In a rare judgment bestowing the fundamental right to life on foreign nationals, the Delhi high court has directed the Gujarat government to pay a compensation of Rs2.7 lakh to the family of 13-year-old “illegal Bangladeshi migrant” Shamim who was abducted by the state police from a Delhi slum last year, kept in illegal detention and threatened with dire consequences.
“The payment shall be made within two weeks to petitioner Tasleema and her minor son (Shamim),” a bench of justices Badar Durrez Ahmed and Ajit Bharihoke ruled.
Scoffing at the Gujarat government’s defence that the boy had “volunteered” to accompany the plainclothesmen who raided his house at midnight without informing local police, the HC said, “The moment the police officials from Gujarat took the minor boy into their vehicle, it amounted to taking him into custody.”
The bench had directed the state to produce the child when Tasleema’s lawyer Nitya Ramakrishna pleaded that Gujarat Police had thrown all norms of civility and rule of law to the wind.
The judges examined Shamim’s “categorical” statement made before a Delhi magistrate on August 2 last year after he was released on the HC’s order. He affirmed that he didn’t accompany the Gujarat Police officials “of his own volition”.
“He was forced to go with them. He was threatened with dire consequences, including death. By no stretch of imagination can it be said that the 13-year-old boy ‘volunteered’ to go to Ahmedabad and be placed in a lock-up there indefinitely by Gujarat Police,” the HC stressed.
“What is more shocking is the fact that, admittedly, there was no case whatsoever against Shamim. Yet, Gujarat Police came all the way from Ahmedabad to Delhi, beyond their jurisdiction, did not seek assistance from local police, and set out in search of Shamim’s father Mohd Azad, whom they apparently wanted to arrest in connection with a criminal case in Ahmedabad,” the judges observed.
“They could not find Mohd Azad, but found Shamim at his kabari shop. So they did the next best thing. They took Shamim into ‘custody’ and took him from Delhi all the way to Ahmedabad and put him in a lock-up there,” the HC said, adding, “The fact that Shamim was taken into custody against his will would have to be read as his arrest and detention in custody. Otherwise, any police officer can ‘pick up’ anybody and detain him without having to fulfill the requirements of article 22 of the Constitution, because he can simply say he did not ‘arrest’ him in the technical sense.”
When Gujarat Police said Shamim and his parents were illegal Bangladeshis and their deportation had been ordered by the authority concerned in Ahmedabad and that he was an ‘enemy alien’, the HC said, “Even if it is assumed that he is a Bangladeshi and, therefore, an alien, he would not be an ‘enemy alien’ because India is not at war with Bangladesh.”
