Legal Status of Bihari community

The Urdu-speaking community living in Bangladesh, popularly known as Biharis, does not refer to a distinct group of people easily identifiable by race, religion or physical characteristics.  The case of Bihari community in Bangladesh is different from the other minority groups. This community primarily focuses on a geographical location of Indian state of Bihar.

Biharis are non-Bengalees, who are waiting to repatriate to Pakistan. Those stateless people are living in refugee camps in Bangladesh without proper nutrition, poor drainage and sanitation systems, education and health care facilities. Usually Bihari community in Bangladesh falls under no conventional identity or category of international standard. The 1951 Refugee Convention declares that everybody has national identity; so the United Nations really needs to work hard to make it true.

Sir Humphrey Waldock, former President of the International Court of Justice (ICJ), once stated that “all of them should be adequately assisted and protected by international law and institutions.” According to article 15 of the Universal Declaration of Human Rights (UDHR), everyone has a right to a nationality and that no one shall be arbitrarily deprived of his nationality. But Biharis in Bangladesh are currently de-facto stateless and in need of an effective citizenship. Under the tripartite agreement of 1974 between India, Pakistan and Bangladesh, Pakistan agreed that all persons who were employed in Pakistan Government service could be repatriated to Pakistan. After the agreement, Pakistan felt no legal obligation to grant citizenship to those Biharis who did not fall under the categories enumerated in the tripartite agreement.

In 2003, in the landmark decision of the Supreme Court of Bangladesh in Abid Khan and others v Bangladesh   held that the ten Urdu-speaking petitioners born both before and after 1971, were Bangladeshi nationals pursuant to the Citizenship Act of 1951 and the Bangladesh Citizenship Order of 1972, and thereby the court directed the Government to register them as voters.

The right to return to one's own country is provided in article 9 of the UDHR, which prohibits arbitrary arrest, detention or exile. The office of the UN High Commissioner for Refugees is primarily responsible for pursuing repatriation agreements. Since most of the Biharis want to go back to Pakistan, the UNCHR could play a vital role to restart the repatriation programme.

Few important provisions on this issue like articles 34 and 134 of the Fourth Geneva Convention of 1949 are very clear about the right to leave and repatriate to last place of residence. These legal provisions state that all protected person who may desire to leave the territory to the outside or during a conflict shall be entitled to do so. In this regard, the contracting parties are mandated to ensure of all internees to their last residence or to facilitate their repatriation. However, an ongoing debate on the legal status of Biharis – whether to be determined as refugees under the Fourth Geneva Convention – is a vital question for taking into consideration by the concerned states because of their de-facto stateless status.

At present, more than 300,000 Biharis are living in various camps in Bangladesh. Still their citizenship issue is unclear. The question of Bihari citizenship is getting ignored in the name of repatriation. In this situation, Bangladesh which is already overburdened with managing Rohingya refugees, can start again the process of repatriation of Biharis to Pakistan for achieving durable solution.

The writer is a Student of LL.M. in International Law at South Asian University, New Delhi, India.