The past year has seen a surge in the authorised release and repatriation of foreign prisoners – the majority of whom are convicted illegal immigrants from neighbouring Southasian states – by India, Pakistan and Bangladesh. Analysts have construed these releases as diplomatic 'goodwill gestures' that strengthen regional relations. But calling the releases 'goodwill gestures' is somewhat simplistic and misleading. Such acts certainly generate political capital, but they rely on the use of either presidential pardon or judicial orders in cases where the ordinary legal procedures have failed to treat immigrants and foreign prisoners fairly. One good example is the Indian Supreme Court's order on 24 January 2012, in the long-standing case of Bhim Singh vs Union of India, to immediately release and repatriate Pakistani and Bangladeshi prisoners who were being held past their sentences due to procedural confusion over their exact diplomatic status. Such magnanimous gestures may prove to be important diplomatic tools, but it is imperative to recognise that they stem from outside the ordinary legal process. They are sporadic and their success is contingent on the prevailing political climate. Celebrating such instances of 'goodwill' deflects attention from the larger problem that put most of these prisoners behind bars in the first place: Southasian states' continued inability to deal effectively with illegal immigration.
An overview of the Foreigners Act of 1946 reveals just how systemic and deeply rooted the problem of illegal immigration is in India. Under the Act, it is illegal for any person who is not an Indian citizen to be present in India without the necessary permission or documentation. Where nationality cannot be determined, Indian authorities can treat foreigners as nationals of the country they are 'most closely connected' to. If anyone disagrees with the nationality assigned to them, they must then provide proof of their nationality. Any foreign national found to enter or remain in India illegally may be prosecuted, and if convicted can be fined and imprisoned for up to 8 years.* The Act also allows the Indian government to deport, expel and refuse entry to any foreigner.
The Act is rooted in the politics of pre-Partition India, and in today's context it is both antiquated and defective. At best, it is out of sync with current realities; at worst, it is harsh and unconstitutional. There are at least three identifiable areas of concern.
First, the Act takes the legally permissible but practically onerous step of reversing the burden of proof, thereby compelling suspects – not the State – to prove their nationality. That reversal can be justified in instances where the accused can be shown to possess the best information to prove the contested fact, but it follows that where that is true there should be procedural safeguards to ensure due process and fairness. Yet the Foreigners Act has very few checks and balances against the authorities' power to ascribe nationality. At the same time, the Indian Supreme Court has affirmed the government's 'unfettered discretion' to expel foreigners from India. Suspected foreigners are asked to prove their claims of Indian citizenship with official documentation such as passports or electoral registration cards. The reality, however, is that the overwhelming majority of people likely to be affected by this law are poor and do not possess such documents. These include fishermen on India's western seaboard who sail the territorial waters of both India and Pakistan, people living along India and Bangladesh's porous and largely undefined border for whom regular crossings between the two countries are a fact of life, or even undocumented domestic migrants who find their way to large cities. These people are acutely vulnerable to harassment by police accusing them of being illegal immigrants. For instance, a 'clean-up' campaign in preparation for the 2010 Commonwealth Games in New Delhi saw poor immigrants, including Indian Muslims mistakenly identified as such, summarily deported to Bangladesh with little regard to due process. Disturbingly, the New Delhi authorities were acting within the powers conferred upon them by the Foreigners Act.