Other Citizenship Issues
|INDIAN ORIGIN TAMILS (IOT) AND ASSOCIATED ISSUES|
- The Citizenship Amendment Act was recently passed in India, in regards with offering citizenship to illegal migrants. In this connection, here is a look at the issue of the Sri Lankan Tamils, as they are excluded from the provisions of the CAA.
|ABOUT INDIAN ORIGIN TAMILS (IoT)|
- Different from Sri Lankan Tamils who live predominantly in the North and East, the IoTs are descendants of indentured Tamil workers.
- The British had shipped them to the island in the mid 19th century to work on tea estates in the five hill districts of the Central and Uva provinces.
- These people now call themselves Malayaha (hill country) Tamils — because of the historical stigma attached to being “Indian” Tamils.
- At the time of Sri Lanka’s independence, the IOTs numbered around 800,000.
- They were the backbone of the tea industry, politically active, and keen to ensure their rights in independent Sri Lanka through strategic alliances with unions and left parties.
- Determined to blunt their political rights, the ruling parties described IOTs as “birds of passage” with no loyalty to the country, as India’s fifth column in Sri Lanka, and as people who stole the locals’ jobs.
|SRI LANKA’S 1948 CITIZENSHIP ACT|
- Sri Lanka’s 1948 Citizenship Act was the first in a series of divisive moves by the Sinhala rulers to consolidate their political base in the majority Sinhalese (Buddhist and Christian) community.
|In 2008, the Supreme Court of India in the Baby Manji Yamada vs. Union of India case highlighted the lack of regulation for surrogacy in India.|
- It was aimed at excluding IOTs — then as now, the predominant workforce in the upcountry tea estates — whose numbers and growing association with leftist parties were proving to be politically inconvenient.
- The IOTs that India accepted through the 1964 agreement were not “fleeing” Sri Lanka.
- Those that remained, were stateless in Sri Lanka for decades until their status as citizens was settled ironically because the ruling party now wanted their votes.
|ISSUES WITH THE ACT|
- This Act sharply delineated ethnic differences, and distorted the political system to weight it in favour the Sinhalese majority.
- This created an intractable dynamic of ethnic outbidding between the two major Sinhalese-dominated parties to attract Sinhalese voters at the expense of the Sri Lankan Tamil minority.
- This all directly or indirectly contributed to the latter’s alienation, support for secessionism, and the outbreak of ethnic violence and civil war in the 1970s and 1980s.
|ISSUES FACED BY INDIAN ORIGIN TAMILS (IoT)|
- Exclusion from basic amenities and government schemes.
- Religious persecution and ethnic conflicts and differentiation.
- Exclusion and limited political and civil rights.
- Harassment and perpetration of the crimes against them.
|SURROGACY BILL 2019 AND INDIAN CITIZENSHIP|
- Commercial surrogacy, a practice also known as ‘Rent a Womb’, was legalised in India in the year 2002, in order to promote medical tourism. And soon, India became the hub of surrogacy. Driven by factors like low cost and the absence of a strict legislation, commercial surrogacy became a booming business in the country.
- According to a 2012 study by the Confederation of Indian Industry, the size of India’s surrogate motherhood industry was $2 billion a year.
- However, the unregulated business of surrogacy led to concerns over the rampant exploitation of surrogate mothers as well as their children, prompting the need for a legislation to regulate surrogacy in the country.
- The economic scale of surrogacy in India is unknown, but study backed by the United Nations in July 2012 estimated the business at more than $400 million a year, with over 3,000 fertility clinics across India.
|PROBLEMS ASSOCIATED WITH CROSS-BORDER SURROGACY|
- For cross border childless couples, not only do they have to cope up with the language barrier, they sometimes have to fight long legal battles to get their children.
- Cross border surrogacy also leads to problems in citizenship, nationality, motherhood, parentage and rights of a child.
- Children are at times denied nationality of the country of the intended parents.
- Lack of an international law on surrogacy creates complications for surrogates as well as intending parents.
- It is quite possible that there are different surrogacy laws in the home country and the country where the baby is born.
- Many experts argue that an international agreement similar to the Hague adoption convention could provide consistency across countries thereby making the process more streamlined.
|LAWS GOVERNING SURROGACY IN DIFFERENT COUNTRIES|
- While countries like Britain, America, Australia, the Netherlands and Denmark are among those where altruistic surrogacy is legal, countries such as France, Germany, Italy, Spain, Portugal and Bulgaria prohibit all forms of surrogacy.
- Armenia, Georgia, Kazakhstan, Russia, Ukraine allow both altruistic and commercial surrogacy.
- Kenya, Malaysia and Nigeria do not prohibit surrogacy but have no formal law to regulate the practice.
- The Czech Republic, Colombia, Chile and Hungary are among countries with unregulated surrogacy.
|Surrogacy is the practice whereby one woman carries the child for another with the intention that the child should be handed over after birth. Such a surrogacy arrangement may be altruistic or commercial in nature.
Altruistic surrogacy involves an arrangement where the couple does not pay the surrogate mother any compensation other than the medical and insurance expenses related to the pregnancy.
Commercial surrogacy includes compensation (in cash or kind) paid to the surrogate mother, which exceeds the reasonable medical expenses associated with the pregnancy.
|PRECONDITIONS FOR ELIGIBILITY|
The certificate of eligibility to the intending couple is issued upon fulfilment of the following conditions:
- The couple being Indian citizens and married for at least five years;
- between 23 to 50 years old (wife) and 26 to 55 years old (husband);
- they do not have any surviving child (biological, adopted or surrogate); this would not include a child who is mentally or physically challenged or suffers from life-threatening disorder or fatal illness; and
- other conditions that may be specified by regulations.
|ELIGIBILITY CRITERIA FOR SURROGATE MOTHER|
To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:
- a close relative of the intending couple;
- a married woman having a child of her own;
- 25 to 35 years old;
- a surrogate only once in her lifetime; and
- possess a certificate of medical and psychological fitness for surrogacy.
- Further, the surrogate mother cannot provide her own gametes for surrogacy.
|ROHINGYA CRISIS AND INDIA|
- In January 2019, the UN High Commissioner for Refugees (UNHCR) called for a report from India on the deportation of a group of Rohingya refugees to Myanmar in October 2018.
- India’s repatriation of the refugees contravenes international principles on refugee law as well as domestic constitutional rights where deportation of refugees is considered as legally and morally problematic.
- Refugee law is a part of international human rights law –In order to address the problem of mass inter-state influx of refugees, a Conference of Plenipotentiaries of the UN adopted the Convention Relating to the Status of Refugees in 1951.
- This was followed by the Protocol Relating to the Status of Refugees in 1967. One of the most significant features of the Convention is the principle of non-refoulment.
- It is often argued that the principle does not bind India since it is a party to neither the 1951 Convention nor the Protocol.However, the prohibition of non-refoulment of refugees constitutes a norm of customary international law, which binds even non-parties to the Convention.
- According to the Advisory Opinion on the Extraterritorial Application of Non-Refoulment Obligations, UNHCR, 2007,the principle “is binding on all States, including those which have not yet become the party to the 1951 Convention and/or its 1967 Protocol.”
- Article 14 of the Universal Declaration of Human Rights provides that everyone has the right to seek and enjoy in other countries asylum from persecution.
- Article 51 of the Constitution imposes an obligation on the state to endeavor to promote international peace and security.Article 51(c) talks about the promotion of respect for international law and treaty obligations.
- The Constitution conceives of incorporation of international law into the domestic realm.Thus the argument that the nation has not violated international obligations during the deportation is a mistaken one.
- The chapter on fundamental rights in the Constitution differentiates citizens from persons. While all rights are available to citizens, persons including foreign citizens are entitled to the right to equality and the right to life, among others.
- The Rohingya refugees, while under the jurisdiction of the national government, cannot be deprived of the right to life and personal liberty (Art.21)
- In National Human Rights Commission v. State of Arunachal Pradesh (1996), the Supreme Court held: “Our Constitution confers… rights on every human being and certain other rights on citizens.
- Every person is entitled to equality before the law and equal protection of the laws. Also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise…”
- India lacks specific legislation to address the problem of refugees, in spite of their increasing inflow.
- The Foreigners Act, 1946, fails to address the peculiar problems faced by refugees as a class. It also gives unbridled power to the Central government to deport any foreign citizen.
- Further, the Citizenship (Amendment) Bill of 2019 strikingly excludes Muslims from its purview and seeks to provide citizenship only to Hindu, Christian, Jain, Parsi, Sikh and Buddhist immigrants persecuted in Bangladesh, Pakistan, and Afghanistan. The majority of the Rohingya are Muslims.
- This limitation on the basis of religion fails to stand the test of equality under Art. 14 of the Constitution and offends secularism, a basic feature of the Constitution.
- Indian Judiciary is independent of executive and legislature. Therefore the Supreme Court has placed human rights at the center of Indian polity and has tried to turn them into tool of advocacy and instrument of fairness between communities as well as individuals guaranteeing them for protection through civil and criminal justice process. Above all strengthening the identity of the Indian state and society.
- As per the devastated condition of Rohingyas, they should be provided with basic facilities of sanitation, proper drinking water, and medical facilities and gradually arrangements for their deportation should be made.
- The right of living of any individual is a priority and cannot be abridged.
- India hasn’t ratified international convention validating refugee status in the country. However, India has done the best it can in the circumstances.
- It is a United Nations multilateral treaty that defines who is a refugee, and sets out the rights of individuals who are granted asylum and the responsibilities of nations that grant asylum.
- It grants certain rights to people fleeing persecution because of race, religion, nationality, affiliation to a particular social group, or political opinion.
- Cross-border displaced who have migrated due to climate change are not recognised as refugees under the 1951 Refugee Convention or its 1967 protocol, and thus do not qualify for protection under national or international legal frameworks for refugee protection.
- India not a member to UN refugee convention neither to its 1967 protocol.
- The Convention also provides for some visa-free travel for holders of travel documents issued under the convention.
- The Convention builds on Article 14 of the 1948 Universal Declaration of Human Rights, which recognizes the right of persons to seek asylum from persecution in other countries.
- The 1967 Protocol included refugees from all countries as opposed to the 1951 Convention that only included refugees from Europe.
- Today, the 1951 United Nations Convention and the 1967 Protocol together remain the foundation of refugee protection, and their provisions are as relevant now as when they were drafted.
|WHY WON’T INDIA SIGN THE CONVENTION OR THE PROTOCOL?|
- Reasons are chiefly security-related, borders in South Asia are extremely porous and any conflict can result in a mass movement of people.
- India follows “Attithi Devo Bhava” and “Vasudhaiva Kutumbakam” in letter and spirit.
- India is home to diverse groups of refugees, ranging from Buddhist Chakmas from the Chittagong of Bangladesh, to Bhutanese from Nepal, Muslim Rohinygas from Myanmar and small populations from Somalia, Sudan and other sub Saharan African countries.
- At the time, UNHCR played a stellar role in helping devise India’s administrative response to the 9.8 million Hindu refugees who poured in from Bangladesh.
- It also helped to mobilize huge international finances to pay for Indian bills (and it wasn’t even the West’s war).
- In 2015, amid the biggest refugee crisis in the West since World War II, none of the reasons listed above justifies India’s continuing refusal to sign the Refugee Convention.
|CENTRAL ADVERSE LIST|
CONTEXT – Recently, Centre has removed names of 312 Sikh foreign nationals from its blacklist/the Central Adverse List.
|ABOUT CENTRAL ADVERSE LIST|
- This list is maintained by Ministry of Home Affairs, that contains:
- Names of individuals who supported the Khalistan movement in 1980s and 90s but left India to take asylum in foreign countries.
- Names of those individuals who are suspected to have links with terrorist outfits or have violated visa norms in their previous visit to India.
- Names of those persons who have indulged in criminal activities or have been accused of sexual crimes against children in their respective countries.
- List is used by all Indian Missions and Consulates to stop the individuals named in it from entering India. This is done by not granting visa to such persons.
- It is a step taken by the Indian government to maintain internal security.
- Used to keep serious offenders outside India as somebody may commit a crime in his native nation and then apply for an Indian visa to escape prosecution.
- List is maintained with inputs from all the state governments, central and state intelligence agencies.
- Assam has 6 detention centres.
- They are run by Assam’s home department with approval from the Ministry of Home Affairs (MHA).
|FOREIGNER DETENTION CENTRE (FDC)|
- All set to become functional from January 1, 2020, on the outskirts of Bengaluru, Karnataka.
- FDC coming up in the State is nationality-neutral and will act as a temporary detention home for foreign nationals illegally staying here and detained by police, till they are deported.
- The powers to deport illegally staying foreign nationals have been entrusted under Article 258 (1) of the Constitution to state governments.
|UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES (UNHCR)|
- Established in 1951 at Geneva , Switzerland to provide international protection for refugees and to seek durable solutions to their problems.
- Competence of the High Commissioner extends to any person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality or political opinion, is outside the country of his or her nationality.
- Refugees who are assisted by other United Nations agencies, or who have the same rights of obligations as nationals or their country of residence, are outside the mandate of UNHCR
|GLOBAL MIGRATION REPORT 2020|
- Published by the International Organisation for Migration (IOM)
- Top destination for migration remains the United States.
- India continued to be the largest country of origin of international migrants followed by Mexico and China.
- The top three remittance recipients were India, China and Mexico.
- United States remained the top remittance-sending country followed by the United Arab Emirates and Saudi Arabia.
|INTERNATIONAL ORGANISATION FOR MIGRATION (IOM)|
- IOM is an intergovernmental organization that provides services and advice concerning migration to governments and migrants, including refugees, internally displaced persons and migrant workers.
- IOM was established in 1951as Intergovernmental Committee for European Migration (ICEM) to help resettle people displaced by World War II.
- It was granted Permanent Observer status to UN General Assembly (UNGA) in 1992.
- Cooperation agreement between IOM and the UN was signed in 1996.
- It has 166 member states, a further 8 states holding observer status and offices in over 100 countries.
- India is a memberof IOM.
- Its headquarters is in Geneva, Switzerland.
- UN considers IOM as an indispensable actor in the protection of migrants and displaced people and in areas of refugee resettlement and voluntary returns.
- IOM works in four broad areas of migration management:
- Migration and development,
- Facilitating migration,
- Regulating migration,
- Forced migration.
|PRAVASI BHARTIYA DIWAS|
- India every year celebrates its Pravasi Bhartiya Diwas on 9th January to commemorate return of its most iconic Pravasi M.K. Gandhi from Africa on 9th Jan 1915.
- Pravasi Bharatiya Divas (PBD) is celebrated on 9th January every year to mark the contribution of Overseas Indian community in the development of India.
- January 9 was chosen as the day to celebrate this occasion since it was on this day in 1915 that Mahatma Gandhi, the greatest Pravasi, returned to India from South Africa, led India’s freedom struggle and changed the lives of Indians forever.
- Significance – To remember the favors and contributions made by Non Resident Indians (NRIs) to the welfare and development of the nation.
- The 15th PBD Convention was held from 21 to 23 January 2019 in Varanasi with Uttar Pradesh as the Partner State with Mr. Pravind Jugnauth, (Prime Minister Mauritius) as chief guest.
- Over 7000 delegates participated in the 15th PBD.
- PBD observed by à Ministry of External Affairs.
- India had celebrated Mahatma Gandhi’s 150th birth anniversary in the year 2019.