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Gauhati High Court orders release of woman first declared ‘Indian’, later a ‘foreigner’

🔴 Guwahati-based advocate Zakir Hussain, who is Bhanu’s counsel, said that she belonged to a family of “poor farmers” and that “all her documents were in order”.

Written by Tora Agarwala | Guwahati |
Updated: December 16, 2021 9:38:12 am
Hasina Bhanu

Declared ‘Indian’ in 2016 and subsequently ‘foreigner’ in 2021 by the same Foreigners Tribunal (FT), a 55-year-old resident of Assam’s Darrang district will walk out of detention on Thursday, following the intervention of the Gauhati High Court.

The FT-I in Mangaldai had in August 2016 declared Hasina@Hasna Bhanu as not being a “foreigner/illegal migrant of any stream”. However, another case was registered against her in the same FT after a referral from the Assam Border police, who suspected her to be Bangladeshi national in 2017. Later, in March 2021, the tribunal passed an opinion declaring her to be a “foreigner of the 25.03.1971” stream, after which she was arrested and put in a detention camp in Tezpur jail in October.

Darrang SP Sushanta Biswa Sarma told The Indian Express that he had approved her release order following the court’s direction on Monday. “She can walk out anytime now,” he said.

Bhanu’s family said that they would pick her up from Tezpur jail (about 100 km away from Darrang) on Thursday.

“We are feeling relieved. She was already declared Indian in 2016, but the same court put another bideshi (foreigner) case on her in 2019…made us run around, spend a lot of money and harass us. We are thankful to the Gauhati High Court for justice,” said Akram Hussain, Bhanu’s brother-in-law.

On Monday, the HC set aside the FT’s 2021 opinion, saying that the identity of the petitioner in both the judgments is the same and that the “second impugned opinion in respect of the same person cannot be sustained”. It also cited a 2019 Supreme Court judgment [Abdul Kuddus Vs. Union of India, (2019) 6 SCC 604], which had held that the principle of res judicata (which bars reopening of the same issue by the same parties once a ruling has been made) was applicable even in a proceedings before a Foreigners Tribunal. “We are unable to understand how the Tribunal proceeded to examine the matter and made the aforesaid observation,” said a HC bench of Justices N Kotiswar Singh and Malasri Nandi, directing the petition to be disposed of without calling for further records.

Guwahati-based advocate Zakir Hussain, who is Bhanu’s counsel, said that she belonged to a family of “poor farmers” and that “all her documents were in order”. After the first notice, she submitted seven documents including 1966 voter list records of her father and grandfather, her own voter list record from 1989, as well as linkage documents to establish her relationship. Based on these, she was declared “Indian by birth” in 2016. When she was issued a notice the second time, Bhanu submitted 17 documents. “This time the tribunal said her linkage documents were not (ok),” said the lawyer. In its opinion, the FT said that the petitioner “could not establish linkage with her father by cogent reliable evidence and admissible evidence”, declaring her a foreigner of the post-1971 stream.

In her petition, Bhanu had also cited res judicata referring to the 2019 Abdus Kuddus case but the FT wrongly interpreted it and said that its decision was binding, said advocate Hussain.

“An FT’s decision is binding only when it comes to the National Register of Citizens (NRC) process — in the sense that someone who is in the NRC, can later be declared a foreigner by an FT. However, one FT’s decision is not binding when it comes to another FT’s decision,” he said.

A lawyer, who works with citizenship cases in Assam, said the judgment was significant because it was common for FTs to initiate proceedings against the same person it had earlier declared “Indian”. “This judgment is a good precedent,” he said.

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