SHOULD ILLEGAL IMMIGRANTS IN INDIA BE TREATED AS CRIMINALS?
Author: Sheshadri Kumari
Co-Author: Simran Baradia[1]
ISSN: 2581-8465
ABSTRACT
India’s geopolitical location, its relatively stable economic position as compared to its neighbours, and its prolifically democratic character have made itself a magnet for myriad people from other parts of the region who are facing persecution in their nations of origin or searching for a better life. Generally, people migrate either legally or illegally due to socio-economic and environmental causes like poverty, unemployment and climate change or in search of better opportunities like for jobs and education, also from for the reasons of reuniting with family members, or from the fear of political and ethnic persecution by other groups. Illegal immigrants from Tibet, Afghanistan, Sri Lanka, Myanmar, Pakistan, and Bangladesh found shelter in India and settled by the bordering states. While refugees coming from other areas including Tibet, Sri Lanka, Afghanistan, and Myanmar had been dealt with in a somewhat strategic manner, though in an impromptu manner, the influx of illegal immigrants from Bangladesh has largely been left ignored. According to the census of 2001, India had 314 million migrants in total. Out of them, around 10-20 million migrants were from Bangladesh, mostly undocumented and crossed the border illegally. Though migration brings in a positive contribution too, but the illegal ones pose some serious challenges to the hosting State. These challenges have contrarily impacted the interests of the local populations in the regions of large-scale influxes of illegal immigrants as well as the internal security of India. Further, the absence of strict national immigration laws has bluffed the difference of the refugees from the economic migrants, resulting in the disagreement of any help to even genuine asylum seekers. It now imposes an enormous problem for the nation and the millions of affected people. The paper focuses on illegal immigration mainly from Bangladesh to India, its challenges and consequences.
Keywords: Illegal migration, ethnic and political persecution, socio-economic and environmental challenges, Bangladesh, Northeast India.
INTRODUCTION
According to International Organization for Migration (IOM), a migrant means any person who is moving or has moved to international border or within a state away from his /her residential area irrespective of the person’s legal status, whether the movement was mandatory or not, what was the cause for the movement and what the length of the stay is. When a person migrates from one country to another country by abusing the immigration law of that country or continues the stay in that country without any legal rights or legal documents, the person is said to be an illegal immigrant.
The larger population of migrants have mainly originated from these countries: Mexico, Russia, China, Myanmar and Bangladesh. In 2019, the number of international migrants worldwide – people residing in a country other than their country of birth – reached 272 million (from 258 million in 2017). Female migrants constituted 48 per cent of this international migrant stock. There are an estimated 38 million migrant children, three out of four international migrants are of working age, meaning between 20 and 64 years old. 164 million are migrant workers. Approximately 31% of the international migrants worldwide reside in Asia, 30% in Europe, 26% in the Americas, 10% in Africa and 3% in Oceania.[2]
ILLEGAL IMMIGRATION IN AND AROUND INDIA
Illegal immigrant is an outlander who has entered into the country without any valid documents or who had primarily valid documents but has overstayed after the permitted time. Such persons are not acceptable for citizenship of that country and are also liable for the criminal offence. We can understand that with an example that is, In India, the maximum number of immigrants from Pakistan and Bangladesh, entered into India more than 30 years ago. According to 2001 census, the Indian government estimated that 3.1 billion Bangladeshis were living in India. The migration of Bangladeshi nationals into the Indian Territory goes back to undivided India under British rule. When the British decided to divide India into two countries based on the “two-nation” theory in August 1947, the present-day Bangladesh predominant with a Bengali Muslim population became part of Pakistan as “East Pakistan”. The entire migration issue has its roots in the liberation of Bangladesh in 1971 from the Pakistan controlled territory to an independent one. The persecution of Bengali Muslims by the Pakistani army apparently created pandemonium with large-scale migration into the Indian Territory. While the Indian government sympathized with the fleeing Bangladeshis initially during the 1971 war, New Delhi was more concerned about the increasing number of migrants to West Bengal and Assam which in fact forced the Indian government to support Bangladesh’s pro-independence group in the Bangladesh liberation war. Some estimates reported that around 10 million Bangladeshis had migrated into India during the course of the war and out of which 1.5 million never returned.[3]
There are Rohingya illegal immigrants in Jammu, which has created dissatisfaction among the general public that Rohingya Muslim settlements in Jammu will change the demographics of the Hindu majority and may lead to violence in the future by giving reference to the exodus of Kashmiri Hindus by Kashmiri Muslims earlier. The presence of Rohingya Muslims in Jammu is thus considered a sensitive issue for Indian security.[4] A large number of illegal immigrants particularly in bordering areas has proved to be big challenge for this country with serious issues on its resources and national security.
The nationality of Indian law is governed by the Citizenship Act ,1955 (Article 5 to 11 (part II) of the constitution of India) which has been amended by citizenship act of 1986,1992,2003,2005,2015and 2019. In Bangladesh and Pakistan, communities such as Hindu, Sikh Buddhist, Jains, Parsis and Christians were forced to leave for India due to religious discrimination or anxiety of religious discrimination and entered to India before 31 December 2014 with or without legal verification including passport or other travel documents. Also, according to Rule 3 of The Passport Rules 1950, “A person entering India by water or air shall not be deemed to be proceeding from a place outside India by reason only of the fact that he has traversed extra-territorial waters or land in the course of his journey” and Section 14 of The Foreigners Act, 1946 states the penalty for contravention of provisions of the Act.
WHAT CAUSES ILLEGAL IMMIGRATION?
The reasons which compel a person to either migrate on his own will or being forced to leave his country of origin are complicated and intertwined. Social, political, economic and environmental compulsions back home, or even personal chaos, can induce a person to cross the borders and search for a new life in a new country.
Political persecution- Authoritarian regimes in the source countries are considered as the primary reason for illegal immigration. In this context, the policies implemented by those countries against opponents and sometimes against a large part of their domestic population, perhaps resulting in ethnic cleansing and genocide, contribute significantly in the expansion of immigration. Political factors have been one of the major reasons in forcing the Bangladeshi Hindus out of the country and into India.[5] The movement of the Hindus from East Bengal happened in waves and coincided with communal riots of the 1950s and 1960s. The riots of January1950 in Khulna district were perhaps one of the worst cases of state-orchestrated persecution against the Hindu minority in East Pakistan. Thousands of Hindus were killed in the riots and lakhs fled to India. In fact, in just three months, starting from May to July 1950, 7.5 lakh Hindus refugees took shelter in West Bengal.[6] The forced migration of the Hindus from East Pakistan into India continued throughout the 1950s. According to MHA data, between1946 and March 1958, 41.17 lakh migrants had come to India, out of which 32.32 lakh were settled in West Bengal.[7] The riots of 1964 and the India–Pakistan War of 1965 yet again resulted in the out-migration of large numbers of Hindus from East Pakistan. Another massive out-migration from East Pakistan was triggered in 1971 when the Pakistani military establishment tried to suppress Bengali nationalism through brutal military force. An estimated 10 million persons, including 6.7 million Hindus, were forced to take refuge in India.[8]
Regime instability– Whether as a result of the military blow against the state, political struggles within ethnic movements, or other violent removals from power — combined with interstate conflict in many large parts of the world gives a significant impetus to illegal immigration. The deterioration of stability and security generates a massive displacement of the population of which a large proportion try somewhat to get into the neighboring countries illegally, despite reform and enforcement of the immigration policies in most destination countries which have developed selective immigration and set new rules for any kind of stay. According to the United Nations Refugees Agency, more than 42 million people are outside the country of their nationality escaping persecution on account of race, religion, political opinion, and civil war.[9] In pursuit of their perceived national interest, many countries have developed specific immigration laws that actually have resulted in an increase in illegal immigration. On one hand, some governments encourage immigration in their foreign policy guidance to support political and/or humanitarian goals with respect to the domestic situation in specific other countries. On the other hand, in contrast, many countries establish rules to select only workers from specific regions with appropriate skill, age, and education level, and imposed diverse restrictions on admission for new migrants or their families. In this context, for example, the United States policy during the Cold War encouraged illegal immigration from Cuba by giving illegal immigrants the benefits of “refugees” and also a work permit. Any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to 1 January 1959 and has been physically present in the United States for at least one year, maybe adjusted by the Attorney General at his/her discretion and under such regulations as s/he may prescribe for an alien lawfully admitted for permanent residency.[10] Those measures, taken in parallel with other political and economic approaches against the dictatorial regime of Fidel Castro, explain the significant rise of illegal immigrants from Cuba to the United States.
Economic disparities- Illegal immigration is significantly driven by economic roots found in regional disparities, which are further emphasized by the process of globalization. Indeed, globalization and rapidly-evolving technology is widening the gap between poor and rich countries. Illegal immigration has known an incredible growth in some areas in which the disparities are flagrant. “The disparities that exist between rich and poor countries in both wages and employment opportunities have caused a mass influx of the poorer country’s residents into the wealthier countries, which have recently tended to restrict this inflow of foreign migrants.”[11] The economic condition of some countries collapses under the undue pressure of globalization and the lack of market competitiveness, especially for the countries whose sole source is agribusiness industry, providing employment to a huge section of low-skilled workers, causing an inflow of illegal immigrants to the developed countries. Furthermore, the economy of the countries with most sources are highly dependent on fluctuations in international prices and weather conditions.
Environmental causes– This has been a push factor that has caused to generate a recrudescence of illegal immigration. Particularly those which affect the poorer countries more than the developed ones. Increases in the rate of desertification in many regions, rises in sea level, and other environmental disturbances may cause an inevitable pressure for the massive displacement of population to neighboring countries, and this pressure will increase within this context illegal immigration. Recently more warm weather and increased winter rainfalls are happening all over the world, and these affect in a negative manner agricultural yields, and accelerate the desertification process, increasing the risk of major droughts. Sea-level rise will menace low-lying coastal areas subject to flooding. As these areas often have dense populations and important infrastructure, significant impacts in terms of water availability, agricultural productivity and the risk of fire are expected, especially in the less developed countries. At Copenhagen’s climate change summit, Bangladesh’s Environment Minister Hasan Mahmud estimated 20 million people in Bangladesh will have to immigrate to safe areas if increased monsoon activity continues or sea-levels grow.[12]
Poverty, family reunification and Wars and asylum are also some of the reasons which compel people to take such drastic decisions of migrating to other nations, either legally or illegally.
CONSEQUENCES OF ILLEGAL IMMIGRATION
The influx of such a large number of illegal immigrants, particularly in the bordering states, has proved to be a huge challenge for India with serious implications on its resources and national security. It has substantially contributed to the changing demographic pattern in the bordering areas of the north-eastern states of India, where the locals feel overwhelmed by the outsiders. This has adversely affected their way of life and led to simmering tension between the bordering sides.[13] Following are the consequences of inflicted illegal immigration:
Smuggling and Human trafficking- The widespread smuggling activities in the border areas of Bangladesh-India are consequences for treating illegal immigrants as criminals. They are doing illegal business of things such as rice, beef/meat, saris, humans, and drugs are exposed regularly in this porous border area. Also, the connection between the security force and smugglers are also exposed at the Indo-Bangladeshi border. Behind this, the trafficking of women and teenage girls are a major problem as they turn up in professions like prostitution in Kolkata, Mumbai, and other places in India. Illegal immigrants also do smuggle cattle and trade from India to Bangladesh.
Law and order crisis- The conflict between Bangladeshi migrants and local native tribes has led to severe social pressures for law and order in Assam. We can see an example in 2012, the violence between bodos and Muslims, the Bengal speaking Bangladeshi migrants at Kokrajhar districts, that demand and independent bodo-land is the case of law-and-order crisis that states face as consequences of illegal immigrants. Moreover, illegal immigrants’ issue of defying law of land. Another example like In Tripura, the rise of revolutionary outfits like all Tripura tribal force and National liberation front of Tripura (NLFT)is secondary connected to the issue of illegal migrants.
Security threats- In a terrorist incident in India, the illegal migrant is not directly involved but they support as host and courier. This has been reported that the link between the religious intolerance and local Islamic fundamentalist’s with jihad groups of Bangladeshis, a cause of distress for India as the jamaat -e-Islamic of Bangladesh is said to have a link in Assam with Islamic groups. Also, the Supreme Court in the case of Sarbananda Sonowal v. Union of India & Anr[14] said, “The large-scale influx of illegal Bangladeshi immigrants has led to large tracts of sensitive international borders being occupied by foreigners. This has serious implications for internal security.”
Socio-economic threats- The migrants who entered through illegal means into India and particularly, West Bengal and Assam got access to government subsidy programs including ration items apart from availing sponsored education and healthcare facilities from government schools and clinics. As a result, it impacts the state exchequer, an extra fiscal cost. Also, the influx of illegal migrants has displaced native workers as the immigrants are prepared to take up jobs for lower wages than the natives and this, in turn, has resulted in competition and conflict.
Political threats- One of the main political fallout of large-scale illegal migration from Bangladesh had led to the rise of protests in Assam inthe1970s and 1980s. The illegal immigrants who settled in the disputed boundaries and districts of Assam and West Bengal have successfully registered their names in the voter list and acquired the identity cards for the same. As a result, firstly they become illegal voters; secondly, by this means they acquire citizenship. Even if an initiative like the National Register of Citizens (NRC) is intended for the detection of illegal Bangladesh migrants, the success of it is yet to be realized.[15]
Environmental threats- With the increasing immigrant population in the bordering districts of Assam, West Bengal and Tripura, it is absolute that there is a mounting pressure on the requirements of fuelwood, timber and land in the forest areas to satisfy the demands. Even marginal forest lands are cleared to put it to the plough. This has resulted in a substantial decline in the environmental quality of that region.
CONCLUSION
The “illegal” or unauthorized migration is a major challenge that has been encountered by India. There is no proper documentation of illegal entry or their existence in any bordering areas, resulting in a grief difficulty to identify or deport them back. Now, the government has taken steps in the form of the National Register of Citizens (NRC). The process of NRC is too doubted as many illegal immigrants register their name under government categories as Indian citizens. At last, the negative attitude and non-supportive approach on illegal immigrants make it very difficult for any country’s government to address the existence of illegal immigrants effectively. However, it is not necessarily that all the illegal migrants are the problem for the security of the country. First of all, we must think over the reason of their migration and the Government should try to negotiate with that country from those migrants can and in this connection reason of migration must be solve with a humanitarian spirit. So, that the problem of migration will be solved in all context.
It was indeed difficult to comprehend this government’s precipitous push for the Citizen Amendment Act (CAA), in the manner that it had, at a time when the economy is on the edge of a precipice and it has yet to satisfactorily resolve serious issues like Kashmir that it has on its plate. True, illegal immigration is of huge concern around the world, and even more so in our case as the issue has been further complicated by the deleterious effects of Partition. However much the young today may wish away the past, we are still bound by it. Regardless of whether one subscribes to the “Two Nation Theory” or not, Pakistan emerged as the homeland for Muslims of the subcontinent while India came to be regarded as the home for those dispossessed because of their religious affiliations from those areas. [16]
One tends to forget that the Preamble to the Constitution, when first adopted, described India as a “Sovereign Democratic Republic” in which “liberty of thought, expression, belief, faith and worship” was guaranteed. Socialism and secularism were only added to our preamble as an afterthought by the Congress government of Mrs. Gandhi in 1976 through the 42nd Amendment, obviously to gain political advantage and protect her own minority vote bank. In a sense that has now come to haunt us as the BJP proceeds to curry benefit for its Hindutva plank, as the CAA clearly attempts to do, though ostensibly it is aimed at correcting an old wrong.
[1] 2nd year BA.LLB students at Lloyd Law College, Greater Noida.
[2] United Nations, Migration: Peace, dignity and equality on a healthy planet <https://www.un.org/en/sections/issues-depth/migration/index.html> para 2.
[3] M Mayilvaganan, Illegal Migration and Strategic Challenges: A case study of undocumented migration from Bangladesh to India <http://journals.christuniversity.in/in dex.php/artha/article/download/2174/1738/>
[4] Illegal immigration to India, a national legal framework.
[5] Pranati Datta, “Push–Pull Factors of Undocumented Migration from Bangladesh to West Bengal: A Perception Study”, The Qualitative Report, Vol. 9, No. 2, June 2004, p. 348.
[6] Verinder Grover and Ranjana Arora (eds.), Partition of India: Indo-Pak War and the UNO, New Delhi: Deep & Deep Publications, 1999, p. 53.
[7] Government of India, Annual Report 2014–15, New Delhi: Ministry of Home Affairs,2015, p. 236.
[8] Meghna Guhathakurta, “Amidst the Winds of Change: The Hindu Minority in Bangladesh”, in Tanweer Fazal (ed.), Minority Nationalisms in South Asia, South Asian Culture and History, New York: Routledge, 2013, p. 128.
[9] “UN REFUGEE STATISTICS REPORT” <http://www.unmultimedia.org/tv/unifeed/d/13065.html>
[10] “Cuban Immigration to the United States,” US Immigration Support. <http://www.usimmigrationsupport.org/cubaimmigration.html>
[11] Chisato Yashida, Illegal immigration and economic welfare.
[12] “Environmental Affairs Minister Hasan Mahmud Speaks to VOA,” by Iqbal Choudhury, Washington DC, 23 September 2009 <http://www.voanews.com/bangla/archive/2009>
[13] Illegal Immigration From Bangladesh to India: Toward a Comprehensive Solution, Carnegie India – Carnegie Endowment for International Peace
[14] Civil writ petition 131 of 2000, 12 July 2005.
[15] Financial Express, 2018
[16] Deepak Sinha, Perspectives on dealing with illegal immigration <https://www.orfonline.org/research/perspectives-dealing-illegal-immigration-59556/>