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Refugees and the Proposed Amendment in the Citizenship Law of India

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The Government of India presented the Citizenship (Amendment) Bill, 2016 in Lok Sabha 19 July 2016. The impugned Bill seeks to amend the Citizenship Act, 1955 whereunder the acquisition and determination of Indian citizenship procedure have been enacted. The Bill aims to extend citizenship to an individual who belongs to minorities such as Buddhists, Christians, Hindus, Jains, Parsis and Sikhs hailing from Afghanistan, Bangladesh, and Pakistan who enters into India without valid visa or travel documents.

The entry of such persons in India shall not be treated as an illegal migrant. The refugees fleeing religious persecution from these countries see India as their natural home. Thus, the proposed Amendment makes them eligible for applying for Indian citizenship by the process of naturalization. The present citizenship law of 1955 treats such arrivals as illegal migrants. The Bill proposes to reduce the cumulative period of residential qualification from eleven years to six years for getting the Indian citizenship by naturalization.  

Is Bill Discriminatory?

The impugned Bill signifies a positive and opportune change in the Refugee Policy of India. It would be beneficial to the displaced people from Pakistan, Bangladesh, and Afghanistan. In India, there are 9,200 refugees from Afghanistan, and of which, 8,500 are Hindus. There are more than 400 Pakistani Hindu refugee settlements in Indian cities like Ahmedabad and Surat in Gujarat, Jodhpur, Jaisalmer, Bikaner, and Jaipur in Rajasthan. However, more than 200,000 Lakhs refugees are living in India that comprises Chakmas and Hajongs from Bangladesh. Refugees from these countries are Hindus and Sikhs and are scattered in Assam, Delhi, Gujarat, Madhya Pradesh, Maharashtra and Uttar Pradesh. However, it is contested that the proposed Amendment would benefit the Hindu migrants significantly as it restricts itself only to the minorities from this trinity of countries. Consequently, Government of India has made “religious persecution” as the core criterion to confer citizenship. But it has discriminated against other minorities and groups from these countries who are also confronting the same situation of religious persecution like Ahmadiyya Muslims in Pakistan, Rohingya Muslims in Myanmar, and Tamil Muslims in Sri Lanka who have taken refuge in India. But, unfortunately, new Amendment Bill excludes the Muslim refugees on the ground of religion from these countries.   The proposed Bill does not extend protection to Sri Lankan refugees who Hindus, Muslims, and Christians of Indian origin who have been living India (Tamil Nadu) since 1983 due to the state-sponsored violence against them. The Bill further discriminates against Afghan Hazaras who face religious persecution, and Australia has extended asylum to them.

What is Refugee Law in India?

Are there benefits of not to have a law on refugees? Having a law on refugees entails exorbitant fiscal responsibility for the Indian state. Every law brings with itself financial liabilities to implement its legal mandate. But, unfortunately, India does not have any law on refugees but welcomed people in search of safety and sanctuary since antiquity and hosts refugees from every nook and corner of the world as per its historical traditions of hospitality. India deals with different groups of refugees differently that deprives them equality before the law and equal protection of the law. The central government determines the status of refugees by Ad hoc administrative decisions with a political tinge in the absence of any law. However, refugees are dealt with the Foreigner Registration Act, 1939, that applies to all foreigners coming to India. Though, Government of India invokes the Foreigner Act, 1946 to regulate the entry, stay and departure of all aliens in India. Other laws like Passport (Entry into India) Act, 1920, Passport Act, 1967, and Extradition Act, 1962 are also applied to deal with the refugees. India does not have any central body except Foreigner Regional Registration Office (FRRO) under the Bureau of Immigration of India to handle the refugees.

UN High Commissioner for Refugees (UNHCR), is a UN agency exclusively dealing with refugees and their problems worldwide, gets permission from the Government of India to assist those refugees who do get any direct aid and assistance from the government. In India, UNHCR extends de facto protection to refugees who have not been recognized under the Indian Law. However, the Part-III of the Constitution of India prohibits discrimination on the grounds of religion, race, caste, sex or place of birth under Article-15. The equality of opportunity in matters of public employment has been provided in Article-16 of the Constitution. While enjoyment of fundamental freedoms with reasonable restrictions are guaranteed under Article-19, and that is equally available to refugees with the protection of script, language, and culture of minorities (Article-29), but refugees or foreigners do not have the right to establish and administer educational institutions under Article-30.  Hence, there have been several attempts in the past to have a national refugee law. Few members of Parliament across the party lines presented private members’ Bills in the Parliament for enacting a national refugee law on December 15, 2015. Shashi Tharoor’s Asylum Bill, 2015, Varun Gandhi’s National Asylum Bill, 2015, Rabindra K. Jena’s The Protection of Refugees and Asylum Seekers Bill, 2015 but these Bills are still pending before the Parliament for its consideration.

India cops with refugees and asylum seekers with the three-fold strategy.  Firstly, Government of India grants full protection and assistance to refugees from Sri Lanka and Tibet. Secondly, refugees who get the asylum at the UNHCR level, and the “principle of non-refoulement” is applied for their protection e.g. Afghans, Burmese, and Somalis, etc. Thirdly, refugees who are neither recognized by the Government of India nor the UNHCR but have arrived in India and got assimilated with the local populace, e.g. Chinese refugees from Myanmar living in the state of Mizoram. Thus, the Indian government deals with these refugees differentially as domestic political power permutations are central to their treatment. Particularly, Sri Lankan and Tibetan refugees got refugee identity documents, and they are entitled to a range of legal benefits. Tibetan refugees live in settlements and enjoy unobstructed freedom whereas the Sri Lankan refugees are kept in camps under surveillance with restricted mobility. On the other hand, refugees from Myanmar, Palestine, and Somalia do not get any aid and assistance from the Government of India, and they are discriminated and deprived of access to essential resources for human survival. Now, the government has agreed to long-term visa to Chin refugees from Myanmar, but ethnic groups of refugees have been put on procrastination.

Judicial Response

The Supreme Court (SC) of India has done exceptionally excellent service to the cause of refugee rights. In the absence of refugee law in India, SC has interpreted the word “person” in the Article-21 of the Constitution in an unprecedented justicial tradition. According to the judicial interpretation of the SC, the term “person” also includes non-citizens. Therefore, SC has addressed and appreciated the plight of refugees in many cases. Particularly, the cases of  Khudiram Chakma v. State of Arunachal Pradesh and Ors, (1994 SC 615), and National Human Rights Commission v. State of Arunachal Pradesh, (AIR 1996 SC 1234) in which the SC held that “all the refugees living in India have the right to life and the personal liberty” as enshrined in Article-21of the Constitution. The “state is obligated to protect the life and freedom of each, be a citizen or otherwise, and it cannot permit individual or group of individuals to threaten the refugees, to leave.” The SC has further directed that the state of Arunachal Pradesh is constitutionally obligated to protect and safeguard the life, liberty, health and overall well-being of the Chakma refugees.

 Consequently, there is a series of judgments delivered by the SC, High Courts of Gujarat, Gauhati, Punjab and Tamil Nadu in cases of Chakma,  Sri Lankan, and all other refugees who have reiterated that the rights of refugees must be protected on the anvil of due process of law in a democracy. Majority of the judgements have explicitly recognized the importance of the UNHCR and paved the way to acquiesce itself in refugee issues in India. But, regrettably, the refugee jurisprudence evolved and bloomed finds itself at war with the ordinary law relating to the foreigners that hugely empowers the government to deport them to their countries of origin arbitrarily. Unfortunately, the Law Commission of India in 2000 recommended in its 175th Report that government should enact a more rigorous law to deal with the “illegal entrants” without any kind consideration to the well-founded fears of their persecution and migration. Are people illegal? People are only human beings, and such a recommendation should not have come from such a statutory body. However, the SC in Louis De Raedt v. Union of India and Ors, B.E. Getter v. Union of India and Ors; S.G. Getter v. The Union of India, (1991) 3 SC 554, held that Article-21 of the Constitution of India protects the life and personal liberty of all persons including aliens and foreigners happened to be in India. Therefore, refugees as non-citizens cannot be deprived of their rights except according to the procedure established by law. Therefore, judicially created refugee rights (JCRs) under the Constitution of India has successfully been protecting the life and liberty of vulnerable persons. Hence, JCRs have become the de facto cum de jure the law of the land in the absence of national refugee legislation.

Refugee Influx in India

Refugees have been arriving in India from all over the world including Afghanistan, Bangladesh, Bhutan, Congo, Eritrea, Iran, Iraq, Myanmar, Nepal, Nigeria, Pakistan, Rwanda, Somalia, Sri Lanka, Sudan, Syria, and Tibet, etc. Today, there are 65.3 million refugees globally including asylum seekers, irregular migrants, returnees and internally displaced persons (IDPs). India is a home to diverse groups of refugees from all continents and region of the world. India has accommodated refugees from Tibet in 1959, the refugees from Bangladesh in 1971, the mass influx of Chakma refugees again from Bangladesh in 1963 and from Sri Lanka in 1983, 1989 and 1995. However, India has been receiving refugees from Afghanistan and Myanmar since the 1980s, and Rohingya refugees have been coming for the last couple of years from the Myanmar. But there is no stoppage of refugees and migration from Bangladesh. By the end of 2015 as per the UNHCR report, there were 207,861 persons of concern out of which 201,281 were refugees, and 6480 were the asylum seekers. These figures comprise 175,000 Tibetan and Sri Lankan refugees who were granted asylum decades ago. UNHCR India reported that 31,000 asylum-seekers and refugees had been registered with the UNHCR in India. However, UNHCR estimated in September 2014 that there are 109,018 Tibetan Refugees, 65,674 Sri Lankan Refugees, 14,301 Myanmar’s Refugees, 10,395 Afghan Refugees, 746 Somali Refugees and 918 Other Refugees. As of August 2015, only 39 Syrian Refugees and 20 asylum-seekers got registered with the UNHCR India.

Predictably, refugee influx in India is bound to increase due to current conflicts in different parts of the world. For example, on September 20, 2016, Permanent Mission of India in Geneva-Switzerland was contacted by Brahumdagh Bugti—a prominent Baloch leader in exile from Balochistan-Pakistan for seeking political asylum in India. Having accepted by the India, it would be second highest grant of political asylum after Dalai Lama—the Tibetan spiritual leader—in the post-1959 era.   

Global Trends

Every 113th person in the world is a refugee who is denied the right to nationality and access to the most basic rights and resources. UNHCR reported in 2016 that there are 10 million stateless persons with no rights and nearly 34,000 people become the victims of forced displacement in every year. The global refugee crisis is the failure of comity of nations in their commitment to have a world based on the ‘purposes and principles’ of the UN Charter. The world community has subjected itself to political chicanery of the few in its ranks. International agreements and understandings are not getting proper adherence and enforcement in national jurisdictions to address the impugned crisis. In September 2016, UNHCR and the World Bank jointly conducted the study to diagnose the cause of the refugee crisis wherein global violent conflicts were identified to have caused forced displacement, and the current trend has been going on for the last more than three decades. This study has culled out countries like Afghanistan, Burundi, Caucasus, Colombia, Congo, Iraq, Somalia, Sudan, Syria, and former Yugoslavia responsible for the present refugee crisis that has been affecting the 1% population of the world. This study has also identified a pattern that remains unchanged since 1991 regarding fifteen developing countries who hosted 89% of the refugees and 99% of the IDPs.

There UNHCR reports that 34,000 people all over the world involuntary leave their homes to get away from persecution, conflicts, and war. The Syrian War is the biggest example of a contemporary conflict that has already claimed 321,358 and 470,000 casualties as per oppositions groups in Syria since March 2011. However, UN and League of Arab Envoys to Syria on April 23, 2016, put out an estimate of 400,000 people who lost their lives in the ongoing Syrian Civil War. The UN has ascertained 13.5 million Syrians in 2016 who were in need of humanitarian assistance, and 6 million out them were IDPs in Syria, and more than 4,8 million are refugees outside the Syria. In January 2017, the UNHCR has registered 4,863, 684 people as refugees with an incremental mobility. The resources and infrastructural facilities of the host countries are tottering under the ever-mounting pressure of these refugees. Now, the moot question is how to address this escalating crisis and swelling of refugees and asylum seekers in the countries of reception. Are existing models of lego-institutional response sufficient to the refugee crisis? And how to tackle the growing number of refugees in the host societies? But, there have been few countries who have been treating the refugees and asylum seekers under their legal and administrative policies. In the EU jurisdictions, new system processes and quota systems have been emplaced to respond to the contemporary refugee crisis.

International Law

India must treat people humanely who are distressed, displaced and forced to flee their roots and motherlands under terrible situations. But India manages and handles refugees on an individual basis in an informal manner in consonance with the jurisprudence developed by the Supreme Court and international treaties. However, India does not have a formal policy on refugees and asylum seekers. Despite the fact that India is a liberal democracy, but it has not signed the international instruments whereunder refugees, asylum seekers and stateless persons are governed. India is not a party to 1951 UN Convention Relating to the Status of Refugees (UNCSR) with its 1967 Additional Protocol, though, more than 145 countries have become parties to these instruments and having well-defined legal protection obligations for the refugees. Further, India has not acceded or ratified the  1954 UN Convention on the Statelessness and 1961 UN Convention on the Reduction of Statelessness. The principle of non-refoulemnt (no-forced expulsion) enshrined in the Article 33 (1) of UNCSR whereunder a person cannot be deported, repatriated or forced to go back to the territories of persecution against his/her free will and volition. The territories may be his/her country of origin or a third country where exists a constant danger to his/her security, liberty, and safety. Even Article 3 of the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (CAT) also makes the same provision, but India has only signed it and has not acceded and ratified it, therefore, India is not under any obligation to a party to this Convention. However, CAT has received 161 ratifications as of February 2017, and its Protocol has 75 signatories and 83 parties as of October 2016, and it’s CAT Committee is a body of human rights experts that monitors implementation of the CAT.

However, there are plenty of international conventions and instruments which have been signed and ratified by India such as the Universal Declaration of Human Rights (UDHR), 1948, the 1966-International Covenant on Civil and Political Rights-(ICCPR), the 1966-International Covenant on Economic, Social and Cultural Rights (ICESCR), the 1963-UN Convention on the Elimination of the All Forms of the Racial Discrimination-(CERD), the  1979-UN Convention on the Elimination of All Forms of Discrimination against Women-(CEDAW), and the  Convention on the Rights of the Child (CRC), 1989 etc. India does recognize the right to asylum under Article 14 (1) of the UDHR states that “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” India has been respecting these treaties in protecting refugees but without any uniformity of law and policy. The application of any convention, declaration and agreement must be based on the principle of “good faith” called pacta sunt servanda (agreements must be kept). Therefore, India must eschew from selectively applying these international human rights instruments and protecting the refugees fleeing persecution. While India might have considered several provisions of UNCSR but it has not treated all the classes of refugees equally, and, therefore, the refugees could not get the same humanitarian assistance for which they should have been entitled to under the policies of the Government of India. 

Principle of New Beginning

It is, indeed, fallacious to perceive the refugees as a burden, enemies or strangers; they are also the human beings with all the inalienable human rights. The principle of new beginning must be evolved by practical cooperation, solidarity and responsibility, and uniform standards of better refugee protection. Therefore, the Preamble of UNCSR adumbrated a vision of Burden-sharing Responsibility with equitable distribution of refugees while discouraging the Push-back Approach of many national governments. The concept of Burden-sharing Responsibility has been contemplated that the states can allocate a maximum grant out of their fiscal resources to establish, maintain and contribute to the proposed Global Refugee Fund (GRF). The GRF can be utilized to facilitate refugees’ voluntary repatriation to their motherlands, integration in the host country, resettlement in the third country or helping the government of the refugee-producing country to address the problems of displaced persons. Thus, such an initiative requires a political will at the highest level of governance. For example, at the regional level on March 03, 2014, the EU Parliament has approved the AMIF (Asylum, Migration Integration Fund) for the period 2014-2020 by replacing the European Refugee Fund, European Integration Fund, and European Return Fund to comprehensively supporting the refugees in the Europe. Therefore, at international level, there must also be a Global Refugee Fund (GRF) that makes available financial assistance to the refugees in situations of need. GRF should be consolidated with the contributions from the national governments. The bigger countries should make greater financial contributions in proportionate to their Burden-sharing Responsibility. Hence, each state would be contributing to the GRF, and the refugee receiving countries could utilize the resources out of GRF and protect the rights of the refugees. Such a mechanism would be beneficial for the countries like India who is not a party to the UNCSR and India would have a system to address the refugee influx that it faces across its porous borders without incurring any monetary liability on its national resources and the economy while respecting the human rights of the refugees.

In this context, the political generosity and kindness cannot be the criterion to attend the problems of refugees, homeless and stateless people in India. The present scenario is a most defining moment in the history of India as it is emerging in a new avatar of global standing. Therefore, India must utilize the auspices of the SAARC to consider the South Asian Declaration on the Refugees and Eminent Persons Group’s (EPG) proposed National Model Law on the Refugees thereunder. Moreover, India can evolve a regional approach to enunciate the rules and regulations for protecting the refugees in South Asia. At the same, India must abdicate its dilemmatic policy on national refugee law. India has always protected the persecuted refugees and provided them refuge and security, and nobody is preventing India to have a national legislation on refugees. Hence, India requires having a uniform, stable, and strong structure and strategy to protect the refugees from all corners of the world. The absence of national legislation on refugees has placed the refugee rights in a vacuum, and such rights are regarded as privileges which can only be claimed by those refugees who are politically advantageous for the power structures in the host country. Refugees should not be accommodated to extract demographical, religious, and political mileage. The UNCSR could be deliberated as the basis of domestic refugee law, but India may have its modifications and changes in tune with our national requirements wedded with the principles of constitutionality. Therefore, a national legislation on refugees is immensely required in India in the interest of refugee protection incommensurate with global legal standards. However, India has to go for a refugee law for maintaining the territorial integrity, for securing the porous borders, for ensuring the homeland security, for evading the international pressures in the name of refugee rights, and for establishing our high benchmarks of respecting the international human rights. Today, the world is a simmering cauldron of conflicts and people are getting displaced on an unprecedented scale. Therefore, We, the People of India, must approbate our capacity to take the challenges of any refugee influx ahead.

Ph. D., LL.M, Faculty of Legal Studies, South Asian University (SAARC)-New Delhi, Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights. Author teaches and writes on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law & Forced Migration Studies. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA nafeestarana[at]gmail.com,drnafeesahmad[at]sau.ac.in

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Pakistan, Quo Vadis?

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Pakistan’s place in a new world order is anybody’s guess. Recent policy moves suggest options that run the gamut from a state that emphasizes religion above all else to a country that forges a more balanced relationship with China and the United States.

The options need not be mutually exclusive but a populous, nuclear-armed country whose education system is partially anchored in rote learning and memorization of the Qur’an rather than science is likely to raise eyebrows in Washington and Beijing.

Pakistan has long viewed its ties to China as an unassailable friendship and strategic partnership China but has recently been exploring ways of charting a more independent course.

Relations between Islamabad and Beijing were bolstered by an up to US$60 billion Chinese investment in the China Pakistan Economic Corridor (CPEC), a cornerstone of the People’s Republic’s infrastructure, transportation, and energy-driven Belt and Road Initiative.

Deeply indebted to China as a result of the Belt and Road that has significantly contributed to electricity supply and transportation infrastructure, Pakistan will have to tread cautiously as it explores the margins of its manoeuvrability.

Nevertheless, suggesting that CPEC may not live up to its promise to significantly boost the country’s position as a key Belt and Road maritime and land transportation hub, Pakistan recently agreed with Saudi Arabia to shy away from building a US$10 billion refinery and petrochemical complex in the port of Gwadar, long viewed as a Belt and Road crown jewel. The two countries are looking at the port city of Karachi as an alternative.

Gwadar port has been troubled for years. Completion of the port has been repeatedly delayed amid mounting resentment among the ethnic Baloch population of the Pakistan province of Balochistan, one of the country’s least developed regions. Work on a fence around the port halted late last year when local residents protested.

Building the refinery in Karachi would dent Chinese hopes of Gwadar emerging as a competitive hub at the top of the Arabian Sea. Doubts about Gwadar’s future are one reason why landlocked Tajikistan, as well as Afghanistan, are looking at Iranian ports as alternatives.

Saudi Arabia and Pakistan initially agreed on building the refinery in Gwadar in 2019 during a visit by Saudi Crown Prince Mohammed bin Salman. A Saudi-funded feasibility study has since suggested that Gwadar lacks the pipeline and transportation infrastructure to justify a refinery. The refinery would be cut off from Karachi, Pakistan’s oil supply hub.

In a similar vein, Pakistan has been discussing a possible military base in the country from which US forces could support the government in Kabul once the Americans leave Afghanistan in September under an agreement with the Taliban.

Washington and Islamabad appear to be nowhere close to an agreement on the terms that would govern a US military presence in Pakistan but the fact that Pakistan is willing to entertain the notion will not have gone unnoticed in Beijing.

Pakistan borders on China’s troubled province of Xinjiang, home to Turkic Muslims who face a brutal Chinese attempt to squash their religious and ethnic identity.

China fears that Pakistan, one of the few countries to have witnessed protests against the crackdown in the early days of the repression, could be used by Turkic Muslim militants, including fighters that escaped Syria, as a launching pad for attacks on Chinese targets in the South Asian country or in Xinjiang itself.

The notion of Pakistan re-emerging as a breeding ground for militants is likely to gain traction in Beijing as well as Washington as Pakistan implements educational reform that would Islamicize syllabi across the board from primary schools to universities. Critics charge that religion would account for up to 30 per cent of the syllabus.

Islamization of Pakistani education rooted in conservative religious concepts contrasts starkly with moves by countries like Saudi Arabia and the United Arab Emirates to de-emphasize religious education and ensure that it is more pluralistic. The two Gulf states have positioned themselves as proponents of moderate forms of Islam that highlight religious tolerance while supporting autocratic rule.

“Pakistan is an ideological Islamic state and we need religious education. I feel that even now our syllabus is not completely Islamized, and we need to do more Islamization of the syllabus, teaching more religious content for the moral and ideological training of our citizens,” asserted Muhammad Bashir Khan, a member of parliament for Prime Minister Imran Khan’s ruling party.

By implication, Mr. Khan, the parliamentarian, was suggesting that Pakistan was angling for a conservative leadership role in the Muslim world as various forces, including Saudi Arabia, the UAE, Turkey, Iran and Indonesia compete for religious soft power in what amounts to a battle for the soul of Islam.

The educational reform boosts Prime Minister Khan’s effort to be the spokesman for Muslim causes. The prime minister has accused French President Emmanuel Macron of peddling Islamophobia and demanded that Facebook ban expressions of anti-Muslim sentiment.

Critics warn that the curriculum will produce anything but a society that is tolerant and pluralistic.

Said education expert Rubina Saigol: “When the state aligns itself with one sect or a singular interpretation of religion, it opens the doors to sectarian conflict, which can turn violent… There is lip service to the ideas of diversity, inclusion and mutuality but, in reality, an SNC that is gender-biased, sectarian and class-based, will sharpen social differences, undermine minority religions and sects, and violate the principles of federalism.” Ms. Saigol was referring to Prime Minister Khan’s Single National Curriculum project by its initials.

Former Senator Farhatullah Babar warned that “The SNC…opens the door for… (religious) seminary teachers to enter mainstream educational institutions… It is well known that a majority of the education of seminary students is grounded in sectarianism. Imagine the consequences of…seminary teachers trained and educated in sectarian education entering the present educational institutions.”

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Why successful mediation efforts could not be employed to resolve the Kashmir conflict?

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Friday prayers in Srinagar, Jammu and Kashmir. © John Isaac

Mediation is a process in which a dispute between two parties is resolved effectively with the help of a third party. It helps to resolve international conflicts peacefully because in mediation the third-party mostly has no direct gains from it and cannot have coercive policies, rather it discusses win-win situation for both parties and helps them resolve the issue. Unfortunately, Kashmir has been a bone of contention between India and Pakistan for almost 74 years, and yet all mediation efforts have failed.

Kashmir is a disputed territory between India and Pakistan in the South Asian region. The issue dates back to 1947 during the partition of the sub-continent when India and Pakistan were formed and were liberated from the British colonialism. At the time of partition, there were more than 500 princely states and they either had to accede to India or Pakistan or choose to stay independent.  Moreover, they had to keep their geographical and religious contiguity in mind before acceding to any of the state. Many states made quick decisions but the Maharajah of Kashmir delayed the decision because he was a Hindu and wanted to join India but the majority of population was Muslim and they wanted to be a part of Pakistan. During his contemplation, the Indian forces entered into the state of Jammu and Kashmir to illegally occupy the state. As a result, tribal groups from Pakistan entered into the state to help their Muslim brothers and Pakistan also backed them actively. Realizing the sensitivity of the matter, India took this issue to the United Nations. The UN helped in establishing a ceasefire line that divided the state into two parts, one controlled by Pakistan called Azad Jammu and Kashmir (AJK) while the other is under Indian occupation and is called Indian Occupied Kashmir (IOK).

Since then, the UN has passed several different resolutions to resolve the Kashmir conflict for good but India is not willing to accept the propositions of UNSC and other mediators. Kashmir still remains an issue to this day and the people of Kashmir are still waiting to get their right to self-determination and accession to Pakistan. India on the other hand has heavily militarized the territory and is trying to change the demography of Kashmir to reduce the Muslim majority.

Efforts of Mediation in the Kashmir Conflict

United Nations formed a special commission for the resolution of the Kashmir conflict known as the United Nations Commission for India and Pakistan (UNCIP). UNCIP and United Nations Security Council (UNSC) have passed a number of resolutions after the 1947-48 war for Kashmir, one of the principal resolutions being the one of 21st April, 1948 by the UNSC that stated: “Both India and Pakistan desire that the question of the accession of Jammu and Kashmir to India or Pakistan should be decided through the democratic method of a free and impartial plebiscite”. This resolution focused on the basic human right of Kashmiri people to choose to live with whoever they want and they have the right to form an independent state.

The UNSC resolutions that came after that also focused on the point of plebiscite and the principles for the conduct of plebiscite. The UNCIP focused on the conduct of free and fair plebiscite for Kashmiri people in both parts of Kashmir and let the people vote for either India or Pakistan. UNCIP also passed some resolutions in this regard. The resolutions passed by UNCIP on 13th August, 1948 and 5th January, 1949 also reinforced the self-determination and plebiscite resolutions of UNSC. In July 1949, India and Pakistan established a ceasefire line through the Karachi agreement that was to be supervised by the military observers. The military adviser had the command of these observers and they all made the main group of United Nations Military Observer Group in India and Pakistan (UNMOGIP). 

After the termination of UNCIP, the United Nations Security Council further passed a resolution no. 91 on 30th March, 1951 affirming that the constituent assembly and any action taken by it for the future of Kashmir would not constitute a disposition of the state and that the future would be decided through a plebiscite. It also decided to continue the working of UNMOGIP and continue the supervision of ceasefire in Kashmir. The other functions of the UNMOGIP were to observe the condition of ceasefire and report it to the UNSC. They were also supposed to investigate the complaints of ceasefire violations and give a written report of findings to each party and the Secretary General.

On 24th January, 1957 UNSC passed the resolution no. 122 regarding the determination of future of the part of state. It reaffirmed that the actions taken by constituent assembly would not satisfy its earlier resolutions and again called for a plebiscite. Later during the 1965 and 1971 wars between India and Pakistan, the UNSC asked both states to cease fire and follow the UN resolutions for Kashmir dispute. It maintained that the Kashmir dispute should be resolved by free and fair plebiscite and not to be taken militarily.

All the efforts made by the United Nations in order to resolve the Kashmir conflict have failed because of India’s assertiveness in the state of J&K. India never agreed to taking out her forces from Kashmir and neither to hold a free and fair plebiscite that could help in determining the future of Kashmir. Mediations cannot be forced and both parties need to consent on a given solution by the mediators but India has never agreed upon the stance of the mediating body and keeps adding military in the region.

Some examples of arbitration tried by the United Nations that failed are as follows:

  • The first effort made in March 1949, where UNCIP convinced both parties to withdraw forces and asked for submission of their plans for the withdrawal, Pakistan submitted the plan but India refused.
  • Then in August 1949, another effort was made by President Truman and PM Attlee where they asked both parties to submit to the arbitration of Admiral Nimitz, Pakistan accepted this proposal but India rejected it again.
  • Then in December 1949, the president of UNSC General McNaughton proposed that the withdrawal should be in a such way that it does not impose fear in any party, Pakistan again accepted the Proposal while India rejected it.
  • In July 1950, Sir Owen Dixon’s proposal about the exact sequence of withdrawals from Jammu and Kashmir territory were accepted by Pakistan but India rejected them.
  • In January 1951, the Prime Ministers of common wealth suggested that Indian and Pakistani troops in Kashmir should be replaced by neutral troops from Australia and New Zealand, Pakistan agreed to this; India did not.
  • In December 1952, the security council defined the number and character of the forces on both sides of ceasefire line present in Kashmir before the plebiscite, the rest were to be withdrawn. Pakistan accepted this resolution but India rejected it.
  • In early 1958, the UNSC again deputed Dr. Frank Graham on a mission of mediation between India and Pakistan for the solution of dispute. Frank Graham made five recommendations all of which were accepted by Pakistan and rejected by India.
  • The ceasefire violations by India time to time also show how India does not care about International Law and Human rights and keeps the torture going without holding a plebiscite do decide the future of the state.

The US supported the composite dialogue process between India and Pakistan which came to an end after the Mumbai attacks in 2008 and since then every time US hints at mediation, Delhi reacts with hostility. The reason is that Kashmir issue is not merely about a piece of land, rather it is more about nationality and political ideology. The Modi government stands tough on militancy in the Kashmir territory in order to enhance its claim and use it as a tool to instigate the notion of Nationalism in the Indian population to give legitimacy to his actions.

One of the major reasons for the failure of UNSC in bringing a peaceful and permanent solution for the Kashmir conflict is that it views the conflict as a political issue rather than a legal one. The Indian aggression and occupation should be seen as an issue of humanitarian intervention and should be dealt according to the international law in the International Court of Justice rather than an issue of political differences between India and Pakistan. The instrument of accession by India is the core issue which the UNSC consistently failed to point out in its resolutions.

Conclusion:

Many efforts of mediation have been made in the earlier days of the conflict by the United Nations in order to convince both India and Pakistan for a solution of the Kashmir crisis. Although UN has passed several resolutions in order to mediate between India and Pakistan but the drawback of mediation is that it is not coercive, it needs the consent of the parties in conflict upon a certain point. In case of Kashmir, India’s assertiveness and extremist policies is a major reason why mediations have failed in resolving the Kashmir conflict. The international community needs to realize that this is not an issue of political differences rather an issue of violation of the international law.

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South Asia

India’s multi-alignment: the origins, the past, and the present

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In the initial two decades following India’s independence, India’s foreign policy was heavily determined by the personal predilections of its first Prime Minister Jawaharlal Nehru and his protégé VK Krishna Menon, both influenced by British socialism. Nehru himself handled the external affairs portfolio until his death in 1964.

The policy of ‘non-alignment’ which the duo initiated in India’s foreign policy gained world-wide attention since early 1950s, which later became a full-fledged movement and forum of discussion in 1961 (NAM) that consisted of developing and newly decolonised nations from different parts of the world, primarily from Asia, Africa, and Latin America.

But, the policy never meant isolationism or neutrality; rather it was conceived as a positive and constructive policy in the backdrop of the US-USSR Cold War, enabling freedom of action in foreign and security policies, even though many of the individual NAM member states had a tilt towards the Soviet Union, including India.

However, the lofty Nehruvian idealism of India’s foreign policy in its initial decades was not successful enough in integrating well into India’s security interests and needs, as it lost territories to both China and Pakistan during the period, spanning 1947 to 1964.

However, when Indira Gandhi assumed premiership, realism had strongly gained ground in India’s political, diplomatic and military circles, as evident in India’s successful intervention in the liberation of Bangladesh in 1971.

Even at that point of time, India still sticked on to the policy of non-alignment until it was no longer feasible in a changed international system that took shape following the end of the Cold War, which is where the origins of a new orientation in India’s foreign policy decision-making termed as ‘multi-alignment’ lies.

Today, India skilfully manoeuvres between China-led or Russia-led groupings such as the BRICS (Brazil, Russia, India, China, and South Africa) and the Shanghai Cooperation Organisation (SCO), along with its involvement in US-led groupings such as the Quadrilateral Security Dialogue (or the Quad), in which Japan and Australia are also members.

Militarily though, India is still not part of any formal treaty alliance, and is simultaneously part of a diverse network of loose and issue-specific coalitions and regional groupings, led by adversarial powers, with varying founding objectives and strategic imperatives.

Today, non-alignment alone can no longer explain the fact that recently India took part in a US-chaired virtual summit meeting of the Quad in March 2021 and three months later attended a BRICS ministerial meet, where China and Russia were also present.

So, how did India progress from its yesteryear policy of remaining equidistant from both the US-led and Soviet-led military blocs (non-alignment) and how did it begin to align with multiple blocs or centres of power (multi-alignment)? Answer to this question stretches three decades back.

World order witness a change, India adapts to new realities

1992 was a watershed year for Indian diplomacy. A year back, the Soviet Union, a key source of economic and military support for India till then, disappeared in the pages of history, bringing the Cold War to its inevitable end.

This brought a huge vacuum for India’s strategic calculations. Combined with a global oil shock induced by the First Gulf War of 1990 triggered a balance of payment crisis in India, which eventually forced the Indian government to liberalise and open up its economy for foreign investments and face competition.

India elected a pragmatic new prime minister in 1991 – PV Narasimha Rao. The vision he had in mind for India’s standing in the world was quite different from his predecessors. Then finance minister and later PM, Dr Manmohan Singh announced in the Indian Parliament, “No power on earth can stop an idea whose time has come”.

This was during his 1991 budget speech and it marked the beginning of building a new India where excessive control of the state on economic and business affairs seemed no longer a viable option.

At a time when Japan’s economy was experiencing stagnation, China was ‘peacefully rising’, both economically and industrially. The United States remained as the most influential power and security provider in Asia with its far-reaching military alliance network.

As the unipolar world dawned proclaiming the supremacy of the United States, PM Rao steered Indian foreign policy through newer pastures, going beyond traditional friends and partners like Russia.

In another instance, 42 years after India recognised Israel as an independent nation in 1950, both countries established formal diplomatic ties in 1992. Indian diplomats accomplished a task long overdue without affecting the existing amicable ties with Palestine.

In the recent escalation of the Israel-Hamas conflict, it is worth noting that India took a more balanced stance at the United Nations, which was different from its previous stances that reflected an open and outright pro-Palestine narrative.

Today, India values its ties with Israel on a higher pedestal, even in areas beyond defence and counter-terrorism, such as agriculture, water conservation, IT and cyber security.

Breaking the ice with the giant across the Himalayas

China is a huge neighbour of India with which its shares a 3,488-km long un-demarcated border. Skirmishes and flare-ups resulting from difference in perception of the border and overlapping patrolling areas are a regular occurrence in this part of the world.

For the first time after the 1962 war with China, which resulted in a daunting defeat for India, diplomatic talks for confidence-building in the India-China border areas were initiated by the Rao government in 1993, resulting in the landmark Agreement on the Maintenance of Peace and Tranquillity along the Line of Actual Control (LAC), the defacto border between India and China.

The agreement also provided a framework for ensuring security along the LAC between both sides until a final agreement on clear demarcation of the border is reached out. The 1993 agreement created an expert group consisting of diplomats and military personnel to advise the governments on the resolution of differences in perception and alignment of the LAC. The pact was signed in Beijing in September 1993, during PM Rao’s visit to China.

Former top diplomat of India Shivshankar Menon noted in one of his books that the 1993 agreement was “the first of any kind relating specifically to the border between the Republic of India and the People’s Republic of China … It formalized in an international treaty a bilateral commitment by India and China to maintain the status quo on the border. In effect, the two countries promised not to seek to impose or enforce their versions of the boundary except at the negotiating table.”

The 1993 pact was followed by another one in 1996, the Agreement on Military Confidence-Building Measures. The following two decades saw a number of agreements being signed and new working mechanisms being formalized, even though two major standoffs occurred in the Ladakh sector in 2013 and 2020 respectively and one in between in the Sikkim sector in 2017.

The agreements served as the basis upon which robust economic ties flourished in the 2000s and 2010s, before turning cold as a result of Chinese aggression of 2020 in Ladakh. However, the 1993 agreement still was a landmark deal as we consider the need for peace in today’s increasingly adversarial ties between the two nuclear-armed Asian giants.

Integrates with Asia’s regional architecture

Before the early 1990s, India’s regional involvements to its east remained limited to its socio-cultural ties, even though the region falls under India’s extended neighbourhood, particularly Southeast Asia. But, since 1992, when the Look East Policy (LEP) was formulated under the Rao government, India has been venturing into the region to improve its abysmal record of economic and trade ties with countries the region.

New Delhi began reaching out to the ASEAN or the Association of Southeast Asian Nations in 1992 and was made a Sectoral Partner of the association in the same year. Thus, India kicked-off the process of its integration into the broader Asian regional architecture.

In 1996, India became a member of the ASEAN Regional Forum, a key platform for talks on issues of security in the wider Indo-Pacific region. India became ASEAN’s summit-level partner in 2002 and a strategic partner in 2012.

A free trade agreement (FTA) was agreed between ASEAN and India in 2010. And in 2014, the erstwhile LEP was upgraded into the Act East Policy (AEP). Today, the ASEAN region remains at the centre of India’s evolving Indo-Pacific policy.

Bonhomie with the superpower across the oceans, the United States

1998 was an important year, not just for India, but for the world. Until May that year, only the five permanent members of the United Nations Security Council possessed nuclear capabilities. That year, ‘Buddha smiled again’ in the deserts of India’s Rajasthan state, as India under PM Atal Bihari Vajpayee successfully conducted a series of underground nuclear bomb tests, declaring itself a nuclear state, 24 years after its first nuclear test in 1974 code-named ‘Smiling Buddha’.

The move surprised even the US intelligence agencies, as India managed to go nuclear by bypassing keen US satellite eyes that were overlooking the testing site. Shortly after this, Pakistan also declared itself a nuclear state.

India’s nuclear tests invited severe international condemnation for New Delhi and badly affected its relationship with Washington, resulting in a recalling of its Ambassador to India and imposed economic sanctions, which was a big blow for India’s newly liberalised economy.

But, a bonhomie was reached between India and the US in a matter of two years and then US President Bill Clinton visited India in March 2000, the first presidential visit since 1978. The Indo-US Science and technology Forum was established during this visit and all the sanctions were revoked by following year.

Bharat Karnad, a noted Indian strategic affairs expert, notes in one his books that, “Vajpayee’s regime conceived of ‘strategic autonomy’ to mask its cultivating the US, which resulted in the NSSP”.

The Next Steps in Strategic Partnership (NSSP) between the US and India was launched in January 2004 that covered wide ranging areas of cooperation such as nuclear energy, space, defence and trade. This newfound warmth in Indo-US relations was taken to newer heights with the conclusion of the landmark civil nuclear deal between 2005 and 2008.

Today, India is a key defence partner of the United States, having signed all the four key foundational pacts for military-to-military cooperation, the latest being the Basic Exchange and Cooperation Agreement (BECA) for geo-spatial cooperation, signed in October 2020. The two countries are key partners in the Quad grouping and share similar concerns about an increasingly assertive China in the Indo-Pacific region.

Like his predecessors, Prime Minister Narendra Modi has been trying to cultivate this special relationship with the United States, reinforced by cooperation in the Quad grouping and also by constantly engaging a 4.8-million strong Indian diaspora in the United States.

The leaders of both countries, from Vajpayee to Modi and from Clinton to Trump have reciprocated bilateral visits to each other’s countries. And, India looks forward to the Biden-Harris administration for new areas of cooperation.

But, a recent military manoeuvre in April, this year, by a US Navy ship (which it calls a FONOP or Freedom of Navigation Operation) in India’s exclusive economic zone, off Lakshadweep coast, casted a shadow over this relations.

The US openly stated in social media that it entered the area without seeking India’s prior consent and asserted its navigational rights. This invited mixed reactions, as it was highly uncalled for. While some analysts consider it humiliating, others think that the incident occurred due to the difference of perceptions about international maritime law in both countries.

Today, along with the US, India skilfully manages its ‘historical and time-tested’ ties with Russia, a strategic foe of the US, and moves forward to purchase Russian-made weapon systems, such as the S-400 missile defence system, even after a threat of sanctions. But, in the past several years, India has been trying to diversify its defence procurements from other countries such as France and Israel and has been also promoting indigenisation of defence production.

A BRICS formula for responsible multilateralism

India is a founding member of the BRICS grouping, formalised in 2006, now consisting of Brazil, Russia, India, China, and South Africa – the emerging economies of that time with a potential to drive global economic growth and act as an alternate centre of power along with other groupings of rich countries such as the G-7 and the OECD (Organisation for Economic Co-operation and Development).

India always stood for a responsible global multilateral system and rules-based order. Indian leaders have attended all summit-level meetings of BRICS since 2009 unfailingly. Last year, the summit took place in the backdrop of India-China border standoff in Ladakh, under Russia’s chair, a common friend of both countries, where the leaders of India and China came face-to-face for the first time, although in virtual format.

The primary focus of BRICS remains economic in nature, but it also takes independent stances on events occurring in different parts of the world. The grouping also established a bank to offer financial assistance for development projects known as the New Development Bank (NDB) based in Shanghai, China, in 2014, with an Indian as its first elected president.

BRICS also became the first multilateral grouping in the world to endorse the much-needed TRIPS waiver proposal jointly put forward by India and South Africa at the World Trade Organisation (WTO) to suspend intellectual property rights on Covid vaccine-making during the duration of the pandemic to provide developing countries that lack adequate technologies with means to battle the virus.

As India gears up to host this year’s upcoming BRICS summit, there is no doubt that being part of the grouping has served the country’s interests well.

Manoeuvring the SCO, along the shores of the Indo-Pacific

The SCO or the Shanghai Cooperation Organisation is a regional organisation consisting of eight Eurasian powers, largest in the world both in terms of land area and population covered. It stands for promoting mutual cooperation and stability, where security issues can be freely discussed and conflicts are attempted to be resolved.

India is not a founding member of the SCO, which was created in 2001. Both India and Pakistan were admitted as full members in 2017. The grouping’s members also include Russia, China and four Central Asian countries, excluding Turkmenistan.

Sharing a common platform with Pakistan and China and the presence of a long-term friend, Russia, has helped India diplomatically in key occasions. Using the SCO platform, the existing differences between member states can be discussed and prevented from escalating into major conflicts.

This was evident most recently visible in 2020 when the foreign ministers of India and China agreed on a plan for the disengagement of Indian and Chinese troops from the LAC, as a major step in the diffusion of tensions in Ladakh that had erupted since May that year.

But, Russia and China collectively oppose the usage of the term ‘Indo-Pacific’, something that surfaced into political discourse with the famous speech delivered by the former Japanese Prime Minister Shinzo Abe in August 2007 in the Parliament of India, calling for “the confluence of two seas” and hinting at a new maritime continuum of the Indian and Pacific Oceans.

It is in this context that the grouping of India, Japan, Australia and the United States gained prominence. The four Quad countries came together to offer humanitarian assistance following the 2004 Indian Ocean tsunami, the ambit of the grouping’s co-operation ranges from maritime security to cooperation in Covid vaccine production and distribution.

After a decade since the first joint naval exercise of the four Quad countries took place in 2007, the ASEAN’s Manila summit in 2017 provided a platform for the four countries to connect with each other and enhance consultations to revive the four-nation grouping.

The Quad has been raised to the summit level now with the March 2021 virtual summit, and has also conducted two joint naval exercises so far, one in 2007 and the other in 2020. This loose coalition is widely perceived as a counterweight to an increasingly assertive China.

India is the only country in the Quad that shares a land border with China. At the same time, India is also the only country that is not a formal security ally of the United States, meaning if India quits, the Quad ceases to exist, while the other three countries can still remain as treaty allies. However, setting the US aside, cooperation among the other three Quad partners has also been witnessing a boom since the last year.

India and Japan have expanded co-operation in third countries in India’s neighbourhood such as Sri Lanka, Bangladesh and Myanmar to improve connectivity and infrastructure in the region and offer an alternative to China’s trillion-dollar Belt and Road Initiative, which is perceived as having implications of a potential debt-trap aimed at fetching strategic gains.

Amid the pandemic, both the countries have joined hands with Australia to launch a Supply Chain Resilience Initiative (SCRI) to diversify key supply chains away from China.

However, India doesn’t perceive a free and open Indo-Pacific as an exclusionary strategy targeted at containing some country, rather as an inclusive geographic concept, where co-operation over conflict is possible. This was articulated by Prime Minister Modi in 2018 at the Shangri La Dialogue in Singapore.

Various additions were made to this view in later stages, as the concept evolved into a coherent form, representing New Delhi’s expanding neighbourhood. This vision aligns well with related initiatives such the Security and Growth for All in the Region (SAGAR) and the Indo-Pacific Oceans Initiative (IPOI), aimed at improving maritime security, trade, connectivity and management of shared resources.

The future

For India, this is an era of complex multi-alignment, different from the Cold War-era international system, where multiple centres of power exist. At different time periods in the past, India has adapted well to the changing circumstances and power dynamics in the international system.

India’s strategic posture today, despite being aspirational, is to have good relations with all its neighbours, regional players, and the major powers, to promote rules-based order, and in the due process to find its own deserving place in the world.

In July, last year, India’s External Affairs Minister, S. Jaishankar has made it clear that India ‘will never be part of an alliance system’, even though a tilt towards the US is increasingly getting visible, taking the China factor into account. Jaishankar also stated that global power shifts are opening up spaces for middle powers like India.

As the world tries to avoid another Cold War, this time between the United States and China, the competing geopolitics of the Eurasian landmass and the Indo-Pacific maritime region is poised to add up to New Delhi’s many dilemmas in the coming years.

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