Detention centre under construction in Goalpara. Photo: Tridip K. Mandal
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 prisons 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. A bench of Justice M.R.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. He is still in the Goalpara district jail, more than six years after completing his jail term. A second case relates to Akhtara Begum and Shah Mohammed Anwar Ali, both around 54, also held in the same jail, who along with their minor children were ordered to be deported to the alleged country of their origin, Bangladesh, in 2014, by a single judge bench of the Guwahati 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, who are between 40-85 years old, with the oldest of them, Joygun Begum, 85, and Basi Barman, 70, in precarious health.
The first two cases are being 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 in the case.
“It is not an emotional petition”, says Wadud. “We have stated that Central government notifications and Supreme Court judgments are not being followed”. The petition in the cause of Begum and Ali, filed by Nurut Zaman Dewan, mentions the Supreme Court order of 2019 that had ordered release of detenues 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, an SC bench headed by Chief Justice S.A.Bobde had asked states and union territories to take steps to de-congest prisons.
Though applications were moved on behalf of the detenues, “relief has not been made available to the detenues for no valid reason”, the petition states. “As a result, the detenues 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”. It says that the continued indefinite confinement of the detenues in jail in the same stringent conditions as are applicable to convicts undergoing sentence is a gross violation of fundamental rights under Article 14 and Article 21 of the Constitution. “The detenues 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. The relief may however be temporary, he admits, 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 detenues there. “Detention centres are against the soul of the Constitution, no right thinking person in Assam supports detention centres”, he adds. “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 too come from varied ethnic 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 National Register of Citizens and Citizenship Amendment Act.