7 Feb 2022 11:45 AM GMT
While inquiring into a Habeas Corpus petition filed by the Petitioner seeking the release of her son from Special Operational Group, the Gujarat High Court has remarked,"the least that is expected of the person who has been given such wide and vital powers of recommending the deportation of a person on the basis that he is not an Indian national, is to avail an opportunity of hearing...
While inquiring into a Habeas Corpus petition filed by the Petitioner seeking the release of her son from Special Operational Group, the Gujarat High Court has remarked,
"the least that is expected of the person who has been given such wide and vital powers of recommending the deportation of a person on the basis that he is not an Indian national, is to avail an opportunity of hearing to the person concerned."
This observation was made in reference to the wide powers that the Central Government is vested with to inquire into the nationality of a person and deport the person if not found to be an Indian national.
The Petitioner, Rasidaben, filed a Habeas Corpus Petition under Article 226 of the Constitution seeking the release of her son who was married and had three children. The Petitioner presented the Election Card, Ration Card and the Aadhar Card to substantiate her version. She averred that she had been residing in Ahmedabad with her family for a long time and was engaged as a manual labourer where her son (Amir) was born to her.
Since she was illiterate, she could not register the son's birth. The Special Operation Group ('SOG') was suspicious that Amir was a Bangaldeshi national, he was taken to a detention centre. The SOG assured her that after finishing a certain inquiry, he would be released. However, Amir had been in detention since 18.06.2020.
The Petitioner contended that the detention was unsustainable since his parent's citizenship had not been questioned. Additionally, the Respondents had failed to investigate the lineage of the detenu and because he was of West Bengal origin, there was suspicion about his citizenship. He had been detained earlier, as well but was released within a day. The detenu had no connection with Bangladesh and was the sole breadwinner of his family.
The Respondent, per contra, stated that when Amir was detained, he could not produce any documents to substantiate his citizenship in India. Further, his entry into India was illegal and his Aadhar Card was not a document of citizenship. The Respondents also found a few discrepancies in the birth year of the Petitioner in the Election Card issued to her. Additionally, the School leaving certificate indicated Amir's birthplace as Devadange, Bangladesh. The age of the detenu also differed in his Aadhar Card and the Election Card. It is on this basis that he was detained, and confinement followed.
The Bench observed that Amir and other detenus were caught near a mosque and had admitted their Bangladeshi citizenship. They had no visa, passport, Election Card, PAN Card, Driving License or other proof. The Additional Police Commissioner had in accordance with powers under Section 3(2)(g) of the Foreigners Act 1946 detained these persons.
The Court explained that the Central Government had powers to prohibit, regulate or restrict the entry of foreigners into India and that the foreigner could be arrested and detained as per Government orders. However, the arrest, detention or confinement of the foreigner cannot be exercised by way of interim measures.
Further, inquiry had been restricted to the visa and passport of the detenu which he could not produce on the same day. However, there were various other documents which were produced which were not reported.
Additionally, no inquiry had been made into the nationality of the parents. Prior to this detainment as well, the SOG had detained him and nothing adverse was found. He had no criminal record, and his wife and children were Indian nationals.
The Court referred to Section 9 of the Foreigners Act to state that the burden of proof lies with the person alleged to be the foreigner. However, no opportunity was given to the detenu to establish his nationality.
Justice Gokani and Justice Desai noted that there was no doubt about the detenu's identity. The authorities had incorrect details about Amir and based on these details, per Section 3(2)(g) of the Act, the State Government had ordered detention till the order of deportation was made.
The Court cautioned the authorities, "we are conveyed that till date, nothing has moved and the corpus continues to be at the detention centre. When serious flaw is noticed in observing principles of natural justice, without entering the issue of nationality, on a limited ground of non-availment of opportunity, this Court deems it appropriate to intervene and to that limited extent, indulgence would be inevitable, noticing unbridled powers assigned to the authority, of course, for catching illegal/unauthorized nationals."
Accordingly, the Bench, without entering the issue of nationality, allowed the Petition to the extent of the detenu's release.
Case Title: Rasidaben W/O Sidikbhai Daudbhai v. State Of GujaratCase citation: 2022 LiveLaw (Guj) 27
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