The Language of Oppression: A Human Rights Crisis Where Speaking Bengali Can Cost You Your Freedom

Authored by Harshit Pathak & Shivam Kumar Singh, 5th and 2nd-year students respectively at Dharmashastra National Law University, Jabalpur

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Introduction

Recently, multiple Indian states have been detaining the Bengali-speaking migrant workers on the mere suspicion of their being illegal Bangladeshi without proper inquiry and denial of valid Indian documentation, which raises significant human rights violations. These arbitrary detentions, carried out without following due process of law, have provoked widespread public outrage against the state government, which calls for judicial scrutiny of the above executive exercise and requires the court to address constitutional questions of discrimination and citizenship. The Supreme Court of India has sought a response on the above issue of arbitrary executive exercise by the eight states.

In this blog, the author will analyse the implications of the above executive actions on the fundamental rights of the migrant workers. Furthermore, the authors argue that the above exercise is inconsistent with India’s obligations under the Universal Declaration on Human Rights, the International Convention on Civil and Political Rights, and other international human rights conventions. Lastly, the author calls for Supreme Court intervention to address such oppressive state actions by invoking the Unconstitutional State of Affairs Doctrine.

Language Profiling and Migrant Workers: Crackdown on Fundamental Rights

The profiling of migrant workers as illegal Bangladeshis based on the Bengali-speaking language is antithetical to the idea of equality enshrined in Article 14 of the Indian Constitution. Article 14 prohibits the state from discriminating against any individual, and any state action must not be arbitrary. The Supreme Court of India in the case of Saghir Ahmad v. State of U.P has categorically held that where selection is left to the absolute and unfettered discretion of the administrative authority without any regulations or control on such action is arbitrary. 

The authorities across Indian states are ruthlessly detaining the Bengali-speaking migrant workers without following any substantive procedure and denying to accept the Aadhar card, voter ID or even ration cards as legitimate identification defies their constitutional guarantees and amounts to manifest arbitrariness because such exercise is done irrationally and without any determining principles which is having excessive and disproportionate impact on the rights of migrants workers as sole basis for detaining them is bengali language rather than due process of law.

Additionally, the above executive action violates a very essential fundamental right guaranteed by the Constitution, namely the right to life and personal liberty enshrined under Article 21. This right not only entails the right to life and personal liberty but also includes the migrant workers' right to live with human dignity and restricts the government from taking any action that deprives workers of the enjoyment of their rights. The above exercise is violative of Article 21 because detaining Bengali-speaking migrant workers and deporting them to Bangladesh on suspicion of their being illegal Bangladeshi, deprives them of their right to live with human dignity, which includes the right to livelihood, the right to health and amounts to an unreasonable restriction on their freedom of movement.

Therefore, the executive exercise of detaining Bengali-speaking migrant workers as illegal Bangladeshis without any proper inquiry based on unfettered discretion is a clear violation of Articles 14 and 21 of the Indian Constitution.

Violations of Obligations under Human Rights Conventions and Treaties

Article 51(c) of the Constitution of India requires the Indian state to foster respect for international law and fulfil its treaty obligations under it. In pursuance of its obligations, it has ratified various human rights treaties, including the Universal Declaration of Human Rights (UDHR), the International Convention on Civil and Political Rights, and the International Convention on Economic, Social and Cultural Rights. As per Articles 1 & 2 of the UDHR, all human beings are born free and equal in dignity and rights, and are entitled to all rights and freedoms without discrimination of any kind on the basis of race, colour, sex, language, etc. Furthermore, as per Article 1 r/w Article 6 of the ICCPR, every human being has an inherent right to life which should not be arbitrarily deprived by the state and should be granted without distinction of any kind based on race, colour, language, religion, etc. The analysis of the above articles clearly establishes that migrant workers are entitled to dignity and must not be discriminated against based on their language profile.

The state has undermined these articles while carrying out the above executive exercise based on the Bengali language as a primary identifier to profile and detain the suspected migrant workers as illegal immigrants from Bangladesh. Additionally, Article 6 of the ICESCR provides for the right to work, which has been restricted by detaining migrant workers and deporting them back to Bangladesh.

Moreover, the detention of the Bengali-speaking migrant workers, even on suspicion of their being illegal migrants, doesn’t justify such detentions as it contravenes the Universal Declaration of Human Rights. Article 9 of the UDHR restricts arbitrary detention, and Article 14 of the UDHR provides for the right to seek and enjoy asylum in another country from persecution, which has been clearly violated by the detention of a linguistic group on mere suspicion and the forceful deportation of such immigrants to Bangladesh. Thus, Migrant workers are entitled to protection, and Indian states should stop such arbitrary exercise.

Oppressive State Actions: An Unconstitutional State of Affairs

The chilling pattern of the crackdown on the Bengali-speaking migrant workers by detaining and forcibly deporting them to Bangladesh across many Indian states, including Odisha, Madhya Pradesh, Chhattisgarh, Delhi, Gujarat, and Maharashtra, has raised significant human rights concerns, and many human rights activists call it a full-blown constitutional crisis. One such instance of such action is around 447 Bengali-speaking migrant workers who were detained in Odisha without any proper inquiry and often on specious grounds. These actions not only stripped them of their rights but also showed a blatant disregard for their citizenship.

Furthermore, the Supreme Court's recent direction to eight states to submit detailed affidavits on the above issue without any interim protection or substantive relief is criticised as a complete defiance of the rule of law. Therefore, the SC should invoke the unconstitutional state of affairs doctrine rather than merely issuing directions to address such grave human rights violations.

The Unconstitutional State of Affairs doctrine empowers constitutional courts to acknowledge executive collusion in the face of widespread and systemic violations of fundamental rights and to address the unconstitutional state of affairs by correcting executive dysfunction.

The widespread and systematic exercise of detention of Bengali-speaking migrant workers across many Indian states on the mere suspicion that their language indicates that they are illegal Bangladeshi is a stark manifestation of the failure of the constitutional order. This series of such actions across states shows a systematic pattern where linguistic identity is weaponised as a tool of oppression, which is an assault on the foundational guarantees of equality and liberty enshrined under Part III of the Constitution. Thus, the state of affairs is unconstitutional and constitutes a subversion of the constitutional order, calling for judicial intervention to restore the rule of law.

Conclusion 

The arbitrary detention and deportation of Bengali-speaking people on the mere suspicion of their being illegal Bangladeshi migrants not only constitutes executive excess but also an erosion of constitutional principles. By using language as an identity, the state has failed to uphold the guarantees of Equality, liberty, and dignity enshrined in Articles 14 and 21 of the Constitution of India. Such actions of the state undermine the principles of human rights and due process, replacing the rule of law with linguistic profiling and violating fundamental rights.

This exercise also violated India’s international obligations, as the ongoing arbitrary practices are contrary to its commitments under the Universal Declaration on Human Rights, the International Convention on Civil and Political Rights, and the International Convention on Economic, Social and Cultural Rights. By ignoring its obligations under various international conventions, India is losing its credibility on the global stage as a constitutional democracy committed to Human Rights protection. Judicial intervention through the Unconstitutional State of Affairs is of utmost necessity to acknowledge and rectify the systemic failure, and to restore and reaffirm the constitutional values and the principles of equality, liberty, and the dignity of every individual in the country.