Case BriefsHigh Courts

Patna High Court: Rajeev Ranjan Prasad, J., addressed petitions filed jointly by foreign nationals from Bangladesh, Malaysia and Australia on the ground that they had been unlawfully framed in controversial Tablighi incident.

Factual Matrix

 In CR. WJC No. 367 of 2020, petitioners 1 to 9 were foreign nationals from Bangladesh who came to India on tourist visa and were charged with the offence of spreading religious ideologies under Sections 14 and 14(C) of the Foreigners Act, 1946, and petitioners 10 and 11 were Indian nationals, who were allegedly assisting the foreigners in the said offence, whereas, in Cr.W.J.C. No. 369 of 2020, petitioner 1, an Indian national, was the secretary of Jama Masjid, Bihar while petitioners 2 to 10 were foreign nationals from Malaysia and Australia. It was alleged that these petitioners visited ‘Nizamuddin Markaz’, Delhi prior to Tablighi Conglomeration, thereafter they reached Araria, Bihar on 11-03-2020 and were residing in ‘Rawahi Markaz’ since 15-03-2020 and Mosque since 21-03-2020 respectively.

On 24-03-2020 a nation-wide lockdown for 21 days was declared with an aim and object to check the spread of Covid-19. Consequently, the petitioners were screened by the administration and then they remained quarantined for the mandatory period as per the government’s Standard Operating Procedures (SOPs). Pursuant to the directions as contained in letter No. 91 dated 09-04-2020 issued by the Ministry of Home Affair, Government of India, Bihar Police registered the present F.I.R. against these petitioners. Later on, Chief Judicial Magistrate, Araria had also taken cognizance and summons had been issued to these petitioners.

The charges against these petitioners were of,

  • Non-furnishing of information about their visits to the police and
  • Getting involved in the spread of religious ideologies by a foreign national who is visiting India on a tourist visa,

offences under Sections 14 and 14(C) of the Foreigners Act, 1946

Submission on behalf of Petitioners

The counsel for the petitioners, P.K. Shahi, submitted that on perusal of FIR, it may be held that no offence at all was made out against these petitioners. It was submitted that the order taking cognizance and issuance of summons had been passed in a routine and mechanical manner and the same were liable to be set aside.

The counsel while relying on Anand Kumar Mohatta v. State (Govt. of NCT of Delhi, (2019) 11 SCC 706, submitted that, submission of charge-sheets and order taking cognizance is no bar in quashing of the F.I.R. It was submitted by the petitioners that neither at the time of registration of the FIR were they found involved in any act of preaching religious ideologies nor in course of investigation the Police had collected any material in any form to show that they had addressed any gathering or had indulged in preaching their ideologies. It was further argued that a mere bald allegation without there being any material to show that they were involved in preaching religious ideologies would not attract the application of Sections 14 and 14-C of the Act. Reliance was also placed on Konan Kodio Ganstone v. State of Maharashtra, 2020 SCC OnLine Bom 869, in which Bombay HC had quashed FIR in respect of foreign nationals who had been arrested from Masjids during nationwide lockdown holding that, a foreign national may visit Masjid and can go there to observe a religious practice or to offer Namaz, there was also no material on the record to show that the Indians were prevented from accommodating persons in the Masjid including the foreigners.

 As per the relevant provisions of Registration of Foreigner Rules, 1992, it was hotel and those places which are covered under the definition of “Hotel” under Rule 14 (7) where the foreign nationals had stayed were required to furnish information regarding the stay to the local police and there was no personal liability on foreigners to inform the local police about the same, also the counsel for the petitioners submitted that a ‘Mosque’ or ‘Markaz’ was not covered under the definition of “Hotel” under  Rules, 1992.

Stand of the Government

Additional Solicitor General, Dr K. N. Singh submitted that the Government of India had a consistent policy that a foreign national visiting India on tourist visa could not indulge in preaching religious ideologies unless so permitted by the Government. It was further submitted that in case the management of ‘Markaz’ or ‘Masjid’ had been providing lodging facility to a foreign national or a team of foreign nationals on regular basis the facilities so provided to a traveller would be covered within the meaning of the word ‘a boarding house; or ‘a rest-house’.

Observations

The Court after considering various guidelines issued by Union Home Ministry, Government of India observed that the purpose behind those guidelines was to ensure that the foreign nationals who were visiting India on Tourist Visa did not indulge in Tabligh work. The guidelines gave them permission to attend Tabligh Jamaat (congregation) and such act of mere attending the Tabligh Jamaat did not amount to Tabligh work prohibited under those instructions. In course of investigation also police had not collected any material in any form to take a prima-facie view that these foreign nationals were indulged in religious/tabligh work. The allegation of preaching religious ideologies was thus not supported by any material. In absence of any material, it appeared to this Court that the Chief Judicial Magistrate, Araria had taken cognizance and decided to issue a summons in a routine and mechanical manner.

On the contention as to whether Markaz or Mosque were required to inform about the stay of foreign nationals to the local police the Court observed that there was no ban or restriction on the stay in these places but it could not be said that the Management were not required to report the stay of foreign nationals on Tourist Visa in the premises of the ‘Mosque’ or ‘Markaz’.  The Court held that “Markaz” or “Mosque” would fall within the ambit of “rest house” or “boarding house” under para 16 (7) of the Foreigners (Amendment) Rules 2016 where these premises were found to be used as a ‘boarding house’ or a ‘rest house’ for foreigners and then by virtue of their use the keepers of such premises should be made responsible to comply with the requirements of reporting it to the local authorities.

Decision

 In the light of the above considerations, the Court held that the prosecution of foreign nationals for the offences alleged under Sections 14 and 14-C of the Act had no basis to proceed. Accordingly, the order taking cognizance and issuance of summons and also the entire criminal prosecution against them was quashed. However, it was further held that since the foreign nationals were staying in the ‘Markaz’ and the ‘Mosque’ respectively but the same was not reported to the authority competent by the management, a prima-facie case had been found to issue summons to petitioner 10 and 11 in Cr.W.J.C. No. 367 of 2020 and to petitioner 1 in Cr.W.J.C. No. 369 of 2020. Hence, the Court would not interfere with the impugned orders in so far as it relates to them.

The petition was disposed of with further directions to the State to deport these foreign nationals to their respective countries. [Enamul Hasan v. Union of India,    2020 SCC OnLine Pat 2708, decided on 22-12-2020]

COVID 19Hot Off The PressNews

In view of the situation arising out of the COVID-19 pandemic, the Government of India had taken a series of steps to curtail the inward and outward movement of international passengers since February, 2020.

The Government has now decided to make a graded relaxation in visa and travel restrictions for more categories of foreign nationals and Indian nationals who wish to enter or leave India.

Therefore, it has been decided to permit all OCI and PIO cardholders and all other foreign nationals intending to visit India for any purpose, except on a Tourist Visa to enter by air or water routes through authorized airports and seaport immigration check posts.  This includes flights operated under Vande Bharat Mission, Air Transport Bubble arrangements or by any non-scheduled commercial flights as allowed by the Ministry of Civil Aviation. All such travellers will however have to strictly adhere to the guidelines of the Ministry of Health and Family Welfare regarding quarantine and other health/COVID-19 matters.

Under this graded relaxation, Government of India has also decided to restore with immediate effect all existing visas (except electronic visa, Tourist Visa and Medical Visa).  If the validity of such visas has expired, fresh visas of appropriate categories can be obtained from Indian Mission/Posts concerned.

Foreign nationals intending to visit India for medical treatment can apply for a Medical Visa including for their medical attendants. Therefore, this decision will enable foreign nationals to come to India for various purposes such as business, conferences, employment, studies, research, medical purposes etc.


Ministry of Home Affairs

[Press Release dt. 22-10-2020]

[Source: PIB]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of T.V. Nalawade and M.G. Sewlikar, JJ. has quashed all FIRs filed against the foreign nationals who indulged in Tablighi Jamat. Justice Nalawade pronounced the Judgment authored by him, in which certain scathing observations were made which are quoted verbatim:

“There was big propaganda in print media and electronic media against the foreigners who had come to Markaz Delhi and an attempt was made to create a picture that these foreigners were responsible for spreading the Covid-19 virus in India. There was virtually persecution against these foreigners. A political Government tries to find the scapegoat when there is pandemic or calamity and the circumstances show that there is a probability that these foreigners were chosen to make them scapegoats. The aforesaid circumstances and the latest figures of infection in India show that such action against present petitioners should not have been taken. It is now high time for the concerned to repent about this action taken against the foreigners and to take some positive steps to repair the damage done by such action.”

Interestingly, however, it is to be noted that the brief of the Judgment which follows is based on the observations and reasoning of Justice Nalawade only. As Justice Sewlikar has agreed only with the operative part of the Judgment but has “disagreed with some reasoning”. It has been stated that the reasoned Judgement of Justice Sewlikar will follow.

Also, after the Judgment was pronounced, M.M. Nerilkar, APP, requested the Court to put a stay on the order. This request was, however, not acceded to by the Court.

Case against the petitioners

The prosecution case was that the petitioners-foreign nationals had come to Ahmednagar in groups with some Indian nationals and they had visited many places, they were living in masjids (mosques) during their stay. On 14-3-2020, Covid-19 lockdown was declared by the Maharashtra State Government and by the notification dated 23-3-2020 direction was given to close the religious places. Powers were given to District Authorities by the Government to exercise powers under the Epidemic Diseases Act, 1897. By exercising these powers, District Magistrate had issued prohibitory orders and directions were given to close all public places. In spite of prohibitory orders and conditions of visa, the petitioners indulged in Tablighi activity. Announcements were made at public places to ask the persons who had attended Markaz Masjid to come forward voluntarily for testing them in respect of Covid-19 virus, but they did not come forward voluntarily and they had created threat of spreading Covid-19 virus. It was necessary for them to give necessary information to the local authority in Form ‘C’, but they had given incorrect addresses in Form ‘C’ and they were actually living in Masjids. Visa conditions prohibited Tablighi work by foreign national tourists. Therefore, charge-sheets were filed against the petitioners under Sections 188, 269, 270 and 290 of the Penal Code and various provisions of the Maharashtra Police Act, 1951; the Epidemic Diseases Act, 1897; and the Disaster Management Act, 2005.

It is noticed that people are afraid of test taken for detection of virus. That is why the infected persons are brought very late to the hospitals and they die. In the present matter, it is not the case of the State that the petitioners were hiding in Masjid or other place in Ahmednagar to avoid the test.

Petitioners’ case

It is the contention of the petitioners, who are mainly foreign nationals, that they came to India on a valid visa issued by the Government of India and they have come to experience Indian culture, tradition, hospitality and Indian food. On their arrival at the airport, they were screened and tested for Covid-19 virus and only when they were found negative for virus, they were allowed to leave the airport. They were visiting various places of India and particularly Ahmednagar to observe the religious practices of Muslims. After their arrival in Ahmednagar district, they had informed to District Superintendent of Police about their arrival and that was done much prior to the date of registration of the crime against them. Due to the lockdown, the vehicular moment was stopped and the persons were not allowed to leave the residential places to prevent the spreading of Covid-19. The masjid had given shelter to them as due to lockdown order, hotels and lodges were closed. Some order was issued by the Collector, but that was not actually prohibitory order and they were not involved in illegal activity including the breach of order of District Collector. Even at Markaz, they had observed norms of physical distancing. While granting visa, they were not asked to inform local authorities about their visit to those places, but they had informed local officers. Under the conditions of visa, there was no prohibition to visit religious places like masjids and there was prohibition to visit containment areas and the connected areas with regard to defence matter. They were not involved in a breach of orders or in propagating Muslim religion.

In view of the Articles of Indian Constitution like Articles 25 and 21, when visa is granted to foreigners, such foreigners cannot be prevented from visiting masjids, if they go there to observe religious practices or to offer only namaz.

What is Tablighi Jamat

As noted by the Court, Tablighi Jamat movement was founded by Maulana Mohammad Iliyas in 1927 in Delhi and this movement is popular in villages and peasants. This movement is focused on religion rather than political aspects of Islam and this movement spread throughout Muslim world from 1950 onwards. Muslims from all over the word come to India as they are attracted to the reform movement of Tablighi Jamat and they visit Markaz Masjid from Delhi. It is a continuous process and it appears that there are arrangements of the stay also made by the Muslims at Markaz Delhi. Considering the dates of arrival of the petitioners to India and their departure from Delhi also shows that there was no particular day fixed for the congregation or any function. Initially, the Court thought that for some function arranged by Tablighi Jamat at Markaz, the foreigners had come, but the record shows that there was no function and it is a continuous activity. From so many years Muslims from various countries have been coming to India to visit that place and they have been coming on a tourist visa. The visits of these foreigners to masjids from India were not prohibited and even discourse was not prohibited. The activity of Tablighi Jamat got stalled only after declaration of lockdown in Delhi and till then it was going on. There is nothing on the record to show that this activity is prohibited permanently by the Government. These things needs to be kept in mind while considering the cases filed against the petitioners.

There is nothing on the record to show that the Indians were prevented from accommodating persons in the Masjid or from supplying meals to the persons including the foreigners. The statements of the witnesses recorded by police are stereotype and it can be said that word to word, line to line and para to para of the statements are copied.

Court’s opinion and decision

The main thrust of the prosecution was on breach of so-called conditions of the visa. The other main contention was in respect of breach of orders issued by the authorities created under the Disaster Management Act, 2005 and the orders issued under Epidemic Diseases Act, 1897.

(i) On violation of Visa Conditions

If there is breach of visa conditions, it can be said that offence under Section 14(b) of the Foreigners Act is committed by the foreigners. To make out this offence, it needs to be shown that there was some visa condition in existence at relevant time and the foreigners have acted in breach of that condition.

Perusing the latest updated Visa Manual, the High Court noted that “there is no restriction on foreigners for visiting religious places and attending normal religious activities like attending religious discourses”.

Discussing the evolution of Tablighi Jamat and the meaning of “discourse”, the Court observed:

Every religion has evolved over the years due to reformation as reformation is always necessary due to the changes in the society and the development achieved in the material world. In any case, even from the record, it cannot be inferred that the foreigners were spreading Islam religion by converting persons of other religion to Islam.

The Court also noted that the record showed that the foreigners were not talking Indian languages like Hindi or Urdu and they were talking languages like Arabic, French, etc. It was concluded that it can be said that the foreigners may have the intention to know the ideas of Tablighi Jamat about the reformation. It was stated that unless a particular programme of a foreigner or idea of such foreigner or doctrine or set of principles proposed by him do not create unrest in religion or society, one cannot prevent the foreigner from expressing his ideas about reformation. There is no such specifc allegation also against the foreigners. Nothing is said as to which ideas the foreigners were propagating.

The record shows that there is allegation that they were reading Quran and religious books of Muslims and delivering lectures to Muslims in Masjid. The allegations are very vague in nature and from these allegations inference is not possible at any stage that they were spreading Islam religion and there was intention of conversion. It is also not the case that there was element of persuasion on any point from these foreigners.

Having noted that freedoms under Article 19 are not available to foreigners, the Court stated that it needs to be kept in mind that when the permission is given to the foreigners to come to India under visa, at least Article 25 comes in to play. Then there are Articles 20 and 21 which are also available to foreigners.

Record shows that it was not made known to the holders of visa that they were prohibited from visiting Masjids or staying in Masjid. On the contrary, in the past and in updated guidelines instructions were issued to the effect that they were allowed to visit the religious places.

Considering the schedule of petitioners’ arrival in India and the dates when they were taken in custody, the Court said that there is more possibility that they got infected in India and they were not already infected when they arrived in India. Further, admittedly screening at the airport was done of these petitioners before allowing them to leave the airport. The Court reiterated that criminal cases cannot be tried on suspicion.

“Reformation is continuous process in every religion and such process is necessary for peaceful co-existence. Unless a particular programme of such foreigner or idea of such foreigner or doctrine or set of principles proposed by him do not create unrest in that religion or society, one cannot prevent the foreigner from expressing his ideas about reformation”

Noting India’s culture and tradition of “Atithi Devo Bhav” which means that our guest is our God, the Court said that the circumstances of the present matter create a question as to whether we are really acting as per our great tradition and culture. During the situation created by the Covid-19 pandemic, we need to show more tolerance and we need to be more sensitive towards our guests particularly like the present petitioners. The allegations made show that instead of helping them we lodged them in jails by making allegations that they are responsible for violation of travel documents, they are responsible for spreading of virus, etc.

Finally, noting provisions of the Constitution, the Court concluded:

“Article 20 of the Constitution of India shows that the acts which were not prohibited at the time when they were committed cannot be treated as offence and violation of law subsequently. In view of the record which is already discussed, it was not possible to go with the presumption that there was a violation of visa conditions.”

In such circumstances, the Court held that the material was not sufficient to make out prima facie case for the offence punishable under Section 14(b) of the Foreigners Act.

(ii) On “Smell of Malice”

Discussing what must have tempted the authorities to issue such directions against the foreigners like the petitioners,  the Court noted that the action of Central Government was taken mainly against Muslim persons who had come to Markaz Delhi for Tablighi Jamat. Similar action was not taken against other foreigners belonging to other religions. Due to these circumstances, the background of the action and what is achieved needed to be considered by the Court. IT was observed:

“There were protests by taking processions, holding dharana at many places in India from atleast prior to January 2020. Most of the persons participated in protest were Muslims. It is their contention that the Citizenship Amendment Act, 2019 is discriminatory against the Muslims. They believe that Indian citizenship will not be granted to Muslim refugees and migrants. They were protesting against National Registration of Citizenship (NRC). There were protests on large scale not only in Delhi, but in most of the States in India. It can be said that due to the present action taken fear was created in the minds of those Muslims. This action indirectly gave warning to Indian Muslims that action in any form and for anything can be taken against Muslims. It was indicated that even for keeping contact with Muslims of other countries, action will be taken against them. Thus, there is smell of malice to the action taken against these foreigners and Muslim for their alleged activities. The circumstances like malice is an important consideration when relief is claimed of quashing of FIR and the case itself.”

  (iii) On violation of District Authority’s orders

Perusing the record and discussing the alleged offences against the petitioner, the Court was not inclined to accept that there was any violation of the order passed by District Authorities. The Court went on to observe:

“It is a fact that many foreigners of other countries are sent back by the Central Government without making any inquiry. Social and religious tolerance is a practical necessity for unity and integrity in India and that is also made compulsory by our Constitution. Through hard work over the past years after independence, we have reconciled religion and modernity to a great extent. This approach helps participation of most in developing process. We have been respecting both religious and secular sensibilities since independence and by this approach, we have kept India as united.”

The Court concluded that Maharashtra police acted mechanically. It appears that the State Government acted under political compulsion and police also did not dare to exercise powers given to them under provisions of procedural law like CrPC and substantive laws. The record shows that there was non-application of mind by police and that is why even when no record was available to make out prima facie case, charge sheets are filed by police.

Therefore, it was held that it will be abuse of process of law if the petitioners are directed to face the trial in aforesaid cases. As a result, all FIRs filed against the petitioners were quashed by the Court.

[Konan Kodio Ganstone v. State of Maharashtra, 2020 SCC OnLine Bom 869, decided on 21-08-2020]

Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit, J., quashed the criminal proceedings against 9 foreign nationals belonging to the Tablighi Jamaat while directing FRRO to issue exit permits with imposing a fine and the undertaking to not visiting India for next ten years.

Present petitions challenged the initiation of criminal proceedings inter alia under the provisions of the Foreigners Act, 1946 for the violation of VISAS in question.

Counsel for the petitioner contended that the initiation of criminal proceedings is on a wrong assumption of a jurisdictional fact namely the nature of VISA.

Further, he added that the State is proceedings on a demonstrably wrong premise that the VISAS in question are all Tourist VISAS when they are not.

Central Government holds the power to relieve the foreigners of the criminal action after accepting the fine amounts in terms of the extant norms and therefore, that benefit needs to be extended to the accused.

Decision

Bench observed that there is no dispute as to the 9 of the 16 accused being foreigners who gained entry to India on the basis of VISAS in question.

Section 14 of the Foreigners Act, 1946 criminalizes violation of the conditions of VISA and prescribes punishment of imprisonment that may extend to 5 years and also unlimited fine.

Hence in view of the above, the case thus only revolves around one factor namely the nature of VISA.

Accused’s travel documents show that the VISAS in question granted to them answer the description of and bear the nomenclature “e-Tourist Visa”.

“E-VISAS are granted only for the specified purposes and not granted for any other purpose, the missionary activities such as propagation of religion, participating in religious congregation and proselytization are not entitled as the permissible activities.”

Adding to the above, the Court stated that there is no specific prohibition in the Visas in question for preaching religious principles in the Tablighi congregation, hence what is not provided for in the Visa, is deemed to be impermissible.

Court held that there is absolutely no justification for the allegation of the petitioners that the criminal proceedings initiated by respondent-police, with the prejudice generated by the Media propaganda and for the statistical purpose of the State, there is no iota of material for entertaining such baseless grievance.

Bench laid down the following directions:

  • FRRO is directed to issue exit permits to the petitioners and ensure their exit from the country.
  • Petitioners shall pay the fine amounts and file an undertaking to the effect that they would not visit this Country within the next 10 years.[Farhan Hussain v. State, Criminal Petition No. 2376 of 2020, decided on 05-08-2020]
Case BriefsSupreme Court

Supreme Court: After Solicitor General Tushar Mehta submitted before the bench of AM Khanwilkar and Dinesh Maheshwari that as of today only ten petitioners in the Tablighi Jamaat case have decided to contest the criminal cases pending against them and are not willing to exercise the option of plea bargaining, the Bench directed that the criminal cases concerning these ten petitioners pending in different Trial Courts in the NCT of Delhi be brought before the same Court i.e. to the Chief Metropolitan Magistrate, South-East Delhi, Saket Court Complex, Saket, so that all the cases can be disposed of expeditiously. It further directed the said Court to dispose of all the cases expeditiously preferably within eight weeks from today.

SG also submitted before the Court that  if the concerned petitioners tender apology, as envisaged by the Madras High Court in the concerned criminal case, the said petitioners can be permitted to leave India despite the pendency of the criminal case but subject to such orders that may be passed by the concerned Trial Court.

He also told that Court that the look out notices issued against the petitioner(s) before this Court stand withdrawn and that the concerned petitioner(s) will be free to leave India subject to any other pending proceedings including order passed by the Court requiring his/her presence in the stated proceedings.

The Court has listed the matter after 8 weeks.

Petitioners who are foreign nationals were arrested by respondent police on the ground that they had engaged in religious activities in breach of visa conditions. They defied COVID-19 lockdown norms as were imposed by the Government. In the norms, religious places were ordered for closure, yet the petitioners allegedly stayed inside the mosques in groups by defying the norms laid down by the Government.

Thus, in view of the above stated reasons, FIRs were lodged against the petitioners for committing offences under Section 13 and 14 of the Foreigners Act, 2014, Sections 188, 269, 270, 271 and 278 of IPC, Section 3 of Epidemic Diseases Act 1897, Section 58(4), 134, 135 of the Tamil Nadu Public Health Act, 1939 and Section 51(b) of the Disaster Management Act, 2005.

Madras High Court had, in it’s June 12 order said that the petitioners had come to India to serve the cause of their religion. Circumstances suddenly turned adverse and landed them in prison. They have spent more than 70 days in what are truly difficult conditions.

“Merely because the petitioners have contravened the visa conditions, they cannot be seen as criminals.”

[Maulana Ala Hadrami v. Union of India, 2020 SCC OnLine SC 629, order dated 06.08.2020]


ALSO READ

Madras HC | Tablighi Jamaat | Foreigners who attended congregation not criminals: HC grants bail and allows return of foreigners to native country


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Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., while addressing a petition with regard to release of Tablighis, stated that,

Covid-19 should teach us to care for each other rather than use the arsenal of law.

Petitioners who are foreign nationals were arrested by respondent police on the ground that they had engaged in religious activities in breach of visa conditions.

They defied COVID-19 lockdown norms as were imposed by the Government.

In the norms, religious places were ordered for closure, yet the petitioners stayed inside the mosques in groups by defying the norms laid down by the Government.

Thus, in view of the above stated reasons, FIRs were lodged against the petitioners for committing offences under Section 13 and 14 of the Foreigners Act, 2014, Sections 188, 269, 270, 271 and 278 of IPC, Section 3 of Epidemic Diseases Act 1897, Section 58(4), 134, 135 of the Tamil Nadu Public Health Act, 1939 and Section 51(b) of the Disaster Management Act, 2005.

There are accusations that its puritanical and revivalist project prepares the ground for islamic radicalization.

Court’s opinion on “Tablighis”

[Categorization can have serious pitfalls]

Bench recorded,

Prof. Upendra Baxi’s remark in his recent essay on “Exodus Constitutionalism” published by The India Forum that “there is, also, no such thing as ‘migrants’ but only persons and groups with distinctively (and often disturbingly) different needs and abilities…”

The above stated helped the Court to see the petitioners as “30 individuals” instead of collectively thingifying them as “Tablighis”.

Justicing has to be an individualized exercise.

Further the Court added that, there are scores of foreign Tablighis who are presently in detention. They hail from different countries. Some of them are women. Quite a few are senior citizens. They are normal human beings. They are now stuck in alien surroundings.

The petitioners came to India propelled by a sense of religious idealism. But their mission went awry.

The stated petitioners are eager to return back to their families and are also willing to admit through affidavits that they had violated the visa conditions and were willing to undertake that they will not enter India for the next ten years.

Entitled to bail?

Offences which the petitioners are alleged to have committed are not akin to those offences for which there are limitations for grant of bail.

The Bench states that there cannot be any objection for granting bail to the petitioners.

Continued incarceration of the petitioners will not serve any purpose. Since the petitioners are foreigners, it would obviously be difficult for them to arrange local sureties.

Thus, petitioners shall be released on their own bond.

Right to return to native country

Bench stated that the petitioners had come to India to serve the cause of their religion. Circumstances suddenly turned adverse and landed them in prison. They have spent more than 70 days in what are truly difficult conditions.

Merely because the petitioners have contravened the visa conditions, they cannot be seen as criminals.

Court feeling sensitive to the petitioners’ misery in the present COVID-19 times, posed a question, whether it is acting beyond jurisdiction?

To the above, bench stated,

The Hon’ble Chief Justice has allotted the subject of Criminal Original Petition-Bail, Anticipatory Bail Petitions, Criminal Appeal and Criminal Revision Petitions to be dealt with by me. But, in view of my being a Judge of the High Court, I certainly have the inherent power to make such orders as may be necessary to secure the ends of justice.

Failure to respond to the petitioners’ existential horror would amount to judicial abdication.

Of course, the petitioners having violated the visa conditions cannot demand that they must be allowed to return as a matter of right. But then, the authorities cannot arbitrarily deny the said request.

Unjust, Unreasonable and Unfair

Petitioners are willing to bear the cost of transportation. They will coordinate with their embassies and consulates and arrange their return. All that the respondents need to do is to play a facilitatory role. Instead of doing so, if the respondents insist on detaining the petitioners and prosecuting them, it can only be characterized as unreasonable, unjust and unfair.

Thus, in view of the above, Court issues following directions:

  • Petitioners are granted bail.
  • After the petitioners are released on bail, it is open to the authorities to require the petitioners to stay at the special camp earmarked under Section 3(2)(e) r/w 4(2) of the Foreigners Act, 1946.
  • If the petitioners execute appropriate affidavits expressing their regret for having violated the visa conditions, proceedings against them shall be concluded by filing final reports recording the same.
  • It is for the petitioners to coordinate with their respective embassies/consulates and arrange their return to their respective nations. Government of Tamil Nadu or the Government of India will only play a facilitatory role.

[Md Kameual Islam v. State, 2020 SCC OnLine Mad 1171 , decided on 12-06-2020]

COVID 19Hot Off The PressNews

Government of India has considered the matter regarding relaxation of the visa & travel restrictions for certain categories of foreign nationals who need to come to India. It has been decided to permit the following categories of foreign nationals to come to India:-

  • Foreign businessmen coming to India on a Business visa (other than on B-3 visa for sports) in non-scheduled commercial/ chartered flights.
  • Foreign Healthcare professionals, health researchers, engineers and technicians for technical work at Indian health sector facilities, including laboratories and factories.  This is subject to a letter of invitation from a recognized and registered healthcare facility, registered pharmaceutical company or accredited University in India.
  • Foreign Engineering, Managerial, Design or other Specialists travelling to India on behalf of foreign business entities located in India.  This includes all manufacturing units, design units, software and IT units as well as financial sector companies (banking and non-banking financial sector firms).
  • Foreign Technical specialists and engineers travelling for installation, repair and maintenance of foreign-origin machinery and equipment facilities in India, on the invitation of a registered Indian business entity.  These could be for equipment installation, or is under warranty, or for after sales servicing or repair on commercial terms.

The above categories of foreign nationals would have to obtain a fresh Business visa or Employment visa, as applicable, from the Indian Missions/ Posts abroad. 

Foreign nationals holding a valid long term multiple entry Business visa [other than B-3 visa for sports] issued by the Indian Missions/ Posts abroad would have to get the Business visa re-validated from the Indian Mission/ Post concerned.

Such foreign nationals would not be permitted to travel to India on the strength of any electronic visa obtained earlier.

Click here to see the Official Document


Ministry of Home Affairs

[Press Release dt. 03-06-2020]

[Source: PIB]

Case BriefsCOVID 19High Courts

Delhi High Court: A Division Bench of Vipin Sanghi and Rajnish Bhatnagar, JJ., asked the respondents to report back on the facilities identified by community for the purpose of shifting the foreign nationals who participated in Tablighi Jamat.

Present petition was preferred seeking issuance of writ of mandamus in order to quash the Order issued by Respondent 3.

Further petitioners sought immediate release of all foreign nationals held by respondents in institutional quarantine in Delhi on grounds of being tested negative for COVID19 and quarantine in perpetuity.

As per the status report filed by Delhi Police, passports and Visa application forms of overseas quarantined Tablighi Jamaat participants were examined and it was found that they had obtained Tourist Visa/ E-Visa on their arrival in India.

It was alleged that the participation of these foreign nationals in Tablighi Jamat is in violation of the Visa Manual, 2019 and contravenes Section 14 of the Foreigners Act, 1946.

Also non-compliance of orders issued under Epidemic Diseases Act and Disaster Management Act, 2005 has been alleged against the above-mentioned foreign nationals.

Some of the accused foreign nationals were unable to provide / produce their passports. Efforts are being made to account for all the passports in this regard.

Delhi Police stated that no one has been arrested in the case so far, and that no one has been detained by the Delhi Police in the said case.

Standing Counsel, Rahul Mehra, on instructions, stated that the final report would be filed before the concerned court within this week.

He also stated that the foreign nationals, who are presently housed at the quarantine facilities, are not under detention, or arrest.

Senior Counsel, Rebecca John for the petitioners stated that these foreign nationals may be moved to other better facilities that have been identified by community.

Amit Mahajan for Union of India submitted that since the above-mentioned foreign nationals are not under detention or arrest, and the relief for allowing the said foreign nationals to fly back to their respective home countries has not been pressed – as a case has been registered and the charge sheet is also about to be filed, he would not object to the limited prayer being made by the petitioners.

Thus in view of the above respondents shall report back on the said facilities on next date.

Matter to be listed on 28th May, 2020. [Mohammad Jamal v. UOI, 2020 SCC OnLine Del 603 , decided on 26-05-2020]

COVID 19Hot Off The PressNews

Union Ministry for Home Affairs (MHA), on 17.04.2020, had granted consular services on gratis basis to foreign nationals, presently stranded in India due to travel restrictions in the context of COVID-19 outbreak, till 3rd May, 2020. (https://pib.gov.in/PressReleseDetail.aspx?PRID=1615496).

After considering the matter, it has been decided to extend the period of providing the following consular services by the Office of Foreigners Regional Registration Officers/ Foreigners Registration Officers to foreign nationals, presently stranded in India.

Regular visa, e-visa or stay stipulation, of such foreign nationals whose visas have expired or would be expiring during the period from 01.02.2020 (Midnight) till the date on which prohibition on international air travel of passengers from India is lifted by Government of India, would be extended on ‘GRATIS’ basis, on submission of an online application by the foreigners.

Such extensions would be granted for a period up to 30 days from the date of lifting the prohibition on international air travel of passengers from India without levy of over stay penalty. Exit to such foreign nationals, if so requested by them, will also be granted on the same lines.

Click here to see Official Order


Ministry of Home Affairs

[Press Release dt. 05-05-2020]

[Source: PIB]

COVID 19Hot Off The PressNews

In order to remove confusion in the public, it is informed that Union Ministry for Home Affairs (MHA), on 28.03.2020, had granted consular services on gratis basis to foreign nationals, presently residing in India due to travel restrictions in the context of COVID-19 outbreak, till 30th April, 2020. (https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1613895)

Regular visa, e-visa or stay stipulation, of such foreign nationals who have who have been stranded in India because of spread of COVID-19 in many parts of the world and due to consequent travel restrictions imposed by Indian Authorities and whose Visas have expired or would be expiring during 01.02.2020 (Midnight) to 30.04.2020 (Midnight), would be extended till 30th April 2020 (Midnight) on GRATIS basis, after making online application by the Foreigner.


Ministry of Home Affairs

[Press Release dt. 13-04-2020]

[Source: PIB]