The Peninsula Foundation

Tag: Human rights

  • India’s Refugee Policy: Implications of an Ambiguous Approach

    India’s Refugee Policy: Implications of an Ambiguous Approach

    Abstract

    This article analyses India’s approaches to refugee issues, their limitations, and the challenges faced by refugee communities due to the absence of a comprehensive, standardised refugee policy framework. With over 200,000 refugees from neighbouring countries and others, India has not ratified the 1951 Refugee Convention and the 1967 Protocol, leading to ad hoc, inconsistent and indirect policy applications through complementary legislation. Due to this, refugee communities face significant barriers in terms of accessing education, employment opportunities, healthcare and welfare facilities, government financial aid schemes and legal provisions and protections, including government identification, leading to deportation and exclusion from Indian society. The Citizenship Amendment Act of 2019, along with the COVID-19 pandemic, complicated these conditions and exposed the dire living conditions of refugees. To address these gaps, the paper offers actionable recommendations, including developing a generalised, human-rights-oriented refugee policy that adheres to international humanitarian standards, establishing an institution for refugee protection, conducting comprehensive data collection, and creating collaborative committees that involve diverse stakeholders to address marginalised refugee groups.

    Background of the Policy Issue

    According to the 1951 United Nations Convention Relating to the Status of Refugees, refugees are defined as person/s residing outside of their national territory/boundary and is unable/unwilling to return to the country of their nationality, owing to conflict, fear and possibility of persecution on account of race, religion, nationality, membership of a group and/or political opinion (UNHCR, n.d.). The convention initially applied to European refugees but was expanded through the 1967 Protocol to cover refugees globally and remove any temporal/geographical limitations. The legality of refugee protection is governed by the 1951 Refugee Convention, the 1967 Protocol, and regional- and host-country-level instruments. The 1951 Refugee Convention and 1967 Protocol are not legally binding, leaving states with the authority and legitimacy to grant refugee status, with UNHCR support through the facilitation of international standards and the maintenance of refugee camps and asylum seeker facilities (UNHCR, n.d.).

    As of 2024, India has a refugee and asylum seeker population of more than 240,000 refugees originating from multiple neighbouring countries, including Sri Lanka, Myanmar, Pakistan, Tibet and Afghanistan (Rajan and Sreekumar, 2024). The country has been regarded as a “haven” for refugees throughout history. Yet it lacks a comprehensive domestic refugee policy for the assistance, regulation, and protection of refugees. India has also chosen not to sign the 1951 Convention and the 1967 Protocol (Khosla, 2022).

    Current Policies and Their Effectiveness

    The Foreigners Act of 1946 and the Indian Passport Act also indirectly influence India’s refugee policy, deeming those entering India without a visa to be illegal immigrants. They do not include specific approaches to refugees.

    The Indian government currently manages refugees, asylum seekers and internally displaced persons through ad hoc, arbitrary and ambiguous legal pathways. By employing a unique dual system which divides the asylum caseload between UNHCR and the government based on regions, India leaves a significant number of people in vulnerable and precarious situations (Vijayaraghavan, 2020). While the UNHCR employs the Refugee Determination System (RSD) for asylum seekers arriving from non-neighbouring countries and Myanmar, those from neighbouring South Asian countries must approach the Ministry of Home Affairs directly, resulting in inconsistent protection (Shankar and Vijayaraghavan, n.d.). The Foreigners Act of 1946 and the Indian Passport Act also indirectly influence India’s refugee policy, deeming those entering India without a visa to be illegal immigrants. They do not include specific approaches to refugees (Borah and Das, 2024).

    Several refugees and asylum seekers lack legal status despite being recognised by UNHCR, with exceedingly limited access to government schemes, health care facilities, education, identity documentation, social integration, and economic development (Vijayaraghavan, 2020). Upon recognition by UNHCR, they are issued identity cards, but these cards are rarely recognised by State governments, leaving them with insufficient protection. They also face difficulties obtaining Aadhaar identification, further restricting access to health and welfare benefits and to public services such as bank accounts (Vijayaraghavan, 2020).

    India has endorsed the 2018 Global Compact on Refugees (GCR), which requires the implementation of RSD mechanisms for the registration and identification of refugees and the just determination of asylum applications (Shankar and Vijayaraghavan, n.d.). However, India has not implemented these processes, leaving the UNHCR to handle applications under its Memorandum of Understanding with the international organisation (Shankar and Vijayaraghavan, n.d.).

    The Citizenship Amendment Act (CAA), introduced in 2019 by the ruling government, sparked widespread agitation due to its religious criteria for Indian citizenship and state protection. By specifically catering to religious minority groups from Afghanistan, Bangladesh and Pakistan, the country’s first direct legislation for the protection of refugees further marginalises specific refugee groups. It restricts access to protection (Shankar and Vijayaraghavan, n.d.).

    The Immigration and Foreigners Act, passed in April 2025, replaces the Foreigners Act, 1946; the Passport (Entry into India) Act, 1920; the Immigration (Carriers’ Liability) Act, 2000; and the Registration of Foreigners Act, 1939. While the Act does not specifically address refugees, it aims to curb illegal immigration into India and prioritise national security. The Act introduces stricter penalties for entry and stay violations by foreigners in the country and authorises Immigration Officers to examine passports and other documents as and when required, to seize them if deemed necessary, and to arrest foreigners without a warrant (Immigration and Foreigners Act, 2025). The Act also allows the Central Government to prohibit, regulate and restrict the entry of foreigners into India if they are deemed a security threat, with no mechanism for appeal. Heavy penalties for violations of the law are introduced, with entry into India without a valid visa or passport resulting in a fine of approximately Rs 5 lakh and up to 5 years’ imprisonment (Immigration and Foreigners Act, 2025).

    In September 2025, however, the Ministry of Home Affairs stated that Sri Lankan Tamil refugees who entered India before 9th January 2015 would be exempt from penal provisions if they did not hold valid travel documents (The Wire, 2025). Therefore, Sri Lankan Tamil refugees who are registered with the government will not be treated as undocumented immigrants. In another order issued in September, the Union home ministry declared that members of minority communities from neighbouring countries, including Pakistan, Afghanistan and Bangladesh, who fled to India before 31st December 2024 to escape religious persecution, will be allowed to stay despite a lack of travel documents (The Wire, 2025).

    Limitations/Gaps

    A significant limitation to adequate protection of refugee communities in India is the severe lack of awareness of existing refugee policies and the UNHCR’s role in recognition and protection. Due to the lack of a generalised refugee policy applicable throughout the country, refugees often hesitate to approach Indian authorities for fear of persecution and deportation, even when undergoing financial discrimination and mistreatment (Shankar and Vijayaraghavan, n.d.). The continued ambiguity in India’s definition of refugees also further complicates the problem.

    The COVID-19 Pandemic and India’s sudden lockdown implementation affected refugees to an extreme degree. The lack of savings and inability to earn income left refugees stranded, a situation further exacerbated by the temporary suspension of UNHCR’s refugee status determination activities (Shankar and Raghavan, 2021). Most refugees live, and continue to live, in unsafe and vulnerable conditions, which enhances the risk of infection and spread of the pandemic among refugee communities. Vaccination drives that provided free testing and vaccination were few and far between, and limited access to public health care facilities and financial aid created significant challenges, leaving refugees dependent on the generosity of their employers and landlords (Shankar and Raghavan, 2021).

    While refining outdated laws and regulations that do not meet contemporary migration requirements is necessary and welcome, significant gaps remain in the Immigration and Foreigners Act 2025. The criteria for deeming a person a security threat have not been established, which could result in unlawful deportation, prohibition, or imprisonment. The Act also does not distinguish between foreigners and refugees, who are often forced to partake in irregular methods of travel and stay in search of safety and security. Many lack the means to obtain visas and passports and may lose their proof of identity during dangerous travel.

    The ambiguity of refugee policy leads to variations in the treatment of different refugee communities, usually determined by contextual and geopolitical factors. For example, while Sri Lankan Tamil refugees in the South can seek employment and government financial aid, the same cannot be said for Rohingya refugees, who are often put in refugee detention camps or deported (Sandhu and Sebastian, 2022). The lack of a policy is addressed through ad hoc measures, often implemented by the police administration, that prioritise surveillance and security over protection and welfare. The recent orders that provide certain exemptions to Sri Lankan Tamil refugees and refugees from neighbouring countries are definitely a step in the right direction, but ultimately bring further complications, especially considering the exclusion of certain communities based on religion. This also allows the ruling government to adapt its governance framework to align with ideological principles. By assigning a religious criterion for Indian citizenship and state protection, the Citizenship Amendment Act of 2019 ensures the marginalisation of select groups of refugees and asylum seekers, bringing into question the secular characteristics of India’s governance (Rajan and Sreekumar, 2024).

    The lack of privacy, haphazard sanitary conditions, poor menstrual management and double surveillance by state authorities and refugee communities sheds light on an intersectionality of issues women refugees face in protracted refugee situations and camp sites

    A significant aspect of refugee discourse is its gendered nature, but it is rarely addressed in policy debates and discussions. Women refugees who make up almost half of the refugee population in India are often solely held accountable for caregiving responsibilities and sustenance of the family, further limiting their access to education, employment and individual development (Malik, 2024). The lack of privacy, haphazard sanitary conditions, poor menstrual management and double surveillance by state authorities and refugee communities sheds light on an intersectionality of issues women refugees face in protracted refugee situations and camp sites (Malik, 2024). While women refugees are beginning to achieve representation in the refugee discourse, refugees from LGBTQIA+ communities and second-generation refugees remain mostly out of the picture. Second-generation refugees who are completely isolated from urban society are further restricted from access to quality education and employment opportunities. More often, they are left stateless and lack access to government recognition and welfare facilities because their parents have not been provided with refugee status (Shankar, 2024).

    Actionable Recommendations

    To address these gaps in refugee regulation, a comprehensive, human-rights-oriented refugee policy that adheres to international standards of refugee protection and implements an RSD process should be introduced to ensure consistent and justified treatment of all refugee groups. Considering past policies and measures implemented for Tibetan refugees, it is evident that policies focused on their integration and protection can have a significant positive impact on their community. Indirect legislation has been invoked to ensure basic constitutional protection for certain groups of refugees, but this is typically done by lower courts that lack the Supreme Court’s jurisdiction (Shankar and Vijayaraghavan, n.d.). Additionally, complementary legislation, while helpful to a certain extent, simply does not address most issues and concerns of refugee communities. The Immigration and Foreigners Act advocates a more hands-on approach to migration management. Still, it does not strike a balance between upholding national security and implementing humanitarian measures and lacks a specified approach to refugees and asylum seekers within the country.

    Collecting accurate data on the statistics of refugees and asylum seekers in India plays a significant role in the development of a domestic refugee policy. Currently, the 2011 Census remains the only eligible data for policy analysis. Adequate data, along with policy directives to protect the humanitarian rights of refugees, need to be prioritised to develop comprehensive policies (Vijayaraghavan, 2020). A leading institution can be responsible for collaboration and coordination across relevant departments to develop an overarching legal framework for refugees, with a specific focus on their social and economic integration, education, employment opportunities, and access to welfare and health care facilities. A specialised committee to address gendered concerns can be formed within the institution, thereby drawing attention to issues affecting women in refugee communities.

    Through overarching approaches across various legal and political channels, a generalised refugee policy aligned with international standards can be implemented, providing refugees with adequate legal protection, security, and opportunities for integration.

    A crucial precursor to the formation of this leading institution and refugee policy is the need for productive discourse among the ruling government, policymakers, experts in the field, and refugees themselves, to prioritise the safety of these vulnerable communities. Through overarching approaches across various legal and political channels, a generalised refugee policy aligned with international standards can be implemented, providing refugees with adequate legal protection, security, and opportunities for integration. Without a well-articulated policy specific to refugees, they will continue to be vulnerable, with limitations to their rights and protection. Therefore, it is imperative to strike a balance between upholding national security and ensuring the dignity and protection of refugees and displaced persons. Recognising international human rights norms in formulating refugee policies in India can help build a comprehensive migration policy framework that addresses the country’s unique refugee challenges.

    Works Cited

    Abbas, R. (2015). Internal migration and citizenship in India. Journal of Ethnic and Migration Studies, 42(1), 150–168. https://doi.org/10.1080/1369183x.2015.1100067

    Borah, D., & Das, B. (2024). India’s Refugee Policy: A Critical Analysis. Library Progress International, 44(3), 9877–9885.

    Immigration and Foreigners Act (2025).

    India Migration Now. (2019). Comments to the draft EMIGRATION BILL, 2019, dated 20 January 2019, released for public consultation by the Ministry of External Affairs (MEA) .https://www.indiamigrationnow.org/wp-content/uploads/2022/02/DraftBill2019_Final_Comments_IMN_19012019.pdf

    Khosla, M. (2022, September 22). The Geopolitics of India’s Refugee Policy • Stimson Center. Stimson Center. https://www.stimson.org/2022/the-geopolitics-of-indias-refugee-policy/

    Malik, A. (2024, August 9). Refugee rights, the gendered nature of displacement. The Hindu. https://www.thehindu.com/opinion/lead/refugee-rights-the-gendered-nature-of-displacement/article68506611.ece

    Rajan, S. I., & Sreekumar, A. (2024). An Overview of India’s Migration Governance Over thePast Decade. https://core.ac.uk/reader/611833180

    Sandhu, K., & Sebastian, M. (2022, August 19). Rohingya and CAA: What is India’s refugee policy? BBC News. https://www.bbc.com/news/world-asia-india-62573446

    Shankar, P. (2024, January 5). India’s stateless babies: How lawless asylum rules leave refugees in limbo. Al Jazeera. https://www.aljazeera.com/features/2024/1/5/stateless-babies-in-northeast-india-refugee-mothers-pray-for-nationhood

    Shankar, R., & Vijayaraghavan, H. (n.d.). Refugee recognition challenges in India – Forced Migration Review. Forced Migration Review. https://www.fmreview.org/recognising-refugees/shanker-vijayaraghavan/

    Shanker, R., & Raghavan, P. (2020). The Invisible Crisis: Refugees and COVID-19 in India. International Journal of Refugee Law, 32(4), 680–684. https://doi.org/10.1093/ijrl/eeab011

    The Wire. (2025, September 4). MHA Exempts Sri Lankan Tamil Refugees Who Came to India Before Jan 9, 2015, From Penal Provisions – The Wire. The Wire. https://thewire.in/rights/mha-exempts-sri-lankan-tamil-refugees-who-came-to-india-before-jan-9-2015-from-penal-provisions

    UNHCR. (n.d.). The 1951 Refugee Convention | UNHCR. UNHCR. https://www.unhcr.org/about-unhcr/overview/1951-refugee-convention

    Vijayaraghavan, H. (2020, September 8). Gaps in India’s Treatment of Refugees and Vulnerable Internal Migrants Are Exposed by the Pandemic. Migrationpolicy.org. https://www.migrationpolicy.org/article/gaps-india-refugees-vulnerable-internal-migrants-pandemic

     

    Feature Image Credit: iisper.org.in

  • Five Years without an Elected Administration: Human Rights in Jammu and Kashmir

    Five Years without an Elected Administration: Human Rights in Jammu and Kashmir

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    The Forum for Human Rights in Jammu and Kashmir comprises an informal group of concerned citizens who believe that, in the prevailing situation in the former state, an independent initiative is required so that continuing human rights violations do not go unnoticed.

    This is the fourth annual report issued by the Forum, which has also issued two midterm and/or thematic reports). It has largely been compiled from government sources, media accounts (carried in well-established and reputed newspapers or television), NGO fact-finding reports, interviews, and information garnered through legal petitions. The various sources listed have been fact-checked against each other to ensure the information is as accurate as possible, and only that information has been carried that appears to be well-founded. Where there is any doubt regarding a piece of information, queries have been footnoted.

    Executive Summary

    In an additional counter-affidavit filed before the Supreme Court in July 2023 against petitions challenging the constitutionality of the Presidential Orders of August 5, 2019 (reading down Article 370 of the Indian Constitution), as well as the Jammu and Kashmir Reorganisation Act of August 9, 2019, the union Ministry of Home Affairs claimed that that the changes wrought by the two actions had ‘brought unprecedented development, progress, security and stability to the region.’

    The facts, however, suggest otherwise. In its three annual and two thematic reports, the Forum has documented over three dozen economic, political and social rights that have been violated between August 2019 and July 2022, including economic losses of over Rs. 50,000 crores at a conservative estimate, vitiation of land and domicile rights, marginalisation and even purges of local personnel in the civil and police services, questionable arrests under draconian legislation, communication bans, media intimidation, and routinised curbs on the freedom of expression and movement. Equally glaring, the right to representation has been denied for five years, as of June 2023.

    This report on the state of human rights in Jammu and Kashmir between August 2022- July 2023 finds that while there has been improvement on some parameters, human rights violations continue on most. Its findings are as follows:

    1. Civilian insecurity persists. Targeted attacks on Pandits and migrant workers – both Hindu and Muslim – continue. While the number of lives lost due to armed attacks and counter-insurgency operations was lower than in the previous year, the number of police personnel who died, including Central Reserve Police Forces (CRPF), continues to be unacceptably high. 71 CRPF troops were killed in the four years between 2019-2022, twice as many as in the previous four years, 2014-2018, when 35 died. By comparison, in the four years between 2012-2015, which can be categorised as an uneasy interregnum between the post-peace process years and the rise of conflict in the BJP-PDP coalition, 27 CRPF troops were killed.

    2. A high volume of small arms. In 2023, it was found that Jammu and Kashmir had the largest number of licensed gun holders amongst union territories and the highest per capita amongst states as well as union territories, at 500,105 in June 2023, or four per hundred people.

    3. Resurgence of militancy in Jammu. After decades of peace, the bordering areas of Poonch and Rajouri districts in Jammu division are re-emerging as a locus for militancy with cross-border support from Pakistani-held territories of the former state. The 2022 delimitation of fresh legislative constituencies, adding Poonch and Rajouri to Kashmir’s Anantnag, may have added to the alienation that these Muslim-majority areas face with the sharpening of communal divides in Jammu. Increasing weaponisation through Jammu’s village defence guards, a problematic policy that the Forum highlighted in its 2022 report, has added further insecurity in the region. As has the 2023 Jammu and Kashmir Scheduled Tribes (Amendment) bill, which has pitted Paharis against Gujjars and other listed scheduled tribes of the region.

    4. Continuing civil rights abuses. There has been no improvement in gross violations of the freedom of expression and movement, especially the rights of the media to a safe working environment. Arrests under draconian legislation such as the Unlawful Activities (Prevention) Act (UAPA) and the Public Safety Act (PSA) continue, despite judicial attempts to limit their application. Along with Delhi, Jammu and Kashmir has the highest rate of undertrials as a proportion of its prisons population, at 91 percent, considerably higher than the national average of 76 percent.

    5. Custodial deaths and overcrowded prisons. The Jammu and Kashmir courts have flagged overcrowding and negligence as causes of custodial deaths. The region’s prisons can house a total of 3,629 inmates, but they lodged 5,300 as of June 2023.

    6. Denial of political rights. Two issues of political rights dominate this year’s report. The demand for an assembly election in Jammu and Kashmir; and the demand for a legislative assembly in Ladakh, along with rights under the sixth schedule of the constitution of India.

    Elections. It has been nine years since the last legislative election in Jammu and Kashmir. The union administration accepted the delimitation commission’s report a year ago and it is eight months since fresh electoral rolls were prepared. All the preparations for an election have thus been completed, but the election commission has yet to announce dates for it. Despite their valid criticisms of the delimitation commission’s report, Jammu and Kashmir’s political parties have demanded that the election be held this year (2023). Fresh reservations to woo new constituencies through four bills scheduled to be introduced in the monsoon session of parliament will, if enacted, entrench caste-based voter mobilisation. One of them was debated on July 26.

    Ladakh Kargil and Leh, the two districts of Ladakh, have united around the demand for an elected administration with substantive powers over economic and social development such as those provided under the Sixth Schedule of the Indian constitution, or, alternatively and it seems preferably, the grant of statehood. The union administration has repeatedly promised to discuss the inclusion of Ladakhis in the sixth schedule, but little has resulted. Given Ladakh’s geo-strategic location, bordering both Pakistan and China, the union administration might prefer to govern the union territory directly. However, direct administration has resulted in alienating Ladakh’s elected councillors as well as its people, both of which impact negatively on Indian democracy as well as national security.

    7. A record year of tourism in 2022 boosted the economy, but it still lagged behind the national average on per capita income and rates of growth. The multidimensional poverty index for 2023 showed an impressive reduction in the proportion of its population living in poverty from an estimated figure of 12.56 percent in 2015-2016 to 4.8 percent between 2019-2021, but it ranked sixth out of eight union territories on the sustainable development goals (SDG), with Ladakh at seventh. Its forest cover decreased from 39.66 percent to 39.15 between 2020- 2021.

    8. Unemployment and drug abuse. At 23.1 percent in March 2023, unemployment was almost three times the national average of 7.8 percent. According to the union ministry of health, Jammu and Kashmir are among the top two states and union territories for drug abuse, with an estimated 900,000 habitual drug users, roughly 1 in 130.

    9. Data scarcity. There is a paucity of readily available figures for the former state. Though the 2023 budget presentation for parliament forecast a NSDP growth rate of 14.9 percent for Jammu and Kashmir in 2022-2023, the economic survey of 2023 said that figures for its per capita NSDP were not available from 2019 to date, as did the 2022 Reserve Bank of India statistics on states.

    Air Vice Marshal Kapil Kak (Retd) is a Distinguished Fellow and a member of the Governing Council of The Peninsula Foundation (TPF). He is a member of the Forum for Human Rights in Jammu and Kashmir.

    Disclaimer: The views represented herein are those of the Forum and do not necessarily reflect the views of The Peninsula Foundation, its staff, or its trustees.

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  • Women in Afghanistan: The Fight Back

    Women in Afghanistan: The Fight Back

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    Introduction:

    Women and men undergo varied experiences in the event of an absolute collapse of the socio-political order. When combined with a catastrophic political transformation, their exposure to systemic abuse and violence dramatically increases. The vulnerability of women and their exposure to such violence is much more pronounced compared to what men face. This paper attempts to map the violence and abuse of rights women in Afghanistan are facing under the new Taliban rule after the American withdrawal. It also focusses on their response to the same. 

    Women under Taliban 1.0

    Afghanistan is a multi-ethnic country with a diverse population. Women’s issues have always had a central role in the governance system. From the beginning of the birth of modern-day Afghanistan, different monarchs have played a key role in determining the status of women in society, in line with their Islamic worldview. However, though women were considered inferior to men, they had their share of rights that were in no way meant to keep them confined to their houses. Instead, their free movement was hardly restricted. Covering their heads or wearing a burqa was not mandatory. There were organizations like the Anjuman-I-Himayat-I-Niswan(Organization for Women Protection), which worked to encourage women into reporting any kind of injustice meted to them. 

    After the Soviet invasion of Afghanistan in 1979, women’s rights were further amplified with universities in most cities, especially Kabul admitting them. After the departure of the Soviets in May 1988, the Mujahedeen overturned all that the Soviet Union had stood for, which included women’s rights regarding employment and education. Women were pushed away from public life and forced to wear a burqa. Fewer women were visible on television.

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  • Time to be firm tackling Dragon on LAC Standoff & Human Rights

    Time to be firm tackling Dragon on LAC Standoff & Human Rights

    Both nations, according to reports, now have between 50,000 to 60,000 troops deployed along the LAC in Ladakh.

    The last couple of years, in particular, have seen the world torn apart by both the Covid-19 catastrophe and the emergence of a new Cold War. Nations have been pursuing their own selfish agendas on the global stage unmindful of the uncalled-for destruction of weaker societies with misery and turmoil being inflicted on the hapless. After Russia’s invasion of Ukraine eight months ago, a conflict which threatens to escalate into a nuclear dimension, the world is yet to see any signs of a resolution. India, which is located in easily one of the world’s most geopolitically stressed regions, has its own share of diverse challenges, threatening its security and well-being, largely attributable to the hegemonistic and an overly assertive China.

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  • The Curious Case of Indian Silence over damning UN Human Rights Report on China

    The Curious Case of Indian Silence over damning UN Human Rights Report on China

    Not surprisingly, India has not come out with any condemnation of China for its atrocities in Xinjiang, a classic example of India in recent times trying to steer clear of global contestations.

    Down the ages, the phenomenon of imperial overreach has been prevalent across the world.  The evils for which it gets perpetrated would, by and large, be known to those who succumbed to it for supposedly national aspirations, religious fervour or even self-glory by some megalomaniacs!

    That the country relentlessly aspiring with rapidity to be the next global superpower, China, can be unquestionably placed in the category of an imperialist power brooks no emphasis. China thus, without remorse or any humanitarian considerations pursues its ambitions of forcible, bordering on evil, integration of people of all faiths and regions in its vast nation. Its threat of military intervention in tiny Taiwan in recent months bespeaks China’s hegemonistic ambitions.

    Though rather late, the UN has rightly condemned China’s woeful human-rights record in its restive Xinjiang province where for the last many years, China has been committing genocide on its Muslim minorities, the Uyghur and Turkic communities. That the world, at large, and the Islamic nations, in particular, have cast a blind eye on this monumental human tragedy conveys, unmistakably, how the sheer pursuit of mere national interests dwarfs humanitarian considerations elsewhere. The significance of the UN Report on Human Rights just released, accordingly, cannot be understated.

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  • Three Years as a Union Territory: Human Rights in J&K

    Three Years as a Union Territory: Human Rights in J&K

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    The Forum for Human Rights in Jammu and Kashmir comprises an informal group of concerned citizens who believe that, in the prevailing situation in the former state of Jammu and Kashmir, an independent initiative is required so that continuing human rights violation do not go unnoticed.

    The aim of the Forum is to highlight, report and seek action. It will primarily focus on human rights protected by the constitutions of India and Jammu and Kashmir, as well as those identified in international treaties/instruments which India has ratified. It will research evident violations, and may take suo moto notice of any violation, irrespective of whether or not a formal complaint is received.

    The Forum for Human Rights in Jammu and Kashmir will receive information/materials on human rights violation to its email hrforumjk@gmail.com and through other means, and it may report/forward complaints to relevant authorities with recommendations for action. Please note that this is not an anticipatory body.

    This is the fourth report issued by the Forum. It has largely been compiled local first-hand accounts, governments sources, media accounts (carried in well-established and reputed newspaper or television), and NGO fact-finding reports. The various sources listed above have been fact-checked against each other to ensure the information is as accurate as possible, and only that information has been carried that appears to be well-founded.

    The members of the Forum for Human Rights in Jammu and Kashmir take allegations of inaccuracy, bias, or any other criticism founded in fact, very seriously. Criticism of this nature will be considered and responded in real-time.

    Air Vice Marshal Kapil Kak (Retd) is a Distinguished Fellow and a member of the Governing Council of The Peninsula Foundation (TPF). He is a member of the Forum for Human Rights in Jammu and Kashmir.

    Disclaimer: The views represented herein are those of the Forum and not necessarily reflect the views of The Peninsula Foundation, its staff, or its trustees.

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  • Washington Accuses Russia of Committing War Crimes in Ukraine: Terrible and True, But What About US War Crimes?

    Washington Accuses Russia of Committing War Crimes in Ukraine: Terrible and True, But What About US War Crimes?

    This article is republished from Antiwar.com with permission.

    Nothing can justify this terrible toll and Moscow’s attack. However, those who judge the moral conduct of others should be measured by the same standard. Which raises the question of war crimes committed by the US in its many conflicts.

    Washington appears intent on making Russia’s war on Ukraine into a moral crusade. Pentagon spokesman John Kirby last week declared that “we’re certainly seeing clear evidence that the Russian military is conducting war crimes.”

    Any large-scale conflict is going to kill civilians, some directly in combat, others from the impact of war’s destructive impact on a modern society. Thus, Russian attacks on Ukrainian cities such as Mariupol cannot help but kill civilians. Last week the UN Office of the High Commissioner for Human Rights estimated 953 dead and 1557 injured Ukrainian civilians. But that is merely the number of victims whose death can be confirmed.

    OHCHR reported that it “believes that the actual figures are considerably higher, especially in Government-controlled territory and especially in recent days, as the receipt of information from some locations where intense hostilities have been going on has been delayed and many reports are still pending corroboration. This concerns, for example, Mariupol and Volnovakha (Donetsk region), Izium (Kharkiv region), Sievierodonetsk and Rubizhne (Luhansk region), and Trostianets (Sumy region), where there are allegations of numerous civilian casualties. These figures are being further corroborated and are not included in the above statistics.”

    And if war criminals were routinely prosecuted, Americans would be in the dock as well as Russians.

    Nothing can justify this terrible toll and Moscow’s attack. However, those who judge the moral conduct of others should be measured by the same standard. Which raises the question of war crimes committed by the US in its many conflicts. American forces may attempt to fight “cleaner” wars than does Russia, but even so no one should have any illusion about the high civilian cost of Washington’s interventions. Innocent people die, some directly, many indirectly. And if war criminals were routinely prosecuted, Americans would be in the dock as well as Russians.

    Consider Washington’s widespread drone war. One terrible strike made last August when Americans were withdrawing from Afghanistan wiped out a family, including seven kids. It was a terrible mistake, but the US was culpable. Reported the New York Times: “Military officials said they did not know the identity of the car’s driver when the drone fired, but deemed him suspicious because of how they interpreted his activities that day, saying that he possibly visited an ISIS safe house and, at one point, loaded what they thought could be explosives into the car.” [Italics added] Upon this litany of unproved suppositions, which turned out to be wild speculation, Washington acted like a terrorist and wiped him out along with all those around him.

    Such mistakes are common because America relies on such “signature” strikes, based on interpretating the actions of people typically hundreds or thousands of miles away. Noted the New York Times: “Every independent investigation of the strikes has found far more civilian casualties than administration officials admit. Gradually, it has become clear that when operators in Nevada fire missiles into remote tribal territories on the other side of the world, they often do not know who they are killing, but are making an imperfect best guess.”

    Afghanistan has been a major focus of America’s drone war. A detailed investigation in 2015 by two media organizations and a foundation concluded that drone strikes had killed 3852 people, 476 of whom were civilians. That’s a civilian kill rate of 12.4 percent, better than untargeted air or artillery strikes, but still much higher than claimed by Washington.

    According to journalist Emran Feroz: “Afghanistan is the most drone-bombed country in the world. The United States dropped more bombs on Afghanistan in 2019 than in any other years since the Defense Department began keeping track in 2006. According to new figures released by the U.S. military, at least 7,423 bombs and other munitions were dropped on the country in 2019, a nearly eight-fold increase from 2015 and an average of 20 bombs a day.”

    He described another drone attack that apparently went awry: “Ordinary Afghans say it has happened to them many times and never – not once – has it made news anywhere outside Afghanistan. Last November, an American Reaper drone targeted a group of villagers in the mountainous area of Afghanistan’s southeastern province of Paktia and killed seven of them. Paktia has long been home to Taliban militants, but local residents say all the victims were civilians, including three women and one child. They had gone to the remote area to graze their cattle and collect wood. Suddenly, they were dead.”

    Another cost of the drone war: creating new terrorists who target Americans. Waging war on Muslims around the world makes a lot of enemies, some of whom strike back.

    For instance, Pakistani-American Faisal Shahzad attempted to set off a bomb in Times Square in response to Washington’s drone campaign. He explainedto the court in 2010: “I want to plead guilty 100 times because unless the United States pulls out of Afghanistan and Iraq, until they stop drone strikes in Somalia, Pakistan and Yemen and stop attacking Muslim lands, we will attack the United States and be out to get them.” The judge asked him why he was willing to kill kids. He explained: “When the drones hit, they don’t see children.” Hence, Shahzad concluded that “I am part of the answer to the US killing the Muslim people.”

    America’s anti-ISIS bombing campaign also killed civilians in prodigious numbers. NPR reported on the work of New York Times correspondent David Philipps, who said “the United States’ air war against ISIS seems to have been particularly brutal on innocent civilians in Syria. In recent stories, Philipps reports that a top-secret unit of the US military was allowed to pick targets for drone attacks and bombing runs with little oversight, and that as the conflict wore on, it increasingly sidestepped rules to protect noncombatants, ordering airstrikes that killed farmers in their fields, children in the street and families fleeing combat.”

    According to Philipps, the military counted 1400 dead civilians “during the four years of the war. And they were very confident that those numbers were real and that outside organizations like Human Rights Watch that were reporting numbers that were many times higher were being unreasonable. But once we looked under the hood at how it worked, we found that, you know, time and time again, their accounts were just seriously flawed.”

    The Times explained that it “worked with journalist Azmat Khan, who went to dozens and dozens of these sites on the ground and talked to people who were there and compared what they said to what the military’s own records said and found repeatedly that there was a gulf between them.” For instance, Human Rights Watch estimated some 7000 dead civilians. A toll that dwarfs the number of civilian dead in Ukraine, where the US is blaming Russia for committing war crimes.

    The US also has armed Saudi Arabia and United Arab Emirates, helping them wreak death and destruction against Yemen, the poorest nation in the Mideast. No participant in this civil war, which was internationalized by the Saudis and Emiratis, looks good. However, most casualties and damage are a result of the royal regimes’ air attacks and effective blockade, which has resulted in mass malnutrition, immiseration, and disease.

    President Joe Biden once criticized the Kingdom of Saudi Arabia and its pernicious role in the Yemen war. Like so many of his predecessors, however, he has since effectively turned US policy over to Riyadh and Abu Dhabi, continuing to sell them weapons and deploying US forces to help protect them from retaliation for their continuing attacks on Yemeni civilians. A year after the president took office the war is heating back up in Yemen.

    Reported the Yemen Data Project: “January 2022 was the most violent month in the Saudi-led air war in Yemen in more than five years. Yemen Data Project recorded 139 civilian deaths and 287 civilians injured in Saudi coalition airstrikes in January, taking the casualty toll to over 19,000 civilians killed and injured since Saudi Arabia launched its bombing campaign in Yemen in March 2015. Not since October 2016 have more civilian casualties been recorded in a single month in the air war. Saudi-led coalition airstrikes caused more civilian harm in the first month of 2022 than in the two previous years combined.”

    The UN Group of Eminent International and Regional Experts on Yemenrevealed that civilians were routinely targeted by the Saudi and Emirati royals. Victims included “civilians shopping at markets, receiving care in hospitals, or attending weddings and funerals; children on buses; fishers in boats; migrants seeking a better life; individuals strolling through their neighborhoods; and people who were at home.”

    Widespread air attacks also wrecked basic infrastructure, with catastrophic consequences for health, nutrition, commerce, and safety. The United Nations Development Program reported:

    “By comparing the current reality in Yemen to a scenario where no conflict ever occurred, we can provide an estimate of the total death count – the number of deaths caused both directly and indirectly from the conflict. By doing so, we found that by the end of 2021, Yemen’s conflict will lead to 377,000 deaths – nearly 60 per cent of which are indirect and caused by issues associated with conflict like lack of access to food, water, and healthcare. These deaths are overwhelmingly made up of young children who are especially vulnerable to under and malnutrition. In 2021, a Yemeni child under the age of five dies every nine minutes because of the conflict. This is a significant increase since our 2019 report, Assessing the Impact of War on Development in Yemen, that – through the same assessment – found this to be approximately every 12 minutes.”

    In 2021, a Yemeni child under the age of five dies every nine minutes because of the conflict.

    The experts’ group also found devastating impact: “Protracted conflict, disease outbreaks, the COVID-19 pandemic, flooding, import restrictions, an economic and fuel crisis, and limited humanitarian aid have made everyday life in Yemen unbearable for many. According to the Office for the Coordination of Humanitarian Affairs, around 20.7 million people in Yemen currently require some form of humanitarian and protection assistance. More than 16.2 million of them will face significant food insecurity this year. Additionally, international funding has fallen far short of the required levels to address the humanitarian crisis.”

    Harm from this kind of warfare goes even further. Last fall the experts’ group observed that “Living in a country subjected to an average of 10 airstrikes per day has left millions feeling far from safe. Although the frequency and intensity of airstrikes have fluctuated over the last four years, the Group of Eminent Experts has continued to observe their devastating impact on civilians.”

    “The civilian death toll from Saudi Arabia’s disastrous air war over Yemen was steadily rising in 2016 when the State Department’s legal office in the Obama administration reached a startling conclusion: Top American officials could be charged with war crimes for approving bomb sales to the Saudis and their partners. Four years later, more than a dozen current and former US officials say the legal risks have only grown as President Trump has made selling weapons to Saudi Arabia, the United Arab Emirates and other Middle East nations a cornerstone of his foreign policy.”

    Assessing Washington’s moral blame in aiding the royal aggressors is easy. The legal case is more difficult, but the State Department already made the connection. It warned previous administrations that US officials were committing war crimes. The New York Times reported: “The civilian death toll from Saudi Arabia’s disastrous air war over Yemen was steadily rising in 2016 when the State Department’s legal office in the Obama administration reached a startling conclusion: Top American officials could be charged with war crimes for approving bomb sales to the Saudis and their partners. Four years later, more than a dozen current and former US officials say the legal risks have only grown as President Trump has made selling weapons to Saudi Arabia, the United Arab Emirates and other Middle East nations a cornerstone of his foreign policy.”

    Washington intervened in Libya’s civil war more than a decade ago to promote regime change under cover of helping to protect civilians from the Khadafy government. The country that was the most developed and wealthiest in Africa was bombed to stone age by the US and NATO.

    There is much more to criticize in US policy. Rural Afghanistan suffered desperately for years as a battleground between the US and Taliban, causing many residents to turn toward the insurgents. Washington intervened in Libya’s civil war more than a decade ago to promote regime change under cover of helping to protect civilians from the Khadafy government. Hopes for a better future remained unfulfilled as contending factions subsequently fought for control and now squabble over plans to hold elections.

    Russia deserves to be criticized and held accountable for its increasingly brutal military campaign in Ukraine. However, Washington would have more credibility to judge if its message wasn’t do as I say, not as a I do. US officials should come clean internationally and admit when they have failed in their obligation to protect human rights, including in wartime. Next time they shouldn’t just promise to do better. They should do so.

     

  • Bonded Labour in India: Prevalent, Yet Overlooked

    Bonded Labour in India: Prevalent, Yet Overlooked

    In 1976, India stood out as the first country in South Asia to enact legislation prohibiting bonded labour. However, the system has not been uprooted owing to the different barriers posed by socio-cultural norms and administrative and legislative incompetency. The country’s most vulnerable and disadvantaged sections of society are at risk of being trapped into such a form of modern slavery. The prevalence of this system over the decades necessitates the need to understand the root causes of the emergence of such bonded labour situations and why it is still prevalent in the country.

    Bonded labour in India

    The Bonded Labour System Abolition Act (1976) defines a bonded labour system as a relationship evolved out of a debtor-creditor agreement. It is identified as a form of forced labour where the debtor comes into an agreement, oral or written, with the creditor and receives a loan amount in exchange for his labour or that of his family members. The obligation need not just be an economic consideration such as a loan or an advance amount received from the creditor. People also become bonded with social, customary, hereditary or caste obligations and often agree to enter service with no wages or for nominal wages. The labourer finds it difficult to settle the debt amount as the provided wages are too low even to meet their basic sustenance needs. Eventually, they end up in the same form of labour again and again. Thus their choice to join such a system is out of distress or coercion to some extent. They may also be restricted from switching to another job or to ask for the provision of minimum wages given the conditions of the contract and the lack of awareness of their rights.

    Indebtedness is identified as a major trigger for people to join as bonded labour, especially migrants from poor rural households. However, the need for money arises out of the existing disadvantages in society that these communities are subjected to. Caste, unequal distribution of resources, increased dependence on agriculture, low levels of education and food insecurity pushes them into such unfree labour choices.

    We can identify that this system was prevalent in the country from the pre-colonial era characterised by class hierarchies. Such class hierarchies and high caste exploitations are continuing to function even in this democratic era and consequently, has pushed certain groups of the society to be economically weaker; weak in terms of assets, income and bargaining power. Globalisation and industrialisation have only resulted in the further exclusion of such groups of labour from mainstream jobs.  Indebtedness is identified as a major trigger for people to join as bonded labour, especially migrants from poor rural households. However, the need for money arises out of the existing disadvantages in society that these communities are subjected to. Caste, unequal distribution of resources, increased dependence on agriculture, low levels of education and food insecurity pushes them into such unfree labour choices. Owing to these social and economic factors, marginalised communities in the lower strata of the society, especially the women and children, are trapped in such a system.

    Over the years, the system of bonded labour has existed and evolved under different names and forms across India. Bonded labour arising out of traditionally accustomed social relations is one of the oldest forms and is still prevalent in the country. For example, the system of “jajamani” wherein the workers receive food grains in exchange for working as barbers and washermen for the upper caste. Labourers in agriculture, seasonal inter and intrastate migrants and child labour in informal sectors of brick kiln, rice mills, quarries, domestic work etc. are the other areas where debt bondage is currently more persistent. There has been a considerable shift from traditional debt bondage relation to aneo-bondage labour system among migrant workers. The former was characterised by an element of patronage amongst the considerable amount of exploitation. However the latter is at a higher tone of exploitation and eliminates patronage relations. This has made employers deny the responsibility of employee’s welfare and the labourers have lost the minimum livelihood security which they had secured under the patronage system. The neo-bondage system is further manipulated by the role of intermediaries.

    Thus, with structural transformation in the economy, the system of bonded labour has evolved into a much worse form of exploitation in the country and specifically marginal and backward communities are the main victims of this system.

    Interventions to abolish bonded labour

    Upon identifying the prevalence and exploitation of bonded labour in the pre-independence era, constitutional provisions prohibiting forced labour were assigned under Article 23. Under the Directive Principle of State Policy, Article 42 and 43 ensured fair and humane working conditions and living wages to workers.

    Post-independence, legislation against bonded labour was enacted at a regional level.  Orissa, Rajasthan and Kerala were the first states to enact state legislation against bonded labour.  In 1954, India ratified the International labour organization (ILO) Convention on forced labour (C029). Despite the constitutional provisions, regional and international interventions in bonded labour, construction and implementation of a uniform law took time.

    In 1976, the Bonded Labour System (Abolition) Act was enacted to abolish any form of bonded labour system arising out of debt, customary or hierarchical obligations. In brief, the act has identified and defined bonded labour, provided for extinguishment of past or existing debt, established duties of district magistrate in implementing the provisions of the act, sanctioned the state governments to form a vigilance committee in each district to guide and ensure competent implementation of the act by the magistrate and stated the penal actions against those compelling people into bonded labour. The act was amended in 1985 to bring contract and migrant workers under its ambit.

    In 1978, a new centrally sponsored scheme for Rehabilitation of Bonded Labour was enacted to provide financial assistance to the state government for rehabilitating rescued bonded labourers, to conduct surveys, evaluation studies and awareness campaigns across districts. In 2016, the government restructured the scheme. The restructuring involved an increase in the provision of funds to bonded labour for rehabilitation and to states for conducting surveys. Under the restructured scheme, rescued bonded labour is only provided with the full amount of financial assistance after the conviction of the accused and a Bonded Labour Rehabilitation Fund corpus was to be created at every district.

    The interplay of caste-based exploitation and subsequent impoverishment in terms of resources and assets combined with underdeveloped rural areas devoid of standard education, health and employment opportunities push marginalised people into bonded labour.

    Why and how does the system still sustain?

    Many factors contributing to the prevalence of bonded labour continue to prevail despite after years of legislative action to abolish the same. The interplay of caste-based exploitation and subsequent impoverishment in terms of resources and assets combined with underdeveloped rural areas devoid of standard education, health and employment opportunities push marginalised people into bonded labour. Such an environment accompanied by the inept implementation of legislations and schemes further aids in sustaining bonded labour systems.

    BLS(A) act 1976 failed to be effectively implemented owing to apathy, corruption, lack of administrative and political will. The vigilance committees were often defunct and working for the employer. The act was criticised on the grounds that it stated only mediocre and minor punitive actions and the rates of prosecution were also low. Moreover, some states remain in denial of accepting the existence of bonded labour. This indifference results in the loss of comprehensive data on bonded labour hindering the further implementation of provisions of the act.

    The Central Sector Scheme for Rehabilitation of Bonded Labour also has its loopholes. After the restructuring of the scheme, financial aid is provided only after the accused is convicted and convictions are rare owing to poor implementation of the BLS(A) Act and the absence of a review of cases. Thus, in most cases the rescued labourers do not receive the full financial aid they are entitled to immediately after the rescue. Often, it takes years to receive the full amount or may not even receive any.

    The situation is even grave as the rescued labourers have asymmetric knowledge of the rights and entitlements they can avail themselves of. Even when they are fully aware, most of them lack the will to attain these entitlements due to the dismal behaviour of officials and delayed processes.

    Moving towards Abolishment

    First and foremost, recognition and acceptance of the prevalence of bonded labour should be ensured. Only then the bonded labourers could be identified, rescued and rehabilitated effectively. The collection of comprehensive data is essential for further implementation of the provisions of the legislation. Also apart from the vigilance committee, a new committee composed of the magistrate, members of the marginalised communities, NGO’s and other civil bodies working in the field would enable to get a more comprehensive view of the issues in the sector.

    From a long term perspective, there is a need to address the caste induced structural inequalities. One way through which this could be attained is through land redistribution.

    Mere financial aid is not sufficient for the rescued labourers to foster a livelihood plan. The Human rights law network suggests the same and recommends a comprehensive rehabilitation package providing for education and job security.

    From a long term perspective, there is a need to address the caste induced structural inequalities. One way through which this could be attained is through land redistribution. Apart from this, the government should also focus on skill development and training of rural poor, especially migrants caught up in bonded labour. Varied skills can enhance their employment opportunities and provide more freedom to move towards other areas of work.

     

     

    References

    1. B.L.S., A. (2020, June 30). Telangana: Two Years After Rescue From Bonded Labour, 12 Tribals Receive Compensation. The Wire. https://thewire.in/rights/telangana-bonded-labour-rescue-tribals-compensation
    2. Breman, J. (2010). Neo-bondage: A fieldwork-based account. International Labor and Working-Class History, 78(1), 48-62. https://www.jstor.org/stable/40931303
    3. Gabra, L. (2021, March 21). Will Bonded Labor in India Ever Come To An End? BORGEN. https://www.borgenmagazine.com/bonded-labor-in-india/
    4. Human Rights Law Network. (n.d.). Release and Rehabilitation of Bonded Labour — HRLN. Human Rights Law Network (HRLN). Retrieved August 15, 2021, from https://hrln.org/initiative/release-and-rehabilitation-of-bonded-labour
    5. Human Rights Watch. (n.d.). Small Change. Human Rights Watch (HRW). Retrieved August 6, 2021, from https://www.hrw.org/reports/2003/india/India0103-05.htm
    6. J, S. (2019, September 15). Rescue of bonded labourers up, convictions rare. Times of India Blog. https://timesofindia.indiatimes.com/blogs/tracking-indian-communities/rescue-of-bonded-labourers-up-convictions-rare/
    7. Khan, J. A. (2019, April 30). How effective are the Policies for Rehabilitations of Bonded Labour in India? CBGA India. https://www.cbgaindia.org/blog/effective-policies-rehabilitations-bonded-labour-india/
    8. Mantri, G., & Suresh, H. (2020, January 31). The News Minute | Delve. The News Minute. https://www.thenewsminute.com/article/it-s-2020-bonded-labour-still-reality-india-here-s-why-116977.
    9. Molfenter, C. (2013). Overcoming bonded labour and slavery in South Asia: the implementation of anti-slavery laws in India since its abolition until today. Südasien-Chronik-South Asia Chronicle, 3, 358-82. https://edoc.hu-berlin.de/bitstream/handle/18452/9122/358.pdf?sequence=1&isAllowed=y
    10. Murugesan, D (2018). HANDBOOK ON BONDED LABOUR. NATIONAL HUMAN RIGHTS COMMISSION (NHRC), New Delhi. https://nhrc.nic.in/sites/default/files/Hand_Book_Bonded_Labour_08022019.pdf
    11. NCABL. (2016). Joint Stakeholders’ Report on Situation of Bonded Labour in India for Submission to United Nations Universal Periodic Review III. NATIONAL COALITION FOR ABOLITION OF BONDED LABOUR (NCABL), Bhubaneswar Odisha. https://www.upr-info.org/sites/default/files/document/india/session_27_-_may_2017/js34_upr27_ind_e_main.pdf
    12. Prasad, K. K. (2015). Use of the Term’Bonded Labour’ is a Must in the Context of India. Anti-Trafficking Review, (5), 162.
    13. Sabhapathi, V. (2020, June 11). An Analysis of Bonded Labour System in India. Legal Bites – Law And Beyond. https://www.legalbites.in/bonded-labour-system-in-india/
    14. S, B. (2016, April 2). Caught in a vicious cycle of bonded labour. The Hindu. https://www.thehindu.com/news/national/karnataka/caught-in-a-vicious-cycle-of-bonded-labour/article7720754.ece
    15. Sethia, S. The Changing Nature of Bonded Labour in India.
    16. Srivastava, R. S. (2005). Bonded labour in India: Its incidence and pattern.https://www.ilo.org/wcmsp5/groups/public/—ed_norm/—declaration/documents/publication/wcms_081967.pdf 

    17. THE BONDED LABOUR SYSTEM (ABOLITION) ACT, 1976. (ACT NO. 19 OF 1976). (India). https://labour.gov.in/sites/default/files/TheBondedLabourSystem(Abolition)Act1976.pdf

     

    Image Credits: starfishasia.com

  • Sedition Law: Sensitivity and trepidations of the State

    Sedition Law: Sensitivity and trepidations of the State

    This article was published earlier in moneycontrol.com

    A few activists and intellectuals, some of them octogenarians, are in jail for varied periods having been arrested for sedition. A question being asked since then is: can intellectuals and activists who fight for the rights of the deprived, underprivileged and downtrodden be seditious and subversive? The law of sedition is a remnant from the days of colonial rule in India.

    Should the State feel helpless and orphaned if the law of sedition is to be repealed? The fact that for seven decades and more the State has staunchly held on to this law suggests so

    The (British) colonial administration was constantly apprehensive and on tenterhooks that the ‘natives’ (the dominated subjects) would rebel against it in conduct, speech, or action. Hence, the sedition law was introduced through Clause 113 of the Draft Indian Penal Code in 1837 by Thomas Macaulay.

    The colonialists wanted to guard themselves against any kind of protest. Any activity that was unpalatable to the colonialists was conceived of as ‘treason’ and ‘subversion’. In order to maintain an untrammeled stronghold on the populace, the colonial administration thought it essential to promulgate a sedition law; an overarching law to protect what it thought was its sovereignty and suzerainty.

    Interestingly, in the 1860 Indian Penal Code (IPC) the law of sedition was not included. However, due to an ‘increase’ in ‘revolutionary’ activities and ‘unrest’ on the part of the Indian ‘rebels’, in 1870, the British inserted Section 124A and amended the IPC to include the law.

    Suppression and subjugation through draconian measures were resorted to by the foreign power for its political and economic gains and ends, in a system that was tyrannical, authoritarian, and dictatorial, and ran through its course till 1947

    Though the Constitution of India (with its oft-quoted Preamble) was to come a bit later, India did become a sovereign, socialist, democratic republic when it got rid of the colonial yoke. So, how come the Law of Sedition got carried over into a republic that became a free country and a democratic political entity?

    On the one hand, why the need for a law of sedition in a free, sovereign country. On the other hand, a look at the way sedition is being interpreted currently.

    In 1929, Mahatma Gandhi called sedition a “rape of the word law” and asked the people to go in for a countrywide agitation to demand the repeal of Section 124A. He said, “In my humble opinion, every man has a right to hold any opinion he chooses, and to give effect to it also, so long as, in doing so, he does not use physical violence against anybody.”

    Subsequently, after Independence, during the debate on the first amendment to the Indian Constitution in 1951, then Prime Minister Jawaharlal Nehru, called the law of sedition fundamentally unconstitutional and declared “now so far as I am concerned [Section 124A] is highly objectionable and obnoxious and it should have no place both for practical and historical reasons. The sooner we get rid of it the better.”

    Intriguingly, the Law of Sedition was not repealed, as it should have been, ideally, during the first Parliament session itself; and has been retained during Nehru’s government and subsequent governments too.

    Should the State feel helpless and orphaned if the law of sedition is to be repealed? The fact that for seven decades and more the State has staunchly held on to this law suggests so; more so today as during the last nearly seven years the number of times that the State has resorted to the use of this law is disturbing, to say the least. Besides, the State is arming itself with yet another draconian handle in promulgating the Unlawful Activities (Prevention) Amendment Act (UAPA).

    Was there ever such a low in independent India in terms of lack of tolerance on the part of the State? Any sort of criticism against the government seems to automatically get interpreted as anti-national. This manufactured binary — anti-government equals anti-national — has been the dominant credo ever since the Bharatiya Janata Party (BJP) came to power in 2014.

    In a recent article, Amartya Sen says, ‘The confusion between “anti-government” and “anti-national” is typical of autocratic governance’.

    Intellectuals, opposition leaders, activists in different realms, are all swept into the hold-all like sedition law. Also, international voluntary organisations, as also Indian NGOs, have been targeted and attempts are made to stifle them whenever there has been any criticism of the government, however, legitimate or valid the censure be.

    The government’s actions have prompted UN Human Rights Chief Michelle Bachelet to raise issues of a crackdown on CAA protesters, UAPA, Hathras case, and marching orders given to Amnesty International. New Delhi’s response in its lame defence to the criticism has been: ‘The framing of laws is obviously a sovereign prerogative. Violations of law, however, cannot be condoned under the pretext of human rights.’

     

  • The end of the liberal world order is not the end of the world – we just need to fight for freedom AND equality

    The end of the liberal world order is not the end of the world – we just need to fight for freedom AND equality

    The turmoil concerning Brexit, the Rise of the „Rest” (the fast developing countries), dramatic social inequality, the exclusion of ever larger parts of the populace (the decline of the „Rest“, which is excluded from globalization), the rise of radical Salafism, all these developments have contributed to worldwide emotions, that the promises of globalization have been disappointed and been revealed as illusions. When Juergen Habermas, the noted German philosopher judged in 1991 concerning the democratic revolutions in the former states of the Warsaw treaty, that Western modernity would now transcend into the Orient not only with its technical achievements, but also with its emancipatory and democratic principles he was hardly more than the prisoner of the idealism concerning Western modernity. Although being fully aware of the negative impact of two world wars, colonization and its exorbitant violence, Auschwitz and the Cold War, and fighting for his whole life against a repetition of these developments he still believed to be able to rely on a cleaned, purified Western modernity, an approach which his companions, Anthony Giddens and Ulrich Beck, labeled second modernity. Again, in the years starting with the Arab Rebellion or the Arab Spring it seemed as if the conceptions of democracy, human rights and freedom were transcending from the Western world to the Orient, and its final victory seemed to be plausible – a purified Western modernity would triumph in the end – and Francis Fukuyama wrote his second masterpiece by arguing that at the end of history still stands democracy. But now we are already discussing post-democracy and Paraq Khanna is labeling the current phase as devolution – struggles for a local or at least regional identity.

    The liberal world order after 1991 was based on capitalism (centered on property as natural and human right), the assumption that worldwide free trade will finally lead to peace (economic globalization) and is accompanied by the orientation towards consumerism as a cultural norm. But consume does neither generate values nor identity. International organizations served the purpose of regulating conflicts between sovereign states and the military, political and economic hegemony of the United States secured this kind of liberal world order, or rather the United States payed the costs (this is the point Trump hangs up), both, out of their own interest or as being the trustee of the whole. This liberal world order now is tattered in fragments, not least because the US under Trump abandoned it willfully, whereas the Europeans are desperately trying to preserve it but don’t stand a chance, because they are relying on an idealized past which never existed in the developing and poor countries.

    Contrary to the assumptions of the pundits of glo-calization (Robertson and Bauman), the local showed to be not only an amendment of neoliberal globalization, but a counter-movement to the process of globalization (IS, Trump, „Buy American“, Brexit, Marine Le Pen, Duterte, Bolsonaro, Salafism, the European radical right, populistic movements). In his notes on Nationalism, George Orwell already wrote, that emotion does not always attach itself to a nation. It can attach itself to a church or a class, or it may work in a merely negative sense, against something or other – we can add against anybody, who does not belong to “us”. In short: We against the Rest. But the “Rest” is not far away anymore, as in neoliberal globalization the regions in Sub-Saharan and Saharan Africa, in southern India, in the MENA-states, but they are within the West (either as excluded sub-proletarians, the precariat, or as refugees). Although being a counter-reaction, the current waves of struggles for local identities and advantages are as a negation bound to neo-liberal globalization, the globalization of liberalism without equality, which we label tribal globalization.

    The advent of tribal globalization does not signify the end of globalization, but the end into the illusions into globalization, which nevertheless has its undisputed successes. But there is no way back to an idealized globalization before Trump, Salafism, or an idealized neo-liberal world-order, because these developments were exactly the result of which they are purporting to fight. The exclusion of the „superfluous“, the „Rest“, produced by neo-liberal globalization, the advent of precarious kinds of life and the liquidity of identity throughout the world must be understood as a double one: The “Rest” is excluded from the positive aspects of globalization and people who are belonging to the  Rest are the arbitrarily used enemy-image to construct a fixed „We“-identity („We against the Rest”). And this “Rest” comprises roughly two third of the world’s populace. As the neo-liberal globalization has led to such a social acceleration of the transformation of the whole world,  people, communities and polities of all kinds are trying to cope with this process by re-inventing age-old static identities, which are so old, that it is supposed that these will outdo even this transformation. Such seemingly fixed identities are: Race, ethnicity, religion, patriarchy, and – perhaps the oldest one, sex and gender (this can explain the terrible rise of violence against women); and of course, identity through the exercise of violence itself, which is reverting the feeling of being totally powerless into being almighty. Especially biological differences are re-actualized, because they seem to be not subject to change.

    These seemingly fixed identities are those of the pluperfect, the far distant past, which can be viewed as being free from the failures of the simple past, and mainly free from the failure of the immediate fathers – as already was typically for the German Nazis. Tribal identity is a perfect construction, because it is transporting the ideal of being absolutely united against everybody who is not belonging – and the question: Do I belong is the most important question in tribal globalization. Whereas tribes throughout the world are vanishing, tribal thinking in terms of „We against the Rest“ is flourishing. Such a modern tribe could be based on ethnicity, religion, sex, nation or whatsoever, it is not the content, which characterizes a modern tribe, but having a tribal identity (typically is Trump’s crony capitalism and with relation to the IS, not their ideology is so much counting, but belonging to a previously powerful tribe). With the emergence of tribal globalization, the very understanding of local order and world order is at stake; order wars are arising, when our order or that of others is dissolving (either only in our perception or in reality); our own order is challenged by another concept or and another order is transgressing into our own (the refugee crisis in Europe). The fast developing countries are not immune concerning the accelerated transformation of societies and identities and the task to cope with this development.  As the main problem of neo-liberal globalization is the dissolution of identities and the exclusion of ever growing parts of the populace, that of the emerging tribal globalization the re-invention of age-old fixed identities, which is leading to order wars, what might be a solution?

    Based on the concept of the floating (Clausewitz) and developing (Hegel) balance and harmony (Confucius), we strongly advocate the position, that the West as well as the East is only able to hold on their order and values, if these are discursively balanced and harmonized by the contribution of all great civilizations of the earth. Although the liberal world had its undisputed advantages like the rise of the newly industrialized nations, the current developments are already indicating its end. To put it to the core: freedom as the basis of the liberal world order is turning into oppression or civil wars without equality– just in the name of freedom. Whereas in the 20th century the colonized civilizations had to learn to live with the victorious West, in the twenty-first century the civilizations of the earth finally have to learn to live with one another. This task requires a floating balance (Clausewitz) between freedom and equality, a kind of harmony (Confucius: difference with unity and unity with difference) within societies and between states.

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