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Published : November 05, 2017 | Author : neha cnlu
Category : Miscellaneous | Total Views : 213 | Rating :

neha cnlu
pursuing B.A/LL.B. Course In Chanakya National Law University, Patna, Bihar

Aliens In The Mist, Seeking The Legality of Undocumented Identities

Whole world is a global village. The wings of liberalisation privatisation and globalisation have enabled the whole world to fly unfettered. The series of economic transactions have not only led to flow of goods and capital but also of humans. Human minds have left no stones unturned. But every coin has two sides. Likewise, these incessant developments have not only united whole world but have also sown seeds of intricacies. These intricacies unfortunately are not restricted to superficialities but have lately percolated to human lives and are a serious threat to National Security.

Non-traditional method of security seems indispensable in such situations. India has made massive progress since Independence in the arena of traditional forms of national security. The chivalrous souls of our men have made it stand in line with world super-powers. But in the sub- continental borders where war is the last resort, enemies define enmity not in terms of overt actions but in terms of covert lethal aberrations. These latent operations are usually brought to actions through cross border infiltrations and illegal migrations.

Illegal migration has now become a scene so rampant around the world that it totally defies the good conscience behind the motto of earth being a global village, not only the gory trans-border crimes defy this noble concept but leaves it to the extent of being an ugly parody.

Legal V. Illegal Migration

Migration is the movement of people from one place to another. In general migration is of two types:
1. Internal migration i.e. migration within the country

2. External migration i.e. migration out of the country and into the country from other countries.

External migration can interchangeably be called as International migration. International migration differentiated further between legal, illegal or undocumented immigrants. Legal immigrants have the government’s permission to enter Illegal immigrants do not. In this article, the authors aim to focus in illegal migration and the issues related thereto. There are various models which purposefully justify the concept of illegal immigration.

According to Section 2(b) of The Citizenship Act, 1955, an “illegal migrant” means a foreigner who has entered into India -
(i) without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or

(ii) with a valid passport or other travel documents and such other document or

authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period of time.

Moreover, illegal immigration violates the immigration laws of the destination countryAlthough India is a host to illegal immigrants from all neighbouring countries of sub-continent but immigrants from Bangladesh forms the major number and hence are major concerns.

Unfolding Menace From Bangladesh

Historic Lens
Migration from Bangladesh has been Achilles heel since long. Initially, migration had started in the late 19th century British India and has subsequently continued since then.Prior to 1947, in British India, people moved across length and breathe of the country without much restrictions. But after partition East Bengal became a part of Pakistan and hence, a large number of Hindu refugees migrated to India. Although the refugees had to undergo a process of naturalization for citizenship, most of them did not follow the legal procedures and thus became a part of the illegal immigrants.

Though migration has a long history, it was only after the creation of Bangladesh that migrants from Bangladesh began to be considered as illegal migrants. The Indira-Mujib Agreement of 1974 made 1971 the cut-off year for accommodating the migrants of Bangladesh as Indian citizens. But the problem remained a contentious issue between the two countries, because the migrants would generally conceal the correct year of their migration to India.Thus, those who crossed the international border and entered Assam before 1971, became citizens of India through the legal process similar to naturalization.

Present Concerns
The UN-DESA stated that “In 2013, persons from Bangladesh residing in India constituted the single largest ‘bilateral stock’ of international migrants in South Asia (1.e. 3.2 million)” in its report in 2013.In fact, millions of Hindus took refuge in India during the liberation war of Bangladesh. Many went back but a sizeable undocumented section stayed back and mingled with the mainstream of India.

The issue of Bangladeshi migration in India has become a major concern for policy makers lately. Indeed, India’s eastern border is facing major illegal activities viz. the influx of illegal migrants, migration invoked violent conflicts, terrorism, insurgency, trafficking of drugs, human, arms and animals. The enormity of issue is further explained by Group of Ministers (GoM) Report which states that “there are approximately 15 million Bangladeshi illegal migrants settled in different states of India”.

The issue of migration is now viewed as a threat to the internal security of India. Thus, the demand for tightening the border, and its fencing, to prevent illegal migration has become one of the critical components of India’s policy and strategy. Migration of Bangladeshis into India, has led to violence which has rendered the original majority communities to minorities.

The “push” and “pull” factors are the most important variables in migration. “Push” factors include poor economy and lack of opportunities which push people out of a region in pursuit of livelihood opportunities. While the “Pull” factors are better opportunities, higher wages, facilities and amenities of modern life that encourage migration. In the case of Bangladeshi migration, myriad factors have paved the way for migration to India. Porous Border renders the issue of ‘illegal’ migration from Bangladesh to India as absurd as there is practically no idea of legal migration in this region. The lack of permanent boundary pillars and fencing on the border creates patrolling problems, and facilitates illegal movement across the border. The religious fundamentalist forces use the unemployed and illegal immigrants for promotion of Islamic fundamentalism.

The poor, mostly from Bangladesh, are bound to cross the boundary in search of economic and social security. This holds that migration is primarily a product of economic and political crises that push people into leaving their homelands, usually involuntarily. Poor governance, economic disparities and frequent political confrontation and stand-off in the country also caused migration from Bangladesh.

Migration: A Security Threat To India….Why?

Migration is regarded as a security threat by India as borders have seldom scope of actual war but rivals are perennially engaged in proxy wars and hence concerns arises due to large numbers of illegal Bangladeshi migrants indulged in illegal and anti-social activities and toil day and night to create havoc in the country.

Also Muslim militant and fundamentalist groups are operating training camps near the Bangladesh border where militants receive training to enter India as illegal migrants to spur disturbances and violence in the country. Their strategy is to Islamise the border to facilitate the influx of terrorists.These groups have always attempted to isolate North-east from the rest of India by cutting off “chicken neck” area between North Bengal and Assam to gain control over this area.

The Islamic terrorist organisations in Bangladesh, try to espouse turbulences in India in manifold ways through illegal migrants. The Indian terrorist groups are also using the camps of the fundamentalist groups in Bangladesh as shelter for their top leaders, as channel for transportation of weapons and for various other illegal activities.

Summing up the impact, the Supreme Court of India in Sarbananda Sonowal vs. Union of India pointed out that “the presence of such a large number of illegal migrants from Bangladesh, which runs into millions, is in fact an “aggression” on the State of Assam and has also contributed significantly in causing serious “internal disturbances” in the shape of insurgency of alarming proportion making the life of the people of Assam wholly insecure and the panic generated thereby has created a fear psychosis.

Thus, illegal immigration lands India in the hands of most grotesque form of formidable terrorism and proxy war which is the latest security threat for the country. This is mainly as Bangladesh has no will to cooperate with India in this arena.

India’s Legal Response
Taking note of latent dangers of the influx of the Muslims from East Pakistan, Indian Government devised a scheme for detection and deportation of the infiltrators.

Although India has traditionally been providing shelter to refugees from other countries in the region, it has yet to develop any national refugee laws. Nor is it a signatory to the United Nations 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. In the absence of any specific law dealing with refugees/illegal immigrants, all foreigners in India are covered by the Foreigners Act, 1946, which simply defines a foreigner as “a person who is not a citizen of India.” The Indian Parliament also passed the Illegal Migrants (Determination by Tribunal) Act in 1983 in an attempt to address the problem, but the measure failed to make any impact and was ultimately set aside by the Supreme Court in 2005.

The Way Ahead
At present, India has no specific laws to deal with this menace. When domestic refugee laws are formulated, it will be easier to distinguish between genuine refugees and illegal immigrants. The two could, thereafter, be dealt with separate rules and procedures. However, care needs to be taken to ensure that illegal immigrants do not exploit the law. Furthermore, some reasonable restrictions must be placed on immigrants’ movement in sensitive areas. The key to its success of such laws would be a joint verification procedure acceptable to both countries. Detecting illegal immigrants from Bangladesh is a daunting task.

A set of incentives and disincentives are mandatory to encourage illegal Bangladeshi immigrants to voluntarily register with the designated authorities. The incentives could be granting refugee status and work permits, permission to stay and work during the verification period, and some monetary allowances. An added incentive could be giving priority in granting Indian citizenship or a work permit to those who declare themselves voluntarily. Similarly, disincentives could be considered in the form of penal actions under the amended Foreigners Act for harbouring a foreign national, concealing the person’s presence, facilitating illegal immigration, and the like. Further, illegal immigrants could be barred from getting work permits if they do not voluntarily register themselves.

While there can be abundant ways to tackle illegal migration at destination. But prevention is always better than cure and hence best way to curb illegal migration is to deter migrants at source. It is a porous border as it runs through rivers, ponds, agricultural fields, villages, and even houses where the entrance could be in one country and the back door in the other. Evidently, effective policing seem to be impossible here. Therefore, to prevent the inflow border fencing is the best resort when supplemented by vigorous patrolling and better communication, electronic surveillance, and identifying and taking effective action against agents who facilitate the movement of illegal immigrants and assist with their settlement in India.

Local problems are solved best locally but in this case international cooperation may prove to be lucrative. The UNHCR’s involvement may help in preventing a further influx of refugees along with evolving a channel for the return of refugees that in turn help to prevent further outflow.

Illegal migration is undoubtedly a great hazard for any nation. But we as a country are inclined towards combating this. Indian Border Security Force toils day and night to protect our country from all bad eyes. Border fencing and bilateral co-operations are weapons to combat this menace. But today in the era of proxy wars and upsurge of fundamentalism, extraordinary techniques require to counter battles less ordinary. Not only the issue reckons India but the world wreathes to alleviate illegal migration. An allusion to Syria and the Middle-east are the epitome of unfettered illegal migration. But need of the hour is to take inspiration as to what is the destiny of a country where issues threatening national security receive tardy actions. Also, Human rights are the kernel of humanity and its progress. But illegal migration manifesting into ogre like situation stand in total defiance of human rights essential to humanity. Not only the turbulent times defy the rights but they are in themselves violation of these rights. Hence, India must ensure that the fight against illegal migration do not lead to human right violation. Human rights must be upheld at all costs.

Last but not the least, it is not functionally sufficient for India to avert this issue by merely blaming Bangladesh for non-cooperation on this frontier. We must remember that threat to our national security has to and must be dealt by us either in presence or in absence of bilateral cooperation. It is high-time when we as a young nation brood upon the fact that at the end when things are arranged in order then migration legal or illegal is all about a person striving for a better life. It is here when compassion and justice intermingle to form a complex concoction, egging a moral question as to who is at fault. Is it the men who left doors of their home open or the ones who entered the house without permission?

# http://www.ssc.wisc.edu/~walker/wp/wp-content/uploads/2012/01/E623mig1.pdf (Retrieved at 12:03 P.m. on 5th July 2017).
# Section 2(b) of The Citizenship Act, 1955.
# Marcus F Franda, Bangladesh, the First Decade (New Delhi: South Asian Publishers Pvt Ltd; Universities Field Staff International, 1982)
# Ranabir Samaddar, Peace Studies: An Introduction to the Concept, Scope, and Theme (New Delhi: Sage Publication, 2004.)
# Manoharan, N. (2013). Illegal Migration from Bangladesh: Threat to India’s Internal Security. (Retrieved from http://www.maritimeindia.org/article/illegal-migration-bangla.desh-threat-india™ internal-security.html.)
# Pranati Datta, et al., “Demographic Effects of Forced Illegal Migration from Bangladesh to West Bengal: A Qualitative Study,” Dialogue, Vol. 10, No. 2, October-December, 2008
# Report of the Group of Indian Government’s Ministers on National Security, 2001 (retrieved from http://www.vifindia.org/sites/default/files/GoM Report on National Security.pdf at 14:12 P.M. on 05th July 2017).
# BB Kumar, Illegal Migration from Bangladesh (New Delhi: Concept Publishing Company, 2003).
# Stephen Castles, “Migration, and Community Formation under Globalization,” International Migration Review, Vol. 36, No. 4, Winter 2002, pp. 1143-1168.
# Shib Shankar Chatterjee, “International Border Disputes and Adverse-Possessions of India -Bangladesh International Border, White Paper of Land Disputes and Land Swap Deal between India and Bangladesh,” 2012, ( Retrieved from http://newsblaze.com/report/Secret-Dossier-ofLand-Dispute-Between-India-and-Bangladesh.pdf at 15:36 on 5th July 2017).
# “Human Trafficking & Modern-day Slavery,” People’s Republic of Bangladesh (Retrieved from http:// gvnet.com/humantrafficking/Bangladesh-2.htm at 16:56 P.M. on 5th July 2017).
# Everett S Lee, “A Theory of Migration,” Demography, Vol. 3, No. 1, April-March 1966, pp. 47-57.
# Pandey, Onkareshwar. (2006). ISI and New Wave of Islamic Militancy in the North-East. In B. B. Kumar (Ed.), Illegal Migration from Bangladesh (pp. 101-116). New Delhi, Concept Publishing Company.
# Ibid.
# Roy, J.N. (2006). Illegal Migration from Bangladesh and Security Scenario in the North-East. In B. B. Kumar (Ed.), Illegal Migration from Bangladesh. (pp. 97-100). New Delhi, Concept Publishing Company.
# Sarbananda Sonowal vs. Union of India (2005) 5 SCC 665.
# Sanjeev Tripathi (2016). Illegal Immigration From Bangladesh to India: Toward a Comprehensive Solution (retrieved from http://carnegieindia.org/2016/06/29/illegal-immigration-from-bangladesh-to-india-toward-comprehensive-solution-pub-63931at 22:26 P.M. on 05th July 2017).
# Ibid.
# Supra note 17.
# Supra note 17.


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