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.
The Not-So-Missing Case of Indian Innovation and Entrepreneurship
Hitendra Singh and Gauri Noolkar-Oak*
Recently, an article published in Modern Diplomacy caught our attention. The author has cited Mr. Wozniak, co-founder of Apple, and found his famous statement on Indians lacking enterprise and innovation to be ‘music to his ears’. He has then gone on to paint Indians in broad strokes – ironic, for it is something he has accused Indians of doing – and labelled them as a nation lacking entrepreneurial and innovative spirit. While his reasoning certainly has an element of truth and an instant appeal, our response looks to add nuances to his argument and provide a more realistic and complete picture of enterprise and innovation in India.
To begin with, the terms ‘entrepreneurship’ and ‘innovation’ cannot be used interchangeably; not all entrepreneurs are innovators, and vice versa. There are more than 50 million medium and small businesses operating in India which contribute 37% of India’s GDP and employ around 117 million people. These numbers sufficiently prove that entrepreneurship is alive and kicking in the Indian society; Indians are running businesses not only in India but are leading and successful entrepreneurs in many countries of Asia, Africa and rest of the world. Hence, an argument that Indians lack entrepreneurship does not hold much strength.
In the case of innovation and creativity, a different story is emerging. It is slow but is happening and it is solving some of the largest social and developmental challenges in India – from grassroots, to research labs, to top-tier institutions such as ISRO and various DRDO labs. At a global level, India has not only moved up six places in its GII ranking in 2017, but is also ranked second in innovation quality. India has also won international acclaim for its innovative and cost-effective technology; such as its first mission to Mars in 2014, the Mangalyaan, was successful in the first attempt, made entirely with domestic technology, and cost less than the Hollywood movies ‘Gravity’ and ‘The Martian’. It is surprising that the author spots lack of innovation in a household broom but does not see innovation in a nation that sends a successful Mars mission on a budget that is less than that of a Hollywood movie about Mars.
At the national level, grassroots innovation and entrepreneurship are gaining more and more institutional recognition; the National Innovation Foundation (NIF) and the annual Festival of Innovation at the Rashtrapati Bhavan are perhaps the only high-level government initiatives supporting and celebrating innovation in the world. Additionally, many universities and educational institutes across the country host innovation competitions, festivals and incubators.
Several remarkable individuals are nurturing India’s growing innovative and entrepreneurial spirit.Prof. Anil K. Gupta founded SRISTI (Society for Research and Initiatives for Sustainable Technologies and Institutions) in 1993 and the Honey Bee Network in 1997 to connect innovators from all sections of the society to entrepreneurs, lawyers and investors. For more than 12 years, he has walked around 6000 kilometres across the country, discovering extraordinary grassroots innovations on the way. Dr. Raghunath Mashelkar, an eminent chemical scientist, has led multiple scientific and technological innovations in the country, earlier as the Director-General of Council of Scientific and Industrial Research, and now as the President of the National Innovation Foundation.
And then, there are thousands of common men and women, hailing from various walks of life, innovating continuously and creatively to solve pressing everyday problems in the Indian society. There are the famous Arunachalam Muruganantham, who invented a cost-effective way of manufacturing sanitary napkins, and Mansukhbhai Prajapati, who invented a clay refrigerator which runs without electricity. Then there are Mallesham from Andhra Pradesh, who sped up the process of weaving Kochampalli sarees and reduced the physical pains of the weavers, and Shri Sundaram from Rajasthan, who found a way to grow a whole tree in a dry region with just a litre of water. Raghav Gowda from Karnataka designed a cost-effective and painless machine to milk cows, while Mathew K Mathews from Kerala designed a solar mosquito destroyer. Dr. Pawan Mehrotra of Haryana has developed a cost-effective version of breast prosthesis for breast cancer survivors while Harsh Songra of Madhya Pradesh has developed a mobile app to detect developmental disorders among children.
Three women from Manipur, OinamIbetombi Devi, SarangthenDasumati Devi and Nameirakpam Sanahambi Devi invented an herbal medicine that is proven to promote poultry health. Priyanka Sharma from Punjab developed a low-cost biochip to detect environmental pollutants, while Dr. Seema Prakash from Karnataka revolutionised eco-agriculture by inventing a cost-effective plant cloning technique. AshniBiyani, the daughter of Future Group CEO Kishore Biyani, leads the Khoj Lab, which collaborates with the NIF to help commercialise grassroots innovations and ideas.
These and thousands of such examples present a very encouraging picture of the creativity and innovation of Indians. The innovation that the author admires are rooted in a context. Apple and Google (or Lyft or Uber or Spotify) could be created because there was an end consumer who was looking to pay for their products. There are many India innovator-entrepreneurs, such as those mentioned above, who have created products for a necessarily less glamorous but useful India context. Products like brooms and packaged food add convenience to the time-stretched urban and middle and upper middle classes; with a large unskilled and semiskilled workforce competing vigorously for such jobs, does the Indian society have an incentive to invest in innovating them?
Having said that, it is true that upsurge of innovation in India is relatively recent, i.e. about two to three decades old. It is also true that the Indian society has been experiencing socio-economic affluence on such a broad scale only for the past three decades, since the market reforms of 1991. It has been 70 years since Indians have gained sovereignty and control over their resources. The top five innovative countries according to the GII – Switzerland, Sweden, Netherlands, USA and UK – have been sovereign states for about at least two and a half centuries. It would perhaps then be more accurate to compare India’s current innovation scenario with, for instance, the USA’s innovation scenario in the mid-19th century.
Further, given the economic and resource drain faced by the Indian society over centuries, Indian innovation was geared more towards surviving rather than thriving. This explains the ‘group mentality’ strongly rooted in mainstream Indian society; staying and cooperating in a group increased one’s capacity to cope with and survive through all kinds of adversity. Individualistic aspirations, beliefs and actions were then a price to be paid for the security blanket it offered. And yet, once relative stability and affluence began to set in, the innovative and creative instincts of Indians lost no time in bursting forth.
Long story short, both innovation and entrepreneurship are thriving in India. They might not be as “macro” or glamourous as Apple or Uber, but they are solving fundamental problems for the Indian masses. Undoubtedly, there is a lot of room for improvement and growth – India has a long way to go to be recognised as a global leader in innovation and entrepreneurship. However, the scenario is not by any means bleak, as these many examples point out. The trajectory of enterprises and innovation in India is only upward. The future is promising.
* Gauri Noolkar-Oak is Policy Research Analyst at Pune International Centre, a liberal think tank based in Pune, India.
Views expressed by the authors are personal and do not reflect those of the organisation.
Changing Perceptions: How Pakistan should use Public Diplomacy
Traditionally in International Relations the concept of “hard power” remained the basic focus for states so as to achieve power and dominance in international anarchic system but with the changing scenarios in the age of globalization, economic interdependency and rapid spreading of information through various tools, “Soft Power” concept emerged which had great impact on states’ foreign policies. This term of soft power was first coined by Joseph Nye in mid-1960’s which could be defined as the ability of the state to influence others without coercion and this soft power technique basically revolves around three major instruments such as Culture, political values, and foreign policies. Apart from soft power concept, there is another basic concept called as “Public Diplomacy”. This could be described as the further dimension of soft power because by practicing Public Diplomacy state can initiate their soft power policies and can achieve the desired outcomes by winning the hearts and minds of foreign audience and non-governmental entities because by doing so it will enable government and decision making bodies of foreign states to act accordingly.
In context of South Asia particularly taking into consideration the important developing state Pakistan whose basic concern is to maintain friendly and neutral relations with other states Public diplomacy could, however, help it to maintain its relations in the regional complex structure where India is seen as the dominant power and alongside India the powerful rise of China as an external actor in South Asia. By efficient usage of Public diplomacy, Pakistan can improve its bilateral ties with the neighboring states.
The image of Pakistan in foreign media is portrayed as the state which is full of many internal and external challenges and it is also not portrayed as the safe country to travel into. In order to improve the image, Pakistan firstly needs to improve its relations with states within the region and for that India which is considered as hostile neighbor Pakistan should effectively use its public diplomacy tool it should introduce exchange programs because by educating youth and by deploying positive image in their minds Pakistan can influence them which could bring change in the coming years and also by increasing tourism activities. This would make foreigners aware of the fact that Pakistan is a secure state. Similarly, cultural activities, sports diplomacy, literature, art, and media could also have a great impact so as to change the perceptions.
Hence it could be suggested that for the development of state it is important for Pakistan to improve its public diplomacy by changing perceptions of public and elite of neighboring states it should take basic steps which could change the negative image which is in limelight since 9/11. Pakistan by enhancing the public diplomacy in other states as the tool to implement its soft power policies would, however, be able to economically, culturally and politically improve its stance in the International arena.
Rolling back militancy: Bangladesh looks to Saudi Arabia in a twist of irony
Bangladesh, in a twist of irony, is looking to Saudi Arabia to fund a $ 1 billion plan to build hundreds of mosques and religious centres to counter militant Islam that for much of the past decade traced its roots to ultra-conservative strands of the faith promoted by a multi-billion dollar Saudi campaign.
The Bangladeshi plan constitutes the first effort by a Muslim country to enlist the kingdom whose crown prince, Mohammed bin Salman, has vowed to return Saudi Arabia to an undefined form of ‘moderate Islam,’ in reverse engineering.
The plan would attempt to roll back the fallout of Saudi Arabia’s global investment of up to $100 billion over a period of four decades in support of ultra-conservative mosques, religious centres, and groups as an antidote to post-1979 Iranian revolutionary zeal.
Cooperation with Saudi Arabia and various countries, including Malaysia, has focused until now on countering extremism in cooperation with defense and security authorities rather than as a religious initiative.
Saudi religious authorities and Islamic scholars have long issued fatwas or religious opinions condemning political violence and extremism and accused jihadists of deviating from the true path of Islam.
The Saudi campaign, the largest public diplomacy effort in history, was, nevertheless, long abetted by opportunistic governments who played politics with religion as well as widespread discontent fuelled by the failure of governments to deliver public goods and services.
The Bangladeshi plan raises multiple questions, including whether the counter-narrative industry can produce results in the absence of effective government policies that address social, economic and political grievances.
It also begs the question whether change in Saudi Arabia has advanced to a stage in which the kingdom can claim that it has put its ultra-conservative and militant roots truly behind it. The answer to both questions is probably no.
In many ways, Sunni Muslim ultra-conservatism and militancy, violent and non-violent, despite sharing common roots with the kingdom’s long-standing theological thinking and benefitting directly or indirectly from Saudi financial largess, has created a life of its own that no longer looks to the kingdom for guidance and support and is critical of the path on which Prince Mohammed has embarked.
The fallout of the Saudi campaign is evident in Asia not only in the rise of militancy in Bangladesh but also the degree to which concepts of supremacism and intolerance have taken root in countries like Malaysia, Indonesia and Pakistan. Those concepts are often expressed in discrimination, if not persecution of minorities like Shia Muslims and Ahmadis, and draconic anti-blasphemy measures by authorities, militants and vigilantes.
Bangladesh in past years witnessed a series of brutal killings of bloggers and intellectuals whom jihadists accused of atheism.
Moreover, basic freedoms in Bangladesh are being officially and unofficially curtailed in various forms as a result of domestic struggles originally enabled by successful Saudi pressure to amend the country’s secular constitution in 1975 to recognize Islam as its official religion. Saudi Arabia withheld recognition of the new state as well as financial support until the amendment was adopted four years after Bangladeshi independence.
In Indonesia, hard-line Islamic groups, led by the Islamic Defenders Front (FPI), earlier this month filed a blasphemy complaint against politician Sukmawati Sukarnoputri, a daughter of Indonesia’s founding father Sukarno and the younger sister of Megawati Sukarnoputri, who leads President Joko Widodo’s ruling party. The hardliners accuse Ms. Sukarnoputri of reciting a poem that allegedly insults Islam.
The groups last year accused Basuki Tjahaja Purnama aka Ahok, Jakarta’s former Christian governor, of blasphemy and spearheaded mass rallies that led to his ouster and jailing, a ruling that many believed was politicized and unjust.
Pakistan’s draconic anti-blasphemy law has created an environment that has allowed Sunni Muslim ultra-conservatives and powerful political forces to whip up popular emotion in pursuit of political objectives. The environment is symbolized by graffiti in the corridor of a courthouse In Islamabad that demanded that blasphemers be beheaded.
Pakistan last month designated Islamabad as a pilot project to regulate Friday prayer sermons in the city’s 1,003 mosques, of which only 86 are state-controlled, in a bid to curb hate speech, extremism and demonization of religions and communities.
The government has drafted a list of subjects that should be the focus of weekly Friday prayer sermons in a bid to prevent mosques being abused “to stir up sectarian hatred, demonise other religions and communities and promote extremism.” The subjects include women rights; Islamic principles of trade, cleanliness and health; and the importance of hard work, tolerance, and honesty.
However, they do not address legally enshrined discrimination of minorities like Ahmadis, who are viewed as heretics by orthodox Muslims. The list risked reinforcing supremacist and intolerant militancy by including the concept of the finality of the Prophet Mohammed that is often used as a whip to discriminate against minorities.
Raising questions about the degree of moderation that Saudi-funded mosques and religious centres in Bangladesh would propagate, Prince Mohammed, in his effort to saw off the rough edges of Saudi ultra-conservatism, has given no indication that he intends to repeal a law that defines atheists as terrorists.
A Saudi court last year condemned a man to death on charges of blasphemy and atheism. Another Saudi was a year earlier sentenced to ten years in prison and 2,000 lashes for expressing atheist sentiments on social media.
Saudi Arabia and other Muslim nations have long lobbied for the criminalization of blasphemy in international law in moves that would legitimize curbs on free speech and growing Muslim intolerance towards any open discussion of their faith.
To be sure, Saudi Arabia cannot be held directly liable for much of the expression of supremacism, intolerance and anti-pluralism in the Muslim world. Yet, by the same token there is little doubt that Saudi propagation of ultra-conservatism frequently contributed to an enabling environment.
Prince Mohammed is at the beginning of his effort to moderate Saudi Islam and has yet to spell out in detail his vision of religious change. Beyond the issue of defining atheism as terrorism, Saudi Arabia also has yet to put an end to multiple ultra-conservative practices, including the principle of male guardianship that forces women to get the approval of a male relative for major decisions in their life.
Prince Mohammed has so far forced the country’s ultra-conservative religious establishment into subservience. That raises the question whether there has been real change in the establishment’s thinking or whether it is kowtowing to an autocratic leader.
In December, King Salman fired a government official for organizing a mixed gender fashion show after ultra-conservatives criticized the event on Twitter. The kingdom this week hosted its first ever Arab Fashion Week, for women only. Designers were obliged to adhere to strict dress codes banning transparent fabrics and the display of cleavages or clothing that bared knees.
In February, Saudi Arabia agreed to surrender control of the Great Mosque in Brussels after its efforts to install a more moderate administration failed to counter mounting Belgian criticism of alleged intolerance and supremacism propagated by mosque executives.
Efforts to moderate Islam in Saudi Arabia as well as Qatar, the world’s only other Wahhabi state that traces its ultra-conservatism to the teachings of 18th century preacher Mohammed ibn Abdul Wahhab, but has long interpreted them more liberally than the kingdom, have proven to be easier said than done.
Saudi King Abdullah, King Salman’s predecessor, positioned himself as a champion of interfaith dialogue and reached out to various groups in society including Shiites and women.
Yet, more than a decade of Saudi efforts to cleanse textbooks used at home and abroad have made significant progress but have yet to completely erase descriptions of alternative strands of Islam such as Shiism and Sufism in derogatory terms or eliminate advise to Muslims not to associate with Jews and Christians who are labelled kaffirs or unbelievers.
Raising questions about Saudi involvement in the Bangladeshi plan, a Human Rights Watch survey of religion textbooks produced by the Saudi education ministry for the 2016-2017 school year concluded that “as early as first grade, students in Saudi schools are being taught hatred toward all those perceived to be of a different faith or school of thought.”
Human Rights Watch researcher Adam Coogle noted that Prince Mohammed has remained conspicuously silent about hate speech in textbooks as well as its use by officials and Islamic scholars connected to the government.
The New York-based Anti-Defamation League last year documented hate speech in Qatari mosques that was disseminated in Qatari media despite Qatar’s propagation of religious tolerance and outreach to American Jews as part of its effort to counter a United Arab Emirates-Saudi-led economic and diplomatic boycott of the Gulf state.
In one instance in December, Qatari preacher Muhammed al-Muraikhi described Jews in a sermon in Doha’s Imam Muhammad ibn Abd al-Wahhab Mosque as “your deceitful, lying, treacherous, fornicating, intransigent enemy” who have “despoiled, corrupted, ruined, and killed, and will not stop.”
No doubt, Saudi Arabia, like Qatar, which much earlier moved away from puritan and literal Sunni Muslim ultra-conservatism, is sincere in its intention to adopt more tolerant and pluralistic worldviews.
Getting from A to B, however, is a lengthy process. The question remains whether the kingdom has progressed to a degree that it can credibly help countries like Bangladesh deal with their demons even before having successfully put its own house in order.
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