Nationalising Space: Coming to Terms with Rights of Migrants

Vanita Banjan

[is at the Dept. of Politics, SIES College of Arts, Science and Commerce, Sion (W), Mumbai 400022]

The migration narrative unfolds the manner human development has transpired and mankind benefited. Migration is an age old phenomenon but the modernization paradigm hypothesized that it is the rise of industrialisation and thereby urbanisation which encouraged migration on a large scale. 1 Post industrialisation the world saw the rise of nation states and its territorial limits demarcated with rigid borders erected around ethnocultural communities residing within. Having created the territorial reality brought in tow the legal paraphernalia for naturalisation and immigration. But in this process it was forgotten that the decision to migrate was connected to the value of freedom, the right to choose where one wants to live or settle. Today all those who choose to move from one country to another are labelled as immigrants, though there is no agreement on the time one needs to spend in the other country to be identified as a migrant. Borders are today open for free flow of trade and capital but there is a barrier imposed on mobility of migrant labour, and that is the reason the matter has invoked so much deliberation world over. Though migration is a well researched topic in the North, it is only in the recent years that it is being discussed in the South, especially the South-South migration.

The nations in South Asia are comparatively young having won their independence in the 20th Century and are classified as developing nations. Comparatively India is territorially large and better off nation in the South Asian region and draws immigrants from the neighbouring states. Thus the paper focuses on the influx of illegal immigrants especially from Bangladesh. Considering the economic and environmental problems in their home country these immigrants hope to explore the opportunities in India and use their talents with the resources here and share the benefits of their labour with their families. Many of them receive patronage from political parties who use them as vote banks. Despite the media hype and mass movement against immigration there are no figures available with the Government or any other agencies on the exact number of Bangladeshi migrants in India. This ambiguity in identifying the migrants weakens the government’s position in tackling the issue. Today the matter is highly politicised and no political party is interested in resolving the matter but without fail each party tries to benefit from it either by supporting the migrants and generating a vote bank or sensitising the people against it and garnering vote on the basis of the fear so generated. Most nations treat immigrants as criminals, the paper tries to explore a golden mean between a humane approach to the undocumented migrants while maintaining the states responsibility of to its citizens and sovereignty.

Generally it is difficult to measure illegal migrants in a country but despite that it is estimated that it comprises of 10 per cent or greater of all migrants. Illegal or undocumented migration is a response to the legal restrictions at the borders, whenever the legal avenues of migration are constrained the illegal migration swells. 2 The demographic changes in the border districts of Assam and West Bengal and the corresponding clamour of various agencies including the media resulted into the much awaited action of the Central government on fencing of the border area. Crores of rupees were spent on the construction of the fences but certain areas still remain unfenced. Fencing might have reduced border crossing but has not stopped it completely. The cultural connectivity between the two nations and its citizens cannot be exterminated by artificially created fences or walls.

To understand the augmentation of undocumented Bangladeshi migrants and the violent reaction to them one has to glance in the past and trace the genesis of the problem. Since the days of partition, West Bengal and Assam has seen the onslaught of millions of refugees which aggravated during the creation of Bangladesh. India stoically sustained and supported the refugees with the hope that they would return once Bangladesh was created. . But under the Indra- Mujib treaty those who came to India before 25 March 1971(the day Bangladesh was created) were granted citizenship. 3 But the influx refused to stop that is when the borders started becoming rigid to the extent that most of it today stands fenced.

“People flee, primarily, not to wealth, but from poverty” 4. Global warning and the climate change is taking its toll in this country in the most ruthless manner. Every monsoon the flood in the Brahmaputra swallows up villages destroying homes and property creating ‘Mohfiz’. 5 Land is guzzled by the river rendering landowners as landless labourers. Thus the Bangladeshis are largely escaping from the environmental onslaught and find India as a viable alternative where land is fertile; there is a demand for cheap labour and if they manage to cross the border without getting caught they are assured of survival.

The instinct to survive forces a Bangladeshi to move but the immigration rules constitutes an obstacle. But if legal immigration is not possible there is always the alternative of entering illegally or overstaying and being harboured by relatives or friends who have come earlier. 6 As they develop entitlements in India, it becomes difficult to distinguish an immigrant from a citizen. Eventually when they start staking political claims it may undermine the legitimacy of the government and the sovereignty of the state. There are reports that few of these immigrants have won elections in some of the border districts of Assam. Secondly, most of these immigrants vote enbloc which plays a decisive role in the election of candidates to the legislative bodies.

The rise of nation state bought in tow the term of nationalism and nationality. In order to provide security it became essential to identify citizens and construct demographic regimes. Everyone was expected to have only one nationality and it would provide the individual with a measure of protection in a hostile anarchic world of nation-states. Under international law states are not required to admit aliens. But if they do, they are obliged to treat them in humane and civilized manner. Illegal migration puts the nation state in a quandary as they enter without documents or permission and once in, the receiving state is bound by the international norm of ‘non refoulement’. 7 India has no immigration policy whatsoever; hence there is much ambiguity in tackling the case of arrested migrants. When a few of those who are arrested while crossing the border with no authentic document are to be deported, Bangladesh refuses to admit them, forcing an inhuman modus operandi of ‘push back’. In case of Assam, the IMDT Act has failed to detect the illegal migrants, which is discernible by the frugal number of deportations. More over the police cannot be compelled to fritter their energy into the futile exercise of preparing cases against immigrants and on the issuance of the ‘Quit India’ notice they escape from their place of residence to unknown destinations, probably never to be caught again. The Indo-Bangla border is infested with touts, they arrange for the crossing of the borders for an amount, ensuring safe passage, in connivance with the BSF. Locals at the border area also indulge in providing hiding place for such immigrants for a day or two till it is safe for them to move on, for a cost. Over the years the network is well established and has become a matter of routine for all parties involved namely immigrants, locals, touts, BDR and the BSF.

Migration is a two way process it affects both the sending country and the receiving country. For the sending country it is less responsibility on the state to fend for the poor labourers who are a burden on the exchequer but it also means remittance in the long run. Remittance sent back to home country are a source of foreign exchange and important addition to gross national product . 8 This is especially true of the migrants from South Asia to the Gulf; there are instances of how states like Kerala have flourished due to petro-dollars. Though there may not be similar remittance for a Bangladeshi migrant working in India but nonetheless it is better than the starvation or destitution he faces at home. Moreover he has nothing to lose, if he manages to cross illegally he can earn enough to sustain himself and his family but if he gets caught even then he is well taken care of by the Indian jail authorities.

Migrants are often alleged of stealing the job from the locals and reduce the wage below acceptable level. While most of them are able to earn enough for a decent living they are assumed to take away the jobs of the local. These migrants have been forced out of their country for economic reasons and come with an understanding that they have to work hard to survive and do so, for this very reason they are preferred over the locals. Moreover locals haven’t been very enterprising but get jealous when the migrants do well. The resentment due to jealousy against the immigrants was experienced in the Nellie killings in Assam. 9

The ground reality is that if the locals could do the jobs then there would be no opportunity for migrants but because locals refuse to work as farm labourers, construction workers, or cycle rickshaw puller the immigrants are absorbed in. Moreover the immigrants are offered jobs, often knowingly, by locals for the lure of cheap labour. Immigrants have no option but to work hard and thus are ready to go an extra mile to ensure employment; this has been grudgingly acknowledged by locals themselves. Furthermore, since most of the immigrants would be absorbed in particular occupations it would get a social label as “immigrant’s job” resulting into a general denial by locals of taking it up. 10 Hence the liberal paradox: the economic logic of liberalism is one of openness, but the political and legal logic is one of closure.11

Conclusion

Migration is not a norm but a deviation and hence has to be treated accordingly. Taking residence abroad is an exception not a rule. It is estimated that around 175 million people around the world are international migrants, which is just 2.3 per cent of the world’s population. Furthermore, migration doesn’t occur in isolation but sprints parallel to movements of commodities and capital. Though the figure doesn’t necessitate the pressing of the panic button today, it is fitting to predict that the twenty first century is going to be the age of migration.12 Thus the norm prevalent in the modern age of nationalising space for citizens needs to be set right in the post modern era where walls are crumbling under the influence of globalisation and people prefer to be mobile. The phenomena of migration will continue as long as the difference in development and economic opportunities between nations remains as wide as it is. Migration in itself is not a crime, but they are victims of circumstances and in need of protection. 13

Rights conferred on citizens are product of their membership of the nation state. Citizenship is a privilege and denotes exclusivity of those who belong to a nation. The traditional nation state retains the primary powers to grant citizenship and as long as this exclusivity is maintained migrants will continue to remain at the periphery without rights. Citizenship is determined by decent and there are no criteria or task to be performed by a citizen to retain it. Pursuing the line of providing human security each nation facing the issue of migration has to undertake an obligation to share this privilege with migrants. Save for the rights of refugees’ recognised by International community there are no legal guidelines provided for migrants. But the recent development on international human rights law have helped to solidify the position of individuals vis-a-vis the nation-state, to the extent that individuals have acquired a sort of international legal personality, leading some analyst to speculate that we are entering a post national era characterised by universal personhood. 14 In this postnational model, universal personhood replaces nationhood; and a universal human right replaces national right. Thus the individual transcends the citizen 15.

As the Swiss novelist Max Frisch pointed out at, the European governments had ‘asked for workers, but human beings came’. Unlike goods or capital, migrants (qua human beings) can and do acquire rights, particularly under the aegis of the laws and constitutions of liberal states, which afford migrants a measure of due process and equal protection 16.

Notes

1.Christiane Harziq and Dirk Hoerder with Gabaccia Donna (2009) What is Migration History? Cambridge, Polity p.1.
2.Anthony M. Messina and Gallya Lahav (Ed) (2006), Migration Reader: Exploring Politics and Policies, Viva Books Private Limited, New Delhi, p.10.
3.The Indo-Bangladeshi Treaty of Friendship, Cooperation and Peace was a 25-year treaty that was signed on March 19, 1972 forging close bilateral relations between India and the newly-established state of Bangladesh.
4.An observation made by an interdepartmental study group set by the Swedish Ministry of Labour in 1990.
5.Mohfiz is the wretched of the earth. The term is taken from Sanjoy Hazarika (2000) Rites of Passage, Penguin Books, New Delhi.
6.Han Entzinger, Marco Matiniello and Catherine Wihtol De Wenden (Ed) (2004) Migration Between States and Markets, Aldershot, England, Ashgate Publishing Ltd. p. XV.
7.The principle of "refoulement" was officially enshrined in the 1951 Convention Relating to the Status of Refugees and is also contained in the 1967 Protocol and Art 3 of the 1984 Torture Convention.
8.Anthony M. Messina, Op. cit. p. 27.
9.In 1983 the political, economic and social foundation of Assamese society collapsed resulting into Bengali migrants being brutally massacred by the hundreds, sparing none women, children and men alike.
10.Anthony M. Messina, Op. cit. p. 49
11.Han Entzinger Op. cit. p. 4.
12.Castles Stephen and Miller Mark J. (1998) The Age of Migration, London, Macmillan Press Ltd., 2nd Edition. p. 5
13.Anthony M. Messina, Op. cit. p. 27.
14.Han Entzinger, Op.cit. p. 14.
15.Nash Kate (ed) (2000) Readings in Contemporary Political Sociology, Oxford, Blackwell Publishers. p. 269.
16.Han Entzinger, Op.cit. p. 11.