constitution – Fifth Pillar

Seeking asylum is a human right

By – Vishal Agarwal

“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.

‘FLAW’less Constitution

By: Krishanu Das

The Indian Constitution is the first thing that springs to mind when we hear words like “JUSTICE,” “LIBERTY,” “EQUALITY,” and “FRATERNITY.” These are words from the Indian Constitution’s preamble, which signified the birth of an independent India. This Sovereign document, drafted by the Drafting Committee led by B.R. Ambedkar, is the world’s largest and longest Constitution, with 395 articles and 12 schedules, long enough to make us fall asleep yet powerful enough to manage a country the size of India. However, the length and language are irrelevant because it was intended to cater to a small subset of privileged individuals. Consequently, they ensured the language was tough enough, and the text was long enough to bore the public.

The thought behind making the Constituent Assembly was to reflect people’s desire. The phrase “We the People” indicates that it was written by, for, and about the people. But “The People” who represented our will, did they consider everyone’s will? It appears that the definition of people for them was our “beloved” politicians. But, I suppose, they’re utilising that power to represent the people’s will. But I think that’s the beauty of Indian society. I mean, we would have probably posted some good Instagram stories showing that we care, but in reality, I think that’s all we have done, which is a significant amount of work to improvise our Constitution.

The first draft of our Constitution came out about 70 years ago, and things have been going well for India. After such a violent history and all of India’s misfortunes, I believe these 70-year-old concepts would be sufficient to operate the system for another 70 years. Evolution has been a massive part of the human race, and I think it has influenced all of the changes and advancements we’ve made, but I don’t believe the laws of nature apply to our Constitution. How flaw “less” could it possibly be?

Our Constitution was written to protect the people’s interests, but does it do so? Take, for example, the concept of “Religion.” Every religion, like every other, has its own set of beliefs. The semantic religions, such as Judaism, Christianity, and Islam, are rooted in the faith in a single God who created all things and beings. On the other hand, we have Indic cultures, and customs practised for thousands of years and are considered ancestral wisdom. There is no single God, no single holy book, and no claims to truth in Indian faiths. As a result, the term “Religion” to embrace fundamentally distinct ideas confounded and perplexed the framers of the Constitution and their descendants. Our founding fathers did such an excellent job that we could sum up a person’s beliefs in a single word. It may mean different things to different people. Still, these people were so confident of their ability to express people’s will that they could never fathom someone having a different viewpoint, but that has always been the beauty of Indian leadership.

What surprises me is that our founding fathers were more concerned with our fundamental rights than our essential responsibilities. Maybe it’s just me, but I believe they perform a very similar and equally vital function in any society. But, in any case, they were concerned about everyone’s well-being. But, because they kept “my interests” in mind, I think I shouldn’t be questioning them now. One of the significant flaws in our legal system is that it is supposed to provide justice to all (social, economic, and political), one of our Constitution’s primary goals. It is one of the slowest systems, but I believe it has been fed in our minds that our court system is slow but provides justice. I try to think of it, but it reminds me of the Ayodhya Babri case or criminal instances such as Jessica Lal, Priyadarshini Mattoo, Nitish Katara, etc.

But I don’t think all of this matters because at least we could satisfy the needs of some “privileged” class. That’s the beauty of our Constitution.

References:-

Are India’s constitutional values really under threat?

There’s a narrative going on lately that has clearly led to polarized discussions. One set of people think that the constitutional values of our country are under threat. These people usually fall on the left side of the political spectrum. The other set of people are the ones who fall on the right. These pro-government people have maintained that every controversial decision that the government has taken, has a legal basis to it, and have thus rubbished the opposition’s claims.

We shall look into major decisions taken by the current government, as well as past governments to see if this “threat” has always existed or if it has come to light only now.

Freedom of speech is a fundamental right. But in 1951, erstwhile Prime Minister Mr. Nehru brought in the First Amendment of the Constitution which curbed this right to free speech and prohibited people from speaking about seditious matters, or matters pertaining to national security. This later became Article 19(2) of the Constitution. Right to protest peacefully without arms is another feature of this Article. Many people seem to overlook this under the pretext of free speech. This brings us to the anti CAA protests which were quite rampant in the north. When we look at these protests through the prism of Article 19 of the Constitution, we find that not only did the protest turn violent and raises sensitive issues, it also involved active participation of a lot of children, thus making these protests illegal. Article 83(2) of the Juvenile Justice Act clearly states that adults, or the groups of adults use children for illegal activity “shall be liable for rigorous imprisonment for a term which may extend to seven years and shall also be liable to a fine of five lakh rupees”.

Some people who oppose the CAA say that unlike any other law, this is based on religion. They also oppose the fact that it violates Article 14 of the Constitution which talks about the right to equality. Coming to the first argument, this law aims to protect minorities that are being persecuted on the basis of religion. When the source of the problem is religion, it would be absurd to not address it in the solution. Secondly, about the alleged violation of Article 14, the Supreme Court in a judgement stated that Article 14 would apply only when invidious discrimination is meted out to equals, and similarly circumstanced people. In this particular case, religious minorities in these neighbouring countries cannot be considered as equals or similarly circumstanced as the people belonging to the majority.

Another hot decision taken by the government was the amendment of Article 370 and the eventual bifurcation of the state of Jammu & Kashmir. Certain legal luminaries are of the opinion that it is a subversion of the constitution. However, it is important to note here that the constitution clearly uses the word “temporary” for Article 370. Moreover, it gives the President the authority to declare the article invalid by issuing a public notification with the recommendations of the Constituent Assembly. Now the Constituent Assembly of Kashmir in 1949 drafted their own constitution which did not even mention Article 370 and even went on to say that Jammu & Kashmir is an integral part of India. Sardar Patel said at that time that since the issue has been brought to the UN, Article 370 shall be removed once the UN steps in for peaceful resolution. However, the past governments treated Article 370 as permanent due to which it remained untouched for 70 years.

The other two core issues that have gained traction in the last few years are ushering in of Uniform Civil Code and a permanent ban on cow slaughter. Some people say that it is a part of the far-right fascist ideology, and the Hindutva ideology, but it is important to note here that Article 44 states that the State shall endeavour to secure UCC for all citizens, and Article 48 of the Constitution already prohibits cow slaughter. While I do not condone the illegal lynchings of people from other communities in the name of “gau-raksha”, but wanting a permanent ban on cow slaughter does have a legal basis to it.

Lastly, I will be talking about the freedom to practice Faith, and the extent to which Law can/should intervene in the matters of faith. The recent decision of the SC which allowed the construction of Ram Temple upset many as they believed that mythology must not affect the decisions of the court of law. However, it is important to note that 4,308 pages of judgement is not based on myth. It is based on clear evidence going back to centuries. The reason why this reality is not percolated down to the masses is because of lack of narrative building or packaging. The other burning example is the SC decision to allow the entry of women in Sabarimala. Staunch supporters of Hinduism believed that the court should not interfere in religious matters. In this scenario, there is a conflict between upholding the rights of women, and those of a religious institution. The court has referred the issue to a larger bench and has not exactly upheld the 2018 decision which declared the exclusion of women from temple’s practices unconstitutional. People often confuse this issue with patriarchy, but it is important to realise that there is a difference between discrimination and diversity. There are various temples dedicated to women, as well as transgenders where men are not allowed. Restriction of women is thus based on tradition, and not patriarchy.

Therefore, it would be safe to say that our liberty has gone way beyond the constitution already. As long as people adhere to the law, and are adequately punished or scrutinised in accordance with the law, our constitutional values do not remain under any threat whatsoever.

REFERENCES:

Click to access coi_part_full.pdf

Click to access JJ%20act%202015.pdf

https://www.thehindu.com/news/national/ensure-children-not-involved-in-protests-rights-body-tells-dgps/article30307516.ece

https://www.scobserver.in/court-case/sabrimala-temple-entry-case/plain-english-summary-of-judgment-ee5ae148-9597-479f-84d7-35d398ed5e68

https://economictimes.indiatimes.com/news/politics-and-nation/sabarimala-supreme-court-verdict-women-ayyappa-temple-kerala/liveblog/72049462.cms