Kolkata: A* first crossed the Bangladesh border in 2013 and came to India when she was 16. 

It was not a difficult choice for her. A spoke of “ottyachar” (torture) at home but did not say what happened to her. After running away from her village and going to Dhaka, she worked in people’s homes and as a cleaner in a shoe factory.  When a man posing as a recruiter told her she should find work in Kolkata, she left, hoping to make a better future. 

Many women are trafficked by an extensive network of touts or ‘dalals’ who sell dreams of work and marriage, organise the transport and then abandon or sell them into prostitution. Hundreds of people make money at various stages of illegal border crossings. 

The West Bengal police recovered A from a brothel at Sonagachi in Kolkata in 2014 and sent her back to Bangladesh, where she was in a children’s home until she made the crossing again in 2017. 

In June 2015, India and Bangladesh signed a memorandum of understanding on the prevention of human trafficking, especially of women and children. The agreement calls for joint coordinated efforts by officials in both countries. The United Nations Children's Fund (UNICEF) has framed a standard operating system to coordinate the agencies' efforts in both countries. 

However, most of the time, women above 18 are immediately arraigned under the Foreigner’s Act. 

For instance, B* left Bangladesh with her Bangladeshi husband last year and came to India without telling her parents. When they reached the border town of Canning, she realised he was a trafficker and selling her to a brothel. To save herself, she went to the police and told them everything. They took her into custody. 

When the police found the man had documents to prove he was Indian, they let him go. 

Seven months after her arrest, B appeared before a magistrate at Alipore, pleaded guilty to staying illegally under The Foreigners Act 1946, and was sentenced to two years of imprisonment, after which she would be deported to her country. 

C* and D*, two sisters in their twenties, crossed in 2023 and reached their elder sister's house, who had crossed a few years earlier with her Indian husband. 

C and D’s brother-in-law told them to come, promising a better future in India. He had arranged for the agents and the money for the crossing. Only after they had crossed the border did the sisters understand that he wanted to force them into sex work. 

In February 2023, just a few days after arriving in India, the police arrested the girls while the sister and brother-in-law were still absconding. C was pregnant when they were incarcerated in a prison in Kolkata and delivered a boy in custody in August 2023.

Both are awaiting an order to be sent back to Bangladesh.

Bangladeshis In Indian Prisons 

The Bharatiya Janata Party government estimates 20 million Bangladeshis are living illegally in India. The Indian Border Security Force (BSF) estimates that around 50,000 Bangladeshi girls are trafficked to or go through India every year. 

According to data from 2022, the latest available from the National Crime Records Bureau, there are 2053 foreign inmates in the prisons of West Bengal, accounting for 32.7% of the total inmates. 

There are 276 female foreigners awaiting trial, and 87 women have been convicted. Some are  

Behind the dreams and ambitions of many Bangladeshi women who cross looking for a better life, there are stories of violence and abuse, lack of freedom to marry who they want to, and few opportunities to make any kind of life for themselves. 

Ironically, deciding to cross the border, speaking to the touts, and making arrangements for the dangerous journey is the first time they have exercised any kind of choice in their own lives.

Rimple Mehta, a lecturer at the School of Social Sciences, Western Sydney University, in her 2020 paper ‘Deportation of Bangladeshi Prisoners from India-Issues and Challenges’, writes about the Bangladeshi women from conservative adjusting to the socio-cultural environment of an Indian prison and the ideas of loss of dignity and respect for them.

As a jail visiting officer of the legal aid department under the West Bengal Legal Services Authority, I have spoken to ten women from Bangladesh over the past year and represented two before the magistrate's court and the sessions court at Alipore.

These inmates mostly remain invisible and unheard in the criminal justice system.  Close to six years ago, the Supreme Court asked the Chief Justices of the High Courts to take suo moto cognisance of the issue of overcrowding and inhuman conditions in the correctional homes of the state.  

There is an urgent need for the judiciary to look at foreign inmates who are very vulnerable because of the lack of support from anyone outside the prisons, the lack of legal support, and the language barrier because most of them speak a different dialect of Bengali. 

Since there is very little documentation of these women's experiences, the government needs to undertake a study to understand their specific needs and explore possibilities for reducing the prison population.

In A Foreign Prison 

In 2023, E* left her husband and children to go to Dhaka with a tout, who falsely promised to find her work in the capital. 

When we met her at a prison in Kolkata, E said that not only was her husband violent and abusive but lazy, refusing to leave their village in search of work even though they had children and were almost starving. 

Her friend F*, who said she faced a similar situation at home, went with her, and the two women boarded a train, determined to make a different life. 

Neither woman had travelled outside their village before. Travelling with the tout who said they were going to Dhaka, the women only realised something was wrong when the train stopped at the Howrah station in Kolkata. 

Fleeing the tout, the women went to two police officers they saw at the station and told them everything. They were arrested, and an FIR was registered. The agent could not be found.

At the prison where I met them, the women said the first few days in jail in a foreign country, with no provision for making a phone call, was confusing. 

Sometimes, when the entire family is arrested, the women and children are separated from the men and put in a different prison. 

Experience Within the Courts

Under the FA, the inmates must prove they are not guilty by producing the requisite documents, including the Aadhaar card, PAN card, voter card, and birth certificate.  Pleading “guilty” means immediate conviction. After a period of incarceration, they are repatriated to Bangladesh.

Foreign inmate cases often end up with lawyers who are always hanging around police stations looking for such cases. 

Misleading the inmates, lawyers tell them to plead “not guilty” at the time of framing of charge, with assurances they can acquire the forged documents to stay back in India. 

This rarely happens, and they eventually have to plead guilty for the deportation process to begin. The proceedings can be excruciating due to bureaucratic delays on both sides and sometimes, the authorities in Bangladesh cannot find the details of the person in question and refuse to take them back. 

When I met her at a prison in Kolkata in April 2023, A said she knew people who had come to India, giving her the courage to cross the border. 

The second time A crossed the border in 2017, she pleaded not guilty. Her lawyer perhaps advised this without even knowing that she had previously been repatriated to Bangladesh when she was 16. The record already showed that she was a Bangladeshi. There was no way she could prove she was Indian and had been in jail for seven years. 

Getting bail is also tricky. The conditions include sureties by government officials in India, which are mostly impossible to acquire. 

C and D got bail within two months of their arrest. 

The two sisters said their absconding brother-in-law hired a lawyer, who pocketed a lakh of rupees and vanished. They never heard from their brother-in-law or their sister again. 

Meeting Them 

The first day I met C and D, they stood gazing outside at the gate of a prison in Kolkata with the other inmates. The sisters came to me and wept, holding my hand.

This happened often. The female inmates often came to me and cried. I usually guided them to the legal aid clinic inside the prison and talked to them about mundane things, sometimes for hours. 

But it was different with E and F. They spoke a version of Bangla I had heard before but needed help understanding. 

My aunts from Chattagram, a city in Bangladesh, spoke it at family events. I had always associated it with happy, familial memories of women joking and giggling. It was like a secret code of communication for them that was hidden from the rest of us. That same language now had come to me in the form of terrible helplessness and pain. 

After a lengthy hour of hand gestures and earnest help from the other women there, who had gathered out of concern and because they had little else to do, I pieced together their story. 

The sisters kept weeping. 

It was not so much the confinement that made them cry but the trauma and shame they felt at leaving their families and crossing the border alone. 

When I met E, she wept and asked me if her husband would get married again and give her children away to the other woman. 

Not Knowing The Consequences 

While working with the women from Bangladesh, I realised how little they knew about the legal consequences of crossing the border. 

Even the concept of illegally crossing or having the proper documents was alien to them. Only after they had been jailed did they begin to understand that they were in deep trouble and that their situation was precarious. 

Moving freely in and around the vast stretch of the border was innate to the population living in the region.  

In one conversation, A told me there was nothing covert about how she crossed the border during the day. There were various persons at different points, each of whom took her on their bikes, and they crossed long stretches of fields and entered India. 

Nothing had felt particularly different about India.

C and D, who had crossed during the night, said the same thing to me. 

Blameless Women

Over and over again, these women inmates asked me: “What was our crime?” 

I had no answer. 

After seven years of imprisonment, A’s application was heard by the sessions court at Alipore. The additional sessions judge, empathetic and aware of the prolonged detention period, was eager to order her deportation to Bangladesh. 

On 24 January 2024, A was called to the witness box and formally asked her whether she was a Bangladeshi and would plead guilty. 

The implications of an order for deportation were explained to her by the court, too. 

A told the judge she was not a Bangladeshi and did not want to be repatriated. Therefore, the order could not be passed. Her lawyer was perplexed, and perhaps the court too. 

A lawyer, a judge, or the prison administration would perhaps never understand why she turned down the one opportunity she had to return to her home country after seven long years of imprisonment. 

I did not understand either, but I did not question Bela.

I remembered all these invisible women languishing in our prisons for prolonged periods and thought, “What indeed was their crime?’’

(Senjuti Chakrabarti is a practising trial lawyer based in West Bengal.) 

Get exclusive access to new databases, expert analyses, weekly newsletters, book excerpts and new ideas on democracy, law and society in India. Subscribe to Article 14.