You Have No Case On Merit But We Will Help You: Apex Court To Elderly Woman Detained In Assam Detention Camp
The Supreme Court today assured that it intends to come to the help of an old woman who was declared a foreigner and is currently detained in a transit camp in Assam, even as the Court stated that she might not have any case on merits.
The Court was hearing the case of a woman who was detained in October 2023 after being declared to be a foreigner by a Foreigners Tribunal concluding that she had entered Assam before the cutoff date of March 25, 1971. Her Writ Petition before the Gauhati High Court was dismissed earlier this year.
"We will help you. No doubt about it," said a Bench comprising Justice J.B. Pardiwala and Justice R. Mahadevan, even as it added, "Though you have no case on merits. Absolutely zero. But sometimes, we have to show this compassion." Dictating the Order, Justice Pardiwala said, "Leave granted. No coercive steps shall be taken against the Petitioner."
Advocate Talha Abdul Rahman, appearing for the Petitioner Anowara Khatoon, then clarified that the Petitioner has actually been in detention since 2023. "You mean in the detention camp?" Justice Pardiwala asked, to which Rahman replied in the affirmative.
Modifying the Order, the Bench said, "Grant leave. Issue notice. Returnable in two weeks. We will work out something. We will get you out of the camp."
The Foreigners Tribunal had issued a notice to Khatoon in June 2019 on the ground that she illegally entered Assam without any valid document between January 1, 1966 and March 24, 1971. This was after the Superintendent of Police referred her case to the Tribunal.
Khatoon says the notice was issued without application of mind as the Tribunal had failed to verify whether the reference by the police was based on cogent and reliable evidence, as specified in the Judgments of Sarbananda Sonowal and Ors. vs. Union of India (2006) and Md. Rahim Ali @ Abdur Rahim v. State of Asaam and Ors. (2024).
"Due to the petitioner and her family's illiteracy, they struggled to grasp the significance of the notice and did not have the financial means to immediately engage a private lawyer to fight her case," she submitted, adding that "The notice itself did not contain any reference to any free legal aid that the Petitioner could seek."
In December 2019, the Tribunal, through an ex-parte Order, declared her to be foreigner who entered into Assam after the 1971 cutoff date. Thereafter, in December 2023, she was arrested and detained at Transit Camp in Goalpara, Assam. The Tribunal observed that as per Section 9 Foreigners Act, 1946, the burden of proving whether a person is a foreigner or not lies upon the person proceeded against, notwithstanding anything contained in the Evidence Act, 1872.
In March 2024, the Gauhati High Court dismissed a Writ Petition filed against the Order passed by the Tribunal. The High Court stated the the Petitioner was "fully aware" of the Tribunal's proceedings and though she had engaged a counsel in June 2019, she "did not even bother to know about the status of the said case for almost four years" until the Tribunal declared her a foreigner. The High Court concluded that the Tribunal's Order was in conformity with law and did not call for interference.
Cause Title: Anowara Khatoon alias Anowara Khatun v. Union of India And Ors. [Diary No. 49504-2024]
