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:
Babul Khan v. State of Karnataka, CRL.P. NO.6578/2019
Bhim Singh vs. Union of India, [W.P. (Criminal.) No. 310/2005]
Resources:
Meha Dixit, Stateless in Amritsar: India’s Convicted Foreign Nationals and Their Eternal Wait to Go Home, The Caravan, 9 September, 2015
Hira Nagar Jail Turned Into ‘Holding Centre’ For Rohingyas, Kashmir Observer, 2 April, 2021
Sujata Ramachandran, The Contours of Crimmigration Control in India, Global Detention Project, 2019
Rahul Tripathi, States told to set up Centres to detain illegal migrants, The Economic Times, 29 July, 2019
Rohini Swamy, A year after it was set up, Karnataka ‘detention centre’ gets first detainee — a Sudanese, The Print, 20 November, 2020
Meha Dixit, In Jammu, Prisoners Detained for Border Crossing Languish in Jails Despite Completing Their Sentences, The Caravan, 29 April, 2016
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.