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A welcome twist to demonetization

Image Source: newsexperts.in

Image Source: newsexperts.in

The government’s most recent amendment mandating that wages be paid by cheque or bank transfers is a welcome by-product of the demonetization drive.

President Pranab Mukherjee promulgated with immediate effect an ordinance amending the Payment of Wages Act, 1936 on 28 December 2016 (Ordinance). Amending an 80 year old law that required payments to be made only in cash, the Ordinance allows employers to pay wages by cheque or by electronic transfer. It provides employers with the option to pay their employees in cash, except where the worker is employed in an “industrial or other established sector”. In such cases, wages must be paid only through cheque or bank transfer.

The Payment of Wages Act, 1936 (POW Act) applies to persons earning up to Rs. 18,000 per month. Importantly, it makes specific provisions for persons employed in specified “industrial or other establishment”, that is, sectors where government regulation is required for the protection of workers, (for instance, railways, coal mines, etc.).

Shortcomings of the Ordinance

Although the Ordinance has been viewed as a welcome change, it leaves certain issues unaddressed. For example, it proceeds on the assumption that all workers have functioning bank accounts, and know how to operate them. This not necessarily being the case, workers who lack such facilities may be more inconvenienced. The Ordinance also does not contain any provision aiding the transition for workers without bank accounts to be accommodated into the new regime. Ensuring that employees have functional bank accounts and are aware of how they operate would iron out major creases in implementation.

Aside from such operational hurdles, the Ordinance is expected to increase transparency in wage payments. It could reign more salaried people in under the tax net, and ensure that workers are paid the fair wage due to them.

Manasa Venkataraman is a Research Associate at the Takshashila Institution and tweets from @nasac.

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India needs a new refugee policy

India needs an asylum policy to be able to allocate resources appropriately, to monitor the sheltering of  refugees that it hosts, and to disallow unwanted infiltrators from entering its territory. 

By Manasa Venkataraman (@nasac)

Image Credit: Human Rights Watch: www.hrw.org

Image Source: www.hrw.org

Caught off guard by millions of persecuted Syrians fleeing to safer lands, last year saw countries react differently to the sudden influx. Over the past year, many states have taken varying stances on providing asylum to refugees arriving from strife-ridden regimes. Influx, legal or illegal, by refugees or migrants seeking better opportunities, is not new to India. Although it is unlikely that Syrian refugees land at Indian shores to seek asylum (due to geographical difficulties), India has hosted refugees from Bangladesh, Sri Lanka and Afghanistan from time to time without having a central asylum regime governing the providing of such harbour.

India needs a refugee policy. The absence of such a framework in India makes it prone to inconsistent and ad-hoc reactions to refugee crises – an unsustainable solution. Although three separate bills have been tabled before the Indian Parliament to bolster the Indian asylum policy, they remain pending.

In order to frame a robust asylum granting framework, it is essential to examine the cause that gives rise to this migration – unstable political environments, insurgencies by non-state actors and the precarious footing on which feeble governments stand are principal reasons. Persistent situations like this lead people to abandon their homes and flee to safer lands. International law recognizes this plight of refugees and urges sovereign nations to follow a principle of “non-refoulement”, i.e., host countries should not refuse to shelter refugees and turn them away to the country they fled from. This principle is so inherent to the protection of human rights that it forms part of customary international practice to shelter refugees on humanitarian grounds.

While it is not a signatory to the UN Refugee Convention, 1951, India has followed the principle of non-refoulement whenever helpless asylum seekers have knocked on its doors. Nevertheless, it is essential to build regulations surrounding the non-refoulement principle that specify when the principle is to be invoked, what are the remedies for wrongful or non-invocation of the principle and how it is to be monitored.

Benchmark global practices are available for India to evaluate, before framing its own refugee policy. While Germany’s efforts earlier in 2015 opening its doors to refugees from Syria are well known, Australia has been criticized for having a controversial policy to cordon its coasts off to many asylum seekers. From providing “no benefits” to refugees upon their arrival on its coast to turning ships away to Indonesia and other South East Asian countries from international waters, Australia has undertaken several measures to create disincentives for refugees to take shelter on its territory.

India’s refugee policy must also strike a balance with its environmental and security related concerns in harbouring persons on its lands, especially via the seas. A refugee policy is only successful if India has the ability to control its borders, which in turn enables it in deciding whom it provides asylum to. As India’s coastline is vast and vulnerable, the need is felt now more than ever to create a robust and centralised coastal border patrolling and securing system.

Illegal and unregulated influx via the (already inadequately regulated) coasts are not only a blind spot in Indian national security but also interfere in the demographic makeup of the region. This affects it economically and politically as measures are framed bearing in mind the regulated persons in the region. Further, post facto regulation of immigrants becomes difficult as there was no law to regulate their entry in the first place.

As the protection of asylum seekers is a significant additional cost to the government, the refugee policy must introduce a system by which immigrants coming to India for economic or other gains are screened from persons seeking refugees. It is also advisable to place the refugees under the supervision of a Welfare or other ministry of the government rather than the military. In fact, smaller and less developed host countries (like Turkey and Jordan) are beginning to recognize the economic and infrastructural cost that is required to be borne to accord refugees the shelter they need.

Additionally, resettlement efforts must be made with the country from which such refugees arrive, after strife is over. Resettlement engagements may also be undertaken between India and other affluent countries that has better physical and economic infrastructure so that the refugee influx is better managed and does not cause a permanent strain on the resources of a less wealthy host country.

Manasa Venkataraman is a Research Associate at the Takshashila Institution and tweets from @nasac.

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Acts of War and the Right to Self Defence in International Law – What are States bound by?

Conventional definitions of war are insufficient in the face of increasing global terror. These definitions must be revisited to provide states with the appropriate means to protect themselves against such acts of aggression.

by Manasa Venkataraman (@nasac)

Recent global events raise many important questions about what constitutes an “act of war”, and what actions a nation-state is authorized to take in response to armed aggression. International law, the legitimizing force behind international relations contains interesting, and often overlapping, parameters to determine whether an action constitutes war and whether a sovereign nation is allowed to use armed force against such attacks.

It is interesting to note that for a system that was built to ensure global peace, the term “acts of war” has not been defined by the United Nations. Various authors of international law, nevertheless, have defined war[1] as containing certain ingredients such as: (i) the use of armed force by one state against another; (ii) the disruption of international peace; and (iii) the imposition of the victorious state’s conditions of peace upon the defeated state. Although it does not throw light on what an “act of war” means, the United Nations General Assembly Resolution 3314 defines an “act of aggression” as a crime against international peace, and acknowledges that such an act gives rise to international responsibility.

Excluding non-state actors from the definitions of war and aggression limits their application considerably, in the current global system. A number of questions arise from such a limited categorization: Do attacks by non-state actors against another nation constitute war? What protections are available to the attacked state? Do such wrongs give rise to “international responsibility” or “state responsibility”? How does one determine whether the non-state actors were sponsored by their own country? As it turns out, the answers to these questions vary considerably.

It is evident that newer modes of warfare are emerging in a changing global power structure. This is why, over the years, with the effects of acts of aggression by non-state actors being felt globally, it has become necessary to revisit what amounts to war. Mary Kaldor, in her work “New and Old Wars” states that “new wars” are characterized by a mixture of state and non-state aggressors. The end goal of such acts are political, rather than physical; and that identity politics forms the basis of such actions. In her commentary, Kaldor also insists that the solutions to “new wars” must also be novel.

In conventional rules of international warfare, the unjustified use of force by one sovereign state against another has been termed to constitute war, nevertheless, in times where attacks by non-state actors is increasing, it appears necessary to modify this definition. Including attacks by non-state actors within the definition of war is important as it allows the wronged state to redress these wrongs with equivalent use of force – a justification known as “state responsibility”.

Under the prevailing system, it is Article 51 of the Charter of the United Nations that gives sovereign states the right to self-defence in response to armed attack against them. Owing to its vagueness, Article 51 has been interpreted to include armed attacks carried out against a state by non-state actors as well, furthermore, the International Court of Justice has reiterated that state sponsored terrorist attacks legitimise an armed defence response. However, the self defence exercised by a state must be proportionate to the initial aggression against it. Further, certain decisions of the International Court of Justice lay down that the right of self-defence under Article 51 is exercisable against non-state actors only in the event the attacking entity is harboured by a sovereign state. Sovereign states also have the inherent right to redress wrongs done to them by international delinquents – the right of states to redress such grievances is known as “state responsibility”.

However, geopolitics is not so straightforward. While international law sets out the principles on the basis of which interactions between states are to be developed, and grants states the right to defend themselves against armed aggression, the reality is often influenced by diplomatic and political constraints.

Manasa Venkataraman is a Research Associate at the Takshashila Institution and tweets from @nasac

[1] See: J. G. Starke’s definition of war in An Introduction to International Law; William Edward Hall’s definition of war in Driefonte

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