirit of being Bharatiya.
Fifth Pillar - VIT 