Why Bangladesh's Verification Necessary To Deport Illegal Migrants Who Served Sentence? Supreme Court Reserves Judgment
"Today we have reached a stage where we need to take immediate steps to send them back and they should not stay back," Court orally remarked.;
Reserving judgment in a case raising the issue of indefinite detention of illegal Bangladeshi immigrants in the country, the Supreme Court today expressed disappointment with illegal immigrants being made to suffer rigor of prisons despite their having served sentences post conviction.The Court also questioned the Union of India as to why there is a need to ascertain nationality of the...
Reserving judgment in a case raising the issue of indefinite detention of illegal Bangladeshi immigrants in the country, the Supreme Court today expressed disappointment with illegal immigrants being made to suffer rigor of prisons despite their having served sentences post conviction.
The Court also questioned the Union of India as to why there is a need to ascertain nationality of the illegal immigrants from the countries they are to be deported to when the precise charge against them is that they have illegally entered India while being a national of that country.
"[when an immigrant is] apprehended, put to trial, and is convicted, what is the charge against him? That you are an illegal immigrant. You are not entitled to stay in this country without any valid passport or any other document. And we hold you guilty under the Foreigners' Act. Once this comes, not challenged, not stayed by any superior court, then what is the idea in asking the neighboring country to tell this country about his nationality and verification?", remarked Justice JB Pardiwala.
At the same time, the Court pulled up State of West Bengal for not having correctional homes/detention centres, which has statedly resulted in illegal immigrants languishing in jails.
"Why you don't have a correctional home or detention centre? Even after a person is convicted, he undergoes the entire sentence, you keep him in jail!? How can you do that? Is the state so poor that it does not have a correctional home or a detention centre? It's very easy for you to put a board outside the jail premises 'correctional home' but still it remains a jail...and jail means you don't allow him to walk out, have a stroll in the bazar, ask him to come back by sunset, and then you put him again. Correctional homes probably may have some liberty, they move around in a restricted area which is earmarked...", exclaimed Justice Pardiwala.
A bench of Justices Pardiwala and R Mahadevan was considering a matter of 2013, which was transferred from the Calcutta High Court. In 2011, the petitioner wrote a letter to the Calcutta High Court Chief Justice highlighting the plight of illegal immigrants from Bangladesh who after being convicted for the offence under the Foreigners Act are being kept confined to correctional homes. The letter pointed out that the immigrants, even after undergoing sentence. instead of being deported to their own country are being detained in the Correctional Homes of the State of West Bengal. The Calcutta High Court took suo motu cognizance of the letter. In 2013, the matter was transferred to the Supreme Court.
Advocate Vrinda Grover, for petitioner, argued during today's hearing that in West Bengal, illegal immigrants are being detained in jails which are "euphemism" for correctional homes/detention centres, even after having served their sentences, as the state does not have correctional homes/detention centres. Pressing into service their Article 21 rights, the counsel informed that 70 out of 150 of the imprisoned illegal immigrants are women.
With respect to Bangladeshis, she averred that there are a range of options with authorities regarding deportation: if they are intercepted at the border, they are immediately sent back; if they are inadvertent infiltrators, then some enquiry is done by Border Security Force and then they are sent back; under clause 2(v) of MHA's circular of 2009, there can be a 30-day executive enquiry which, even if does not come to any conclusion, the migrant is to be deported as per procedure.
On a specific Court query, Grover gave the suggestion that if there are no detention centres/correctional home in West Bengal, the illegal immigrants who have served their sentence need to be housed somewhere else. She referred to orders in the Assam detention centre case, where the top Court, in 2019, ordered release of all declared foreigners who had spent more than 3 years in detention, subject to conditions. It was mentioned that in 2020, the directions were modified to say that the release shall take place after 2 yrs and the conditions for surety were also brought down.
Underlining that in Assam's case, persons were in detention centres, but in the present case, they are in prisons, Grover said that the Court may consider whether the guidance given in the Assam case can be of some assistance in the present case.
Counsel for West Bengal, on the other hand, defended that the Bangladeshi immigrants' nationality needs to be verified from their country before they can be deported, as the offence under the Foreigners' Act is regarding entry into India without valid travel documents. Whether the person is actually a Bangaldeshi is a separate matter of verification, he said.
"Who else could they be? That's the basis of your charge before the Foreigners' Tribunal. You have charged him saying that you are a Bangaldeshi national, you have entered the country illegally and you hold him guilty, you punish him, you sentence him, then why do you ask?" asked Justice Pardiwala in response. When the counsel replied that a confirmation is required from Bangladesh for the subject immigrant to be handed over across border with travel documents, the judge remarked, "that's not your problem."
Illegal migrants stuck in prisons despite serving sentence after conviction: Petitioner
Grover highlighted during the proceedings that illegal immigrants are stuck in prisons despite serving their sentence after conviction under the Foreigners' Act. "How can I be detained in a prison having served my sentence? That would be an anathema for Article 21...because I have been subjected to the rule of law and I have served a sentence, can my fate be worse than those who have gone under the radar of law?"
Hearing her, Justice Pardiwala commented, that the situation is "very pathetic". When Grover urged that the fate of those mentioned by her would have to be taken into consideration, the judge assured, "we will take care".
If neighboring country doesn't want an illegal immigrant back, how long will you keep him? : Justice Pardiwala to Union
Union of India, represented by ASG Bhati, took the stand that illegal migrants can't be pushed back across borders until their nationalities are verified from the respective countries. Questioning the logic behind the same, Justice Pardiwala underlined that the charge under illegal immigrants is precisely that they have illegally entered India. So where is the need to await verification from the neighboring country, the judge asked.
"Today we have reached a stage where we need to take immediate steps to send them back and they should not stay back...Just imagine 1000+ people are undertrials" noted J Pardiwala.
When ASG Bhati conceded that porous orders with many countries have been a problem for India, Justice Pardiwala said that this one problem has created many other problems in terms of security etc. "How many correctional homes you are going to put up in the country? For how long are you going to put these people in the correctional homes?" Referring to India always having had a "human touch", the judge further stressed that the illegal immigrants detained in India are maintained, provided shelter, medical aid, etc., however, if they were in any other country, they would probably have lost their lives.
It may be noted that another bench of the Supreme Court, headed by Justice Abhay Oka, also recently questioned the Union Government over the indefinite detention of illegal immigrants in foreigners' detention centres in Assam.
Justice Oka's bench observed that deportation of foreign migrants can't be delayed on the ground that their foreign addresses were not verified and issued directions to initiate the process to deport 63 persons.
Case Title: Maja Daruwala v. Union of India | Transfer Case (Criminal) No. 1/2013