A Pakistani Hindu refugee at a protest in Delhi
Pankaj Kumar and Gautam Jha
Hindus, particularly Scheduled Castes and lower castes, living in Pakistan, are repeatedly victimised in the Islamic nation. Consequently, it becomes imperative for India to implement Citizenship Amendment Act
The Government of Pakistan has reportedly failed to protect Hindu places of worship and burial grounds. By 2014, only 20 out of 428 Hindu places of worship entrusted to the Evacuee Trust Property Board were reported to be operational. Like members of other non-Muslim religious minorities, Hindus are reportedly subject to discrimination in admission to higher education institutions and access to employment. Hindus of Scheduled Castes in particular are reportedly usually limited to underpaid and low status employment, such as jobs as fishermen, cobblers, brick makers, sweepers and other sanitation jobs.
Hate Speech Against Hindus
Some Scheduled Caste families reportedly avoid sending their daughters to schools due to fear of their safety and personal security. Furthermore, it is reported that public school textbooks include derogatory remarks and hate speech against Hindus. Scheduled Caste Hindus are reportedly faced with restrictions on access to public spaces and public services.
Hindus have also reportedly faced some difficulty in importing religious literature from India. There are reports of the police being reluctant to register, investigate or intervene in cases of abduction, forced conversion and forced marriage, to which Hindu women and girls are particularly vulnerable. Moreover, victims’ families have reportedly been harassed or received death threats from the perpetrators after reporting such incidents to the police. Hindu representatives state that Hindu victims of forced marriage and conversions are pressured and threatened into saying publicly they had entered into the marriage of their own free will.
Hindu Pilgrims Victimised
In June 2016, an elderly Hindu man was reportedly attacked by an off-duty police officer allegedly for eating (or selling food) during the fasting month of Ramadan. In April 2015, Hindu community members reported that police at the Sindh-Balochistan border demanded bribes from Hindus performing their annual pilgrimage to a Hindu temple in Balochistan. Police have reportedly felt unable to effectively investigate cases of bonded labour, an issue which affects Hindus disproportionately, due to the social influence of the alleged perpetrators, despite the fact that bonded labour is criminalised under Pakistan’s labour laws. Hindus from Scheduled Castes are reportedly subjected to caste-based discrimination, social exclusion and marginalisation, and also to practices of untouchability. Tensions between Muslims and Hindus are reported to be high, with allegations of blasphemy against Hindu individuals reportedly triggering violent reactions from large crowds. Large mobs have reportedly threatened Hindus who were celebrating Hindu festivals, and have pressured police to act on charges of blasphemy.
Attacks on Hindu temples in Pakistan is a worrying trend
Attack on Temple
Hindu property and temples have reportedly been attacked by local Muslim communities. In January 2016, armed men reportedly desecrated a religious monument in a Hindu temple in Karachi. In February 2015 three temples in Sindh were reportedly attacked, while in March 2014 five Hindu temples were reportedly attacked in Larkana, Sindh and surrounding area.
Human rights and community groups report that women and girls from religious minorities, including in particular Hindus especially those from Scheduled Castes (Dalits) are at disproportionate risk of abduction and sexual violence; such attacks may result in the forced marriage of the victims to their abductors, with the perpetrators claiming that their victims had converted to Islam. Conservative estimates suggest that at least 300 Hindu women or girls become victims of forced conversion and marriage each year, but this is likely to be an underestimate. Some madrassas, particularly in Sindh, reportedly conduct “organised conversions”, where they abduct Hindu girls to forcibly convert them to Islam.
Hindus have also reportedly been targets of kidnappings and abductions for ransom, in particular in Balochistan province. There have also been cases of religiously motivated targeted killings as well as reports of hate speech calling for Hindus to convert to Islam or face death.
Vulnerable to Bonded Labour
There are reportedly between three to eight million bonded labourers in Pakistan, with the majority in Sindh and Punjab provinces. Hindus, particularly from lower castes and those in lower socio-economic circumstances, are reported to be disproportionately vulnerable to bonded labour, which is reportedly often accompanied by physical abuse and limitations on the victims’ freedom of movement.
Racial Equality Needed
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), establishes the obligations of State parties to respect and ensure racial equality and the right to be free from racial discrimination. Several other human rights treaties also contain prohibitions on racial discrimination and other forms of discrimination, including the International Covenant on Civil and Political Rights (ICCPR).
The Human Rights Council, the central human rights institution of the United Nations (“UN”), has affirmed that “racism, racial discrimination, xenophobia and related intolerance condoned by Governmental policies violate human rights, as established in the relevant international and regional human rights instruments, and are incompatible with democracy, the rule of law and transparent and accountable governance.” The Human Rights Council has also urged “governments to summon the necessary political will to take decisive steps to combat racism in all its forms and manifestations.”
With increasing cases of Hindu girls being abducted and forcibly converted to Islam in Pakistan, Hindu families in Sindh have been fleeing the region
Protection And Durable Solution in India
- The persons as defined in the Citizenship Act, 1955 (the principle Act), in section 2 in sub-section (1), in clause (b), particularly Hindus are being forced to live in a protracted situation in different parts of India, who came to India on or before December 31, 2014.
- The benchmarks for the durable solutions to the displacements encapsulates long term safety, security and freedom of movement. Adequate standard of living that includes minimum access to adequate food, water, housing, health care and basic education. Access to employment and livelihood opportunities, participation in public affairs at all levels, on an equal basis with the host communities, reunification with the family members separated during the displacement and effective remedies for displacement related rights. The persons as defined above have been denied protection and durable solutions because of the lack of documents such as Long Term Visa. There has been delay in approval of the Long Term Visa for similarly situated individuals.
- The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which India ratified on December 3, 1968, establishes the obligations of State parties to respect and ensure racial equality and the right to be free from racial discrimination. Several other human rights treaties also contain prohibitions on racial discrimination and other forms of discrimination, including the International Covenant on Civil and Political Rights (ICCPR), to which India acceded on April 10, 1979. There are instances of hostilities and discriminations witnessed by the persons as defined in the aforementioned amendment (Act).
- As a State party, India has committed to upholding its human rights obligations under ICERD, ICCPR, and other international human rights law treaties “in good faith,” and may not invoke “the provisions of its internal law as justification for its failure to perform a treaty.” In fact there are no policy till date on the treatment of minority communities who faced persecution in the neighbouring countries and fled to India and continued to face discrimination and humiliation in the host country.
- With few exceptions, States must guarantee non-nationals equal enjoyment of civil, political, social, and economic rights. For example, under its ICCPR commitments, India may only treat non-citizens differently in policies pertaining to voting rights and holding political office. Racial equality-based human rights obligations further require India to ensure that all non- nationals, regardless of their national origin or migration status, enjoy equal due process in residency, citizenship, asylum.. etc…[…]. There have been instances where the minority Hindu who came to India on or before December 31, 2014 returned to Pakistan due to several protection concerns and lack of durable solutions, the Voluntary repatriation was not an option for them to return in safety and with dignity to their country of origin and re-avail themselves of national protection in Pakistan.
- Local integration is a legal, economic and socio-cultural process aiming at providing the Persons of concern who falls under the definition of Section 2 of the Citizenship Amendment Act, 2019 with the permanent right to stay in the country of asylum i..e India, including, in some situations, as a naturalized citizen. Local integration follows the formal granting of Citizenship whether on an individual or prima facie basis, and assistance to settle in order for the Persons of concern to live independently within the community. Till now, many are being awaiting for the grant of citizenship. The only Durable solution and in the best Interest of the Persons of concern living in the protracted situation in different parts of India is the grant of Citizenship and to achieve benchmarks of durable solutions.
- Children, women, old men and women living in protracted situations have specific needs and have heightened risk such as gender based violence, trafficking in person etc. There should be adequate preventive strategies, responses and solutions to the protection concerns.
- Past persecution may affect a woman’s protection situation in the country of refuge and her ability to cope with the challenge of displacement. The assessment of past persecution provides important indicators of the needs of refugee women and the required response or preventive action required. Very often, refugee women who have already been severely traumatized in their country of origin are more vulnerable to being re-traumatized. Latent psychological effects of past torture or trauma, coupled with adverse circumstances in the country of refuge, are likely to exacerbate their state of mental health. Such women may require mental, psychological or social counselling or rehabilitation or qualified medical care for any meaningful recovery. The women and girls are facing risks that include trafficking in person.
- The Committee on Economic, Social and Cultural Rights has reaffirmed that the right to sanitation is an essential component of the right to an adequate standard of living, and “integrally related, among other Covenant rights, to the right to health, … the right to housing, … as well as the right to water.” According to UN General Assembly Resolution 70/169, the right to sanitation entitles everyone “to have physical and affordable access to sanitation, in all spheres of life, that is safe, hygienic, secure, and socially and culturally acceptable and that provides privacy and ensures dignity.”
- Key stakeholders for durable solutions must be an integral part of the strategy development process. Their insight, views and recommendations are essential to inform the development and implementation of the strategy. Engaging stakeholders is important not only for the quality of the strategy but also for the sense of ownership and legitimacy that stakeholders attach to it. The Persons of concern must be involved in the decision making process by the Key stakeholders such as the Ministry of Home Affairs and the Ministry of Law and Justice.
- There is a need for a collective and coordinated approach to support durable solutions; that is completely missing in the context of Persons living in a protracted situation in the camps in different parts of India.
- The Supreme Court also, vide order dated 11.05.2018 in Writ Petition (Civil) No. 859 of 2013 has issued directions to provide basic facilities to the Refugees residing in Delhi, under the realm of Article 21 of the Indian Constitution. The Order of the Honourable Supreme Court should be followed in both letter and spirit.
- In the case of NHRC v. Arunachal Pradesh (AIR 1996 SC 1234), the Court held that “Our Constitution confers certain rights on every human being & certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also no person can be deprived of his life or personal liberty except according to procedure established by law. Thus, the State is bound to protect life and liberty of every human being, be he a citizen or otherwise”
- The Honourable Supreme Court in its landmark judgement on right to privacy dated August 24, 2017, in, Justice K.S.Puttaswamy (Retd) and Anr. v. UOI and Ors WP (C) No.494/2012, has stated “Constitutional provisions must be read and interpreted in a manner which would enhance their conformity with the global human rights regime. India is a responsible member of the international community and the Court must adopt an interpretation which abides by the international commitments made by the country particularly where its constitutional and statutory mandates indicate no deviation.”
- In the People’s Union for Civil Liberties v. Union of India (1997) 3 SCC 433, the Supreme Court states “provisions of covenant, which elucidate and go to effectuate the fundamental rights guaranteed under our Constitution can be relied upon by the Courts, as facets of those fundamental rights and hence, enforceable as such.” (Emphasis Supplied).
- Solutions to displacement are indispensable for national, regional and international peace and security and for creating the stable and secure conditions that are essential for achieving sustainable development goals for everyone.
(Pankaj Kumar is former Expert on Mission to the United Nations High Commissioner for the Refugees and Advocate Supreme Court of India, while Gautam Jha is Advocate on Record, Supreme Court of India)