15, Sep 2018 | Zamser Ali
In a huge relief for Sofiya Khatun, a detainee at the Kokrajhar Detention Camp in Assam, the Supreme Court has now ordered her release on a Personal Release (PR) Bond. The 50 year old had been lodged in the camp after she was declared a foreigner by a Foreigners’ Tribunal in Barpeta in 2016.
A division bench Justice Kurian Joseph and Justice Sanjay Kishan Kaul, hearing the Special Leave Appeal(C) No(s) 8252 on September 12, 2018 ordered the government of Assam to release Sofiya Khatun from the Detention Camp on Personal Release Bond.
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The SC order may be read here.
Though not an ultimate relief to Sofiya Khatun, the order raises questions about the functioning of the Foreigners Tribunals in Assam. Also the Guwahati High Court order that followed the Foreigners Tribunal’s order in October, 2016, Sofiya Khatun filed WPC 6574/2017. The Guwahati High Court in its final Order held,
From the written statement, it is evident that the petitioner did not disclose about her date or year of birth. She also did not disclose about her place of birth. Grandmother’s name, as well as names of maternal grandfather and grandmother, were not disclosed. She also did not disclose about the names of her brothers’ and sisters’ as well as the date or year of her marriage. Moreover, she was silent regarding her children after her marriage to Fulbar Hussain. Thus, there was omission to mention the above which were material facts specifically within her knowledge. It is essential that when one’s nationality is questioned, such material facts are required to be placed on record by the questioned individual at the first instance itself i.e., in the written statement. Failure to do so would be a vital omission rendering the version of the proceedee highly questionable. She repeated the same thing in her evidence-in-chief by way of affidavit wherein, however, she disclosed her age as 47 years as on 25.07.2016 when the affidavit was sworn. This would mean that petitioner was born sometime in the year 1969.”
Thus, Sofiya Khatun lost the case in high court but knocked on the doors of the Supreme Court of India. The case was filled by senior advocate Sanjay R. Hegde, assisted by advocate Anis Tanwir, Pranjali Kishore and advocate Kamakshi S. Mehlwal in favour of the distressed women Sofiya Khatun. After a long drawn out judicial battle the Supreme Court of India passed an order on September 12, 2018. In its order the Supreme Court of India said,
On 20.08.2018, this Court passed the following order:
Learned counsel for Respondent No.2/State is directed to get a specific instruction on the following aspects which are reflected in the additional documents handed over to the learned counsel:-
1. Is it true that five brothers of the petitioner are citizens of India?
2. Is it true that the husband of the petitioner is a citizen of India?
3. Is it true that father and mother of the petitioner are citizens of India?
The petitioner is directed to file copies of the additional documents in the Registry of this Court, during the course of the day.”
In response to the queries of the Court, an affidavit has been filed by the Deputy Secretary, General Administration Department, Government of Assam, annexing a report of the inquiry conducted by the Superintendent of Police, Barpeta, Assam. Paragraphs 4 and 5 of the affidavit read as follows:-
4. That it would be seen from the report that the enquiry has been about the 6 persons, namely, Nurul Haque, Matiur Rahman, Sirajul Haque, Monir Uddin and Osman Gonee, who are projected as the biological brothers of the alleged foreigner/petitioner herein and one Fuljar Husain, who is projected as the husband of the alleged foreigner/petitioner herein. These persons have filed affidavits in the present proceedings.
Additionally, about the projected parents of the alleged foreigner/petitioner herein, namely, Lt. Hasen Ali Munshi and Saburan Bibi, the enquiry was also made on basis of documents on record.
5. That the answering Respondent wishes to point out herein that the enquiry finds that the said persons are Indian Citizens on basis of their names appearing in 2018/2017 voters list, 1997 voters list, electoral photo-identity cards as well as the 1965 and 1970 votors’ lists in which the name of their projected patents, namely, Hasen Munshi and Saburan Bibi are included. Also, the report states about the statements of local villagers being recorded and concluded that the documents produced by them corroborates.”
The Division bench of the Supreme Court of India took strong note of the learned counsel appearing on behalf of the the Government of Assam and pointed out it’s observation thus,
Learned counsel appearing for the respondent/State submits that it is not a full fledged enquiry and the State may be permitted to conduct a full fledged enquiry.
We make it clear that it will be open to the State to conduct the full fledged enquiry referring also to the materials now made available.”
In view of the above observation the Supreme Court of India finally set aside the Order of the Guwahati High Court and ordered the Government of Assam to take appropriate steps for release of Sofiya Khatun from Detention Camp. The order said,
However, the appellant is directed to be released on bail forthwith on self bond. The appellant shall report to the police station on the last working day of every month, as required by the
Superintendent of Police, Barpeta, till the inquiry is completed.”
After the Supreme Court order, speaking to press persons, Anas Tanwir who appeared on behalf of Sofiya Khatun said, “This order will go a long way in securing release of others who have been put into detention centres. This order and other preceding orders in other cases go on to show how the clear fallacy in the whole process of identifying foreigners – be it through the NRC or the FT.”
Impact on The Order
The order of the Supreme Court of India is major breakthrough for the Foreigners and D Voters cases in Assam. Specifically, the Foreigners Tribunals of Assam that passing dozens of judgements on the basis of the Police Inquiry Report which is questionable.
“The Foreigners Tribunals during its hearing in Foreigners and Doubtful Voters cases always gives more emphasis on the questionable reports submitted by the Border Police department then the evidences submitted by the victims. The Sofiya Khatun Vs State of Assam case has exposed such ‘reports’ submitted by the police department of Assam,” says Shaiizuddin Ahmed, Advocate, Gauhati High Court. “The case against Sofiya Khatun was started in Foreigners Tribunal, Barpeta on the basis of the a ‘report’ submitted by Border Police. Sofiya Khatun was declared foreigner in Foreigners Tribunal and that was even upheld by the Guwahati High Court,” he added. “But, in the Supreme Court of India, even on the day of final hearing the Government of Assam had to accept that the state police has to investigate the case further,” he explained.
Misuse of the word “Projected”
So far, the Foreigners Tribunals and the Gauhati High Court have been misusing the word “projected” on a large scale. When a person cannot be established as Foreigner, he/she is being stamped as so called Bangladeshi on the single point that the person (who has submitted all documents according to judicial procedure has documents not available to his/her forefathers. Due to minor spelling mistake in the names or titles or age (that are often there in several official documents) the authorities try to make out that the documents do not belong to the affected party.
In such cases, the over- simplified versions accepted in the Foreigners Tribunals or the High Court is that the victim have projected someone (else) as father, mother, brother, sister–all of whom have all valid documents as Indians. In such situations, without using any scientific methodology or a DNA test, the entire family member, or one section of the family are found to be ‘genuine Indian Citizens’. No witnesses are heard, nor any other methodology applied.
In our legal system when the evidence of one witness can either save or punish a person even in offences as serious as murder, hundreds of genuine witnesses (who can testify to an illiterate’s person’s village identity) cannot save a person from being declared a ‘Foreigner’.
This has posed a singular challenge to the Indian Judiciary. In the case of Sofiya Khatun the affidavit submitted by the government of Assam, has, once again, amplified the hysteria around the use of the word ‘projected’. The affidavit uses, at several points, the word “projected father of Sofiya Khatun”, “projected mother of Sofiya Khatun”,” projected brother of Sofiya Khatun”, questioning the person’s valid relationships. The Division Bench fortunately did not let this prevent Sofiya Khatun from getting justice, though the word “projected” does remain a huge stumbling block for many other Indian citizens living in Assam.