May 2014 Secularism at Risk Teesta Setalvad

Secularism at Risk

Teesta Setalvad

Last week in this column I had expressed how the fundamentals of the Indian Constitution, equality, equality before the law and non-discrimination in governance were at risk given the assault from majoritarian political formations that have made it their task to heap abuse on these crucial foundations of the Indian republic. Other national and regional foundations that have laid claim to be “secular” have by non-prosecution of offenders of the law (from the majoritarian right) ceded their moral authority and claim to the term.

By the time this appears, suspense will be over and we will have known where India stands and where it heads post 2014 general elections. Reflections on the final stages of the campaign, the division of votes etc will follow in the weeks to come as we face the consequences of a collective folly. Until then, taking off from last week a few thoughts…

While campaigning in Serampore, West Bengal, the Man who would be PM told a mammoth gathering, ““You can write it down. After May 16, these Bangladeshis better be prepared with their bags packed.” His statement echoes a time-tested policy of the RSS articulated by the BJP whenever in power, in states or in the Centre.

In the early 1990s, fiercely anti-Bangladesh statements from the sangh parivar pushed an obscure administrative problem to the centre of political life. Before the 1993 Delhi elections, the national executive of the BJP attacked this “infiltration” of refugee workers from Bangladesh. After launching, along with its sister proto-fascist outfit, the Shiv Sena in Bombay in December 1992, the post Babri Masjid demolition pogrom, Dharamsinh Choradia of the Maharashtra BJP tried, (as is often the RSS-BJP-SS-VHP technique) to turn historical chronology on its head and claim that behind the targeted killings of Bombay’s Muslims was the “unseen attack” from “illegal Bangladeshi immigrants. Repeated cross questioning by this writer at press conference after press conference of the BJP in the Nariman Point barracks office of the party (I was Senior Correspondent with the Business India, covering political affairs, then) led Choradia (who thereafter died in a road accident) to snap at me and say, “Who is holding this press conference, me or you?”!!!

The  statement of the Man who would be PM at West Bengal in April-May 2014 that led Mamtadidi to launch an attack back at him, returns us to the days of Operation Pushback and Operation Flush Out — policies that derive as much from xenophobic political pressure as from India’s lack of a refugee policy fully in line with international law. For the party that has given itself the name of “change” and the man a self appointed title of messiah this vitriolic partisan policy carries their majoritarian politics beyond India’s borders.

The BJP’s 2014 manifesto crudely states that “India shall remain a natural home for persecuted Hindus and they shall be welcome to seek refuge here”. Such a statement mimics the policy of only one other country, Israel — which sees itself as a sanctuary for Jews who are given an automatic right to enter the country and earn citizenship (to conduct Aliyah). In February, Modi said, “We have a responsibility towards Hindus who are harassed and suffer in other countries. India is the only place for them.”

Just before it makes this ill-considered statement in its 2014 manifesto, the BJP praises its “NRIs, PIOs and professionals settled abroad” who are a “vast reservoir to articulate the national interests and affairs globally”. The hypocrisy is patent. This population is able to live in these countries because of the until now relatively liberal immigration policies of their countries of residence. BJP’s concern, in its manifesto, is only for middle class and upper class professionals (that too, Hindu), it has no reassurances for the Indian workers across the world whose remittances support their families and Indian foreign exchange balances. Attacks on Bangladeshi slum-dwellers and disregard for Indian migrant workers indicate the more than just the class bias of the BJP. This two-faced policy of the BJP seeks to discriminate within India, when it comes to refugees from foreign soil, while all Indians abroad (including die-hard BJP supporters, rely upon a non-discriminatory policy of other, foreign governments, for their own lives.

More than anything else a closer look at India’s refugee policy is in order. We are neither a signatory of the United Nations’ 1951 refugee convention nor of its 1967 protocol. The reasons why India did not join these was based on a genuine understanding of the state of affairs then — the 1951 convention defined “refugees” as Europeans who had to be re-settled and suggested that “refugees” were those who fled the “non-Free world” for the “Free world”. It was in December 1950, at the UN’s third committee, Vijaylakshmi Pandit (sister of Jawaharlal Nehru) objected to the Euro-centrism of the definition of refugee, “Suffering knows no racial or political boundaries; it is the same for all. As international tension increases, vast masses of humanity might be uprooted and displaced.” She was right. The refugee crisis across the world is now severe for reasons of war and economic distress. Three years later, the foreign secretary, R.K. Nehru, told the UNHCR representative that the UN agency helped refugees from “the so-called non-free world into the free world. We do not recognize such a division of the world”. Then India, pre the rightwing “neoliberal policies launched by Narasimha Rao-followed by Atal Behari Vajpayee and even Manmohan Singh –was the proud architect of the Non-Alligned Movement (NAM) with Nehru, Nasser and other world leaders seeing wisdom in this worldview.

However, in spite of its reluctance to join these international conventions, India has obligations under international law. India has signed onto the 1967 UN Declaration on Territorial Asylum and the 1948 UN Declaration of Human Rights. Even though it is not a member of the 1951 refugee convention that frames the work of the UNHCR, India is on its executive committee, which supervises the agency’s material assistance programme. Following this international human rights law, the Indian Supreme Court ruled in 1996 that refugees could not be forcibly repatriated because of the protections to life and personal liberty in Article 21 of the Indian Constitution (National Human Rights Commission vs. State of Arunachal Pradesh).

India’s current refugee policy is governed by the Foreigners Act (1946) that does not even use the term “refugee”. Without a clear-cut policy, Indian governments have, over the years have dealt with different refugee populations depending on their political worldview at the time (foreign policy) – for example,  India’s treatment of Tibetans conforms to its relationship with China, for instance. It was this absence of a cohesive refugee policy that set the ground for Operation Pushback in the 1990s which furthermore used the Bangladeshi refugees as a tool for communal politics. And it is this backdrop that has created the situation to allow the man who would be PM to make his threatening statements against Bangladeshi migrants.

Today, after much democratisation of international law and policy within the United Nations and in international law, the fundamental principles on which a universal and accepted regime on refugees and asylum has evolved is that it be universal — all people who seek refuge should be treated equally. No tests of religion or ethnicity — or even politics — should be applied. The UN declaration is also sensitive to the limits that states might place. For instance, the UN Declaration on Human Rights says that the right for refugee status “may not be invoked in the case of prosecutions genuinely arising from nonpolitical crimes or from acts contrary to the purposes and principles of the United Nations.” Criminals, therefore, can be denied the right to sanctuary (although even here extradition procedures protect those who flee from malicious accusations).

Hence India — by its standing in various international protocols — has a responsibility to all asylum seekers and migrants, and must treat them equally. To do anything less than that would move India to join the wave of anti-immigration that has taken hold in Europe and North America, and has been structured into state policy in Israel. Worse than anything it would be back peddling on our own tradition of a visionary and inclusive international foreign policy.

It was not long after the deplorable Operation Pushback of the 1990s that the former chief justice of India, P. N. Bhagwati, chaired a panel to create a model law for India on refugee rights. Bhagwati — who had also served as regional adviser for Asia and the Pacific for the UN High Commissioner for Human Rights — suggested that “an appropriate legal structure or framework” would give Indian states “a measure of certainty” in their policy-making and it would give “greater protection for the refugees”. Bhagwati’s model law defined refugees as people outside their country of origin who could not return there because of “a well-founded fear of persecution on account of race, religion, sex, ethnic identity, membership of a particular social group or political opinion.” This was a very broad and important standard, which would greatly improve Indian refugee policy. It would also protect refugees — often the most vulnerable population — from political games that are often played at their expense, often by the shrill vitriol of the Shiv Sena (Maharashtra), the Vishwa Hindu parishad (Assam and Arunachal), the Rashtriya Swayamsevak Sangh (RSS) all India and its parliamentary wing, the BJP.

Bhagwati’s report — like so many other well-meaning commissions — has made little impact. It was turned into a draft law — the Refugees and Asylum Seekers (Protection) bill — but was unable to leave the home ministry for Parliament because of pressure from the Indian security establishment and various political calculations. Why UPA I and II did not push for a rational refugee policy is a question so close and similar to why they failed to honour their promise contained in the Common Minimum Programme and enact a Law for the Prevention of Targeted and Communal Violence. Behind these failures lies the success of the hate-filled shrill vitriol of a majoritarian and communal opposition, the BJP today monopolised by the Man who would be PM….

Ends