Detention of India’s intellectuals: Is it persecution under the 1951 Refugee Convention?

The rising fundamentalism around the world in its fair share can be witnessed in India as well, where intellectuals, activists, and dissenters of the government are seen to be systematically targeted

Gauri Thampi Aug 01, 2020
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The rising fundamentalism around the world in its fair share can be witnessed in India as well, where intellectuals, activists, and dissenters of the government are seen to be systematically targeted. Most interestingly, the attacks are being directed through the archaic and repressive laws such as Unlawful Activities Prevention Act (UAPA) and sedition laws in  the Indian Penal Code (IPC) in the world’s largest democracy. 

A timeline can be traced from the arrests of Communist Party leader Kanhaiya Kumar and two other students from the Jawaharlal Nehru University (JNU) in 2016 for their alleged anti-national statements made during the protest against the hanging of Afzal Guru, who was convicted for his role in the 2001 Indian Parliament attack to the attacks on left-leaning activists. Before the arrest, the term anti-national came to be widely used by the state to defend any criticism from the masses against its policies or actions. The state was also instrumental in promoting this hatred against activist-journalist Gauri Lankesh, rationalist Narendra Dabholkar, leftist activist Govind Pansare and Kannada scholar and writer M M Kalburgi. All of them were attacked and killed as a result of this hate crime.

In 2018, in connection with the Bhima Koregaon rally, several left-wing activists, writers, scholars, and poets like Shoma Sen, Mahesh Raut, Sudha Bharadwaj, Anand Teltumbde, Varavara Rao, and Arun Ferreira and several others were arrested for their alleged involvement with Naxalites. The arrests were made in 2018. They were charged for abetting a caste-related clash in the western state of Maharashtra. They are still in jail and their bail plea has been rejected multiple times as they have been booked under the draconian UAPA.

Civil society organisations and human rights groups called these detentions “wrongful” and “politically motivated.” Recently, media reports highlighted the severely deteriorating medical condition of 81-year-old poet Varavara Rao, who was tested positive for COVID-19 in jail. This led to protests. The agitators demanded that he be provided adequate medical care, which was till then denied to him.

Similarly, in 2019, the passing of the controversial Citizenship Amendment Act (CAA) 2019 in the Indian parliament led to protests all over the country against the Bharatiya Janata Party (BJP) government. Students of various acclaimed universities like JNU, Aligarh Muslim University (AMU) and Jamia Millia Islamia (JMI) joined the protests but were met with widespread police brutality and arrests.

What shocked the conscience of humanity was when the court rejected the bail plea of JMI student Safoora Zargar, who was 23 weeks pregnant and was arrested in connection with the CAA protests. She was jailed while the world was fighting a deadly pandemic. In June, after over two months, the Delhi High Court allowed her bail on “humanitarian grounds”.  These events are a testament to the regular and continuing human rights abuse faced by the dissenters.

International human rights law

Political opinion or dissent is clearly one of the five grounds of persecution as covered under the 1951 Refugee Convention. The term persecution has not been defined under the 1951 Refugee Convention, however, Article 33 of the Convention, provide for the threat to life or freedom within the scope of persecution. Following the American-Canadian scholar James Hathway’s approach in defining persecution, and the international human rights law - which is further carried out through the UDHR (Universal Declaration of Human Rights), ICCPR (International Covenant on Civil and Political Rights), and ICESCR (International Covenant on Economic, Social and Cultural Rights) - any severe harm emanating from the breach of these rights will amount to persecution. The foregoing documents provide for the right to life which is non-derogable, and the right to freedom of speech and right against arbitrary arrest and detention against which any un-proportionate, unreasonable and unjust breach is prohibited. The Indian constitution also has provided these rights under Articles 19 (Right to Freedom), 20 (gives protection in respect of conviction for offenses) and 21 (gives the right to life, personal liberty and the right to die with dignity)

While persecution and prosecution are not coterminous, they are not mutually exclusive as well. The UNHCR handbook states that if the laws of a country are not in conformity with the accepted human rights standards, the prosecution can also amount to persecution. The UAPA and the sedition laws in IPC have been criticised widely for its violation of basic human rights standards which permits arrest and detention without the fundamental pre-trial guarantees, and often has a reverse burden of proof and presumption of guilt provision. Therefore, these persons are the victims of the laws which are part of the oppressive apparatus of the state. The state through its inaction, passive efforts, and untimely moves is contributing to violating its obligations under the International Human Rights Law and targeting individuals to satisfy their political vendetta.

Persecution and asylum protection

The threshold for seeking protection from persecution under the Convention is to see whether the individual is unable or unwilling to claim the protection of the state. According to Atlee Grahl-Madsen, a Norwegian law educator and lawyer, who worked extensively on refugee laws, these occurrences cannot be sporadic, but systematic and continuing over a period of time; and which is so in the Indian scenario. The state is not only unwilling to abide by the domestic and international standards of human rights to provide protection to these activists, intellectuals, and dissenters but rather the state has become the perpetrators of the violations through the imposition of the draconian laws and channeling its discriminatory application.  

Recent developments in the light of a pandemic involve additional risks like in the case of Varavara Rao and Safoora Zargar which is also governed by the ‘Basic Principles for the Treatment of Prisoners’ entailing impartial access to health services for prisoners in the country. Therefore, apart from the arbitrary arrest and detention, there is a subsequent violation of their human right to health during the ongoing pandemic.

As discussed above, the present political climate and the laws and policies propounded by the current regime sufficiently give rise to a well-founded fear of persecution. Media reports have said that the number of Indians claiming protection under the asylum laws is increasing in recent years in the backdrop of rising Hindu nationalism and fundamentalism. Already under this list are the religious minorities and those fearing the cow vigilantes. Soon, we will see another group will be in this list i.e. intellectuals, activists, and dissenters who are persecuted for their political opinion and dissent.

In the past few years, there has been a steady rise in atrocities and attacks against dissenters which amount to persecution under the refugee law regime and, hence, these persons are eligible candidates entitled to claim asylum protection under international human rights law.

(The writer has done law from Alliance University, Bangalore, and is currently pursuing research work in the area of Human Rights. The views expressed are personal and not necessarily shared by editors of South Asia Monitor)