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Sabrang
Sabrang

Democracy endangered

01 Feb 2005
If you are a Muslim and Bengali is the language you speak, the Delhi police needs no further proof that you are an illegal Bangladeshi immigrant to be summarily deported

The rising tide of fundamentalist forces all over the world has contributed significantly to the erosion of democratic traditions in the name of ‘freedom’ and ‘security’. Fear and paranoia are being instigated and manipulated to subdue societies into obedience and conformity. Cherished ideals of liberty and social and political equality are being undermined. We believe it to be the responsibility of citizens to resist the onslaught of reactionary and anti-democratic forces and to contribute what they can to preserve, protect, and strengthen democracy. The Citizen’s Campaign for Preserving Democracy is, hopefully, one of the many emergent initiatives in this direction within the Indian polity.

We have been working in different areas of concern: with political prisoners, for victims of communal atrocities, and against the oppression of minorities, women, and the so-called lower castes. Recently, we have tried to bring to public attention the propensity of the State to declare certain sections of society as outside the pale of citizenship. Our investigations over the last few months in Delhi, into the issue of the purported "Bangladeshi" have revealed that there has been extensive violation of the rule of law in this matter. Right from round-up and arrest, to the supposed ‘hearing’ and deportation, no lawful procedure is being followed by the authorities. The entire process contributes to and manifests the criminalisation and communalisation of the state and the corruption of its legal and judicial institutions.

It is not only the human rights of "illegal migrants" that is under threat at present. All marginalised groups, as well as large sections of the informal working class, are being pushed to the edges of society. Much of this is being done in the name of ‘protecting the environment’ or ‘beautifying the landscape’ or ‘preserving our heritage’. There is at work a systematic process to disenfranchise the poor so that they have no voice in democratic governance or decision making or constitute a part of the ‘political’ landscape any more. The Citizen’s Campaign for Preserving Democracy pledges itself to the struggle to preserve, protect, and strengthen India’s democratic traditions.

The political economy of migration

Human history is, in some senses, about the movement of people in search of making their own history. For centuries, people have moved from one place to the other. Driven by want, needs, aspirations, and dreams, they have overcome enormous odds posed by geography and climate to reach and inhabit the furthest comers of the planet. The world as we know it today owes a great deal to the creative energy unleashed by experiential learning, assimilation, and invention during the course of this movement. The last few centuries of modern and transnational development have witnessed how people have, either voluntarily or through coercion, broken old ties and relationships and tried to put down new roots. This has also been interpreted as a search for "freedom": freedom to move, to seek opportunity, to make one’s fortune.

On one hand, modem (or capitalist) development has given birth to the modem nation state, with its attendant ideologies of democracy and development, whose basic thrust is to homogenise markets and reproduce conditions for the free accumulation and expansion of capital. On the other hand, it has simultaneously moved to restrict the free movement of labour across the political boundaries of nation states. Thus, an entire edifice of legal and constitutional frameworks has been created, aimed at regulation, surveillance and disciplining of the movement of people across borders. This has created two separate, but closely linked, registers of legal and illegal mobility – both located within the fabric of democracy.

Over the past few decades, this process has intensified. As disparities of incomes and opportunities increase, many more people leave their traditional boundaries to seek better livelihoods. Whether it is IT professionals from South Asia seeking to enter the USA, or Turkish peasants searching for menial jobs in Europe, people are leaving their "homes" in ever-increasing numbers for whatever opportunities that exist elsewhere. However, this free movement of people is treated differentially by governments – some are welcomed; others are dealt with harshly. It is in this context, that this report deals with the specific issue of "illegal" immigration into India, policies that are being made to ostensibly address the problem and the actual manner in which it is affecting large sections of people who may or may not be immigrants.

The drive in Delhi

Starting from ‘Operation Push Back’ in 1993, thousands of Bengali-speaking Muslims have been picked up from various working class settlements all over Delhi and forcibly pushed inside Bangladesh. It has never been clearly established whether these people were actually from Bangladesh or not. Instances from various parts of Delhi have shown that Indian citizens from West Bengal and Assam, working as ragpickers in Delhi, were routinely arrested on the charge of being illegal immigrants. An association of concerned citizens, voluntary groups, activists, and lawyers then decided to examine the process of deportation of people to Bangladesh, and a study was conducted between August and December 2004.

The study team consisted of members of Chintan Environmental Research and Action Group, Bal Vikas Dhara, Aashray Adhikar Abhiyan, Aman Trust, and Hazards Centre. During the study over 50 persons were interviewed and fifteen detailed case studies were prepared. The study team visited the respective police stations, the Foreigners Regional Registration Office (FRRO), and the place of detention – to record the processes of arrest, documentation, nationality determination, detention, and deportation. Some cases were individually followed-up. In addition, the national and international laws governing citizenship, immigration, and deportation were also examined. This report details the observations and conclusions of the study.

Identification of Bangladeshis

The Action Plan drawn up in May 1993 by the Government of the National Capital Territory of Delhi (GNCTD) for the deportation of illegal migrants, vests the local police with the job of detection and identification of illegal migrants. The local police, already over-burdened, undertakes this task through a network of local informers, often from within the communities that are targeted, who provide information about suspected illegal migrants. Thus, at the very outset, the Action Plan lies enmeshed in a system that easily lends itself to corruption and manipulation.

The interviews undertaken by the team clearly indicate that these informers wield considerable clout in the locality and all Bengali-speaking Muslims are required to keep them in good humour. Failure to meet the informer’s demands – for money or otherwise – could mean loss of nationality. The findings also revealed that, in practice, identification by the informer was the first and final determination of nationality. The police relied solely and absolutely on the informer’s word. All pleas and submission of proof by the detainees – of authoritative documents issued by agencies of Delhi government or the Union government – invariably fell on deaf ears.

It was also seen that there was no scrutiny or enquiry undertaken when documentary proof was submitted. These could range from ration card, election card, school certificate, affidavit from the village panchayat, to certificates from the MLA or MP. In a few cases, these documents were torn up by the state authorities on the specious grounds that they were false and fabricated. Thus, it can be concluded that the Government of India has delegated its sovereign function of identification and deportation of illegal migrants, in the interests of national security, to a few assorted "informers".

 

Detention and arrest

The study revealed that the raids, detention and arrests were conducted in marked contrast to the provisions laid down by the Supreme Court and the Constitution. The guidelines issued by the Supreme Court in its landmark judgement in 1997, in DK Basu v State of West Bengal, regarding arrest, were observed only in their breach. Even if the citizenship of the persons being arrested and detained is uncertain, they still enjoy the protection of the Fundamental Rights enshrined in Article 14 and 21, which provide that no person shall be deprived of life or personal liberty except according to procedure established by law, and was upheld by the Supreme Court (in Chairman, Rly. Board v Chandrima Das [(2000)2 SCC 465]). But, in direct contravention of the law, the raids included swoops on the so-called illegal migrants in the dead of night and rounding up of men, women and children from their bastis. People were not even given enough time to get dressed properly or collect their documents. During other times, family members, including minors, caught in the raid were forced to face the situation alone, without being re-united with their families.

While the government’s own Action Plan requires that the local police records the statements of two independent witnesses, none of the people interviewed during the course of the study had ever seen the police secure this corroborative evidence. On the contrary, many complained of being beaten and threatened when they began to plead their case. The SHO and ACP then routinely signed these poorly prepared cases. All pleas and entreaties of the detainees for a hearing were effectively silenced by physical assaults and verbal abuse.

Legality and illegality

The issue of identity should be ideally settled by documentary proof. However, in discussions with the police and other agencies, it emerged that commonly used documents - like electoral identity cards, ration cards, school certificates, and certificates from MLAs and gram panchayats were not accepted. Informally, the study team was told that only documents showing proof of ownership of land are admissible. Given the economic status of those arrested and the fact that, in India, more and more migrants to Indian metros are landless labour, unable to eke out a living from daily wages, this is an unrealistic demand and cannot be met. Not just by "Bangladeshis", but even by most Indians. It is strange that the Indian government is reluctant to accept other documents issued by its own departments.

One of the most common faces of corruption in India is bribery and it is present during the process of identifying and deporting supposed "illegal migrants" as well. Interviews with those who were set free reveal that identification also operates as a function of payment. Those who had the financial means to offer and pay bribes were usually set free, regardless of any other proof. Interviewees recounted how those unable to pay bribes were detained and then (presumably) sent ahead. A rough calculation based on an average amount of Rs. 1,000 paid per individual to be freed suggests that there are considerable sums to be made, including the amounts extorted by the informer. Conferring arbitrary and extraordinary powers on the police, as has been done by the government Action Plan, has led to in-built abuse within the deportation process. It is apparent that the government Action Plan confers extraordinary and arbitrary powers on the police. The emergent abuse is inevitable, as it is inherent in the very mechanics of the law, policy and procedure followed.

The Foreigners Regional

Registration Office

As per the Action Plan, the Foreigners Regional Registration Office (FRRO)/civil authority acts as the coordinating agency. The notification issued by the Delhi Administration in pursuance of its power under section 3 of the Foreigners Act, 1946, empowers the FRRO to scrutinise the proposals for deportation, and satisfy itself of their illegal status by providing the concerned person with a hearing. However, the study team did not observe the detainees being produced before the FRRO on any occasion during its visits over three months to the FRRO’s office, although some ragpickers mentioned that they were sometimes briefly produced before the FRRO. The team noted that while the police vans with the alleged illegal migrants waited in the compound of the FRRO office at Rama Krishna Puram, their papers were taken in and duly signed by the FRRO, and a Leave India Notice issued under the Foreigners Act. It may be pointed out that with a senior police officer, of the rank of DCP, discharging the duty of the FRRO in Delhi, the basic constitutional principle of separation of powers stands seriously undermined.

The place of detention

Those arrested on suspicion of being Bangladeshis are detained by the orders of the FRRO, at a place of detention near Shastri Nagar Metro station. This is, in fact, a night shelter or Ren Basera, and a Baraat Ghar (wedding hall), which have been occupied by the Task Force and converted into a place of detention. It is a double storey building, on a plot of land roughly about 10 meters x 20 meters. The building bears the following information, displayed prominently on its front facade: Slum & J.J. Vibhag, Baraat Ghar (Bhoo Tal), Ren Basera (Pratham Tal).

Two armed police constables guard the gate, with more police personnel inside. The first floor of the Ren Basera is being used for residential purposes by the Task Force.

From the accounts of some detainees, it was learnt that the conditions of detention fall far below the prescribed national and international standards:

Ø In violation of national and international rules, both men and women detainees are kept together in captivity on the ground floor, i.e. the Baraat Ghar.

Ø The basic amenities provided here are woefully inadequate. There are only two toilets in the building, one of which is used exclusively by the police staff, and the other is shared by male and female detainees, in violation of their right to privacy.

Ø Even to use the toilet facility detainees have to seek prior permission, which is refused sometimes.

Ø Items of necessity, such as blankets, are inadequate. According to one narrative, a woman detainee who had two children asked for an extra blanket because one blanket was not enough for them. Not only was she refused the extra blanket, but was also slapped across the face for her audacity. Other items of necessity, such as milk for the children, have to be bought from the police at excessive rates.

Ø No regular visitation rights are available for the relatives of the detainees.

Ø Detainees are not allowed to offer prayers (namaaz), in direct violation of Fundamental Rights (article 25, Constitution of India, that guarantees freedom to profess and practice religion).

Ø Detainees are forced to perform odd jobs for the police, like washing their motorcycles, sweeping the floor, cleaning toilets etc., which will attract section 374 of the Indian Penal Code that proscribes unlawful forced labour.

Ø The team also heard several complaints of detainees being physically assaulted by the police. Slaps, kicks and punches were part of the treatment meted out to detainees. Degrading forms of punishment, like forcing detainees to squat in the murga position, were routinely reported.

The right to shelter

The misuse of the night shelter and Baraat Ghar as a place of detention constitutes a very grave infringement of public policy and State obligations. The diversion of the Slum & JJ (Jhuggi-Jhopdi) Vibhag’s unit, that should otherwise be made available as a night shelter or a wedding hall, as a detention centre is indeed illegal, unlawful, unconstitutional and unjust.

Deportation to the border

From the FRRO the arrested persons are taken to the MCD Ren Basera, where the police are waiting for them. They are kept at the Ren Basera until there are sufficient numbers to fill a railway bogie. Subsequently, they are taken to the Old Delhi railway station in closed vehicles and put aboard a train. The Delhi police accompany them to Malda station in West Bengal, from where they are transferred to a Border Security Force (BSF) camp. Diplomatic protocol requires that when deportation takes place, the embassy or high commission or any other representative of the State of the country of origin of the deportee be informed about the decision. This has not been undertaken, resulting in a breach of international protocol.

Since the required procedure has not been followed, care has to be taken by the BSF that their counterparts in Bangladesh (BDR) do not know that the deportees are being pushed across the border. Hence, the deportees have to be released in batches of two, and that too in the middle of the night. Thus, it may take several days for the entire lot of deportees to be evacuated from the BSF camp, and during the entire time armed guards are deployed to ensure that the people remain concealed within the camp. The people, both men and women, remain completely at the mercy and whims of the guards. Several incidents of rape, sexual harassment and physical violence have been reported by those who have somehow returned from the border.

When the people are forced across the border, all their possessions are taken away along with any signs that may point to their Indian origin. If they have any money, that too is taken away. If there is a sympathetic BSF jawan, he may exchange Indian rupees for some Bangladeshi money. When there is sufficient inducement, the jawan may even tell the deportee to come back when the police have gone so that he/she can re-enter India. But the general trend appears to be to forcibly push the people into No-Man’s Land, regardless of the weather, the condition of the people, and the terrain (jungle or river). They are warned that if they turn back they will be shot as infiltrators. As parting advice, they are also cautioned to tell the Bangladeshi Rifles, if they are caught across the border, that they are returning from some work or wedding from a particular village. Thus, poor people, deliberately bereft of identity and citizenship, have no option but to again take the path of illegality merely in order to survive.

Violation of rights at all stages

Pursuant to an order of the Delhi high court in Chelan Duff vs Union of India, (3710/2001, writ petition still pending) the Home ministry formulated a further Action Plan on May 1, 2002 to expeditiously detect and deport illegal Bangladeshi nationals from Delhi. As per this plan, the commissioner, Delhi Police, is required to set up 10 Task Forces to identify the illegal migrants. Each Task Force is assigned a quota of identifying 100 illegal migrants daily and this number is to be increased later. Every alternate day at least 50-70 persons are to be sent by train from Delhi to Howrah for deportation. This Task Force functions under a monitoring cell in the Home department of the GNCTD, and reports to a high powered nodal authority constituted by the Home ministry. This nodal authority, in turn, is required to submit monthly reports to the Delhi high court.

It is indeed ironical that while the Delhi high court is monitoring the functioning of the agencies engaged with the detection and deportation of Bangladesh migrants, there is blatant infringement of fundamental rights guaranteed by the Constitution, gross violation of international human rights, and systematic derogation from due process of law and principles of natural justice, which the court is mandated to uphold and protect. The target quota system has given a further impetus to corruption and coercion at the level of the local police.

Using the by now familiar rhetoric of "national security", the cardinal principles of natural justice are subverted. Thus, no fair and objective inquiry is held in Delhi to establish that the person arrested is a foreign national. The basis on which a person is held to be a Bangladeshi is never communicated to him and he/she is never given a chance to rebut such findings. The right to fair hearing/trial is an essential ingredient of the principle of natural justice. Under the current law and Action Plan, however, the deportation order is passed without any hearing and without disclosing the reasons which led to the conclusion that he/she is a foreign national. This is then detrimental not only to the process, but to the economically disadvantaged Indian Muslim population too.

The legal regime

Admission, deportation, stay and control of movement of foreigners in India is governed by:
Passport (Entry into India) Act, 1920/ Rules 1950.
Registration of Foreigners Act, 1939/ Rules.
Foreigners Act 1946, and subsequent orders issued from time to time.
Indo-Bangladesh Visa Agreement, 1972.
The Illegal Migrants (Determination by Tribunals) Act, 1983

The central government, under section 3 (2) of the Foreigners Act, 1946 is empowered to make provisions for prohibiting, regulating or restricting the entry of foreigners into India, or their departure therefrom or their presence or continued presence therein. The procedure provided by the Foreigners Act, 1946 and the Action Plan formulated by the Home ministry for detection and deportation of illegal migrants from Bangladesh in Delhi, is prejudicial to the affected persons and in flagrant violation of articles 14, 19, 21, and 22 of the Indian Constitution as well as the obligations of the Indian State towards International Conventions and Treaties, inter alia, UDHR, ICCPR, ICSECR, CEDA W, Convention on the Rights of the Child etc.

The Foreigners Act, 1946, in a fundamental departure from liberal jurisprudence, reverses the burden of proof (sec. 9) and places the onus upon the person concerned to prove his citizenship. The police is not obliged to prove its case by the application of any basic standard of proof. It thus replaces the cardinal principle of presumption of innocence with the jurisprudence of suspicion. It would be pertinent to pause here and consider that in a country where a large number of people live and work as migrant workers, working in the burgeoning informal unorganised sector, driven by economic compulsions, it is extremely unlikely that they will hold any documents certifying them as citizens of India. The growing emphasis in government policy on documentary proof of identity may eventually disenfranchise the poor, and particularly the Muslim minority.

There is no forum for appeal available under the Foreigners Act, 1946, against a determination of nationality by the prescribed authority under sec. 8, thus denying access to judicial remedy against a decision taken in the arbitrary manner described above. The situation is further aggravated by the fact that sec. 15 of the Foreigners Act, 1946 provides protection against legal prosecutions to persons acting under this Act. This provision becomes more ominous, particularly when read in conjunction with sec. 11(2), Foreigners Act, 1946, which authorises the police to use "reasonably necessary" power, in the discharge of it’s functions under this Act. It thus grants immunity from accountability and in that sense legalises human rights abuses.

Several petitions are currently pending before the courts, challenging the arrest, identification, and deportation process:

 

Ø AI Lawyers Forum for Civil Liberties & Anr. vs. Union of India & Others, Writ Petition (Civil) No. 125 / 1998, Supreme Court of India.

Ø S. Sonaval vs. Union of India, Writ Petition (Civil) No. 131/ 2000, Supreme Court of India, (Seeking repeal of the IMDT Act, 1983).

Ø Jamaith Ulema - E - Hind & Anr. vs. Union of India & Ors., Writ Petition (Civil) No. 7/2001, Supreme Court of India, (Opposing the repeal of the IMDT Act, 1983).

Ø Abu Hanif alias Millan Master vs. Police Commissioner of Delhi & Others, Special Leave Petition (Criminal) No.3778 / 2000, Supreme Court of India, (Quashing of order holding the petitioner to be a foreign national).

Ø Abu Hanif alias Millan Master vs. Union of India and Others, Civil Original Jurisdiction, Writ Petition (Civil) No.418 / 2001, Supreme Court of India, (Seeking the establishment of a tribunal and extension of IMDT Act, 1983, in Delhi).

Ø Shekh Molla vs. S.H.O. Inderprastha Estate & Others, Criminal Writ No. 382 / 93, Delhi High Court, (Seeking compensation for illegal and unlawful deportation of nine Indian citizens to Bangladesh).

Ø Chetan Dutt vs. Union of India and Others, Civil Writ No. 3170/2001, Delhi High Court, (Petition to take effective steps to check influx of and remove illegal Bangladesh migrants from Delhi).

 

Conclusion

It is true that the physical and cultural similarities of people living on either side of the border makes it difficult for the concerned authorities to distinguish between them. However instead of evolving a judicious mechanism to determine the same the government has accorded legitimacy to an arbitrary and discriminatory procedure. The cumulative impact of this procedure is the systematic and targeted harassment and abuse of a specific religious and linguistic minority, viz. Bengali-speaking Muslims. In a polity where communal prejudice is increasingly manifest in various sections of both the public and government, this deportation drive, in the absence of necessary checks and balances, begins to acquire the colour of ethnic cleansing in contravention of the secular and plural foundations of Indian society.

The central government, under section 3 of the Foreigners Act, 1946, had promulgated the Foreigners Tribunal Order, 1964 for the purpose of determining the question of nationality of a person. Under this order the central government is required to constitute a tribunal to give its opinion after giving a reasonable opportunity to the alleged illegal migrant to make a representation, produce evidence, and after considering such evidence the tribunal is to pronounce its opinion. The central government, despite repeatedly expressing anxiety over the influx of illegal migrants from Bangladesh, has not constituted any tribunal in Delhi, under the 1964 order.

Similarly, the Illegal Migrants (Determination by Tribunal) Act, 1983, also envisages the constitution of tribunals, composed of judicial officers, to determine, in a fair manner, the question as to whether a person is an illegal migrant or not. But till date the IMDT Act has not been extended to Delhi. It is being alleged that, since this law adopts procedure grounded on principles of liberal jurisprudence and notions of natural justice, it has failed to get rid of the illegal Bangladeshi migrants. Hence, there is a growing chorus by right wing forces and the Home ministry demanding the repeal of the IMDT Act and doing away with principles like the right to equal treatment before the law, right to fair trial, and the right to be deemed innocent until proved guilty. There are even petitions pending before the Supreme Court and the Delhi high court seeking the repeal of this statute.

In the last two decades this kind of critique has captured the public imagination where, instead of examining the root problems of corruption, malafide and bias that are eroding the system, the demand for efficacy is based on abandoning principles of natural justice and international standards of human rights. As in the case of draconian anti-terrorist laws, liberal principles of jurisprudence are projected as the hurdles that need to be discarded. To silence any criticism, the fear of national security and terrorist attacks is repeatedly raised. At the receiving end of these arbitrary and illegal procedures are poor people, many of whom work as ragpickers and live a life of hardship and poverty. Their poverty and minority status makes them an easy prey for the police.

If democratic norms and procedures are to be preserved for the greater good of the nation and its citizens, it is crucial that citizens resist this vicious cycle of inventing imaginary enemies against whom the nation has to be made secure, in the process of which the ordinary citizen is made more insecure. Through this report, the Citizens Campaign for Preserving Democracy calls upon all concerned people to support all movements to construct a more humane and egalitarian society.

 

Demands

Ø All raids, arrests and detention to be strictly in accordance with the law and guidelines laid down by the Supreme Court of India.

Ø Determination of nationality only through a fair enquiry in accordance with the principles of natural justice, conducted by a judicial tribunal as envisaged in the Illegal migrants (Determination by Tribunals) Act, 1983.

Ø The Illegal Migrants (Determination by Tribunals) Act, 1983, to be extended to Delhi and other states.

Ø That the night shelter and wedding hall at Shastri Nagar, Delhi, presently being misused as a place of detention, be vacated immediately.

Ø Establish and administer a detention centre in accordance with national and international standards.

Ø That documents issued by state and central government agencies be regarded as valid documents of citizenship.

Ø The excessive and arbitrary powers given to the Task Force (Police) by the Home ministry’s Action Plan, May 2002, to be withdrawn. All determination of nationality only through a legally constituted judicial tribunal.

Ø Deportation from Indian territory to be in compliance with international law and diplomatic protocol. n

(Excerpted from a report, ‘Democracy, Citizens and Migrants: Nationalism in the era of Globalisation, Delhi 2005, published by the Citizen’s Campaign for Preserving Democracy, Hazards Centre, 92-H, 3rd floor, Pratap Market, Munirka, New Delhi 110 067).

Archived from Communalism Combat, February  2005. Year 11    No.105, Human Rights 1

Democracy endangered

If you are a Muslim and Bengali is the language you speak, the Delhi police needs no further proof that you are an illegal Bangladeshi immigrant to be summarily deported

The rising tide of fundamentalist forces all over the world has contributed significantly to the erosion of democratic traditions in the name of ‘freedom’ and ‘security’. Fear and paranoia are being instigated and manipulated to subdue societies into obedience and conformity. Cherished ideals of liberty and social and political equality are being undermined. We believe it to be the responsibility of citizens to resist the onslaught of reactionary and anti-democratic forces and to contribute what they can to preserve, protect, and strengthen democracy. The Citizen’s Campaign for Preserving Democracy is, hopefully, one of the many emergent initiatives in this direction within the Indian polity.

We have been working in different areas of concern: with political prisoners, for victims of communal atrocities, and against the oppression of minorities, women, and the so-called lower castes. Recently, we have tried to bring to public attention the propensity of the State to declare certain sections of society as outside the pale of citizenship. Our investigations over the last few months in Delhi, into the issue of the purported "Bangladeshi" have revealed that there has been extensive violation of the rule of law in this matter. Right from round-up and arrest, to the supposed ‘hearing’ and deportation, no lawful procedure is being followed by the authorities. The entire process contributes to and manifests the criminalisation and communalisation of the state and the corruption of its legal and judicial institutions.

It is not only the human rights of "illegal migrants" that is under threat at present. All marginalised groups, as well as large sections of the informal working class, are being pushed to the edges of society. Much of this is being done in the name of ‘protecting the environment’ or ‘beautifying the landscape’ or ‘preserving our heritage’. There is at work a systematic process to disenfranchise the poor so that they have no voice in democratic governance or decision making or constitute a part of the ‘political’ landscape any more. The Citizen’s Campaign for Preserving Democracy pledges itself to the struggle to preserve, protect, and strengthen India’s democratic traditions.

The political economy of migration

Human history is, in some senses, about the movement of people in search of making their own history. For centuries, people have moved from one place to the other. Driven by want, needs, aspirations, and dreams, they have overcome enormous odds posed by geography and climate to reach and inhabit the furthest comers of the planet. The world as we know it today owes a great deal to the creative energy unleashed by experiential learning, assimilation, and invention during the course of this movement. The last few centuries of modern and transnational development have witnessed how people have, either voluntarily or through coercion, broken old ties and relationships and tried to put down new roots. This has also been interpreted as a search for "freedom": freedom to move, to seek opportunity, to make one’s fortune.

On one hand, modem (or capitalist) development has given birth to the modem nation state, with its attendant ideologies of democracy and development, whose basic thrust is to homogenise markets and reproduce conditions for the free accumulation and expansion of capital. On the other hand, it has simultaneously moved to restrict the free movement of labour across the political boundaries of nation states. Thus, an entire edifice of legal and constitutional frameworks has been created, aimed at regulation, surveillance and disciplining of the movement of people across borders. This has created two separate, but closely linked, registers of legal and illegal mobility – both located within the fabric of democracy.

Over the past few decades, this process has intensified. As disparities of incomes and opportunities increase, many more people leave their traditional boundaries to seek better livelihoods. Whether it is IT professionals from South Asia seeking to enter the USA, or Turkish peasants searching for menial jobs in Europe, people are leaving their "homes" in ever-increasing numbers for whatever opportunities that exist elsewhere. However, this free movement of people is treated differentially by governments – some are welcomed; others are dealt with harshly. It is in this context, that this report deals with the specific issue of "illegal" immigration into India, policies that are being made to ostensibly address the problem and the actual manner in which it is affecting large sections of people who may or may not be immigrants.

The drive in Delhi

Starting from ‘Operation Push Back’ in 1993, thousands of Bengali-speaking Muslims have been picked up from various working class settlements all over Delhi and forcibly pushed inside Bangladesh. It has never been clearly established whether these people were actually from Bangladesh or not. Instances from various parts of Delhi have shown that Indian citizens from West Bengal and Assam, working as ragpickers in Delhi, were routinely arrested on the charge of being illegal immigrants. An association of concerned citizens, voluntary groups, activists, and lawyers then decided to examine the process of deportation of people to Bangladesh, and a study was conducted between August and December 2004.

The study team consisted of members of Chintan Environmental Research and Action Group, Bal Vikas Dhara, Aashray Adhikar Abhiyan, Aman Trust, and Hazards Centre. During the study over 50 persons were interviewed and fifteen detailed case studies were prepared. The study team visited the respective police stations, the Foreigners Regional Registration Office (FRRO), and the place of detention – to record the processes of arrest, documentation, nationality determination, detention, and deportation. Some cases were individually followed-up. In addition, the national and international laws governing citizenship, immigration, and deportation were also examined. This report details the observations and conclusions of the study.

Identification of Bangladeshis

The Action Plan drawn up in May 1993 by the Government of the National Capital Territory of Delhi (GNCTD) for the deportation of illegal migrants, vests the local police with the job of detection and identification of illegal migrants. The local police, already over-burdened, undertakes this task through a network of local informers, often from within the communities that are targeted, who provide information about suspected illegal migrants. Thus, at the very outset, the Action Plan lies enmeshed in a system that easily lends itself to corruption and manipulation.

The interviews undertaken by the team clearly indicate that these informers wield considerable clout in the locality and all Bengali-speaking Muslims are required to keep them in good humour. Failure to meet the informer’s demands – for money or otherwise – could mean loss of nationality. The findings also revealed that, in practice, identification by the informer was the first and final determination of nationality. The police relied solely and absolutely on the informer’s word. All pleas and submission of proof by the detainees – of authoritative documents issued by agencies of Delhi government or the Union government – invariably fell on deaf ears.

It was also seen that there was no scrutiny or enquiry undertaken when documentary proof was submitted. These could range from ration card, election card, school certificate, affidavit from the village panchayat, to certificates from the MLA or MP. In a few cases, these documents were torn up by the state authorities on the specious grounds that they were false and fabricated. Thus, it can be concluded that the Government of India has delegated its sovereign function of identification and deportation of illegal migrants, in the interests of national security, to a few assorted "informers".

 

Detention and arrest

The study revealed that the raids, detention and arrests were conducted in marked contrast to the provisions laid down by the Supreme Court and the Constitution. The guidelines issued by the Supreme Court in its landmark judgement in 1997, in DK Basu v State of West Bengal, regarding arrest, were observed only in their breach. Even if the citizenship of the persons being arrested and detained is uncertain, they still enjoy the protection of the Fundamental Rights enshrined in Article 14 and 21, which provide that no person shall be deprived of life or personal liberty except according to procedure established by law, and was upheld by the Supreme Court (in Chairman, Rly. Board v Chandrima Das [(2000)2 SCC 465]). But, in direct contravention of the law, the raids included swoops on the so-called illegal migrants in the dead of night and rounding up of men, women and children from their bastis. People were not even given enough time to get dressed properly or collect their documents. During other times, family members, including minors, caught in the raid were forced to face the situation alone, without being re-united with their families.

While the government’s own Action Plan requires that the local police records the statements of two independent witnesses, none of the people interviewed during the course of the study had ever seen the police secure this corroborative evidence. On the contrary, many complained of being beaten and threatened when they began to plead their case. The SHO and ACP then routinely signed these poorly prepared cases. All pleas and entreaties of the detainees for a hearing were effectively silenced by physical assaults and verbal abuse.

Legality and illegality

The issue of identity should be ideally settled by documentary proof. However, in discussions with the police and other agencies, it emerged that commonly used documents - like electoral identity cards, ration cards, school certificates, and certificates from MLAs and gram panchayats were not accepted. Informally, the study team was told that only documents showing proof of ownership of land are admissible. Given the economic status of those arrested and the fact that, in India, more and more migrants to Indian metros are landless labour, unable to eke out a living from daily wages, this is an unrealistic demand and cannot be met. Not just by "Bangladeshis", but even by most Indians. It is strange that the Indian government is reluctant to accept other documents issued by its own departments.

One of the most common faces of corruption in India is bribery and it is present during the process of identifying and deporting supposed "illegal migrants" as well. Interviews with those who were set free reveal that identification also operates as a function of payment. Those who had the financial means to offer and pay bribes were usually set free, regardless of any other proof. Interviewees recounted how those unable to pay bribes were detained and then (presumably) sent ahead. A rough calculation based on an average amount of Rs. 1,000 paid per individual to be freed suggests that there are considerable sums to be made, including the amounts extorted by the informer. Conferring arbitrary and extraordinary powers on the police, as has been done by the government Action Plan, has led to in-built abuse within the deportation process. It is apparent that the government Action Plan confers extraordinary and arbitrary powers on the police. The emergent abuse is inevitable, as it is inherent in the very mechanics of the law, policy and procedure followed.

The Foreigners Regional

Registration Office

As per the Action Plan, the Foreigners Regional Registration Office (FRRO)/civil authority acts as the coordinating agency. The notification issued by the Delhi Administration in pursuance of its power under section 3 of the Foreigners Act, 1946, empowers the FRRO to scrutinise the proposals for deportation, and satisfy itself of their illegal status by providing the concerned person with a hearing. However, the study team did not observe the detainees being produced before the FRRO on any occasion during its visits over three months to the FRRO’s office, although some ragpickers mentioned that they were sometimes briefly produced before the FRRO. The team noted that while the police vans with the alleged illegal migrants waited in the compound of the FRRO office at Rama Krishna Puram, their papers were taken in and duly signed by the FRRO, and a Leave India Notice issued under the Foreigners Act. It may be pointed out that with a senior police officer, of the rank of DCP, discharging the duty of the FRRO in Delhi, the basic constitutional principle of separation of powers stands seriously undermined.

The place of detention

Those arrested on suspicion of being Bangladeshis are detained by the orders of the FRRO, at a place of detention near Shastri Nagar Metro station. This is, in fact, a night shelter or Ren Basera, and a Baraat Ghar (wedding hall), which have been occupied by the Task Force and converted into a place of detention. It is a double storey building, on a plot of land roughly about 10 meters x 20 meters. The building bears the following information, displayed prominently on its front facade: Slum & J.J. Vibhag, Baraat Ghar (Bhoo Tal), Ren Basera (Pratham Tal).

Two armed police constables guard the gate, with more police personnel inside. The first floor of the Ren Basera is being used for residential purposes by the Task Force.

From the accounts of some detainees, it was learnt that the conditions of detention fall far below the prescribed national and international standards:

Ø In violation of national and international rules, both men and women detainees are kept together in captivity on the ground floor, i.e. the Baraat Ghar.

Ø The basic amenities provided here are woefully inadequate. There are only two toilets in the building, one of which is used exclusively by the police staff, and the other is shared by male and female detainees, in violation of their right to privacy.

Ø Even to use the toilet facility detainees have to seek prior permission, which is refused sometimes.

Ø Items of necessity, such as blankets, are inadequate. According to one narrative, a woman detainee who had two children asked for an extra blanket because one blanket was not enough for them. Not only was she refused the extra blanket, but was also slapped across the face for her audacity. Other items of necessity, such as milk for the children, have to be bought from the police at excessive rates.

Ø No regular visitation rights are available for the relatives of the detainees.

Ø Detainees are not allowed to offer prayers (namaaz), in direct violation of Fundamental Rights (article 25, Constitution of India, that guarantees freedom to profess and practice religion).

Ø Detainees are forced to perform odd jobs for the police, like washing their motorcycles, sweeping the floor, cleaning toilets etc., which will attract section 374 of the Indian Penal Code that proscribes unlawful forced labour.

Ø The team also heard several complaints of detainees being physically assaulted by the police. Slaps, kicks and punches were part of the treatment meted out to detainees. Degrading forms of punishment, like forcing detainees to squat in the murga position, were routinely reported.

The right to shelter

The misuse of the night shelter and Baraat Ghar as a place of detention constitutes a very grave infringement of public policy and State obligations. The diversion of the Slum & JJ (Jhuggi-Jhopdi) Vibhag’s unit, that should otherwise be made available as a night shelter or a wedding hall, as a detention centre is indeed illegal, unlawful, unconstitutional and unjust.

Deportation to the border

From the FRRO the arrested persons are taken to the MCD Ren Basera, where the police are waiting for them. They are kept at the Ren Basera until there are sufficient numbers to fill a railway bogie. Subsequently, they are taken to the Old Delhi railway station in closed vehicles and put aboard a train. The Delhi police accompany them to Malda station in West Bengal, from where they are transferred to a Border Security Force (BSF) camp. Diplomatic protocol requires that when deportation takes place, the embassy or high commission or any other representative of the State of the country of origin of the deportee be informed about the decision. This has not been undertaken, resulting in a breach of international protocol.

Since the required procedure has not been followed, care has to be taken by the BSF that their counterparts in Bangladesh (BDR) do not know that the deportees are being pushed across the border. Hence, the deportees have to be released in batches of two, and that too in the middle of the night. Thus, it may take several days for the entire lot of deportees to be evacuated from the BSF camp, and during the entire time armed guards are deployed to ensure that the people remain concealed within the camp. The people, both men and women, remain completely at the mercy and whims of the guards. Several incidents of rape, sexual harassment and physical violence have been reported by those who have somehow returned from the border.

When the people are forced across the border, all their possessions are taken away along with any signs that may point to their Indian origin. If they have any money, that too is taken away. If there is a sympathetic BSF jawan, he may exchange Indian rupees for some Bangladeshi money. When there is sufficient inducement, the jawan may even tell the deportee to come back when the police have gone so that he/she can re-enter India. But the general trend appears to be to forcibly push the people into No-Man’s Land, regardless of the weather, the condition of the people, and the terrain (jungle or river). They are warned that if they turn back they will be shot as infiltrators. As parting advice, they are also cautioned to tell the Bangladeshi Rifles, if they are caught across the border, that they are returning from some work or wedding from a particular village. Thus, poor people, deliberately bereft of identity and citizenship, have no option but to again take the path of illegality merely in order to survive.

Violation of rights at all stages

Pursuant to an order of the Delhi high court in Chelan Duff vs Union of India, (3710/2001, writ petition still pending) the Home ministry formulated a further Action Plan on May 1, 2002 to expeditiously detect and deport illegal Bangladeshi nationals from Delhi. As per this plan, the commissioner, Delhi Police, is required to set up 10 Task Forces to identify the illegal migrants. Each Task Force is assigned a quota of identifying 100 illegal migrants daily and this number is to be increased later. Every alternate day at least 50-70 persons are to be sent by train from Delhi to Howrah for deportation. This Task Force functions under a monitoring cell in the Home department of the GNCTD, and reports to a high powered nodal authority constituted by the Home ministry. This nodal authority, in turn, is required to submit monthly reports to the Delhi high court.

It is indeed ironical that while the Delhi high court is monitoring the functioning of the agencies engaged with the detection and deportation of Bangladesh migrants, there is blatant infringement of fundamental rights guaranteed by the Constitution, gross violation of international human rights, and systematic derogation from due process of law and principles of natural justice, which the court is mandated to uphold and protect. The target quota system has given a further impetus to corruption and coercion at the level of the local police.

Using the by now familiar rhetoric of "national security", the cardinal principles of natural justice are subverted. Thus, no fair and objective inquiry is held in Delhi to establish that the person arrested is a foreign national. The basis on which a person is held to be a Bangladeshi is never communicated to him and he/she is never given a chance to rebut such findings. The right to fair hearing/trial is an essential ingredient of the principle of natural justice. Under the current law and Action Plan, however, the deportation order is passed without any hearing and without disclosing the reasons which led to the conclusion that he/she is a foreign national. This is then detrimental not only to the process, but to the economically disadvantaged Indian Muslim population too.

The legal regime

Admission, deportation, stay and control of movement of foreigners in India is governed by:
Passport (Entry into India) Act, 1920/ Rules 1950.
Registration of Foreigners Act, 1939/ Rules.
Foreigners Act 1946, and subsequent orders issued from time to time.
Indo-Bangladesh Visa Agreement, 1972.
The Illegal Migrants (Determination by Tribunals) Act, 1983

The central government, under section 3 (2) of the Foreigners Act, 1946 is empowered to make provisions for prohibiting, regulating or restricting the entry of foreigners into India, or their departure therefrom or their presence or continued presence therein. The procedure provided by the Foreigners Act, 1946 and the Action Plan formulated by the Home ministry for detection and deportation of illegal migrants from Bangladesh in Delhi, is prejudicial to the affected persons and in flagrant violation of articles 14, 19, 21, and 22 of the Indian Constitution as well as the obligations of the Indian State towards International Conventions and Treaties, inter alia, UDHR, ICCPR, ICSECR, CEDA W, Convention on the Rights of the Child etc.

The Foreigners Act, 1946, in a fundamental departure from liberal jurisprudence, reverses the burden of proof (sec. 9) and places the onus upon the person concerned to prove his citizenship. The police is not obliged to prove its case by the application of any basic standard of proof. It thus replaces the cardinal principle of presumption of innocence with the jurisprudence of suspicion. It would be pertinent to pause here and consider that in a country where a large number of people live and work as migrant workers, working in the burgeoning informal unorganised sector, driven by economic compulsions, it is extremely unlikely that they will hold any documents certifying them as citizens of India. The growing emphasis in government policy on documentary proof of identity may eventually disenfranchise the poor, and particularly the Muslim minority.

There is no forum for appeal available under the Foreigners Act, 1946, against a determination of nationality by the prescribed authority under sec. 8, thus denying access to judicial remedy against a decision taken in the arbitrary manner described above. The situation is further aggravated by the fact that sec. 15 of the Foreigners Act, 1946 provides protection against legal prosecutions to persons acting under this Act. This provision becomes more ominous, particularly when read in conjunction with sec. 11(2), Foreigners Act, 1946, which authorises the police to use "reasonably necessary" power, in the discharge of it’s functions under this Act. It thus grants immunity from accountability and in that sense legalises human rights abuses.

Several petitions are currently pending before the courts, challenging the arrest, identification, and deportation process:

 

Ø AI Lawyers Forum for Civil Liberties & Anr. vs. Union of India & Others, Writ Petition (Civil) No. 125 / 1998, Supreme Court of India.

Ø S. Sonaval vs. Union of India, Writ Petition (Civil) No. 131/ 2000, Supreme Court of India, (Seeking repeal of the IMDT Act, 1983).

Ø Jamaith Ulema - E - Hind & Anr. vs. Union of India & Ors., Writ Petition (Civil) No. 7/2001, Supreme Court of India, (Opposing the repeal of the IMDT Act, 1983).

Ø Abu Hanif alias Millan Master vs. Police Commissioner of Delhi & Others, Special Leave Petition (Criminal) No.3778 / 2000, Supreme Court of India, (Quashing of order holding the petitioner to be a foreign national).

Ø Abu Hanif alias Millan Master vs. Union of India and Others, Civil Original Jurisdiction, Writ Petition (Civil) No.418 / 2001, Supreme Court of India, (Seeking the establishment of a tribunal and extension of IMDT Act, 1983, in Delhi).

Ø Shekh Molla vs. S.H.O. Inderprastha Estate & Others, Criminal Writ No. 382 / 93, Delhi High Court, (Seeking compensation for illegal and unlawful deportation of nine Indian citizens to Bangladesh).

Ø Chetan Dutt vs. Union of India and Others, Civil Writ No. 3170/2001, Delhi High Court, (Petition to take effective steps to check influx of and remove illegal Bangladesh migrants from Delhi).

 

Conclusion

It is true that the physical and cultural similarities of people living on either side of the border makes it difficult for the concerned authorities to distinguish between them. However instead of evolving a judicious mechanism to determine the same the government has accorded legitimacy to an arbitrary and discriminatory procedure. The cumulative impact of this procedure is the systematic and targeted harassment and abuse of a specific religious and linguistic minority, viz. Bengali-speaking Muslims. In a polity where communal prejudice is increasingly manifest in various sections of both the public and government, this deportation drive, in the absence of necessary checks and balances, begins to acquire the colour of ethnic cleansing in contravention of the secular and plural foundations of Indian society.

The central government, under section 3 of the Foreigners Act, 1946, had promulgated the Foreigners Tribunal Order, 1964 for the purpose of determining the question of nationality of a person. Under this order the central government is required to constitute a tribunal to give its opinion after giving a reasonable opportunity to the alleged illegal migrant to make a representation, produce evidence, and after considering such evidence the tribunal is to pronounce its opinion. The central government, despite repeatedly expressing anxiety over the influx of illegal migrants from Bangladesh, has not constituted any tribunal in Delhi, under the 1964 order.

Similarly, the Illegal Migrants (Determination by Tribunal) Act, 1983, also envisages the constitution of tribunals, composed of judicial officers, to determine, in a fair manner, the question as to whether a person is an illegal migrant or not. But till date the IMDT Act has not been extended to Delhi. It is being alleged that, since this law adopts procedure grounded on principles of liberal jurisprudence and notions of natural justice, it has failed to get rid of the illegal Bangladeshi migrants. Hence, there is a growing chorus by right wing forces and the Home ministry demanding the repeal of the IMDT Act and doing away with principles like the right to equal treatment before the law, right to fair trial, and the right to be deemed innocent until proved guilty. There are even petitions pending before the Supreme Court and the Delhi high court seeking the repeal of this statute.

In the last two decades this kind of critique has captured the public imagination where, instead of examining the root problems of corruption, malafide and bias that are eroding the system, the demand for efficacy is based on abandoning principles of natural justice and international standards of human rights. As in the case of draconian anti-terrorist laws, liberal principles of jurisprudence are projected as the hurdles that need to be discarded. To silence any criticism, the fear of national security and terrorist attacks is repeatedly raised. At the receiving end of these arbitrary and illegal procedures are poor people, many of whom work as ragpickers and live a life of hardship and poverty. Their poverty and minority status makes them an easy prey for the police.

If democratic norms and procedures are to be preserved for the greater good of the nation and its citizens, it is crucial that citizens resist this vicious cycle of inventing imaginary enemies against whom the nation has to be made secure, in the process of which the ordinary citizen is made more insecure. Through this report, the Citizens Campaign for Preserving Democracy calls upon all concerned people to support all movements to construct a more humane and egalitarian society.

 

Demands

Ø All raids, arrests and detention to be strictly in accordance with the law and guidelines laid down by the Supreme Court of India.

Ø Determination of nationality only through a fair enquiry in accordance with the principles of natural justice, conducted by a judicial tribunal as envisaged in the Illegal migrants (Determination by Tribunals) Act, 1983.

Ø The Illegal Migrants (Determination by Tribunals) Act, 1983, to be extended to Delhi and other states.

Ø That the night shelter and wedding hall at Shastri Nagar, Delhi, presently being misused as a place of detention, be vacated immediately.

Ø Establish and administer a detention centre in accordance with national and international standards.

Ø That documents issued by state and central government agencies be regarded as valid documents of citizenship.

Ø The excessive and arbitrary powers given to the Task Force (Police) by the Home ministry’s Action Plan, May 2002, to be withdrawn. All determination of nationality only through a legally constituted judicial tribunal.

Ø Deportation from Indian territory to be in compliance with international law and diplomatic protocol. n

(Excerpted from a report, ‘Democracy, Citizens and Migrants: Nationalism in the era of Globalisation, Delhi 2005, published by the Citizen’s Campaign for Preserving Democracy, Hazards Centre, 92-H, 3rd floor, Pratap Market, Munirka, New Delhi 110 067).

Archived from Communalism Combat, February  2005. Year 11    No.105, Human Rights 1

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