Introduction

The paper is divided into two parts. Part I deals with the unquestioned right given to us by the virtue of Article 19 of the Constitution of India and Part II deals with the untapped human right of asylum seekers.The freedom of speech and expression given in Article 19 finds its way from the British period legislation related to hate speech. However, the backdrop of the ancient legislation was to protect Islam from the criticism offered by the Arya Samaj leaders. However, since then to today, the freedom has grown in magnitude each passing day. The ramifications of the law are much founded in our daily lives. This paper will briefly deal with the recent uproar regarding the movie ‘Padmavati’.     

As regards part II, we need to know that the practice of asylum originated in sanctuaries offered by the holy places in ancient time. Since then institution has developed into various ways.

This article explores the nature of asylum as a general principle of international law.

The interest of both individuals and states are directly involved in asylum. Therefore issues of asylum both from viewpoint of individuals as well as state have been approached in this study. It first examines the relation between asylum and refugee status to a place. It then outlines nature of asylum as a right of individuals. From the viewpoint of states, the nature of issues involved suggests a classification of asylum into territorial and non-territorial. In exploring territorial asylum, rights and duties of states granting asylum needs to be examined. Non-territorial asylum is manifested in diplomatic asylum, consular asylum, maritime asylum, although other kinds of asylum can be conceived as aircraft and military camps.

This study also attempts to look at the practice which is followed internationally in respect of granting of asylum. However, granting asylum is mostly based on realpolitik, rather than principle of non-refoulment. In doing so it encounters: the clash of nation’s perceived interest on one hand, and need of refugees on other in case of Rohingya Muslims.

Part – I

On one hand people making political statements on social media[1] are jailed for their audacity while on the other hand fake news on social media becomes cumbersome. The question, therefore is, where to draw the line? Article 19 of the Indian constitution gives to all its citizens the Right to Freedom of Speech and Expression. Yet, the pertinent question is that how free are we in actuality?

In RomeshThapar v. State of Madras[2], PatanjaliShastri, Chief Justice observed: “Freedom of speech and of the press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.”

The article was much extended through the interpretation by the Supreme Court in the famous case of Maneka Gandhi v. Union of India[3]which held that there is no geographical limitation to the exercise of freedom of speech and expression. The citizens have a right to gather information and transmit their views and thoughts not only within India but also in abroad.

However, the right to freedom of speech and expression guaranteed under article 19(1)(a) is not absolute. It is restricted on the basis of the grounds mentioned in clause 2 of the article. The grounds are as follows:

• Security of the State,
• Friendly relations with foreign States,
• Public order,
• Decency and morality,
• Contempt of court,
• Defamation,
• Incitement to an offence, and
• Sovereignty and integrity of India.

The general trend of the judiciary has been that it has upheld the citizens’ right to freedom of speech and expression. For example, in the case of Kishori Mohan v. State of West Bengal[4], the Supreme Court has culled out the difference between law and order, public order and security of State. Anything that disturbs public peace or public tranquillity disturbs public order. But public order cannot be disturbed by merely criticizing the government. However, the ideals of secularism embedded in our constitution have been duly protected by the Supreme Court. A law punishing the utterances deliberately tending to hurt the religious feelings of any class has been held to be valid as it is a reasonable restriction aimed to maintaining the public order.

For the purposes of ascertaining decency the Supreme Court has relied upon the case of R v. Hicklin[5]. The test to check ‘whether the tendency of the matter charged as obscene tend to deprave and corrupt the minds which are open to such immoral influences’was followed in the case of Ranjit D. Udeshi v. State of Maharashtra[6]wherein the court upheld the conviction of a bookseller for the sale of the infamous book ‘Lady Chatterley’s Lover’. The notion of decency and morality changes from time to time and place to place.

Padmavati Controversy

Questions regarding the Right to Freedom of Speech and Expression have gained relevance with the recent furor over the Bollywood movie ‘Padmavati’. Does state have the right to ban a movie which has been granted CBFC certification? Does a movie maker have the right to play with the sentiments of a certain sect of the public? How free and practical is it to produce art that appeals to all? As early as in 1970s and 80s, the Supreme Court had upheld the right of movie makers to exercise their right to speech and expression.[7] The writers as early as in 1990 have commented that if the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence.[8]

The threats and protests of the self-styled Rajput outfit karnisena, and the ban imposed by certain state governments is a blot on the exercise of speech and expression. The creative expression of a film cannot be challenged on such frivolous grounds. The work is a work of fiction.

Rani Padmini features first in the poem ‘Padmavat’ written by ‘Malik Mohammad Jayasi’, a resident of Jayas, Awadh. The only historically verifiable facts are: (1) the attack of Khalji on Chittor (2) the defeat of Rattan Singh. Therefore, the discretion of the film maker was quite wide. However, the public sentiment of the region regarding the queen is quite strong. The local people consider her the epitome of beauty and virtue.

Conclusion

As said by the CBFC chief Mr. Prasoon Joshi, “I condemn any kind of violence but I respect feelings, creativity and the different groups of the society. In light of all these things, the CBFC has to take a well-thought out decision.” The CBFC has taken a balanced view of the situation. The release of the film was delayed and certain amendments were made in the movie including the title that was changed to ‘Padmavat’.Recently, in response to the bans sought by different states, the Supreme Court has held that since CBFC has granted the certificate, there is no valid ground that can be used to ban the release of the movie. Any such ban is a violation of Article 19.

Part – II

Asylum is derived from Greek wordásȳlonwhich means ‘sanctuary’[9]. Asylum is a term which signifies refuge offered by a country. In the past particular places served the function such as an altar, a temple or church, a city or ship. Today asylum generally understood as a place where a refugee may find temporary or permanent shelter.[10]

Hospitality is a variant of asylum. But while asylum is today circumscribed and regulated by international laws and national laws, hospitality remains an expression of character, attitude and tradition rather than of law.[11]

According to Starke, the conception of asylum in international law involves two elements: (1) A shelter which is more than a temporary refuge; and (2) A degree of active protection, on the part of authorities which have control over the territory of asylum.

The Institute of International Law, at its Bath Session in September, 1950, defined the term ‘asylum’ as under:

“The protection which a State grants on its territory or in some other place under the control of certain of its organs to a person who comes to seek.”[12]

 

Colombia v Peru (popularly known as Asylum Case)[13]

Facts-The Colombian Ambassador in Lima, Peru allowed Víctor Raúl Haya de la Torre, head of the American People’s Revolutionary Alliance sanctuary after his faction lost a one-day civil war in Peru on 3 October 1949. The Colombian government granted him asylum, but the Peruvian government refused to grant him safe passage out of Peru.

Colombia maintained that according to the Conventions in force – the Bolivian Agreement of 1911 on Extradition, the Havana Convention of 1928 on Asylum, the Montevideo Convention of 1933 on Political Asylum – and according to American International Law, they were entitled to decide if asylum should be granted and their unilateral decision on this was binding on Peru.

Judgment-Both submissions of Colombia were rejected by the Court. It was not found that the custom of Asylum was uniformly or continuously executed sufficiently to demonstrate that the custom was of a generally applicable character.

 

Asylum Seekers & Refugees

Asylum literally means ‘safe haven’. After World War II, asylum became the legal immigration status in developed countries. This status is given to people who have fled their home and country because of persecution. Most developed countries have set up complicated asylum procedures to help them whether someone should get asylum or not. Asylum is also called ‘refugee status.’[14]

1951 United Nations Convention relating to Status of Refugees, an international legal document, defines a refugee as someone who has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.  Under the Convention, people fleeing famine and natural disasters are not refugees.

In developed countries, people who apply for asylum are called asylum seekers. They have to wait and see whether they are recognized as refugees or not. However, the majority of people fleeing danger do not apply for asylum because they end up in poorer countries in Middle East and Africa.  A tiny percentage is allowed to resettle in small number of developed countries, including Australia.[15]

Rights of Asylum

Article 14(1) of the Universal Declaration of Human Rights (UDHR), which was adopted in 1948, guarantees the right to seek and enjoy asylum in other countries. Subsequent regional human rights instruments have elaborated on this right, guaranteeing the “right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions.” American Convention on Human Rights, Art.22(7); African [Banjul] Charter on Human and Peoples’ Rights, art.12(3).[16]

1. Right To Asylum A Human Right:One of the defining factors of human rights is that they belong to everyone. It doesn’t matter if you’re a British citizen, a refugee, or an asylum seeker applying to become a refugee, you have the right to be treated with humanity. As part of the Human Rights Convention we all have basic rights, including the right to liberty, life, and free speech, for example.

Previous human rights cases have proven that refugees can’t be sent back to a place that makes them suicidal, that female genital mutilation is form of torture, and that asylum seekers are entitled to accommodation while a decision is being made on their application. Refugees also have the right to family life, so they must be allowed to reunite with their families. If a serious crime is committed against a refugee or asylum seeker, the police have a duty to investigate the crime and punish the offender.

However, this doesn’t mean that asylum seekers in the UK are free to conduct their lives in the same way as British citizens. Many people arriving in this country are kept in immigration detention centres while their claims are investigated. Currently, there is no upper limit on how long an asylum seeker, or failed asylum seeker, can be held in detention, although the Human Rights Court found that unreasonable delays were unacceptable. Asylum seekers are not allowed to claim benefits or work in the UK. If they are destitute and have no other means ofsupporting themselves, they can apply to receive asylum support, which is set at a very low rate.[17]

2.Non-Refoulement: The basic principle of refugee law, non-refoulement refers to the obligation of States not to refoule, or return, a refugee to “the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” 1951 Convention relating to the Status of Refugees, art.33(1). Non-refoulement is universally acknowledged as a human right. It is expressly stated in human rights treaties such as Article 3 of the Convention against Torture and Article 22(8) of the American Convention on Human Rights.[18]

In R (on the application of) ABC (a minor) (Afghanistan) v. Sec’y of State for the Home Dep’t[19] and Case of M.S.S. v. Belgium and Greece [GC][20], it was held that principle of non-refoulement prohibits not only the removal of individuals but also the mass expulsion of refugees. e.g., African [Banjul] Charter on Human and Peoples’ Rights, art.12(5).

In elaborating upon the ordinary meaning of the term ‘refouler’ – and hence, the special meaning of the term ‘return’ – an interpretation that it includes exclusion at the border appears valid. Grahl-Madsen has explained: ‘The word “refoulement” is used in Belgium and France to describe a more informal way of removing a person from the territory and also to describe non-admittance at the frontier. It may be applied to persons seeking admission, persons illegallypresent in a country, and persons admitted temporarily or conditionally, in the latter case, however, only if the conditions of their stay have been violated.[21]

 

Rohingya Muslims Case-Despite living for centuries in Myanmar, the Rohingya, who are mostly Muslim, have been denied citizenship and have been rendered stateless. In February, a United Nations report had documented numerous instances of gang rape and killings, including of babies and young children, by Myanmar’s security forces. Repercussions of the violence in Myanmar are now being felt around the globe, particularly in nearby countries; in India, where scores of Rohingya are lodged — reportedly totaling 40,000 — it must come to us as a matter of shame that the state is so much as considering returning the refugees back to the jaws of not merely political persecution but of mind-boggling terror and savagery. Indeed, it is precisely such an argument that a pair of Rohingya refugees, Mohammad Salimullah and Mohammad Shaqir, have made in a petition filed in the Supreme Court. Their submissions rest on two broad planks: one, that any deportation would violate theirfundamental rights to equality and to life, under Articles 14 and 21 of the Constitution, and, two, that any action by India in returning them to Myanmar would infringe international law, particularly the principle of non-refoulement. It could point out, first, that India is not bound to follow the principle of non-refoulement, since it is not a signatory to the 1951 U.N. Convention Relating to the Status of Refugees, and, second, that, in any event, any deportation would be saved by the exceptions to the principle, in that the Rohingya are guilty of committing crimes against peace and are a threat to India’s national security. However, the present crisis goes beyond matters of mere perception. It goes to the root of what it means to be a civilized state, of treating every person, irrespective of constructs of citizenship, with equal care, compassion and respect[22].

3.Freedom of Movement: Freedom of movement, however, is also a key right for refugees within their host country. For instance,International Covenant on Civil and Political Rights, Article12. Article 26 of the 1951 Convention provides that States shall afford refugees the right to choose their place of residence within the territory and to move freely within the State. Meanwhile, Article 28 obliges States parties to issue refugees travel documents permitting them to travel outside the State “unless compelling reasons of national security or public order otherwise require.”

Countries such as Kenya and Ethiopia specify in their national laws that the movement of refugees throughout the country may be restricted and that refugees may be limited to living in designated areas, namely refugee camps. National Refugee Proclamation, No. 409/2004, Art.21(2) (Eth.); Refugees Act (2014) Cap.173 § 12(3) (Kenya).[23]

4.Right To Family Life:The family is seen as the “natural and fundamental group unit of society and is entitled to protection by society and the State (International Covenant on Civil and Political Rights, Article 23(1). In respect of this right, a number of countries provide for the granting of derivative status to dependent relatives. Thus, where an individual is granted asylum, his or her dependent relatives will also receive protection through him or her. [24]

5. Other Rights:The 1951 Convention also protects other rights of refugees, such as the rights to education, access to justice, employment, and other fundamental freedoms and privileges similarly enshrined in international and regional human rights treaties. In their enjoyment of some rights, such as access to the courts, refugees are to be afforded the sametreatment as nationals while with others, such as wage-earning employment and property rights, refugees are to be afforded the same treatment as foreign nationals.[25]

Classification of Asylum

Asylum may be territorial i.e., granted by State on its territory; or it may be extra-territorial, i.e., granted to fugitives by a State within the precincts of embassies or legations abroad. The former is called ‘territorial asylum’ and latter ‘diplomatic asylum’.The distinction between territorial and diplomatic asylum was explained by International Court of Justice in the Columbian-Peruvian Asylum Case.[26]

“In case of extradition (territorial asylum), the refugee is within the territory of the State of refuge. A decision with regard to extradition implies only the normal exercise of territorial sovereignty, the refugee is outside the territory of the State where the offense was committed, and a decision to grant his asylum in no way derogates from sovereignty of the state.”

“In the case of diplomatic asylum, the refugee is with the territory of the State where the offense was committed. A decision to grant diplomatic asylum involves derogation from the sovereignty of that state. It withdraws the offender from the jurisdiction of the territorial state and constitutes an intervention in matters which are exclusively within the competence of that State. Such derogation from territorial sovereignty cannot be recognized unless its legal basis is established in each particular case.”

Territorial Asylum: Territorial asylum is the one granted by a state in its territory. Territorial asylum is not usually granted to ordinary criminals.  It is designed and employed primarily for the protection of persons accused of political offences such as treason, desertion, Sedition, religious refugees.  A well known case is Dalai Lama of Tibet.The General Assembly said in the Declaration of territorial asylum (1967) that the grant of asylum is a humanitarian act and it cannot be regarded as unfriendly by another state. But adds, states granting asylum shall not permit persons engaged in activities contrary to the purpose and principles of the U.N[27]

Dalai Lama’s Case:At the beginning of the 20th century, Tibet increasingly came under Chinese control, and in 1950 communist China invaded the country. One year later, a Tibetan-Chinese agreement was signed in which the nation became a “national autonomous region” of China, supposedly under the traditional rule of the Dalai Lama but actually under the control of a Chinese communist commission. The highly religious people of Tibet, who practice a unique form of Buddhism, suffered under communist China’s anti-religious legislation.

After years of scattered protests, a full-scale revolt broke out in March 1959, and the Dalai Lama was forced to flee as the uprising was crushed by Chinese troops. On March 31, 1959, he began a permanent exile in India, settling at Dharamsala in Punjab, where he established a democratically based shadow Tibetan government. Back in Tibet, the Chinese adopted brutal repressive measures against the Tibetans, provoking charges from the Dalai Lama of genocide. With the beginning of the Cultural Revolution in China, the Chinese suppression of Tibetan Buddhism escalated, and practice of the religion was banned and thousands of monasteries were destroyed.[28]

Case against a uniform asylum law: Baloch leader BrahamdaghBugti’s request for asylum in India has prompted calls for a uniform and apolitical asylum law.If Mr. Bugti is accepted, it would not be the first time that Indian asylum has been politicized. The political repercussions of welcoming the Dalai Lama in 1959 continue to be felt. The Dalai Lama has never been officially recognized as a refugee; he remains an “honored guest” — diplomats for political asylee. On the other hand, India hosts refugees from Tibet and elsewhere who fled persecution and conflict. For refugees, a law will regularize their stay in India and guarantee essential freedoms. But the law need not be uniform. Indeed it should vary so that victims of targeted persecution are individually protected, large groups fleeing war are protected as a group, and people displaced by natural disasters are given transient protection. The same law can allow the government to grant asylum to anyone it pleases, irrespective of what that person has done or where in the world he or she is located.[29]

Rights of States to Grant Territorial Asylum:  A Stateto grant territorial asylum to an alien rooted in principles of customary international law. It is free to admit an alien to its territory and, if it chooses to do so, it can put such conditions on his admission as it pleases. It is exclusive territorial sovereignty of the state, coupled with its right to admit alien to its territory, which gives it a right to accord territorial asylum and this right, has been widely practiced, particularly with respect to respect political refugees. The discretion to give or refuse asylum on its territory belongs entirely to the State, although a moral obligation to accord asylum is suggested.[30]

Duties of State Granting Territorial Asylum:

1. Duty to control activities of the person to whom asylum is given: Generally, speaking International Law imposes duty on a state to prevent to prevent persons within its territorial jurisdiction from engaging into acts which endanger the safety of another state. Therefore, the state of asylum must not let the fugitive do such things as, for example, organize hostile expeditions against his state of origin, or prepare crime against his personage or property.
2. Duty with respect to extradition:Extra Territorial Asylum: Active protection is given outside the territory not belonging to the state granting it. Thus, when Asylum is granted by a State at places outside its own territory. It is called ‘Extra-territorial Asylum’. It usually describes to those cases in which a State refuses to surrender a person demanding who is not upon its own physical territory but is upon one of its public ships lying in foreign territorial borders or upon its diplomatic premises within foreign territories. Thus Asylum is given at legation, consular premises and warships are the instances of extra-territorial asylum.Diplomatic Asylum / Asylum in Legation- Since granting extra-territorial Asylum or diplomatic Asylum involves derogation from the sovereignty of the State, International law ordinarily does not recognize a right to grant asylum in the premises of legation. But asylum may be granted in the legation premises in the following exceptional cases.

1)  Individual who are physically in danger from violence.

2)  Where there is well established and binding local custom.

3) When there is a special treaty between territorial State and the state of Legation concern.

Asylum in consular premises –The above principle also applies in the case of Grant of asylum in consular premises.

3. Asylum in the premises of international institution – Though International Law does not recognize any rule regarding the grant of asylum in the premises of International institution, however, temporary Asylum may be granted in case of danger of imminent violation. Eg, Najibullah, former president of Afghanistan sought refuge in UN headquarters in Kabul, later he was killed by Taliban.
4. Asylum in Warship – There are conflicting views to grant of asylum in warship, but it is argued that Asylum may be granted to political offenders.

As far as an asylum Warship is concerned, it may be granted on the ground of humanity, in cases if extreme danger to the individual seeking it. Thus, right to grant asylum on Warship may be granted in the same way in the case of Legation and also subject to the operation of the same conditions.

5. Asylum in Merchant Vessels – Since merchant vessels do not enjoy immunity from local jurisdiction, they are not competent to Grant asylum to local offenders. Thus, if a person after committing a crime on shore seeks asylum on board a foreign merchant ship he may be asserted by the local police, either before the ship leaves the port or when it comes into another port of the same State. There is, therefore a rule that asylum is not granted on merchant vessels. However, State may grant asylum if they conclude a treaty to this effect.
6. Asylum in the premises of international Institutions- Whether a person taking refuge in the premises of an international institution or organization would be granted asylum is a question which cannot be given with certainty in the absence of any rule in this regard and also because of lack of practice. However, a right to grant temporary refuge in an extreme case of danger from mob cannot be ruled out.

Thus, in Extra-territorial or diplomatic Asylum, Asylum can be granted in exceptional cases and it is necessary to establish legal basis in each particular case.

Asylum Practice Internationally

1. American Practice – Every year people come to the United States seeking protection because they have suffered persecution or fear that they will suffer persecution due to:

• Race
• Religion
• Nationality
• Membership in a particular social group
• Political opinion[31]

The United States recognizes the right of asylum for individuals as specified by international and federal law. A specified number of legally definedrefugees who either apply for asylum from inside the U.S. or apply for refugee status from outside the U.S., are admitted annually. Refugees compose about one-tenth of the total annual immigration to the United States, though some large refugee populations are very prominent. Since World War II, more refugees have found homes in the U.S. than any other nation and more than two million refugees have arrived in the U.S. since 1980. In the years 2005 through 2007, the number of asylum seekers accepted into the U.S. was about 40,000 per year. This compared with about 30,000 per year in the UK and 25,000 in Canada. The U.S. accounted for about 10% of all asylum-seeker acceptances in the OECD countries in 1998-2007. The United States is by far the most populous OECD country and receives fewer than the average number of refugees per capita.

Asylum has three basic requirements. First, an asylum applicant must establish that he or she fears persecution in their home country. Second, the applicant must prove that he or she would be persecuted on account of one of five protected grounds: race, religion, nationality, political opinion, or social group. Third, an applicant must establish that the government is either involved in the persecution, or unable to control the conduct of private actors[32]

 

 

2. British Practice

• The UK asylum system is strictly controlled and complex. It is very difficult to get asylum. The decision-making process is extremely tough and many people’s claims are rejected.
• Initial Home Office decision-making remains poor. In 2016, the courts overturned Home Office decisions in 41% of asylum appeals. (Home Office asylum statistics February 2017)
• There are particular problems with decisions on women’s claims. Women who turn to the courts for help when their asylum claims are refused are more likely to have their protection needs recognized by the courts. Women tell us that it is in part because the asylum system can feel very hostile and it is difficult for them to give full details of the violence they have experienced.
• In 2016, 13,230 asylum seekers had been locked up in detention centers. Shamefully, around half of all asylum seekers find themselves detained during the asylum process. Despite the Government’s 2010 pledge to end child detention for immigration purposes, 71 children were imprisoned during 2016.
• Since 2005 most people recognized as refugees are only given permission to stay in the UK for five years. This makes it difficult for them to make decisions about their future, to find work and make definite plans for their life in the UK. [33]

3. Indian Practice

• As per UNHRC, the UN refugee agency asylum seekers are individual who have sought international protection and whose claims for refugee status have not yet been determined.
• Refugee individuals recognized under 1951 convention relating to status of refugees.
• At the end of 2015 according to UN refugee body, there were 2,07,861 persons of concerns in India of whom 2,01,281 were refugees and 6480 asylum seekers.
• India has offered shelter to TibetiansChakmas of Bangladesh, Afghans & ethnic Tamil Refugees from Sri Lanka.
• India has not yet signed 1951 UN refugee convention nor must the 1967 protocol that stipulates the rights and services host state provide refugees.
• India has one of the largest refugee populations in the world that doesn’t have a uniform law addressing the concern of refugees.

 

There are laws consulted by Indian authorities with regard to refugees and asylum seekers.

1. The Passport Act 1920 & 1967.
2. Registration of Foreigner Act 1946
3. Foreigners Order 1948.

Legal Position in Tamil & Tibet Refugees

• The initial wave of refugees who arrived in India in 1959 with Dalai Lama were regarded as refugee and given asylum.
• The land & housing which they were offered were discontinued & even RC that allowed them to enjoy all privileges of an Indian citizen except the right to vote & work for government.
• Tibetian refugees are also issued an IC (Identity Certificate) from RPO’s on the recommendations of Bureau of His Holiness the Dalai Lama (HHDL) New Delhi.
• Sri Lanka refugees are classified as (a) Camp Refugees (b) Non Camp Refugees Based on socio economic parameters.
• They can’t own land/ vote but are allowed to own cattle & purchase items of domestic use.
• They are also issued Refugee Cards by revenue inspector of their camps required for their return to Sri Lanka.

Refugees of Pakistan, Afghanistan & Bangladesh

• In 2016, government approved various facilities aimed at easing difficulties faced by minority communities.
• They were allowed to open banks accounts, purchase properties for self occupation and suitable accommodation for carrying out self employment, take self employment and obtain driving license, PAN cards and Aadhar number.[34]

Realpolitik And Asylum

Realpolitik has been defined as “politics or diplomacy based primarily on power… rather than ideological notions or moralistic or ethical premises.”

As applied to asylum law, realpolitik means that the receiving country is not concerned about whether the applicant meets the international law definition of refugee. Rather, the receiving country has some ulterior motive for granting asylum; it hopes to benefit itself or harm a rival by granting refuge.[35]

Edward Snowden Case:Edward Joseph Snowden is an American computer professional, former Central Intelligence Agency (CIA) employee, and former contractor for the United States government who copied and leaked classified information from the National Security Agency (NSA) in 2013 without authorization. On June 21, 2013, the U.S. Department of Justice unsealed charges against Snowden of two counts of violating the Espionage Act of 1917 and theft of government property. Two days later, he flew into Moscow’s Sheremetyevo Airport, but Russian authorities noted that his U.S. passport had been cancelled and he was restricted to the airport terminal for over one month. Russia ultimately granted him right of asylum for one year, and repeated extensions have permitted him to stay at least until 2020. He reportedly lives in an undisclosed location in Moscow, and continues to seek asylum elsewhere in the world.[36]

In Mr. Snowden’s case, it’s not hard to imagine why certain countries–Russia, China, Bolivia, Venezuela, and Nicaragua–have been willing to facilitate his journey. Maybe by assisting Mr. Snowden, these countries hope to improve their own image while bringing the U.S. down a notch or two. In addition, all these countries might want to show the world that they are not afraid to stand up to the U.S. Another reason that the different countries might offer asylum to Mr. Snowden is that they want to encourage people who damage the U.S. government’s foreign policy.

Rohingya Muslims In India– The Rohingyaare a majority-Muslim ethnic group, often described as “the world’s most persecuted minority”, who have lived for centuries in the majority Buddhist Myanmar, where they have faced growing violence and persecution as Innocent people are being killed and facing genocide in their home country. That has forced hundreds of thousands to flee to neighboring countries. Around 40,000 Rohingya Muslims have fled to India over the past decade, out of which 16,500 are registered with the UN’s refugee agency. New Delhi wants to deport the 40,000 Rohingya Muslims currently residing in India amid concerns of terror threats.

Why India wants to deport the Rohingya?

The belief in New Delhi is that Rohingya refugees will increase India’s terrorism exposure, which is already at high levels amid threats from Pakistan-based insurgents.The Rakhine crisis has triggered warnings of extremist violence around the region as organizations like Al-Qaeda urge followers to avenge the Rohingya. New Delhi is particularly concerned that Rohingya refugees could be members of the Arakan Rohingya Salvation Army, or ARSA. Officials believe ARSA, an armed militia responsible for August’s attack on Burmese security forces, may be linked to trans-national fundamentalist networks, but the Rakhine-based group has rejected such claims.[37]

Suggestions and Conclusions

Asylum cases always implicate international relations. But the hope is that realpolitik can be minimized in order to provide protection to people fleeing persecution, regardless of the political consequences of granting (or denying) asylum. Refusing admission to prevent aliens from seeking asylum is not a just solution of this issue. So, the protection for those fearing persecution at home could be improved by better balancing the interests of the world community, the individuals in need of protection, and the individual states, and all states in the world community should share equally in the care of those in need of refuge.

 

END NOTES

[1] In November 2012, two girls were arrested for making a post condemning the bandh in the city due to the death of Bal Thakeray.

[2] 1950 SCR 594

[3] 1978 AIR 597

[4] AIR 1972 SC 1749

[5] L.R. 3 Q.B. 360 (1868).

[6] AIR 1965 SC 881

[7] K.A. Abbas Case

[8] A. G. Noorani, TV Films and Censorship, Economic and Political Weekly, Vol. 25, No. 6 (Feb. 10, 1990), p. 300

[9] www.dictionary.com access dated: 16/09/17; time: 18:51

¹⁶ Plaut Graunther W., Asylum: Moral Dilemma(1995) p.11

[11] ibid

[12] Tandon P.M., Public International Law(2012) p.217

[13] [1950] ICJ 6

[14] Teichmann Iris, Immigration & Asylum(2002) p.8

[15] Ibid p.9

[16]http://www.ijrcenter.org/refugee-law  access: dated 16/09/17 ;time 21:00

[17] https://rightsinfo.org/rights-asylum-seekers/; access dated: 16/09/17; time:21:22

[18] http://www.ijrcenter.org/refugee-law ibid

[19] [2011] EWHC 2937 (Admin.) (U.K.); ECHR

[20] no. 30696/09, ECHR 2011, Judgment of 21 January 2011

[21] https://openaccess.leidenuniv.nl/bitstream/handle/1887/16699/04.pdf access dated 21/09/17 ; time 22:42

[22] Reference: The Hindu (Newspaper)

[23] http://www.ijrcenter.org/refugee-law  access dated 17/09/17; time 18:03

[24] Ibid access dated 17/09/17; time 18:29

[25] ibid

[26] 20 November,1950  I.C.J. Reports,1950

[27] http://internationallawu.blogspot.in/2012/11/asylum.html#!/2012/11/asylum.html  date 20/09/17; time 22:01

[28] http://www.history.com/this-day-in-history/dalai-lama-begins-exile date 20/09/17; time 22:17

[29] http://www.thehindu.com/todays-paper/tp-opinion/Case-against-a-uniform-asylum-law/article15882290.ece access 20/09/17 ;time 22:32

[30]  Sinha Prakash S. ,Asylum and International Law, p.156

[31]https://www.uscis.gov/humanitarian/refugees-asylum/asylum   date 24/09/17 ;time 00:53

[32]https://en.wikipedia.org/wiki/Asylum_in_the_United_States  date 24/09/17; time 00:50

[33]https://www.refugeecouncil.org.uk/policy_research/the_truth_about_asylum/facts_about_asylum_-_page_5  date 24/09/17; time 00:55

[34] http://www.snmiasacademy.com/blog/indian-asylum-policy  date 25/09/17; time 01:00

[35] http://www.asylumist.com/2013/07/10/edward-snowden-and-the-realpolitik-of-asylum  date 25/09/17;time 19:05

[36] https://en.wikipedia.org/wiki/Edward_Snowden  date 25/09/17; time 19:10

[37] https://www.cnbc.com/2017/09/20/myanmars-refugee-crisis-is-a-test-for-india-and-narendra-modi.html date 25/09/17; time 20:43

 

Author : Garima Goyal, Shivangi Chandra,Students, Symbiosis Law School, Noida.