A petition was filed by two Rohingya men against the government’s proposed move to deport their 40,000-strong community back to their native land of Myanmar. In this backdrop, the Supreme Court is now examining, whether the illegal immigrants can even be considered for ‘refugee’ status or not.
India is often described as a land of migrants, which over centuries, has attracted streams of immigrants from different races and cultures and assimilated them to build a composite civilisation.
India has been witnessing immigration since independence. People who have faced religious and political persecution, economic and social discrimination, cultural repression and curbs on personal freedom have made India their home.
Many others have entered India to escape abject poverty and economic stagnation in their country, and to build a better future for themselves. Of all kinds of migration, illegal migration has become the most volatile and contentious issue in Indian polity today because of the socio-political conflicts it has brought in its wake. Illegal migration comprises of people across national borders in a way that violates the immigration laws of the destination country.
Despite such unabated illegal migration from Pakistan, Bangladesh, Myanmar and other bordering countries, there are no authentic official statistics to ascertain the actual number of illegal migrants in India. Nonetheless, the Government of India has periodically provided statistics on the estimated number of illegal migrants in India. In 2004, the Union Minister of State for Home told Parliament that the country had 1.2 crore illegal immigrants. Currently, India is home to over two crore illegal migrants.
Understanding Refugee, Asylum – Seeker and Migrant
Refugees are persons who are outside their country of origin for reasons of feared persecution, conflict, generalized violence, or other circumstances that have seriously disturbed public order and, as a result, require international protection. The refugee definition can be found in the 1951 Convention and regional refugee instruments, as well as UNHCR’s Statute.
While there is no formal legal definition of an international migrant, most experts agree that an international migrant is someone who changes his or her country of usual residence, irrespective of the reason for migration or legal status. Generally, a distinction is made between short-term or temporary migration, covering movements with a duration between three and 12 months, and long-term or permanent migration, referring to a change of country of residence for a duration of one year or more.
An asylum-seeker is a person who has left their country and is seeking protection from persecution and serious human rights violations in another country, but who hasn’t yet been legally recognized as a refugee and is waiting to receive a decision on their asylum claim. Seeking asylum is a human right. This means everyone should be allowed to enter another country to seek asylum.
Pattern of Illegal Migration since Post-Independence
- The independence of the country in 1947 was preceded by intense violence between the Hindus and the Muslims, and led to the partitioning of the Indian subcontinent into two dominions–India and Pakistan– on religious grounds. Creation of India and Pakistan meant that the movement of people which was hitherto taking place between two provinces and was legal became movement between countries and was therefore illegal.
- 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.
- Then, the genocide perpetrated by the military junta in East Pakistan and the subsequent War of Liberation in 1971 triggered unrelenting migration into Assam, Tripura, West Bengal and other North Eastern Countries.
- The Rohingya, Muslims from Rakhine province on Myanmar’s western coast, started arriving in sizeable numbers in India’s Northeast in late 2011 following stepped-up persecution by the Myanmar armed forces. As per Home Ministry data, there are more than 14,000 UNHCR-registered Rohingya in India. However, security agencies estimate the number of Rohingya living illegally in India at 40,000.
Reasons for Illegal Migration in India
- Political Factors
- Political factors have been one of the major reasons in forcing the Bangladeshi Hindus out of the country and into India. 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.
- Religious Discrimination
- In Bangladesh, the already discriminatory land laws were further manipulated by vested interest groups and corrupt administrators to dispossess and alienate the Hindus from their own land and property.
- Religion has a particular effect in the case of the Rohingya Crisis. The so-called War on Terror—waged primarily against Muslims around the world—has made it easier for Myanmar’s elites to label the Rohingya as terrorists.
- The Rohingya Army’s attacks on government targets further validated many citizens’ belief that Islam is inherently violent and poses an existential threat to Buddhism, Myanmar’s majority religion.
- Growing Population
- Growing population creates greater demands on resources such as land, food, energy, water and forest products, and their consequent overuse results in deterioration of quality.
- This process, in turn, encourages inequality in resource distribution among the rich and poor as the rich corner them and deny the poor their share.
- Stagnant Economic Growth and Lack of Employment
- Industrialisation in India’s neighbouring countries has not been able to keep pace with the growing labour force and as a result, the unemployment rate is declining.
- The working-age people who are unable to find jobs in the country look outside for employment opportunities.
- Facilitating Factors
- Porous Borders: India shares long and porous international border with Bangladesh, Nepal and Bhutan. The border traverses a range of natural and cultural landscapes, which pose a challenge to its effective management.
- Ethnicity: The ethnic composition of the people is similar on both sides of the borders and it is quite difficult to differentiate between the citizens of India and other countries.
- Fertile Land: The flat and fertile land along the border supports dense human settlements right up to the border. There are many villages located right along the borders.
- Social network: The social networks established between the old immigrants and new immigrants over decades are extremely vital for the clandestine movement of people across the border.
- Corruption by Security Personnel: The border-guarding personnel often collude with the smugglers and touts for economic benefits. The Army personnel have been notorious for demanding money from migrants to look the other way when these undocumented migrants cross the international border.
- Political patronage: Political parties have always exploited the vulnerability of the illegal migrants for their own vested interests and benefits. The main reason that the political parties protect the illegal migrants is that they consider the illegal migrants as potential vote banks.
Legal Framework in India
- Article 51 states that the state shall endeavour to foster respect for international law and treaty obligations in the dealings of organized people with one another.
- As the Citizenship Act 1955, an illegal immigrant can be:
- Foreign national who enters India on valid travel documents and stays beyond their validity, or
- Foreign national who enters without valid travel documents.
- The Foreigners Act, 1946, gives the central government the right to deport a foreign national.
- India is not a signatory to the 1951 United Nations Convention and 1967 Protocol Relating to the Status of Refugees, and it does not currently have a national law on refugees.
- While law and order is a State subject under the Indian Constitution, international relations and international borders are under the exclusive purview of the Union government. This has resulted in a variety of agencies, both of the Central as well as the State governments, having to deal with refugee matters connected with law enforcement.
- In 2011, the Union government circulated to all states and Union Territories a Standard Operating Procedure to deal with foreign nationals who claimed to be refugees.
- So, in a nutshell, India does not have on its statute book a specific and separate law to govern refugees.
Impact of Illegal Migration in India
Such a huge influx of illegal migrants has had grave consequences on the socio-cultural, economic and political life of the receiving states.
- Clashes due to Insecurity: Illegal migration has resulted in periodic clashes between the citizens of India and migrants, leading to their loss of life and property, and thereby violating their constitutional rights.
- Political Instability: Conflict over scarce resources, economic opportunities and cultural dominance ensues between the locals and migrants, along with the resultant political instability caused by the mobilisation of popular perception against the migrants by the elites to grab political power.
- Disturbance in Law and Order: The rule of law and integrity of the country are undermined by the illegal migrants who are engaged in illegal and anti-national activities, such as entering the country clandestinely, fraudulently acquiring identity cards, exercising voting rights in India and resorting to trans-border smuggling and other crimes.
- Rise of Militancy: The persistent attacks against the Muslims perceived as illegal migrants in Assam has given way to radicalisation within certain sections of the Muslim community with the formation of militant organisations, such as the Muslim United Liberation Tigers of Assam (MULTA).
- Human trafficking: In the recent decades, trafficking of women and human smuggling have become quite rampant across the borders. Poverty and hunger forces either the parents to sell the girls to traffickers or the girls themselves leave home and fall prey to traffickers.
Response by the Government
Since the threats and challenges to the stability and security of the country as a result of illegal migration were varied, the state response to them was also a mix of targeted interventions.
- The Land Acquisition Acts: The Government reserved lands for the tribals by creating tribal belts and blocks through land revenue acts, but, initiative hardly addressed the problem of land alienation amongst the tribals as the lands earmarked for them were in remote and barren areas.
- NRC in Assam: A National Register of Citizens (NRC), containing information for each individual such as the father’s name or husband’s name, nationality, sex, age, means of livelihood, was prepared by the Assam government in 1951. The NRC was aimed to help identify and verify genuine Indian citizens and repatriate foreigners. Now, the Assam government has recently released the updated version of NRC.
- The Foreigner’s Tribunals of 1964: These tribunals had the power to take up cases to decide whether a person is foreigner or not, as specified in the Foreigners Act of 1946. Recently, the Assam government has decided to establish 200 Foreigners’ Tribunals (FTs) for handling cases of people to be excluded from the final National Register of Citizens (NRC).
- Operation Push Back: It called for forcible deportation of illegal migrants in India. The fundamental objective of “Operation Push Back” was to deter any potential Bangladeshi migrant from illegally crossing the border and settling in India.
- Tighter Border Controls: Indian government implemented a series of schemes, such as augmenting the manpower of the border-guarding force, increasing the number of border outposts along the border, constructing fences and issuance of multiple identity cards to border population.
- The India–Bangladesh Border Fence: Fences or barriers are described as “fortified boundaries” and are constructed for enhanced border controls. India is perhaps the first country which has built a border fence to prevent illegal migration.
- Multipurpose Identity Card: In 2010, Aadhar Project was launched to provide a unique identity number to each resident of India and the Unique Identification. Authority of India (UIDAI) was set up to implement the project, which has, till now has generated 19.67 crore Aadhar numbers.
- Amendment to Citizenship Act: The Citizenship (Amendment) Bill, 2016 aims to provide citizenship to those who had been forced to seek shelter in India because of religious persecution or fear of persecution in their home countries. They are primarily Hindus, Sikhs, Jains, Buddhists, Parsis and Christians from Afghanistan, Pakistan and Bangladesh.
- RIIN of Nagaland: Recently, the Nagaland Government is implementing a localised version of NRC, the Register of Indigenous Inhabitants of Nagaland (RIIN). The aim behind this move is to prevent outsiders from acquiring fake indigenous inhabitant certificates for seeking jobs and be beneficiaries of government schemes.
- Demand by Karnataka: Recently, demands are being raised to extend the National Register of Citizens (NRC) to Karnataka because illegal immigrants from Bangladesh had become a security threat to Bangalore and the entire State.
Even though India is not a signatory to the 1951 Convention on refugees and also the 1967 Protocol, it is a signatory to a number of United Nations and World Conventions on Human Rights, refugee issues and related matters. Hence its obligations in regard to refugees arise out of the latter. India has also voted affirmatively to adopt the Universal Declaration of Human Rights, which affirms rights for all persons, citizens and non- citizens alike.