In yet another case connected to the Tablighi Jamaat congregation of 2020, the Delhi High Court has been hearing a matter against Indian nationals for giving shelter to foreign attendees of the Tablighi Jamaat. The HC has directed the Delhi Police to inform it whether the Indian nationals, who allegedly housed foreign attendees, did so before or after issuance of the notifications imposing Covid-related restrictions in Delhi.

The court has sought a detailed status report as it is dealing with petitions challenging the 12 FIRs against 48 persons accused of allowing foreign nationals to live together in their houses after they attended the congregation. Justice Mukta Gupta asked the police to indicate the role of each accused and apprise it when the foreign nationals were housed in mosques or homes of the accused in Old Delhi, reported Indian Express.

In a status report filed earlier this year, the Delhi Police had said they had violated the directions issued by Delhi government that all religious places of any denomination shall be closed and any congregation is strictly prohibited. 

The petitioners have argued that the only allegations against them is of accommodating foreign nationals inside their houses when the country was locked down. Yet, the offences invoked against them include serious sections of the law, such as sections 188 (Disobedience to order duly promulgated by public servant), 269 and 270 (Negligent and malignant act likely to spread infection of disease dangerous to life) as well as 120B (criminal conspiracy). These offenses were commonly invoked against persons found in violation of Covid norms imposed by the government last year. The offence of criminal conspiracy was, however, reserved for special circumstances like the Jamaat itself. As is evident from the reading of the charges invoked against them, none of these pertain to the allegation made against them of giving shelter to Jamaat members. Firstly, giving shelter to Jamaat members is not an offence in itself. Further, it does not really amount to violation of the government order as the same does not mention that it was illegal to give shelter to people during the pandemic.

In fact, in January, Sessions Court in Dhanbad, Jharkhand had discharged 10 Indonesian nationals after they were found taking shelter in a mosque during the national lockdown. While the court did not comment on the role of the mosque secretary or president who offered them shelter, the court did take note of the situation they had landed in, due to the national lockdown. The court had observed that they entered India with a valid visa and only because of nationwide lockdown announced on March 24, 2020 they were unable to leave.

In the past year, one by one, these cases against Jamaat members came up before courts across the country and one by one they were either discharged from the offences or they were granted bail. Sabrangindia’s analysis of these multiple orders, reveals that the Courts have not just bailed out Tablighi members, but have seriously questioned the charges invoked against them, quashing the cases filed against them have emerged.

Some of these cases include Nagpur Bench of Bombay High Court quashing FIR and chargesheet filed against 8 Myanmar nationals on September 21, 2020 whereby the court observed that there is no material on record to prove that applicants had indulged in any act which was likely to spread infection of Covid -19 and hence, no evidence to substantiate the fulfillment of ingredients of Sections 269 and 270 of IPC.

Further, on August 21, 2020, the Aurangabad Bench of Bombay High Court quashed FIRs against 29 foreign nationals and 6 Indians. The court had rightly pointed out that though restrictions are put on the foreigners who come to India on tourist visas to prevent them from engaging in Tablighi activity, there is no restriction on them to visit religious places to attend the normal religious activities like attending religious discourse. The court also highlighted that many Muslims from all over the word come to India as they are attracted to the reform movement of Tabligh Jamaat and that there is nothing on the record to show that this activity (Jamaat) is prohibited permanently by the Government. The court also observed that “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.”

These are some important observations made by courts when dealing with cases related to the Tablighi Jamaat. A congregation that was vilified on a mass scale and was wrongly pitted in the media as an event responsible for the spread of Covid-19 in the country, ought to be redeemed and washed off the false allegations made against its members, which are clearly not being found valid in the courts of law. The police have, irrespective of in which city or state the cases were registered, not been able to produce any material to show a criminal offence. Some courts even pointed out that cases were registered without application of mind and in a rather mechanical fashion.

Sixteen months after 11 state governments also filed 205 FIRs against 2,765 foreign nationals for allegedly violating visa terms and intentionally disregarding Covid-19 guidelines, not one member of the Tablighi Jamaat, a back-to-roots Islamic movement, has been convicted by any court.

Related:

Will a vile electronic media pay for vilification of the Tablighi Jamaat?
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The Supreme Court clarified that the condition imposed on foreign nationals by the Karnataka High Court to not enter the country for the next 10 years will not be considered while deciding any future applications for visa for travel to India.

A bench comprising Justices S Abdul Nazeer and Sanjiv Khanna held, “We clarify that in case the appellant and 8 other similarly situated persons apply for visa to visit India, the application(s) would be considered on merits without being influenced by the directions given in paragraph (i) of the impugned judgment dated 13.10.2020 and the affidavit/undertaking filed by the appellant and 8 others.”

The petitioner is a Kyrgyzstan national and was arrested for violating visa conditions and hence was booked for violating the Foreigners Act, 1946. The petitioner and other similarly placed appellants had moved the Karnataka High Court for quashing of the FIR against them. A single judge bench of the high court vide an order dated October 13, 2020, quashed criminal proceedings against them and directed the state to make necessary arrangement or issuance of exit permits to them. While the court quashed proceedings against them, the court did so, with a condition that they would not return to India for another 10 years. The court required them to even submit an undertaking to that effect, apart from paying a fine.

The apex court left open the question whether the decision in Crl.P. No. 6578/2019 of Karnataka High Court would apply to foreigners who enter India with valid passport and valid visa. This decision of the high court was pertaining to how to deal with mainly illegal migrants who commit offence in India.

The Supreme Court order may be read here.

Related:

Tablighi Jamaat: K’taka HC conditionally quashes criminal cases against 9 foreigners
Mumbai court acquits 20 Tablighi Jamaat members
Tablighi Jamaat case: Bandra Court discharges 12 foreign nationals 

The post Tablighi Case: HC condition restricting entry to India for 10 years, not to be considered in future says SC appeared first on SabrangIndia.

A Delhi Court refused to entertain the plea of Delhi government against discharge of 44 foreign nationals who were held for being part of Tablighi Jamaat.

An FIR was filed against the foreign nationals under the Foreigners Act, Epidemic Diseases Act as well as Disaster Management Act and Indian Penal Code and after considering the material on record, the Chief Metropolitan Magistrate, South East District discharged the accused from all offences on August 24. The Magistrate’s decision was based on the fact that the chargesheet and other documents did not show the presence of the respondent, Iunus Gurba, a citizen of Kyrgyzstan or his participation in the Markaz during the relevant period. The court also observed no document suggested that respondent was one of the participants who was involved in Tablighi work.

The Additional Sessions Judge, Sandeep Yadav, while perusing the case observed that the name of the respondent was also not found in the register of guests seized from Markaz premises, which is a vital document in the case. The court also observed that the respondent’s passport was not sized while he was inside Markaz premises and thus held that evidence collected during the investigation is wholly insufficient to frame the charge against the respondent.

The Sessions court thus upheld the Magistrate court’s order discharging the respondent and dismissed the revision petition for being devoid of merits.

LiveLaw reported that there were 44 such revision petitions that were dismissed by the sessions court.

The order may be read here.

Related:

Tablighi Jamaat: K’taka HC conditionally quashes criminal cases against 9 foreigners
Mumbai court acquits 20 Tablighi Jamaat members
Tablighi Jamaat case: Bandra Court discharges 12 foreign nationals 

The post Tablighi Jamaat: Delhi Court upholds discharge of 44 foreign nationals appeared first on SabrangIndia.

On Tuesday, as many as 76 inmates of a detention centre in New Delhi went on hunger strike protesting the substandard conditions in which they are forced to live. Muslim Mirror reported that these foreign nationals hail from Pakistan, Afghanistan, Myanmar, Spain and many different African nations.

The inmates complained about the poor sanitation, inedible food, and lack of proper drinking water that forced them to purchase water from outside. They also claimed that they were not provided basic items like toothbrushes, toothpaste, soaps etc. Some elderly inmates also complained about being denied hot water for bathing and blankets to fend against the winter.

A team from the People’s Union of Civil Liberties (PUCL) comprising N.D. Pancholi, Sheoraj Singh and Arun Maji, visited the facility located in Narela. Subsequently they shared their findings in a statement: “There is no provision for drinking water and inmates are forced to buy the same from outside. There is no cleanliness in spite of the much propagated ‘Swachhata Abhiyan’ (Cleanliness Drive) of the government. The lavatories and bath rooms continue to remain dirty and repulsive to use. Some inmates of old age require hot water for bathing and blankets but there is no arrangement for the same. There are some other complaints also. In spite of repeated representation there is no redressal.”

Detention centres are facilities where foreign nationals found to have illegally entered India or having committed crimes are lodged pending deportation. Pancholi, a Supreme Court advocate however told Muslim Mirror that many of the inmates who were serving sentences had completed their five or seven-year jail terms. He further said that a few inmates are his clients but they are yet to be released by the government so that they can fly back home. 

It is noteworthy that the conversation around the concept of detention centers picked up momentum in wake of the proposed National Register of Indian Citizens (NRIC) about which there is still a great deal of ambiguity despite the government’s attempts at allaying fears. New detention centres are coming up in different states including Uttar Pradesh, Karnataka, Goa, West Bengal and even Assam, where there are already six-makeshift detention camps that operate out of district jails. If the condition at the Delhi detention centre is anything to go by, one can assume that things wouldn’t be very different in any of the upcoming facilities.

What is widely ignored though is the entire question of citizenship and the need to flee hostile regimes that often leads people to sneak into other countries illegally. The other more diabolical aspect of the citizenship conundrum is the heightened pitch by the regime to link it to religion, thereby causing much anxiety among people who don’t belong to religions that are welcome. In India when it comes to the Citizenship Amendment Act (CAA) the exclusion of Muslims is glaring and undeniable. No amount of gaslighting or obfuscation of the truth will justify the communally divisive and exclusionary aspect of the Act.

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MHA claims it has no data on Assam Detention Camp inmates!
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The post 76 foreign nationals on hunger strike at Delhi detention camp! appeared first on SabrangIndia.

 The report is based on responses received to Right to Information (RTI) requests CHRI sent to all state prison departments between 12 and 18 January, 2018. We received 26 concrete responses; some states and union territories did not respond even after follow up requests, while others responded partially. The remaining rejected the information request on grounds of national security and other procedural reasons.
The entry, stay, and removal of foreigners in India is governed by the Foreigners Act 1946, the Passport (Entry into India) Act 1920, the Foreigners Order 1948, the Foreigner (Tribunals) Order 196414, the Citizenship Act 1955, the Citizenship (Registration of Citizen & Issue of National Identity Cards) Rules, 2003, the Citizenship Rules, 2009, Foreigner’s Tribunal and Illegal Migrants (Determination Tribunals) 1979 and the Repatriation of Prisoners Act 2003.

As per the data, there are 3908 foreign nationals confined in prisons across India. Of these 1647 are undertrials, 1377 are convicts while an astonishing 871 are reported to be awaiting repatriation. These refer to those foreign nationals who have completed their terms of sentence, yet remain in prison pending the repatriation process.

Another glaring fact is that 522 of these prisoners are categorised as ‘persons whose nationality is not provided’, essentially meaning that they do not belong to any country. The remaining others belong to 58 countries. The figures on consular access were even more disturbing, with only 5.7% of the total population having received consular access i.e. 222 out of the 3908. Among these only 83 of the 1657 undertrials had ever received consular access, which amounts to a mere 5%.

Among these 1657 under trial prisoners, 38.5% (638) were charged under Foreigners act/ Foreigners Registration Act or Passport Act alone, whereas those charged under other penal laws such as Indian Penal Code, The Narcotic Drugs and Psychotropic Substances Act, 1985 etc. were 444, and those charged with both offences were 361.

Very few state police manuals contain provisions that obligate the police to inform the concerned embassy of the arrest of their national, so as to ensure prompt consular access. The Model Police Manual prepared by the Bureau of Police Research and Development, Ministry of Home Affairs, contains an entire chapter on foreigners. Rule 565 provides that:

“When foreign nationals are arrested on major criminal or civil charges, it is possible that the Foreign Diplomatic/Consular Missions in India may wish to assist the nationals of their countries in regard to their defence before a court of law and/or take such other action, as they may deem appropriate in accordance with diplomatic practice. Therefore, as soon as a foreign national (including Pakistan national) is arrested in a major crime, the fact, with a brief description of the offence should be brought to the notice of the Ministry of External Affairs through the State Government by the DGP/CP concerned. Government of India, who decides about the necessary action, should bring these cases to the notice of the Foreign Diplomatic/Consular missions concerned. The report of the arrest of a foreign national in a major crime, together with a brief description of the offence, should be communicated to the Director General of Police, Addl. DGP, CID and Addl. DGP Intelligence and Security”.

In the case of foreigners, interrogators should be conversant with the political complexions, customs and traditions of the country of the person interrogated. He must have a good grasp of the regulations applicable to foreigners and be aware generally of the activities of foreigners in India. However, we found during our interactions with embassy representatives that in most cases, they do not receive information about arrests of their nationals from the police.

Thus, they are forced to rely on newspaper reports to track cases and contact the concerned prisons for consular access. This claim was further corroborated by our interactions with Foreign Nations Prisoners (FNPs). Further, prisoners are not allowed to inform their family about their arrest. Denying a prisoner access to a consular officer or family is in violation of the Model Police Manual rules, and can lead to the alienation of the prisoner from their family. For example, a Palestinian prisoner in a West Bengal prison had not contacted his family in 26 years or received consular access.

An important point to be noted here is that police officers are prohibited from entering into direct correspondence with “their counterparts or with private companies, investors or manufacturers in such foreign countries. All correspondence intended for such persons in foreign countries must be routed through the Director General of Police, who will address the person through the state government”. This entails that even in cases where police officers might be prompt in informing the Director General of Police, there can be delays or lapses in communicating the information on arrest.

Like all prisoners, foreign nationals must also be detained in humane conditions. However, issues such as language barriers, specific dietary requirements, cultural differences, and the lack of recreational or rehabilitative activities can often make it difficult for foreign prisoners to adapt to prison life.

With absence of availability of prison rules in different languages, prisoners often do not understand their rights or obligations. Additionally, they may not be able to communicate with other prisoners or prison staff. Even simple things like making a request for medical assistance can go unheard if one cannot communicate in the local language. For example, a Bolivian lady was unable to explain her medical condition to the prison officials as she only spoke Spanish. The prison authorities ultimately resorted to using web-based translation services to assist her.

A prisoner in Alwar Detention Centre (situated in the Alwar District Jail), who had been moved to detention after completing his sentence in 2009, could hardly communicate, and was always found staring at the boundary wall. In the Rajasthan heat, he eventually suffered sunburns, but according to other inmates, continued sitting in the sun all day.

Lack of knowledge of the legal framework, legal procedures and lack of resources to hire services of competent lawyers further impacts the stay of FNPs in prison. Often, they are misled by lawyers and forced to plead guilty without understanding the consequences. Their lack of knowledge is further exploited when there is no consular access or contact with family members. Further, securing bail is difficult and parole rules generally do not apply to them, this can inculcate anger within and leads to a tendency to resort to violence.

The religious, dietary, spiritual or other specific needs of a foreign prisoner are very rarely addressed by the prison rules. “They are likely to have particular needs such as facilities for worship, special diets and hygiene requirements, due to their religion, which may be different to those of the majority prison population.” Diet patterns vary across states, thus restrictive diets, such as those which prohibit intake of meat can lead to discontentment in prisoners. Only few prisons provide special diets to foreigners, which also may not suffice for all foreign nationals, given the diversity in dietary intake globally.

These barriers can also lead to discrimination or disrespectful attitudes of prison staff or prisoners due to their nationality. This can also lead to actual physical or verbal abuse. For example in Haryana, foreign nationals have complained about food, and even alleged racism and discrimination by other prisoners. The lack of sensitivity among the prison population and prison officials is one of the biggest contributing factor to the challenges faced by FNPs.

Repatriation upon completion of sentence

Once a prisoner completes their sentence, they must be released from prison. In the case of foreign nationals, this entails traveling back to their home country. This process, however, is tedious, with a number of sub-processes: nationality verification, issuance of emergency travel certificate, securing funds for travel, the assignment of escorts for transfer, approval from airlines (in case of travel by air) or approval by border security forces (in case of travel by road), among others.

Repatriation requires the involvement of both central and state governments, specifically, two divisions of Ministry of External Affairs – the consular, passport and visa division and the respective territorial division; the foreigners division of the Ministry of Home Affairs and State Home Department; the Home Secretary or Jail Secretary; Bureau of Immigration and Foreign Registration Regional Officer of the state; Criminal Investigation Department, Intelligence Bureau; Superintendent of Police of the district where the prisoner was arrested; and Superintendent of the prison where the prisoner is lodged.

A corresponding procedure, similar to one mentioned above, also exists in the country of the prisoner and needs to be followed to complete the nationality verification process. Repatriation can also be of two kinds, depending on whether the individual possesses a valid travel document such as passport, or not (if they never possessed valid travel documents or their documents had expired). The process is simpler in the former case; unless the person has insufficient funds for travel, there are usually no delays in repatriation. In the latter case, however, there are several barriers that can delay the process.

The first step towards initiating the repatriation process is to verify the nationality of the person. For this, the prison departments write to the embassy of the country where the person is purported to belong. These requests are then routed through the prison headquarters, state home departments, ministry of external affairs before it reaches the embassy. This communication is required to contain all relevant details of the prisoner, including copies of any identification documents he might possess. In absence of any identification documents, embassies are often reluctant to take any steps. However, in many cases, the identification documents are not available with the prisoner.

Similarly, in the case of a Palestinian person, it took almost a year to get a copy of the passport from the police station that was seized 23 years ago. Such issues result in inordinate delays in nationality verification with some embassies refusing to take any steps without a copy of the passport. Processes have to be initiated to procure the documents from the court or police malkhana.

However, this is not the only hindrance; in the absence of travel documents or identification records, it takes a long time for nationality to get verified by the consulate in question. They must also send the information to the respective government, which then initiates verification processes from their end. This too takes time. For example, in the case of an alleged Sierra Leone national, it took almost a year for the embassy (which was located in China) to confirm that the person was not its national.

Section 3 of the Passports Act, 1967, clearly specifies that “no person shall depart from, or attempt to depart from India unless he holds in this behalf a valid passport or travel document.” Therefore, once the embassy verifies the nationality of the foreign prisoner, it must issue the person with an Emergency Travel Certificate (ETC) or a Travel Permit, which has the same value as that of a passport. This document permits the person to travel back to his country.

However, this process can take time. An ETC is generally valid for a month, while a Travel Permit stays valid for 3 months, within which the outbound travel is to be made. Sometimes, there can be delays at the prison’s end or the foreigner regional registration office, or there can be a lack of funds due to which arrangements are not made for the travel. In such cases, the travel document has to be issued again, pushing back the process by a few more months. For example, in the case of some Nigerian persons, despite being issued ETCs, they could not be repatriated because they had insufficient funds to pay for their travel.

Section 3(2)(cc) of the Foreigners Act 1946 requires foreigners to “meet from any resources at his disposal the cost of his removal from India”. Further, Para 14 of the Foreigners Order 1948 allows the Central Government to “apply any money or property of the foreigner in payment of the whole or any part of the expenses of or incidental to the voyage from India…until departure…” The law clearly places the responsibility of securing funds for travel on the prisoner, but in reality, this is difficult.

After long periods of incarceration, FNPs are left with little or no money. Sometimes, their travel may be sponsored by family members, but in a lot of cases, families too are incapable of offering funds. In some cases, embassies intervene to assist the process, but this is not a uniform practice. Countries with on-going humanitarian crises allocate budgets for voluntary repatriation of their nationals from other countries, which they often use to fund the deportation of their nationals as well (this is a practice in Afghanistan and Palestine).

Others contact the family of the prisoners or seek such funds from the prisoner. Sometimes, prison departments also concede to requests for sponsoring travel, but again, this is not a uniform practice. For the most part, expecting funds from FNPs is unrealistic since they are not allowed to work in detention69. For example, the entire travel of a Palestinian prisoner was sponsored by the embassy, but in the case of Nigerians or South Africans, the embassies offer no financial support. Thus, some prisoners spend months or years waiting for charity money from others to enable them to return back.

Once the prison department receives the ETC and funds for travel are secured, there remain a number of processes to be completed before the repatriation. This includes fixing the date of repatriation in consultation with the Foreigner Regional Registration Office (FRRO), issuance of deportation or removal order by FRRO, purchasing ticket for travel (in case of travel by air), requisition of escorts for transfer to the airport or integrated check post (ICP), securing approval from airlines or border security forces as the case may be, handing over belongings including valuable items and any wages earned to the person.

Once the process is completed, a report is sent from the prison to the prison headquarters and state home department. With no guidelines making the process timebound, there can be delays at every step of this process. In certain cases, where the prisoners’ families provide tickets, they might do it without consulting the FRRO. It could be that during those days, escorts are not available or that the time for processing documents and receiving requisite approvals in insufficient.

Thus, it is necessary to obtain consent from both FRRO and prison authorities before finalising the transfer date. For example, a Bangladeshi prisoner could not be sent to the ICP because of lack of escorts. The same goes for the requirement for approval by airlines. To seek requisite permission, the following documents should be made available: a copy of the deportation order, a risk-assessment report by the state and/or any other pertinent information that would help the aircraft operator assess the risk to the security of the flights, and the names and nationalities of escorts.

After the FRRO representative or other competent authority on its behalf provides the copy of the ETC, deportation order, medical certificate and airline reservation, the airlines need atleast 10 days to provide clearance. However, there are often delays in receiving clearance, wherein clearance comes only 24-36 hours prior to the flight, leaving the FRRO limited time to purchase tickets, coordinate with the jail and procure escorts.

There have also been instances where airlines refuse to allow boarding at the last moment leading to confusion, delay and loss of flight ticket money, adding to the woes of the prisoners. For example, a Palestinian prisoner could not board a flight as the airlines did not give clearance. He ended up being sent back to prison, pending his repatriation, which occurred after a month by another airline.

Courtesy: Counterview.org
 

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