Stop the Unlawful Detention of Bangladeshi Migrants

INDIA/BANGLADESH: Stop the Unlawful Detention of Bangladeshi Migrants

In May 2017, a young boy was apprehended by Border Security Force(BSF) officers in Dinajpur, West Bengal. MASUM, our partner organisation in West Bengal conducted a fact-finding mission and discovered that almost 18 months before the incident, his father had come to India, searching for a job, with the help of a middleman. The boy, all of 10 years old was taken across the border by the middleman who stated that his father was unwell. On May 30, 2017, the victim crossed the border with themiddleman and entered into Indian territory. At Hili border in South Dinajpur district, the Border Security Force personnel caught them and handed them over to the Balurghat Police Station on the same day. A criminal case was registered against the boy under S.14 of the Foreigners Act and he has been lodged in a shelter home since.

On 20 June 2017, four Bangladeshi female migrants aged between 22-55 years, were arrested by police officers in Dattapara village in Swarupnagar district of West Bengal. These women had also been taken across the border by a middleman where they stayed in the village while waiting for their relocation to their new jobs as domestic helpers, in metropolises across India. Subsequent to their arrest, the women were sent to Dumdum Central Correctional Home for 14 days, where they still remain.

These are just two recent examples of what is a lesser known situation of human rights violations occurring along border areas in West Bengal. India is home to a large number of Bangladeshi citizens, many of whom are employed as unskilled labourers in the country. At present, many migrants who attempt to cross the border are arrested and categorized as “illegal entrants” as defined by the Foreigner’s Act, 1946. It is common knowledge that many of these supposedly “illegal entrants” are actually victims of human trafficking, especially the women and children who are smuggled over the border for labour and sex trafficking. In recognition of the vulnerable status of these persons, the Government of India had taken steps to offer protection to trafficked foreign nationals. An Office Memorandum was issued in May,2012 titled “Advisory on preventing and combating human trafficking in India – dealing with foreign nationals” , in which it was explicitly stated that:

“(iv). It is seen that in general, the foreign victims of human trafficking are found without valid passport or visa. If, after investigation, the woman or child is found to be a victim, she should not be prosecuted under the Foreigners Act. If the investigation reveals that she did not come to India or did not indulge in crime out of her own free will, the State Government / UT Administration may not file a charge sheet against the victim. If the charge sheet has already been filed under the Foreigners Act and other relevant laws of the land, steps may be taken to withdraw the case from prosecution so far as the victim is concerned. Immediate action may be taken to furnish the details of such victims to the Ministry of External Affairs (Consular Division), Patiala House, New Delhi so as to ensure that the person concerned is repatriated to the country of her origin through diplomatic channels.”

Despite the issuance of such an advisory, State authorities continue to detain women and children from Bangladesh without inquiring into their status as potential victims of trafficking. The Indian state continues to punish victims of trafficking, in violation of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, which requires States to ensure that persons who have been trafficked will not be prosecuted for any violations of the law incidental to their trafficking, including immigration laws. Article 3(a) of the Protocol also defines “trafficking in persons” as the recruitment…transfer, harbouring or receipt of persons, by use of threat, force…or a position of vulnerability or the giving or receiving of benefits for the purpose of exploitation. The international obligations on the Indian state is in line with the Supreme Court’s judgment in People’s Union for Democratic Rights v. UOI( 1982 AIR 1473), which defined force as “any factor which deprives a person of a choice of alternatives and compels him to adopt one particular course of action” and forced labour as any “labour or service is compelled as a result of such force”.

At present, the apprehension of a trafficking victim and their smuggler results in both persons being charged under the Foreigners Act, 1946, for illegally entering India, which states that if an offender is a foreigner, he/she should be punished under this act and deported. This results in the criminalization of vulnerable people who have fallen prey to migrant smugglers, who often receive commissions or other benefits for recruiting foreign workers and may provide false information to migrants, coercing them to enter India illegally.

While penalising traffickers and repatriating victims of trafficking back to their home country (in these cases, Bangladesh) will help solve a part of the issue, it is in reality, only controlling the symptoms of the disease. The Indian and Bangladeshi governments must work together to examine the root causes of trafficking across the border and truly understand what drives the demand and supply of trafficked labourers. Poverty and economic reasons, along with the complex reality of family members living across the border are also reasons that can contribute to illegal entry of Bangaldeshis into India and fuel the demand for ‘agents’ and touts. Further, the low cost of labour of migrants from Bangaldesh is another ingredient in the mix.

Finally, victims of trafficking are often unaware that they are being trafficked into forced labour or that they may be contributing to something illegal. That is the sordid nature of poverty and exploitation, and it blurs the lines between choice, consent and coercion. The AHRC calls for an urgent investigation into all the cases of foreigners lodged in jails and shelter homes in India, for offences under the Foreigners Act. Any prosecutions pending against these women, children and others like them must be instantly withdrawn in compliance with international law. Cross border agencies and security forces in both countries, along with the police officials in border areas must make it a priority to identify victims of trafficking and repatriate them.

An independent study must be undertaken by experts from both India and Bangladesh to better understand the forces driving human trafficking and illegal migration across the Indo-Bangaldesh border so as to serve the poor and vulnerable in the best way possible. India and Bangladesh have a shared history, that is long and complicated and if the leaders in the two nations are willing and committed, this problem might yet see the light of a lasting, humane solution.

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