Sofiya Khatun, Declared a Foreigner, Set to Walk Free After SC Grants Bail

“Tum kehte ho ki tum chun chun ke nikaloge, hum chun chun kar ek Hindustani ko uske Hindustani hone ka haq dilayenge (You [Amit Shah] claim to trace and oust every ‘infiltrator’, but we will ensure that every Indian citizen gets the right guaranteed by the Constitution),” said the lawyer of Sofiya Khatun – who is set to walk out of a detention centre in Assam’s Kokrajhar district after two years, following a Supreme Court order that granted her bail on September 12 – launching a scathing attack on Bharatiya Janata Party (BJP) President Amit Shah over the issue surrounding the National Register of Citizen (NRC).

The apex court granted bail to the 50-year-old woman from Barpeta district of the Northeast state who was earlier declared an “illegal migrant” – first by the Foreigner’s Tribunal (FT) in October 2016, and then by the Gauhati High Court in April 2017 after she failed to prove her link to her father, Hasan Munshi, due to a mismatch in the spelling of his name in various voters’ lists.

The top court allowed bail to the petitioner after the enquiry conducted by Barpeta Superintendent of Police who revealed that husband, parents and five brothers of the woman are Indian citizens. The court also ordered the state to conduct a full-fledged enquiry in this regard.

Considering the plea of the woman, who was to be deported after she was found to be an “illigal immigrant”, the SC bench of Justice Kurian Joseph and Justice Sanjay Kishan Kaul had asked the state on August 28 to reply to three questions: “Is it true that five brothers of the petitioner are citizens of India? Is it true that the husband of the petitioner is a citizen of India? Is it true that father and mother of the petitioner are citizens of India?”

The state, in its affidavit, told the court that the relationship between the petitioner and her alleged relatives is already established and only sought to verify the citizenship status of the projected relatives.

In the affidavit filed in the court by the deputy secretary, General Administration Department of the Government of Assam, the state said, “...the enquiry finds that the said persons are Indian Citizens on the basis of their names appearing in 2018/2017 voters list, 1997 voters list, electoral photo-identity cards as well as the 1965 and 1970 voters’ lists in which the name of their projected parents, namely, Hasen Munshi and Saburan Bibi are included. Also, the report states about the statements of local villagers being recorded and concluded that the documents produced by them corroborates.”

The counsel appearing for the state submitted that it is not a full-fledged enquiry and the state may be permitted to conduct a full-fledged enquiry. “We make it clear that it will be open to the state to conduct the full-fledged enquiry referring also to the materials now made available,” the apex court said ordering to release the petitioner on bail on “self-bond”.

However, it directed the appellant to report to the police station on the last working day of every month, as required by the Superintendent of Police, Barpeta, till the inquiry is completed. 

After the Barpeta FT declared Sofiya a foreigner, she had filed a writ petition challenging the order in the Gauhati High Court. Upholding the tribunal’s order, the High Court observed, “From the written statement, it is evident that the petitioner did not disclose about her date or year of birth. She also did not disclose about her place of birth. Grandmother’s name, as well as names of maternal grandfather and grandmother, were not disclosed. She also did not disclose about the names of her brothers’ and sisters’ as well as the date or year of her marriage. Moreover, she was silent regarding her children after her marriage to Fulbar Hussain. Thus, there was omission to mention the above which were material facts specifically within her knowledge. It is essential that when one’s nationality is questioned, such material facts are required to be placed on record by the questioned individual at the first instance itself i.e., in the written statement. Failure to do so would be a vital omission rendering the version of the proceedee highly questionable. She repeated the same thing in her evidence-in-chief by way of affidavit wherein, however, she disclosed her age as 47 years as on 25.07.2016 when the affidavit was sworn. This would mean that petitioner was born sometime in the year 1969.”

Sofiya approached the Supreme Court through Advocate Anas Tanwir and Senior Counsel Sanjay Hegde.

“This order will go a long way in securing release of others who have been put into detention centres. This order and other preceding orders in other cases go on to show how the clear fallacy in the whole process of identifying foreigners – be it through the NRC or the FT,” Advocate Tanwir told Newsclick.

He said it seems that neither the tribunal nor the High Court pondered over the claim that her parents, brothers and husband are citizens of India. “To call someone a national of some other country requires much more than merely determination on the basis of his or her documents. In many cases, for an instance, in the case I am drafting right now, the border police identified a person, who, they claimed, was a citizen of one certain area in Bangladesh. But the area does not even exist in Bangladesh. This is not the only instance. Section 3 of the Foreigners Act clearly states that you have to give a detailed notice mentioning all the grounds while serving notice. But, this is not followed. People are randomly picked and sent to FTs to fill quotas. The tribunal rejects the cases based on minor clerical error in the papers produced and name mismatches,” he alleged.     

He came down heavily on the BJP and Shah who said on September 11 while addressing a crowd at Jaipur in poll-bound Rajasthan, “Arrey, aapko jitna virodh karna hai woh karo, Bharatiya Janata Party ka sankalp hai, ek bhi Bangladeshi ghuspethiya desh mein rehne nahi denge, chun chun kar nikal denge (You [the Congress] oppose it as much you want, but the BJP’s vision is that we won’t let even one Bangladeshi infiltrator stay in the country. We will single them out, one by one, and expel them).” 

“This is a mere political rhetoric aimed at winning elections,” said Tanwir, and asked, “How can such statements are made when the Supreme Court made it clear after the final draft that those who have been left out will not be considered foreigners, and will be given chance for claims and objections?”

There are around 100 FTs in Assam that are quasi-judicial bodies meant to “furnish opinion on the question as to whether a person is or is not a foreigner under Foreigners’ Act, 1946”.

Kokrajhar detention camp, which was established in April 2010, is meant to lodge women who are declared “foreigner”. There are six detention camps in Assam, which have more than 900 “illegal immigrants”.