independence – 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.

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

What would happen if Muhammad Ali Jinnah became the prime minister of India instead of Jawaharlal Nehru?

In an interview in Goa, the fourteenth Dalai Lama stated, “India would have remained a united country if Jinnah had become the first prime minister.” He further added, “I think Mahatma Gandhi was very much willing to give the prime ministership to Jinnah, but Pandit Nehru refused. I think Pandit Nehru was a bit self-centered.” This news by NDTV blew up on social media. Later in 2019, BJP candidate Gumansingh Damor also said, “Had Jawaharlal Nehru not been so obstinate at the time of Independence, India would not have been divided,” while campaigning for his party for the ongoing Lok Sabha Elections. This raised the question among the public, ‘What if Jinnah became the first prime minister of India?’

Muhammad Ali Jinnah was a barrister, politician, and founder of Pakistan. Jinnah served as the leader of the All-India Muslim League from 1913 until Pakistan’s creation on 14 August 1947, and then as Pakistan’s first Governor-General until his death. He was known for his ideology of the Two nation theory. According to this theory, Muslims and Hindus are two separate nations by definition; both the communities have their customs, religion, and tradition, and from social and moral points of view, Muslims are different from Hindus; and therefore, both should be able to have their separate homeland in which Islam is the dominant religion, being segregated from Hindus.

A lesser-known fact is that he was an advocate of the united India theory before losing hopes on the Indian National Congress. But even though he was a flag bearer of the partition, he was way tolerant towards the Hindus. This was very evident in a speech just days before independence. He said, “You are free to go to your temples; you are free to go to your mosques or any other place of worship in this State of Pakistan. You may belong to any religion or caste or creed- that has nothing to do with the business of the State.”

One could agree that India and Pakistan would have remained united if Jinnah became the prime minister of India, but at what cost.

The initial planning of running the government would have been way smoother, and we wouldn’t have lost so many lives in the partition. But considering that Jinnah died just a year after independence, the situation would be worse than what it is right now. Though Jinnah was considered one of the best leaders in Pakistan, gradually the government almost rejected his vision of Pakistan. Democracy, tolerance towards other religions, equal rights, vanished in due course of time. Nepotism in politics would still prevail. The congress would be the ruling party, gaining the majority only on religious grounds. We would be calling it the Indian civil war instead of calling it the Indo-Pak war. Instead of 21 months, the Emergency would last for years. The University of the Nationalist Democracy, which led to the rise of parties like BJP, would have never existed. Most of the prime ministers in Pakistan never completed were either assassinated or they left their office before the end of their tenure. If India and Pakistan were untied, none of our prime ministers would have completed their tenure. Instead of Hindi imposition, we would have had Urdu imposition. Many believe that the catchphrases “anti-national”, and “go to Pakistan” would never exist. And most importantly the world would have associated India with terrorism. After the Jacobins in the French Revolution, post-independence India would be considered the Reign of Terror. In conclusion, making Jinnah the prime minister would do no good and might have intensified the situation.

References: