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

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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

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South Asia

India’s Unclear Neighbourhood Policy: How to Overcome ?

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India has witnessed multiple trends with regards to its relations with its neighbours at a time vaccine diplomacy is gaining prominence and Beijing increasing the pace towards becoming an Asian superpower, whereby making these reasons valid for New Delhi to have a clear foreign policy with respect to its neighbourhood.

Introduction

The Covid Pandemic has led to increased uncertainty in the global order where it comes to power dynamics, role of international organisations. New Delhi has tried to leave no stone unturned when it comes to dealing with its immediate neighbours.  It has distributed medical aid and vaccines to smaller countries to enhance its image abroad at a time it has witnessed conflicts with China and a change in government in Myanmar. These developments make it imperative for New Delhi to increase its focus on regionalism and further international engagement where this opportunity could be used tactically amidst a pandemic by using economic and healthcare aid.

According to Dr. Arvind Gupta, New Delhi has to deal with threats coming from multiple fronts and different tactics where it is essential for New Delhi to save energy using soft means rather than coercive measures.. India under Vaccine Maitri has supplied many of COVAXIN doses to Nepal, Bangladesh and Sri Lanka where many have appreciated this move. The urgency of ensuring humanitarian aid during these periods of unprecedented uncertainty are essential in PM Modi’s Security and Growth For All ( SAGAR) initiative, which focusses on initiating inclusive growth as well as cooperation in the Indian Ocean Region.

This pandemic witnessed various threats coming in India’s neighbourhood through multiple dimensions which include maritime, land, cyber as well as air threats where adversaries are using these to put pressure on New Delhi to settle land as well as marine disputes as per their terms.  These encirclement strategies have made it necessary for India to open up various options such as holding maritime joint exercises with like-minded countries, developing partnerships, providing economic as well as healthcare support to weaker countries plus having a clear insight about changing global dynamics and acting as per them.

This piece will discuss about various changing tactics, pros and cons which India has with respect to developing its national security vis-à-vis its neighbourhood, why should it prioritise its neighbourhood at the first place?

Background

India’s Neighbourhood is filled with many complexities and a lot of suspicion amongst countries, some viewing India because of its size and geography plus economic clout as a bully where it is wanting to dominate in the region putting others aside. This led to New Delhi play an increased role in nudging ties first with its neighbours with whom it had multiple conflicts as well as misunderstandings leading to the latter viewing Beijing as a good alternative in order to keep India under check.

Ever since PM Modi has taken charge at 7 RCR, India’s Neighbourhood First Policy has been followed increasingly to develop relations, to enhance understandings and ensure mutual cooperation as well as benefit with its neighbours. The relations with Islamabad have not seen so much improvement as compared to other leaders in the past. Even though former Prime Minister Nawaz Sharif was invited for PM Modi’s 1st Swearing In ceremony in 2014, terrorist activities have never stopped which could be seen through Pathankot, Uri and Pulwama terror attacks which killed many of the Indian soldiers. Even though surgical strikes were conducted on terror camps in retaliation to these bombardments, Islamabad has not changed its heart at all about its security or regional demands. New strategies and friendships are being developed where Beijing has played a major role in controlling power dynamics.

The Belt and Road initiative, first time mentioned during President Xi’s 2013 speech in Kazakhstan, then officially in 2015,  lays emphasis of achieving a Chinese Dream of bringing countries under one umbrella, ensuring their security, providing them with infrastructure projects such as ports, railways, pipelines, highways etc. The main bottleneck is the China Pakistan Economic Corridor when it comes to India’s security threats, passing through disputed boundaries of Gilgit and Baltistan in Pakistan Occupied Kashmir till Gwadar. Other projects have been initiated in Chittagong, Hambantota, Gwadar , Kyapkyou. These projects form a String Of Pearls in the Indo Pacific where New Delhi is being balanced against through economic plus development incentives being given to the member countries under the project. That’s why in the recent past, New Delhi is asserting its influence in the region, looking at new dimensional threats where Beijing’s threats in the maritime domain in the islands in East as well as South China seas are not being seen favourably in many countries such as ASEAN, US, Australia and Japan which is giving India an opportunity to look towards countries with a common threat. Amidst this great power struggle between Washington and Beijing, New Delhi is stuck between a rock and hard place i.e., having a clear and strong foreign policy with its neighbours.

In this region, India has a sole threat which is mainly Beijing where the latter has achieved prowess technologically and militarily where New Delhi lags behind the latter twenty fold. So, there is a need for improvising military technology, increase economic activities with countries, reduce dependence on foreign aid, ensure self-reliance.

Situation

South Asia is backward when it comes to economic development, human development and is a home to majority of the world’s population which lives below poverty line. The colonial rule has left a never-ending impact on divisions based on communal, linguistic and ethnic grounds. Even, in terms of infrastructure and connectivity, New Delhi lags behind Beijing significantly in the neighbourhood because the latter is at an edge when it comes to bringing countries under the same umbrella. Due to these, many initiatives have been taken up by New Delhi on developing infrastructure, providing humanitarian aid to needy countries.

There have been numerous efforts made by India with respect to reaching out to the Neighbours in 2020 through setting up of the SAARC Covid Fund where many Neighbourhood countries such as Nepal, Bangladesh and Sri Lanka gave contributions to ensure cooperation, joint scientific research, sharing information, healthcare kits where the countries contributed USD $ 18 million jointly towards this fund where New Delhi made an initial offer of USD $ 10 million.

New Delhi has even mustered ties with the Association of Southeast Asian countries during the pandemic under its Act East Policy where proper connectivity through the Northeast could be useful in easing movement of goods but currently, the infrastructure in Northeast needs more improvement where issues such as unemployment, poor connectivity are prevalent whereby disconnecting it from rest of the other states. This region could play an important role in linking Bangladesh, Myanmar to New Delhi along with the proposed India-Thailand –Myanmar Trilateral Corridor. Focus has also been laid to develop inland waterways, rail links and pipelines to ease connections between countries, making trade free and more efficient.

India is focussing on developing the Sittwe and Paletwa ports in Myanmar under the Kaladan Development Corridor, at the cost of INR 517.9 Crore in order to provide an alternative e route beneficial for the Northeast for getting shipping access

Summing Up

 These above developments and power display by a strong adversary, give good reasons for New Delhi to adopt collective security mechanisms through QUAD, SIMBEX and JIMEX with a common perception of having safe and open waters through abiding to the UNCLOS which China isn’t showing too much interest in, seen through surveillance units, artificial islands being set up on disputed territories which countries likewise India are facing in context to territorial sovereignty and integrity. These developments make it important for India to look at strategic threats by coming together with countries based on similar interest’s vis-à-vis Chinese threat.

There is a need for India to develop and harness its strength through connectivity and its self reliance initiative ( Aatmanirbharta ) so that there is no dependence on any foreign power at times of need . Proper coordination between policy makers and government officials could make decision making even easier, which is not there completely because of ideological differences, different ideas which makes it important for the political leadership to coordinate with the military jointly during times of threats on borders. Self-reliance could only come through preparedness and strategy.

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India is in big trouble as UK stands for Kashmiris

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 A London-based law firm has filed an application with British police seeking the arrest of India’s army chief and a senior Indian government official over their alleged roles in war crimes in Indian-administered Kashmir.

Law firm Stoke White said it submitted extensive evidence to the Metropolitan Police’s War Crimes Unit on Tuesday, documenting how Indian forces headed by General Manoj Mukund Naravane and Home Affairs Minister Amit Shah were responsible for the torture, kidnapping and killing of activists, journalists and civilians – particularly Muslim – in the region.

“There is strong reason to believe that Indian authorities are conducting war crimes and other violence against civilians in Jammu and Kashmir,” the report states, referring to the territory in the Himalayan region.

Based on more than 2,000 testimonies taken between 2020 and 2021, the report also accused eight unnamed senior Indian military officials of direct involvement in war crimes and torture in Kashmir.

The law firm’s investigation suggested that the abuse has worsened during the coronavirus pandemic. It also included details about the arrest of Khurram Parvez, the region’s most prominent rights activist, by India’s counterterrorism authorities last year.

“This report is dedicated to the families who have lost loved ones without a trace, and who experience daily threats when trying to attain justice,” Khalil Dewan, author of the report and head of the SWI unit, said in a statement.

“The time has now come for victims to seek justice through other avenues, via a firmer application of international law.”

The request to London police was made under the principle of “universal jurisdiction”, which gives countries the authority to prosecute individuals accused of crimes against humanity committed anywhere in the world.

The international law firm in London said it believes its application is the first time that legal action has been initiated abroad against Indian authorities over alleged war crimes in Kashmir.

Hakan Camuz, director of international law at Stoke White, said he hoped the report would convince British police to open an investigation and ultimately arrest the officials when they set foot in the UK.

Some of the Indian officials have financial assets and other links to Britain.

“We are asking the UK government to do their duty and investigate and arrest them for what they did based on the evidence we supplied to them. We want them to be held accountable,” Camuz said.

The police application was made on behalf of the family of Pakistani prisoner Zia Mustafa, who, Camuz said, was the victim of extrajudicial killing by Indian authorities in 2021, and on behalf of human rights campaigner Muhammad Ahsan Untoo, who was allegedly tortured before his arrest last week.

Tens of thousands of civilians, rebels and government forces have been killed in the past two decades in Kashmir, which is divided between India and Pakistan and claimed by both in its entirety.

Muslim Kashmiris mostly support rebels who want to unite the region, either under Pakistani rule or as an independent country.

Kashmiris and international rights groups have long accused Indian troops of carrying out systematic abuse and arrests of those who oppose rule from New Delhi.

Rights groups have also criticized the conduct of armed groups, accusing them of carrying out human rights violations against civilians.

In 2018, the United Nations human rights chief called for an independent international investigation into reports of rights violations in Kashmir, alleging “chronic impunity for violations committed by security forces”.

India’s government has denied the alleged rights violations and maintains such claims are separatist propaganda meant to demonize Indian troops in the region. It seems, India is in big trouble and may not be able to escape this time. A tough time for Modi-led extremist government and his discriminatory policies. The world opinion about India has been changed completely, and it has been realized that there is no longer a democratic and secular India. India has been hijacked by extremist political parties and heading toward further bias policies. Minorities may suffer further, unless the world exert pressure to rectify the deteriorating human rights records in India.

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S. Jaishankar’s ‘The India Way’, Is it a new vision of foreign policy?

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S. Jaishankar has had an illustrious Foreign Service career holding some of the highest and most prestigious positions such as ambassador to China and the US and as foreign secretary of India. Since 2019 he has served as India’s foreign minister. S. Jaishankar also has a Ph.D. in international relations from JNU and his academic background is reflected in this book.

His main argument is simplistic, yet the issues involved are complex. Jaishankar argues that the world is changing fundamentally, and the international environment is experiencing major shifts in power as well as processes. China is rising and western hegemony is declining. We are moving away from a unipolar system dominated by the US to a multipolar system. Globalization is waning and nationalism and polarization is on the rise (p. 29). The old order is going away but we cannot yet glimpse what the future will look like. This is the uncertain world that Dr. Jaishankar sees.

Dr. Jaishankar also argues that India too has changed, it is more capable and more assertive. The liberalization program that began in 1991 has made the Indian economy vibrant and globally competitive and it is well on track to becoming the third biggest economy in the world, after China and the US.  The war of 1971 that liberated Bangladesh, the liberalization of the economy after 1991, the nuclear tests in 1998 and the nuclear understanding with the US in 2005, Jaishankar argues are landmarks in India’s strategic evolution (p. 4). So given that both India and the system have changed, Jaishankar concludes, so should India’s foreign policy.

But his prescription for India’s foreign policy, in the grand scheme of things, is the same as before – India should remain nonaligned and not join the US in its efforts to contain China. India will try to play with both sides it seems in order to exploit the superpowers and maximize its own interests (p. 9). But he fails to highlight how India can find common ground with China other than to say the two nations must resolve things diplomatically. He also seems to think that the US has infinite tolerance for India’s coyness. In his imagination the US will keep making concessions and India will keep playing hard to get.

Jaishankar has a profound contradiction in his thinking. He argues that the future will be determined by what happens between the US and China. In a way he is postulating a bipolar future to global politics. But he then claims that the world is becoming multipolar and this he claims will increase the contests for regional hegemony. The world cannot be both bipolar and multipolar at the same time.

There is also a blind spot in Jaishankar’s book.  He is apparently unaware of the rise of Hindu nationalism and the demand for a Hindu state that is agitating and polarizing India’s domestic politics. The systematic marginalization and oppression of Muslim minorities at home and the growing awareness overseas of the dangers of Hindutva extremism do not exist in the world that he lives in. He misses all this even as he goes on to invoke the Mahabharata and argue how Krishna’s wisdom and the not so ethical choices during the war between Pandavas and Kauravas should be a guide for how India deals with this uncertain world – by balancing ethics with realism (p. 63). Methinks his little digression in discussing the ancient Hindu epic is more to signal his ideological predilections than to add any insights to understanding the world or India’s place in it.  

One aspect of his work that I found interesting is his awareness of the importance of democracy and pluralism. He states that India’s democracy garners respect and gives India a greater opportunity to be liked and admired by other nations in the world (p. 8). Yet recently when he was asked about the decline of India’s democratic credentials, his response was very defensive, and he showed visible signs of irritation. It is possible that he realizes India is losing ground internationally but is unwilling to acknowledge that his political party is responsible for the deterioration of India’s democracy.

This is also apparent when he talks about the importance of India improving its relations with its immediate neighbors. He calls the strategy as neighborhood first approach (pp. 9-10). What he does not explain is how an Islamophobic India will maintain good relations with Muslim majority neighbors like Bangladesh, Maldives, and Pakistan.

The book is interesting, it has its limitations and both, what is addressed and what is left out, are clearly political choices and provide insights into how New Delhi thinks about foreign policy. So, coming to the question with which we started, does India have a new foreign policy vision? The answer is no. Dr. Jaishankar is right, there is indeed an India way, but it is the same old way, and it entails remaining nonaligned with some minor attitudinal adjustments.  

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