In 1947, India was partitioned into two countries - India and Pakistan (consisting of East and West Pakistans) that forced the religious minorities of both countries to leave their ancestors’ homes and take shelter in either Pakistan or India to protect and promote their religion, culture, language and economic interests. The Urdu speaking Muslim minority of the Indian states of Bihar, Uttar Pradesh, Orisha and West Bengal migrated to the then East Pakistan.
In 1971, people in East Pakistan fought and won a nine-month war of liberation against West Pakistan. With the defeat of West Pakistan, East Pakistan became an independent state on 16 December 1971 and renamed as Bangladesh.
A section of the Urdu-speaking community played an anti-liberation role by siding with the West Pakistan army. Consequently, at the end of the war, they became victims of harassment and were forced to abandon their homes, businesses, properties and employment. The International Committee of the Red Cross built settlements mostly on public land and buildings to provide shelter, food and medical support to the displaced people. At least one hundred sixteen settlements were established. These Urdu-speaking displaced people had no documents to support recognition as citizens in any country. Known in Bangladesh as Biharis, they struggled to survive for forty years as stateless people.
Supreme Court Ruling
In 2001, a group of Biharis (consisting of this author and nine other fellow Biharis) petitioned the Supreme Court of Bangladesh to challenge the Election Commission Bangladesh’s decision not to register them as voters. Two years later, in 2003, the Supreme Court ruled in their favor by recognizing them as Bangladeshi citizens and thus qualified to be registered as voters. The court clarified that mere residence in Geneva camp, one of the so-called Bihari camps, does not mean allegiance to another country that would disqualify them from being recognized as Bangladeshi citizens. The court recognized that the Urdu-speaking people were brought to Geneva camp, which was established by the International Committee of the Red Cross, “for security reasons due to the situation prevailing immediately after liberation.”1 As the court explained:2
We do not think that only because of the concentration of Urdu speaking people, who were citizens of the [erstwhile] East Pakistan [in] the so called Geneva camp has attained any special status so as to be excluded from the operation of the laws of the land including the said President Order, the Electoral Rolls Ordinance, 1982 or the Citizenship Act, 1951. So mere residence of the first group of the petitioners at the Geneva Camp cannot be termed as allegiance to another state by conduct.
The Supreme Court cited its previous decisions to stress that one who applied for repatriation to Pakistan, or “even a diehard pro-Pakistani born in this country is entitled to be citizen of Bangladesh if he fulfils the requirements under Article 2 and is not disqualified under clause (1) of Article 2B.”3
But a change of government in 2007 led to a new registration of voters; and the issue of whether those with “camp addresses” were Bangladeshi citizens and should be registered as voters came up again. This led to another petition being filed in 2007 in the Supreme Court on behalf of all Urdu speakers with “camp addresses.” In 2008, the Supreme Court granted the petition and ordered the Bangladesh Commission on Elections to register the Biharis as voters and to issue their national identity cards.4 The court explained:5
In view of above provisions of the Act and President Order No. 149 of 1972, every person who or whose father or grandfather was born in the territories now comprised in Bangladesh and who was a permanent resident of such territories on the 25[th] day of March, 1971 and continues to be so resident unless disqualified under Article 2 B of PO No. 149 of 1972 shall be citizen of Bangladesh. In the acquisition of such citizenship, the laws have made no discrimination in any way on the ground of ethnicity, language, sex etc.
Members of the Urdu-speaking people wherever they live in Bangladesh if they answer the above qualifications shall become citizen[s] of Bangladesh and in view of the above provisions have already acquired the citizenship of Bangladesh by operation of law and no intervention of the Government is necessary. Such people have accordingly become eligible with the attainment of majority for enlistment as voters under Article 122(2) of the Constitution6 and the Election Commission is under constitutional obligation to enroll them in the electoral rolls as voters. No functionary of the Republic can deny such rights of the Urdu-speaking people who want to be enrolled as voters.
The 2008 ruling was a landmark court decision that ended the statelessness of the Biharis, thirty seven years after the founding of Bangladesh as an independent state.
Citizenship recognition, however, exposed the Biharis to the challenges of enjoying their rights as citizens.
Continuing Discrimination
There was no expectation that the socio-economic status of Biharis would drastically change due to the issuance of their national identity cards and becoming voters. Camp dwellers still faced discrimination in different aspects of their life. They have difficulty getting passport, public service employment, and trade licenses. Their camps are always under threat of eviction. The government has continuously violated their fundamental rights. The Urdu-speaking Bihari community does not yet have state recognition as a linguistic minority of Bangladesh.
Serious obstacles remain for those who want to access additional identity documents or related services. Many Biharis are unaware of the court judgment or the details of the rights they are now entitled to enjoy. Those who want to use their national identity cards to access other documents and services – applying for a passport, seeking a trade license – are often not familiar with the administrative processes or requirements. Or worse, they may feel intimidated to go to a government office to apply for such services; a challenge especially stark for women, who want to secure a birth certificate for their children but tend not to stray far outside their camp into the larger city. Consequently, many camp dwellers do not even attempt to approach the government.
Camp dwellers who sought government services encountered problems such as corruption, discriminatory requirements, and, in some cases, even denial of request for documents due to their identity or camp address. Government records are critical requirements in enjoying their rights as citizens regarding education, employment, and the opportunity to travel abroad for education or work. The realization of these rights can ultimately overcome poverty.
In one report,7 a city government rejected fifty-three applications for birth registration due to varying reasons including lack of proof of residence in an area (many cannot use electricity bills as proof of residence because they have no electricity supply) and internal instructions not to issue birth certificates to “non-Bengalis.” However, other city governments have issued birth certificates to almost all applications by camp dwellers. This shows the lack of enforcement of the 2008 Supreme Court decision by some officials of the government.
In the case of passport applications, many were rejected on the ground of lack of residential address; “camp address” being considered as improper residential address. The governmental officials also say that they have written instructions not to issue passports to the Biharis. However, even after obtaining an official document from the Home Ministry indicating that Biharis were qualified to secure passports, some applicants still failed to have their passport applications approved.
Camp Situations
Most Bihari camps are small but with large population. There are still dwellings with eight by six square feet area for eight to ten family members. The camps are flooded during the rainy session. Flooded one-floor dwellings have no place to cook. The one-room dwellings also provide no privacy between parents and other family members.
Lack of access to water and poor sanitation are problems in every camp. Geneva camp, the largest camp among the one hundred sixteen camps, is located in Dhaka with an area of one hundred twenty-three thousand square feet area. Within this small area around thirty thousand people live in inhuman conditions. Only two hundred toilets serve thousands of people and most of them are dirty and have no doors. Unclean water infects children with water-borne diseases; urinary tract infections affect women and girls. The lack of access to clean water makes it difficult for the people to maintain proper hygiene. There is no government health service in Geneva camp, and residents avail of medical services in a nearby government hospital. Some non-governmental organizations (NGOs) provide medical service like vaccination for children.
Bihari camps outside Dhaka have even worst situation regarding basic facilities; and the Biharis there suffer from extreme poverty. These camps are located in the cities of Narayangong, Mymensing, Bogra, Rangpur, Syedpur, Chittagong, Khulna, Ishuardi and Rajbari. Of the estimated 400,000 Biharis, one hundred fifty thousand Biharis stay in camps in Dhaka.
Education
Poverty and discrimination prevent most Bihari camp dwellers from having access to education, health care and economic opportunities. With large families, and with one or two family members earning money, support for the education of children is very difficult. Many children become workers instead. Without education and suffering from discrimination the future generations face a dark future.
Urdu, as language and culture, is forgotten in Bangladesh. The Bihari children have no opportunity to further learn the Urdu language. For those who are fortunate to get formal education, Bangla is the medium of learning. Most of Urdu-language poets have no opportunity to publish their literature in Bangladesh. It is atrocious for any community to live without its own language and culture.
Discrimination Based on Ethnicity
Bangladesh has many ethnic minorities, aside from the Biharis, such as Chakma, Garo, Khasia, Khumi, Marma, Murong, Mandi, Santal, Tanchangya, Tippera, Hajong, Rakhain, and Dalit peoples. But the 15th amendment of the Bangladesh Constitution passed by the Bangladesh Parliament on 30 June 2011 might have legally denied their existence. Article 6(2) of the Bangladesh Constitution as amended states:8
(2) The people of Bangladesh shall be known as Bangalees as a nation and the citizens of Bangladesh shall be known as Bangladeshies. (emphasis added)
This constitutional amendment ignored the identity of distinct ethnic groups of people in Bangladesh.
Threat of Eviction
The National Housing Society sold in 1993 the land of the Bihari camps in Mirpur Dhaka as plots to people in the nearby area. The National Housing Society is now planning to demolish all structures in the camps.
Not being able to stop the demolition order, the President and the Secretary of Urdu Speaking Youth Rehabilitation Movement (USPYRM) immediately petitioned the Supreme Court in 2001 to stop the demolition of their houses and other properties; the court issued an injunction order to the National Housing Society in the same year. Mirpur Dhaka has thirty-nine Bihari camps with about seventy thousand Bihari residents.
During the 2001 to 2012 period, nine petitions were filed on behalf of Biharis in different camps (Mirpur, Syedpur, Geneva, Mymensign Patgudam, Adamjee Nagar, and seventy other camps) asking the court not to allow any eviction in the camps before rehabilitation work is done. After a long period of hearings, a bench of the High Court Division of Bangladesh Supreme Court issued a judgment on 29 March 2016 withdrawing all injunction and stay orders and instructing the concerned government authority to take steps for the rehabilitation of those who leave the camps and have national identity card.
Legal Empowerment
Faced with the problem of continuing discrimination despite Bangladeshi citizenship, the Biharis have to be empowered to assert their rights. The Council of Minorities and Namati launched in 2013 a training project for Biharis “focused on domestic and international law, workings of government, eligibility and requirements for various legal identity documents and related services, and skills such as data collection and community education.”9 This is the paralegal training project for Biharis in the camps. The trained paralegals returned to their camps and held educational sessions with the camp residents on “legal identity documents, the eligibility requirements and application processes, or laws relevant to citizenship – including the 2008 court judgment.” The aim of the educational sessions was not only to make them become aware of their rights as Bangladeshi citizens but most importantly to assert their rights. The paralegals assist those who would like to seek government documents and services.
One the first major issues dealt with by the paralegals was the passport application problem. Government officials still clung to the notion that passport applications using camp address would not comply with the legal requirements of the government. They also said that they have written instructions not to issue passports to Biharis. The paralegals did the inquiry with the government officials on this problem. A petition with the Home Ministry asking for information on the issuance of passport to Biharis did not receive a response. But a right to information petition with the Information Commission resulted in the release by the Home Ministry of a six-page document on passport issuance. The Home Ministry released the document before a scheduled hearing of the Information Commission on the petition was held. The document confirmed that camp dwellers with national identity card could get passports. Armed with the Home Ministry document, the paralegals went back to assisting fellow Biharis re-apply for passports with the government office that rejected their applications earlier.
But some passport applications were rejected still on the same ground of camp address despite Home Ministry regulation to the contrary. Biharis filed a petition with the National Human Rights Commission of Bangladesh to protest this situation. The National Human Rights Commission of Bangladesh issued five letters to the Home Ministry since May 2015, but the Ministry has not sent any answer yet.
The existence of the paralegals was received well by the Bihari community. A report states:10
Community demand has far exceeded initial expectations for the program. In just the first 14 months, these 10 paralegals mobilized hundreds of camp residents to attempt applications, opened 1475 cases, and assisted over 1370 of those clients to reach the desired resolution. These successes include issuance of birth certificates, commissioner’s certificates, passports, trade licenses, and national [identity] cards.
Future of the Biharis in Bangladesh
Intolerant attitudes and social marginalization are major barriers to the integration of the Biharis into the mainstream Bangladeshi society. There has been very little interest among the mainstream human rights organizations, legal aid bodies, or women’s and children’s organizations on the “Bihari” issue. Voices need to be raised and the wider society needs to be informed to be able to create sufficient pressure to force the government to address the issues facing the Biharis.
The negative role in the 1971 war of liberation of the Bihari-Urdu speaking linguistic minority community is a major cause of non-acceptance by the government as well as society of its place in the country.
While their legal status as Bangladeshi citizens had been settled, the Biharis still face discrimination by the authorities in the government. They have been living in the camps for forty years and thus there is now a need for rehabilitation. They need to have permanent settlement areas to end of their suffering from camp life.
Khalid Hussain is an Advocate and the Chief Executive of the Council of Minorities in Bangladesh.
For further information, please contact: Khalid Hussain, Council of Minorities, 18/8, 1st floor, block- F Tikkapara Mohammadpur Dhaka-1207 Bangladesh; e-mail: khalid.aygusc@gmail.com; www.com-bd.org.
Endnotes
1 Abid Khan and others v. Government of Bangladesh and others, Writ Petition No. 3831 of 2001, Bangladesh: Supreme Court, 5 March 2003, available at: www.refworld.org/docid/4a54bbcf0.html.
2 Ibid.
3 Article 2B as quoted by the court: “2B(1) Notwithstanding anything contained in Article 2 or in any other law for the time being in force, a person shall not, except as provided in clause (2), qualify himself to be a citizen of Bangladesh if he (i) owes, affirms or acknowledges, expressly or by conduct, allegiance to a foreign state, or (ii) is notified under the proviso to Article 2A. Provided that a citizen of Bangladesh shall not, merely by reason of being a citizen or acquiring citizen specified in or under clause (2), cease to be a citizen of Bangladesh...” This is from “Bangladesh Citizenship (Temporary Provisions) Order, 1972 (P.O. No. 149 of 1972) hereinafter referred to as the said President’s Order.” Ibid.
4 Md. Sadaqat Khan (Fakku) and Others v. Chief Election Commissioner, Bangladesh Election Commission, Writ Petition No. 10129 of 2007, Bangladesh: Supreme Court, 18 May 2008, available at: www.refworld.org/docid/4a7c0c352.html.
5 Ibid.
6 See The Constitution of the People’s Republic of Bangladesh, http://bdlaws.minlaw.gov.bd/sections_detail.php?id=367§ions_id=24681
7 Council of Minorities and Namati, Realizing Citizenship Rights: Paralegals in the Urdu-Speaking Community in Bangladesh, https://namati.org/resources/realizing-citizenship-rights-paralegals-in-the-urdu-speaking-community-in-bangladesh/.
8 The Constitution of the People’s Republic of Bangladesh, see http://bdlaws.minlaw.gov.bd/sections_detail.php?id=367§ions_id=24554.
9 Council of Minorities and Namati, ibid.
10 Ibid.