Line of Blood: India’s Inhumane Pushback Policy towards Bangladeshi and Rohingya Refugees

This blog scrutinises India’s pushback policy regarding Bangladeshi and Rohingya refugees, specifically its denial of due process and cruel treatment. It contextualises the policy within more general regional diplomacy and demonstrates the dangers posed to human security, due process, and the legal order by an executive-branch action rooted in a broader regional diplomacy driven by security concerns that complicate any sustainable bilateral relationship between India and Bangladesh in seeking strategic balance in a fragmented geopolitical order.

1. What is India’s pushback policy related to the deportation of refugees?

India's pushback policy is the act of forcibly returning or preventing the entry of refugees, asylum seekers, or undocumented migrants, particularly from Bangladesh and, more recently, Myanmar (Rohingyas), without formally determining adjudicators or providing legal protections. It is part of the larger strategy of the Indian approach to border management and national security, which balances the issues of economics, sovereignty, territorial integrity, and demography against those of law and humanitarianism.

2. How is this policy dangerous and violative of international standards?

As noted by scholar Rizwana Shamshad in her book “Bangladeshi Migrants in India: Foreigners, Refugees or Infiltrators?”, the term "pushback" first made an appearance in official records in 1989, when the then Union Home Minister under the Congress government, P. Chidambaram, stated in Parliament that the BSF had pushed back 35,131 "Bangladeshi infiltrators" through the Assam, Tripura, and West Bengal borders. However, a closer examination of records in the Parliament demonstrates that the terminology appeared even earlier: in 1979, when the then Minister of State for Home Affairs, Dhanik Lal Mandal, had stated in Parliament that the BSF pushed back "members of the minority community as also majority community who infiltrated in India."

The central question is what is the legal backing of India’s deportation policy with respect to Bangladeshi refugees? India and Bangladesh had entered into an extradition treaty called "Treaty between the Republic of India and the People's Republic of Bangladesh relating to Extradition", signed on January 28, 2013, and amended on July 28, 2016 that delineates working arrangements for the transfer of individuals suspected of committing crimes in either state. However, they do not have a formal deportation treaty that establishes specific guidelines and standards for transferring large cohorts of undocumented migrants. Thus, bilateral consultations are even more important. Worth noting is the Bangladeshi authorities’ willingness for agreed repatriation of rightful Bangladeshi citizens through border crossings. India's recent pushbacks have, however, been unilaterally arranged.

Such unilateral and forced deportations risk endangering the lives of deportees. The sending country, Bangladesh in this case, might refuse to accept deportees as their citizens, thereby rendering them stateless and at the mercy of law enforcement authorities. In fact, deportees may be charged again by Bangladesh for illegal entry after deportation occurs. Large cohorts of undocumented migrants are also victims of human trafficking, and forced returns could return them to the hands of traffickers.

This principle is included in Article III of the “Bangkok Principles on Status and Treatment of Refugees, 2001” which India has signed without any reservation on that specific article. This principle is also stated clearly in Clause 87 of the UN Global Compact on Refugees, a global instrument to which India became a signatory in 2018. Although the Rohingyas are experiencing the most persecution and violence from the Myanmar state, they are also increasingly subject to xenophobic discrimination, violence from gangs, and state-created restrictions in Bangladesh. One can say that as a non-signatory to the 1951 Refugee Convention or the 1967 Optional Protocol, India is not required to follow those principles; however, the principle of non-refoulement, the obligation of a state to not return a person to a territory where that person would be at risk of persecution, is part of customary international law and therefore India must respect the principle as a member of the General Assembly of the UN, of which UNHCR is an agency.

However, India’s pushback policy against the Bangladeshi refugees has been inhumane and violative of basic human rights. Unreasonable force in tracking down illegal immigrants and forceful deportation with arbitrary procedures have deviated from basic rights of human dignity.

3. Impact of this policy on Bangladeshi and Rohingya refugees

India has a rich history of providing shelter and refuge to migrants from neighbouring countries, especially from Bangladesh. Nevertheless, it has forcibly detained and deported Rohingya refugees and rejected exit approvals to others who had chances to resettle in other countries. India's policies are separating children from their parents and siblings, including adding trauma to an already traumatised population.

Article 21 of the Indian Constitution has limitations when it comes to the issue of National Security. To ascertain whether these are reasonable restrictions on the Rohingyas, the test of arbitrariness must be undertaken. In order to meet the requirements for this test, three criteria must be satisfied: (i) there must be a procedure authorized by law for the encroachment to take place, (ii) there must not be blatant arbitrariness under Article 14, and (iii) there must be proportionality between the means adopted by the legislature and the result that is to be achieved by law. The government of India maintains that there is a need to deport the Rohingya because they pose a "threat to national security." However, arguments have not been offered that satisfy the requirements for a reasonable (or any sound) test, and minimal evidence exists to support the government's assertion.

In the application of the reasonableness test, there is no proportional basis to deport over 40,000 even more individuals, the Rohingyas from India, who are bound to face inhuman torture in their own country. "There is a real and imminent risk of irremediable prejudice to the rights of Rohingyas in Myanmar," ruled the International Court of Justice in a case filed against Myanmar by Gambia. In respect of the basis of the mass deportation being a statement of solidarity made by terrorist groups, there doesn't exist a single verifiable instance where Rohingyas posed a National Security. However, a bench of the Supreme Court of India headed by the Chief Justice in 2019 did not even stay their deportation relying solely upon the Government of India's affidavit which claimed that Myanmar had accepted the Rohingya refugees as citizens and that the refugees orally agreed to be repatriated. This is only one instance of the breach of the reasonableness test criteria that has been demonstrated by the State.

In the case of refugees of Bangladesh, India’s pushback policy has proven to be detrimental. Between May 4 and May 15, exactly 370 people were pushed into Bangladesh, including minors, pregnant women, and elderly individuals. A report from The Daily Star states that some were tortured and that some had crossed barefoot. They were hungry and terrified. Crimes like this violate international conventions, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, to which India is a signatory.

Equally, if not more important, is that the Indian actions tear down the very meaning of neighbourly cooperation. India consulted with neither Dhaka nor provided documentation. When diplomatic channels were sought, one simply received radio silence from the Ministry of External Affairs. And, to date, India has to even confirmed whether the individuals stripped of their rights and forced into Bangladesh by Indian officials are even verified Bangladeshi. The Indian Ministry of Home Affairs, under whose orders this has ramped up since the attack in Pahalgam, has not elucidated why so many Bengali Muslims from West Bengal and Assam were caught up in the dragnet. Not to mention, the Law Minister of Rajasthan, Jogaram Patel, made a public statement in pride that "Bangladeshis" were flown into Kolkata.

4. Implications on Indo-Bangladesh diplomacy

This unconstitutional pushback policy has tremendous negative implications for India-Bangladesh diplomatic relations. The unilateral deportation without prior consultation, aggravated by violence, has strained the relationship between the two. This is a direct contravention of the policy of neighbour first worked out by India since the 2015 Land Boundary Agreement. The unilateral deportation or the pushbacks of the so-called Bangladeshi nationals by India might be regarded as an agenda of the dominant regional power, which puts more emphasis on the issue of security than the issue of humanitarian needs. This is consistent with charges of “coercive diplomacy” that could disconnect Dhaka from New Delhi and pull the Bangladesh state closer to China or some other regional power to fill the diplomatic void left by India.

Pushbacks can also have a political embarrassment component for the government. The person who is pushed back can claim publicly to be from a Bangladeshi NGO and non-Bangladeshi or a victim of Indian harassment regardless of the circumstances. This could contribute to public anti-India sentiment as part of the political agenda in Bangladesh. Over an extended time period this might undermine public support for bilateral cooperation, including in things like trade, energy, and security.

5. Way Forward

The issues of immigrants and refugee rights must be taken up seriously. To address this diplomatic fallout, India and Bangladesh must cooperate to establish humanitarian goals and address border crises. As a first step, both nations need to agree on a formal stipulated process for deportation and repatriation. All due process is to be afforded to individuals through proper verification of their identity and humane treatment in compliance with due process, Article 21 of the Constitution of India, and the non-refoulement principle. Individuals must be accorded all due process by being properly verified in terms of identity and treated humanely in accordance with due process, Article 21 of the Constitution of India and the principle of non-refoulement. Such discussions will also involve measures to enhance bilateral border management procedures, like joint verification teams, humanitarian control, and reach out to support oversight agencies that will help avoid wrongful deportation and human trafficking. India too must strive to have a national refugee law and policies that are sensitive to international human rights norms, which will consolidate and clarify the protection given to displaced persons. In the diplomatic arena, India needs to think about returning to human-centred diplomacy, which focuses on moral governance and regional stability.

6. Conclusion

The counter-refugee policy adopted by India against Bangladeshi refugees and Rohingya Muslims in India proves the fragile nature of sovereignty, security, and human rights. An imbalance between deportation and asylum in one direction, which has become a regular practice, contravenes due process and humanitarian principles, making it more difficult to establish relations with Bangladesh and compromising the ethical integrity of India.  Finally, true regional stability will only come about if South Asian countries can move away from a coercive and endurable human migration policy to one that reconciles cooperation, law and order, and human dignity as constitutional realities. 

 References-

1. Rizwana Shamshad, Bangladeshi Migrants in India: Foreigners, Refugees or Infiltrators? (Oxford Univ. Press 2017).

2. Human Rights Watch, Suspended in Time: The Ongoing Persecution of Rohingya Muslims in Burma (Dec. 2020), https://www.hrw.org/report/2020/12/08/suspended-time/ongoing-persecution-rohingya-muslims-burma