By Khushi Joshi
The refugee crisis of the liberal state accelerated by increase in right wing populism in governance has resulted in attempts to redefine identities of the imagined community of the state and the ‘other’ and the emerging threat of pursuing this agenda through liberal institutions such as the judicial bureaucracy. The recent order of Supreme court of India refusing to stop the deportation of Rohingya Muslims points towards such a trend. In this paper, the author looks at the sociological impact of the judicial decision in terms of how the subjugation of identity of the ‘other’ occurs and how the Foucauldian theory of rights warns against creation of social facts with regards to identity by institutional structures that function within a power paradigm, and how that can potentially lead to singling out of identities in a discriminatory manner.
Introduction
In a brief six-page order[1], the Supreme court of India recently refused to stop the deportation of Rohingya Muslims back to Myanmar that has been going on since 2017[2], where crimes against humanity including recognised genocide and ethnic cleansing have been taking place[3], despite several international warnings against the same.[4] There exist several critiques to the court’s judgement and how it ignored its obligations under international conventions[5] and contradicted its early rulings. However, since the judgement (or lack thereof) did not even look into the legal arguments, the scope of this blog-post, although acknowledging those arguments, especially in light of the vast potential of national courts to act as agents of international legal order[6], looks at the sociological implications of the identity imposition and secondary subjugation by the courts on the subjectification of the petitioners. This blog-post primarily explores how not only did the court miss out the opportunity of constructing and elaborating on humanitarian equality principles of identity construction and subjectification, specifically in the context of refugees, but by refusing to first identify and condemn the war crimes or crimes against humanity, and then refusing identification of any special status to the applicants, who willingly went through the process of subjugation for claiming freedoms, the court instead aided principles of inequality and oppression. Furthermore, it establishes how by both putting rights of citizens above the rights of those deemed as foreigners and refusing to then acknowledge such rights at all, the court also refused to treat subjects equally before law, This also poses the question of how power dynamics operate through rights and those that have the power to create social facts through the interpretation of such rights and how if that, left unchecked and ignored can be dangerous for certain identities.
The sociological implications of the court’s lack of interpretation of rights of the ‘others’
The formation of state-nations are fundamentally based on the concept of citizenship as they devise such an imagined community by primarily defining what defines them and what constitutes as the ‘other’ or the outsider to the community.[7] Therefore, it is inevitable that the formulation of classifications or criteria of citizenship also involve questions and deliberations of identity.[8] This exact interpretation also leads to classification of identities of those considered as non-citizens or ‘others’ in such an imagined community. Without construction of such ‘nation states’, there would exist no refugees or the ‘other’.[9] Refugees created due to construction of the ‘other’ solely on the basis of their ethnicity also confirms the same.[10] The sociology of the etymology and its implications on identity functions of refugees[11] and the constructivist theory[12] is something that has been discussed in great depth.[13] In India, however, the lack of legislation and ratification of the refugee convention has meant that refugees are simply deemed as ‘foreigners’.[14] The dangers of potential erasure of the refugee identity as well as difference in treatment due to clubbing of various identities that fall within the ‘other’ is a policy deficiency.[15] However, in the present case, another problem that emerges is how the refugee identity is further divested and suffers in a judicial understanding that failed to distinguish between a refugee and an illegal immigrant, even after such persons willingly underwent the subjugation to be able to seek asylum.
The sociological understanding of identity-based rights has long identified the problem or the paradox that the duality functions of rights pose as the more specified the rights become according to identity metrics, the more they lead to subordination of the individuals and the specified aspect of their identity.[16] This secondary subjugation is what Foucault has referred to as assujettissement. This is because any identification of identity-based rights includes the subordination of identity and the trauma related to such identity that will come as a prerequisite for the asylum seekers in our judicial system. Furthermore, to be able to use the disciplinary function of rights, the court first has to adopt a mode of subjectification of such a subject.[17] The subjectification of refugees inherently suffers from the problem that the subjugation ensures that there exists no autonomous subject.[18]
First, in refusing to acknowledge the reality of ethnic cleansing of Rohingya Muslims in Myanmar, the court refused to acknowledge the various identities that exist within the conceptuality of ‘other’ in the nation state of India, i.e. the difference of subject realities that exist within the definition of ‘foreigners.’ Although classification includes subjugation as a prerequisite, lack thereof is even more problematic as it only eclipses the needs of identities of subjects whose social realities are a result of structural inequalities and injustices. The court, in refusing to even look into considerations of Article 14, not only takes a colourblind approach to equality of subjects, it actively refuses to treat the applicants as subjects to whom this principle would be applicable at all. This is a lost opportunity by the court who, in recent judgements has embarked on concepts of transformative constitutionalism[19], who has refused to take even a positivist stance of the Article by refusing to treat the applicants as subjects at all. Second, the court does not completely refuse to provide classification based on identity in the conception of others, in fact, by supporting the argument of Union of India, instead qualifies them as illegal immigrants. Not only does this lead to secondary subjugation of the identity of refugees by first compelling the applicants to subjugate their trauma to attempt to claim classification, but it also then completely ignores the same. This legitimization of policy deficiency of no classification and then imposed classification has resulted in creation of power of court to regulate the identity of all members of the group.[20] The secondary subjugation and forced identification also has social implications of heightening social exclusion of those that may share an intersection of that identity, and projects the idea that all such persons should also be subject to such an exclusion.[21] The notion of illegal also creates the binary of deserving and undeserving refugees, or in our case the deserving and undeserving ‘others’.[22] This, combined with no institutional method set for making this classification also points to the danger of unfettered power that can be exercised through the judicial bureaucracy by the state, something which has been warned against[23] and will be discussed in the next part.
Furthermore, in refusing to comment on situations of the other nation, and resultantly treating the question of violation of rights of foreigners as a thicket which it cannot enter, the court has also violated its obligations to rule on matters that have questions of constitutional determination, and if by this it means that this obligation only extends to citizenship rights, it further drives the point of difference in treatment of subject identities. By only acknowledging Article 19 rights and ignoring considerations of threats to life under Article 21, what the court essentially does is place Article 19 right above the articles available to all, regardless of membership in the community, instead of doing a holistic analysis of the golden triangle. This further drives the argument of colourblind approach to equality and rejection of subjectification of foreigners in a fair manner. The rejection of hearing of submissions of the UN Special rapporteur, in an adversarial system that already places the victim at a disadvantage, the court further fails to treat the subject in a fair and just manner and this combined with refusal to acknowledge the trauma and of the refugees, the court has also depoliticised their identity by neglecting the importance of their experience of exile.[24] The likelihood of rights of refugees being respected get significantly reduced when the subject is depoliticised.[25]
Therefore, Foccault’s identification of faults of judicial systems and critiques of assujettissement ring true in the sense that to even have the chance to become a subject, a refugee seeking asylum in India would have to first go through procedures of truth extraction and trauma explanation to establish an identity distinguish to that of a foreigner, and even after such subjectification, would fail to be treated as a subject by the court. Therefore, the court essentially used Articles 14 & 21 rights as tools of subjucation by claiming and acknowledging that even though they might protect certain freedoms of all individuals, not just those belonging to the nation state of India, they would not apply to the refugees since asylum falls into a separate category of right altogether, one whomst the law of India does not consider foreigners.
Implications of power of court in construction of the dangerous ‘other’ : examining trends of rise in right wing populism and treatment of identity
The question of the construction of the nation state and courts determining what constitutes as ‘other’ in terms of construction of the subject has deeper implications with regards to how power structures operate to the disadvantage of certain identities. According to Foucault, the subjectification of an individual is a process that is rifled with cultural and power tensions, that categorises the individual and marks the person’s individuality, which is also constitutive of their own sense of identity.[26] Social actors who have the power to create such social reality or social facts or the subjectfication process itself include actors who create meanings of things by attaching or creating a ring of reference that make things what they are.[27] Judith Butler, in her analysis of the influence of judiciary upon the construction of the subject talks about how modern institutions operate within a power paradigm, in which the judiciary actually creates the very subject that it claims to represent. This essentially means that the law and the power structures that create the functions of law first create this subject, then hide it, to ‘invoke the discursive formation as a naturalized foundational premise that subsequently legitimates the law’s own regulatory hegemony’.[28] Therefore, the power to create social reality and social facts about the concept of the ‘other’ is now undoubtedly in the hands of the judiciary, and they’re doing so by construction of the identity of the subject, or in this case, the lack thereof.
Furthermore, the expansion of judicial power is assumed by many to be a top-down approach in which it is the politicians that shift power to the judiciary for their own self‐interested purposes, and then use rights only for their functionary purpose as instruments or tools that protect the power relations or reproduce them. [29]. Therefore, there is no doubt that the judiciary has been bestowed upon the power to create the meaning of identities of these subjects. Foucault also iterated the point on governmentality and security of state, in which the state, through its repressive and productive apparatus of power, attempts to shape knowledge principles and control human behavior by calculative means. Nicos Poulantzas combines both of Moyn’s and Foucault’s analysis, proclaiming that the law does not only signal a state’s repressive technique engineered to penalize those who remain outside of its norms, rather, as a disciplinary apparatus, its ability to infiltrate the judicial power points to its productive ability.[30] Therefore, Foucault saw freedoms that emerge from rights as ones that exist because of power.[31]
India, historically and in reality has treated foreigners and the subjectification of such individuals differently, which can be traced to their identity.[32] The difference in treatment of foreigners with identities such as those of Tibetans, Sri Lankan Tamils and the difference in treatment of foreign subject identities by the court[33] to the current case is clearly reflective of the court’s function in the power paradigm and the influence of right wing populism of the government in using rights for its functionary purpose of protector of rights and creation of social facts. There exist several international case studies about how the rise of right-wing populism has especially harmed rights and identity of the refugee subject, due to the strong emphasis placed on building a nation state by weeding out the threats to the identity of such a nation-state, mainly done by creating the devilish ‘other’.[34] The party in power and its attempts to create the evil ‘other’ consisting of minority identities, especially Muslims, is a strategy deployed since the electorate was announced. [35] The lack of representation of the identity and thereby attempting to depoliticize it, Citizenship amendment act singling out the Muslim identity specifically in foreigners, and other factors are indicative of the creation of how the right wing forces are distinguishing between subjects and attempting to push certain identities out of the community of the state-nation.[36] The court’s ruling is also clearly reflective of the influence of the stance of the party on the issue, which qualified them as illegal immigrants and claimed that international principles of non-refoulment have no applicability to India.[37] This makes one wary of the power that judiciary enjoys in terms of creating social facts and subjectivity procedures for identities of individuals, considering the power paradigm that it operates in as well. The double subjugation is reflective of Foucault’s theory of freedoms being seen as those that exist because of such power paradigm and use them as methods of creating such social facts. Furthermore, Butler’s point about the judiciary using such methods to legitimise its own hegemony is also something to be vary of the expansion of judicial power would be only allow politicians to use legal bureaucracy as a means to fulfil short term goals and not allow the Court to serve its purpose as a “radical fiduciary and redemptive institution of the people.” [38] Therefore, the double subjugation of the identity of Rohingya Muslims is not by the court is also a lost opportunity in terms of the potential of using principles of transformative constitutionalism to breathe life into abstract concepts of state-nation[39] and head towards strengthening the egalitarian principles of our Constitution, as well as reject and condemn the conceptualization of the evil ‘other’ on basis of identity, like it has done in the past.[40] The warnings of Bommai to the Hindu right organizations that have entertained and politicised the idea of a majoritarian Hindu state that any such political act that also supported the ideology would be considered as a violation of the basic structure of the constitution[41], is not what is followed through by the court.
Conclusion
Therefore, the refusal of the court in classifying identities of the ‘other’, acknowledging the rights of refugees even after they underwent subjugation necessary for such classification, the court failed to treat the ‘other’ as a subject in a fair and equal manner. This not only ignores equality obligations but can also point towards a dangerous trend of how courts as liberal institutions can be used by the right wing state in creating the identity of the ‘other’ on the basis of religious identities, by creating subjects and interpreting rights in a manner that legitimizes the power hegemony of the court itself. The lack of judgement in this regard also points towards how rights can be used to aid the creation of the ‘other’ and single out identities, and the judgement only remains a lost opportunity to address these questions.
The author, Khushi Joshi, is an undergraduate law student at The West Bengal National University of Juridical Sciences (NUJS), Kolkata.
[1] Mohammad Salimullah v. Union of India and Ors., Writ Petition (Civil) No. 793 of 2017.
[2] Human Rights Watch, India : 7 Rohingya deported to Myanmar, October 04, 2018, available https://www.hrw.org/news/2018/10/04/india-7-rohingya-deported-myanmar (Last visited on May 15, 2021).
[3] ; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), I.C.J. Reports 2020, p. 3;United Nations, Report of the Independent International FactFinding Mission on Myanmar, ¶107, UN doc. A/HRC/42/50, (August 08, 2019); Human Rights Watch [HRW], All you can do is pray, Crimes against humanity and ethnic cleansing of Rohingya Muslims in Burma’s Arakan State, April 22, 2013, available https://www.hrw.org/report/2013/04/22/all-you-can-do-pray/crimes-against-humanity-and-ethnic-cleansing-rohingya-muslims (Last visited on May 15, 2021).
[4] United Nations Human Rights, Office of the High Commissioner, UN human rights expert alarmed by India move to deport Rohingya men, October 02, 2018, available https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23674&LangID=E (Last visited on May 15, 2021).
[5] See Sanya Samtani, Deporting Rohingya refugees: Indian Supreme Court violates principle of non-refoulment, October 18, 2018, available https://ohrh.law.ox.ac.uk/deporting-rohingya-refugees-indian-supreme-court-violates-principle-of-non-refoulement/ (Last visited on May 15, 2021); Gautam Bhatia, Indian Constitution Law and Philosophy, Complicity in genocide, the Supreme court’s interim order in the rohingya deportation case, April 08, 2021, available https://indconlawphil.wordpress.com/2021/04/08/complicity-in-genocide-the-supreme-courts-interim-order-in-the-rohingya-deportation-case/ (Last visited on May 15, 2021); Nafeez Ahmed, Rohingya Refugees in India : from discrimination to deportation, august 22, 2018, available https://blogs.lse.ac.uk/southasia/2017/08/22/rohingya-refugees-in-india-from-discrimination-to-deportation/ (Last visited on May 15, 2021); Ravi Nair, The Leaflet, India pushing back Rohingyas at its borders is a gross violation of rights, April 23, 2021, available https://www.theleaflet.in/india-pushing-back-rohingyas-at-its-borders-is-a-gross-violation-of-rights/ (Last visited on May 15, 2021); Nizamuddin Ahmad Siddiqui and Abu Zar Ali, FirstPost, SC Order allowing deportation of Rohingya migrants runs contrary to the principles of human dignity, April 11, 2021, available https://www.firstpost.com/india/sc-order-allowing-deportation-of-rohingya-migrants-runs-contrary-to-principles-of-human-dignity-9516751.html (Last visited on May 15, 2021); Priya Pillai, International Law omissions: Rohingya deportation order of the Supreme Court of India, April 19, 2021, available http://opiniojuris.org/2021/04/19/international-law-omissions-rohingya-deportation-order-of-the-supreme-court-of-india/ (Last visited on May 15, 2021).
[6] R Falk, The Role of Domestic Courts in the International Legal Order 72 (1964); H. Schermers, The Role of Domestic Courts in Effectuating International Law, 3 Leiden Journal of International Law 77, 79 (1990);
[7] B. Anderson, Imagined Communities (1991) 34; Charles B. Keely, How Nation-States Create And Respond To Refugee Flows, 30(4) The International Migrational Review 1046 (1996); See also, Alfred Stepan, Comparative Theory and Political Practice: Do We Need a ‘State-Nation’ Model as Well as a ‘Nation-State’ Model?, 43(1) government and opposition (2008) (note distinction between concept of nation-state and state-nation, specifically in the Indian nation context).
[8] K. Nash, Between Citizenship and Human Rights, 43(6)Sociology, 1067.
[9] Elena Fiddian-Qasmiyeh, Gil Loescher, Katy Long, Nando Sigona,The Oxford Handbook of Refugee and Forced Migration Studies (2014) 63; E. Haddad, The Refugee: The individual between sovereigns (2008) 26 (how he noted that the spread of nation state as a universal model for organising political communities produced refugees)
[10] F Stepputat, Sociology and forced migration in The Oxford Handbook of Refugee and Forced Migration Studies, 93 (2014).
[11] A. H. Richmond, Sociological Theories of International Migration: The case of refugees, 36(2) Current Sociology 8-10 (1988).
[12] David Scott FitzGerald & Rawan Arar, The Sociology of Refugee Migration, 44 The Annual Review of Sociology 8.3 (2014).
[13] Wendy Brown, States of Injury: Power and Freedom in Late Modernity, 43 (1995); B. Golder, Foucault, Rights and Freedom, 26(1) International Journal for the Semiotics of Law 12 (2012)
[14] The Foreigners Act, 1946, §2(a).
[15] Wendy Brown, Suffering rights as paradoxes, 7 Constellations 232 (2000); See, NIRAJA GOPAL JAYAL, Citizenship in THE OXFORD HANDBOOK OF THE INDIAN CONSTITUTION 206 (2016).
[16] B. Golder, Foucault, Rights and Freedom, 26(1) International Journal for the Semiotics of Law 14 (2012) (see the example of the paradox); M. Foucault, Security, Territory, Population: Lectures At The Colleege De France (2007) 48.
[17] B. Han, The analytic of finitude and the history of subjectivity in The Cambridge Companion to Foucault (2nd edn., 2005) 176.
[18] Cynthia Hardy, Refugee determination: Power and resistance in systems of Foucauldian power, 35 Administration & Society 476 (2003).
[19] gautam bhatia, the transformative constitution: a radical biography in nine acts 34 (2019); See also, B.K. Pavithra v. Union Of India, (2017) 4 SCC 620; Navtej Singh Johar and others v. Union of India, AIR 2018 SC 4321.
[20] Richard Ford, Beyond ‘‘difference’’: A reluctant critique of legal identity politics inLeft legalism/left critique(2002) 56 ( see the point on ill effects of the codification of bad definitions of group culture and identity)
[21] L. Chavez, Commentary: The condition of illegality, 45 International Migration 192-196 (2007).
[22] P. Gale, The refugee crisis and fear, 40(4)Journal of Sociology, 330 (2004)
[23] S. CHOUDHARY, M. KHOSLA, P.B. MEHTA, THE OXFORD HANDBOOK OF THE INDIAN CONSTITUTION 151 (2016).
[24] Philomena Essed, Georg Frerks, Joke Schrijvers, Refugees And The Transformation Of Societies: Agency, Policies, Ethics And Politics (2004) 380.
[25] H. Arendt, Origins of Totalitarianism (1976) 296.
[26] L.Cadman, How (Not) to be Governed: Foucault, Critique, and the Political Environment and Planning, 28(3) Society and Space 536 (2009).
[27] J. Dagg & M. Haugaard, The performance of subject positions, power, and identity: a case of refugee recognition, 3(4) European Journal of Cultural and Political Sociology 400 (2016).
[28] Judith Butler, Frames of War: When is Life Grievable? 25 (2009)
[29] Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2004) 42.
[30] Muna S. Tareh, On the Violence of Self-Determination: The Palestinian Refugee as the Ontological Other, 42(3) Arab Studies Quarterly 203 (2020).
[31] M. Foucault, Security, Territory, Population: Lectures At The Colleege De France (2007) 48.
[32]ANASUYA SYAM, PATCHWORK OF ARCHAIC REGULATIONS AND POLICIES IN INDIA: A BREEDING GROUND FOR DISCRIMINATORY PRACTICE AGAINST REFUGEES, 51 INTERNATIONAL LAW AND POLITICS 1380 (2019).
[33] Id.,
[34] F.Yılmaz, Right-wing hegemony and immigration: How the populist far-right achieved hegemony through the immigration debate in Europe, 60(3) Current Sociology 369 (2012); Alessandro Sola, The 2015 Refugee Crisis in Germany: Concerns about Immigration and Populism, German Socio-Economic Panel 2-10 (2018).
[35] D. McDonnell & L. Cabrera,. The right-wing populism of India’s Bharatiya Janata Party (and why comparativists should care), Democratization 3-5 (2018); Niraja Gopal Jayal, Caravan, The 2016 Citizenship Amendment Bill Consolidates a Trend Towards a Majoritarian and Exclusionary Concept of Indian Citizenship, February 20, 2017, available http://www.caravanmagazine.in/vantage/2016-citizenship-amendment-bill-majoritarian-exclusionary (Last visited on May 15, 2021); The Wire, Government to Grant Citizenship to Chakmas, September 13, 2017, available https://thewire.in/176951/government-to-grant-citizenship-to-chakmas/ (Last visited on May 15, 2021.; Amulya Ganguli, India Press Agency, Rohingya Issue Exposes BJP’s Rank Islamophobia, October 18, 2017, available https://ipanewspack.com/rohingya-issue-exposes-bjps-rank-islamophobia/ (Last visited on May 15, 2021).
[36] Id.,
[37] The Hindu Business Line, Rohingya Refugees Illegal, Pose Security Threat: Centre to Supreme Court, September 18, 2017, available https://www.thehindubusinessline. com/news/national/rohingya-refugees-illegal-pose-security-threat-centre-tosupreme-court/article9863195.ece (Last visited on May 15, 2021); Devirupa Mitra, The Wire, Modi Government Affidavit on Rohingya Refugees Reverses India’s Long-Held Stand on Non-Refoulement, September 21, 2017, available https://thewire.in/179994/indias-statement-rohingya-refugees-reversal-long-heldstance-non-refoulement (Last visited on May 15, 2021); Statement by Anil Kumar Rai, Counsellor, Humanitarian Affairs, 1st Thematic Discussion towards a Global Compact on Refugees, Geneva (July 10, 2017), available https://www.pmindiaun.gov.in/pages.php?id =1509 (Last visited on May 15, 2021); Devjyot Ghoshal, Reuters, Amit Shah Vows to Throw Illegal Immigrants into Bay of Bengal, April 12, 2019, available https://www.reuters.com/article/india-election-speech/amit-shah-vows-to-throw-illegal-immigrants-into-bay-of-bengalidUSKCN1RO1YD (Last visited on May 15, 2021).
[38] Granville Austin, The Indian Constitution: Cornerstone of a Nation 80 (1966).
[39] B.K. Pavithra v. Union Of India, (2017) 4 SCC 620.
[40] Navtej Singh Johar and others v. Union of India, AIR 2018 SC 4321.
[41] Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law 98 (2008).
The Journal of Indian Law and Society 