South Asian Experiences of the Right to Return

Paula Banerjee and Ranabir Samaddar

Refugees enjoy very few rights but one of the most intrinsic rights for a refugee is the right to return. Although much debated internationally the right to return is most clearly enshrined in the 1966 International Covenant on Civil and Political Rights (ICCPR) under its provisions on the right to freedom of movement (Article 12.4) which says that No one shall be arbitrarily deprived of the right to enter his own country. But this right has often proved to be a chimera. This paper will explore South Asian experiences of displaced peoples right to return. On the basis of three case studies the paper will portray that from its inception South Asian states have denied displaced people the right to return.In fact it has acquired nation form on the basis of such denials.
Perhaps the first group of people whose right to return was denied by a South Asian state were the Indian emigrants who travelled abroad in the eighteenth and nineteenth centuries to work as plantation labourers. All through the nationalist period the fate of these labourers in their country of domicile was a rallying point for Indian leaders to portray the dark side of foreign rule. There was constant reiteration that they state was responsible for all the people who were born in India. Yet during the legislative assembly debates in 1944 the leaders came to a consensus that these émigrés rightfully belonged to their country of domicile and not in India. Unlike nationalists during the colonial period, the leaders of the post-colonial State formation project no longer looked forward to the return of the emigrants who were slowly being considered as foreigners.
South Asian independence was accompanied by a blood bath.The partition of India and Pakistan resulted in two million deaths and about 15 million people were displaced. Most of the refugees were lucky enough to get domicile and often citizenship in their country of domicile. Yet problem arose over the issue of return. In peoples memory their Desh (country) was where they were born. But once displaced they did not have the right to return even when they so desired. South Asian states passed legislations whereby property of the displaced were confiscated by the state and treated as enemy property. So the home that they wanted to go back to remained only in their own imagination.
One often hears the argument that because partition refugees have got an alternate citizenship they have lost the right to return. In South Asia there are however, other groups of refugees who remain as stateless people and yet they are denied the right to return. This paper will discuss two such groups of refugees: the Chakmas (Jumma people) and the Bhutanese. The Chakmas form part of the great Tibeto-Burman language family. The jungles of the Chittagong Hill Tracts (CHT) are home to several such Tibeto-Burman tribes, among whom Chakmas and Marmas are the largest and they are collectively called the Jumma people. The 1935 Government of India Act defined the hills as a “Totally Excluded Area”, taking it out of Bengal’s control. The first political blow suffered by the Chakmas was when their territory was placed within East Pakistan although they wanted to remain within India. During the 1971 war for Bangladesh’s liberation, the CHT population backed the Mukti Bahini against the Pakistani army. The following year, Manobendra Larma, who had been elected to the national parliament from the Hill Tracts, called on Sheikh Mujibur Rahman with a delegation in order to place Chakma concerns on the new nation’s political agenda. As it became clear that Shiekh Mujibur and the new establishment he represented were in no mood to listen, Mr Larma set up the Jana Sanghata Samiti as a political group, and later, its armed wing, the Shanti Bahini. The Jumma people have been consistently displaced from the CHT by the machinations of first the East Pakistan government and then the Bangladesh state. In 1964 when the Kaptai Dam was built over 30,000 development refugees cane to the Lushai and Cachar Hills in India because the East Pakistani government refused to pay them any compensation. Later in the 1970s and 80s the CHT became the site for enormous violence and the Bangladeshi government began its draconian policies to contain any protest whereby over 80,000 Jumma people were displaced. Repatriation talks between the Bangladesh authorities, the Indian Government and the Chakma leadership have continued over the past many years and an accord was signed in 1997 but yet the Chakmas could not return. Those who returned found their land taken by Bengali settelers and so they could not be resettled and many became refugee for another time. The present Bangladesh government is ambivalent about its attitude to Chakma refugees and so many, who are remaining in India have no hope of going back.
In the 1970s and 1980s, the Bhutanese government introduced a series of repressive citizenship laws and “Bhutanization” policies that focused on the political, economic, and cultural exclusion of ethnic Nepalese living in southern Bhutan. The Citizenship Acts of 1977 and 1985 included several provisions permitting the revocation of citizenship. The government began enforcing the 1985 Act in a discriminatory manner through a 1988 census, resulting in the mass denationalization of thousands of Bhutanese of Nepali origin in violation of international human rights law. In the early 1990s, the Bhutanese government crushed resistance by ethnic Nepalese and others who protested against the policies through large public demonstrations and called for a multi-party democratic system. The government closed schools and suspended health services in southern Bhutan. Members of the Bhutanese police and army imprisoned, raped, and tortured many of those who were directly, indirectly, or incorrectly presumed to be associated with the demonstrations. Government forces also destroyed houses and forced many ethnic Nepalese off of their lands. International NGOs began operations to aid the Bhutanese refugees, and in 1991, the government of Nepal and UNHCR established refugee camps. By mid-1994, approximately eighty-six thousand refugees resided in the camps. Since then many of these people have been agitating so that the international refugee regime recognise their right to return. Only recently the Government of Bhutan and the Government of Nepal have agreed to discuss the repatriation of some refugees but their terms of reference are such that it will deny the right to return to the overwhelming majority.
The paper will discuss these cases and try to analyse what makes the right to return a chimera. It will bring in this context the need for a political study of places and communities in violent South Asia. Such a study will show the gap between how we live and what we idealise, the gap that is a paradox, produced by the most extra ordinary juxtaposition of nationalising polities by fictive ethnicities, a homogenous citizenship, and the claims to pluralism, democracy, and accommodation. Which then is South Asia’s political history? How is this history predicated by aliens, half-citizens, exiles, refuge, temporary shelters where citizens pass away their lives, illegal immigrants, - in short, the non-state persons who are beyond the pale of citizenship rights, and who are not even the proper subjects of the international law on non-state persons? The focus in any discussion on the right to return of citizens expelled has to be thus on the need to move away from the classical theories of sovereignty, democracy, State, and citizenship, and take the exile, the alien, the displaced (both internally and trans-border), and the half-citizen as the central figure of the politics in South Asia, the figure who is with us like the eternally accompanying shadow, so normalised that we forget its existence which we have taken for granted. In this physical milieu of expulsion, de-enfranchisement, and nationalisation, the right to return is at once the most crucial question and the most hallucinatory claim.
The main question simply will be: Can we realise this right in the present state system? What can be the juridical rules of a right to return that nullifies the right to expel? And what can be the possible politics where accommodation can take the place of marginalizing places, names, communities, bodies, and existences? In a situation where expulsion of peoples is the norm rather than being an exception, where the pure space of exception has got to be de-naturalised, that is to say be returned to its status of being an exception, what can be the politics of an exile?