The issue of overstaying foreigners: Detection, Identification and Deportation

Introduction

“Prevention is the need of the hour, for when it is too late, our generations shall hold us accountable”

The geographical landscape of India exposes it to a variety of lacunas that need to be guarded in order to block any infiltration.[1] Our country is surrounded by water bodies and shares borders with countries that do not tend to play an active role in maintaining regional stability. The Indian subcontinent is one of the most volatile regions of the world.[2] It includes territorial conflicts, aggressive non-state actors and fluctuating geo-political situations in neighbouring countries that cause a refugee crisis. It is becoming an increasingly challenging task for law enforcement agencies to maintain peace and stability under such circumstances. Therefore, it is important for the executive to, as a matter of policy, try and minimize internal disturbances and eliminate any factor that may cause them. While India’s sovereignty is constantly threatened due to external aggression, it is important that any force which attempts to break the socio-political peace within the country, must be eliminated. A major factor that has been examined to have very dangerous long-term consequences, is illegal immigration in the North Eastern and eastern banks of India. The topic has gained political momentum and has polarized the country on the same. However, this article shall ignore and be devoid of any political orientation and shall only address the issue through the lens of national security and the legal framework to achieve maximum safety within the territory of India.

Background

The constitution of India has been appreciated as one of the finest documents to have been drafted and put in force in the era of its enforcement. It promised equality to citizens and persons and its directive principles supported modern ideologies that were driven by social ideas ahead of its time. So strong is the sentiment with respect to the aforementioned principles, that to some extent, we fail to strike the right balance between rights and duties. While we try to enable the enforcement of rights, we ignore the fact that there is a huge collateral cost attached to their enforcement. This raises the fundamental question i.e., to what extent must the rights be available to be enforced at the cost of the state. In the context of illegal immigration, to what extent must we ignore the infiltration on humanitarian grounds and compromise national security. The very constitution that carries the gift of a plethora of rights, also vests the state with the entitlement, power and duty to protect its borders. The protection is from forces on both sides of the border. India has seen immigration throughout its existence and continues to witness it till today.[3] The country’s partition witnessed mass migration and violence. The Bangladesh liberation war of 1971 was premised on the fact that India had to accommodate refugees from Bangladesh. Subsequent to this, we see major demographic changes in the state of Assam that has had its culture and identity under threat for over 5 decades and the recent exodus of Rohingyas from Myanmar has caused a major concern for our border authorities. When we analyze the complex geopolitical situation in and around India, the question that arises is that, to what extent are we obligated to safeguard refugees and migrants that escape the brunt of political or religious violence from jurisdictions to which India does not hold any accountability.

Legal Framework

The highest possibility of having a heavy influx of migrants is that from a refugee crisis. The politics in India calls for government in power to ensure refugee status to these migrants and safeguard their humanitarian rights. The fundamental problem with this demand is that the term refugee has not been defined under any law in India and therefore it does not render any possibility attaching a refugee status. However, the central government in 2011 established a Standard Operating Procedure which were guidelines for the state governments to follow in case their borders experience an influx of unidentified immigrants.[4] Nevertheless, these guidelines cannot be treated as a substitute for a national refugee law in the country. The procedure calls for verification of the individual’s background and then be allotted with an LTV (Long Term Visa). The issue that arises at this stage is that, there is no way to ensure efficient screening and verification of these individuals to an extent that the authorities are convinced that they would not pose a threat to India’s national security. India is bordered with countries that are home to multiple terrorist organizations and allowing immigrants with a weak verification procedure, makes our citizens soft targets for violent forces. Therefore, the only way to safeguard Indian territory is the principle of ‘prevention’. Assuming efficient enforcement of the aforementioned procedure, the question of India’s legal liability with respect to these immigrants arises.

The matter of allowing or not allowing them in India relates with the matter of policy and a burning subject of political debate. Therefore, we choose to move a step further and answer the question that does India have the right to deny entry to safeguard her national interests? The answer is yes, because India is not a signatory to the United Nations Convention on the status of Refugees, 1951 and neither the 1967 protocols.[5] Furthermore, the most popular allegation against the European countries that was raised at the time of the Arab spring emanating from the Syrian crisis was that when they did not allow refugees within their territory, they were in violation of the principle of non-refoulment.[6] The principle has been established as an integral part of customary international law and therefore is binding on all states irrespective of ratification. However, that premise could also be contended because Customary international law has two essential ingredients i.e., state practice and opinion juris, where opinio juris plays the role of state consent and absent that even customary international law stands to be non-binding.[7] However, even if we were to take the same argument at its best case and apply it to the Indian context. In light of the Rohingya crisis the geographic route taken by the Rohingyas is from Myanmar through Bangladesh and then to India. The principle of non-refoulment states that a country, when encountered by refugees cannot ask them to return to the country they are fleeing from due to any reason. In the present matter, when Rohingyas knock at India’s door, they arrive from Bangladesh and not Myanmar, therefore India is well within her rights to direct them back to Bangladesh because it is not the country they are fleeing. Hence, Rohingyas coming through Bangladesh are not refugees per se. They are indeed illegal migrants.    

Mode of Detection and Identification

A part of the EU Action plan against migrant smuggling was to establish a network of inter-state liaison officers who worked in co-ordination to troubleshoot issues concerning illegal immigration.[8] It improved exchange of information with respect to migration and allowed officers to trace and detect them in a more efficient manner. A humble suggestion includes the idea that all states bordering with foreign jurisdictions shall be equipped with such a network. These states clubbed with all cities where India’s economic interests are vested (such as Mumbai, Bangalore, Chennai etc.) shall be facilitated by such officers and a Counter Immigration and Intelligence Task Force that could execute their orders. The burden to counter cross border infiltration, detection and identification cannot be put solely on the local police of the concerned states for their broad mandate reduces their efficiency substantially.    

The Pernicious Impacts

The impact of illegal immigration can be studied through news reports, police records and experienced when we casually surf through the territory of Assam. Lt. General S.K. Sinha who had served as the Governor of Assam made shocking revelations about the alarming demographic changes in Assam.[9] Furthermore, we have seen lack of political intent as a major contributing factor to the Plight of the immigration crisis. In the case of Sarbananda Sonowal vs Union of India decided on 12 July, 2005,[10] the Supreme Court of India acknowledged that some political parties had been encouraging and even helping illegal migration with a view to building their vote banks. Political activism acting as a pull factor can be extremely counterproductive in resolving the issue at hand. This lack of political motive can be successfully proved when we examine the IMDT (Illegal Migrants Determination by Tribunals) Act. The Citizenship Act dealt with the status of citizenship of individuals in Assam from the year 1966 to 1971. From 1971 the parliament introduced the IMDT Act which was meant to speed up the process of immigration trials in the state of Assam due to the grave situation of their changing demographics. However, the legislation defeated the very purpose for which it was framed because it put a greater burden on the state to prove the illegal status of the migrant as against the opposite being the case when it came to the Foreigner’s Act. Therefore, the Apex court had to repeal the Act to free the state from an anchor that seemed to be defeating the very purpose for which it was legislated.[11]

Concerning the Rohingya crisis in the backdrop of our state having no information on their backgrounds and their individual identity, we must not turn a blind eye to what is obvious. Multiple reports of internationally recognised media houses have reported that the Rohingya community has been involved in acts of violence previously. While we must stand strongly against generalisation of individuals under the evil of some, we cannot ignore the fact that even a few of those elements can cause substantial harm to India’s sovereignty.

The aforementioned illegal immigrants have been seen to have notorious intentions as they try to establish themselves as Indian citizens through Aadhar Cards, Passports, etc. by means of forged documents.[12] Not only does this defeat the very purpose of Indian citizenship and the Foreigner’s Act, but also makes India vulnerable to multiple threats. These immigrants are used as decoys by terrorist organizations harboured by our neighbours to hurt India’s interests through strategic mobilisation. These clusters of immigrants create law and order situations in sensitive areas such as Jammu and Kashmir, Delhi etc.[13] Subsequent to this, they are also found involved in human trafficking, gold smuggling and labour trade.

Conclusion

Article 14 and 21 of the constitution are applicable to persons i.e., they are available to citizens as well as non-citizens. While we argue that humanitarian grounds must be taken into account, we must not forget that humanitarianism must not be promoted at the cost of a country or we might see a state of emergency within our borders because we overdid our part to help others from their emergency crisis. The government rightly pointed out in an affidavit to the Supreme Court that Foreigners Act, 1946, conferred upon the government the power to expel foreigners from India and that it vests the Central Government with absolute and unfettered discretion, and there does not exist, any provision fettering this discretion in the Constitution. Since, the aforementioned statement is true, the converse of this affidavit is also true. This means that if the government has unfettered discretion to expel, then the government also must have unfettered discretion to restrict/allow an individual’s entry into Indian territory. The Supreme Court in its Judgement in the case of Assam Sanmilita Mahasangha & vs Union Of India, decided on 17 December, 2014 reiterated the need to complete the fencing of the India-Bangladesh on an immediate basis citing the horrific consequences that might follow in the upcoming years. To conclude, we note that the Indian Government is equipped with the legal as well as strategic tools to avert the immigration crisis. It all boils down to political intent. We might have the right to take chances with our future with the gamble of allowing elements in our society we know nothing about, but we have no right to play that gamble with our generation to come for they would be facing the brunt of unforeseen consequences that would be caused by their forefathers living today.

This article is authored by Mr. Rahul Kumar and Ms. Manya Gupta, students at Institute of Law Nirma University, Ahmedabad.

[1] Project Report on Problems of Border Areas in North East India: Implications for the Thirteenth Finance Commission, Department of economics Dibrugarh University;

[2] Mohanty, S. K. (2009). SOUTH ASIAN CONFLICTS: POTENT SOURCES AND THEIR SIGNIFICANCE. The Indian Journal of Political Science, 70(4), 1201–1211;

[3] Oommen, T. K. (1982). FOREIGNERS, REFUGEES AND OUTSIDERS IN THE INDIAN CONTEXT. Sociological Bulletin, 31(1), 41–64. http://www.jstor.org/stable/23619721

[4] KHADRIA, B., & KUMAR, P. (2015). Immigrants and Immigration in India: A Fresh Approach. Economic and Political Weekly, 50(8), 65–71.

[5] Bhattacharjee, S. (2008). India Needs a Refugee Law. Economic and Political Weekly, 43(9), 71–75.

[6] Tagliapietra, A. (2019). The European Migration Crisis: A Pendulum between the Internal and External Dimensions. Istituto Affari Internazionali (IAI).

[7] North Sea Continental Shelf, Germany v Denmark, Order, [1968] ICJ Rep 9, ICGJ 149 (ICJ 1968), 26th April 1968, United Nations [UN]; International Court of Justice [ICJ]

[8] REGULATION (EU) 2019/1240 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, of 20 June 2019 on the creation of a European network of immigration liaison officers.

[9] Sethi, R., & Choudhury, A. (2018). Citizenship Determination Processes in Assam: The National Register of Citizens (NRC) and Beyond. Institute of Peace and Conflict Studies.

[10] Sarbananda Sonowal (Ii) v. Union of India, Supreme Court Of India (Dec 5, 2006)

[11] Sayta, P. (2006). Sarbananda Sonowal v. Union of India, A.I.R. 2005 S.C. 2920. Student Bar Review, 18(2), 95–102.

[12] Illegal migrants forged documents to become citizens; Report by Sumir Karmakar, Deccan Herald dated 29^th October, 2018.

[13] Sujata Ramachandran. (2003). “Operation Pushback”: Sangh Parivar, State, Slums, and Surreptitious Bangladeshis in New Delhi. Economic and Political Weekly, 38(7), 637–647.