Safiya Malik

The Supreme Court of India has sought explanations from the Union of India and the State of West Bengal regarding the prolonged detention of Bangladeshi nationals in correctional homes even after completing their sentences under the Foreigners Act, 1946. The court questioned the necessity of continued incarceration despite the conviction and sentencing of the individuals, directing the authorities to submit detailed reports explaining the procedures followed in deportation and nationality verification.

The matter originated from a letter petition submitted by a public-spirited citizen associated with the Commonwealth Human Rights Initiative (CHRI). The petition, dated May 2, 2011, was addressed to the Chief Justice of the Calcutta High Court, highlighting the continued detention of Bangladeshi nationals in correctional homes across West Bengal after they had completed their statutory sentences under Section 14A and 14B of the Foreigners Act, 1946.

The petition stated that, as per official records from the Directorate of Correctional Services, Government of West Bengal, 495 Bangladeshi nationals (421 men and 74 women) who had served their sentences remained confined in correctional facilities as of February 1, 2011. It was submitted that this prolonged detention violated their fundamental rights under Article 21 of the Constitution of India.

The petitioners argued that the detention policy lacked statutory backing and that such individuals should be repatriated immediately upon the completion of their sentences. The letter also referred to government memorandums and standard operating procedures (SOPs) that prescribe continued detention pending nationality verification. It was contended that these policies were unconstitutional and arbitrary.

The Calcutta High Court took suo motu cognizance of the letter on May 13, 2011, issuing notices to the Principal Secretary, Home Department, West Bengal. The State of West Bengal subsequently filed a response. Meanwhile, the petitioners filed a Transfer Petition before the Supreme Court, seeking to consolidate the matter with Bhim Singh v. Union of India (W.P. (Crl.) No. 310 of 2005), which dealt with a similar issue. On November 19, 2012, the Supreme Court allowed the transfer, directing the Registrar General of the Calcutta High Court to forward the case records.

The Supreme Court recorded that more than 12 years had passed since the matter was transferred from the Calcutta High Court, but no further progress had been made. The court noted that the West Bengal government’s SOP dated March 6, 2007, and the Ministry of Home Affairs’ circular dated November 25, 2009, formed the basis of the continued detention policy.

The court questioned the rationale behind detaining foreign nationals after they had served their sentences, stating: "The pivotal issue that falls for our consideration is that if an illegal immigrant from Bangladesh after being apprehended and proceeded under Section 14A(b) of the Foreigners Act, 1946, is convicted and sentenced to undergo a particular term of imprisonment, then after he completes his term of sentence, should he be immediately repatriated/deported to his own country or should he be kept for an indefinite period in the correctional homes in India?"

The bench further questioned the need for nationality verification after conviction, stating: "Once an illegal immigrant is put to trial and is held guilty, then what is the requirement for further verification of his nationality at the end of the Ministry of External Affairs?"

The court referred to Clause 2(v) of the Ministry of Home Affairs' Circular dated November 25, 2009, which mandates that deportation verification processes should be completed within 30 days. The court recorded: "The plain reading of Clause 2(v) indicates that the entire exercise, i.e., the exercise of deportation, verification, etc., must be completed within a period of 30 days. We want to know why this Clause 2(v) is not being strictly complied with."

The court also sought updated figures on the number of Bangladeshi nationals still detained in correctional homes across West Bengal. It asked the government to clarify: "How many illegal immigrants, as on date, are in various detention camps/correctional homes after being convicted and having undergone the entire sentence under the Foreigners Act?"

The Supreme Court issued the following directions:

1. The Union of India and the State of West Bengal were directed to submit a comprehensive report or affidavit addressing the concerns raised by the court.

2. The Union of India was asked to clarify why convicted illegal immigrants remained in detention instead of being immediately deported after serving their sentences.

3. The State of West Bengal was directed to specify its role and responsibilities in the detention and deportation process.

4. The Union of India was asked to explain what actions were expected from the State of West Bengal regarding the repatriation of foreign nationals.

5. The court directed that the matter be listed for further hearing on February 6, 2025, and granted one final opportunity to the authorities to present their stance.

Case Title: Maja Daruwala & Anr. v. State of West Bengal & Anr.
Case Number: T.P. (Criminal) No. 1 of 2013
Bench: Justice J.B. Pardiwala, Justice R. Mahadevan

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