Refugees And Their Legal Status : A Study With Reference To Bangladeshi Migrants

1. Introduction
Indias status as a preferred refugee haven is confirmed by the steady flow of refugees from
many of its subcontinental neighbours as also from elsewhere. India continues to receive them
despite its own over-a-billion population with at least six hundred million living in poverty with
limited access to basic amenities. The issue of migration and refugees is considered so sensitive
that states have often linked it with their sovereignty, independence and even existence. There
are numerous aspects pertaining to refugees which are of major importance both to India, as a
country and to the refugees, particularly in the context of law enforcement.
The endless flow of migrants from erstwhile East Bengal, later East Pakistan and now
Bangladesh to India has generated a range of socio-political, economic, ethnic and communal
tensions in India; simultaneously it has also embittered the bilateral relations between the two
countries. In such situation it becomes unpreventable to look over the issue so that a possible
solution may emerge to the problem of refugees.
The Indian legal framework has no uniform law to deal with its huge refugee population, and has
not made any progress towards evolving one either; India chooses to treat incoming refugees
based on their national origin and political considerations, questioning the uniformity of rights
and privileges granted to refugee communities.

Refugees And Their Legal Status : A Study With Reference To Bangladeshi Migrants

1.1 A Contextual Outlining

The present project report titled Refugees And Their Legal Status : A Study With Reference To
Bangladeshi Migrants mainly highlights the issue of status of refugees and migrants in India. It
stresses on the point how refugees are to be treated different from foreigners and other migrants
when it comes to the definition of refugees.
Moreover, with special reference to the Bangladeshi refugees, this project report highlights the
reasons behind the migration of refugees from bangladesh specifically, rather than other
neighboring country of India, in large numbers and the problems caused due to such enormous
migration rates.

1.2 Objectives
The objectives sought to be formalized by this Project are as follows:

To study the meaning and definition of the term Refugee and distinguish it from

migrants and a few other terms used for foreigners.

To determine the status of refugees as per the legal framework of India,
To know the historical emergence of the problem of refugees particularly from

Bangladesh.
To study the reasons behind such large migration of Bangladeshi population to India
specifically.

1.3 Scope of the Study

This study in general contains the meaning and definition of the term Refugee and their legal
status in India. The whole study confines to the reasons that led to migration of people to India in
large numbers from its neighboring countries with special focus to the nation of Bangladesh.
Moreover, the study in adiition to highlighting the reasons behind such migration also clarifies
how the refugees are protected by law in India as per certain provisions of the Indian
Constitution.

1.4 Methodology of Study

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Refugees And Their Legal Status : A Study With Reference To Bangladeshi Migrants
A descriptive analytical method has been employed to carry out this study. The study is based on
secondary sources of data like those of books, articles, internet etc.

1.5 Organisation of the Study

This Study has been mainly organized into 4 sections. The first section deals with the meaning
and definition of the term Refugee. The second section explains the status of refugees in India
according to its legal framework with also highlights the constitutional provisions of India with
regard to the same. The third section deals with the international agreements entered into by
India for the protection of its refugee population. The fourth section specifically highlights the
disputes between the India and bangladesh and the reasons behind the emergence of the issue of
migration of refugees to India from Bangladesh in particular.

Refugee : Definition of the term

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Refugees And Their Legal Status : A Study With Reference To Bangladeshi Migrants
The term Refugee has a particular meaning in international law and its legal definition is laid
down in the United Nations 1951 Convention relating to the Status of Refugees 1 and its 1967
Protocol.2 Article 1 para. 2 of the 1951 Convention defines the refugee as A person who owing
to well founded fear of being persecuted for reasons of race, religion, nationality, membership of
a particular social group or political opinion, is outside the country of his nationality and is
unable or, owing to such fear, unwilling to avail himself of the protection of that country.
However, the Indian legal framework has no uniform law to deal with its huge refugee
population, and has not made any progress towards evolving one either; until then, it chooses to
treat incoming refugees based on their national origin and political considerations, questioning
the uniformity of rights and privileges granted to refugee communities.
Indeed, the National Human Rights Commission (NHRC) has submitted numerous reports
urging the promulgation of a national law, or at least, making changes or amendments to the
outdated Foreigners Act (1946), which is the current law consulted by authorities with regard to
refugees and asylum seekers. The primary and most significant lacuna in this law is that it does
not contain the term refugee; consequently under Indian Law, the term foreigner is used to
cover aliens temporarily or permanently residing in the country. This places refugees, along with
immigrants, and tourists in this broad category, depriving them of privileges available under the
Geneva Convention.3
The current number of refugees and asylum seekers in India stands at approximately 205,764 as
supported by the latest figures from the United Nations High Commissioner of Refugees

1 J.Fitzpatrick, Revitalising the 1951 Refugee Convention, Harvard Human Rights Journal, vol. 9
(1996), pp.229-53.
2 Pirkko Kourula, Broadening the Edges : Refugee Definition and International Protection
Revisited (Hague, 1997)

3 The 1951 Convention Relating to the Status of Refugees and the 1967 Protocol, "The 1951 Geneva
Convention," UNHCR-Public Relations Section, http://www.unhcr.org/home/PUBL/3b5e90ea0.pdf.
Accessed on 10th feb,2016.
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Refugees And Their Legal Status : A Study With Reference To Bangladeshi Migrants
(UNHCR).4 According to these sources, new asylum seekers for 2015 numbered about 5,381 in
contrast to a very small no. of departures from the country.
Reason for the large number of refugees in India
The circumstances underlying the exodus of refugees from their countries of origin vary from
political persecution in the case of the Chin refugees of Myanmar to civil war with the
community of Sri Lankan Tamils caught between the Tamil nationalists and the Sinhalese
government. However, it is clear that all these refugee populations deserve their basic human
rights and the assistance that can be afforded by the Government of India.
Refugee and the Indian Legal Framework
To define the word refugee in Indian legal terms is theoretically not possible since neither the
Foreigners Act (1946) nor its amendments or additions, contains or defines the term. However,
this study shall consider the definition propounded by a commission chaired by Justice P N
Bhagwati in 1997,5 whose task was to construct a uniform national law on refugees. Although the
bill was never tabled in Parliament.
Any person who is outside his/her Country of Origin and is unable or unwilling to return to, and
is unable or unwilling to avail himself /herself of the protection of that country because of a
wellfounded fear of persecution on account of race, religion, sex, ethnic identity, membership of
a particular social group or political opinion owing to external aggression, occupation, foreign
domination, serious violation of human rights or events seriously disrupting public order in
either part or whole of his/her Country.6
Refugees encounter the Indian legal system on two counts. There are laws which regulate their
entry into and stay in India along with a host of related issues. Once they are within the Indian
4 www.unhcr.org accessed on 11th february 2016
5 Drafted under the auspices of the Regional Consultations on Refugees and Migratory Movements in
South Asia initiative in 1995, with Justice P N Bhagwati as the Chairperson of the Drafting Committee of
the India-specific version of the national law on refugee protection.
6 Rajeev Dhavan, Refugee Law and Policy in India (New Delhi: PILSARC, 2004), p. 156.
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Refugees And Their Legal Status : A Study With Reference To Bangladeshi Migrants
territory, they are then liable to be subjected to the provisions of the Indian penal laws for various
commissions and omissions under a variety of circumstances, whether it be as a complainant or
as an accused. These are various constitutional and legal provisions with which refugees may be
concerned under varying circumstances.7

Constitutional Provisions
The Supreme Court of India has consistently held that the Fundamental Right enshrined under
Article 21 of the Indian Constitution regarding the Right to life and personal liberty, applies to all
irrespective of the fact whether they are citizens of India or aliens. The various High Courts in
India have liberally adopted the rules of natural justice to refugee issues, along with recognition
of the United Nations High Commissioner for Refugees (UNHCR) as playing an important role
in the protection of refugees. The Honble High Court of Guwahati has in various judgements,
recognised the refugee issue and permitted refugees to approach the UNHCR for determination
of their refugee status, while staying the deportation orders issued by the district court or the
administration.
n the matter of Gurunathan and others vs. Government of India8and others and in the matter of
A.C.Mohd.Siddique vs. Government of India and others,9 the High Court of Madras expressed its
unwillingness to let any Sri Lankan refugees to be forced to return to Sri Lanka against their will.
The Supreme Court of India has in a number of cases stayed deportation of refugees.In the
matter of Malavika Karlekar vs. Union of India,10 the Supreme Court directed stay of deportation
of the Andaman Island Burmese refugees, since their claim for refugee status was pending
determination and a prima facie case is made out for grant of refugee status.
7 List I (Union List) Entry 14 - confers on the Parliament exclusive power to make laws with respect to
entering into treaties and agreements with foreign countries and implementing treaties, agreements and
conventions with foreign countries.
8 WP No.S 6708 and 7916 of 1992
91998(47)DRJ(DB)p.74.
10 Crl. WP No.243 of 1988
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Refugees And Their Legal Status : A Study With Reference To Bangladeshi Migrants

Refugee Status in India

As there is no separate law to deal with refugees. For the same reason, cases for refugee status
are considered on a case-by-case basis. One of the principal elements to satisfy a claim to
refugee status is that the claimant must be genuinely at risk. Various legal tests have
developed which concern the standard of proof that is required to satisfy what constitutes being
genuinely at risk or having a genuine well founded fear of persecution. Some of these tests have
been articulated by courts in a number of countries. For e.g. In the case of ex parte
Sivakumaran.11The judgement suggested that the test should consider whether there is an
evidence of a real & substantial danger of persecution.
In the case of India, the decision as whether to treat a person or a group of persons as refugees or
not is taken on the merits and circumstances of the cases coming before it. The Government of
India (GOI) may be often seen as following a policy of bilateralism in dealing with persons
seeking to be refugees. For example, Afghan refugees of Indian origin and others, who entered
India through Pakistan without any travel documents, were allowed entry through the IndoPakistan border till 1993. Most of the refugees had entered India through the Attari border near
Amritsar in Punjab. Subsequent to 1993, the Government altered its policy of permitting Afghan
refugees freely into India.
In order for a claimant refugee to put forward a genuine claim for determination of refugee
status, it is crucial to accumulate all the documents that the claimant can muster in support of the
grounds of persecution or fear thereof resulting in flight from country of origin. The
documentation may be in the form of an identity card of employment with some governmental
agency in the country of origin, or an identity card indicating membership of a particular group.
Production of the same would be evidence of a claim of involvement with particular groups and
would also serve to prove the claimants identity. Thus, circumstantial evidence that persons
similarly situated to the claimant are at risk in the country of origin, is essential.

11 Sivakumaran, House of Lords Decision (1988) 1 ALL ER 193.

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Refugees And Their Legal Status : A Study With Reference To Bangladeshi Migrants

International Commitments by India

Even though India is not a signatory to the 1951 Convention on refugees and also the 1967
Protocol, India is a signatory to a number of United Nations and World Conventions on Human
Rights, refugee issues and related matters. Indias obligations in regard to refugees arise out of
the latter. India became a member of the Executive Committee of the High Commissioners
Programme (EXCOM) in 1995. The EXCOM is the organisation of the UN, which approves and
supervises the material assistance programme of UNHCR. Membership of the EXCOM indicates
particular interest and greater commitment to refugee matters.
India voted affirmatively to adopt the Universal Declaration of Human Rights which affirms
rights for all persons, citizens and non- citizens alike. India voted affirmatively to adopt the UN
Declaration of Territorial Asylum in 1967. India ratified the International Covenant on Civil and
Political Rights (ICCPR) as well as the International Convention on Economic, Social and
Cultural Rights (ICESCR) in 1976. India ratified the UN Convention on the Rights of the Child
in 1989. India ratified the Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW) in 1974.

India and Bangladesh : Refugee and Migration issue

Before its birth in 1971, Bangladesh once was an integral part of a single undivided India and
constituted a part of Bengal province. Since that time People have been moving from one part of
the country to the other for social, economic (trade), cultural and ethnic reasons. But this
movement became a problem only after India was divided in 1947 and this part became a
province of Pakistan and was known as East Bengal till 1956 and as East Pakistan from 1956 to
1971.

Refugees And Their Legal Status : A Study With Reference To Bangladeshi Migrants
India shares 4,095 kilometer border with Bangladesh which is the longest among all its
neighbours.An area of 6.5 km has not been demarcated yet. These historical, geographical, socioeconomical and cultural backgrounds have caused a plethora of problems between these two
countries among which illegal migration from Bangladesh to India and a large number of
Bangladeshi refugees staying in India is the biggest issue of conflict.
During the last three decades illegal migration from Bangladesh to India are going on unabated.
In Bangladesh era, Hindus are coming as usual like in days of Pakistan due to religious
persecution and political pressure but a new feature also started emerging as people from
majority segment (Muslim) for different reasons and purposes started coming to West Bengal.12

Emergence of Migration and refugee problems

he problem of illegal migration at least into Assam was created by the British East India
Company, who first brought the Bengali Muslim peasant from East Bengal to Brahmaputra
Valley in the beginning of the 19th century. Assam as the frontier of India during the prepartition period had attracted millions of settlers from other regions of the subcontinent.
Partition of Bengal of 1905 which took place under the British strategy of Divide and Rule may
be considered as one of the most important events in the context of forced migration in todays
Bangladesh.
The second important event which led to this problem was the partition of India and birth of
Pakistan in 1947. Though Jinnah in his first speech to the constituent assembly of Pakistan stated
that henceforth there would be no difference between Muslims and Hindus as all of them would
be equal citizens of Pakistan, this was not accepted by a vast majority of the ruling elite and after
his death, the central leadership of Pakistan provoked massive communal riots and disturbances
throughout East Bengal in 1950. Thus partition of India in 1947 and subsequent communal riots
caused massive migration of Hindus from erstwhile East Bengal (now Bangladesh) to India.

12 Pramanik, Bimal (2005), Illegal Migration from Bangladesh- A Case Study of West Bengal,
Dialogue, 6 (3): p. 43
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Refugees And Their Legal Status : A Study With Reference To Bangladeshi Migrants

Main disputes between India and Bangladesh

According to one estimation about 250,000 Hindus and as many Muslims migrated to India
every year from Bangladesh (earlier East Pakistan) since 1951.13
The problem of Chakma refugees is one of the important disputes. The huge hydroelectric
project in Chittagong Hill Tracts that is popularly known as Kaptai Dam (Karnaphuli MultiPurpose hydro-Project) inundated 253 square miles, including 10 square miles of reserved forest.
Nearly 54,000 acres of plough land that was about 40 per cent of the districts total cultivable
area was submerged under it.

14

Homesteads of 18,000 families and approximately 100,000

people were displaced from their hearths and homes of which 70 per cent were chakmas.
Thousands of these displaced people migrated into sparsely populated regions of Mizoram,
Tripura, Assam Arunachal Pradesh. Perhaps 40,000 environmental refugees migrated to India,
where today, they live in the Arunachal Pradesh of northeast India. 15 They are without citizenship
rights in either country.

Main Causes behind Migration

13 Khosla, I. P. (2005), Bangladesh-India Relations, [Online:web] Accessed 10 feb 2016
URL:http://www.southasianmedia.net/Magazine/journal/7_bangladeshindia_relations.htm
14 Samad, Saleem (2004), Refugees of Political Crisis in Chittagong Hill Tracts, in Omprakash
Mishra (ed.) Forced Migration in the South Asian Region: Displacement, Human Rights and Conflict
Resolution, Kolkata: Centre for Refugee Studies, Jadavpur university, in collaboration with Brookings
Institution- SAIS Project on International Displacement, Washington DC and Manak Publications Private
Limited, p. 289-290.
15 ibid
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Refugees And Their Legal Status : A Study With Reference To Bangladeshi Migrants
Migration has become a continual phenomenon in India-Bangladesh relations. There are many
social, economical, political, environmental and ethnic reasons that are responsible behind this
migration from Bangladesh.
After the independence of Bangladesh, the new governments tried to suppress the demand for
ethnic identity placed by the indigenous people of CHT region by inhabiting outsider Bengalis in
the hilly region. The Hill people opposed this action which took shape of a movement for more
administrative autonomy. As a consequence the Government deployed military in the region to
protect the Bengali settlers against the Hill people. This led to the collapse of Hill peoples
security, which in turn created a cause for the Shanti Bahini to carry out armed insurrection
against the settlers and military. To counter this insurgency the military and para-military forces
often resorted to unwarranted arrests, looting, rape, torture, and other forms of physical and
mental violence, all directed against the Hill people. 16Organised killings or massacres against the
Hill people also took place in order to silence them. All this forced a large number of
Bangladeshis to migrate for their survival.
Soon after the liberation war it became clear that the secular identity of Bangladesh is not going
to last long. 15 years of military rule gave a firm base to the process of Islamization in
Bangladesh. Islam has reemerged as one of the main structural components of Bangladesh
Nationalism.17 This has made the non-Muslims of Bangladesh secondary citizens in their own
country. The government has also supported the antiminority activities in the country to drive out
the minorities from there.
There are a number of people who migrate from Bangladesh for economic reasons in search of
employment and better chances of livelihood and better economic benefits in the receiving
country. The cause is that there is a lack of employment in Bangladesh and the level of living is
also very low.

16 Report of the Chittagong Hill Tracts Commission, (1991), Life is not ours: Land andHuman Rights in the
Chittagong Hill Tracts, Bangladesh, Copenhagen: IWGIA, p.14.

17 Samaddar, Ranabir (1994), Bangladesh Nationalism: A Thing of the Past?, in S.R. Chakravarty
(ed.) Society, Polity and Economy of Bangladesh, New Delhi: Har-Anand Publications, p. 51-61
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Refugees And Their Legal Status : A Study With Reference To Bangladeshi Migrants
Natural calamities like flood, cyclone, drought are the yearly phenomena in Bangladesh. Every
year each of these events, sometimes all together inflict huge damage to the lives, properties and
the economy of the country. These natural causes also make a ground for migration from
Bangladesh.

Reasons behind migrants taking refuge specifically in India

Politicisation of migration has contributed to this problem. Some political parties used the
migrant population as their vote banks by providing them ration cards and other facilities that
could be given to Indian nationals only, i.e., land distribution. Besides this there were many
others who were interested in giving a communal color to the problem to serve their political
agenda.
Due to ethnic resemblance of the populations with similar cultural, linguistic and physical
features, migration across the border is a common and easier practice in the Indian sub-continent.
The Bangladeshi migrants who have been forced to leave their country because of communal
riots and abuses choose India because they are fascinated by the democratic and secular features
of Indian society.
Indias geographical proximity and cultural and historical background also works as a factor
behind their selection of the country for refuge
Besides this the facilities that they get in India like better healthcare, employment, etc. also
provoke Bangladeshi migrants to select India as their destination.

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Refugees And Their Legal Status : A Study With Reference To Bangladeshi Migrants

10. Conclusion
The status of refugees in India, although measured by humanitarian relief and political
recognition, has very little to do with these two factors. Minority politics is an important factor
that can be used to explain the reluctance of Indias lawmakers to move towards resolving the
issue. It is a fact that illegal immigrants have been used by vote-seeking parties to secure a
majority in the central and the state legislatures. Opportunist sections of political parties in
refugee-populated areas have tried to use these illegal immigrants as captive votebanks by trying
to regularize their stay.
The role of political motives cannot be ignored in the development of this stalemate pertaining to
the refugee population residing in India. However, since refugee protection is an international
issue, concerns like these political motives are considered less important than the threat posed by
refugees to national security and economic stability, perhaps to negate the role of political parties
in this dismal refugee situation.
The spirit and contents of the UN and International Conventions on the subject have been, by
and large, honoured through executive as well as judicial intervention. By this means, the
country has evolved a practical balance between human and humanitarian obligations on the one
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Refugees And Their Legal Status : A Study With Reference To Bangladeshi Migrants
hand and security and national interest on the other. It is in balancing these interests, which may
sometimes appear to be competing with each other, that the security and law enforcement
agencies face day-to-day challenges. If and when a separate Refugee Law for the country is
enacted, it is important that this aspect is given due consideration. It is important that security
and enforcement officials do not overlook both the legal as well as the underlying human angles
inherent in the refugee situation.

11. References

J.Fitzpatrick, Revitalising the 1951 Refugee Convention, Harvard Human Rights

Journal, vol. 9 (1996),

Pirkko Kourula, Broadening the Edges : Refugee Definition and International Protection

Revisited (Hague, 1997)

Rajeev Dhavan, Refugee Law and Policy in India (New Delhi: PILSARC, 2004),
Pramanik, Bimal (2005), Illegal Migration from Bangladesh- A Case Study of West

Bengal
Samad, Saleem (2004), Refugees of Political Crisis in Chittagong Hill Tracts
Saikal Amin (ed.) Refugees in the Modern World : A Reader (Canberra,1989)
Mary Crock, Apart from US or to Part of US? Immigrants Rights, Public Opinion and

the Rule of Law, International Journal of Refugee Law, vol.10 (1998)

Cornellis D.Jong de, The Legal Framework: The Convention Relating to the Status of
Refugees and the Development of Law Half a Century Later International Journal of
Refugee Law, vol.10(1998)

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15