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
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
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
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
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
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
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
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:
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.
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.
Even to use the toilet facility detainees have to seek prior permission, which
is refused sometimes.
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
No regular visitation rights are available for the relatives of the detainees.
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).
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.
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
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
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
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:
AI Lawyers Forum for Civil Liberties & Anr. vs. Union of India & Others,
Writ Petition (Civil) No. 125 / 1998, Supreme Court of India.
S. Sonaval vs. Union of India, Writ Petition (Civil) No. 131/ 2000,
Supreme Court of India, (Seeking repeal of the IMDT Act, 1983).
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
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).
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,
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).
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).
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
All raids, arrests and detention to be strictly in accordance with the law and
guidelines laid down by the Supreme Court of India.
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.
The Illegal Migrants (Determination by Tribunals) Act, 1983, to be extended to
Delhi and other states.
That the night shelter and wedding hall at Shastri Nagar, Delhi, presently being
misused as a place of detention, be vacated immediately.
Establish and administer a detention centre in accordance with national and
That documents issued by state and central government agencies be regarded as
valid documents of citizenship.
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.