New Delhi: In an order dated 18 August 2021, the Patna High court asked the Bihar government to provide a plan for setting up a detention centre for illegal immigrants. It sought a mechanism “for identification and deportation of the persons suspected to be illegal migrant, more so from Bangladesh (sic)”.
The order called for a system through which citizens could share information about ‘suspected illegal migrants’. In addition, it asked the government to run an ‘awareness campaign’ on the issue because “deportation of illegal migrants is of paramount importance and in national interest".
The Bihar government complied within 13 days.
On 1 September, the DM of Kishanganj, a district in northeastern Bihar’s Seemanchal region bordering Bangladesh, wrote to the district’s public relations officer citing the court order.
The letter, in Hindi, instructed officials to initiate an awareness campaign using print and digital media, to seek information about “suspicious or illegal immigrants” residing in the border areas of the district in order to “control and deport them”.
Another letter was shared widely on social media, a government notice dated 29 August and bearing the sign of the district superintendent of police (SP) of Siwan, a district on the state’s western border with Uttar Pradesh.
It said in Hindi: "The general public is informed that if foreign nationals (especially Bangladeshi nationals) are residing illegally near you or if you receive any such intelligence, then you should inform your nearest police station. Help the government / administration in initiating legal action against foreign nationals (especially Bangladeshi nationals) residing illegally."
More Islamophobia: Assam First, Now Bihar
The orders to citizens to report fellow citizens they deemed suspicious bolster years of right-wing rhetoric against Muslims in Bihar’s Seemanchal region, where Purnea, Araria Katihar and Kishanganj districts, where Muslim make up between 23% to 68% of the population.
Hardline Hindu groups, including the Akhil Bharatiya Vidyarthi Parishad (ABVP), insisted, even decades ago, that the region’s demography was altered by illegal Muslim immigrants from Bangladesh.
“India is paying the price for not sending Muslims to Pakistan at the time of Independence,” union minister Giriraj Singh, a Lok Sabha MP from Begusarai in Bihar, said in February 2020, while delivering a speech in Purnea about the Citizenship (Amendment) Act, 2019.
Although chief minister Nitish Kumar convinced the Bharatiya Janata Party (BJP), his alliance partner in the state government, to back an assembly resolution against a National Register of Citizens (NRC) in the state, multiple BJP leaders had earlier sought a repeat of the Assam exercise in northeastern Bihar (here and here), claiming that large numbers of Bangladeshis own land and businesses in the Seemanchal districts.
The NRC is an exercise by the Indian government to identify and expel illegal immigrants, a communally fraught undertaking that left nearly 2 million Assam residents stateless in August 2019.
It was a court order (in Sarbananda Sonowal Vs Union of India, 2005) that first endorsed the narrative of large numbers of illegal immigrants in Assam, eventually becoming the basis for the Assam NRC exercise, said Assamese lawyer and equal citizenship scholar Aman Wadud.
“The recent order by Patna HC has also flagged the non-existent problem of illegal migration,” Wadud told Article 14. “This is a very disturbing trend, this will weaponize citizens to harass fellow citizens and will give arbitrary power to police to harass citizens in the garb of detecting illegal migrants.”
Mainstream opposition parties have not yet reacted to the developments in Seemanchal.
Rudbeh Shahid, PhD, a senior fellow at the South Asia Center of international think tank Atlantic Council in the UK and senior consultant at the European Institute for International Law and International Relations, said the Bihar districts’ instructions to citizens would make Muslims, particularly those living along the border, vulnerable to witch hunts.
“It won’t be a surprise if it goes Assam’s way in terms of the popular public notion being framed in a way that depicts them as outsiders,” she told Article 14. Assam, she said, is already witnessing a “normalisation of hateful violence” as witnessed in the recent eviction drive in Sipajhar.
“These kinds of killings by security forces in collusion with local Buddhists were also routine in the Rakhine state of Myanmar,” said Shahid. “This was abetted with the normalisation of hate against the Rohingya community because of citizenship laws being framed against them through which they were deemed as non-citizens in 1982.”
Retired Indian Police Service (IPS) officer N C Asthana, also a columnist, said he feared the SP’s order would lead to lawlessness and altercations.
"It is acutely reminiscent of the Stalin era when people indulged in witch hunts by denouncing their enemies as ‘enemy of the people’,” Asthana, a former director general of police, told Article 14.
According to Asthana, the order’s suggestion that citizens may receive ‘intelligence’ about illegal immigrants is also problematic, “and illegal”. He said it is government agencies that receive intelligence, not private citizens. A citizen passing on information of this nature amounts to a complaint, he said.
The district administration is not authorised to start such a witch hunt in the name of tracing illegal immigrants, Asthana said, pointing to the practical challenges—private citizens have neither the resources nor the authority to identify illegal immigrants, follow up a suspicion with a confrontation, or demand documentary evidence.
“There is no law that says a citizen can ask somebody to show his Aadhaar card, and if he refuses, report the matter to the police," said Asthana.
A situation where citizens are encouraged to flood police stations anonymously with “unsubstantiated and malicious information”, to settle old scores or to harass others, will vitiate an already surcharged atmosphere, Asthana added. “...it will be abused against people of a certain community,” he said.
Criticising the repeated use of the phrase 'national importance/ security' to justify such measures as encouraging citizens to report their neighbours, Supreme Court advocate Shahrukh Alam said the state has often invoked security concerns to argue that certain subjects should remain outside the purview of judicial review, including, for example, the blocking of the Internet in Kashmir, the question of whether spyware was used unauthorisedly to snoop on Indian citizens, and even ordinary bail matters under the Unlawful Activities Prevention Act, 1967.
“The constitutional courts have not yet reclaimed it for examination as to what it might mean, yet the paradox is that the courts sometimes rely on the same language of national security/ national interest to give directions,” Shahrukh said.
Instead of basing orders on the constitutional framework, courts have also deployed the “inscrutable language of national security”, she said.
Trafficking Case Yielded Order On Immigrants
The 18 August order of the Patna High Court was in response to a writ petition filed in October 2020 by a woman victim of a trafficking case by her lawyer Upendra Kumar Singh.
According to the petition, the woman was trafficked from Bangladesh to Mumbai in 2015. She eventually tried to flee, and was rescued by the Railway Police at Patna station. Since 2015, she had been lodged in the Nari Niketan remand home in Patna.
Her petition sought her rehabilitation in India.
The Patna High Court began to hear the matter in December 2020. In July 2021, the woman was deported to Bangladesh. The HC order came nearly a month later.
According to legal experts, the case should have been disposed of when the petitioner was deported. The petition had made no reference to a demand for a detention center, nor was the court requested during hearings to consider the subject of immigration.
Supreme Court lawyer Anas Tanveer said the Patna High Court order is “sheer judicial adventurism”.
Citing incidents of Muslims being attacked by right wing mobs demanding to see identity cards, Tanveer said common citizens are now being asked by the state to undertake this action. “... this kind of violence may escalate further," he said.
Anas said right-wing outfits could misuse and weaponise the order. To challenge such developments legally, the Indian Civil Liberties Union will bring in experienced lawyers from Assam to provide legal training to people in Bihar, he said.
In the absence of any concrete data or evidence about illegal migration into Bihar, such an exercise should not and cannot be carried out, he added.
The Bogey Of Bangladeshis in Bengal, Bihar
In its order, the high court mentioned Bihar’s border areas repeatedly. Seemanchal, a clutch of 24 legislative assembly constituencies in north Bihar, ranks low on many human-development indicators. With the Kosi river running through it, it is prone to natural calamities, including floods.
At a time when states such as Uttar Pradesh and Madhya Pradesh have witnessed crimes by right-wing groups in the garb of checking identification papers of individuals, this order will be doubly disadvantage Muslims in Seemanchal, experts feared, especially in the context of xenophobic ground next door in north Bengal.
BJP leader Ram Surat Rai, minister for revenue and land reforms in Bihar, said in a television interview that a large number of illegal immigrants are settling in Seemanchal. He mentioned "one community" facilitating the settlement.
Rai’s comments were apiece with those of other BJP members, some of whom raised the issue recently to polarise Bengal assembly elections.
Recently, the local unit of the Vishwa Hindu Parishad (VHP) announced plans to hold a 'Hindu Mahapanchayat’, a first for Seemanchal. On 19 September, at a press conference to announce the event, VHP functionary Ashok Kumar warned of “Rohingya and Bangladeshi infiltration” in the region.
Speaking in Hindi, Kumar said: "The population of Rohingya Muslims is increasing rapidly in Kishanganj. Bangladeshi infiltration is increasing too. Local Muslims here are providing land to the infiltrators.”
Kumar said immigrants were trying to “get citizenship” by acquiring documents and identity cards.
The othering of immigrants, especially Muslims, is a common thread running through the politics of Seemanchal and North Bengal.
In June 2021, a petition was filed in the Supreme Court through advocate and BJP leader Ashwini Upadhyay, alleging infiltration into West Bengal by millions of Rohingyas.
"Total 5 crore infiltrators by taking advantage of their ethnic similarities and other connections with the people of India (are) illegally residing in India unlawfully,” the petition said, asking for ‘illegal’ immigrants to be identified and National Security Act, which makes bail difficult, invoked against government employees, travel agents and others who provides PAN cards, Aadhaar cards and other identification documents to “Rohingya and Bangladeshi infiltrators”.
The petition also sought for the state to confiscate their “100% disproportionate assets".
Anthropologist Adil Hossain told Article 14 that the Patna HC order would sharpen the already hostile politics of North Bengal while furthering the BJP's anti-Muslim xenophobia.
Hossain cited BJP Parliamentarian John Barla’s demand for the partition of Bengal, also in the name of national security, to say the court order encouraging citizens to identify foreigners for deportation will have a devastating impact on the politics of North Bengal.
“It will not be limited to Bihar,” he said. Amid old fractures between communities sharpened by the CAA-NRC, and with the economic crisis rendering groups more hostile to each other, this rhetoric of foreigners will be lapped up by some factions, he said.
“The demand to divide Bengal on the basis of foreigner threat will bring the politics of Assam there,” said Hossain. “This judgement has long-term consequences,”
‘Backdoor NRC By Bihar Government’
Various political leaders and activists slammed the Nitish Kumar government following the initiatives by the Siwan SP and the Kishanganj DM.
All India Majlis-e-Ittehad-ul-Muslimeen (AIMIM) leader and Hyderabad MP Asaduddin Owaisi likened the move to bringing in the NRC through a backdoor.
In a series of tweets, Owaisi said the Bihar government is implementing the NRC through the chor darwaza, or a hidden back door.
“People of Sangh Parivar have been spreading this lie for many years that the respectable people of Seemanchal are infiltrators, there is no truth in this. Nevertheless, on the basis of this lie, many outfits [right-wing groups] will target Biharis (Muslims), especially the people of Seemanchal in a well-planned manner,” he tweeted.
Owaisi said such a policy would only spread suspicion and enmity.
Kavita Krishnan and Dipankar Bhattacharya of the CPI ML issued statements too. "Deportation or not - being decided on the basis of faith,” Krishnan tweeted, asking if India was already being run like a Hindu Rashtra, with the “Constitution consigned to dustbin".
(Alishan Jafri is an independent journalist based in New Delhi.)