Long way home

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.