This article is written by Gyaaneshwar Joshi, from the Faculty of Law, Jamia Millia Islamia, New Delhi. This article enlightens readers about the circumstances that led to the enactment of the Abducted Persons (Recovery and Restoration) Act 1949 to rescue the abducted persons after the partition of India in 1947.
In August 1947, India gained independence after almost 200 years of British rule, followed by one of the largest and bloodiest forced migrations. This massive and sudden migration changed the demography of South Asia. British India was partitioned into two independent nation-states, Hindu-majority India and Muslim-majority Pakistan. The two countries were carved up in haste by British colonialists, leading to one of the greatest migrations in human history.
In November 1948, as a result of the agreement signed between India and Pakistan, the Abducted Persons (Recovery and Restoration) Act, 1949, was temporarily enacted by the Indian legislature to recover abducted female Muslims of all ages and males under sixteen who were left in India after the partition, to officially allowed them to restore with their migrated families in Pakistan. The tenure of the Act was mandated for up to 31 May 1955. However, after passing the Abducted Persons (Recovery and Restoration) Continuance Bill, 1955 which came into force on 30 May 1955, the tenure of the Act was continued for a further period, i.e. till 1960. After the expiry of this tenure, the Act on its own got repealed.
Circumstances that led to the passing of the Act
Before British colonization, the Indian subcontinent was a patchwork of regional kingdoms known as princely states, populated by Hindus, Muslims, Sikhs, Jains, Buddhists, Christians, Parsis, and Jews. Starting in the 1500s, a series of European powers colonized India with coastal trading settlements. By the mid-18th century, the English East India Company emerged as the primary colonial power in India. In the 19th century, the British began to categorize Indians by religious identity. They counted Hindus as majorities and all other religious communities as distinct ‘minorities’, with Muslims as the largest minority. In elections, people could only vote for candidates of their religious identification that exaggerated differences between the previously co-existing communities. The infamous strategy of divide and rule introduced by the British led to increasing mistrust between Hindus, Muslims, Sikhs, and Christians.
India had long wanted independence from repressive British rule; therefore, the 20th century began with anti-colonial movements where India fought for freedom from British rule. Indian political leaders had presented their different views on how an independent India should look like. The Congress leaders, Mahatma Gandhi and Jawaharlal Nehru, who represented the Hindu majority, wanted a secular India. On the other hand, Mohammad Ali Jinnah, the leader of the All-India Muslim League, wanted an independent state for Muslims called Pakistan.
In June 1947, the British Viceroy Lord Mountbatten announced that India would gain independence and partitioned into Hindu India and Muslim Pakistan but gave little explanation on how this would happen. Using outdated maps, inaccurate census, and minimal knowledge of the land, the Border Committee drew a border within five weeks. The boundaries were constructed while looking at the areas, for example where Hindus or Muslims were in majorities or considering other factors like location and their population percentage.
While the Boundary committee worked on the new map, Hindus and Muslims began moving to areas where they thought they would be a part of the religious majority. People who found themselves in the wrong country fled for their homes, on foot, in bullock carts, or by trains. More than seven million people travelled from India to Pakistan, and another seven million travelled from Pakistan to India. In two years from 1947, millions of Hindus and Sikhs living in Pakistan left for India. Lahore, Delhi, Calcutta, Dhaka, and Karachi emptied of old residents and filled with refugees. Refugee camps were set up in India and Pakistan to try to house millions of refugees. Many refugees lost their lives because of the poor conditions, and several succumbed to hunger and thirst or were murdered by religious extremist groups. Around ten thousand women were abducted, usually by men of a different religion. Therefore, with an expectation to be a part of the majoritarian population, Muslim people started heading towards the west to Pakistan, and Hindus and Sikhs began to flee east to India.
The Abducted Persons (Recovery and Restoration) Act, 1949
The Governors of the United Provinces, East Punjab, the Rajpramukhs of Patiala, the East Punjab State Union, and the United State of Rajasthan accorded their consent for making of this Act under the provisions of sub-section (1) of Section 106 of the Government of India Act, 1935. This Act made a formal agreement between the Government of India and the Government of Pakistan for the recovery and restoration of abducted persons [as per defined under Section 2(1)(a)] who became victims of religious violence in both countries.
Section 1(2) mandated the Act to be remained valid until 31 October 1951 for rescuing abducted people in India and sending them to their families in Pakistan. However, after passing the Abducted Persons (Recovery and Restoration) Continuance Bill, 1955, the Act further extended for up to 31 May 1955 by adding clause 3 in Section 1 of the Abducted Persons (Recovery and Restoration) Act, 1949. The time of the Act was extended because many alleged abductions cases remained to be investigated by the governments of both countries.
The uprooting and dislocation of the people during partition were accompanied by the rape, abduction, and widowhood of thousands of women on both sides of the borders. Thousands of women were brutally raped and abducted by the local perpetrators and religious extremist goons. Therefore, the government in both countries categorizes all women missing or living with men of the other religion to consider under the category of ‘abducted’ women. Based on the complaints filed by relatives in both countries, the estimated figures stated that around 33,000 Hindu and Sikh women were abducted in Pakistan. Similarly, Pakistan displayed the figure of Muslim women who were abducted in India to be around 21,000. Therefore, taking action on the complaints filed by the relatives of the abducted persons in Pakistan, the Indian state decided to enable this Act for making a proper procedure to locate, recover, and rehabilitate abducted persons, and legitimately send them with their families in Pakistan.
A Central Recovery Operation created by the Government of India carried out work between 1948-1956. It was formed to examine and recover those women who were abducted and forcibly converted during the upheaval. The Central Recovery Operation, presumed women if found living with a man of another religion as the abducted. Also, in a situation where women stated the relationship as a matter of her choice, it was assumed as a decision made under pressure and discounted at the same time.
Therefore, the Prime Ministers of India and Pakistan met at Lahore in September 1947 and decided on the recovery of abducted women and voiced for those women and children to be restored with their families by the joint organization of both dominions. A book published by the Central Recovery Organisation in 1952 informed the district by district list of Hindu and Sikh women who went missing or were presumed abducted in Pakistan. The Pakistan newspaper Dawn (founded by Jinnah) also published information about abducted Hindu and Sikh women and asked people to supply full details about where women were last seen, and other relevant details regarding those women. All the tactics, including subterfuge and disguise, were used by the rescue teams. Bringing women out of the hostile environment was not an easy task because people in positions of authority were charged for abducting women, which happened on both sides of the borders.
In Section 2(1)(a) of the Abducted Persons (Recovery and Restoration) Act, 1949, the abducted persons were specified as “a male child under the age of sixteen years or a female of whatever age who is, or before 1 March 1949, was, a Muslim and before 1 January 1949, separated from his or her family and living under the control of any other individual or family”.
Meanwhile, during the rescue work of Muslim women conducted by the Indian officials, Pakistan argued that some women (Hindu and Sikh) were happy in their new surroundings, that means in Pakistan, and had offered resistance to being rescued and come to India. The government officials stated that several women gave their consent that they do not want to go to India. However, it was not evident that women may not have been coerced to say this. Later, the Indian records also clarified that many women did refuse to come back to India.
The Act contained eleven sections and was repealed by the Repealing and Amending Act, 1960. Section 2 defined the term ‘abducted persons’ and ‘camps’ under which an abducted person can be any male child under the age of sixteen and a female of whatever age who was Muslim before 1 March 1947. The Act provided that a person to be rescued by the officials has separated from his or her family and living with any other individual or family in India after partition. Any child born to any such female was also considered abducted. Similarly, the meaning of camps defined under the Act referred to any place established for the reception and detention of these abducted persons.
Section 3 of the Act required the Provincial Government to establish as many camps for the reception and detention of abducted persons. The Provincial Government was required to maintain discipline in the camps and was obliged to make appropriate regulations for the transfer of abducted persons from one camp to another to maintain health and harmonious relations among the abducted persons.
Section 6 in the Act stated for the determination of the question whether any person detained is an abducted person or allowed to leave a camp or handed over to another person out of India. The Tribunal constituted by the government was given the power to take such decisions. The decision of the Tribunal was set to be the final, and review and revision of any such decision was only made possible by making an application to the Central Government on behalf of any party interested in the matter. The detention in camps from being questioned in the Court was exempted under Section 8 of the Act.
Section 8 authorized any officer in charge of a camp or any officer/authority to assure that a person was abducted, and that person needs to be restored to his or her relatives or conveyed out of India.
- A Joint Fact-Finding Commission was appointed to facilitate the transfer of persons and entrusted the task on the two HPOs (High Powered Officers), the officer not below the rank of a Deputy Commissioner, and separately appointed in both the countries to ease the rescuing process. Both the officers appointed separately in the country were given six months to prepare and verify lists of almost all abducted persons.
- The Act eased the movement of relatives of abducted persons from one country to another. Both countries agreed that they would give the relatives of abducted persons all reasonable facilities.
- After passing this Act in India, the Pakistan government undertook the same to bring the definition of abducted persons in their Ordinance. The Pakistani government issued executive instructions to recover the abducted persons belonging to Hindu and Sikh scheduled caste.
The concern of the Abducted Persons (Recovery and Restoration) Act, 1949 reflected the sense of the violation of the body and spirit of the abducted persons. The mass rape and abduction of Hindu and Muslim women across borders glossed over the challenge to manhood and nationalism in both countries. The Central Recovery Operation provided the data that over 50,000 women had been abducted or missing but both states had managed to recover around only 8,000 women, and many of these women were not among those who reported missing.
The massive rehabilitation operation by both the States was marked as one of the major humanitarian operations. With all its faults, it was beneficial to a large number of people, especially suffering women. Looking after more than seventy years of partition, the legacies of the partition are still evident in the subcontinent in its new political formation and the memories of the divided families.
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