When in 1950, China sought to ‘Liberalise’ Tibet, what it did in effect was persecution of the native Tibetans by attacking their unique culture in an attempt to impose Chinese Marxist ideology and practices in the social and political culture of Tibetans, who practice and preach Tibetan Buddhism – with the Dalai Lama as their spiritual leader. In an attempt to save themselves and their identity after a failed revolt against the Chinese in 1959, the Dalai Lama and thousands of Tibetans came to NEFA (now Arunachal Pradesh) in India. They were immediately granted asylum by the Indian Government and relief operations were kick-started.

The aim of this article is to analyse how refugee Tibetans became the world’s most successful refugee community, as is proclaimed by all leading scholars on the subject.

Melvyn Goldstein, the American anthropologist arrived at Bylakuppe January, 1966 to do field work among the refugees in South India. Within five years of starting the settlement from scratch in 1962, the refugees at Bylakuppe had “become a tremendous economic success” by 1966 (Goldstein, 1978: 399). He observed very little manifestation of the dysfunctional behaviour commonly associated with the “refugee” syndrome. There was little incidence of mental and emotional disorders and no incidence of alcoholism.

Girija Saklaini, an Indian sociologist, did exhaustive fieldwork and research on Tibetan refugees living in Dharamshala, Delhi and Dehradun (Northern India) and her findings are similarly positive. She wrote that Tibetans have, on the whole, “successfully emerged from a self-sufficient barter economy into a competitive economy, and have adjusted to the new situation which is a tribute to the Tibetan community in exile” (Saklaini, 1984: 216).

The reasons for the ‘success’ of the Tibetan refugee community are sociological as well as political. A few of these come from Girija Saklaini’s explanations as noted by her during her anthropological study of Tibetan refugees: such as work ethics, lack of sexual division of labour, simple entrepreneurship. These simple characteristics can go a long way. For instance, in a country with plenty of unskilled labour, a refugee community without abilities of entrepreneurship and business skills could never have achieved self-sustenance.

However, all of these reasons could not have proved sufficient without the active support that the refugees received from the Indian State. As noted by various scholars, a factor of supreme importance when it comes to settlement of refugees in third world countries is the political charisma shown by the echelons of the host State’s government.

In the instant case of Tibetan refugees, it was Jawaharlal Nehru, the first Prime Minister of independent India who came to their rescue. Right from the beginning in 1959, Jawaharlal Nehru showed keen personal interest in the Tibetan refugee problems. One of the main reasons was that his China policy was severely criticized in India throughout the 1950s, and his critics took the Tibetan crisis as the proof of his policy failure. Moreover, in India there was widespread sympathy for the Tibetan cause, mainly due to India’s cultural affinities with Buddhist Tibet. It was probably in order to compensate for his political inability to do anything for Tibet that Nehru sought to put the Tibetan refugee problem high on India’s domestic agenda in the 1960s.

On March 30, 1959 the Government of India granted asylum to the Dalai Lama. On April 4, 1959 Nehru stated in public that India’s policy was governed by three factors: the preservation of the security and integrity of India; India’s desire to maintain friendly relations with the People’s Republic of China; and India’s deep sympathy for the people of Tibet (Holborn, 1975: 719). India’s deep sympathy for the people of Tibet was translated into her concrete concern for refugees from Tibet. Though it was the last component of India’s foreign policy, the fact that the Tibetan people figured in that official policy meant that the question of Tibetan refugees was high on India’s agenda. It made a tremendous difference to the Tibetan refugees in India. In this way, Nehru’s political guilt was compensated by his deep personal concern for the refugees. The government provided for settlements by requesting various State governments to allot land for such settlements. Many of them answered Nehru’s call. Further, Bhutan and Nepal also provide land for refugee settlements.

Another reason for successful settlement is also sociological is nature. The Tibetan refugee community in India already had a systematic leadership and power distribution mechanism in place, which they were successfully able to implement in India. When the Dalai Lama took refuge in Dharamshala in India, his ministers and advisors came along with him. This endured that there was no vacuum of control, as well as, that the Indian Government as well as the NGOs and various Aid groups, whether Indian and or International, always had a distribution network available to them which was free of corruption and worked smoothly. The micro level organisation was intricate and at each level, there were elected or nominated leaders who were accountable to their superiors, who were skilled administrators and were also paid a meagre salary by the Tibetan Government in exile at Dharamshala. There were procedures for dispute resolution and bank loans, employment, schooling, as well as health and wellness.

Here, an observation can be made, that it was the successful settlement of these refugees, that ensured that the host population does not come in conflict with them. A few points are worth considering here: first, these Tibetan settlements were planned and execute in such a way that the Tibetan culture does not get assimilated with the culture of the host population. This was the view of the Indian as well as the Tibetan (exile) Government.

Second, in a span of two decades since their establishment, these settlements became self-sufficient. Since Tibetans primarily prefer trading, the local population was hired for agricultural activities all round the year, such as tilling, sowing, harvesting etc. Even though there was some resentment in these workers of the fact that their land was given to the refugees, they nevertheless benefitted from the employment created, which was not there earlier.

Members of the host population are employed by Tibetan refugees in other spheres too. In Nepal numerous local Nepalis are employed in Tibetan refugee carpet factories, which are the largest foreign exchange earner next to tourism. Moreover, increasing number of Tibetan refugees are entering secondary occupations such as selling sweaters in winter, running restaurants and hotels etc. in which local workers are being employed as can be seen in Delhi, Dharamsala, Darjeeling, Kathmandu etc.

The other beneficial type of refugee impact on host society is the extension of Tibetan facilities to the host population. Most of the Tibetan settlements are located in remote parts of India which had not received much attention from New Delhi in terms of developmental funds and projects. With the establishment of Tibetan settlements in such areas, the surrounding Indian or Nepali villages began to receive side benefits. Tibetan schools and hospitals are open to the host population as well. While digging tube wells or making irrigation canals for the Tibetan refugees, foreign charity organizations also have sponsored similar schemes for the surrounding local village as well. To such remote and poor villagers in India or Nepal, the establishment of a Tibetan colony in their locality means new jobs, more business opportunities and new modern facilities.

The scheme of things in the 21^st century is different. Now, the third generation Tibetans, have more expectations, and wish to live rather than survive. The young are often disgruntled by the imposition of multiple identities on them. They are told to remain true to the ‘Free Tibet’ cause and retain their culture uniqueness amongst a sea of local population. And, on the other hand, their belongingness and attachment to India is asserted by them since they have grown up here and consider it their Home.

Even though they can apply for Citizenship, they almost never do so. The Dharamshala Government maintains that if the Tibetans take Indian Citizenship, they will lose focus of their cause and struggle. Based on the Indian Government’s laws for Tibetans born in India who seek Indian Citizenship, it is imperative that they let go of all their benefits provided as members of the Tibetan refugee community. They cannot live in Tibetan settlements, take benefit of employment or education provided by the Tibetan Government, etc.

Thubten Dorje, a Tibetan in exile since the 1960s, has run two thriving small businesses in Dharamsala for decades, raised two children and supported his extended family, but despite his many successes there, he remains optimistic that India is merely a temporary refuge for himself and his family. He is frustrated that his talented son, who is ineligible for seats reserved for specific Indian minorities, will have to pay an unthinkable sum of rupees to gain admission to a good medical college in India. He says,

“We aren’t Indians. We don’t get benefits. We can’t buy land. There is no Indian citizenship for us. There is only a residential certificate that we have to renew once a year. We can’t take loans, no buying lands, and we can’t get good jobs. You can apply for Indian citizenship, but it’s very difficult to get. We pay taxes to the Indian government, and one tax to the Central Tibetan Administration too . . . Tibet is always in our mind. We are still hopeful. We want to be totally independent, but I don’t think there’s any chance of that. Time is fading and he [the Dalai Lama] is getting older day by day. . .”

As Dorje dreams of a better life for himself and his family, either in a free Tibet, he underscores that he will never feel at home in India as long as he is a second-class resident, a non-citizen, a glorified guest. (Jessica Falcone & Tsering Wangchuk, 2008)

This feeling can be traced in many of the second and third generation Tibetans and is proved by the fact that the Tibetan diaspora in India has been reducing each year. Families are migrating to US, Canada, France, Germany etc, since these countries provide better job opportunities and quality of life.

Finally comparing the experience of the ‘most successful’ refugee community with the rather bitter experience of the other communities, some observations can be made.

Firstly, it becomes clear that if the host State’s political leadership and the community shares ethnic and religious or spiritual connections with the refugee group, the settlement of the refugee group becomes peaceful and expedient. In this case, the people of India found spiritual connection with the Dalai Lama and empathised with the Tibetan Community. This helped avoid regional conflicts and violence, which would otherwise be plausible.

Secondly, a crucial factor that worked in favour of the Tibetan Community was their unwillingness and strong determination to not mix or assimilate in the socio-political fabric of their new home. This made the local communities comfortable in multiple ways. They didn’t perceive the refugees as political competitors, or even competitors for common government services and goods, since these facilities were to Tibetans not from the common systems for locals, but from the Tibetan Administration, with aid from multiple agencies as well as Government of India.

Thirdly, since Tibetans were moderately skilled persons with entrepreneurial capacity and individual agency to work, they benefited from the initial support provided by the government and became a self-sufficient community in less than two decades. This ensured that they were not perceived as a liability on the economy of a country in which 40% people at that time were below the poverty line.

Fourthly, and most importantly, the functioning of the Tibetan government in exile with its modern administrative techniques and concrete power structure ensured the well-being of all the refugees through efficient distribution channels. The Dalai Lama being perceived as representing the entire Tibetan Community enabled a centrality and stable dialogue between the Indian State, the Tibetan Administration, and various NGOs and International Donors.

Why India does not have a uniform policy framework for Refugees: Twin Perspectives

India is not a party to the 1951 Refugee Convention or its 1967 Protocol and does not have a national refugee protection framework. However, it continues to grant asylum to a large number of refugees from neighbouring States and respects UNHCR’s mandate for other nationals, mainly from Afghanistan and Myanmar. While the government of India deals differently with various refugee groups, in general, it respects the principle of non-refoulement for holders of UNHCR documentation.

However, it is a signatory to a number of United Nations and World Conventions on Human Rights, refugee issues and related matters. Hence its obligations in regard to refugees arise out of the latter. India has also voted affirmatively to adopt the Universal Declaration of Human Rights, which affirms rights for all persons, citizens and non- citizens alike.

Many experts in the area of refugee law believe that the more practical alternative to proposing an entirely new law is to push for changes in India’s current policy regarding refugees. As stated above, no current Indian law refers directly to refugees. The Registration of Foreigners Act, 1939, the Foreigners Act, 1946, and the Foreigners Order, 1948 are the primary documents dealing with the treatment of foreigners in India. Article 2 of the 1939 Registration of Foreigners Act defines a foreigner as “a person who is not a citizen of India.” The Foreigners Act of 1946 and the Foreigners Order of 1948 also uses this definition of a “foreigner.” Both the Act and the Order affirmatively grant the Indian government powers to restrict the movement of foreigners inside India, to mandate medical examinations, to limit employment opportunities, and to control the opportunity to associate, and the ability to refoule, or “return,” refugees. The Refugee Convention, however, bars all these actions.

Therefore, the reasoning that India’s policy toward refugees already matches international standards and is, consequently, not in need of any change is not acceptable to watchdog agencies like the UNHCR and the NHRC and rightly so. It is patently obvious that although India grants its refugees certain rights and privileges, these are only conferred upon select groups, leaving the question of equality and uniformity unanswered. A clear case of this is the preferential treatment conferred upon the Tibetan and Sri Lankan Tamil refugees. [1]

The post A look at how the Tibetans became the most successful refugee community in India appeared first on SabrangIndia.

As a consequence of partition of the subcontinent, (according to the 1951 Census of displaces persons), an estimated 72.49 lakh (7.24 million) Hindus and Sikhs had moved from western Punjab (Pakistan) to the Indian side and 72.26 lakh (7.26 million) Muslims had similarly moved from eastern Punjab (India) to the Pakistani. A new dimension was further added to this some 24 years later when an outburst of ethno-cultural contradictions in East Pakistan led to its dismemberment from Pakistan and the subsequent creation of Bangladesh in 1971. An estimated 10 million (10 lakh) Bengalis had crossed over to India as refugees to escape Pakistani repression during 1970–71.

In addition to these, several streams of refugees including Tibetans, the Chakmas from East Pakistan and later Bangladesh, Afghans, Mayanmarese, Sri Lankan Tamils, Bhutanese, Chinese, etc., have sought and been granted refuge in India at different points of time.

The case of the Chakmas:

In the 1960s, over one lakh Chakmas and Hajong refugees, Buddhists and Hindus, fled to India from the Chittagong Hill Tract area in the then East Pakistan (now Bangladesh), facing religious persecution. The areas where the Chakma-Hajongs lived was submerged following the construction of the Kaptai Dam. They were made to settle in the Tirap division of Arunachal Pradesh, then known as the North East Frontier Agency, administered by the Ministry of External Affairs through the Governor of Assam. Arunachal Pradesh became a Union Territory in 1972, which coincided with the formation of Bangladesh, and soon local political parties began protesting against the settlement of outsiders in the State. The agitation gained momentum in 1987 when Arunachal Pradesh became a State. (The Hindu, September 23, 2017)

While the above continues to be the dominant perspective, it is only half the truth. The persecution of Chakmas from erstwhile East Pakistan was more political than developmental. After India-Pakistan partition and the formation of East Pakistan, the Chakmas were subdued and disempowered progressively. Their ‘special status’ as a ‘Totally Excluded Area’ was lifted first, following it was an intentional settling of Muslims in the CHT carried out by the Pakistani Regime, they accomplished their aim of converting the majorly Hindu area, into an overwhelmingly Muslim dominated area. There were often violent religious conflicts for control over resources, with the toll taken by the indigenous Chakmas always. The Bengali speaking Muslims enjoyed the support of the Pakistani Government.

“I can now boldly say that I am also one of the freedom fighters. When Gandhiji visited CHT in 1947, I was a national volunteer of Indian National Congress. At that time I was a student of Class IX. Gandhiji and other leaders like Prafulla Ghose and J.P. [Jaiprakash Narayan] assured us that the CHT would be included in India in case it was partitioned. On 14 August 1947 we convened a meeting at Anand Vihar regarding the hoisting of the Indian national flag, which we actually did on 15th August 1947, assuming that we have been included in India. Within a week however, the Pakistani forces came to Rangamati and captured our area by declaring us to be Pakistani nationals instead. We did express our displeasure over this to Nehru and other leaders during several visits to Delhi. Suspecting our loyalty, the newly formed East Pakistan government started torturing us in order to drive us away from our land. We were forewarned that if we wished to stay on in CHT, we would have to embrace Islam or else there was no place for us there. Being Buddhists for generations together, how could we do that? On refusing to give up our religion, they forcibly started abducting and physically abusing our women and converted several of them into Islam. We were frankly told that they were not interested in us, but our land. Our problems got further aggravated with the completion of Karnafuli multipurpose power-project, which inundated a massive chunk of our arable land leaving us with no option, but to seek refuge in India. Even after more than fifty years of the partition, we belong to nowhere. We have become forgotten people.”

Sumoti Ranjan Talukdar

(Chakma Rufugee)

The facilities provided to the Chakmas for basic sustenance under the NEFA gave them hope of a better future. They were all issued valid identity certificates as well. However, When NEFA was made into Arunachal Pradesh, the State government insidiously started withdrawing these amenities and procurement of even essential services through PDS, public employment, land rights etc became extremely problematic. What is also revealed by their accounts is that they suspect it to be a multi-pronged strategy of the State Government since even procuring Birth Certificates is a problem for their community. This will adversely affect their claims to citizenship in the future.

It becomes clear thus, that the issue may have more facets than just their legal status. After Arunachal Pradesh was given its Assembly, the financial onus of wellbeing of the citizens shifted to the State Government from the Centre (as was under NEFA). The majority in the region did not want the scarce resources being shared amongst an increasing number of people. This helps explain how the Chakmas were gradually being out-casted from the public benefits they have entitlement to.

The Chakmas have been in Arunachal Pradesh for over 6 decades now, however, they continue to face hostility from the State Government and the locals. Looking at the situation from the perspective of the Chakmas (Deepak Singh, 2010), they do not regard themselves as refugees, firmly believing themselves to be Indians. The reasons for the same are twofold: the older generation insists upon the fact that they were issued valid migration documents, while the younger asserts its Indianness by the fact of their birth in India.  The Supreme Court had in its 2015 ruling asked the Government of India to grant them citizenship, since their claim to it was completely valid and legitimate.

However, their struggle continues as the order gained some traction in 2017, but was never complied with. The Narendra-Modi lead governments agenda to favour Non-Muslim Migrants was prevented by the State Government, which categorically refused to comply with the directive. The concerns sighted were natural, limited resources and a danger to ethnic orientation of the sparsely populated Hilly State.

“Will anybody tell us how much more suffering and humiliation do we need to undergo before we are made Indian citizens? We do not want to go to Bangladesh, for we would continue to be called refugees there as well, as we were born here in India. Moreover, we never feel attached to Bangladesh, as we have grown up here.”

Maya Shanti Chakma

(A Chakma Youth)

[Deepak Singh, 2010]

Stuck between hostilities at the local level, and lip service favours at the national level, the Chakma community’s plight seems never ending.

This points to an observation that the immigrants and refugees continue to live in fear and insecurity regardless of how long they have been in the country, or how socially and ethnically similar they are to its locals.

Formulating a National Refugee Law

As per generally accepted international norms, refugees are people who leave their country of origin to take shelter in any other country because of persecution against them on religious, ethnic, political, or other grounds. Leaving a country for economic reasons, as in the case of most Bangladeshis in India, does not qualify under this definition of a refugee. Hence this category of people needs to be treated differently. That is one reason the problem of illegal immigrants from Bangladesh requires the adoption and implementation of national legislation on refugees.

To assist South Asian countries in the development of domestic refugee laws, the UNHCR set up a five-member Eminent Persons Group (EPG) in 1994, headed by P. N. Bhagwati, a former chief justice of India, and comprising Justice Dorab Patel of Pakistan; Kamal Hossain of Bangladesh, a jurist and former minister of law; Rishikesh Shah of Nepal, a human rights activist; and Bradman Weerakoon of Sri Lanka, a senior bureaucrat. The EPG proposed model refugee laws in 1997 and subsequently came out with the South Asia Declaration on Refugees, which also incorporated the model refugee laws, at its meeting in Islamabad on January 24, 2004. In addition, in India the Asylum Bill, 2015 was introduced in the Lok Sabha on December 18, 2015, as a private member bill by Shashi Tharoor, who had earlier also worked in the UNHCR office in Geneva.

The model refugee laws suggested by the EPG, together with the asylum bill proposed in India’s parliament, could form the basis for the enactment of a national refugee law. A moot point, though, is that these draft laws seem to have been formulated from an activist’s point of view, where the focus is more on the rights and privileges of refugees and asylum seekers than on a country’s national security or the interests of local populations. Care needs to be also taken to ensure that concerns about these ‘illegal economic immigrants’ and their overall rights are balanced with domestic concerns. Identity cards and temporary work  permits are methods that have been devised by western countries. Furthermore, some reasonable restrictions should be placed on immigrants’ movement in sensitive areas, which the government may designate. Jammu and Kashmir, north-eastern states, and areas close to India’s border may, for instance, be declared out of bounds for refugees at least until they are fully integrated.

When domestic refugee laws are in place it will be easier to distinguish between genuine refugees and illegal immigrants. The two categories could, thereafter, be dealt with by separate sets of rules and procedures. In the case of refugees, there could be three possibilities: temporary work permits and identity cards if not voluntary repatriation to the country of origin, the granting of Indian citizenship, or resettlement in a third country. Illegal immigrants—a category that would include asylum seekers whose request for refugee status is rejected after due consideration—would then fall under the provisions of the 1946 Foreigners Act, which will need to be suitably amended to meet the new requirements.[1]

The post Witness the human consequences of forced migration through the Chakmas appeared first on SabrangIndia.

“In India, a man is not a scavenger because of his work. He is a scavenger because of his birth irrespective of the question whether he does scavenging or not.”
Dr B.R. Ambedkar

In a report released recently by the ‘Rashtriya Garima Abhiyan’[1], Gujarat reported 62 deaths of manual scavengers, followed by Maharashtra and Uttar Pradesh reporting 29 deaths each. Madhya Pradesh and Tamil Nadu followed this ignominious record, reporting 24 deaths each. These figures are in stark contradiction with the state-wise data released by National Commission for Safai Karamcharis (NCSK), a statutory body set up by an Act of Parliament for the welfare of sanitation workers.

At the same time, an NGO working for the welfare of manual scavengers and eradication of the practice of manual scavenging – Safai Karmachari Andolan[2] – says that 429 deaths from it occurred in Delhi alone from 2016 to 2018. The reports of the NGO say that nearly 2,000 manual scavengers die every year in the sewers, due to exposure to poisonous gases. If the deaths that occur in septic tanks are included, then the number would be even higher.

And in the face of all of this, many state governments in India maintain that they do not have a single person engaged in manual scavenging. With almost all states having tens of thousands of dry latrines, it is impossible to believe the data ‘officially’ given by the States.

The skewed statistics presented by the State seem only the tip of the iceberg if one tries to gauge the apathy, ignorance and impunity with which it lets the lives of the most vulnerable of its citizens choke to death inside poisonous gas chambers.

The Report released by Rashtriya Garima Abhiyan brings out numerous painful observations and ground realities. The report presents statistics based on interviews and surveys which makes its observations credible and resourceful.

Their findings are as follows:

• The present study identified a total 140 incidents and 302 deaths from 1992 to 2018. Out of 140 incidents a total of 51 incidents were covered by the study in which 97 deaths were reported.

• According to NCSK’s data, Tamil Nadu reported highest number of deaths (194) followed by Gujarat (122), Karnataka (68) and Uttar Pradesh (51). In our report, Gujarat reported 62 deaths followed by Maharashtra and Uttar Pradesh reporting 29 deaths each and Madhya Pradesh and Tamil Nadu reporting 24 deaths   each.

• Out of the total case interview, in 35% of the incidents the FIR was filed whereas in 59% of the incidents FIR were not filed and in 6% of incidents respondents do not know if FIR had been filed. In the total number of cases where the FIR had been filed (18 cases), the research team was able to furnish copies of the FIR for 13 cases during the investigation.

• Legal Proceedings:

1. In the FIRs, section 304 and 304 A of  IPC was charged 77% cases (10 cases  out of 13 cases where FIR was filed and furnished), which is related to death caused due to negligence and for the remaining 3 cases out of 13 cases  where the FIR was filed and furnished, sections 174 of IPC  (Non-  attendance in obedience to an order from public servant) and 284 (Negligent conduct with respect to a poisonous substance) and 7 and 9   of the MS Act 2013 had been charged. But, not in a single case except in that of Bengaluru, the arrest of the employers or the contractors was made. In cases where the FIR had not been filed, the reasons cited by the family were that of compromises being made, pressure and intimidation faced and at times, they have been threatened that they would lose their current jobs.

2. In the 51 cases interviewed, prosecution did not happen in any of the cases.

3. The same goes for the pre-Matric scholarship also. Not a single child of the families who are involved in this hazardous and demeaning practice have received the scholarship for their children. As the pre-Matric scholarship is demand driven, not a single state has raised their demand for the scholarship in the year 2014-15 to 2018. Same goes for the year 2015-16, 2016-17 and 2017-18 except for Gujarat in the year 2015-16 and Maharashtra in the year 2016-17.

• The highest death rate of 37% was recorded in the age group of 15-25 followed by 35% and 23% in the age group of 25-35 and 35-45 respectively.

• 67% of the total deceased were married. Valmiki, Arunthutiyar, Dom, Mehtar, Rukhi, Kumbhar, Matang, Meghwal, Chambar, Rai Sikh and Hela are the communities engaged in cleaning and sanitation related work in the different states covered by the research.

• 94% of the families of the deceased belong to the Scheduled Caste category, 4% to   the Other Backward Classes and 2% to the Scheduled Tribe.

• Out of the 94% Scheduled Castes families of the deceased, 65% of the families’ interviewed belong to the Valmiki caste, a group pushed to engage in sanitation and cleaning related work mostly in the northern parts of the country.

• 49% of the deceased were found to have studied below the 10th standard whereas another 45% were uneducated.[3]

Human Rights Watch also found some instances in which women and men from the Valmiki caste are engaged by urban municipal corporations, both directly by the government and through contractors, to manually clean excrement.

 A municipal corporation worker, who has worked as a safai karmachari, or sanitation worker, for the Bharatpur municipal corporation since 2004 explained her work:

 I clean my area, these two lanes. I clean twice a day because it is so dirty. I sweep the roads and I clean the drains. It is extremely dirty because the houses here flush the excrement from the toilets directly into the drains. I have to pick out the excreta, along with any garbage from the drains. I have to do it. If I do not, I will lose my job. Some women said they faced threats of violence when they refused to practice manual scavenging.

 In November 2012, when Gangashri along with 12 other women in Parigama village in Uttar Pradesh’s Mainpuri district voluntarily stopped cleaning dry toilets, men from the dominant Thakur caste came to their homes and threatened to deny them grazing rights and expel them from the village. Despite these threats, the women refused to return to manual scavenging. Soon after, some 20 to 30 upper caste men from Parigama confronted the community.

Gangashri recalls: They called our men and said “If you don’t start sending your women to clean our toilets, we will beat them up. We will beat you up.” They said, “We will not let you live in peace.” We were afraid.

Such threats have been particularly effective in binding communities to manual scavenging because the affected communities face extreme difficulty in securing police protection. They are especially vulnerable to police refusal to register complaints due to caste bias by police and local government officials.[4]

NCSK Report points out that “The manual scavengers, who are mainly women, are doing this unhygienic work to earn their livelihood, but in most of the cases, even now, they are paid in kind after six months or so without getting any wages on regular basis. (10Kg grains to one family or even one or two basi roties – District Ghaziabad, Meerut etc.)[5]

This translates that they earn only about Rs.300 a month in the form of grain and do not get any cash. Even in this day and time no thought has been given as to from where expenditure for their other needs will come from? In other cases where monthly wages are paid for such a lowly and inhuman work to the manual scavenger these are as low as Rs.One per day (wages range from Rs.15 – 25 a month per family).”

The Commission has found during its tours that dozens of deaths are occurring in almost all the States which are covered up by the administrative machinery, urban local bodies and these deaths remain unreported and non-compensated most of the time. No remedial measures are taken at District, State or Central level even when these deaths of safai karamcharis are reported in national newspapers. They are usually hired on daily wages through a contractor. These safai karamcharis are neither trained to do the job nor provided with any equipment, what to say of life saving paraphernalia. The person, here, has to enter into the sewer/drain, without any mask or equipment and remains within it till he cleans it manually or is killed by the poisonous gases.

In December, 2003 the Safai Karamchari Andolan along with six other civil society organizations as well as seven individuals belonging to the community of manual scavengers filed a writ petition before the Supreme Court under Article 32 of the Constitution on the ground that the continuation of the practice of manual scavenging as well as of dry latrines is illegal and unconstitutional since it violates the fundamental rights guaranteed under Articles 14, 17, 21 and 23 of the Constitution of India and the1993 Act.

Based on the data submitted by the petitioner, the court observed on 27 March, 2014 that

“The aforesaid data collected by the petitioners makes it abundantly clear that the practice of manual scavenging continues unabated. Dry latrines continue to exist notwithstanding the fact that the 1993 Act was in force for nearly two decades. States have acted in denial of the 1993 Act and the constitutional mandate to abolish untouchability.

 For over a decade, this Court issued various directions and sought for compliance from all the States and Union Territories. Due to effective intervention and directions of this Court, the Government of India brought an Act called The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 for abolition of this evil and for the welfare of manual scavengers. The Act got the assent of the President on 18.09.2013. The enactment of the aforesaid Act, in no way, neither dilutes the constitutional mandate of Article 17 nor does it condone the inaction on the part of Union and State Governments under the 1993 Act.

 What the 2013 Act does in addition is to expressly acknowledge Article 17 and Article 21 rights of the persons engaged in sewage cleaning and cleaning tanks as well persons cleaning human excreta on railway tracks.”

Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act (PEMSR) was passed by both the Houses of Parliament on September 7, 2013. The PEMSR Act,
2013 received assent of the President on September 18, 2013 and subsequently published in the Gazette of India on September 19, 2013.

· The Act prohibits the employment of manual scavengers, the manual cleaning of sewers and septic tanks without protective equipment, and the construction of insanitary latrines.[6]

· Its main objectives are:

i. Prohibition of employment as manual scavengers;

ii. Rehabilitation of manual scavengers.

· The Act recognizes the link between manual scavengers and weaker sections of the society. It therefore, views manual scavenging as being violative of their right to dignity.

· Under the Act, each local authority, cantonment board and railway authority is responsible for surveying insanitary latrines within its jurisdiction. They shall also construct a number of sanitary community latrines.

· Each occupier of insanitary latrines shall be responsible for converting or demolishing the latrine at his own cost. If he fails to do so, the local authority shall convert the
latrine and recover the cost from him.

· The district magistrate and the local authority shall be the implementing authorities. · Offences under the Bill shall be cognizable and non-bailable, and may be tried
summarily.

· It provides for detailed vigilance mechanism and monitoring committee at district, state and central level.

· The Act specifically provides for carrying out surveys for identifying persons employed as manual scavengers.

Some of the suggestions from the Rashtriya Garima Abhiyan Report are as follows:

Prevention:

• Technology induced intervention

• Training of the workers and Sanitation Inspector

• Proper awareness and sensitization of the authorities

Rehabilitation:

• Providing relief certificate

• Ensure compensation for the families

• Comprehensive Rehabilitation of the families

• Coverage of worker who has met the fatal injuries

• Scholarship for the children

Prosecution:

• The Police to register FIR along with invoking appropriate sections of the MS Act 2013 and The POA Act 1989.

• Penalizing the implementing the agency: the authorities must be held accountable and responsible for the deaths and must be penalized, as per MS Act 2013 and recent amendment of POA Act in relation to manual scavengers

Standard operating Procedures (SOP):

• Standard operating Procedures for sewer and septic tank cleaners

Inspite of all safeguards are legislative provisions, the humanly degrading practice of manual scavenging is rampant. The primary reason for it seems to be the fact that the ost vulnerable amongst the vulnerable groups are engaged in this practice, ie, majorly Dalits of Valmiki caste, and a significant number of them being women.

It thus becomes an easy task to hush them up by various means: violent threats, fear of unemployment, token payment and in other cases, washing their feet and declaring their job to be a “spiritual experience”, right after cutting their rehabilitation funds by half. [7]

While there exists penal provisions and fines for employing anyone to clean septic tanks, under the Government’s Swachh Bharat Abhiyan 2 crore new toilets were built but they did not come with the better infrastructure or design than traditional toilets and have added on to the misery of the manual scavengers. Many newly built toilets in urban households are spawning more septic tanks and sewers, thereby continuing the practice of employing manual scavengers to clean them.

It will take much more than lip service and feet washing for us to realise that the our society has been committing millions of its least empowered people to death in order to maintain our so called ‘hygiene’ with their blood.

The post Death by excreta: The cursed lives of India’s manual scavengers appeared first on SabrangIndia.

At the time of India-Pakistan partition, both the newly formed States were yearning for legitimacy and the moral support from its citizens. Trapped between the clashing egos of these countries, abducted women of different communities) became the biggest sufferers.

Three weeks after India and Pakistan achieved their independence as separate states, representatives of both dominions met on September 3, 1947, and agreed that steps should be taken to ‘recover’ and ‘restore’ abducted persons. Both sides pronounced themselves against the recognition of forced marriages.

The partition of the sub-continent was an immensely harrowing tragedy for people on both sides of the border. During this process, thousands of women were abducted, sexually violated, raped, and in many cases married to their abductors. This fact did not go down easy down the throat of the patriarchal leaders of the States. Therefore, in a bid to regain some of their legitimacy lost during the loss of life and dignity during partition, India and Pakistan entered into an agreement to mutually ‘restore’ their daughters to their home countries. The Hindu and Sikh women and girls from Pakistan and their Muslim counterparts in India, would be literally exchanged.

The approach taken led to, on the Indian side the ‘Abducted Persons (Recovery and Restoration) Act, 1949’ that was passed by the Indian Government. The act would treat all mixed marital unions between Hindus and Muslims as forced unions in which abducted women were married off against their wishes. A method was prescribed for the rescue of such women and their subsequent restoration to their homes in India or Pakistan. The aim was to locate all the “abducted persons” in the territory of India, and detain them in temporary camps. For this, police officers designated by the government were empowered to locate and capture such persons which he believed or had the suspicion, were abducted. No warrant was required and complete immunity was offered by the law, to such officers in searching premises, conducting inquiries and detaining such persons. The job was assigned to the local police, assisted by one AIG, two DSPS, 5 inspectors, 10 SIs, 6 ASIS and social workers.

Under the act, “abducted person” meant a male child under the age of sixteen years or a female of whatever age who is, or immediately before the day, March 1, 1947, was, a Muslim and who, on or after that day and before the day, January 1, 1949, has become separated from his or her family and is found to be living with or under the control of any other individual or family, and in the latter case included a child born to any such female after the said date.

In their article “An exchange of Women”, Scholars Ritu Menon and Kamla Bhasin discuss that tracing such women was a near impossible task, and to accomplish it, Ads were placed in papers, giving details of missing women. These were then taken up by social workers on both sides of the border in Punjab, and verifications made. Social workers used all sorts of ruses to find out where the abducted women were, sometimes disguising themselves as bangle-sellers, or fruit-vendors. No captor was willing to give up his claims: they heard that women were spirited away, hidden in tandoors, disguised as sisters and mothers–but never voluntarily given up. One liaison officer, who worked in Lyallpur for nine months before formal treaties were drawn up by India and Pakistan, told them: “I would slap the women and tell them I’d shoot them if they didn’t tell me whether there was a Hindu woman in the neighbourhood. They would tell me because they were helpless their men were not around at the time.” He claimed to have ‘recovered’ 800-900 women from Lyallpur alone this way.

These arrangements not only denied women any agency in determining where they chose to live, or who they chose to marry, but also ignored the contingent nature of individual predicaments and the diverse and complex tapestries of human relationships. Thus, there were cases where women had married their “abductors,” had children, and preferred to live with these men instead of being sent back to their families. There were Hindu families who were reluctant to accept women who had had ‘sex with’, or ‘been impregnated’ or worse still had children by, men of the other religion. Chastity and purity were considerations that surfaced frequently, so pregnant women were more likely to be shunned, while women who had children would be taken back only on condition that they gave up these children of mixed unions to orphanages. Older women were vulnerable in other ways. If they owned property, younger men would force these women to “adopt” them, in order to inherit their property. (Niraj-Gopal-Jayal, ‘Citizenship and its Discontents’)

The paradigm of the “recovery” and “restoration” of women was a form of biological citizenship, as it entailed not only determining the religion (at birth) of a woman, almost as if it were a biological characteristic, but also her biological status as a woman whose body had been violated, impregnated, or otherwise defiled by union with a male of another religious community.

Women’s citizenship was thus produced by three concentric circles: first, the citizenship of her father or husband, second, religious identity, and—on the basis of both of these—her imputed national identity. This mapping of religious difference onto citizenship of the nation meant that not only could abducted women not choose their citizenship, as men theoretically could, the assumption was that India was the natural home for Hindu and Sikh women, while Muslim women were naturally Pakistani.

By the time the Abducted Persons Act was repealed in 1957, approximately 20,000 women had been so “recovered” and “restored” to the biological citizenship of their respective “natural” nations.

The above analyses leads to a number of observations. First, the aspect of the State claiming a ‘lien’ over these women in a patriarchal backdrop. This is in a way, an imposition of nationality and by itself, an act of claiming dominion over these women, regardless of their preference or choice. The State in this case became an abductor itself. Comparing this, to the situation of various migrants or refugee groups which ‘seek’ and beg the State for inclusion and citizenship, asserting their nationality and belonging towards it, and yet are denied the privilege of citizenship.

Secondly, the aspect of a ‘natural citizen’ is expanded and includes into its folds the ‘natural’ characteristics of persons which become the deal makers (or breakers) when it comes to deciding their citizenship. In this case, even though India had proclaimed itself to be secular, it was deemed natural that the Hindu and Sikh women were to belong to India and the Muslim women were to be sent to Pakistan. This kind of an approach blatantly violates secularism as well as logic. The ties to the ‘nation’ were deemed as stronger and superior even to the marital ties and individual agency in hierarchy of the various markers of citizenship an individual possesses.

Thirdly, there is an important provision in the Abducted Persons Act – the provision which decides that the children out of these marriages should be considered as citizens of the country their mother has been held a citizen of.

The Constituent Assembly discussed the following question: If only one parent was entitled in these cases to transmit filiation as a basis for establishing citizenship, was the relationship with the mother or with the father to be considered relevant for creating the necessary credentials for citizenship?

It was argued by Shrimati Durgabai in the Constituent Assembly, that it was not the joint labour of the man and the woman but the plunder by men of women’s bodies that had created these children. Hence, ‘‘What right has the abductor to keep the child? The child has to go with the mother.’’

This is in itself a new paradigm approach. Consider the question of the legality of the children born to the union of an illegal immigrant and a citizen. As per the India’s Citizenship Act, such a child is not to be given citizenship regardless of which of the parent is a citizen, and the fact that the child was born in India. It proves thus, that a marker of citizenship is not the alleged illegality of one of the parents, but the colour in which the State looks at the child thus born, based on the ‘natural’ characteristic of that child which may or may not be sufficient in establishing the child’s claim over citizenship. A child which is more ‘Indian’ is thus one which pleases the political State’s agenda. This kind of an approach is necessarily a departure from the Jus Soli approach and an embracing of a Jus Sanguinis approach, which itself suffers from moral defects and arbitrariness as a preeminent marker of citizenship.

Related:

Why the CAA+NPR+NRC is a toxic cocktail for everyone 

Census v/s NPR 

CJP spreads awareness on NPR-NRC in Maharashtra 

The post Rein’state’ed – The case of the ‘exchanged’ women at Partition appeared first on SabrangIndia.

The Supreme Court on February 10, through Justices Sanjay Kishan Kaul and K.M. Joseph passed a remark while hearing a petition challenging the Shaheen Bagh protests. The Court is reported to have remarked that protesters cannot block the public roads and cause “inconvenience” to the general public. Further the Bench is also reported to have added orally that “You cannot block the public roads. There cannot be indefinite period of protest in such an area. If you want to protest, it has to be in an area identified for protest.”

The court said that people were entitled to protest, but the protest cannot be an indefinite one if it is in a public area. It went on to say that an indefinite protest must be in “an area identified for protest”.  However, it refused to pass any interim order to evict the protesters and has fixed the next hearing for February 17.

The court was dealing with petitions filed by Advocate Amit Sahni and another petition filed by Nand Kishore Garg. Both the petitions sought the immediate clearing of the Shaheen Bagh protest on the ground that it caused inconvenience to general public since traffic was blocked by the women protesting on the road. The plea sought an answer from the court asking if people had unrestricted right to protest under Article 19 of the Constitution while violating other persons’ right to have a thoroughfare. “There is no quarrel with the proposition that everyone has a right to protest but the same is subject to reasonable restrictions, which can be imposed looking at the larger public interest,” the petition read.  While the petition stated that the protest is causing inconvenience to residents, children, patients, the protest gathering is also reported to have made way for school buses and ambulances.

The petition, coming as it did just before Delhi state went to the polls could also be viewed as an effort to use the court in what has essentially become a people’s resistance against an obdurate government. High level functionaries of the ruling party at the Centre have used the identity of the Shaheen Bagh protesters to whip up sentiments against the Muslim minority quite blatantly.

At the hearing of the same petition, the court also took cognizance of a letter by a 12-yr-old National bravery award winner following the death of a 4-month-old infant allegedly due to exposure to cold as he was taken to the venue of the anti-CAA protests at Shaheen Bagh. A counsel appearing on behalf of some mothers from Shaheen Bagh said as per UN convention ratified by India, children have a right to protest. To this, CJI SA Bobde asked “a four-month-old went for protest? How can mothers support this!”

The Chief Justice was surprised on how a mother can take a 4-month-old for a protest. The Court however has chosen not to act against the Karnataka police galling up school children for sedition (!!!) when they were protesting a play against the controversial CAA 2019.

The Court’s observations obviously do not match the spirit of the protesting women at Shaheen Bagh, who have been on a peaceful and indefinite sit-in protest for close to 2 months, since the violent attack on Jamia students by Delhi Police, on suspicion of arsonists being among the crowd of protesting students. The protesters at Shaheen Bagh first took to this form of resistance after the brute attack by the Delhi police on Jamia Milia Islamia on December 15. Since then, the protesters have been articulate in that the CAA 2019, the pan-India NRC and it’s precursor, the NPR to be rolled back by the Government.

With the case slated for hearing next Monday, we take a look at the history of the Supreme Court jurisprudence in dealing with public protests, adjudicating between the rights of protesters and the interest of the State/general public for preservation of ‘law and order’.

In Mazdoor Kisan Shakti Sanghatan vs Union of India on July 23, 2018, the Supreme Court has spoken through Justice Bhushan and Justice Sikri holding peaceful demonstrations by the citizenry in order to air its grievances and to ensure that these grievances are heard in the relevant quarters, is a fundamental right. This right is specifically enshrined under Article 19 (1) (a) and 19 (1) (b) of the Constitution of India. Article 19 (1) (a) confers a very valuable right on the citizens, namely, right of free speech. Likewise, Article 19 (1) (b) gives right to assemble peacefully and without arms.

Together, both these rights ensure that the people of this country have right to assemble peacefully and protest against any of the actions or the decisions taken by the Government or other governmental authorities which are not to the liking. Legitimate dissent is a distinguishable feature of any democracy. The question is not as to whether the issue raised by the protestors is ‘right or wrong’ or “justified or unjustified’. The fundamental aspect is the right which is conferred upon the affected people in a democracy to voice their grievances. Dissenters may be in minority. They have a right to express their views. A particular cause which, in the first instance, may appear to be insignificant or irrelevant may gain momentum and acceptability when it is duly voiced and debated. That is the reason that this Court has always protected the valuable right of peaceful and orderly demonstrations and protests.

The Supreme Court has also gone beyond upholding the right to protest as a fundamental right and has held that the State must aid the right to assembly of the citizens. In the Constitution Bench Judgment,  Himat Lal K. Shah v. Commissioner of Police, Ahmedabad, while dealing with the challenge to the Rules framed under the Bombay Police Act regulating public meetings on streets, held that the Government has power to regulate which includes prohibition of public meetings on streets 9 (1962) Supp 3 SCR 369 10 (1973) 1 SCC 227 or highways to avoid nuisance or disruption to traffic and thus, it can provide a public meeting on roads, but it does not mean that the government can close all the streets or open areas for public meetings, thus denying the fundamental right which flows from Article 19(1)(a) and (b). The Court held:

“33. This is true but nevertheless the State cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public place. The State can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interest of public order.”

Public meeting in open spaces and public streets forms part of the tradition of politics and citizens action in our national life. In pre- Independence days such meetings have been held in open spaces and public streets. Social issues and political opposition have been voiced at these meetings. By curtailing access to these spaces for protest, the state and local authorities have begun to exercise a virtual monopoly of control on every open space at which an outdoor meeting can be held. If, therefore, the state government or municipality can constitutionally close both its streets and its parks entirely to public meetings, the practical result would be that it would be impossible to hold any open-air meetings in any large city. The real problem is that of reconciling the city’s function of providing for the exigencies of traffic in its streets and for the recreation of the public in its parks, with its other obligations, of providing adequate places for public discussion in order to safeguard the guaranteed right of public assembly. The assumption is that a city owns its parks and highways in the same sense and with the same rights as a private owner owns his property with the right to exclude or admit anyone he pleases. That may not accord with the concept of dedication of public streets and parks.

Streets and public parks exist primarily for other purposes and social interest promoted by untrammelled exercise of freedom of utterance and assembly in a public street must yield to social interest which prohibition and regulation of speech are designed to protect. However there is a constitutional difference between reasonable regulation and arbitrary exclusion.

In the case of the famed Ramlila Maidan Incident (Ramlila Maidan Incident Dt.4/5.06.2011 v.  Home Secretary, Union Of India & Ors.), the Court observed that the right to assembly and peaceful agitations were basic features of a democratic system and the Government should encourage exercise of these rights:

“245. Freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitations are the basic features of a democratic system. The people of a democratic country like ours have a right to raise their voice against the decisions and actions of the Government or even to express their resentment over the actions of the Government on any subject of social or national importance. The Government has to respect and, in fact, encourage exercise of such rights. It is the abundant duty of the State to aid the exercise of the right to freedom of speech as understood in its comprehensive sense and not to throttle or frustrate exercise of such rights by exercising its executive or legislative powers and passing orders or taking action in that direction in the name of reasonable restrictions.”

In the present case at hand, that of Shaheen Bagh, the protest being an indefinite,  24 X 7 protest and one that is causing inconvenience to the general public, the rights of the protesters will or should be balanced against the rights of those facing the inconvenience. The Shaheen Bagh protest already meets certain pre-requisites: i.e., being peaceful, unarmed, and non-violent.

This `balancing of interests’ approach is basically derived from Roscoe Pound’s theories of social engineering. Pound had espoused this theory of the structure of public, social and individual interests which are all, in fact, individual interests looked at from different points of view or perspectives. Therefore, in order to make the system work properly, it is essential that when interests are balanced, all claims must be translated and brought to the same level and carefully labelled. Thus, a social interest may not be balanced against individual interest, but only against another social interest. The author points out that throughout the heyday of the clear-and-present-danger and preferred position doctrines, the language of balancing, weighing or accommodating interests was employed as an integral part of the libertarian position. [Freedom of Speech: The Supreme Court and Judicial Review, by Martin Shapiro, 1966]. Significantly, it has been held in the above case of Mazdoor Kisan Shakti Sanghatan that the government or the police cannot perpetually declare an area as a prohibited site for peaceful protests or gatherings.

The idea that the citizens must have requisite permission for a peaceful protest is itself derogatory to the extent of freedoms promised to the citizen by the constitution. Protests are not performances or shows, they need to be an eminent display of dissent and an assertion of rights of citizens. Thus, it is imperative that the permission sought from the authorities by any group of citizens must be given as a rule, unless there exist some exigent circumstances. The purpose of the permission is mere regulation, and for the information of the police as to the number of people gathering, their route and timings etc, in order to effectively manage movement for general public as well as the protesters.

In the case of Ramleela Maidan incident, the apex court said that no person can be divested of his fundamental rights. They are incapable of being taken away or abridged. All that the State can do, by exercise of its legislative power, is to regulate these rights by imposition of reasonable restrictions on them. Upon an analysis of the law, the following tests emerge:

a) The restriction can be imposed only by or under the authority of law. It cannot be imposed by exercise of executive power without any law to back it up.

b) Each restriction must be reasonable.

c) A restriction must be related to the purpose mentioned in Article 19(2).

If that was the principle then, what will the standards that will be applied when the Court looks at –in the present case –the general public being inconvenienced by the Shaheen Bagh? While the State must ensure that the protesters’ fundamental rights are not unreasonably restricted, (and the subject of law and order is normally under the state’s jurisdiction, though in Delhi, the police is controlled by the Ministry of Home Affairs), this should include also making suitable arrangements for the general public. Public and protesting citizens, the interests of both groups need to be effectively managed and protected. The State cannot only coerce the protesters to go away or end their protest, albeit it may make calculated administrative provisions for the general public so that the inconvenience caused is as minimal as possible.

Hence the final pronouncement of the Supreme Court is awaited with concern. The preliminary observations on the Shaheen Bagh protests, to the effect that, “There cannot be any indefinite protests in common public areas. If people start protesting everywhere, what will happen?” has raised alarm and concern given the history of the institution’s track record which has been fairly precise and liberal in the balancing act between interests of the protesters and the State.

The Supreme Court Orders may be read here:

The post How SC has balanced the right to protest v/s public inconvenience: Shaheen Bagh appeared first on SabrangIndia.