Supreme Court Asks Union To Verify Allegations That Bengali Migrant Workers Were Detained As Foreigners Only Because Of Language

In the PIL assailing detention of migrant Muslim workers from West Bengal, over suspicion of their being Bangladeshi citizens, the Supreme Court today sought a clarification from the Union as to whether Bengali-speaking migrants were detained as foreigners only because of the use of a particular language.A bench of Justices Surya Kant, Joymalya Bagchi and Vipul M Pancholi heard the matter and issued notice on an interim application filed by the petitioners seeking to restrain the respondent-authorities from deporting any person without first ascertaining their citizenship.Calling for the Union's response within 1 week, the Court also impleaded State of Gujarat as a party-respondent, pursuant to an application seeking impleadment of the state, on the basis that persons were similarly being picked up and pushed out by Gujarat authorities.At the outset of the hearing, Advocate Prashant Bhushan (for petitioners) submitted that one Sunali Bibi (whose case was mentioned in the petition) had been forcibly pushed out of India on mere presumption that she was a Bangladeshi, without any authority determining that she is a foreigner. A habeas corpus petition was filed in her respect, but the High Court adjourned the matter due to pendency of the present case. The counsel further claimed that the woman is pregnant and was ousted from the country merely because she was Bengali-speaking.In this regard, the bench observed that the two cases are entirely different and pendency of the Supreme Court matter ought not to preclude hearing of the habeas corpus case before the High Court. Accordingly, it directed,"We clarify that the issue before this Court is different and has no bearing on the writ petition seeking a writ of habeas corpus before High Court. We request High Court to immediately take up the [case] and pass appropriate orders. Liberty is granted to raise the issue of ascertainment of citizenship of [the woman] or her family members before the High Court."Secondly, Bhushan contended that before a person is pushed out of the country, there must be a determination by some authority - Foreigners' Tribunal, a Court, or the Government of India - that they are a 'foreigner'. Further, there must be an agreement with the country to which the person is being sent (in this case, Bangladesh), otherwise pushing out of such person, without the recipient country agreeing to take them, would be violative of international law.In support of his assertion, Bhushan pointed out that Sunali Bibi was pushed out of India on the assumption that she's a Bangladeshi but she was arrested by Bangladeshi authorities on the belief that she's an Indian.However, when the counsel sought an interim order from the Court, to prevent ousting of any person from the country without a determination that they are a 'foreigner', the bench expressed difficulty. "How to pass an order which will be perceived little vague? How to ensure its compliance?" asked Justice Kant.Subsequently, Bhushan pointed to "drastic consequences" of what is transpiring, while saying, "sometimes BSF people say you run to the other side else we will shoot you". At this point, Justice Bagchi drew a distinction between persons who are found crossing the international border and persons who have already entered the Indian landmass.In the former case, the judge said that security forces have a right to push-back/depart the individuals concerned, but in the latter case, some procedure needs to be followed.Solicitor General Tushar Mehta questioned as to why the Court must entertain a petition filed by an organization. He asked the Court to let some aggrieved individual approach it, before it delves into the issues. "They can't come because they would have to justify their legal presence in India", said the SG.Pursuant to the submissions, Justice Bagchi sought a clarification from the SG on whether someone can be presumed to be a 'foreigner' on the basis of their use of a particular language. "Certain bias in respect of the exercise of the powers by authorities is sought to be demonstrated in the petition namely the use of a particular language being a presumption of being a foreigner. Whether at all this is correct, if you could clarify that...", said the judge.When Justice Kant also pointed to allegations that Bengali-speaking migrant workers are being selectively picked up, the SG clarified that that is not the case. Rather, the government is addressing the issue of illegal migrants, so that they do not eat away at the nation's resources, and there is a genuine problem of illegal immigration. Ultimately, Justice Kant asked the SG to place before the bench the Standard Operating Procedure adopted by authorities."You give us SOP they follow. There are persons who are trying to enter, forcing them back, there should not be any difficulty. But those who are presumed to have entered at one point of time, and now you are sending them back, for them maybe the first question will be show proof ...

Supreme Court Asks Union To Verify Allegations That Bengali Migrant Workers Were Detained As Foreigners Only Because Of Language

Debby Jain

"India has inherited a legacy of common culture. Bengal and Punjab, language is same. Border divides us", observed J Bagchi.

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