THE SUPREME COURT ON FRIDAY questioned the alleged practice of branding Bengali-speaking individuals as undocumented Bangladeshi immigrants, and observed that identity markers such as language could not, by themselves, determine citizenship.
A Bench of Justices Surya Kant, Joymalya Bagchi and Vipul M. Pancholi was hearing a plea against the alleged detention and deportation of Bengali-speaking labourers, including a pregnant woman who was reportedly pushed into Bangladesh without due process.
During the hearing, addressing Solicitor General Tushar Mehta, Justice Bagchi asked, “We would like you to clarify the bias – the use of a language as a presumption of being a foreigner.” He further underscored that national security concerns could not justify presumptions based on identity markers such as language.
Appearing for the petitioners, Advocate Prashant Bhushan alleged that border authorities were deporting people without following lawful procedure. Referring to the case of a pregnant woman, he said, “This lady has been pushed out forcibly from the country – she is pregnant – without any proof that she is a foreigner. They are saying, Bengali language is a Bangladeshi language. Therefore, people speaking Bengali are Bangladeshis. How can any authority push out any person without any determination whether so and so is a foreigner?”
He added that the woman was later arrested in Bangladesh under their Foreigners Act on the ground that she was Indian.
Justice Surya Kant observed that habeas corpus petitions could not be adjourned simply because related matters were pending before the top Court, and requested the Calcutta High Court to take up the petition expeditiously.
Bhushan insisted that no authority should deport a person without a tribunal order.
When Justice Kant noted that foreigners’ tribunals existed only in Assam, Bhushan replied that in practice, Border Security Force (‘BSF’) personnel were acting on their own. “Sometimes these BSF people say, ‘You run away to that side or we will shoot you’,” he alleged.
Justice Bagchi remarked that anyone found within India’s territory must be treated in accordance with law. “Once the person is within the Indian land mass, then there must be some procedure,” he said.
Solicitor General Mehta, representing the Union government, countered by questioning the role of civil society groups. “Why [do] these organisations come before the Court? Let some individuals come. India is not the world’s capital for illegal immigrants,” he noted, while adding that there was systematic infiltration which placed a strain on national resources.
Justice Bagchi, however, reminded that there are two very sensitive issues: “One is our national security. That goes without saying. At the same time, we have an inherited legacy of common culture. We request you to clarify this stance.”
Bhushan pointed to Union Home Ministry guidelines requiring an inquiry by the State government before deportation. “This method of deportation is against their own circular. The circular says first an enquiry had to be made with the State government. In this case without any enquiry they pushed her out of the country,” he submitted.
The Court then explored a hypothetical situation. “Let us say there are suspicious circumstances regarding an individual, and the police register an FIR under the Foreigners Act. Can they not detain?” Justice Bagchi asked.
Bhushan conceded that detention was permissible if there was an FIR, but warned that “thousands of people are being detained because they are speaking Bengali.”
At one point, Bhushan objected to the Solicitor General’s remarks, prompting him to say, “Mr. Solicitor, your snide remarks will not get you anywhere.”
The Bench eventually directed the Union to file a reply within a week and clarified that the habeas corpus petition pending before the Calcutta High Court, concerning the citizenship status of one Sonali Bibi, should proceed independently.
Mehta suggested that the case be tagged with petitions on Rohingya refugees, describing it as part of a “larger problem of infiltration.”
The Bench, however, insisted on a separate response.
“You have already filed a reply in the pending matter. You file your reply in this, too... This is a very complicated issue. A lot of countries are trying to solve this problem,” Justice Kant said, adjourning the case for further hearing in September.
