Articles
Bangladeshi ‘Undocumented Migrants’ in India: Humanitarian Problem, Requiring Humanitarian Solution
Shuvro Prosun Sarker
Published 2014-04-30
Keywords
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How to Cite
Sarker, S. P. . (2014). Bangladeshi ‘Undocumented Migrants’ in India: Humanitarian Problem, Requiring Humanitarian Solution. Kathmandu School of Law Review, 4(1), 105–122. Retrieved from https://kslreview.org/index.php/kslr/article/view/193
Abstract
This article analyses the background of Bangladeshi refugee influx into India and various causes for the influx. It attempts to examine the framework of legal protection available for Bangladeshi refugees in India and makes a critical analysis of the policy of the Government of India for the protection of the refugees from Bangladesh.
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References
1. B. S. Chimni, International Refugee Law : A Reader, Sage Publications, New Delhi, 2000, p. 462.
2. Ibid, p. 463. See also Kanti B Pakrasi, The Uprooted: A Sociological Study of the Refugees of West Bengal, India, S. Ghatack, Calcutta, 1971.
3. On December 16, 1971, following the surrender by the Pakistan, Bangladesh got independence. India has played a crucial role in the independence of Bangladesh. See ‘National Encyclopedia of Bangladesh’, Banglapedia available at http://www.banglapedia.org/HT/W_0020.HTM, accessed on 11 September 2013.
4. Refugee Convention Relating to the Status of Refugees, 189 UNTS 150, adopted on 28 July 1951, art. 1.
5. Fatma Marouf, ‘No human being is illegal’, The Las Vegas Review Journal, 2013, available at http://www.reviewjournal.com/opinion/no-human-being-illegal, accessed on 11 September 2013.
6. Veerabhadran Vijayakumar, ‘Judicial Responses to Refugee Protection in India’, vol. 12, International Journal of Refugee Law 235, 2010, p. 235.
7. The Constitution of India, 1950, art. 51.
8. P. Weis, ‘The Concept of the Refugee in International Law’, vol. 87, Journal du droit international, 1960, p. 970.
9. Grahl-Madsen, The Status of Refugees in International Law, A. W. Sijthoff, 1966, p. 193.
10. C. Fong, ‘Some Legal Aspects of the Search for Admission into Other States of Persons Leaving the Indo-Chinese Peninsula in Small Boats’, vol. 52, British Year Book of International Law 53, 1981, p. 92.
11. James C. Hathaway, The Law of Refugee Status, Butterworths Canada Ltd, 1991, p. 104.
12. In the year 1947, an independent Ministry of Rehabilitation was created to assist the displaced persons from both West and East Pakistan. This Ministry of Rehabilitation was abolished and a Department of Rehabilitation was created under the Ministry of Works, Housing and Supply. This department was again shifted under the Ministry of Labour, Employment and Rehabilitation. In the period of 1984 to 85, the Government of India abolished the Department of Rehabilitation and created a Rehabilitation Division under the Ministry of Home Affairs. It is since then that the Ministry of Home Affairs has been dealing with the issue of influx of refugees. K. C. Saha, ‘Refugee Assistance and India’s Policy’, vol. 4, no. 1, Bulletin on IHL & Refugee Law, 1999, p. 46.
13. Government of India, Annual Report of Ministry of Rehabilitation,1954-55, p. 1.
14. Chimni, (n 2).
15. Prafulla K Chakraborty, The Marginal Men, Naya Udyog, Calcutta, 1999, p. 1.
16. Hiranmay Banerjee, Utvastu (In Bengali), Sishu Shahitya Samsad, Calcutta, 1970, p. 195.
17. An indigenous tribal community, generally resides at the Chittagong Hill Tracts of Bangladesh.
18. Chronology for Hindus in Bangladesh, Minorities At Risk Project’, University of Maryland, 2010 available at http://www.cidcm.umd.edu/mar/ chronology.asp?groupId=77102, accessed on 10 September 2013. See also Subir Bhoumik, ‘Bangladesh Hindu atrocities 'documented'’, BBC News, November 2001, available at http://news.bbc.co.uk/2/hi/south_asia/ 1645499.stm, accessed on 10 September 2013.
19. Ibid.
20. Rumi Ahamed, ‘The Minorities of Bangladesh’, The Daily Star, October 2012 available at http://archive.thedailystar.net/newDesign/news-details.php?nid=252436, accessed on 10 September 2013; The Hindu community in Bangladesh is at extreme risk, in particular at such a tense time in the country. It is shocking that they appear to be targeted simply for their religion. The authorities must ensure that they receive the protection they need. Amnesty International, ‘Press Release (March 2013)’, Amnesty International, 2013 available at http://amnesty.org/en/for-media/press-releases/bangladesh-wave-violentattacksagainst-hindu-minority-2013-03-06#.UTeKDSrYyD8.twitter, accessed on 10 September 2013. See also ‘Hindu Temple Attacked, Idols Destroyed in Bangladesh’, The Times of India, February 2010, available at http://articles.timesofindia.indiatimes.com/ 2010-02-06/ south-asia/ 28137103_1_idols-hindu-temple-miscreants, accessed on 10 September 2013.
21. ‘Two-Nation theory’ is the basis of creation of Pakistan and was propounded by Mr. Mohammed Ali Jinnah. It states that Muslims and Hindus are two separate nations from every definition; therefore Muslims should have a separate homeland in the Muslim majority areas of British India, where they can spend their lives according to the glorious teachings of Islam.
22. James Heitzman , Bangladesh: A Country Study, Federal Research Division, Library of Congress, 1988, chapter 4 available at http://lcweb2.loc.gov/frd/cs/bdtoc.html#bd0105, accessed on 10 September 2013.
23. Ibid.
24. Shah Alam, ‘State-Religion and the Eighth Amendment to the Constitution of Bangladesh: A Critique’, vol. 1, Lawasia Journal, 1990-1995.
25. US Department of State, Annual Report on International Religious Freedom, 2001, p. 506.
26. ‘The World Fact Book- Bangladesh’, Central Intelligence Agency available at www.cia.gov/library/publications/the-world-factbook/geos/bg.html, accessed on 10 August 2011.
27. Ministry of Statistics, Statistical Yearbook of Bangladesh, Dhaka, 1987, p. 46.
28. Salam Azad, Hindu Sampradaya Keno Deshtayag Korchae (Bengali), Swatantra Publication, Calcutta, 1999, p. 100.
29. B. S. Chimni, ‘Legal Condition of Refugees in India’, vol. 7, no. 4, Journal of Refugee Studies, 1994, p. 379.
30. M. P. Singh, ‘Positions of Aliens in India’ in GK Ofosu-Ammah, Legal Position of Aliens in National and International Law, Heidelberg Colloquium, 1985, p. 12.
31. J. N. Saxena, ‘Proposal for a Refugee Legislation in India’, vol. 2, Bulletin on IHL & Refugee Law, 1997, p. 391.
32. Article 14(1) of the Universal Declaration of Human Rights states ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution’. Article 13 of the International Covenant of Civil and Political Rights states: ‘An alien lawfully in the territory of a State party to the present Covenant may be expelled there from only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority’. The Supreme Court used these international mechanisms to hold that it is the duty of the state to protect refugees.
33. Khudiram Chakma v. State of Arunachal Pradesh, Supreme Court, India, (1994) Supp (1) SCC 615.
34. Ibid.
35. National Human Rights Commission v. State of Arunachal Pradesh, Supreme Court, India, (1996) 1 SCC 742.
36. ‘No person shall be deprived of his life and personal liberty except according to the procedure established by law’. Constitution of India, 1950, art. 21.
37. National Human Rights Commission Case (n 36).
38. V. R. Krishna Iyer, Symposium on Human Rights and Refugees, Indian Centre for Humanitarian Laws and Research, Cochin, 30 December 1998.
39. ‘… any person who or either of whose parents or any of those grand-parents was born in India as defined in the Government of India Act, 1935 (as originally enacted), and who is ordinarily residing in any country outside India …’ Constitution of India, 1950, art. 8.
40. Extra Ordinary Gazette of India, August 19 2002, part I, section I, no. 213.
41. State of West Bengal v. Anwar Ali Sarkar, Supreme Court, India, AIR 1952 SC 75.
42. ‘Powers and functions of State Governments / UT Administrations/FRROs/ FROs in Visa matters’, NASSCOM available at
http://www.nasscom.in/sites/default/files/userfiles/file/MHA%20guidelines%20on%20vis as-08-05-12.pdf, accessed on 25 October 2014.
43. Sandeep Joshi, ‘Pakistani Hindus stay back, seek long-term visas’, The Hindu, September 2012 available at http://www.thehindu.com/news/national/pakistani-hindus-stay-backseeklongtermvisas/article3863703.ece, accessed on 10 September 2013.
44. Ministry of Home Affairs, Government of India, F. No. 14051/37/2010-F.VI, 11 November, 2010 in NASSCOM (n 43).
45. VR Iyer cited in Rajnath Chauhan vs Bani Kant Das & Ors, Supreme Court, India, WN 457 of 2005, para. 49.
2. Ibid, p. 463. See also Kanti B Pakrasi, The Uprooted: A Sociological Study of the Refugees of West Bengal, India, S. Ghatack, Calcutta, 1971.
3. On December 16, 1971, following the surrender by the Pakistan, Bangladesh got independence. India has played a crucial role in the independence of Bangladesh. See ‘National Encyclopedia of Bangladesh’, Banglapedia available at http://www.banglapedia.org/HT/W_0020.HTM, accessed on 11 September 2013.
4. Refugee Convention Relating to the Status of Refugees, 189 UNTS 150, adopted on 28 July 1951, art. 1.
5. Fatma Marouf, ‘No human being is illegal’, The Las Vegas Review Journal, 2013, available at http://www.reviewjournal.com/opinion/no-human-being-illegal, accessed on 11 September 2013.
6. Veerabhadran Vijayakumar, ‘Judicial Responses to Refugee Protection in India’, vol. 12, International Journal of Refugee Law 235, 2010, p. 235.
7. The Constitution of India, 1950, art. 51.
8. P. Weis, ‘The Concept of the Refugee in International Law’, vol. 87, Journal du droit international, 1960, p. 970.
9. Grahl-Madsen, The Status of Refugees in International Law, A. W. Sijthoff, 1966, p. 193.
10. C. Fong, ‘Some Legal Aspects of the Search for Admission into Other States of Persons Leaving the Indo-Chinese Peninsula in Small Boats’, vol. 52, British Year Book of International Law 53, 1981, p. 92.
11. James C. Hathaway, The Law of Refugee Status, Butterworths Canada Ltd, 1991, p. 104.
12. In the year 1947, an independent Ministry of Rehabilitation was created to assist the displaced persons from both West and East Pakistan. This Ministry of Rehabilitation was abolished and a Department of Rehabilitation was created under the Ministry of Works, Housing and Supply. This department was again shifted under the Ministry of Labour, Employment and Rehabilitation. In the period of 1984 to 85, the Government of India abolished the Department of Rehabilitation and created a Rehabilitation Division under the Ministry of Home Affairs. It is since then that the Ministry of Home Affairs has been dealing with the issue of influx of refugees. K. C. Saha, ‘Refugee Assistance and India’s Policy’, vol. 4, no. 1, Bulletin on IHL & Refugee Law, 1999, p. 46.
13. Government of India, Annual Report of Ministry of Rehabilitation,1954-55, p. 1.
14. Chimni, (n 2).
15. Prafulla K Chakraborty, The Marginal Men, Naya Udyog, Calcutta, 1999, p. 1.
16. Hiranmay Banerjee, Utvastu (In Bengali), Sishu Shahitya Samsad, Calcutta, 1970, p. 195.
17. An indigenous tribal community, generally resides at the Chittagong Hill Tracts of Bangladesh.
18. Chronology for Hindus in Bangladesh, Minorities At Risk Project’, University of Maryland, 2010 available at http://www.cidcm.umd.edu/mar/ chronology.asp?groupId=77102, accessed on 10 September 2013. See also Subir Bhoumik, ‘Bangladesh Hindu atrocities 'documented'’, BBC News, November 2001, available at http://news.bbc.co.uk/2/hi/south_asia/ 1645499.stm, accessed on 10 September 2013.
19. Ibid.
20. Rumi Ahamed, ‘The Minorities of Bangladesh’, The Daily Star, October 2012 available at http://archive.thedailystar.net/newDesign/news-details.php?nid=252436, accessed on 10 September 2013; The Hindu community in Bangladesh is at extreme risk, in particular at such a tense time in the country. It is shocking that they appear to be targeted simply for their religion. The authorities must ensure that they receive the protection they need. Amnesty International, ‘Press Release (March 2013)’, Amnesty International, 2013 available at http://amnesty.org/en/for-media/press-releases/bangladesh-wave-violentattacksagainst-hindu-minority-2013-03-06#.UTeKDSrYyD8.twitter, accessed on 10 September 2013. See also ‘Hindu Temple Attacked, Idols Destroyed in Bangladesh’, The Times of India, February 2010, available at http://articles.timesofindia.indiatimes.com/ 2010-02-06/ south-asia/ 28137103_1_idols-hindu-temple-miscreants, accessed on 10 September 2013.
21. ‘Two-Nation theory’ is the basis of creation of Pakistan and was propounded by Mr. Mohammed Ali Jinnah. It states that Muslims and Hindus are two separate nations from every definition; therefore Muslims should have a separate homeland in the Muslim majority areas of British India, where they can spend their lives according to the glorious teachings of Islam.
22. James Heitzman , Bangladesh: A Country Study, Federal Research Division, Library of Congress, 1988, chapter 4 available at http://lcweb2.loc.gov/frd/cs/bdtoc.html#bd0105, accessed on 10 September 2013.
23. Ibid.
24. Shah Alam, ‘State-Religion and the Eighth Amendment to the Constitution of Bangladesh: A Critique’, vol. 1, Lawasia Journal, 1990-1995.
25. US Department of State, Annual Report on International Religious Freedom, 2001, p. 506.
26. ‘The World Fact Book- Bangladesh’, Central Intelligence Agency available at www.cia.gov/library/publications/the-world-factbook/geos/bg.html, accessed on 10 August 2011.
27. Ministry of Statistics, Statistical Yearbook of Bangladesh, Dhaka, 1987, p. 46.
28. Salam Azad, Hindu Sampradaya Keno Deshtayag Korchae (Bengali), Swatantra Publication, Calcutta, 1999, p. 100.
29. B. S. Chimni, ‘Legal Condition of Refugees in India’, vol. 7, no. 4, Journal of Refugee Studies, 1994, p. 379.
30. M. P. Singh, ‘Positions of Aliens in India’ in GK Ofosu-Ammah, Legal Position of Aliens in National and International Law, Heidelberg Colloquium, 1985, p. 12.
31. J. N. Saxena, ‘Proposal for a Refugee Legislation in India’, vol. 2, Bulletin on IHL & Refugee Law, 1997, p. 391.
32. Article 14(1) of the Universal Declaration of Human Rights states ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution’. Article 13 of the International Covenant of Civil and Political Rights states: ‘An alien lawfully in the territory of a State party to the present Covenant may be expelled there from only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority’. The Supreme Court used these international mechanisms to hold that it is the duty of the state to protect refugees.
33. Khudiram Chakma v. State of Arunachal Pradesh, Supreme Court, India, (1994) Supp (1) SCC 615.
34. Ibid.
35. National Human Rights Commission v. State of Arunachal Pradesh, Supreme Court, India, (1996) 1 SCC 742.
36. ‘No person shall be deprived of his life and personal liberty except according to the procedure established by law’. Constitution of India, 1950, art. 21.
37. National Human Rights Commission Case (n 36).
38. V. R. Krishna Iyer, Symposium on Human Rights and Refugees, Indian Centre for Humanitarian Laws and Research, Cochin, 30 December 1998.
39. ‘… any person who or either of whose parents or any of those grand-parents was born in India as defined in the Government of India Act, 1935 (as originally enacted), and who is ordinarily residing in any country outside India …’ Constitution of India, 1950, art. 8.
40. Extra Ordinary Gazette of India, August 19 2002, part I, section I, no. 213.
41. State of West Bengal v. Anwar Ali Sarkar, Supreme Court, India, AIR 1952 SC 75.
42. ‘Powers and functions of State Governments / UT Administrations/FRROs/ FROs in Visa matters’, NASSCOM available at
http://www.nasscom.in/sites/default/files/userfiles/file/MHA%20guidelines%20on%20vis as-08-05-12.pdf, accessed on 25 October 2014.
43. Sandeep Joshi, ‘Pakistani Hindus stay back, seek long-term visas’, The Hindu, September 2012 available at http://www.thehindu.com/news/national/pakistani-hindus-stay-backseeklongtermvisas/article3863703.ece, accessed on 10 September 2013.
44. Ministry of Home Affairs, Government of India, F. No. 14051/37/2010-F.VI, 11 November, 2010 in NASSCOM (n 43).
45. VR Iyer cited in Rajnath Chauhan vs Bani Kant Das & Ors, Supreme Court, India, WN 457 of 2005, para. 49.