Tag: Foreigner

Bailly Gui Landry v. The State of Telangana, Criminal Petition Nos. 4396 and 4400 of 2021

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Date of decision: 22.06.2021

Court: Telangana High Court

Judge: Justice K. Lakshman

Summary: The High Court of Telangana quashed the orders of deportation issued by a Magistrate against the Petitioner, a foreigner who was the national of Ivory Coast. The High Court held that a Magistrate does not have the power to issue an order for deportation. 

Facts: The Petitioner, a national of Ivory Coast was prosecuted  in two similar criminal cases of cyber cheating scams. The Magistrate acquitted the Petitioner in both the cases. However, as the Petitioner was holding an Indian employment visa, which was valid only till 07.02.2020, the Magistrate also ordered the authorities to immediately deport the Petitioner to Ivory Coast. Subsequently, the Foreigners Registration Regional Office (FRRO) detained the Petitioner as deportation was not possible due to COVID-19 restrictions. The Petitioner filed this petition, challenging the power of the Magistrate to order the deportation. 

Holding: The High Court held that the “Learned Magistrate has to confine his findings with regard to either acquittal or conviction of accused therein under Section 248 of the Cr.P.C, Learned Magistrate is not having power to order deportation of any foreign citizen for any violation” (paragraph 11). In other words, the High Court held that the power of the Magistrate is confined to a finding of acquittal or conviction of the accused. The Magistrate does not have the power to order deportation of any foreign citizen for any violation. Accordingly, the order of deportation of the Petitioner was quashed. However, the Court rejected the Petitioner’s prayer to release him from custody observing that the FRRO’s order of deportation and movement restrictions was valid, since it is a body recognised under Sub Rule (1) of Rule 3 of the Registration of Foreigners Rules, empowered to implement the rules  regarding  foreign nationals. The FRRO  exercised its power conferred under  Section 3(2)(c) of the Foreigners Act, 1946, which allows FRRO and other authorities to identify, detain and deport foreign nations who are in violation of any law. The detention of the Petitioner authorised by FRRO’s order was considered valid because the Petitioner has been illegally residing in India after the expiry of his visa.  At the same time, the Court observed that the Petitioner could challenge the FRRO’s order separately. Perhaps, this indicated that the exercise of the wide powers conferred under the law could be challenged.

Significance: This decision clarifies that a Magistrate does not have the power to order deportation of a foreign national even if they are in violation of any law. Similarly, the Assam government had directed the Foreign Tribunals to refrain from passing any “consequential orders” authorising deportation as the Tribunal, like the Magistrate, is not competent to do so. The deportation can only be done by the ‘competent authorities’ (like the ‘FRRO’) after following the procedure established by law under The Foreigners Act, 1946. The procedure for deportation of a foreign person was discussed in Babul Khan v. State of Karnataka where the High Court of Karnataka held that a foreign national residing in India without visa would be considered an ‘illegal migrant’ and should be deported immediately. In the case of Bhim Singh vs. Union of India, the Supreme Court, after observing the problem of overstaying foreign nationals in prison, directed that the government authorities should avoid delay in administrative procedure and carry out the deportation within four weeks from the date of receipt of the ‘No Objection’ certificate.

In the present case, even though the Petitioner was acquitted of non-serious offences, the FRRO directed him to remain in the premises of Cybercrime Cyberabad on the ground of ‘national security’ concerns and on the possibility of him indulging in illegal activities till his deportation, delayed due to COVID-19 restrictions. Although COVID-19 has been cited as a reason in the present case, detention before deportation of foreing nationals is becoming a matter of routine in India (for instance, here and here). 

At present, there is an alarming increase in the anxiety surrounding the activities of foreign nationals who have been illegally residing in India. This has led to the burgeoning detention centres in states across India (here, here, here and here). In fact, in an interview, Karnataka’s Director General of Police Praveen Sood explained the logic behind the setting up of detention centres is to create a separate detention regime from jail where foreign nationals could not apply for bail and continue staying in India. The absence of citizenship enables detention centres to operate as a “parallel punitive system where deprivation of liberty is compounded by the lack of detention limits, delayed deportations, fewer due process safeguards and constitutional protections.” In effect, apart from being denied the right to bail, ex-prisoners who are foreign nationals may even be held for considerable periods of time post-sentence. 

In summation, the “‘crimmigration’ laws in India include weak procedural safeguards that fail to protect against prolonged detentions and impose few restrictions on deportation powers”. Foreign nationals, including genuine refugees and asylum seekers, are being routinely detained to be deported without any scrutiny of grounds or justification. COVID-19 has only exacerbated the problem of delayed deportations and is being used as an excuse to allow authorities to detain foreigners like the Petitioner in custody without violation of any law in what could become indefinite detention. While dismissing the Petitioner’s plea of release from custody, the Court observed that the Petitioner can challenge the FRRO’s order separately. This establishes that the exercise of power by the authorities under the broad provisions of the Foreigners Act could be challenged, however, the High Court failed to look into the validity of the detention itself  and whether it was appropriate to have the person detained in the Police station pending deportation, especially in the prevailing circumstances of the pandemic .

Table of Authorities:

  1. Babul Khan v. State of Karnataka, CRL.P. NO.6578/2019
  2. Bhim Singh vs. Union of India, [W.P. (Criminal.) No. 310/2005]

Resources: 

  1. Meha Dixit, Stateless in Amritsar: India’s Convicted Foreign Nationals and Their Eternal Wait to Go Home, The Caravan, 9 September, 2015
  2. Hira Nagar Jail Turned Into ‘Holding Centre’ For Rohingyas, Kashmir Observer, 2 April, 2021
  3. Sujata Ramachandran, The Contours of Crimmigration Control in India, Global Detention Project, 2019
  4. Rahul Tripathi, ​​States told to set up Centres to detain illegal migrants, The Economic Times, 29 July, 2019
  5. Rohini Swamy, A year after it was set up, Karnataka ‘detention centre’ gets first detainee — a Sudanese, The Print, 20 November, 2020
  6. Meha Dixit, In Jammu, Prisoners Detained for Border Crossing Languish in Jails Despite Completing Their Sentences, The Caravan, 29 April, 2016
  7. India: Release Detained Myanmar Asylum Seekers, Human Rights Watch, 28 July, 2021

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.

Golapi Begum v. Union of India, WP(C)/2434/2020

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Read the judgement here.

Date of the Decision: 15.07.2021

Court: Gauhati High Court

Judges: Justice N. Kotiswar Singh and Justice Soumitra Saikia

Summary: The Gauhati High Court held that the Tribunal went beyond its jurisdiction by declaring the Petitioner a ‘foreigner’ on a ground not referred to it. The High Court observed that the Tribunal cannot assume suo motu jurisdiction to give an opinion beyond what is sought and the matter was remanded to the Tribunal for a fresh decision in terms of the reference.

Facts: The Superintendent of Police (Border) referred the Petitioner, along with her family members, as a ‘foreigner’ coming into Assam after 01.01.1966 and before 25.03.1971. This power was exercised under Order 2(1) of the Foreigners (Tribunals for Assam) Order, 2006. Order 2(1) states that the Central Government may refer the question as to whether a person is or is not a foreigner to a Foreigners’ Tribunal. The High Court noted that the “power of the Central Government to make reference in terms of Order 2(1) has since been delegated” (paragraph 8). It is on the basis of this reference that the Tribunal registered a case and proceeded to answer it. The Tribunal held that the Petitioner was a ‘foreigner’ who entered India (illegally) after 24.03.1971, the cut-off date under Section 6A of the Citizenship Act. 

However, the terms of reference clearly stated that the Tribunal had to determine whether the Petitioner, along with her family members, is a ‘foreigner’ coming into Assam, after 1.01.1966 and before 25.03.1971. Thus, the writ petition was filed before the High Court on the ground that by declaring the petitioner as a ‘foreigner’ who entered India illegally after 24.03.1971, the Tribunal went beyond its jurisdiction. 

Holding: The Court observed that “In terms of Order 2(1), the Tribunal gets its jurisdiction to render its opinion only when any reference is made to it under Order of the Foreigners (Tribunals for Assam) Order, 2006… It is only when a reference is made as above that the Tribunal assumes jurisdiction to render its opinion… the Tribunal will have to confine its opinion to the terms of the reference made to it and not go beyond the same…Therefore, the view taken by the Tribunal that the Foreigners’ Act, 1946 or the Orders framed thereunder do not bind it to the terms of the reference is not correct. The Tribunal cannot suo motu assume jurisdiction to give an opinion which is not sought” (paragraph 12). In other words, the High Court held that the Tribunal went beyond the reference as no opinion was sought from the Tribunal as to whether the petitioner had entered India after 24.03.1971 or not. Further, the Tribunal does not have suo motu jurisdiction to give an opinion beyond the reference. Consequently, the Court set aside the impugned opinion and remanded the matter to the Foreigners Tribunal for a fresh decision in terms of the reference made i.e. render a finding as to whether the Petitioner entered India between 01.01.1966 and 25.03.1971 or not.

Significance: The decision of the Court reaffirms the position laid down in Santosh Das v. Union of India and SonaKha @ Sona Khan v. Union of India and Ors. In both of these cases, references were made against the respective petitioners suspected to be ‘foreigners’ belonging to the 1966-1971 stream. The Gauhati High Court had observed that the Tribunal was only required to answer the reference either in favour of the State or in favour of the petitioners, and not go beyond the terms of the reference. The present case reiterates the law on this point. In summation, the Tribunal cannot suo motu assume jurisdiction to give an opinion that is not sought. Accordingly, the reference has to be limited to the period of time referred to it.

The distinction between a reference alleging a person to have entered into Assam on or after 01.01.1966 but before 25.03.1971, and a reference alleging entry into Assam on or after 25.03.1971, becomes relevant when seen in the light of Section 6A of the Citizenship Act.  Under Section 6A, a ‘foreigner’ having entered into Assam in the 1966-1971 stream, is entitled to Indian citizenship if he has been a resident of Assam for 10 years. However, this benefit has not been conferred on those who entered Assam on or after 25.03.1971. Thus, it is important for the Tribunal to not extend its jurisdiction. 

In addition, this rule is important in view of the principles of natural justice. It is important to give due notice to the alleged ‘foreigner’ about the main grounds against them. This will inform the defence that needs to be put up. In case the main grounds against the alleged ‘foreigner’ are distinct from what the Tribunal deliberates, it will strip the individual of a reasonable opportunity to present their case.

Table of Authorities:

  1. Santosh Das v. Union of India, (2017) 2 GLT 1065.
  2. SonaKha @ Sona Khan v. Union of India and Ors., WP(C) No.1293/2021.

References:

  1. Nupur Thapliyal, Foreigners’ Tribunal Can’t Suo Moto Assume Jurisdiction To Give An Opinion Which Is Not Sought While Answering Reference: Gauhati High Court, Live Law, 30th September 2021. 

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

Marium Khatoon v. State of Bihar, CWJ No. 390 of 2020

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Read the judgment here.

Date of decision: 18-08-2021

Court: Patna High Court

Judges: Chief Justice Sanjay Karol and Justice S. Kumar

Summary: The Patna High Court intervened and expedited a matter for repatriation of two Bangladeshi illegal migrants staying in an After Care Home in India. The court conducted an investigation of these Homes and ordered the State Government to set up Detention Centres for such migrants in accordance with Central Government guidelines.

Facts: Two minor Bangladeshi migrants were arrested from the Patna Railway Station and kept in After Care Homes (Nari Niketan) for several years. The two migrants were admittedly illegal migrants who had entered India without valid documents. Their repatriation was still pending. The question to be addressed was about the conditions in which foreign citizens who had been prosecuted, convicted and had completed their sentence, were being kept. The court constituted a committee of three advocates to look into the conditions of the After Care Home in a fair manner. The Committee reported that migrants were being treated well, with no sexual/mental harassment or slavery, appropriate medical assistance, nourishment and tutoring. Meanwhile, the two migrants were deported back to Bangladesh. The amicus argued that such migrants should not be staying in such Homes and instead the State should create a Holding Centre or Detention Centre for migrants arrested in the State of Bihar.

Holding: The court held that such Detention Centre could not be created within the jail and must be created in terms of the instructions given by the Central Government. It is a primary duty of the State to create such Detention Centres. It was also held that it is a duty of the Union of India to respond to the court’s queries, including all its Departments and Ministries. Accordingly, the State eventually took up the setting up of such Detention Centres. The court further asked for details about (a) the time frame for setting up of the Detention Centre, (b) whether the temporary Detention Centre is equipped with the requisite minimum infrastructure stipulated under Chapter-4 of Model Detention Centre/Holding Centres/Camp Manual, 2019, (c) what steps have been taken by the State Government for sensitizing the general population of Bihar about the mechanism of identifying and deporting illegal migrants from Bangladesh, and (d) steps taken to digitalize the records sought to be maintained under Section 6 and Section 7 of the Foreigners’ Act 1946.

The matter currently stands pending and the State Government is yet to reply to the court.

Significance: Both, the judgment as well as the action of the executive here are quite irregular. As has been stated by an advocate of the Calcutta High Court, “Ideally, a legal proceeding should come to a halt as soon as the subject matter of such proceeding is exhausted. In this case, the writ petition ought to have been disposed of as soon as deportation took place, as the fate of all concerned persons was decided.” On the executive’s part, the two migrants were kept in the Nari Niketan, instead of being tried under the Foreigners’ Act. Yet, the court never called this into question. The court’s order is also plagued with several factual inconsistencies, such as there being three and not two women from Bangladesh who had been arrested and placed in the Nari Niketan and that the women had been minors at the time of their arrest. Moreover, the foreigners in question were women who were victims of cross-border human trafficking. In 2015, a Memorandum of Understanding was signed between India and Bangladesh on bilateral cooperation on matters concerning the cross-border trafficking of women and children between India and Bangladesh. The MoU sets out the process for repatriation of victims of trafficking, and the language used suggests that trafficked women and children are not to be treated as illegal migrants, but as victims, and repatriated accordingly. The court fails to account for the fact that victims of trafficking are accorded treatment distinct from other categories of foreigners. The fact that the court reached its conclusion despite these inconsistencies shows that the women and their predicament were completely sidelined, and were rather used by the court to make a policy decision about detention centres, in a case instead concerning repatriation of victims of human trafficking.. 

The court’s concern here for human rights violation can be appreciated, especially in the context of the horrible conditions in the Assam Detention Camps. While the Central Government’s Model Detention Centre/Holding Centres/Camp Manual, 2019 lay down some standards for humane treatment of detainees, it has been criticised for being far too ambiguous, putting into question the court’s insistence on establishing these Detention Centres.

Resources:

  1. Neel Madhav How a Trafficked Woman’s Petition Is Being Used to Push for Detention of ‘Illegal Migrants’, The Wire, 3 September 2021.  
  2. Where hope fades and time stands still: Assam’s Detention Camps, Citizens for Justice and Peace, 13 November 2018.
  3. Vijaita Singh, Explained: Indian Home Ministry’s guidelines on migrant camps, The Hindu, 4 August 2019.
  4. Ruhi Tewari, Modi govt sets norms for ‘model’ detention camps to ensure dignity of ‘illegal foreigners’, The Print
  5. Deborah Grey, Ambiguous guidelines for ‘model’ detention camps raise questions, CJP, 28 November 2019.
  6. Ministry of Home Affairs, Government of India, Conditions of Foreign Prisoners, 2 July 2019.
  7. Ministry of Home Affairs, Government of India, Detention Centres in the Country, 24 July 2019.
  8. Sparsh Upadhyay, Deportation Of Illegal Migrants Is Of Paramount Importance, In National Interest: Patna High Court Directs Govt To Sensitize People Of Bihar, LiveLaw, 28 August 2021.

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 Farhan Zia.

Asor Uddin v. Union of India, WP(C)/6544/2019

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Date of decision: 09.09.2021

Court: Gauhati High Court

Justices: Justice N. Kotiswar Singh and Justice Manish Choudhary

Summary: The Gauhati High Court set aside an ex-parte order by the Foreigners’ Tribunal which declared the petitioner a “foreigner” due to his repeated non-appearance before the tribunal. The court reasoned that there were sufficient reasons which made the petitioner unable to present himself before the tribunal. 

Facts: The petitioner was declared a foreigner by the Foreigner’s Tribunal under Section 2(a) of the Foreigners’ Act, 1946, via an ex-parte order. The petitioner was a poor person and had to travel to Kerala for livelihood. Due to this, he had difficulty readily gathering documents containing his father and grandfather’s names, communicating with his counsel, appearing before the tribunal and filing a written statement. 

Due to his repeated non-appearance and non-filing of written statement, the tribunal passed an ex-parte order, declaring him a foreigner who had entered India from Bangladesh after 25.03.1971. The petitioner approached the Gauhati High Court to set aside the ex-parte order on the grounds mentioned above. The counsel for the Foreigners’ Tribunal argued that in the absence of the procedee, the law allows passing an ex-parte order. Since the petitioner had failed to file a written statement despite several dates given by the tribunal, the order was valid and legal. 

Holding: The court set aside the ex-parte order and directed the petitioner to appear before the Foreigners’ Tribunal for fresh proceedings. It was reasoned that “citizenship, being an important right of a person, ordinarily, should be decided on the basis of merit by considering the material evidences that may be adduced by the person concerned and not by way of default as happened in the present case.” [Para 7] 

The court deemed the reasons for the petitioner’s non-appearance sufficient to be considered by the Tribunal on merits. The court recused itself from deciding on the question of whether the petitioner is a foreigner or not, and instead remanded it to the Foreigners’ Tribunal for reconsideration. The petitioner was also directed to be released on a bail bond of Rs. 5000/- and to submit costs worth Rs. 5000/- to the tribunal. 

Significance: The High Court setting aside the ex-parte order is appreciable, considering the history of the large number of ex-parte orders being pronounced by the Foreigners’ Tribunal. Such orders are common since in many cases, procedees do not receive notice, or discontinue attending the proceedings due to poverty and/or the complexity of the proceedings. In a previous case, a similar ex-parte order was passed by the tribunal where the proceedee’s child appeared before the tribunal without her knowledge, and then proceeded to remain absent for subsequent hearings. 

At the same time, however, the judgment problematizes the exact situations in which cases can be remanded back to the Foreigners’ Tribunal by the High Court. Unlike the above-mentioned case, the court has not found any fault by the tribunal in serving notice or hearing a representative without a thorough checking. The reasoning relied upon by the High Court was that the case is a matter of citizenship, which is the case with all the matters heard by the Foreigners’ Tribunal, and that the petitioners’ reasons for non-appearance seemed sufficient to the court. It remains unclear what is the exact parameter that a court can deem reasons “sufficient” to set aside such an ex-parte order and remand the case back to the tribunal. 

Resources

  1. Abhishek Saha, Explained: How do Foreigners’ Tribunals work?, Indian Express, 9 July 2019.
  2. Gau HC | [Assam NRC] Citizenship is one of the most important rights of a person which shall not be taken away by an ex-parte order; HC remands the matter to the Tribunal for reconsideration, The SCC Online Blog, 22 April 2021.
  3. Shrutika Pandey, Citizenship Is An Essential Right: Gauhati High Court Sets Aside Ex-Parte Order Declaring Man As Foreigner, LiveLaw, 13 September 2021.
  4. Challenging Ex Parte Orders on the Ground of Improper Service of Notice, Parichay – The Blog, 11 February 2021. 
  5. Aman Wadud, Judiciary must re-examine how it has viewed citizenship question in Assam, Indian Express, 24 September 2021. 

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 Farhan Zia.

Mangla Das v. Union of India, Review.Pet./73/2021

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Read the judgment here.

Date of the decision: 04.09.21

Court: Gauhati High Court

Judges: Justice Achintya Malla Bujor Barua and Justice Prasanta Kumar Deka 

Summary: The Gauhati High Court granted the Petitioner, a person declared as a “foreigner”, the liberty to seek citizenship under the Gazette notification of 2015 on the ground that he was a persecuted minority as he belonged to the Hindu faith and migrated from Bangladesh. 

Facts: The Petitioner filed a review petition before the Gauhati High Court to request for the review of an order in which the High Court had dismissed a writ petition challenging an order of the Foreigners’ Tribunal declaring the Petitioner to be a foreigner. The High Court had dismissed the writ petition on the ground that the Petitioner failed to establish his lineage with his claimed father and thus there was no error apparent in the Foreigner Tribunal’s order. Subsequently, the Petitioner approached the Supreme Court, asking it to grant relief to file a review petition before the Gauhati High Court. The Petitioner argued that there existed two documents that were relevant to the issue but could not be produced before the High Court in spite of due diligence. The first document was a 2015 Gazette Notification issued by the Government of India under Section 3 of the Foreigners Act and the second was the draft NRC in which the name of the petitioner appeared. The Supreme Court did not interfere with the judgment of the Gauhati High Court but gave the liberty to the Petitioner to institute a review petition before the same. Accordingly, this review petition was filed. 

Holding: The Petitioner argued that he had a right to be granted Indian citizenship under the Gazette Notification passed in 2015. The notification dated 07.09.15. stated that the provisions of the Foreigners Act, 1946 would not apply to the minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who “were compelled to seek shelter in India due to religious persecution or fear of religious persecution” and entered into India on or before 31st December 2014 without valid documents or with expired documents. Based on this, the Petitioner argued that “there exists a right in favour of the petitioner to be granted Indian Citizenship on the ground that the petitioner belongs to the Hindu religious faith and was required to leave his original Country of Bangladesh because of fear of religious persecution” (paragraph 5). The High Court granted liberty to the petitioner to approach the appropriate authority to file an application raising the plea that he is entitled the grant of Indian Citizenship. It also granted interim protection of two months’ time to the petitioner to file such application, and directed that the authority shall pass a reasoned order without being influenced by the conclusions and findings arrived at by the HC in its previous decision dismissing the writ petition. 

Significance: The case deals with a declared foreigner approaching the Gauhati High Court on a review petition seeking to apply for citizenship. It is significant because this is the first instance we know of where a person who is a declared foreigner by the Foreigners Tribunal is seeking to apply for citizenship because of religious persecution. While the order does not refer to the Citizenship (Amendment) Act, 2019, it is only under the CAA, 2019 that persons covered under the 2015 Gazette Notification are exempted from the definition of “illegal migrant” and hence eligible to apply for citizenship. This indicates that the CAA 2019 is operational and can be invoked as a path back into citizenship by non-Muslim declared foreigners in Assam. 

Refer to a more detailed note on the CAA 2019 and its continuing implementation here.


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.