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In light of the post-election violence in the state of West Bengal, a PIL seeking detection, deportation and detention of the Rohingyas has been filed in the Supreme Court.
The PIL amongst other things seeks the addition of a chapter in the Indian Penal code, making “illegal infiltration a cognizable non-bailable and non-compoundable offense”.
The petition also seeks to invoke National Security Act against the employees of government, police officers, etc who have links to the ‘infiltrators’ and who aid in infiltration. It also seeks that their “cent percent disproportionate assets” be seized. The petition also seeks action against everyone who is involved in providing forged documents like Pan card, Aadhar card, Voter card, Ration card, passports, etc to Rohingyas and Bangladeshi ‘infiltrators’.
Who is the petitioner?
The PIL is filed by Sangita Chakraborty who is a human and civil rights activist and is striving for the welfare of socially and economically downtrodden people and BPL families in West Bengal. The plea will be argued by advocate Ashwini Kumar Upadhyay and has been filed by Ashwini Kumar Dubey.
The Ministry of Home Affairs, Ministry of Law and Justice, Government of West Bengal, and the National Human Rights Commission, have been made respondents in the PIL.
What is the PIL about?
The petition has been filed citing the incidents of May 2, 2021, when post-election results violence took place in West Bengal. It has been alleged in the petition that the “Rohingya-Bangladeshi ‘infiltrators’ started beating, killing, heckling, looting, kidnapping, raping, burning the houses of Hindus who voted to BJP”
Various complaints with the National Human Rights commission of people rendered homeless, beaten, destruction of property has also been mentioned in the petition. Instances of false cases, murder, abuse of women, suicide due to the unbearable violence have also been cited in the petition.
The petitioner while indicting the change in the demography of West Bengal, mentioned the need to “identify those who have illegally crossed the border and continue to live in Bengal, contrary to law and Constitution.”
The PIL also states that the injury to public is substantial since the increasing Rohingya-Bangladeshi ‘infiltrators’ have not only changed the demography of Bengal but are also a threat to rule of law and internal security, particularly after assembly election.
Arguments regarding factors aiding the ‘infiltrators’.
The petition states that the vote bank politics, linguistic, ethnic, and religious affiliations in India, as contributing to the increased ‘infiltration’ from the Bangladesh-Myanmar border.
It also cites acceptance of the ‘infiltrators’ owing to low remuneration, corrupt officials, and forged documents for a cheap rate of Rs 1000/-, as factors.
The petition also states that the cheap cost of Rs 2000/- for a ‘trip to India from Bangladesh’ is also a contributing factor.
Arguments regarding national security and safety
The petition has also used the growth of the Muslim population as per the 1991 census in Assam as an indication of the growing number of ‘infiltrators’.
Furthermore, the petition while indicating a link between militant organizations and the issue of infiltration by militant organizations states that the “dangerous consequences of large-scale infiltrations from Bangladesh-Myanmar for the nation as a whole, need to be emphatically stressed.” While doing so petition cites that Pakistan’s militant organization ISI is active in Bangladesh and Myanmar and is supporting the militant movement. The petition also states that “Militant organizations have mushroomed and there are reports of Muslim youths having gone for training to Afghanistan-Pakistan.”
The petition also states that “Rohingyas have started into the territory of India since 2012-13 and the Centre has contemporaneous from security agencies inputs and other authentic material indicating linkages of some unauthorized Rohingya immigrants with Pakistan based terror organizations and similar organizations operating in other countries.”
Accordingly, the petition stresses on the reduced status, of indigenous people of Bengal and Assam, to minorities as well as the threat to ‘cultural survival’, ‘political control’ and ‘employment opportunities’.
Moreover, the petition also states that the issues of smuggling of goods and livestock due to the ‘porous borders’ also present.
While urging the court to direct the Centre to take necessary steps, the petition also highlights the issues like, “mobilization of funds through hundi/hawala channels, procuring fake /fabricated Indian identity documents for other Rohingyas and also indulging in human trafficking. They are also using their illegal network for illegal entry of others in the India.”
Arguments regarding violation of fundamental rights
The petition states that there is a grave violation of the fundamental right to reside and settle, as well as the right to move. It also states that the right to food, shelter, good environment, and livelihood, as available under the right to life is also violated due to the presence of the Rohingya ‘infiltrators’.
Burden of Proof
The petition cites Section 106 of the Evidence Act while mentioning that person in question would have to submit the necessary proofs. Section 106 states that, when the fact is within the knowledge of the person, the burden of proof is upon him.
It is argued therewith, by the petitioner that the burden of proof should vest with the concerned person, who asserts to be an Indian citizen. The petition states that the kinds of proof required - date of birth, place of birth, name of parents, or in certain cases birth of his grandparents - would “necessarily be within the personal knowledge of the person concerned and not of the authorities of the State.”
Such proofs can later be rebutted by the state authorities to assert that the person in question is a foreigner, states the petition.
National laws, international laws, and conventions as cited in the petition
The petition cites various political references including the talks with the then Prime Minister of Bangladesh in 1972, wherein, the petition states return of Bangladeshi nationals post-March 25, 1971 was assured.
Accordingly, the petition states, that a circular was issued by the center on September 30, 1972, stating that those who entered before the said date were not to be sent back, but those who entered after were to be ‘repatriated’.
The definition of illegal migrant, as in Assam Accord in also relied on. The petition states that “illegal migrants have been defined in Assam Accord as those who infiltrated illegally after 1971.”
The petitioner relying on Section 3 of the act states that “the legislative intent is clear, which is to confer an administrative and executive discretion upon the Centre to take steps with regard to either “all foreigners” or “with respect to particular foreigner” or “any specified class or description of foreigners”.”
The petition further states that, “This discretion is necessary since parameters, circumstances and other considerations will vary in each case as explained above. But Central Government is not taking steps in spirit of the Foreigner Act 1946.”
Accordingly, the petition states that “the Act of 1946 in general and Section 3(2)(c) in particular, obligates the Central Government to deport an illegal immigrant.
The petition states that “According to Foreigners (Report to the police) Order, 2001, made under the Foreigners Act 1946, where any person who has reason to believe that a foreigner has entered India without valid documents or is staying in India beyond the authorized period of stay accommodates such foreigner in a premise occupied owned or controlled by him, for whatever purpose, it shall be the duty of such person to inform the nearest police station, within 24 hours, of the presence of such foreigner. Foreigners Act empowers the Indian administration to detain a person until he/she is deported back to his/her own country.”
The petition also refers to Article 13 of ICCPR, which provides that an alien lawfully in the territory of a State party to the Covenant may be expelled only pursuant to a decision reached by law.
Although the petitioner further states that “This Covenant would apply provided an alien is lawfully in India, namely, with valid passport, visa etc. and not to those who have entered illegally or unlawfully.”
Moreover, the petition states that, “While India is a party to the International Covenant on Civil and Political Rights, the scope of the said Covenant does not extend to the principles of non-refoulement.”
Furthermore, the petition also cites various other relevant conventions which would not be applicable since India is not a signatory. As mentioned in the petition,
“The provisions of Convention Relating to Status of Refugees, 1951 and Protocol Relating to Status of Refugees, 1967 cannot be relied upon India since it is not a signatory of either of them. Since India is not a party to the Convention, or Protocol, the obligations contained therein are not applicable to India.”
“So far as the International Convention on Protection of All Persons against Enforced Disappearances and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is concerned, India is yet to ratify these Conventions and therefore, do not bind India.”
Accordingly, the petitioner has sought action against the ‘infiltration’ of the Rohingyas and urged the court to issue hold liable anyone involved in the facilitation of the same. The petition has hence also sought the inclusion of ‘illegal infiltration’ as a punishable offense under IPC.
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