Gauhati HC Orders Release Of Ex-Army Man Who Was Detained After Being Declared 'Foreigner'

The Gauhati High Court today directed the interim release of ex-army man Mohammad Sanaullah, who was arrested and sent to detention centre on May 28, after a Foreigners Tribunal in Assam adjudged him a 'foreigner'.

Mohammad Sanaullah, a 52 year old man who retired from the Army in 2017 as Honorary Lieutenant, had approached the Court against the order of Foreigners Tribunal, Boko, which had found that he was an immigrant labourer from Bangladesh. He had also filed an application seeking interim release from the foreigners' detention centre at Gaolpara.

After hearing the arguments of Senior Advocate Indira Jaising, assisted by Advocates H R A Choudhury, Aman Wadud and Syed Burhanur Rehman, the division bench of Justices Manojit Bhuyan and  P K Deka ordered the release of Sanaullah on condition that he furnishes bail bond of Rs. 20,000/- with two local sureties. He has also been directed not to move out of the territorial limits of Kamrup, without prior approval of Superintendent of Police, Kamrup.

The Court has also directed the authorities to obtain the biometrics of Sanuallah, including iris scan of his eyes and finger prints, before releasing him.

The respondents - Governments of Centre & Assam, NRC authorities and Assam Border Police - have been directed to respond to the petition within four weeks. Chandramal Das, the inquiry officer of Border Police who prepared the report against Sanaullah, has also been added as a respondent in his personal capacity.

In the petition filed on May 31, the Tribunal's decision adjudging Sanaullah as a non-citizen and his consequent arrest has been challenged as "arbitrary, perverse and illegal".

The proceedings against Sanaullah were initiated in September 2018, based on a report filed by the Assam Border Police in 2008 which stated that he was an "illegal migrant". Ironically, after retirement from the army, he was working as a Sub Inspector in the Assam Border Police, that is tasked with identifying, detaining and deporting doubtful citizens and illegal migrants.

According to the petition, the most glaring error in the Tribunal's order is that it failed to notice that he had served the Indian Army from 1987 to 2017, and had taken part in the Kargil war of 1999. Sanaullah had joined the army in 1987 and retired as Subedar in 2017. He was also promoted as Honorary Lieutenant.

To hold that Sanuallah was not an Indian Citizen, the Tribunal in Boko referred to the fact that his name had not figured in the voters' list of 1986, though he was aged 20 years then. The petition points out that this is a blatant mistake by the Tribunal, as the minimum age of vote in 1986 was 21, and it was lowered to 18 only through the 61st Constitution Amendment made in 1989. The Tribunal failed to take notice that his name was in the voters' list since 1989 and that he had voted even in the recently held election.

Inquiry report a farce

The inquiry report filed by the Border Police in the Tribunal in 2008 stated that Sanaullah was 50 years old and his profession was "labour". It contains a purported "confessional statement" of Sanaullah that he was born in Dhaka, Bangaldesh, and had illegally migrated to India for a better living. The border police also threw suspicions about the Indian nationality of his family members.

The petition terms this inquiry report, which was relied on by the Tribunal for its conclusions, as a farce.

On the dates when Sanaullah's statements were stated to have been taken by the Border Police, he was away on duty in a counter-insurgency operation in Manipur, as evidenced by his service records, submits the petition. The petition asserts that no inquiry officer visited his house and that no notice has ever been served on him.

"The so-called inquiry report is completely false and fabricated", the petition stated.

The report has described the ex-service man an "illiterate" person and has taken his supposed thumb impression, which is disputed as 'forged' in the petition. Based on this report, a reference was made to the Foreigner's Tribunal, which issued notice to him in September 2018.

The Tribunal has completely adopted the inquiry report, without any independent application of mind, and without appreciating the documents produced by Sanaullah, contends the petition.

SC monitored Assam-NRC process

The Supreme Court is currently monitoring the process for finalizing the National Register of Citizens for Assam with the aim of sending out non-citizens from the state.

In the context of the reports about the Kargil war veteran being deprived of citizenship, Chief Justice of India Ranjan Gogoi had remarked on May 30 that

"There are reports in the media that suggest that the objections (to the exclusion) are not being heard properly. The media is not wrong every time; it can also be correct at times. The claimants must be given a fair opportunity".

The Court has set a deadline of July 31 for finalizing the NRC, and has sternly refused to extend it, despite requests by the Union Government.

The process is going ahead amidst several complaints of illegal exclusion of genuine citizens. The draft NRC list published on July 30, 2018 had excluded nearly 40 lakh persons. The State Coordinator for NRC Prateek Haleja has informed the top court that about 36.2 lakh claims and about 2 lakh objections have been filed as on December 31, 2018, the cut off date for submission of claims and objections.

Last year, another ex-army man with 32 years of military service, had approached the SC against exclusion from draft NRC list.

Sanuallah and his family are also not figuring in the draft NRC list.

The Foreigners Tribunals have reportedly declared about 46,000 persons as foreigners since 2015. On April 9, the CJI-led bench had pulled up the Assam Government when it informed the Court that only 4 out of the declared foreigners have been deported between 2013 and 2019, and that 2000 of them were kept in detention centres. This was done by the Court while hearing a plea by social activist Harsh Mander for making the living conditions in detention centres humane.

Perceiving bias on the part of CJI on the issue of foreigners deportation, Mander moved an application seeking his recusal from the case. This was not appreciated by CJI Gogoi, who instead replaced Mander with Supreme Court Legal Services Authority as the petitioner of the case.

On May 11, the top court had ordered that detenues who have completed more than three years in detention centres should be released on execution of bonds.