This Article has been authored by Ritu Raj, a first-year law student at NLUJA, Assam.
We all know that our Indian Constitution is perfectly secular. The Preamble clearly states that India is a secular republic that guarantees the liberty of thought of expression, belief, faith, and worship of all the citizen. The Article 14 of the Indian Constitution states that the state should not deny to any person equality before the law or the equal protection of the laws within the territory of India. But the Citizenship Amendment Act, 2019 and National Register for Citizens of India, tabled at the centre, led to advent of outbreaks and strong protests all over the country especially Assam. This bill was controversial as it was violating parts of the Assam Accord 1985, concluded between the Central Government, State government, and the leaders of the Assam Movement.
However, it is also true that the protection of the rights and liberties of the refugees is the primary function of any country in the human rights regime and no state can deny its responsibility towards this. Nevertheless, a state has the full authority to protect its national security and the indigenous population. This is the point where the humanity and the concept of sovereignty are opposed. Here, one side deals with the humanity and protection of rights while the other side deals with the protection of national security and the indigenous population.
Dissent between the two thoughts
The tabling of the Citizenship Amendment Act, 2019 and the National Register for Citizens of India developed two thoughts i.e., one that supports the concept of sovereignty while the other one talks about the human rights of the refugees. There is a ubiquitous belief across the whole country that application of the human rights will pose a threat to the sovereignty of the country. Exigent human rights and their positive enforcement could create an opportunity for the state to enhance their regular autonomy. In the era of globalization, human rights could lead the states to protect their citizens from powerful external forces. Sovereignty should be humanized. There is an urgent need to tackle the conflict between sovereignty and human rights on the presumption with respect to humanity. To understand this in detail one has to study both sides in order to reach a perfect conclusion.
Arguments in Support of the Act
This debatable act portrays that the persecuted section of the three countries i.e., Pakistan, Afghanistan, and Bangladesh which falls under the minority section will be protected by the Indian government. But the controversial Act doesn’t define the term “refugee” and not only in this Act, it is even not defined in the Passport Act, foreigners Act, and the Indian Constitution.
India is a signatory to the 1951 convention and the 1967 protocol which obligates the State to protect the rights of the refugees but the point here is that India is merely a signatory as it has not ratified it. Those who are in favour argue that India is a member of the executive committee of the United Nations High Commissioner for Refugees which creates a moral obligation to follow the 1951 Refugees Convention. India is also a signatory to United Nation Human Right Declaration which binds it to International law in order to protect the rights of the refugees.
It is known that India lacks a proper law for the protection of refugees and their legal status. In this scenario, everything depends on the ambiguous Foreigners Act, 1946. Hence, India relies hugely on the International Refugees Treaties. In general, any International law which is not inconsistent with the domestic law are enforceable within the territory. In the case of Gramophone Company of India Ltd vs Birendra Bahadur Pandey the Honourable Supreme Court of India stated that the international law can be incorporated if it’s not against any domestic law.
India is also a signatory to the Bangkok Declaration whose Article III states that “the persona cannot be expelled if there is a possibility that might be exposed to some danger on account of race, religion, nationality, ethnic origin, membership of a particular social group or political opinion”.
It is often argued that the Supreme Court of India is always there to protect the rights of the refugees through judicial activism. The Constitution of India provides various rights which are provided to the non-citizen also like Article 14, 20, 21, 22, 25 and 32. In the case of NHRC vs State of Arunachal Pradesh, the Honourable Supreme Court of India referred to the Article 21 of the Indian Constitution and ordered the Arunachal Pradesh government to take care of the Chakmas residing in their region and also held that their citizenship application should not be withheld and must be forwarded to the concerned authorities.
Arguments in Support of the Human Rights
The notion of Human Rights and sovereignty is always opposed together because the concept of sovereignty infringes various natural rights of the refugees under the name of State’s duty. This not only poses a threat to that particular group but also to the whole human civilization. This act violates the clause 6 and clause 8 of the Assam Accord by granting citizenship to only Non-Muslims. The NRC along with the Citizenship Act will push nearly a million of people in the state of statelessness
It is known that India has a very weak documentation system and it will be highly impractical for the weaker and poorer section to prove their citizenship through the cumbersome process of the NRC. These acts passed by the Indian government under the ambit of sovereignty is reflecting an arbitrary course because it fails to present a valid reasoning for selecting the beneficiaries of the said acts.
For instance, take the example of Myanmar where the Rohingyas are deprived from the citizenship. Under their law, citizenships are granted to the national races and they don’t consider the Rohingyas as the indigenous races and hence they are deprived from the citizenship. This ushered a ghastly genocide in Myanmar proving that the acts of the state under the ambit of sovereignty is posing a huge threat to the human civilization.
The Citizenship (Amendment) Act, 2019, unfortunately, resembles with the Nuremberg Law during Hilter’s regime in Germany. The said law stated that only the Germans were eligible for the Reich citizenship.
If we take the example of Assam which is the home of many ethical minorities and indigenous groups, these acts are violating the rights of the indigenous people present there. As the indigenous people face a lot of threats to their sovereignty, economic activities, their political rights have been ensured by the international organizations like International Labour Organization and the United Nation but these rights are often violated by the state.
Non-refoulement is considered as a conventional international law but refugees should be allowed to stay and provided all the human rights if they are not posing threat to the said nation. We must look at both the sides of the fence.
Many protestors who protest peacefully against these laws face a brutal crackdown by the government. Even the citizens faced threats to their rights to freedom of expression. Constant internet shutdown, imposing Section 144 of the Code of the Criminal Procedure Code, water cannon firing, lathi charge etc were used to deter the protest which is clearly a human right violation by the state. The government even used the draconian sedition law named Unlawful Activities Prevention Act where the government harass, intimidate and imprison the people who opposed it. The bail rules are so stringent that they are kept in jails for years without any trial.
Hence, it can be concluded that it is very necessary to maintain a balance between human rights and the concept of sovereignty. The sovereignty should be balanced in the context of the Human Rights otherwise it will be very detrimental for human civilization. Today for the sake of sovereignty, States are doing everything to deter the rights of not only the refugees but also their citizens. Human Rights rather than challenging the concept of sovereignty are hugely constrained by it because their implementation, interpretation and enforcement totally depend on the states. In the end, the state must ensure adequate protection of the people residing inside their territory and must respect their human rights.