Questions of sovereignty
Source: By Swapan Dasgupta: Deccan Herald
The conflict involving the Muslim Rohingya minority and the Buddhist majority in the Rakhine province of Myanmar has become the latest occasion for West- inspired indignation. The international media have gone to town over this latest "humanitarian crisis" that has seen an estimated 3.5 lakh or more Rohingyas flee Myanmar and take shelter in neighbouring Bangladesh that, quite understandably, has expressed its inability to deal with this human influx.
India shares a small border with Myanmar — but not with the Rakhine province — and is not the first port of call for the refugees. However, both domestic and international pressure has been put on the Indian government to open its borders to the Rohingyas. On its part, New Delhi has so far refused citing national security as a consideration. The home ministry has also announced its determination to proceed with the deportation of an estimated 40,000 Rohingyas who have entered India illegally over the past decade.
This decision may be extremely difficult if not impossible to implement, has been pilloried by human rights bodies, Muslim organizations and various notables, usually those concerned about their international reputations. Some activists have even approached the Supreme Court asking it to overturn the Centre's decision to deny sanctuary to the Rohingyas who have either entered or are waiting to enter India. There is, no doubt, a moral dimension to the Rohingya issue that India has been confronted with.
Equally interesting, however, are some of the larger questions centred on perceptions of nationhood and the politico- constitutional order that the Rohingya tangle has thrown up. These deserve attention too. The first issue revolves around the question of national sovereignty. Had India been a signatory to international conventions on refugees, it would implicitly have surrendered elements of national sovereignty for the sake of a global obligation. However, this is not the case and, strictly speaking, India is under no international obligation to accept Rohingyas who have fled Myanmar as a result of a conflict in which it has absolutely no role.
Since the Partition of 1947 that resulted in the influx of Hindu and Sikh refugees from both wings of Pakistan, India has accepted sizable numbers of refugees from all its immediate neighbours without demur. Apart from those who returned to India between 1948 and 1960 from Burma and Ceylon and the religious minorities in Pakistan and Bangladesh who see India as the mother country, these have included Afghans and Tibetans.
Indeed, India's welcoming attitude towards refugees has been quite exemplary. However, it is important to note that India's generosity towards refugees has not been forced on it. It has always exercised its rights of national sovereignty to determine who can come in and who is unwelcome. There were no human rights bodies and international bodies that had to pressure India to take in the millions of refugees that crossed the border in March 1971 following the civil conflict in East Pakistan.
It was done voluntarily. Neither has these do- gooders played any role in ever bringing the plight of minorities in Pakistan and Bangladesh to international attention. Their indignation has invariably been selective. Today, in trying to force the issue on Rohingyas, the attack is on India's exercise of its sovereign powers. Nor is India alone in insisting on its right to control who comes in to the country.
President Donald Trump has insisted on the United States of America blending need with national security to determine its immigration policy; the United Kingdom has resisted accepting the thousands of Africans camped in Calais, and Hungary flatly refused to accommodate any of the migrants from West Asia into its country and risked censure by the European Union. In earlier decades, Norway built a fence along its border to keep Russian migrants out, and the three Baltic States — Estonia, Latvia and Lithuania — also built a 250- mile fence along its eastern border to keep illegal migrants out. And Australia, confronted by the challenge of the boat people, has decided to create offshore zones, away from the mainland. In refusing the Rohingyas, India is not being a monster. It is exercising its rights of national sovereignty.
Traditionally, the exercise of national sovereignty has belonged to the executive and, in the matter of law making, the legislature. That India's approach to Rohingyas or, for that matter, any body of illegal migrants should be vetted or even formulated by the judiciary seems surprising. To some extent this could be another case of potential judicial overreach, a phenomenon that has been traced back to the UPA- II government's abdication of its responsibilities.
However, rather than view the tendency of the judiciary to both make laws and pronounce on matters that, ideally, should be left to the executive as a momentary aberration, it may be useful to locate the trend within the parameters of what is called ' transnational constitutionalism'. Linked to this is the philosophy of ' constitutional patriotism' that emerged in Germany after World War II and which finds its strongest adherents among those championing a federal European Union, integrated by common values. At the heart of these beliefs is the commitment to a set of values that override national specificities and historical- cultural inheritance. The endeavour is to reinvent identities built on age- old national traditions and disrupt historical continuities.
In the EU, for example, the ultra- federalists have sought to create the idea of a 'Year Zero' that begins from the end of World War II in 1945. Anything prior to that is automatically seen as regressive and symptomatic of the destructive nationalisms that, for example, resulted in the Holocaust. Aimed at being a bulwark against the resurrection of nationalism and what is today called populism, it has sought to replace traditional democracy with what Jurgen Habermas, one of its main proponents, has called “juridified decision- making and administrative power". In the Indian context, we have seen the attempt to reduce the ' idea of India' to the Constitution — 1950 being the Year Zero — as if what preceded it has no bearing on the collective identity of the nation.
The philosophy has been lucidly explained in a recent book, Populism and the European Culture Wars: The Conflict of Values between Hungary and the EU, by Frank Furedi, a Marxist scholar who is inclined to ideological heresy: "Habermas' attachment to the EU project is, in part, linked to his belief that transnational institutions tend to transform political issues into juridical ones, thereby reducing the necessity for legitimating the authority of the political... Habermas' attempt to liberate authority from any direct relationship to a national constituency and national traditions lead to a world that is managed by an alliance of enlightened technocrats and courts." Whether self- consciously or otherwise, what is being witnessed in India is a concerted attempt to create a new civic identity that is both at odds and even contests an existing sense of nationhood.
Thus, the priority put on national security by the Indian State on the Rohingya refugee question is sought to be countered and negated by judicial pronouncements that attach primacy to transnational values that have no time for the cultural cohesiveness that nationhood warrants. It is also a fundamentally anti- democratic approach since it proceeds from the assumption that the democratically elected government (or, for that matter, the will of the people) can be superseded by the values of this new enlightenment. No wonder the courts have emerged as a new battleground for those who have either lost or opted out of grubby political contests. The Rohingya issue is an important test case for the Indian political order. It is also not likely to be the last or the most decisive one.
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