'Judgements and notifications not being followed': Assam’s civil society comes together to challenge illegal detentions
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'Judgements and notifications not being followed': Assam’s civil society comes together to challenge illegal detentions

The cases being taken up relate to Hindus as well as Muslims, and Bengalis as well as Assamese.

By Samrat X

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The Gauhati High Court on Friday issued notices to respondents including the governments of Assam and India in a set of writ petitions that challenge the holding in prison of those who have fallen afoul of measures meant to control illegal immigration. Lawyers representing different sections of Assam’s civil society came together to file three such petitions before the court.

The bench of Justice MR Pathak heard the matters, which were argued by senior advocate Nilay Dutta for all three petitioners.

One of the petitions is on behalf of a man named Chittaranjan Sarkar, 62, who was arrested in April 2009 on allegations of being a foreigner who had illegally entered India. He was convicted in April 2012, and sentenced to one-and-a-half years’ imprisonment. Sarkar is still in the Goalpara district jail, more than six years after completing his term.

A second case relates to Akhtara Begum and Shah Mohammed Anwar Ali, both around 54, also held in the same jail. Along with their minor children, they were ordered to be deported to Bangladesh, the alleged country of their origin, in 2014 by a single-judge bench of the Gauhati High Court. They have been in jail since, although they were never convicted by any court of any offence under the Foreigners Act, nor was any opinion arrived at regarding their matter in a Foreigners’ Tribunal.

The third case is on behalf of five women alleged to be from Bangladesh, all declared foreigners by Foreigners’ Tribunals, and held at Central Jail, Jorhat. The women are between 40 and 85 years of age. The oldest of them, Joygun Begum, 85, and Basi Barman, 70, are in precarious health.

The first two cases are represented by lawyers Aman Wadud, Mustafa Khaddam Hussain and Ankita Paul, and the third by lawyers Pallavi Borah and Santanu Borthakur, who is also the petitioner.

“It is not an emotional petition,” said Wadud. “We have stated that central government notifications and Supreme Court judgements are not being followed.”

The petition in the case of Begum and Ali, filed by Nurut Zaman Dewan, mentions a 2019 Supreme Court order that had ordered the release of detenus who had completed more than three years in detention, subject to certain conditions. After the outbreak of the global coronavirus pandemic, this was reduced to one year by the Supreme Court.

In March, a Supreme Court bench headed by Chief Justice of India SA Bobde had asked states and union territories to take steps to decongest prisons.

Though applications were moved on behalf of the detenus, “relief has not been made available to the detenus for no valid reason”, the petition states.

“As a result,” it continued, “the detenus continue to suffer their indefinite incarceration since 2.2.2014 (i.e. for a period of more than six years) in a state prison in violation of the procedures laid down in law.”

The petition says that the continued indefinite confinement of the detenus in jail — under the same stringent conditions that are applicable to convicts undergoing sentence — is a gross violation of fundamental rights under Article 14 and Article 21 of the Constitution. “The detenus are therefore entitled to a habeas corpus from this Hon’ble Court mandating their immediate release from the illegal detention that they are being made to suffer at present.”

The other petitions also make similar arguments, and appeal for writs from the court in the nature of habeas corpus.

Wadud is hopeful that the court will give relief to the petitioners. However, the relief may be temporary, he said, because the petitions challenge the detentions of these people in prisons, but a brand-new detention camp is being constructed in Goalpara. He apprehends that the government might want to move the detenus there.

“Detention centres are against the soul of the Constitution, no right-thinking person in Assam supports detention centres,” he added. “That is exactly why civil society members of Assam came together to challenge illegal detention.”

The petitions are notable not only in themselves but also in the mix of petitioners and advocates involved. Politics of identity is impossible to escape in any matter relating to alleged illegal immigrants from Bangladesh in Assam.

The cases being taken up relate to Hindus as well as Muslims, and Bengalis as well as Assamese. The family of Begum and Ali, according to Wadud, is of mixed Miya and Assamese Muslim heritage, and they have relatives on both sides of the India-Bangladesh border. The advocates taking up the cases also come from varied backgrounds.

The outcome of the cases is likely to have implications for other alleged illegal immigrants currently languishing in prisons in Assam, and possibly for Assam’s fractured society which was riven by the issues of the National Register of Citizens and the Citizenship Amendment Act.

This piece was first published in East Wind.

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