Connect with us

South Asia

India: The deportation of Rohingya refugee in the light of National Security

Abhishek Trivedi

Published

on

In the light of India’s plan to deport illegal Rohingya refugee, Author discusses and critically analyses India’s International legal obligation in the background of India’s constitutional and statutory provisions keeping in mind the State’s national security concern. Parallel he also suggests an idea of comprehensive legislation on refugee in India

 A kind of political intellectual hustle and bustle has been started in the world over India’s plan to deport all Rohingya immigrants who are living in different parts of India illegally or without having any valid refugee card. On August 9, 2017, the Indian minister of state for home affairs, Kiren Rijiju, told the parliament that “the government has issued detailed instructions for deportation of illegal foreign nationals including Rohingyas,” noting that there were around “40,000 Rohingyas living illegally in the country.”  Reacting to this, South Asia director Meenakshi Ganguly said that “India has a long record of helping vulnerable populations fleeing from neighboring countries, including Sri Lankans, Afghans, and Tibetans,” and thereby Indian authorities should abide by India’s international legal obligations and not forcibly return any Rohingya to Burma (Myanmar) without first fairly evaluating their claims as refugees.”  The National Human Rights Commission (NHRC) of India also issued the notice to Central Government after taking suo motu cognizance and sought a detailed report within four weeks on government’s plan to deport about 40,000 illegal Rohingya immigrants.  NHRC also contended that Indian judiciary has given wide protection to the refugees, even unregistered, under the broad ambit of Article 21 of the Constitution of India. United Nations Secretary General Antonio Guterres has also shown his concern about India’s plans to deport Rohingya refugees from Myanmar underlining that refugees should not be returned to countries where they fear persecution once they are registered.

India’s Legal obligation under International law

It is true that India is not a party to 1951 Convention on Refugees and also the 1967 Protocol. But this does not preclude and keep India out of International and domestic legal obligation. As far as International legal obligation is concerned, notwithstanding India is not a signatory to the 1951 Convention principle of customary international law does apply to India in so far as it is consistent with existing municipal law of the Country or if there is a void in the municipal law.  Principle of Non-refoulement has become a well-recognized part of customary international law, thus applies to India also. Principle of Non-refoulement says that “No State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”.  Principle of Non-refoulement is central to refugee protection that prohibits return of an individual to a country in which he or she may be persecuted. Academic consensus on this point has been of the view that the principle of non-refoulement as articulated in Article 33 is broad in scope, offering expansive protection to refugees and must be construed expansively and without limitation, and as such includes no exceptions for other treaty obligations such as extradition.  The principle of non-refoulement applies to a wide spectrum of people, including those seeking asylum as well as those already granted asylum, regardless of whether the individual entered the host state legally.  Furthermore, non-refoulement is commonly regarded as a right which extends through time, applying to the individual as soon as he arrives and throughout his stay in the country of refuge.  The broad scope and ambit of prohibition of refoulement has been taken to prohibit any act of removal (including rejection, expulsion, deportation, and return) that would place the individual at risk, regardless of the formal description of the act given by the removing state.

On the other hand, the principle of Non-refoulement is also not an absolute principle in the sense that it has two exceptions which have the potential to weaken the principle of non-refoulement and leave refugees vulnerable to violations of underlying human rights. These two exceptions which the receiving state may exercise either “to protect the community (public order)” or “defend national security”.  But it is also true that there is a lack of historical consensus toward exceptions to Non-refoulement. Therefore, if the principle of Non-refoulement does contradict with any provision of the existing domestic legal framework in India, to that extent it ceases to be effective. For instance, when a refugee entered into India without a valid passport or travel documents, he may be arrested by immigration authorities and generally handed over to the police and a FIR is lodged against him under the Passport (Entry into India) Act, 1920 and the Passport Act, 1967.

India’s obligation under Municipal Law

The relevant statutes which deal with refugees in India are the Foreigner’s Act, 1864, the Registration of Foreigner’s Act, 1939, the Foreigner’s Act, 1946, the Fugitive Offenders Act, 1881, the Indian Extradition Act, 1903, the Passport (Entry into India) Act, 1920 and the Passport Act, 1967. Though there is no comprehensive legislation in India which governs and regulate refugee problems, but still Indian judiciary by its creative interpretation of Article 21 of the Constitution which guarantees the right to life and liberty to all persons and not merely to citizens. Refugees may not be citizens but they are certainly persons, and hence they are entitled to the provisions of Article 21. The Indian Supreme Court has interpreted the word ‘life’ in Article 21 to mean not merely an animal life but a dignified life , and hence refugees being persons, are also entitled to the same.  In the same way, rights to equality (Article 14), right to protect in respect of conviction of offences (Article 20). Right to protect against arbitrary arrest (Article 22) and the freedom to practice and propagate their own religion (Article 25) also apply to refugees. It is beyond any doubt that India judiciary has given and protected the number of basic human rights of refugees in India, from right to life, liberty, arbitrary detention, freedom of religion to access to UNHCR office in India where they can get registered with UNHCR. On the other hand, it has also to be noted that SC in Louis De Raedt v. Union of India and Ors,  and S.G. Getter v. The Union of India,  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, even principle of Non-refoulement and many other Human Rights Principles which are individual centric as referred in UDHR can be circumvented and weakened by way of a legislation in India, and that too India can do even without violating International law as if there is happened to be conflict between municipal law and international law (customary international law) courts must perforce apply national law and give effect to the municipal law. 

Rohingyas: are they threat to State Security

Refugees are no doubt foreign nationals but they are human beings also and before taking any big step, it would well be appropriate and fair for the government to look into every aspect of the situation. It has to be noted that The Rohingyas, who fled to India after violence in the Western Rakhine State of Myanmar, have settled in Jammu, Hyderabad, Haryana, Uttar Pradesh, Delhi-NCR and Rajasthan. Keeping that in mind, The Home Ministry of India has said that infiltration of (Rohingyas) from the Rakhine state of Myanmar into Indian Territory, especially in recent years, besides being a burden on the limited resources of the country, also aggravates security challenges posed to India.  In a communication to all states, the Union home ministry had said the rise of terrorism in last few decades has become a serious concern for most nations as illegal migrants are able to getting recruited by terrorist organizations. Rohingya refugee as a fear for State security has been noted in 2013 when terrorist attack took place in Bodh Gaya—a blast executed to avenge the killings of Rohingya Muslims in Myanmar.  In February, 2017 it has been reported that Rohingyas the minority ethnic community were being abetted by outfits such as Lashkar-e-Taiba  and thereby exploiting radicalization among the Rohingya community, which posed a serious security risk to India. Foreign Minister of Bangladesh AH Mahmood Ali has also shown his concerned about illegal Rohingyas around three to four lakhs staying in Bangladesh and may pose a serious threat to Bangladesh’s national security in future. He went on to say that The Rakhine people have got engaged in various misdeeds, including drug smuggling, arms and human trafficking and manufacturing drug on the border.

Plan ahead for refugee including Rohingyas

Refugee in India have been concerned as a matter of policy rather than law where how to deal with the refugee has also been seen as a part of India’s foreign policy especially in the context of Tibetan refugee. In the light of abovementioned facts and legal background, that till today, the country has evolved a practical balance between human and humanitarian obligations on the one hand and security and national interest on the other. No one leaves home unless home is the mouth of a shark. Keeping that in mind and realizing being a signatory to number of International Human Rights Conventions/Covenants India should legislate a comprehensive law which could uniformly deal with the problems of refugee influx in India and exodus to their original place provided they will not face any king of further persecution thereon and full protection to their life, security and enjoyment will be ensured corresponding to State security will not be compromised.

Abhishek Trivedi is pursuing his LL.M. degree in International Law from Faculty of Legal Studies, South Asian University-an International University established by SAARC Nations, New Delhi. His fields of interest and research in academics are Public international law, Law of International Organization, Human Rights law, Conflict of laws, commercial arbitration and International Environmental Law

Continue Reading
Comments

South Asia

The problem of pellet guns in Kashmir

Published

on

Jammu and Kashmir is the only northern state of the Indian union dogged with an overridden unhealthy political atmosphere. The valley of Kashmir is beset with a major governance deficit which has given renewed impetus to the dissenting voices of the masses day in and day out. Dissent is the hallmark of a democracy which acts as a medium for the expression of the masses against the system. There are certain rights and duties guaranteed by the Indian constitution for the citizens, including the right to freedom of expression and right to life. Caught in the quagmire of a political crisis that has deeply permeated the society, the people in Kashmir from time to time vent up their dissent. Hartals are the tools for the masses through which they ventilate their pent up emotions. Kashmir is not a different case. It is also amuck with crisis and caught in a looming distress day in and day out. Kashmir is the most sensitive zone of the whole Asian sub-continent, where situations turn awry with the passage of time, like the seasons of the year and is the only state of the Indian Union where there has been a reckless use of the pellet guns without any regard for the precious life of the common man. This is a sort of dichotomy.

The use of pellet guns is a major problem which has not only maimed, blinded and killed the masses, but also shaken the collective conscience of the people, who have fallen prey to a different approach of dichotomy of the government. The killing of militant commander Burhan Wani in 2016 brought about a volcanic eruption in valley which not only deteriorated the situation in Kashmir, but also increased the massive alienation of the masses. The waves of grief and anger against the day-to-day killings and maims that the people felt increased with each passing day. In order to control the crisis, the security agencies used the deadly pellets which caused heavy damage to the sufferers. More than 1200 people lost their vision in 2016. According to a report of State Human Rights Commission (SHRC), more than 75% people suffered injuries due to pellet guns, ranging from minor to major in 2016.There was a heavy loss of life.

Although small in size, these black metallic balls have deteriorated our young generation. The use of pellet guns has wreaked crisis in Kashmir. For the security agencies, it is meant to disperse the crowds, but, for the common masses, it is a problematic affair. Pellet guns are pump-action shotguns which fire a cluster of small, round, metal pellets with high velocity over a broad range.

Recently, after the killing of a militant from Pahalgam area during the anti-establishment protests, a number of people were injured due to pellet A nurse working in the same area personally told me that we healed at least 100 plus pellet injured victims. The bloody Sunday of this year’s April and the subsequent clashes of the protestors with the security agencies left many injured, with multiple cases of pellet injuries to the eyes of the protestors.

Naseer Ahmad Bhat of Seer Hamdan, Anantnag was killed by the security forces during the post-Burhan phase of 2016 protests in Kashmir. He was an able worker and a good cricketer who fell silent to the pellets. Not only the collective conscience of the people was shaken, but also a state of disparity ensued. These deadly pellets have not even spared the school going children and snatched the power of seeing of the victims. Insha, a pellet victim who passed her matriculation examination last year despite odds is an inspiring hope for the likewise victims.

Pellets cause a number of biological ramifications in the victim, like the loss of vision, the state of paralysis, in case, the damage is caused to the spinal cord, defacements, and death in case of damage to the vital organs of the body, like, heart, kidneys, lungs, brain, etc. Moreover, the pangs of guilt that a victim suffers in silence dishearten one and all. The use of pellet guns as a crowd-control method during protests, whether in case of cordon and search operations (CASO) or common protests has added a volley of questions to the psyche of the common man? Being a part of the Indian union, that two acing the crown, Kashmir has been treated otherwise all through the passing times. People have got million queries, but, there are no solid answers to their problems and subsequent tactful solutions.

The substitution of pellet guns with PAVA shells can in no way control the crisis. The way people of other parts of the country are treated should form a close semblance in case of protests in Kashmir. Why the security forces are using pellets and bullets against the people whom the system claims with a sense of belonging. There can be other alternatives, like the use of water cannons without any damage and subsequent ensuing crisis that engulfs the society and creeps the psyche of the common men. If this is the notion of the system to punish dissent, then dissent itself takes a u-turn of additions and alterations with the passage of time. The bleeding valley is giving a close call for one and all to unite and ensue a state of peace and order. There is an urgent requirement of the administrative and political will to stop the use of pellet guns in Kashmir.

Whatever is happening to the people of Kashmir has not been experienced by the other people of the country. After all, it is a question of humanity. People suffer out of the ways as circumstances decide or may be destined otherwise. But to expect a peaceful valley without the intervention of a political will would be an underestimation of statements. There is a dual intolerance in Kashmir, one from the people and next from the system. The systematic targeting of the protestors from a point blank range irrespective of regard for the human life has shattered several families in Kashmir

Kashmir is passing through the phases of testing times with each passing day. The ugly turn of the situations and recurring events and the amateur dealing of the same has created an unhealthy atmosphere everywhere, where people have lost faith in the governance systems. The safety and security of every Tom, Dick and Harry is the looming question of the hour. Exits from dwellings and adieus from home don’t guarantee the safe return of the leavers. The interlocutor of the centre in vale, Mr. Dineshwar Sharma once reiterated that, ‘the priority is to prevent Kashmir turning into Syria’. The imbroglio has crippled the educational scenario, down slowed the economy, increased the unemployment, but, above all, the ultimate question is the redressal of the problem at stake, which for God sake can erupt into a lava-laden volcano one day and engulf the whole peace, stability and order of the South Asia, if not tactfully handled in the current times by the government.

The victory of BJP at the centre with the thumping majority after the 2014 Lok Sabha elections with the slogan of ‘minimum government, maximum governance’ falls short of words and has partially failed in the state of J&K.The killings of the common masses are in no way remedies to the political ailments. There should be the ultimate regard for the human lives. Why has the blood of the people become so cheap .When will peace return to the valley of Kashmir? The government of India had constituted an expert committee in July 2016 to explore other possible alternatives to pellet guns as non-lethal weapons. Although, the committee submitted its report and the recommendations were taken into account by the government for implementation. But, what happened afterwards lies in the public domain for discussion. The use of pellet guns is tantamount to the violation of rights of the people.

In order to direct the valley towards the state of peace and development, the role of multiple players of India, Pakistan and Valley is necessary. This way the government can make a significant contribution in the restoration of normalcy. The need of the hour is the unity of all the stakeholders of the society, like government, non-governmental parties, NGO’s, etc. to help these pellet victims via financial or other means.

Although, there has been a strong criticism of the use of pellet guns not only at the local level ,but also at the international level, but the main part of the problem resolution lies with the government of India and the state. Although, much has been said and written about the people of Kashmir with the flow of waters of the river Jhelum, but the stability of the region is a farfetched dream. Here, comes the role of the government into play. The use of pellet guns against the dissenting masses has wreaked havoc and wounded the collective psyche of the people, particularly those who have lost their near and dear ones due to the deadly metallic balls. Those who have fully or partially lost the vision and are living in dark suffer in silence. The government should review the situation and put a full stop for the future use of pellet guns. Those who have lost their dear ones should be financially compensated or by provision of bread and butter. However, the clarion call of the people is the complete ban and stoppage of these pellet guns in order to prevent the further damage and restore the faith of the people in the system. The government of India should pass a resolution to put a terminal pause to the use of pellet guns in the state of Jammu and Kashmir.

The vital task for the current times is to build a consensus for the total pellet ban. The use of non-lethal methods by the security agencies like water cannons could be the best alternatives. This will not only restore the faith of the people in governance, but also generate a feeling of belongingness among the masses. The bruised scars of the pellets have defaulted the trust of the people in the political system. Although, the situation is worrisome for one and all, but, in which direction the boat sails lies with the future course of action. After all action speaks louder than the words.

Continue Reading

South Asia

Pakistan not a Threat for Israel: Clearing Misconceptions

Uzge A. Saleem

Published

on

Ever since 1998; the beginning of Pakistan’s nuclear age, the state’s self-defense mechanism has been a source of worry and unrest for India and the US. Both these states never really accepted that a small state like Pakistan could develop the prestigious asset and was now well capable of defending itself against external threats. US opposed the program on the grounds that it had been tested after the signing of NPT and that it is an “illegitimate” program. Their basic concern was Pakistan not being a party to NPT and US non-proliferation efforts failing. India, though very much against the program, could not openly oppose it on the same grounds because its own Nuclear Program had the same issue i.e. it was tested after the signing of NPT and they had also not signed the treaty.

There  are  a  lot  of  ambiguities  surrounding   Pakistan’s  nuclear  program  which  are  there intentionally for the benefit and security of the program and state. However, there is one thing which has been kept very clear since day one and that is the Indo centric nature of Pakistan’s nuclear program. The program was developed because the conventionally strong next door neighbor had developed their program. Pakistan, in an attempt to ensure territorial security, had to develop its own program as well. US, China, Russia, France or the UK were never a threat to Pakistan nor was Pakistan on their attack agenda. India on the other hand was in close territorial proximity, a historic enemy, conventionally stronger and now also a nuclear power. After evaluating all these factors any national strategist would suggest a nuclear program for Pakistan and that is exactly what the state did.

There have been news in an Israeli newspaper,  Haaretz, that Pakistan is more of a threat to Israel than Iran. This was published on 20 May, 2018. The grounds for this allegation have been identified  as  Pakistan’s  growing  arsenal  and  other  similar  reasons  which  have  always  been popular in the western policy circles. Iran, a conventional enemy, one with which there have been numerous conflicts, has been ruled out as a threat to Israel since they do not have a nuclear arsenal.

However, there are many concrete facts that have been ignored in this propagating debate. For instance Pakistan has had no wars with Israel. Both the states have never even been on the verge of an all-out war. The states have never even had a conflict that could’ve led to war. Although Iran does not have  a nuclear arsenal at present but that did not stop the states from indulging into conflicts before and although initiating a nuclear war might not be a possibility for Iran but a conventional war is very much within their skill set.

Pakistan is already indulged in a two front defense strategy on its eastern and western borders. The Taliban threat from the west and the ever present Indian threat from the east, particularly along the  line of control is already consuming most of the state’s energy, attention and resources. Under such circumstances, jumping into any sort of venture as far as Israel without any apparent or direct conflict seems like an amateur move which is not expected from Pakistan whatsoever. If any linkages are being made based on the fact that Iran and Israel have cordial ties then they are weak to begin with. On the other hand India and Iran have more than friendly ties and India’s nuclear arsenal is growing rapidly with the US help. However, this does not mean that just because India is a nuclear state and a friend of Iran, it will be inclined to attack Israel.

Pakistan’s nuclear program is solely for the safety and security of the nation against any external threat.  The program  is not for the state  to pick  and choose  enemies  and start  non-existing conflicts. That is definitely not how Pakistan intends to use its resources and deviate from the real agenda which is to protect the state of Pakistan. The only condition under which Pakistan would use its nuclear weapons against any state would be if they choose to attack the territory of Pakistan in a nuclear or non-nuclear manner. The state has been absolutely clear about this from the very beginning of its  nuclear era.

Continue Reading

South Asia

Behind Indo-Pacific Vision

Published

on

Mike Pompeo’s recent speech titled, ‘America’s Indo-Pacific Economic Vision – at the Indo-Pacific Business Forum’ at the US Chamber of Commerce, Washington DC has been carefully observed across Asia.  Beijing has understandably, paid close special attention to it. Pompeo emphasized on the need for greater connectivity within the Indo-Pacific, while also highlighting the role which the US was likely to play (including financial investments to the tune of 113 Million USD in areas like infrastructure, energy and digital economy). The US Secretary of State while stating that this vision was not targeted at anyone, he did make references to China’s hegemonic tendencies, as well as the lacunae of Chinese connectivity projects (especially the economic dimension).

The Chinese reaction to Pompeo’s speech was interesting. Senior Chinese government officials were initially dismissive of the speech, saying that such ideas have been spoken in the past, but produced no tangible results.

An article in the Global Times ‘Indo-Pacific strategy more a geo-political military alliance’ response is significant. What emerges clearly from this article is that Beijing is not taking the ‘Indo-Pacific vision’ lightly, and neither does it rule out the possibility of collaboration. The article is unequivocal, in expressing its skepticism, with regard to the geo-political vision of the Indo-Pacific vision. Argues the article:

While the geopolitical connotation of the strategy may lead to regional tensions and conflicts and thus put countries in the region on alert

It is optimistic with regard to the geo-economic dimension, saying that this would be beneficial, and would promote economic growth and prosperity. What must be noted is that, while the US vision for ‘Indo-Pacific’ has been put forward as a counter to the Belt and Road Initiative (BRI), the article also spoke about the possible complementarities between the US vision for ‘Indo-Pacific’ and China’s version of BRI. While Mike Pompeo had spoken about a crucial role for US private companies in his speech, the article clearly bats in favor of not just between Indian, Japanese, Chinese, US governments as well as companies. This is interesting, given the fact that China had gone to the extent of dubbing the Indo-Pacific vision as the foam on the sea” “that gets attention but will soon dissipate”

While there is absolutely no doubt, that there is immense scope for synergies between the Indo-Pacific vision, and BRI especially in the economic sphere. China’s recent openness towards the Indo-Pacific vision is welcome, but one of the propelling factors is the growing resentment against the economic implications of some BRI projects. While in South Asia, Sri Lanka is a classical example of China’s debt trap diplomacy, where Beijing provides loans at high interest rates (China has taken over the strategic Hambantota Project, since Sri Lanka has been unable to pay Beijing the whopping 13 Billion USD). Even in ASEAN grouping, countries are beginning to question the feasibility of BRI projects, Malaysia which shares close economic ties with Beijing is reviewing certain Chinese projects (this was one of the first steps undertaken by  Mahathir Mohammad after taking over the reigns as Prime Minister of Malaysia).

Second, that while for long the Indo-Pacific Vision has been dubbed as a mere ‘expression’ and one of the criticisms has been a lack of gravitas in the economic context (and even now 113 Million USD is not sufficient). Developments over recent months, including the recent speech, indicate that The Department of State seems to be keen to dispel this notion that the Indo-Pacific narrative is bereft of substance. Here it would be pertinent to point out, that Pompeo’s speech was followed by an Asia visit (Indonesia, Malaysia, Singapore).

Countries which are key stakeholders in the Indo-Pacific narrative need to keep in mind the following:

US needs to walk the course and apart from investing, more it needs to think of involving more countries, including Taiwan and more South Asian countries like Sri Lanka and Bangladesh in the Indo-Pacific partnership.

Second, the Indo-Pacific speaks in favor of democracy as well as greater integration, but not only are countries becoming more inward looking, even their stand on democracy, and Human Rights is ambiguous.  Japan is trying to change its attitude towards immigration, and is at the forefront of promoting integration and connectivity within the Indo-Pacific. Neither US, nor India, Japan or Australia have criticized China for its excesses against the Uighur minority in Xinjiang province.

Finally, there is scope for China to be part of the Indo-Pacific, but it needs to look at certain projects beyond the rubric of the BRI. A perfect instance is the Bangladesh China, India Myanmar BCIM Corridor which India was willing to join, but China now considers this project as a part of BRI.

Conclusion

In conclusion, Beijing can not be excluded from the ‘Indo-Pacific’ narrative, but it can not expect to be part of the same, on its own terms. It is also important, for countries like US and India to speak up more forcefully on issues (within their domestic contexts, as well as external) pertaining to Freedom of Speech, Human Rights and  immigration issues, given that all these are essential for a ‘Free and Open Indo-Pacific’

Continue Reading

Latest

Trending

Copyright © 2018 Modern Diplomacy