by Prachi Raj (firstname.lastname@example.org), MPhil student at the Department of Political Science, University of Delhi.
The recent Rohingya crisis in South Asia raised questions regarding the refugee policies of the Indian state, which seem to take a very diplomatic position on the refugee problem. This article seeks to argue that India’s kindness for some refugee communities and ignorant behaviour for Muslim refugees has raised a doubt on its way of refugee dealings, and has posed question on the very secular face of the Indian state. How the Supreme Court as well as the Indian government has viewed and handled the refugee problem has been discussed in detail in this article.
The health and stability of a modern democracy depends not only on the justice of its basic structure but also on the qualities and attitudes of its citizens. Democracy as a form of life rests upon active consent and participation, but it is interesting to note that citizenship is distributed according to passive criteria of belonging, like birth upon a piece of land, which is called jus soli; and ethnic belonging to a group of people, which has been called as jus sanguinis (Benhabib 1999).
The contemporary global scenario is marked by the emergence of new forms of identity and difference politics. With proceeding globalisation and fragmentation, a conflict between human rights and sovereignty claims has also increased. On the one hand, a worldwide consciousness about universal principles of human rights is growing; and on the other, particularistic identities of nationality, ethnicity, religion, race, and language along with the claim of sovereignty are also asserted. The right of a collectivity to define itself by asserting power over a bounded territory, creates a distinction between “us” and “them,” that is, between those who belong to the sovereign people and those who do not.
Cross-border movements of population in South Asia are regarded as a serious issue, which is seen as affecting internal security, political stability, and international relations, and not only the structure and composition of the labour market; which has seized the attention of heads of governments in the region and have often been the basis for bilateral negotiations. The thrust of several state policies within the region is to close borders and to clearly define who is a citizen in a particular region. This has become a challenging task both for the citizen as well as for the state because historically, borders were not clearly demarcated or did not exist, because of which people moved freely with little regard for national boundaries or legal notions of citizenship (Kymlicka and Norman 1994). For scholars like Myron Weiner (1993) the population flows across the boundaries in South Asia are driven by political and economic circumstances, by which they often diminish the ethnic heterogeneity of the origin country, and have made the countries of destination more heterogeneous. A politically driven model of international migration is a highly conflictual one both for the sending and receiving countries. Therefore, it has been argued that the disturbed zone of citizenship inside the nation state may not be resolved without resolving the contests beyond the nation state (Roy 2010). This article seeks to examine the ongoing debate over citizenship in a global era, and how the Indian state is dealing with the problem of refugees and immigrants.
Citizens and Citizenship
A citizen is defined as someone who is a member of a national or political community and enjoys equal rights and responsibilities with all other citizens (Macfoy 2014). Citizenship has been viewed as a fruit of the modern state in which citizens are expected to be loyal to the cause of the state and willing to make all the sacrifices required, and in the same state, foreigners are suspected to be less trustworthy or even potential security risks (Hammar 1986). Citizenship is the legally acknowledged membership of a state and is thus not voluntary. It is commonly invoked to convey a state of democratic belonging or inclusion, yet this inclusion is usually premised on a conception of a community that is bounded and exclusive (Bosniak 2006). The targeting of non-citizens as undeserving of public benefits not only “jeopardised human rights of immigrants, it also reflects the existing and persistent devaluation of important families who experienced higher levels of hunger and food insecurity due to welfare reform” (Fujiwara 2005: 121).
Citizenship as an idea and as an ideal institution has several regressions, incompleteness, contests, and often represent an axis of subordination, which have been seen as “discontents” by many scholars, and therefore becomes relevant in postcolonial societies like India, which has been marked by hierarchies of caste, class, race, religion, and gender. The principle of equality as an abiding feature of citizenship remains elusive and fettered. It is the civic community, which is often considered as an important goal of citizenship (Jayal 2013).
Part II of the Constitution and the Citizenship Act, 1955 define citizenship and prescribes several rules for its acquisition. Articles 5 to 9 of the Constitution define citizenship at its commencement. The mode of acquisition of citizenship through birth, descent, naturalisation and incorporation of territory, after the commencement of the Constitution is provided in Sections 3 to 7 of the Citizenship Act, 1955. However, it is unclear about the stateless individual who is recognised as a refugee by the United Nations High Commissioner for Refugees (UNHCR) and will be able to invoke citizenship for her child (Chaudhury and Samaddar 2015).
In the contemporary era of globalisation, citizenship is not confined to a single state but is virtually global in its extent, which has two aspects: first, emerging from normative cosmopolitanism it has an enduring cosmopolitan consciousness, which is superior to nationalism; and second, the globality of citizenship consists in the belief that globalisation has created the material conditions in which cosmopolitan existence may be possible (Roy 2010). Universal human rights transcend the rights of citizens and extend to all persons considered as moral beings. Therefore, citizenship has been defined as a divided concept in the era of liberal democracies in which it stands for both universalist and exclusionary commitments (Bosniak 2006).
Who Is a Refugee in India?
International law defines refugees as persons who have been forced to flee the country of their origin and are unable or unwilling to return there due to the fear of persecution on account of their race, religion, ethnicity, and political beliefs (Bhattacharjee 2008). Refugees are seen as threatening a host country’s security by increasing demands on its scarce resources or threatening the security of regions by their sheer presence. They are different from other migrants or aliens because they are compelled to flee from their country, unlike the latter who legally or illegally voluntarily leave their home country for a host of reasons. Refugee flows have assumed heightened significance as potential triggers of international intervention. The claim that certain individuals pose a “national security threat” has been misguided throughout history to prevent political dissidents from entering countries and has led to the creation of categories of “unwanted” aliens (Benhabib 1999).
India has not defined clearly the category of refugees. Their status is predominantly determined by the extent of protection they receive from the Government of India, which in turn has often been influenced by political equations than by humanitarian or legal obligations. The largest single bilateral flow in South Asia took place in 1947 when the partition of the Indian subcontinent took place, and in 1971 when Bangladesh became independent. Nearly seven million Bengali Hindus had crossed the border into West Bengal, Tripura, and Assam to refugee camps built and sustained by the Indian government (Weiner 1993). Unlike the earlier population movements, the present international migration flows within South Asia are largely unacceptable, uncontrollable, and a source of conflict among countries of the region and often within the receiving country. On the one hand, certain refugee communities like Sri Lankan Tamils, Chakma, and Tibetan refugees have received sufficient protection by the Indian state. On the other hand, refugee communities like Bangladeshi Muslims, Afghans, Burmese, and many others following Islam have witnessed several discriminations by the same state. They have not ensured any kind of protection from the government as such. Chin refugees in Mizoram have assimilated into local communities and have not been recognised or acknowledged either by the UNHCR or the Indian state. Due to which they are subjected to persistent harassment and abuse from their employers and police. This raises a question: How can the Indian state, which proudly declares itself as secular, have two kinds of treatments or measures to deal with refugee communities?
According to Myron Weiner (1993), refugees are not passive actors, and the political influence of refugees on the host government is enhanced by their ties to local ethnic kinfolk. For scholars like B S Chimni (2000: 244), in the era of globalisation,
humanitarianism present in the International law, which is mainly the ideology of hegemonic states, is causing the erosion of the fundamental principles of refugee protection and is transforming the very character of UNHCR, by manipulating the language of human rights to legitimise a range of dubious practices.
Unable to control entry, governments often attempt to influence the exit policies of their neighbours. Several strategies to deal with an unwanted and unacceptable entry have been applied by the government. Exercising diplomatic pressure on the sending country, armed intervention, border clashes, as well as violent attacks and abuses by the local elites of the receiving country have often been applied.
Jacques Derrida’s (2005) idea of “unconditional hospitality” implies the welcoming of the foreigner before imposing any conditions on them, it must address the other. Enabling refugees to use the law and legal mechanisms to protect and advance their rights and acquire greater control over their lives could have important implications. The increasing significance of citizenship in social policy perpetuates a persistent devaluation of immigrant families. Therefore, legal empowerment has been regarded as
the potential to improve the administration of justice within refugee camps, to increase the accountability of host state authorities and aid providers, and to contribute to the achievement of durable solutions either by providing the skills and knowledge to facilitate resettlement or local integration or by empowering refugees to be actors in resettlement and transitional justice initiatives.(Purkey 2013: 260)
Rohingyas and Statelessness
The 1954 UNHCR convention relating to the status of stateless persons defined a stateless person as someone who is not considered as a national by any state under the operation of its law. Rohingya refugees are a glaring example of a stateless community. In India, they have been represented as foreigners, suspected Bangladeshi nationals, and impoverished, and therefore a large number have been and continue to be arrested for violation of the Foreigners Act, 1946, and the Passports (Entry into India) Act, 1929 along with other legislation. The Rohingya Muslims who have been forcibly ousted from Myanmar are living precarious lives, and have fled mainly to India and Bangladesh. The military assault on them in Myanmar compelled a large number of them to flee the country in order to save their lives. They are mainly the Burmese Muslims, bilingual Bengali and Burmese speaking people. They fled in early 1978 as well when the Burmese government launched a movement to check on “illegal immigrants,” followed by several interventions made by the Burmese Army in the effort to end local insurgency in the Arakan region. They are mainly the descendants of agricultural labourers who had migrated from Bengal to the Arakan region when borders were not clearly demarcated. They were compelled to flee as they were lacking national registration certificates and thus were unable to prove their Burmese citizenship. They are now the world’s most persecuted minority without citizenship.
Because of their continuous fleeing due to persecution, and in search of livelihood they have been considered as the “boat people” (Chaudhury and Samaddar 2015). In the latest round of citizenship verification process initiated in 2015, the Rohingyas in Myanmar were asked to identify themselves as Bengalis and provide evidence of three generations of ancestry. They do not have access to government jobs or education. Under international law, they are considered as de jure stateless, that is, a person who is not considered as a national by any state under the operation of its law. To overcome the profound vulnerability that affects stateless people, the convention upholds the right to freedom of movement for stateless persons lawfully on the territory and requires states to provide them with identity papers and travel documents (UNHCR 1954). The 1961 Convention on the Reduction of Statelessness sets certain rules for the conferral and non-withdrawal of citizenship to prevent cases of statelessness from arising, by requiring states to grant citizenship to children born on their territory, or born to their nationals abroad, and by prohibiting the withdrawal of citizenship from states’ nationals. Despite such rules, there has been rarely any improvement in Rohingyas’ situation. Therefore, it can be argued that the use of legal citizenship status as a form of demarcation for entitlement to life-sustaining benefits further delineates immigrants and refugees as “outside” the social, political, and economic policy of the nation.
CAA and NRC
The Citizenship (Amendment) Act (CAA), 2019, which was passed recently, updates the existing Citizenship Act, 1955, in order to provide Indian citizenship to minority communities fleeing persecution from neighbouring countries. It seeks to offer citizenship to Hindus, Parsis, Buddhists, Sikhs, Jains, and Christians from Bangladesh, Afghanistan, and Pakistan. The clear intention behind bringing it, is to grant citizenship to Hindus fleeing persecution in Muslim-majority countries neighbouring India, which was clearly mentioned in the election manifestos of the present ruling party. However, this initiative could be seen as one of the important Hindutva project, which has serious implications for both the Muslim immigrants as well as Muslims residing in India itself. The act has created a climate of tension in the country, as it violates the basic principles and secular values of the Constitution since it proposes to club religion and citizenship together. The CAA and NRC were strongly opposed not only by the Muslim population of the country, but also sparked several protests across the educational campuses. Along with this, several states also passed resolutions against it.
Clearly, the initiative sparked a serious bifurcation between those supporting and opposing it. The NRC has been brought with an intention of preventing Muslim immigrants specially from acquiring certain rights and benefits in India. People were told to prove their descendance of Indian citizenship by showing legacy data and the lineage, in order to get registered on the NRC. This sparked another protest and a pan-India campaign with a slogan of “Kaagaz nahi Dikhayenge” (we will not show our papers). It can be argued here is that NRC and CAA have been used as a political tool to identify and harass Muslims residing in India, and was implemented immediately after the persecution of Rohingyas in South Asia, as the Indian state did not want to take the responsibility of providing shelter to Muslim immigrants.
The union home minister’s declaration regarding the implementation of NRC on a pan India level for identifying “intruders” is a good example to show the Hindutva agenda of the Indian right wing. His famous “chronology” of amending CAA first for providing citizenship to non-Muslim refugees, and then introducing NRC to identify intruders not only targets and excludes a huge chunk of Muslim population regardless of their ancestry by snatching their citizenship rights, but also enlarges the category of stateless people. It is unclear what will happen to them next, how to deal with their problems, as neither can they be deported to India, Bangladesh, Pakistan or to any other South Asian country due to lack of arrangements. Moreover, such identification will also intensify the persecution of already persecuted Muslim immigrants like Rohingyas, furthering their victimisation of statelessness.
Refugees and the Constitution
The Constitution of India guarantees certain rights to all persons within India. Though the word “refugee” is not mentioned as such, the outsider people or those who are not Indian citizens are termed as “aliens” in the Constitution. Hence, certain fundamental rights have been granted to the people seeking asylum in India. These rights are equality before law under Article 14 of the Constitution, which states that the state shall not deny to any person equality before the law or the equal protection of the laws within the Indian territory. Protection of life and liberty under Article 21 is another right, which states that no person shall be deprived of his life or personal liberty except according to the due procedure established by law. The Supreme Court of India further expanded this right in Louis De Raedt v Union of India (1991) and State of Arunachal Pradesh v Khudiram Chakma (1993) cases and included foreigners under the ambit of this law (Bhattacharjee 2008). The right to a fair trial has also been included in this right which is uniformly applicable to both citizens and aliens. Articles 245 and 246 gives power to the central government to frame laws with respect to matters that broadly fall under subjects relating to foreigners, aliens, and immigrants (Chaudhury and Samaddar 2015).
The legal framework to protect refugees in India has been often characterised by an eclectic interplay of administrative ad hocism and judicial assertion of constitutional rights (Bhattacharjee 2008). The Constitution provides certain fundamental rights that often have been further expanded by the Indian Judiciary. A glaring example for this argument could be the case of National Human Rights Commission v State of Arunachal Pradesh (1996), in which the Supreme Court of India restrained the forcible expulsion of Chakma refugees from the state. Further, the court directed the state government to ensure that the life and personal liberty of each and every Chakma residing within the state should be protected. However, the inconsistent and arbitrary government policies, which have been dictated more by political exigencies than by legal imperatives have often created an obstruction in accessing these rights and institutions.
Need for the Refugee Law
India is one of the most prominent refugee receiving countries in the world. The Indian state has treated a few refugee communities reasonably well but has not formulated a well-defined refugee law. The absence of clearly defined statutory standards subjects refugees and asylum seekers to inconsistent and arbitrary government policies. The Foreigners Act of 1946 highlights the ad hoc nature of refugee law and practice in India. The Indian state lacks a national refugee law which can specify the rights of and govern the treatment of refugees. This lack has subjected different refugee communities to varying standards of protection. The Citizenship (Amendment) Bill, 2016 reflected this. Normatively, India seems to be committed to refugee protection, but practically she treats different communities differently. India has not signed either the 1951 United Nation’s Convention Relating to the Status of Refugees or the 1967 Protocol. It has been argued by many that the reason behind India’s refusal to sign the convention was that it was very Euro centric. Yet, India has recognised the right of refugees to non-refoulement and has maintained its basic commitment to humanitarian protection of refugees. In fact, India has signed numerous human rights instruments and is a party to the Universal Declaration on Human Rights 1948, International Convention on Civil and Political Rights 1966, etc, which demands an obligation to secure to refugees a right to status determination, and India did so.
It can be concluded that the Indian law and the state practice provide distorted and incomplete protection to refugees. In fact, initiatives like the CAA and NRC, which clearly discriminate against a particular community have created several problems among its own citizens. The lack of refugee laws and clarity regarding refugees has created several problems in accessing institutions for the sake of the protection of the refugee community in India. The Indian state’s divisive way of treating certain refugee communities differently has resulted in a fear of persecution and helplessness among them, which also poses a question mark over the secular nature of the former. The absence of a national law on protection, rights, and entitlements of refugees has resulted in the denial of basic protection and has further pushed them into a condition of vulnerability. This has also made the refugees dependent on the state and they have no recourse against systematic violations made by the state itself. The Indian law is inadequate to deal with the problem of statelessness. For stateless people like the Rohingyas, the Indian state neither offers protection nor avenues to legal residence in the country, due to which they are witnessing continued detention
Source: Economic & Political Weekly