In a recent order, the Karnataka High Court held that illegal migrants cannot wander around the country freely even if they have been granted bail.
Such illegal migrants should be kept in detention centres till further orders of the court or till they are deported to their home country, the High Court held. Further, the Court held that such foreign nationals should continue to remain in detention centres even if they are acquitted, till their deportation unless they are entitled to stay in India or the competent authority passes orders regulating their movement as per the Foreigners Act.
Justice (retd.) KN Phaneendra laid down a series of guidelines to courts in the case of illegal migrants , police, and prison authorities for dealing with illegal migrants and overstaying foreign nationals facing criminal cases for violation of the Foreigners Act and offences under other laws. Some of key guidelines laid down are as follows:
- As soon as the offence under Foreigners Act, if there is strong prima facie material to show that the detected person is a foreign national, and if he has no Passport or Visa, then proceedings shall be immediately started to deport him to his nation, without unnecessary delay.
- The jurisdictional police have to immediately take steps to inform the concerned competent authorities to initiate proceedings to deport such foreign national to his mother country.
- If the Court refuses to grant bail to those persons (foreign nationals) in any criminal case, the Court shall keep such person in regular jail, till the disposal of the case.
- If the case registered against foreign nationals ends in conviction, they shall be ordered to be kept in regular prison of the State till they serve their sentence.
- After serving the sentence, they shall be kept in detention centers till they are deported to their country.
- The Public Prosecutors, the defence Counsel and the Courts shall make all their efforts to expeditiously deal with such cases by giving priority, for its early disposal, so as to enable other competent authorities to take appropriate steps for deportation.
- The courts shall try to record evidence and write the judgment in English Language, in case if the accused in such case is not conversant with the local language.
- The Central Government and the State Governments to take all necessary steps to establish as many as necessary Detention Centers, at Cities, Districts and Taluka places as per the guidelines in the case of RD Upadhyay v. State of AP and others.
- In case the accused/foreign national is a woman or a woman having a child or the child itself, the competent authorities are to follow the guidelines of Upadhyay’s case, in addition to the Prisons Act as well as Prisons Rules, and Juvenile Justice Act and Rules.
- The Central Government and the respective State Governments should often revise the Detention Center Manual and also the Prisons Act and Rules based on the need of the hour to bring necessary changes.
The Court further went on to state that,
“The retaining of the illegal migrants may be some times helpful to the country if they came to our country eking their livelihood and they are all from hard working community. But, that does not mean to say that for that reason, they can be retained in India in violation of the various Acts and Rules of the Country.”
Taking note of the rival submissions, the Court delved into questions such as who is an foreign national, manner of identification of foreign nationals who are accused of committing offences, procedure during such investigation etc.
Clarifying the status of illegal migrants, the Court held,
“Persons who have not acquired any citizenship as per the Indian Citizenship Act, but who reside in India fall under the category of illegal migrants. Even the children born to parents who are illegal migrants, or any one of them is an illegal migrant are also not citizens of India automatically by birth. Therefore, it clearly goes to show that taking birth in India is not a criterion, but they should fall under the definition as defined under the Citizenship Act.”
Adding on to this, the Court said that a foreign national, who has violated the provisions under Foreigners Act as well as the penal laws of the country, shall be treated on par with other accused.
So far as the procedural aspects are concerned with illegal migrants, the same procedure requires to be adopted by the authorities with reference to registration, investigation, inquiry and trial before the competent courts of law. All the provisions of the Code of Criminal Procedure are applicable to those foreign nationals also, the Court articulated.
On the procedure that should be followed at the time of granting or refusing bail to foreign nationals, the Court held,
“It is quite natural that under the Foreigners Act, 1946, the foreigners who have violated the provisions of the said Act, they are not supposed to wonder around the country freely as if they are the citizens of the country, even if bail is granted to such persons. The bail cannot be treated as an authority or license to move around the country as if a legal document by the competent authorities. Therefore, the courts, without hearing the Competent Authorities, and the State, and without imposing necessary conditions, no such bails can be granted to such person to move freely anywhere in India even for a day without Passport or Visa, as he is presumed to be an illegal migrant.”
The Court also directed the illegal migrants or the accused to not tamper with the evidence and further to not leave the jurisdiction of the Court.
Read the order here: