Detention even before order of tribunal declaring her as foreigner

Kosha Doshi | Symbiosis Law School, Pune | 2nd April 2020

Mamtaz Begum v. Union of India [Writ Petition (Civil) 2312/2018; Gauhati High Court]

Facts:

            The dispute began when a woman named Mamtaj Begum filed a case against the Union of India, Election Commission of India, State of Assam, the State Co-Ordinator, the Deputy Commissioner, the Superintendent of Police (Border) and Manuar Jahan. The issue at hand was her claim for Indian citizenship. On the 26^th of February 2019 a case was filed by her with evidence in support of her Indian citizenship. 

            Mamtaj Begum’s father named Sabur Ali, son of Fajar Ali had his name recorded in the annual Khiraj Patta serial number 194 of the revenue village, Malibari. The evidence for the same was provided in the court with Justice Achintya Malla Bujor Barua and Justice Ajit Borthakur as its bench. Mamtaj’s mother, Jabeda Khatun’s and her father’s name was in the Voters’ list, 1966. The serial number 109 and 110 of the Voters’ list provided their enrollment respectively for the years stated. 

            The court passed an order for further proceedings to take place on the 20^th of March 2019. Petitioner along with DW-4 were directed to appear on the assigned date. But the petitioner was arrested on the 19^th of January 2019, months before the order was even passed by the tribunal. The tribunal had not rendered its decision, but the petitioner was taken into custody. Mamtaj had been tagged a foreigner due to her detention without the actual order being passed. 

Issue:

Whether the tag of a foreigner given to Mamtaj due to her detention was valid?

Judgment:

            The Guwahati High Court on the 17^th of December 2019 heard the case of Mamtaj Begum and gave its decision in her favor followed by certain conditions. The bench which gave the judgement comprised of Justice Suman Shyam and Justice Parthivjyoti Saikia. The court took into notice that the petitioner, Mamtaj was taken into custody even before she was declared as a foreigner. The order passed on the 8^th of March 2019 by the Foreigners’ Tribunal declared Mamtaj Begum as a foreigner, but she was admitted into the Woman Detention Centre of Jorhat quite before the order was passed.

            During the case, petitioner’s counsel, Mr. AK Talukdar cited a copy of the NRC 1951, Voter’s List of 1956 and 1957 and the certified copy of jamabandi names of her grandparents as evidence. This linkage had been rejected by the Tribunals earlier. Further Mr. AK Talukdar provided a copy of NRC containing the name of Mamtaj’s mother, brother and sister. When the Guwahati High Court heard the case, it decided that the petitioner had been wronged by being detained prior to the passing of the order. Thereby the Guwahati High Court rendered its judgment on Mamtaj’s side. 

            The bench made a note that despite the order being passed on 8^th March 2019 the petitioner was arrested on 19^thJanuary 2019. Custody of a person before an order being given led to grave injustice. The court directed an interim relief to Mamtaj Begum along with a notice to the Superintendent of Police (border), Sirasagar. The notice stated the release of Mamtaj from the Woman Detention Centre in Jorhat. The release along with the interim relief served as a compensation for her being taken into custody. 

            The release would be on the furnishing of a bond along with a surety of like nature of ₹ 5000/- Mamtaj would have to report to the Superintendent of Police after every fifteen days. Breach of any of the conditions would result in automatic cancellation of the release order granted by the court. The order also stated that the Superintendent of Police shall capture the fingerprints along with the biometric of Mamtaj’s iris as advised.

            Having been taken into custody even before the tribunal passed an order led to accumulation of denial of justice. Even before Mamtaj was tagged a foreigner she had been moved to a detention center. The Guwahati High Court passed an order providing interim relief and compensating for detaining her even before the order of the tribunal was passed. The bench further ordered her release in the prescribed manner thereby imparting justice.