The Problem, Its Magnitude, and Its Implications

Sanjeev Tripathi
Sanjeev Tripathi is a former head of the government of India’s Research and Analysis Wing.

India’s geostrategic location, its relatively sound economic position vis-à-vis its neighbors, and its liberal democratic credentials have long made it a magnet for people in other parts of the region who are fleeing persecution in their countries of origin or looking for a better life. Refugees/illegal immigrants from Tibet, Afghanistan, Sri Lanka, Myanmar, Pakistan, and Bangladesh have found shelter in India. While refugees coming from other areas—including Tibet, Sri Lanka, Afghanistan, and Myanmar—have been dealt with in a somewhat systematic, although ad hoc, manner, the influx of refugees/illegal immigrants from Bangladesh has largely been left unattended.

This neglect has adversely impacted the interests of local populations in the areas seeing large-scale influxes of illegal immigrants as well as India’s national security interests. Further, the absence of national refugee laws has blurred the distinction between refugees and economic migrants, leading to the denial of any assistance to even genuine asylum seekers. It now poses an enormous problem for India and the millions of affected people. Further delay in addressing the problem will only make matters worse.

The Roots of the Problem

Bangladesh abuts India on three sides, sharing 4,096 kilometers (around 2,500 miles) of border with the Indian states of West Bengal, Assam, Meghalaya, Tripura, and Mizoram. Ever since the partition of British India in 1947, successive waves of people facing hostile conditions, persecution, intolerance, and adverse economic situations in what constitutes present-day Bangladesh have found sanctuary in India. While some of them later returned to their homes in Bangladesh, the majority chose to assimilate within India.

Illegal immigration from Bangladesh to India, which includes both refugees and economic migrants, continues unabated. There is no reliable figure on the exact number of illegal immigrants from Bangladesh in India. An analysis of population growth and demographic statistics for Bangladesh and India in the last four censuses of 2011, 2001, 1991, and 1981, however, suggests with reasonable certainty that their number exceeds 15 million. Most of them have settled in states along the border with Bangladesh, and some subsequently moved to other parts of India, including its remote corners. A large number are engaged in menial jobs in metropolitan cities in different parts of India.

The influx of such a large number of illegal Bangladeshi immigrants, particularly in the border states, has proved to be a huge challenge for India with serious implications for its resources and national security. It has substantially contributed to changing the demographic pattern in the northeastern states of India, where the locals feel overwhelmed by the outsiders. This has adversely affected their way of life and led to simmering tension between the two sides.

It has also fueled insurgency in some of these states. In Assam, for example, the presence of a disproportionately large number of illegal immigrants from Bangladesh and erstwhile East Pakistan, and their enrollment as voters, led to a popular movement there (1979–1985) that demanded their deportation. The Indian Parliament 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 agitation culminated in the Assam Accord that was signed on August 15, 1985, by the central and state governments and leaders of the All Assam Students Union and All Assam Gana Sangram Parishad, which spearheaded the Assam movement. The accord envisaged that all foreign nationals who had entered Assam on or after March 25, 1971—the day after the Pakistan Army began full-fledged operations against Bangladeshi civilians seeking independence, causing them to flee to India in large numbers—were to be detected, their names deleted from the electoral rolls, and subsequently deported under the Foreigners Act, 1946. But little headway has been made in that direction.

India has taken up this issue with Bangladesh at political and diplomatic levels from time to time, to no avail. Dhaka has neither acknowledged the presence of a large number of illegal Bangladeshi immigrants in India nor taken any effective measures to control the flow of its nationals into India. India’s efforts over the years to stem the tide by erecting a barbed-wire fence along the border and enhancing border surveillance have failed to produce the desired results.

Furthermore, the practice of occasionally pushing illegal Bangladeshi immigrants back across the India-Bangladesh border has not been effective. They are either prone to reenter voluntarily from a different porous stretch or pushed back into India by Bangladeshi border guards. Moreover, such a system of deportation is devoid of any legal strength. It not only could attract protests from Bangladesh if carried out on a large scale but also could come in for criticism from both within and outside India on grounds of being non-enduring and extralegal.

The challenge of stemming this flow and repatriating the illegal immigrants back to Bangladesh is indeed daunting. A bundle of multipronged, well-coordinated strategies pursued under an appropriate legal framework might be better able to address this problem in a more effective manner. Key among these strategies would be enacting a national refugee law so that refugees are clearly defined and can be distinguished from illegal immigrants, and forging a bilateral agreement between India and Bangladesh that provides for taking back nationals who stay illegally in the other country after due verification. This would have to be followed by concerted action to detect Bangladeshi immigrants, assign them to separate categories of refugees and illegal migrants, resettle or repatriate them, and prevent any further influx. India may also consider taking assistance and advisory services from the United Nations High Commissioner for Refugees (UNHCR), the International Organization for Migration (IOM), and other concerned international agencies with experience in this kind of complex issue.

Existing Legal Framework and Policy

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 (commonly called the 1951 Refugee Convention) 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.” It does not distinguish between refugees and illegal immigrants, nor does it define refugees as a specific category needing humanitarian protection.

This does not imply that India has no policy on refugees. In the absence of any legislation on the subject, refugee policy is based on ad hoc and undefined administrative measures. India administratively gives refugee status to asylum seekers from Tibet and Sri Lanka. Asylum seekers from other places including Afghanistan and Myanmar directly approach the UNHCR office in New Delhi. However, neither of these approaches covers Bangladeshi nationals. In fact, the genuine refugees from Bangladesh (mostly Hindus) are the worst off with no one to look after their interests.

Formulating a National Refugee Law

As per generally accepted international norms, refugees are people who leave their country of origin to take shelter in any other country because of persecution against them on religious, ethnic, political, or other grounds. Leaving a country for economic reasons, as in the case of most Bangladeshis in India, does not qualify under this definition of a refugee. Hence this category of people needs to be treated differently. That is one reason the problem of illegal immigrants from Bangladesh requires the adoption and implementation of national legislation on refugees.

To assist South Asian countries in the development of domestic refugee laws, the UNHCR set up a five-member Eminent Persons Group (EPG) in 1994, headed by P. N. Bhagwati, a former chief justice of India, and comprising Justice Dorab Patel of Pakistan; Kamal Hossain of Bangladesh, a jurist and former minister of law; Rishikesh Shah of Nepal, a human rights activist; and Bradman Weerakoon of Sri Lanka, a senior bureaucrat. The EPG proposed model refugee laws in 1997 and subsequently came out with the South Asia Declaration on Refugees, which also incorporated the model refugee laws, at its meeting in Islamabad on January 24, 2004. In addition, in India the Asylum Bill, 2015 was introduced in the Lok Sabha on December 18, 2015, as a private member bill by Shashi Tharoor, who had earlier also worked in the UNHCR office in Geneva.

The model refugee laws suggested by the EPG, together with the asylum bill proposed in India’s parliament, could form the basis for the enactment of a national refugee law.

A sticking point, though, is that these draft laws seem to have been formulated from an activist’s point of view, where the focus is more on the rights and privileges of refugees and asylum seekers than on a country’s national security or the interests of local populations. Care needs to be taken to ensure that illegal economic immigrants do not exploit the law to prolong their stays by first seeking asylum and then, if asylum is denied, remaining in the country during the review process. Indeed, there should be a provision for summary rejection of the asylum request by the competent authority, when prima facie the applicant does not fall into the category of refugees. Furthermore, some reasonable restrictions should be placed on immigrants’ movement in sensitive areas, which the government may designate. Jammu and Kashmir, northeastern states, and areas close to India’s border may, for instance, be declared out of bounds for refugees and illegal immigrants.

When domestic refugee laws are in place it will be easier to distinguish between genuine refugees and illegal immigrants. The two categories could, thereafter, be dealt with by separate sets of rules and procedures. In the case of refugees, there could be three possibilities: voluntary repatriation to the country of origin, the granting of Indian citizenship, or resettlement in a third country. Illegal immigrants—a category that would include asylum seekers whose request for refugee status is rejected after due consideration—would fall under the provisions of the 1946 Foreigners Act, which will need to be suitably amended to meet the new requirements.

Forging a Bilateral Agreement With Bangladesh

To deal with the problem of illegal Bangladeshi immigrants, India will have to take the initiative to enter into a bilateral agreement with Bangladesh under which the two countries would agree to take back their nationals staying illegally in the other country after due verification process. India should also agree to consider giving work permits to certain specified categories and numbers of Bangladeshis living in India after their Bangladeshi nationality is established and the Bangladeshi government provides them necessary travel documents. Such an agreement is essential to tackle the problem. The key to its success would be a joint verification procedure acceptable to both countries.

Developing a SAARC Convention/Declaration on Refugees

India is not a signatory to the 1951 Refugee Convention and its 1967 Protocol. It believes that the convention and the protocol have not taken regional complexities into consideration and, as such, India has reservations about a number of their provisions.

After India enacts its domestic refugee laws, it should also consider signing the 1951 Refugee Convention and the 1967 Protocol after recording its reservations. It would be still better if India took the initiative to encourage other countries in the South Asia Association for Regional Cooperation (SAARC) to develop a SAARC convention or declaration on refugees in which member states would agree to ratify the 1951 Refugee Convention and the 1967 Protocol and record their reservations to various clauses. Similar conventions and declarations for Africa and Latin America already exist in the form of the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa and the Cartagena Declaration on Refugees, respectively.

Besides tackling refugee issues, the proposed SAARC convention or declaration could address the subject of illegal migration in South Asia and make provisions for member states to enter into bilateral arrangements on work permit regimes, verification regimes, repatriation, and related issues.

Stepping Up Detection, Verification, and Repatriation

Detecting illegal immigrants from Bangladesh is a daunting task. The subtle differences in the accents, dialect, and features between an Indian Bengali and a Bangladeshi are not easily discernible. The fact that most Bangladeshis already hold ration cards, voter identity cards, or even the unique-identity Aadhaar cards further compounds the difficulty. Ironically, an illegal Bangladeshi immigrant is more likely to be equipped with an Indian identity document than an Indian Bengali who may take his or her Indian citizenship for granted.

Taking into account the enormity and complexity of the problem and to facilitate the process, India should consider regularizing the stay of all those who migrated from erstwhile East Pakistan and granting them, along with their natural descendants, Indian nationality. The Assam Accord also envisages letting foreigners who arrived prior to January 1, 1966, stay and doing the same for those who arrived between January 1, 1966, and March 24, 1971, after a gap of ten years from the date of their detection. The latter condition may be waived so that the entire focus could be on Bangladeshi immigrants who came to India from March 25, 1971, onward.

Additionally, a set of incentives and disincentives may be necessary to encourage illegal Bangladeshi immigrants to voluntarily register with the designated authorities. The incentives could be in the form of 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 harboring 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.          

When the domestic refugee law and a bilateral agreement with Bangladesh on illegal immigration are in place, the process of ascertaining immigrants’ status could commence with a designated period of, say, three to four months, during which illegal immigrants who believe they may be eligible for refugee status can apply for asylum. Otherwise, they may apply for work permits. Simultaneously, ground survey teams, preferably under a magistrate, should extensively tour their designated areas and work to identify Bangladeshi immigrants. The process of completing the National Population Register/National Register of Citizens should also be expedited and non-Indian-nationals identified.

Some Kolkata-based nongovernmental organizations dealing with Bangladeshis living in India, such as Bangladesh Udbastu Kalyan Parishad, Bangladesh Udbastu Unnayan Sangsad, Nikhil Banga Nagarik Sangha, and Bangladesh Mohajir Sangha, might be able to assist in the identification and verification process.          
 
Based on this detection process, a comprehensive biometric database of Bangladeshi immigrants should be prepared, classifying them in two distinct categories: asylum seekers and illegal immigrants. After verification and due process under the new domestic refugee law, asylum seekers will also fall into two categories: refugees and illegal immigrants. Thus, ultimately, all immigrants from Bangladesh will be categorized as either refugees or illegal immigrants. Refugees should be dealt with as per the national refugee law, and those who came before a prescribed cutoff date may even be considered for Indian citizenship; the illegal immigrants will have to be managed in a different manner.

As soon as the Indian authorities start preparing the list of illegal Bangladeshi immigrants, the joint verification mechanism under the bilateral India-Bangladesh agreement should be activated. After the joint verification process, those who are confirmed as Bangladeshi nationals may either be repatriated or be given a permit to work in India for a certain specific period after the Bangladeshi authorities provide necessary travel documents. In cases where the joint verification team fails to reach any conclusion about the Bangladeshi nationality of an individual, the case should be referred back to the concerned Indian authority for reverification. After that, the individual would either be accepted as an Indian national or, if the reverification process confirms that the individual is a Bangladeshi immigrant, the case should again be forwarded to the joint verification mechanism. Any subsequent rejection would mean that individual would be put in the category of stateless person. The fate of such persons may subsequently be decided through bilateral negotiations between India and Bangladesh. In the interim period, they may be given work permits to stay and work in India.

Illegal immigrants who began living in India before a cutoff date may also be considered for Indian citizenship, but that should be conditional on their shifting away from the out-of-bounds areas and continuously living outside those areas for at least three to five years.

Deterring Migration at the Source

The problem of managing immigrants from Bangladesh is quite complex. While the measures discussed above will help to tackle this problem, it is equally important to ensure that no fresh influx of immigrants takes place. Of the 4,096-kilometer border that the two countries share, 1,016 kilometers are riverine and 63 kilometers maritime. 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. Bangladesh and India used to have enclaves inside each other’s country, but that was resolved with an exchange of enclaves as envisaged in the 2011 Protocol of the 1974 bilateral Land Boundary Agreement.

Effective policing of such a long and complex border is difficult. India has sought to establish greater control over the border by erecting barbed-wire fencing. The plan to extend such fencing along the entire border should be implemented at the earliest possible time. A border fence may not be a foolproof method of preventing infiltration, but there is no better first step.

To prevent the inflow of Bangladeshi immigrants, border fencing will have to be supplemented by vigorous patrolling and other measures including 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.

In addition, under the bilateral developmental assistance program, India should offer to provide financial and technical assistance to Bangladesh to introduce and implement a unique identity card system for its nationals, similar to the Aadhaar card in India. The process should preferably start in the border areas. India may also consider introducing a system of keeping biometric records of Bangladeshi nationals while granting them visas to visit India.

As a long-term strategy, the motivating factors behind this migration must also be addressed. Because the majority of these persons are economic migrants, a more lasting and effective solution could be through fostering economic development in Bangladesh, particularly along the border with India. In addition, India and other donor countries and agencies need to work alongside Bangladesh to help foster its economic development, which will diminish the motivation for transborder migration and assist in finding a permanent solution to the problem. India may also consider tying its economic assistance to Bangladesh to the cooperation and support it receives in tackling the migration problem.

Taking Advantage of International Cooperation

India is the main recipient of the population flow in the region, both of refugees and economic migrants. While it has preferred to tackle such issues bilaterally, it may consider involving international actors in arriving at meaningful solutions because the reach and complexity of the international population movements are beyond the capacities of a single country. Organizations such as the UNHCR, which deals with refugees, and the IOM, which deals with economic migrants, could play a significant role in assisting India and Bangladesh to resolve this problem.

India has generally avoided any direct involvement of the UNHCR in refugee affairs affecting the country. It did, however, use the services of the UNHCR in a limited manner in the voluntary repatriation of Sri Lankan refugees from Tamil Nadu, and the experience was quite positive. Similarly, the limited role played by the UNHCR in looking after the Afghan refugees in India has not given India any reason to complain.

India has been a member of the UNHCR Executive Committee since 1995 and that of the IOM since 2008. It may now consider playing a more proactive role in the affairs of both organizations. Western countries, which generally used to see the refugee issue from an activists’ viewpoint and were more concerned about refugees’ rights and privileges, are now facing a large influx of foreign population that is affecting their national security. They may perhaps now be in a better position to appreciate India’s concerns. Moreover, India has been incurring huge expenditures in looking after Tibetan and Sri Lankan refugees. Besides its annual contribution to the UNHCR, it should inform the body about its annual expenditure on refugees and gain its rightful place as an important donor country.

India should keep its options open to avail itself of advisory services or any other assistance offered by the UNHCR to deal with refugees from Bangladesh, particularly for repatriation or third-country settlement. The UNHCR’s involvement may also help in preventing a further influx of refugees because its first priority has always been to engage with the country of origin to create conditions for the return of refugees that in turn help to prevent further outflow. Furthermore, before refugee status is granted to any Bangladeshi immigrant, the individual’s nationality will have to be verified, and the UNHCR may be helpful in that process. The UNHCR will be particularly effective because Bangladesh accepts the UNHCR’s assistance in the repatriation of Rohingya refugees to Myanmar.

Similarly, India may also consider availing itself of assistance from the IOM, which could act as a neutral party in the joint verification mechanism for assessing Bangladeshi immigrants’ status.

Conclusion: Action More Likely Now Than Ever Before

While the problem of illegal immigration from Bangladesh has existed for decades, it is generally expected that the National Democratic Alliance (NDA) government in India will soon initiate concrete steps to tackle the problem in a holistic and transparent manner. This was one of the issues that the NDA vowed to resolve in its 2014 parliamentary election campaign.

And in its recent state assembly election campaign in Assam and West Bengal, the Bharatiya Janata Party (BJP), which leads the NDA coalition, acknowledged this problem as an important issue. Its resounding victory in Assam has raised the hope that this issue will at last become a priority.

The prospects that illegal Bangladeshi immigration in India will get due attention and that a lasting solution will emerge are better now than ever before.

Sanjeev Tripathi is a former head of the government of India’s Research and Analysis Wing.