In a notable judgment, the Madras High Court directed the closure of criminal proceedings against 31 foreign nationals who were facing proceedings under the Foreigners Act for participating in the Tablighi Jamaat meeting in Delhi in March in violation of visa conditions.
The Court also declared that they have a right to their native country at the earliest, and that their continued incarceration amid the pandemic situation was a violation of right to life under Article 21 of the Constitution.
"Since the petitioners have already suffered enough for their transgression of law and there is prevalence of medical emergency, the petitioners are having the right to return to their native countries at the earliest opportunity", observed a bench of Justice G R Swaminathan.
The Court observed that at a time of armed conflict or medical emergency, right to leave the country can be invoked.
It said :
"The petitioners fortunately have not tested positive so far. The position may be different tomorrow. The lives of the petitioners may be in danger. Times may be uncertain but rights have to be certain. The 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 charecterized as unreasonable, unjust and unfair. I, therefore, hold that the continuance of the criminal prosecution against the petitioners herein would certainly amount to an infraction of their fundamental right under Article 21 of the Constitution of India and directing their closure on appropriate terms alone would secure the ends of justice".
The Court passed the direction while considering the bail applications of 11 Bangladeshi nationals and 20 Indonesian nationals.
Need to take a proportional approach
The Court noted that their participation in religious activities in violation of the tourist visa certainly attracted the offences under the Foreigners Act. It also said that the "reckless and irresponsible" conduct of Tablighi Jamaat members in organizing the meeting during the pandemic came under severe criticism for right reasons.
At the same time, the Court said that there is a need for taking an approach based on proportionality.
The authorities cannot deny their request to return to native country "arbitrarily", the court said.
"Since the petitioners have already been in prison for seventy days, there is a requirement to undertake a proportionality review. I am of the view that the prison term already undergone by them should be considered as sufficient punishment. When the petitioners have already paid the price for their misadventure, to insist that they should continue to remain in India in prison-like conditions till the proceedings are concluded grossly offends the principle of proportionality and fairness".
In this regard, the Court referred to Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR) - of which India is a signatory - which says "No one shall be arbitrarily deprived of the right to enter his own country."
"Failure to respond to the petitioners' existential horror would amount to judicial abdication. If I come to the conclusion that the petitioners have already suffered enough and that they are being put to "surplus or unnecessary suffering", I am obliged to intervene", the Court observed.
Calling for "empathy and understanding", the Court said :
"Merely because the petitioners have contravened the visa conditions, they cannot be seen as criminals. The situation calls for empathy and understanding. The petitioners are yearning "to breath the native air in their own ground".
The Court noted that the petitioners had been arrested in the first week of April, 2020 and there is absolutely no progress in the investigation. The continued incarceration of the petitioners is not going to serve any purpose. Since the petitioners are foreigners, it would obviously be difficult for them to arrange local sureties. Therefore, the Court directed that they shall be released on their own bond.
The Court also noted that the petitioners, on being granted bail, cannot be kept in detention camps, and should be required "to reside at a place set apart for the residence under supervision" as per Section 4(2) of the Foreigners Act.
Therefore, the Court held that the petitioners cannot be kept at the transit yard of the Central Prison, Puzhal, as proposed by the Government. In this regard, the Court noted the submission made by the petitioners' counsel that the management of Jamia Qasmiyah Arabi College, Washermenpet, Chennai is willing to accommodate the petitioners.
Therefore, the Court directed the Tamil Nadu government to consider this proposal.
The judgment also quoted Professor Upendra Baxi to state that the individual miseries of the petitioners must be seen, instead of labelling them collectively as "Tablighis" and punishing them.
"I must record at this juncture that 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..." helped me to see the petitioners before me as thirty one individuals instead of collectively thingifying them as "Tablighis". Categorization can have serious pitfalls. Justicing has to be an individualized exercise. 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 here propelled by a sense of religious idealism. But their mission went awry. They are now eager to go back to their families. They are willing to file individual affidavits admitting that they had violated the visa conditions. They undertake that they will not enter India for the next ten years. They will make their own arrangements for return by coordinating with their respective Embassies and Consulates", the Court said.
The following directions were ultimately passed :
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