Recent attempt by the Government of Maharashtra to deport some Bengali-speaking persons from Mumbai has revived the controversy, which raged for years, two decades back, in Assam over detecting, detaining and deporting 'millions' of Bengali-speaking "infiltrators" since independence, from East Pakistan and subsequently from Bangladesh.
The controversy has not only caused a collision between two State governments but also tremors within the ruling BJP-led coalition in as much as the Trinamul Congress has opposed the deportation.
The problem has human dimensions and any State or Government cannot act in our age and time in a brutal manner, insensitive to them. But this article deliberately steers clear of the emotional and human aspects in order to focus on the actual dimensions of the problem and the legal proprieties, national and international, which must be respected.
The problem exists but instead of finding a legally acceptable solution, it has been magnified out of all proportions to arouse public concern. The 1991 Census has been quoted to prove the massive influx of Bangladeshis into India; there has been public speculation on their criminal and anti-social tendencies. Their vulnerability to the Pak-ISI out to recruit active and dormant agents for subversive activities in the country has been brought into limelight. Even the Dar-ul-Uloom, Deoband, the highly respected seminary for Islamic Wearning, has been compelled by survival instinct to engage in academic "ethnic cleansing" by striking off its rolls those Bengali-speaking students who could not satisfactorily explain their national status.
In metropolitan cities and in prosperous regions like western UP and Punjab, the Bengalis have become conspicuous by their presence. New slums and ghettos have come up. Serving on low wages, they are in great demand as unorganised labour and as domestic servants. They are not all Muslims but a substantial proportion, perhaps a majority, are Muslims and, when apprehended, they all claim to have come out of their native village/ town in West Bengal. This may well be true in many, but not in all cases. Because, as they say, there is sufficient documentary evidence to establish the unusually high rate of growth of Muslim population in some States particularly in the district close to the Indo-Bangladesh border which cannot be explained otherwise than on the assumption of massive immigration.
Logically the first question relates to the size of the problem i.e. the number of illegal immigrants. The estimates vary very widely from a few hundred thousands to tens of millions. No count is possible. A fair estimate can be made based on a number of assumptions. The first is that by virtue of geographical proximity most Bengali-speaking immigrants would have settled down in Assam and West Bengal and their dispersal to the other states may be comparatively minimal, with the exception of large agglomeration in metropolitan cities like Delhi and Mumbai which offer employment opportunities for the unskilled and the semi-skilled.
The second assumption is that the primary motivation is economic, as all emigrants live in poverty and many are constantly on the move in search of livelihood. Given the overall communal environment, the proportion of Hindus keeping in view the demography of Bangladesh is likely to exceed the proportion of Muslims. That explains why the Muslim proportion in the population of Assam has consistently ranged around 25 per cent in successive Census since 1951 which is taken as the base line.
The third assumption is that since the rate of growth of Muslim population in the Sub-continent, is and persistently, higher than that of the Hindu population for various economic and social reasons in which we need not go, the increase in the Muslim population of the border districts would not be entirely due to the immigration factor.
The fourth assumption is that while it is impossible to seal the India-Bangladesh border, the level of apprehension at the border by BSF does give a fair measure of the level of infiltration. The BSF either pushes the infiltrators back "into Bangladesh or hands them over to the civil authorities for further action. We may assume that for each person apprehended, four get across. Thus the level of infiltration would be of the order of 8,000 p.m. i.e. 96,000 p.a. i.e. 1 lakh per year or say 1 million between one census and the next.
However, there can be no two opinions that whatever the level of illegal immigration, whatever the motivation and reason behind this human seepage, whether or not the services of such illegal immigrants are utilised by the criminal mafia or Pakistan's ISI, whatever its economic consequences in terms of pressure on employment, civic facilities and economic resources, it MUST STOP and the State should take all possible steps not only to stop further immigration but to reverse the flow.
But a democratic state, bound by the rule of law, whose Constitution vests all persons (including aliens on its soil) with fundamental rights, which is committed to enforce internationally accepted norms of human rights, faces in-built limitations.
The first limitation is that the illegal immigrants must be identified in accordance with law. This implies that the executive cannot be authorised to declare a person to be a foreigner i.e. not an Indian citizen. Such a declaration can only be made by a competent court or tribunal, a judicial or quasi-judicial authority, in respect of each individual who is suspected by the executive to be prima facie not an Indian citizen. The second is that the suspect, even if he is indeed a foreigner, enjoys the same legal safeguards while under detention or prosecution, as a citizen.
Under the existing law, the executive may apply the Foreigners Act, 1946, and the Rules framed thereunder This Act was a draconian war-time measure which places the burden of proof on the accused, rather than on the prosecution and thus goes against the basic jurisprudence of the land. The country is well aware of the immense distress and injustice which it caused to the people residing in Assam, for many generations, only because they had Bengali names, when it was applied by a hostile and biased administration, egged on by communal and chauvinist elements. The Foreigners Act had to be substituted by the Illegal Migrant (Determination by Tribunals) Act, 1985. Since the Act is applicable to all parts of the country through Statewise notification, it is open to any State Government to set up tribunals to determine the national status of the suspected foreigners.
The main objection to the tribunals is based on the poor results in Assam - in terms of number of cases submitted and decided. Surely the Act and the Rules thereunder can be amended to speed up the process.
It may be recalled that in 1995, the Supreme Court's landmark decision, in the case of deletion of names of electors in Mumbai from the electoral rolls, made a clear distinction between a person who figures in the electoral roll and one who does not. In the first case, the onus is on the executive to prove that he is a foreigner before his name can be deleted from the roll. In the second case, the onus is on the individual to prove that he is a citizen before his name may be included in the roll. The spirit of the decision implies that the Foreigners Act be amended to shift the burden of proof on the executive.
In Mumbai, due process of law was given a go-by and the Commissioner of Police, acting quasi-judicially under the Foreigners Act, declared suspects to be foreign nationals and ordered their deportation to Bangladesh.
And this brings us to the international aspect of the problem. The Government of Bangladesh denies that any Bangladeshi has unlawfully emigrated to India. There is, in any case, no agreement on deportation between the two countries. So what does our police/border force do ?- Physically push them into Bangladesh! Short of agreement and non-compliance with internationally acceptable procedure for deportation we may face a crisis in our relation with Bangladesh. We may even find it difficult to explain ourselves to the international community. It is open to us to keep those whom the tribunal has found to be foreign nationals in a prison or even in a concentration camp. But for how long? It is amazing that the question of illegal movement across the Indo-Bangladesh border has not found a place on the formal agenda of bilateral negotiations since 1971, when Bangladesh came into existence.
Through the Assam accord, the Government of India did accommodate the refugees from Bangladesh who did not return to their land by fixing the cut-off date as 31 March 1971 i.e. only those who had entered the country after that date shall be considered to be foreign nationals. This was a unilateral gesture. Simultaneously, there should have been a clear commitment by the Government of Bangladesh that those Bangladesh nationals who are found to have immigrated illegally into India by a competent court under due process of law, shall be accepted by Bangladesh, the country of origin. it is not too late even now to negotiate an agreement with Bangladesh on these lines.
Secondly, the Government of Maharashtra neither took the Government of India into confidence on international procedures nor the Government of West Bengal on the claim of the suspects on their domicile. Neither did it seek the Government of West Bengal's permission for its police to operate independently on West Bengal territory or the cooperation of the West Bengal police. Assuming that these deportees were indeed Bangladeshi nationals, so declared by a competent court, the duty of the Maharashtra police was to take then to West Bengal and hand them over to West Bengal authorities for eventual deportation to Bangladesh under intimation to the Central Government. In any case, having been foiled in its move, the Government of Maharashtra has no businesss to question the bonafides of the Government of West Bengal and accuse it of acting in collusion with Bangladeshi nationals.
IDENTITY CARD AND WORK PERMIT
For years, the Central Government has been toying with the idea of introducing identity cards for those residing in border districts so that fresh illegal immigrants can be immediately detected. The ideal solution would be to have a national register and a multipurpose identity card for all persons residing in the country.
Recently Home Minister Advani has suggested introduction of work-permit for foreigners residing in the country, which would entitle them to all civic facilities and rights except the right to vote. But the right to vote may be denied to a person only if he admits, or is found, to be a foreign national. Moreover, children, born in the Indian territory, even of alien parents have the right to citizenship by birth. In any case, the institution of work-permits should not open the flood gates for mass immigration into the country.
INSIDIOUS COMMUNALISATION
In the long run, movement of people from one part of the Sub-continent to another cannot be stopped by the artificial lines we have drawn on the map. The Sub-continent has an indivisible destiny. It is ironical that those who believe in the natural unity of the Sub-continent, in Akhand Bharat, from Peshawar to Dhaka are loudest in condemning foreign immigration! The funny part is that they do not object to lakhs of Nepalis freely entering and working in the country; they are even prepared to accept Hindu immigrants from Bangladesh as 'refugees' but they are repelled by the very idea of a Muslim immigrant from Bangladesh. This is sheer communalism. And this explains in practice, why they are also anxious to bundle out of the country as many Muslim Indians as they can, under one pretext or the other, or at least to disenfranchise them. To sum up, as a nation state, we have the right and duty to seal our borders, to admit foreign workers only if our economy needs them, in the doses of our choice, and to deny them voting rights but, as a state committed to the rule of law, we have to devise an appropriate judicial procedure for identifying the illegal immigrant, a national consensus on the operation by the police of one State in the territory of another and enter into an agreement with our neighbouring country on the modalities of deportation. Above all, the Union and the States have to recognise and respect the fundamental right of any citizen to move freely throughout the national territory, reside and settle in any part of the country, in order to earn his livelihood. These freedoms cannot be denied to any person who claims to be a citizen unless he is found to be a foreigner by due process of law.
1st September, 1998
New Delhi,
