Abid Khan and others v Government of Bangladesh and others

Decided

Date of decision
05 May 2003

Court
Supreme Court of Bangladesh, High Court Division

Jurisdiction
National Court

Region / Country
Asia / Bangladesh

Languages available
English; Bengali

View the case

Key themes

Parties (including notable third parties)

Abid Khan and others (Petitioners) The Government of Bangladesh and others (Respondent)

Summary of Facts

The central issue in this case was the rights of the Urdu-speaking community (also known as ‘Biharis’) in Bangladesh to be enrolled in the electoral roll on the basis that they were Bangladeshi citizens.

The Urdu-speaking community's ancestors, mainly from the Indian state of Bihar, moved to East Pakistan in 1947 during the partition between India and Pakistan and maintained an Urdu linguistic heritage. During the 1971 Bangladesh Liberation War, many Urdu-speakers sided with Pakistan, which contributed to many being left without Bangladeshi citizenship in the newly formed state of Bangladesh.

Ten petitioners brought proceedings against the Government of Bangladesh, claiming that they were fully qualified to be registered as voters under the laws of Bangladesh but were not included in the electoral rolls prepared by the Electoral Commission, including on the basis that they resided in Geneva Camp (an area in which a high-concentration of Urdu-speakers, including the petitioners, resided).

The Court categorised the petitioners into two categories, the first being petitioners born in Dhaka and Mymensingh in 1969 and 1967 respectively (‘First Group’), and the second being born in Dhaka in or after 1977 (‘Second Group’). Relevantly, Bangladesh proclaimed independence on 26 March 1971.

Legal Arguments

Petitioners’ Arguments

Regarding the First Group, the Petitioners argued that:

  • Under Article 2 of the Bangladesh Citizenship (Temporary Provisions) Order 1972 (P.O. No. 149 of 1972) (‘President’s Order’), the two Petitioners were deemed citizens of Bangladesh because they were born in a territory now comprised in Bangladesh, were permanent residents of such territory on 25 March 1971 and continued to be permanent residents of such territory.
  • The two Petitioners were not disqualified from holding citizenship under article 2B of the President’s Order, because they had not owed, affirmed or acknowledged allegiance, expressly or by conduct, to a foreign State.

Regarding the Second Group, the Petitioners argued that, under section 4 of the Citizenship Act 1951, they were citizens of Bangladesh because they were each born in Bangladesh.

Outcome

The Court considered Section 7(1) of the Electoral Rolls Ordinance 1982 and explained that the two vital issues to be decided were the citizenship of the petitioners and the legal implications of their residence at Geneva Camp.

Regarding the First Group, the Court found that:

  • The two Petitioners were entitled to citizenship under Article 2 of the President’s Order for the reasons argued by the Petitioners.
  • The two Petitioners were not disqualified from holding citizenship under Article 2B of the President’s Order because there was no evidence that they had owed, affirmed or acknowledged allegiance, expressly or by conduct, to a foreign State. The Court stated that ‘mere residence’ at the Geneva camp ‘cannot be termed as allegiance to another state by conduct’ (page 4).

The Court considered Section 7(1) of the Electoral Rolls Ordinance 1982 and explained that the two vital issues to be decided were the citizenship of the petitioners and the legal implications of their residence at Geneva Camp.

Regarding the First Group, the Court found that:

  • The two Petitioners were entitled to citizenship under Article 2 of the President’s Order for the reasons argued by the Petitioners.
  • The two Petitioners were not disqualified from holding citizenship under Article 2B of the President’s Order because there was no evidence that they had owed, affirmed or acknowledged allegiance, expressly or by conduct, to a foreign State. The Court stated that ‘mere residence’ at the Geneva camp ‘cannot be termed as allegiance to another state by conduct’ (page 4).

In determining that residence at the Geneva camp did not amount to allegiance to another State by conduct, the Court considered the following decisions which also considered the issue of whether alleged to another State had been demonstrated through conduct:

  • Mukter Ahmed v Government of Bangladesh and others (1982) 34 DLR 29 (Supreme Court of Bangladesh): the fact of filing an application to go to Pakistan could not take away the petitioner’s citizenship where he otherwise met the requirements of citizenship under the President’s Order.
  • Abdul Khaleque v the Court of Settlement and others (1991) 44 DLR 29 (Supreme Court of Bangladesh): the act of filing an application for repatriation cannot take away citizenship.
  • Bangladesh v Professor Golam Azam (1994) 46 DLR (AD) 192 (Supreme Court of Bangladesh): ‘it was observed that even a diehard pro-Pakistani born in this country is entitled to be citizen of Bangladesh if he fulfils the requirements under Article 2 and is not disqualified under clause (1) of Article 2B’ (page 4).

Regarding the Second Group, the Court found that:

  • They were citizens of Bangladesh pursuant to Section 4 of the Citizenship Act 1951 for the reason argued by the Petitioners.
  • The fact that they were born in the Geneva camp did not affect this citizenship acquired by birth.

The Court directed the Respondents ‘to enrol the names of the petitioners in the electoral roll and register them as voters if not otherwise disqualified under provisions of section 7(1)(b)(c) and (d)’ of the Citizenship Act 1951 (page 5) (such provisions relating to persons less than eighteen years old, declared by a court to be of unsound mind, or not a resident of the relevant electoral area).

International, Regional and Domestic Instruments and Provisions Cited

Source Instrument name Provisions cited
Domestic The Constitution of the People’s Republic of Bangladesh 1972 Article 102(1) & (2)
Domestic Electoral Rolls Ordinance 1982 Section 7(1)
Domestic Bangladesh Citizenship (Temporary Provisions) Order 1972 (P.O. No. 149 of 1972) Articles 2 & 2B
Domestic Citizenship Act 1951 Section 4
Domestic Evidence Act 1872 Section 57

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Naimul Muquim, ‘The Urdu-Speaking Community of Bangladesh: Forgotten Denizens or Putative Citizens?’ (2023) 37(4) Emory International Law Review 689

  • Describes the case as a ‘first step’ to   recognising the citizenship rights of Urdu-speakers in Bangladesh.
  • Observed that the Court made a determination   regarding the  citizenship of the   specific Petitioners and did not address the total population.
  • Noted that the Bangladesh Government appealed   against the decision, although this appeal was not successful.
  • Following the decision, the UNHCR expedited   its work in supporting Urdu-speakers and the decision provided precedent in   support of the subsequent 2008 Supreme Court of Bangladesh decision (Md.   Sadaqat Khan (Fakku) and Others v Chief Election Commissioner, Bangladesh   Election Commission) which determined that all members of the camp   dwelling Urdu-speaking community (CDUSC) were citizens of Bangladesh if they   met the requirements of article 2 of the President’s Order and are not   disqualified from holding citizenship under article 2B of the President’s   Order.

Shuvro Prosun Sarker, ‘Where Is Kindness Calculated? Refugee Regimes in South Asia’ (2022) 19(3) Indonesian Journal of International Law 425

  • The case is cited in support of the statement   that the Urdu-speaking community in Bangladesh lack proper citizenship,   despite specific directions from the Supreme Court to include names in the   electoral rolls and provide national identity cards.

Kamrul Hasan Asif, ‘The Status of the Bihari Community in Bangladesh under Domestic and International Law’ (2018) 25(4) International Journal on Minority and Group Rights 664

  • The case is referred to as one of two   significant verdicts concerning the Urdu-speaking community who are now   living throughout Bangladesh. It notes the Court directed the government to ‘register   them as voters’ and that ‘they are eligible to become citizens of Bangladesh’.

Naimul Muquim, ‘The Urdu-Speaking Community of Bangladesh: Forgotten Denizens or Putative Citizens?’ (2023) 37(4) Emory International Law Review 689

  • The article indicates that this decision was a   first step to recognizing the citizenship rights of the Urdu-speaking   community. However, at the same time, it was an exceptional ruling and did   not address the total population.
  • The article states that the judgment had no   political support and was appealed by the government who was unwilling to   abide by the Court’s verdict in supporting the Urdu-speaking community,   resulting in a further writ petition (Md. Sadaqat Khan (Fakku) and 10   others vs. The Chief Election Commissioner, Bangladesh Election   Commission, Block-6, Sher-E-Bangla Nagar, Dhaka and others, Writ Petition No.   10129).