From Foreigners Tribunal to Tablighi Jamaat: Elusive Bail in India’s Colonial Crimmigration Regime
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Guest post by Amlan Mishra, law student at National Law University, Jodhpur and a death penalty research fellow at Project 39 A, NLU Delhi.
In the Indian state of Assam, those declared as ‘foreigners’ by the Foreigners Tribunal are subjected to prolonged confinement and their rights are violated. This regime of confinement is slowly widening. During the initial stages of the pandemic, the Indian state and media made a scapegoat of a transnational Sunni Islamic missionary movement called Tablighi Jamaat (whose delegates were visiting New Delhi unaware of the sudden declaration of a nationwide lockdown). The Jamaat members were blamed for the surge in Covid-19 positive cases and posing a threat to the public health. They were subsequently apprehended for this, along with immigration offences i.e. violating visa conditions. What followed was a spectre of continued detention of the members of the Jaamat – bringing India’s detention and bail regime into sharp focus. The aim of this post is to explore as to how and why bail has become elusive and detention a norm, using the conceptual framework of crimmigration (Stumpf).
Background on India’s immigration regime: a recipe for crimmigration
The Bureau of Immigration is the civil administrative body under the Ministry of Home Affairs which oversees immigration in India. The legislative provisions for detention are embedded within the Foreigners Act, 1946: a colonial statute which deals with, interalia, the power to detain, remove or release people on bail. The Foreign Relations and Registration Office (FRRO) is tasked with enforcement and executing the orders under the Act. Notably, India does not have a consolidated immigration legislation and relies on several Acts, mostly created during the colonial era. More importantly, there is no one specific agency like the Immigration and Customs Enforcement (ICE) in the US, which is tasked with immigration enforcement. These powers are delegated to the State governments and State police. The District Superintendent of Police is appointed as the Foreigners Registration Officer (FRO) and the civil authority incharge of detaining immigrants under the Act. This creates a site where both civil immigration and criminal law enforcement is tasked with the same agency.
Further the Foreigners Act, 1946 criminalises mere illegal entry, making it easy for those entering India or staying on in violation of the Act eligible for criminal prosecution, on top of the detention or deportation proceedings under the civil immigration system. Statistics show that of all foreigners in Indian jails awaiting trial, the biggest chunk are being prosecuted only for illegal entry, forging travel documents or other civil immigration violations (NCRB 2015-2019). These factors set the stage for the web of interplay between these two systems, which as we shall see keeps the foreigners in detention.
I will first examine the special regime in Assam, with a focus on provisions of bail for those declared as foreigners. Next, I will survey the civil immigration regime in isolation, to understand how it is designed to deny bond hearings. The later part will look into the interplay of the civil immigration regime with criminal justice system, which results in detention for lengthy periods; and the availability of constitutional safeguards against continued detention.
Foreigners Tribunal and bail: Assam
In Assam, the crisis of citizenship has a long and turbulent history as explained in detail elsewhere (Bhatia 2021). This has led to the creation of a regime like no other: tasked with examining the citizenship of locals suspected of being doubtful voters or foreigners. Foreigners Tribunals, set up by executive orders became the sites for this determination.
As per the Foreigners Tribunal Order, 1964 made under the Foreigners Act, the tribunal upon must make a decision about the nationality of the person, and once they are declared to be foreigners may release them on bond. However, in most cases tribunals are known to order arrest and detention of declared foreigners. The Assam government has clarified, as late as September, 2021, that these tribunals should only give their “opinion” on nationality, and cannot order detention. In reality, these tribunals have a high record of immediate detention; therefore, most people choose not to and/or are advised not to appear before these tribunals. Statistics show that over 64, 000 of the 130,000 persons declared foreigners in Assam did not appear for their hearings and were declared foreigners in ex parte proceedings. Interestingly, most of these persons rarely ever hold the citizenship of any other country, and therefore cannot be deported either.
Of those who are declared foreigners and detained in the supposedly civil administrative detention center, now called “transit camps” none of them seem to have received any bond hearings. There is no provision for any routine bond hearing under this detention system (Report on NHRC Mission to Assam’s Detention Centres, 2018). Before 2019, the detainees had to approach the High Court, the highest constitutional court of the State and get the ex-parte orders declaring them ‘foreigner’ overturned, inorder to secure their liberty. It was only in 2019 that the Supreme Court of India— the apex Constitutional Court of India—made provisions for the grant of bail under stringent bond conditions to those detained for more than three years (Supreme Court Legal Services Committee v. Union of India 2019). Thus we see that ad-hoc machinery had to be created to ensure the liberty of these supposed ‘foreigners’.
The civil administrative system: absence of bond hearings
In the United States, the crimmigration system is critiqued for mandatory detention of foreigners/undocumented persons and for not granting bond hearings in certain special cases like when the ‘alien’ is also a person who has committed crime. But there exists a machinery of immigration judges who determine if the detention is lawful in all other non-exceptional cases. In India however, there is no mechanism for routine bail hearings. The designated authority (the Foreigners Registration Officer: usually a Superintendant of Police) has the power to both order residence at a particular place/ detention centre and if it deems fit release them by securing a bond (Section 3 and 4 of Foreigners Act, 1946). There are no rules or clarification on how an application or representation can be filed with the detaining authority for release. Even if a representation were to be somehow filed, the same detaining authority will consider the case, as no machinery of immigration judges has been allocated for the purpose of hearing these applications. Thus, the detainee is at the discretion of the detaining authority for release, even if there is no flight risk and they are capable of paying a bond.
Between Scylla and Charybdis: criminal justice system to immigration detention
In the US, the interplay between criminal justice system and immigration enforcement also arises in the context of automatic deportation of aliens, upon their conviction. Thus lawyers are required to advise clients on the immigration consequences of criminal conviction. But in India, as we shall see both immigration consequences of a brush with the criminal justice system and criminal justice consequences of immigration enforcement arise even at the stage of under-trial bail. The muddying of lines between criminal and immigration enforcement in India, coupled with judge’s deference to the executive, creates an environment where one is effectively trapped between the two systems.
As mentioned above, most times the immigration and criminal enforcement agency is the same in India. Illegal entry and stay is also a penal offence under the Foreigners Act, 1946. This leads to a scenario where ‘aliens’ are apprehended and processed under the criminal justice system and sent to under-trial prison (called judicial custody in India).
Here again, there is no clarity over whether a person accused merely of immigration ‘offences’ should be sent to under-trial prison or immigration detention. Most cities do not have immigration detention centers in India (there are only 10 centers in India, out of which only 4 are outside of Assam), which means ‘aliens’ are routinely housed in under-trial prisons, regardless of the nature of their offences. Even detention centers until recently followed under-trial prison manuals, making these two facilities indistinguishable. A new manual which allows consular access and other facilities seems to have been brought into force only recently, and questions remain over their implementation. Thus, there is little difference in treatment of those accused of immigration offences and those accused of more serious crime.
Furthermore, this system has led to subjects being stuck in a loop between the two systems, which ultimately curtails their liberty. A case in point, judicial bail hearings for under-trial foreigners: where criminal courts have analyzed the under-trial’s immigration status to decide if bail should be given. This has taken two forms. Firstly, courts have shown deference to the executive, by holding a judicial bail order can only secure release from under-trial prison, not from continued civil detention. They have reasoned that continued detention at an immigration detention facility is the prerogative of the executive and can continue even after judicial bail (Bahul Khan v. State of Karnataka 2020). This deference effectively makes ‘judicial bail’ secured from the criminal justice system redundant. Even progressive judgments like that of the Madras High Court in a Tablighi Jamaat case have only to asked the executive to “consider this proposal (for release on bond) bearing in mind that the petitioners cannot continue to be treated as prison inmates (after securing judicial bail).” (Kamenuel Islam v. State 2020) In a notable exception, another High Court—the Allahabad High Court—released the Jamaat foreigners on bail, while asking them to furnish a bond and reside at their place of residence mentioned in their visa (Mohammad Shaifulla v. State, 2020).
Secondly, foreigners, regardless of other factors are perceived at constant flight risk, only because of their illegal status. This plays into the judges’ consideration when granting bail to foreigners. Some courts have accordingly held that granting judicial bail from the criminal justice system would be impermissible as it amounts to “legalising their illegal stay” in India (Christian Chidieere Chukwu v. The State Of Karnataka, Karnataka High Court 2016). Thus, judges of the criminal justice system, become proactive ‘enforcers’ of immigration law.
Further, in a peculiar policing strategy common in the city of Bangalore, foreigners who have been released on judicial bail by criminal courts are subsequently apprehended by the police and sent to civil immigration detention by the FRRO (at the request of the police), effectively nullifying the effect of judicial bail. This is done as a pre-emptive crime control measure. Infact, the Director General of Karnataka Police has admitted on record that civil detention is a strategy to stop immigrants from being released on judicial bail. This use of immigration detention to preemptively stop future criminal activity by foreigners has few parallels in the world.
Review Board of immigration detention: Constitutional Safeguards from continued detention?
One of the exceptions of an otherwise progressive Indian Constitution is a special regime for preventive detention of persons without bail. Even this regime for preventive detention, is subject to checks: an advisory board must review the detention every three months (Article 22 of the Indian Constitution). But some Indian courts have refused to extend even these safeguards to immigration detention, by holding that the latter is supposed to be a detention in a ‘special camp’ with special facilities—thus not a total restriction on freedoms. (Premavathy @ Rajathi vs State Of Tamil Nadu 2003). This distinction between immigration facilities and detention in jails, as we have seen before does not hold true in most of the country.
Other judges have realized, correctly, that the Foreigners Act, 1946 is a colonial statute, and the detention regime set up by it does not meet the safeguards of preventive detention in the Indian Constitution (See Yogeshwari v. State of Tamil Nadu 2003). These progressive opinions have held that foreigners should only be detained under National Security Act, 1980, a post-colonial law which incorporates the safeguard of a detention review board. However, as a matter of practice detaining authorities rarely abide by the safeguards by taking refuge in the colonial law.
Whereas, preventive detention of the accused-citizens to stop them from being released on bail is perceived as unconstitutional in India (Yumman Ongbi Lembi Leima v. State Of Manipur & Ors 2012), this understanding seems not to have extended to foreigners, who as we have seen are preemptively detained. Prolonged detention for mere administrative immigration offences is considered disproportionate around the world, but in India constitutional safeguards against detention are rarely extended to aliens.
The Indian crimmigration regime of punitive detention continues to be a colonial remnant of an era where colonisers forbade immigration to “restrict their ability of the colonised to migrate into privileged geographies of the colonising power”. This resembles Hernandez’s characterization of the crimmigration regime in the US as one based on membership theory: restricting access to citizenship to immigrants of certain racial origins. The citizenship regime in Assam most clearly fits this characterization—based as it is on descent from geographical partitions created by the colonial administration. Even in the rest of India, as we have seen, the courts and police rely on the colonial statute of the Foreigners Act, to exclude minimum safeguards enshrined in India’s radical-post-colonial constitution to ‘foreigners’. In summary, crimmigration finds a natural home in the colonial legacy of India’s immigration regime.
Note: I would like to specially thank Dr. Monish Bhatia, Department of Criminology, Birkbeck for his helpful comments during the review process. Thanks are also due to Mugdha Mohapatra and Vaishnavi Prasad for their support.]
How to cite this blog post (Harvard style)
Mishra, A. (2021). From Foreigners Tribunal to Tablighi Jamaat: Elusive Bail in India’s Colonial Crimmigration Regime. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2022/01/foreigners [date]
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