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SC sets aside order declaring Assam native as foreigner

Source: PTI
February 19, 2019 23:40 IST

The Supreme Court has set aside an order declaring a man as foreigner whose Indian citizenship was denied on the ground of discrepancy in the name of his grandfather.

A bench of Justices Rohinton Fali Nariman and Vineet Saran noted that character 'F' was replaced with 'M' in his grandfather's name in some of the documents.

While in all the documents produced before it, the Assam native's own name -- Sirajul Hoque -- and his father's name -- Hakim Ali -- was same throughout, in some of the documents, his grandfather's name was shown as Kefatullah instead of Kematullah, it noted.

It further noted that the name of the father of Kemtullah or Kefatullah, appears as Amtullah throughout all the documents.

The discrepancies in Kematullah's name had led to the Foreigner's Tribunal declaring him a foreigner. Hoque's grandfather and father later lived in different villages was an additional ground for Tribunal's conclusion.

The Gauhati high court had dismissed the petition filed against the tribunal's judgment.

 

The apex court, however, noted that Hoque had successfully established his grandfather's and father's identity.

"Having gone through these documents, we are of the view that it is not possible to state that Kematullah is not the same despite being named Kefatullah in some of the documents. This being so, the grandfather's identity, father's identity etc. has been established successfully by the appellant.

"Further, the mere fact that the father may later have gone to another village is no reason to doubt this document. We, therefore, set aside the judgment of the High Court as well as the Foreigner's Tribunal and allow the appeal," the bench said.

Apart from these documents, the court took on record certain other documents, including the National Register of Citizens Registration details of 1971, photo identity cards issued by the Election Commission of India and the identity cards issued to his brother, including voters lists in which the Hoque's name appeared.

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SC expresses concern over illegal migrants lodged in detention centres in Assam for long

The Supreme Court on Tuesday expressed concern over thousands of illegal migrants being kept in detention centres for years in Assam without being repatriated or deported to their countries of origin.

"Don't you think some explanation is called from state government as to why these people are detained for such a long period? Many of them have been detained for last 9-10 years. What is the justification," a bench headed by Chief Justice Ranjan Gogoi asked Solicitor General Tushar Mehta.

Mehta, who was appearing for the Assam government, said there was a need for evolving a mechanism for repatriating them and it should be done expeditiously.

The solicitor general explained the nitty gritty involved in dealing with the illegal migrants whose verification were done to determine their nationality before deporting them from the detention centres.

However, the bench, also comprising justices L Nageswara Rao and Sanjiv Khanna, raised several issues connected with the detention centre and said that the detainees cannot be held for indefinite period.

"For all these years, the living condition at the detention centre are far from satisfactory. People are detained for the last 10 years. You are unable to repatriate them," the bench said adding that 'condition in the detention centre are sub-human and it is pathetic'.

The bench, which agreed to the request of the solicitor general to give him two weeks' time to address the concerns raised by it, posted the matter for March 13.

In the order, the bench said, "For the present, the court is of the view that judicial attention would be required to be focused on two primary issues raised in the present writ petition, namely, the living conditions in detention centres and justification of the long detention of persons identified to be foreigners or convicted under the Foreigners Act, 1946 pending deportation."

"The deportation process presently being followed and the erstwhile process, i.e., push back as disclosed in the affidavit of the state, would require a detailed consideration along with the fact as to whether there could be an alternative to housing the declared foreigners in a detention centre, in the first instance, and whether such detention in the detention centre should be the last option," the bench further said, adding that the affidavit filed by the Assam government has not covered the issue.

It said that the Centre and the Assam government will have to come out with a clear stand on various issues by holding joint meetings with competent authorities of the Union Ministry of Home Affairs and Ministry of External Affairs as suggested by the Solicitor General.

The bench said there was a need for a clear stand on the issue of living conditions at the detention centres which are sub-human and there is need for 'justification for long detention of people as the Assam government has itself said that some of the detainees are there for 9-10 years'.

Further, it said reference has been made of push back policy as the deportation process which was prevalent till March 2013.

The solicitor general was responding to the January 28 queries of the apex court which had asked the Centre and the state to provide details of functional detention centres in Assam and the foreigners detained in them during the last 10 years.

He told the apex court that 938 people are lodged in six detention centres in Assam and 823 of them have been declared foreigners by tribunals.

The bench was told by Mehta that both the Centre and the state have filed their affidavits providing details sought by the apex court.

The Centre said over 27,000 foreigners have been pushed back at border points while attempting to enter India illegally.

The solicitor general said the Centre has allotted Rs 47 crore and Assam has provided land for building a new detention centre with various facilities, keeping in mind issues covering human rights.

He said the new detention centre will be ready by August 31.

However, when Mehta was making his submissions, the bench posed him several questions.

It also said that tribunal has declared only 52,000 as foreigners and the Centre has deported only 166.

"We are concerned that how 52,000 illegal immigrants will be going to be deported. You follow the policy of pushing them from one place and they come back from another place.

"If the country of origin does not take them back that is also a problem. How the government of India is going to handle such problem. If you have to send them to the country of origin you cannot allow them to remain free.

"You have to put them at a secure place. It is alleged that they are treated as sub-human," the bench said, adding 'How can people have confidence in Assam government?'

The bench also referred to the issue of NRC carried by the Assam government and said 40 lakh people were not included in it. It asked does this mean they are foreigners.

The apex court further said that the problem of illegal migrants in Assam has been there for the last 50 years but no steps have been taken to deport or repatriate them.

Mehta said all illegal migrants have to go and he would take instructions how to expedite repatriation.

The top court was hearing a PIL filed by activist Harsh Mander through advocate Prashant Bhushan on the plight of foreigners in detention centres.

The plea alleges that they are kept in detention indefinitely just because they are not Indians and are treated as 'illegal aliens'.

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