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

Read the judgement here.

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.

Suresh Raj v. State, Criminal O.P. No. 5875/2021

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 4^th 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:

1. Model Detention Centre, Suo Motu Writ Petition No. 1 of 2019
2. Prof. Bhim Singh v. Union of India & Ors., 2015 (13) SCC 605
3. Babul Khan v. State of Karnataka, CRL.P. No. 6578/2019
4. Bawalkhan Zelanikhan vs B.C. Shah

Resources:

1. Aaratrika Bhaumik, ‘Unscrupulous Elements: Madras HC Directs MHA To Frame Laws Within 3 Months’, Live Law, 27 September, 2021 
2. Palak Chaudhari and Madhurima Dhanuka, ‘Strangers to Justice,’ Commonwealth Human Rights Initiative, 2019
3. Arijit Sen and Leah Varghese, Weaponizing Citizenship in India, Border Criminologies Blog, 19 February 2020
4. Sujata Ramchandran, The Contours of Crimmigration Control in India, Global Detention Project, 2019 
5. Darshana Mitra, From Citizen to Criminal: Citizenship Determination in India and the Limits of Due Process, The Leaflet, 27 January 2021
6. Aman and Roshni Shanker, Identity in Exile, The Hindu, 28 May 2018
7. 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.