Read the judgement here.
Date of decision: 27.09.2021
Court: High Court of Madras
Judge: Justice M. Dhandapani
Summary: The High Court of Madras rejected the bail petitions of several foreigners who overstayed in or illegally entered India. It also issued several directions to the Ministry of Home Affairs and other authorities to curb and strictly regulate the presence of illegally staying foreign nationals in the country.
Facts: The Court was hearing a batch of petitions filed by persons of different nationalities such as Srilankan, Nigerian, Chinese, Iranian and Bangladeshi, who had been either overstaying their visa period or had entered the country illegally. They had been arrested for committing various petty offences and subsequently filed bail/anticipatory bail applications before the Court. One of the Petitioners challenged the conditional bail granted by the lower court. The Petitioner argued that the condition to stay at the Trichy Special Refugees Camp was onerous.
Looking into the case of the Petitioners, the Court observed that such cases of illegally staying foreigners are not in isolation and sought data from the authorities on the entry, exit and status of all foreigners staying in and around Coimbatore and Tirupur Districts. The district authorities and DGP submitted status reports accordingly. Further, the FRRO was impleaded by the Court to obtain information that was unavailable with the district authorities. A comprehensive memo was filed by the Centre on behalf of the FRRO detailing the total number of foreign nationals who were overstaying their visa period. Given that the same is illegal, the Court directed the Central Government to file a report as to the mechanism available for identifying the foreign nationals, who are overstaying their visa period and the mechanism that has been devised/available to deport the said foreign nationals back to their country.
Holding: The Court undertook a review of the existing laws and guidelines detailing the procedure issued by the Central government for identification, monitoring and timely deportation of illegally staying and arrested foreign nationals. There are different guidelines for Pakistani and Bangladeshi nationals, which involves communication from their respective countries’ consular office or High Commission and confirmation of nationality in all cases. In case of other arrested foreign nationals, they can be deported by the State authorities/FRRO after completion of their sentence and the procedure for the same has to be initiated 3 months prior to their release. Looking into the implementation of these guidelines, the Court observed that “the security of our motherland is being jeopardized due to the lethargic act of the Governmental machinery in not adhering to the guidelines issued by the Ministry of Home Affairs pertaining to deportation/repatriation of the foreign nationals, who stay put in the country without any valid permission/visa.” (paragraph 23). Thus, the Court considered such foreign nationals who illegally stay in India or who find illegal ways to extend their stay as a serious threat to India’s economic stability and security. Referring to the communications and data presented by different authorities, the Court observed that the exhaustive guidelines formed by the MHA for identification and deportation of illegal foreigners are not being followed, and the number of such foreigners has been increasing despite the presence of the guidelines. Consequently, the Court issued directions in this regard to curb the “menace” of illegal immigrants and foreign nationals illegally staying in India for long durations.
It directed inter alia (i) the MHA to frame appropriate laws within 3 months with regards to illegal immigrants who repeatedly commit petty offences in order to continue living in the country, (ii) the state government to set up detentions centres to hold illegal migrants when they are identified by the State law enforcement agency, (iii) the police authorities to establish a separate wing to monitor movement of all foreign nationals, record the entry and exit of all foreign nationals at various levels and spot, identify and deport overstaying foreign nationals, (iv) in case of foreigners who have committed serious offences, take necessary action to ascertain the nationality and complete the deportation formalities of foreign nationals as per MHA guidelines prior to their release so that they could be deported immediately without even moving them to detention centres, (v) the FRRO/ICP to communicate fortnightly, the entry of any foreign national within the State, along with details regarding their visa, passport and nationality and (vi) in case of foreign nationals/illegal immigrants who are serving prison sentence, the concerned authorities to take necessary steps for their deportation three months for prior to their release as per MHA guidelines. The Court adjourned the cases to 4th January 2022 for the authorities to report compliance.
Further, the Court rejected the bail petitions of all the Petitioners on the ground “of the very many grave nature of the allegations against the petitioners and also their status with regard to their stay within the Indian territory without valid permission being put in issue” (paragraph 31). In other words, the Court rejected the bail of the Petitioners on the ground that such foreign nationals posed a risk to the security of the country. With regards to the Petitioner who had challenged the conditional bail ordering him to stay at the Trichy Refugees Camp, the Court refused to interfere in the matter on the basis that MHA guidelines allow authorities to impose such conditions on foreign nationals to restrict and monitor their movement.
Significance: The order joins a series of others in which directions have been issued on the deportation and detention of the accused or convicted or the overstaying and illegally entered foreign nationals (here, here and here). The directions issued by the Court in this case highlight various concerns regarding the procedure of deportation of foreigners in India. The Court reprimanded the state authorities for not ensuring timely deportation of foreigners and directed the same to be followed. The Court also suggested mandatory detention of foreigners before their deportation and directed authorities to set up more detention centres in this regard. However, there exists no centralised time-bound procedure assisting the states in ensuring that foreigners are timely repatriated. In the absence of proper regulations governing the conditions at detention centres and detention limits, the detainees could be left exposed to several human rights violations and exceedingly long detentions, which can take a form of “coercive confinement” and lack Constitutional protections. Further, the Court’s decision to not interfere with one of the Petitioner’s challenge to the bail condition to stay at the Trichy Refugees Camp shows how extremely wide and unrestrictive powers have been conferred on the executive under the Foreigners Act, 1946 to control and regulate the movement, stay and expulsion of foreigners in India.
The Petitioners were only accused of petty offences like preparing fake Aadhar cards, which the Court referred to as “grave allegations” and referred to such foreign nationals as “unscrupulous elements”. The Court’s observations are underlined with a sense of paranoia that perceives foreigners as security threats and potential criminals which is often used to justify harsher and punitive standards of legal frameworks to deal with foreigners. The Court presumed that all the Petitioners were security threats for the sole reason that they were foreigners, without looking into the merits of the bail applications or the conditions of the Petitioners. Increased patterns of crimmigration are being observed in judicial decisions as courts across India regularly deny bail and impose harsh fines on persons identified as illegal migrants.
Table of Authorities:
- Model Detention Centre, Suo Motu Writ Petition No. 1 of 2019
- Prof. Bhim Singh v. Union of India & Ors., 2015 (13) SCC 605
- Babul Khan v. State of Karnataka, CRL.P. No. 6578/2019
- Bawalkhan Zelanikhan vs B.C. Shah
- Aaratrika Bhaumik, ‘Unscrupulous Elements: Madras HC Directs MHA To Frame Laws Within 3 Months’, Live Law, 27 September, 2021
- Palak Chaudhari and Madhurima Dhanuka, ‘Strangers to Justice,’ Commonwealth Human Rights Initiative, 2019
- Arijit Sen and Leah Varghese, Weaponizing Citizenship in India, Border Criminologies Blog, 19 February 2020
- Sujata Ramchandran, The Contours of Crimmigration Control in India, Global Detention Project, 2019
- Darshana Mitra, From Citizen to Criminal: Citizenship Determination in India and the Limits of Due Process, The Leaflet, 27 January 2021
- Aman and Roshni Shanker, Identity in Exile, The Hindu, 28 May 2018
- Abantee Dutta, Indefinitely Incarcerated: Assam and Its Non-Citizens, Studio Nilima, January 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 Dewangi Sharma.