The Supreme Court, on Monday, directed the writ petition pertaining to the alleged illegal detention of the Rohingya Refugee to be revived before the Delhi High Court. To that effect, the bench has set aside an order of the High Court dated July 4, 2023. On the last occasion, the petitioner while seeking her sister to be released, submitted that she has contracted Hepatitis C because the Detention Centre lacked proper hygienic drinking water facilities. The petitioner is the sister of the woman (also the mother of the child) in detention, who seeks permission to release her to be with her 3 year old son, who is currently residing with the petitioner in the camp.

It is to be noted that during the hearing, the bench was apprised that the petitioner herself is not a a citizen of India, and is currently residing in a Refugee Camp. However, when the bench showed an inclination to release the sister from the Detention Centre, and place her in the camp instead to be with her son, the Centre raised doubts over the biological mother of the child.

A bench led by Chief Justice of India D.Y. Chandrachud on noting that the petitioner was reluctant to tag the matter with a pending issue in Mohammad Salimullah v Union of India (2017), stating that the issues are distinct, observed, “In that view of the matter, it is only appropriate and proper that the petition before the High Court of Delhi is permitted to be revived as the issues raised in the present petition can be addressed before the High Court. We keep open all the rights and contentions of the petitioner in that regard. The petitioner would be at liberty to seek interim directions before the High Court of Delhi”.

The bench also comprising Justice J.B. Pardiwala and Justice Manoj Misra also directed that all requisite medical treatment to be provided to the petitioner in accordance with medical advice tendered by the G B Pant Institute of Post Graduate Medical Education and Research and Dr Ram Manohar Lohia Hospital.

Advocate Ujjaini Chatterji appeared for the petitioner, ASG Aishwarya Bhati appeared for the Union of India.

In the arguments before the Court, as directed on the last occasion, Centre placed on record the medical papers, including the treatment which has been afforded to the petitioner and photos of the Detention Centre. Further said that an RO has been installed.

The bench suggested that she could be shifted to the refugee camp instead of the Detention Centre, and be subject to all the same requirements and procedures including head count etc.

However, on that Bhati submitted, “High Court had put this query also, FRRO (Foreign Regional Registration Office) filed a status report but they withdrew the writ petition saying that, no we want a full relief…This was opposed by FRRO because she has relatively been in India very new, the sister has been here for several years. There are internal security threat perceptions etc.”.

“How many years the sister has been here?”, CJI asked.

“Since 2016, but I don’t think that’s a fair contention to make, and also if there is a threat perception, there is civil Detention Centre and not in criminal…”, said Chatterji.

“Ms. Bhati you take instructions, may be we can allow her to move, so that her child is with her sister in that refugee camp…”, CJI noted. “…with all restrictions which apply to any other refugee”, Justice Pardiwala further added.

However, Bhati showing reluctance said that both the Detention Centres and Refugee Camps are different and separate, where camps have no restrictions at all including on movement.

“We are not even sure who is the mother of the child”, Bhati added to her statements while opposing release.

“That’s very unfair to state…”, Chatterji interjected.

“In fact the officers who went for taking pictures for tomorrow and videos etc., she was not even aware of the proceedings, she said I am very happy and comfortable, I don’t know about what my sister is…”, Bhati contended.

To which the counsel for the petitioner vehemently opposed seeking to make her appear before the Court.

The plea stated that contrary to the 2017 pending petition, the present criminal writ petition did not seek a prayer against the deportation of the petitioner’s sister. The plea instead seeks the release of the sister from ‘indefinite detention in violation of the due process established by law which is in contravention to the right of life and equality before law of the petitioner’s sister which constitutes inhuman and degrading treatment amounting to torture of the petitioner’s sister’.

The plea sought the following directions:

1. To release the petitioner's sister from the Detention Centre to join her infant son and the petitioner living in the Refugee Camp.

2. For the assessment of dietary needs as per ICMR standards of the petitioner’s sister and the provision of a nutritious diet to her.

3. Any other relief which the Court may deem fit and proper also to be granted.

Cause Title: Sabera Khatoon v Union of India Ors.

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