THE NEED FOR A MORATORIUM ON IMMIGRATION DETENTION IN LIGHT OF COVID-19
Updated: Aug 24
With the outbreak and rapid spread of COVID-19, it has been recognized that persons detained in prisons and detention facilities are vulnerable to the disease. However, governments have been slow to take measures to prevent the spread of the disease in overcrowded detention centers. The Karnataka High Court in its 2020 judgment in Babul Khan and Ors vs. State of Karnataka observed that illegal immigrants and foreigners should be detained in detention centers even after they have been granted bail or acquitted of an offence until they are deported. The author in this article argues that this judgment is flawed on numerous grounds:
Firstly, it overlooks the disastrous effects of detention in already overcrowded detention centers in light of the pandemic.
Secondly, prolonged detention with bleak aspects of deportation in the near future constitutes arbitrary detention in stark violation of the right to life and liberty of such persons, as enshrined under Article 21 of the Indian Constitution. With the outbreak of COVID-19 it is pertinent that States adopt non-custodial methods as opposed to the detention of immigrants.
Thirdly, the very purpose of granting bail to the accused is defeated if on furnishing bail, he is confined in a detention centre.
Revisiting the Law
In order to understand who falls within the definition of a foreigner and the legal regime governing foreigners in India there are two important statutes that must be looked at. Section 2(1)(b) of the Indian Citizenship Act,1955 defines an illegal migrant as anyone who has entered the country in violation of immigration laws. Any person who is not a citizen of India is a foreigner within the ambit of Section 2 (a) of the Foreigners Act, 1946. The Foreigners Act empowers the government to pass orders to detain and arrest such persons.
However, there exists a lacuna in terms of the procedure that is to be followed by the police, prison authorities and Courts when such persons are facing trial for violation of the Foreigners Act or for any other offences. In order to address this lacuna, the Court in casu laid down extensive guidelines that are to be followed by such authorities. While this act of the Court may in itself be questioned as a usurpation of the powers of the legislature, there are more serious human rights concerns that the judgment raises, which this article explores.
Setting a Precedent
The petitioners, in this case, were arrested on the ground that they were illegal migrants as they had migrated to India in the absence of a valid passport or visa and continued to reside in the country. They were alleged to have obtained Aadhar cards through illegal means and were found to be in possession of bullets which is in contravention of the Arms Act. Therefore, the petitioners approached the High Court seeking the grant of bail through the present application. Further, both counsels submitted that it is pertinent for the Court to lay down guidelines on the procedure that is to be followed by the police, prison authorities and Courts in such cases.
The Court in this context observed that bail may be granted to a foreigner in the same manner as that of any other accused, and all provisions of the Criminal Procedure Code, 1973 would apply. On granting bail, such persons must be detained in detention centers. Such detention centers established by the State must be in compliance with the Model Detention Centre Manual, 2019 which must be revised and updated. Lastly, the Court remarked that if the foreigner detained is a woman with a child below the age of six years the Court may order the child not to be separated from the mother and the authorities must follow the guidelines laid down in R.D. Upadhyay v. State of A.P.
Detention as a Rule: A Meticulous Study
While these aspects of the judgment are certainly commendable, the Court sets a dangerous precedent by mandating the detention of illegal migrants until deportation. Courts around the world have been vigilant of the fact that detention centers are hotspots for the spread of COVID-19 and the release of detainees is necessary to reduce congestion. The Supreme Court of India is no exception to this. In its 2020 order the Court observed that foreigners who have been detained for more than two years are entitled to be conditionally released in light of the rapid spread of COVID-19 and the impossibility of social distancing in detention centers.
Prolonged detention of foreigners when there is de facto impossibility of deportation is a violation of Article 21 of the Constitution which entails the right to life and liberty. Article 21 extends to all persons including foreigners. With the closure of national borders by States it is unlikely that deportation will take place, thus making detention an unreasonable and arbitrary restriction. In these circumstances, it is of vital importance that States adopt non-custodial methods as an alternative to detention.
One method that can be adopted is that of designated residences combined with a requirement of regular reporting to State authorities. While it does involve some administrative costs, it has proved to be less expensive than detention. Additionally, it is a less intrusive measure than detention as it would at best amount to a restriction on the liberty of movement of such persons and not a complete deprivation of their liberty.
While the High Court ultimately granted bail to the petitioners, it was with a caveat that they must execute a personal bond with a surety for a sum of Rs.50,000 each. Keeping in mind the economic status of the petitioners, it is highly unlikely that they would be able to execute a bond along with a surety of such a large sum. While determining the amount of the bond to be executed, the Court must keep in mind Section 440(1) of CrPC which mandates that the amount must not be excessive. This principle resonates in the decision of the Madras High Court in Sagayam vs State (para 15). The Court emphasized that the imposition of onerous conditions that cannot be complied with by the accused while granting bail invariably amounts to a denial of bail.
In this context, one cannot help but recollect the words of Justice Krishna Iyer in Moti Ram v. State of MP wherein he eloquently stated: “the poor are priced out of their liberty in the justice market”. The Supreme Court has reiterated that Courts dealing with bail applications must adopt a humane approach, keeping in mind the dignity of an accused. The Single Judge Bench of the High Court has overlooked and disregarded the right to liberty and dignity of illegal migrants enshrined under Article 21.
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This article has been written by Urshila Pandit who is in the penultimate year of law in School of Law, Christ University, Bangalore. She is an avid reader and is passionate about human rights law as well as Intellectual Property law.