Institute of Legal and Management Studies

A two-judge bench of the Supreme Court today (May 16) transferred the matter relating to the indefinite detention of illegal foreign migrants in the State of West Bengal to the 3-judge bench hearing the Rohingya refugees case as a matter of judicial propriety.

The Court also ordered that the State of West Bengal should identify all such illegal immigrants who are confined in prisons after having served their sentence, within a period of 4 weeks, and they should then be released on bail.

A bench comprising Justice JB Pardiwala and Justice R Mahadevan ordered :

"Our order dated 30 January, 2025 makes the picture abundantly clear. Today, we take notice of two affidavits filed by Union of India dated May 6, 2025 and May 15, 2025, respectively. Two affidavits read thus.... We deem it appropriate that this matter be tagged with writ petition no. 859/2013 (Rohingya matter).

We should clarify one aspect of this matter. In this particular matter, there is a specific challenge to clause (iv) of a memo issued by the State of West Bengal dates so and so. The challenge to clause (iv) is essentially on the grounds that once the illegal immigrant is tried and sentenced and he undergoes entire sentence, he cannot be kept any longer in prison. Undoubtedly, if the person is tried for a particular offence, sentenced and undergone the sentence, he can't be kept in the prison. At the same time, he has to be kept in the correctional home or detention centre in the true sense. Unfortunately, the State of West Bengal does not have a correctional home or a detention centre and in such circumstances, although an illegal immigrant has undergone an entire period of sentence, yet he is being kept in prison.

This is a little delicate issue and should be looked into by the State of West Bengal. We are informed that the Government is coming up with correctional/detention and the construction is likely to be completed within a period of 6 months. We don't know when the construction would be completed.

We are of the view if there is any illegal immigrant as on date in any of the jails within the State of West Bengal, who has undergone the entire sentence, and still being confined in any of the prisons past the completion of the original sentence, they be released on bail subject to the following conditions...

The State shall undertake the necessary exercise to identify all such illegal immigrants confined in different prisons. Let this exercise be completed within 4 weeks from today. Once this exercise is completed, our order shall be given effect to."

The matter pertains to a case 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, were being detained in the Correctional Homes of the State of West Bengal instead of being deported to their own country. The Calcutta High Court took suo motu cognisance of the letter. In 2013, the matter was transferred to the Supreme Court.

The present matter is being heard by a bench of Justice JB Pardiwala and Justice R Mahadevan. At the outset, Justice Pardiwala asked Solicitor General Tushar Mehta what the Union's stance was before the three-judge bench in the Rohingya matter.

This was after Mehta had informed the Court that already a three-judge bench of Justice Surya Kant, Justice Dipankar Datta and Justice N Kotiswar Singh is dealing with the Rohingya matter.

SG Mehta replied: "My stance is, India is not a party to the Refugee Convention. Therefore, we are entitled to repatriate or deport them, whatever the word is used."

As for the policy regarding deportation, Mehta submitted that because of the present situation in Bangladesh, the MHA does not want to come up with a policy right now.

Whereas, Advocate Vrinda Grover submitted that the two cases should not be mixed. She stated that in the present case, the West Bengal State's memo is under challenge, which allows further detention of illegal immigrants after they have completed their sentence for the offence convicted. She added that the reference made by SG Mehta relates to those who are in the detention centre, whereas the petitioner remains in prison.

On this, Justice Pardiwala said: "Only thing is, propriety demands that the matter be looked into by the larger bench and anything which comes from our end on the same subject matter...We can clarify one thing, let us matter be tagged Jaffar Ullah and others. We can further say that we keep the challenge to the validity of this clause of the memo open."

Grover however continued that the facts are different. She said: "I am in a prison. I continue to be held in a prison where I already served my sentence. There is no detention centre [in the State]."

She added that they use the term prison as a euphemism because actually he's held in a lock-up/jail.

Justice Pardiwala asked the State's counsel why there is no detention/correctional centre. It should be noted that the State's memo, as pointed out in court, uses the term correctional centre. State's counsel replied that they are in the final process of building a correctional centre. But when will it be finalised, he didn't give a date.

Justice Pardiwala said: "State of West Bengal does not have a correctional home or a detention centre? Do you have a correctional home in its true sense? Till then, despite the fact that they have undergone the entire sentence, they are being treated as prisoners and they remain in jail."

SG Mehta objected to Grover's argument that they are being kept in jail.

This bench had initially reserved judgment in the matter on February 13. While reserving judgement, the Court had expressed disappointment with how the illegal immigrants are being made to suffer the rigours of prisons despite their having served a sentence post conviction.

It 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. Next day, SG Mehta pressed that the Union of India wants to file an additional affidavit containing the inputs from the Ministry of External Affairs. The matter was consequently relisted.

Case Details: MS MAJA DARUWALA . AND ANR.v. UNION OF INDIA |T.C.(Crl.) No. 1/2013

Appearances: : Mr. Zoheb Hossain, AOR;

Ms. Vrinda Grover, Adv. Mr. Soutik Banerjee, Adv.; Mr. Aakarsh Kamra, AOR; Ms. Devika Tulsiani, Adv.

For Respondent(s) :Mr. Kunal Mimani, AOR; Mr. Prashant Alai, Adv.; Ms. Aishwarya Bhati, A.S.G. Mr. Raj Bahadur Yadav, AOR; Ms. Chitrangda Rashtravara, Adv.; Ms. Shagun Thakur, Adv.; Mr. Aditya Shankar Dixit, Adv.; Ms. Satvika Thakur, Adv.; Mr. Ishaan Sharma, Adv