Taslima Nasreen's incarceration, by the government of India is now an established fact. In a recent article in the Times of India, she describes herself as a 'prisoner'. The truth seems to be, she is being held as a detainee under Section 3 of the Foreigners Act 1946. Strange as it may seems, the government does have the power to hold her in custody under Section 3(e) of the Foreigners Act. However, one would have thought that for a person lawfully in the country, as Taslima is, no such powers could be exercised.
The power is meant to deal with foreigners who commit crimes and are for some valid reason, wanted or needed by the law for extradition or deportation. Taslima is not in that situation and yet she has been in the custody of the government of India since November 2007. Taslima has committed no crime nor has she violated the terms of her visa. On the contrary, crimes have been committed against her.
Her deprivation of liberty is therefore not capable of any rational explanation. Perhaps, the only explanation that could be offered is that she is being held in custody in her own interest, as a measure of protection against criminal elements who assault her for her writings. The question then would be does providing security require her to be in custody at an unknown destination?
She has been in the country for a long time now, with no security problems. Why then this sudden concern for her security, such that it warrants her being at an unknown location? Could it be that the idea of the detention is to make her wait till her visa expires and then deport her? Or perhaps to tire her out to the extent that she leaves 'voluntarily'. Both options are deplorable.
Taslima has a right to know well in advance whether she is being granted an extension of her visa or not, to enable her to make an effective representation against a possible deportation. She and the rest of the nation are being kept in the dark about her legal status in this country.
She has been prevented from disclosing her whereabouts or from seeking legal advice. It is true that she has not taken any legal action against her situation, but she is after all, in this country on a visa which can be cancelled at any time and she can be deported. And she lives on hope that the Indian government will honour its commitment to her and grant an extension.
It is not often understood that foreigners too have constitutional rights, one of most important of them being the right to life and personal liberty. Clearly Taslima's right to life and liberty have been violated by her detention. Unless the government has good reasons to justify her detention, she must be set free. Taslima has been wronged against. She has the right to be informed about her visa status, it is of vital important to her to know if she is a legal immigrant. After February 17 she is liable to be an illegal immigrant, if her visa is not extended. She has a right to meet people of her choice, her publishers, her lawyer and her friends, all of which have been denied.
We as Indian citizens have a right to meet her as much as she has a right to meet us. Many years ago, the Supreme Court held that a journalist has a right to meet people in prison to write about their conditions of detention. We seem to forgotten those rights.
Taslima has applied for Indian citizenship and she has a right to know the status of her application. Her parents were born in undivided India and that makes her eligible for Indian citizenship. She has not been given any information on the status of her application.
Taslima is a refugee from her own country and has been in exile for the last 12 years and more. It is true that she has a Swedish passport which enables her to travel but that does not make her any less a refugee. She has repeatedly said that she has no links with Europe and would much prefer to be in India, a country with which she and her country share a history, culture and language. She is no less an exile or a refugee who is entitled to be treated by India as a refuge and entitled to refuge in the country of her choice.
Indira Jaising is a senior Supreme Court lawyer