Samsul Hoque v. Union of India, WP(C)/6056/2019

Read the judgment here

Date of the decision: 10.05.21

Court: Gauhati High Court

Judges: Justice Sudhanshu Dhulia and Justice Manash Ranjan Pathak 

Summary: In response to the second wave, the Gauhati High Court modified its previous order and directed the authorities to release ‘foreigner’ detenues who have completed two years of detention on a personal bond of Rs.5000 with a like amount of one surety instead of two. 

Facts: The Petitioner, a person declared as a ‘foreigner’ by the Foreigners’ Tribunal had been in detention since 2019 for a period of two years. The Petitioner had filed a writ petition against the order. In the meanwhile, the Petitioner filed for bail as he was completing two years in detention. This bail was filed in consideration of the law laid down by the Supreme Court of India, which had been followed by the Gauhati High Court, which stated that a detenu was liable to be released after completing two years in detention on his furnishing personal bond of Rs.5,000/- and like amount of two sureties.

Holding: The Court held that given the exceptional circumstances of the second wave, a detenu is to be released after completing two years in detention on the fulfilment of certain conditions, like a personal bond of Rs.5000 with a like amount of one surety. It modified its earlier order, passed during the first wave as per the Supreme Court order, directing a detenu to be released with two sureties of Rs.5000. 

Significance: This decision indicates that detenues who have completed two years in detention must be released on bail after furnishing a personal bond of Rs.5000 with a like amount of one surety. A reduction from two sureties to one surety is a positive development considering that the process of citizenship disproportionately excludes the poor and the marginalised who may not have the means to provide a surety. However, the order, like the original, falters as it bases the release on the amount of time served even though the same lacks nexus with the likelihood of contracting COVID-19. Further, the release is subject to other onerous conditions, like reporting weekly to the nearest police station with a border branch. This is a cumbersome condition since it has to be complied with irrespective of a lockdown or the distance between a person’s place of residence and the station. In fact, Two Circles reported that making these weekly visits imposes a financial and emotional burden on the former detainees. This is exacerbated as most of these former detainees are daily labourers, making these weekly visits a financial burden as work is difficult to find, especially when migration to another state to work to earn money is not possible. 

Table of Authorities:

  1. In Re: Contagion of Covid 19 Virus In Prisons, Writ Petition (C) (Suo Moto) No.1/2020
  2. Gauhati High Court v. Union of India & Ors., Writ Petition (C) (Suo Moto) No.1/2020

This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India. This note was prepared by Arushi Gupta and Eeshan Sonak.

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