Above: While foreign students are warmly welcomed, their overstay becomes a problem/Photo: UNI
Due to the involvement of foreign students in narcotics trading and other crimes, the Karnataka High Court has said that overstaying visitors pose a threat to national security
By Stephen David in Bengaluru
Incredible India—the tagline that Indian tourism uses to draw millions of foreigners—seems to have a flip side too. While most of them visit and go back, hundreds have found ingenious ways to illegally stay back, exploiting loopholes in the system.
On April 5, the Karnataka High Court, which had said this lapse is a serious security risk, will hear detailed submissions from government agencies on the high-ticket issue. Karnataka is home to over 20,000 foreigners. Many of them are students who are drawn to its educational institutions. However, it also has the dubious distinction of having the highest number of illegal overstays; over 1,000 foreign nationals are overstaying, violating visa and other local laws. They indulge in petty offences, get bail, and stay back in India till the court disposes of the matter. It is a double-edged sword. The courts have sought greater coordination among agencies in order to address this national problem.
On March 14, while hearing a petition filed by a Congolese national, HB Sidney, Justice Aravind Kumar of the Karnataka High Court directed the state government to submit details of overstaying students and cases registered against them by April 5 when the matter will be heard again.
Justice Kumar orally observed that instances of involvement of students from foreign countries in narcotics trading and other crimes may pose a serious threat to national security in the state. Sidney and three others were arrested by Bengaluru police in February 2017 for visa violations.
Earlier this year, a division bench of Justices Nutan D Sardessai and MS Sonak of the High Court of Bombay at Goa observed: “Since, the State is itself conscious that some foreign nationals, at times, deliberately involve themselves in petty offences, only in order to facilitate their overstay in India or otherwise defeat the provisions of the Foreigners Act, 1946, rules and orders made thereunder, we can only say that the State/ Prosecution, in such cases, must either seek expedition of such matters by filing appropriate application before the Magistrate or Courts where such matters are pending or even consider whether withdrawal from the prosecution is a better option. In either case, however, all arrangements must be made to forthwith deport such foreign nationals who are found to have no proper travel documents or whose visa term had already expired, no sooner such matters are disposed of by the Magistrate or Courts.”
Although the directive looks easy to implement, it has been hamstrung by inefficiency in interdepartmental coordination and inadequate manpower. A retired deputy commissioner of police told India legal: “It just boils down to manpower and proper coordination between local and central agencies. Right now, these people exploit loopholes in the system and exhaust the limited resources that the police department has. Fighting it out in courts is an exhaustive and laborious process.”
The Goa bench also cautioned that a different, much harder approach be deployed when foreign nationals are involved in serious offences involving drugs (NDPS Act), cyber fraud, murder, rape, etc. After directing a slew of agencies, both in the state and at the centre, the Goa bench ordered taking “emergent steps as may be permissible in law, in order to deport the foreign nationals…where there are no legal impediments for taking such steps”. It also sought an affidavit of compliance on or before June 3, 2019, indicating the status of the action taken.
One major reason why most states fail to keep a tight vigil over foreigners who overstay is because there are no detention centres. On January 31, 2019, the home ministry sent out a circular to additional chief secretaries of all the states and UTs to make operational detention centres for overstaying foreign nationals. The circular also had guidelines to set up a “Model Detention Centre/Holding Centre/Camp Manual”. In states like Karnataka, talk of a detention centre has been on from 2014. It came up two years later too when a single judge of the Karnataka High Court, Justice AV Chandrashekhara, dismissed a bail plea from a foreign student. In his February 18, 2016 judgment (CC Chukwu vs State of Karnataka), he noted that there were 1,165 foreigners overstaying in Karnataka and as many as 330 criminal cases registered against foreign nationals for various crimes, including drug peddling.
The Bengaluru police had slapped cases under Sections 376 and 506, IPC and Section 14, Foreigners Act against Chukwu whose bail plea was registered by the High Court. Chukwu had come to the city on a “medical attendant” visa— expiring in April 2013—but the police noticed he had overstayed when they nabbed him for a rape charge in October 2015.
So how did the “medical attendant” stay undetected beyond the expiry date? Why didn’t the police or the local foreign registration office coordinate earlier to spot the violations?
Justice Chandrashekhara observed: “It appears that there is no proper and effective co-ordination between the Foreigner Regional Registration Office (FRRO) and the police. Many foreign nationals are overstaying here and the period of overstay is not forthcoming. In the present case, the petitioner herein has been overstaying in India for over 2 years 9 months. It is in this regard a proper and effective co-ordination between FRRO and local police is an absolute requirement. This court expects that there would be periodical meeting of the senior representatives of the Police Department and the concerned ministry of the Central Government in order to exchange the data and to take appropriate legal action without undue delay.”
Justice Chandrashekhara observed that it was only during the course of investigation that the respondent, the police, came to know that the petitioner was a foreign national who had overstayed and it was in this regard that Section 14 of the Foreigners Act was invoked. Punishment under this Act is five years’ imprisonment plus a fine. But it was a classic case of locking the stables after the horses had bolted.
Now that the courts are seized of the matter, work on setting up a separate foreigners’ detention centre in the city is moving at a fast pace. In 2016 itself, the additional advocate general had informed the Court about the large number of foreign nationals overstaying in Bengaluru and no establishment of a detention centre in the city.
To buttress the fact that India treats its guests like God, Additional Solicitor General Krishna Dixit also told the single judge at that time that “the police as well as the Government of India have been soft towards foreign nationals staying here in spite of their long and unjustified overstay in Bengaluru and other parts of the state and that the same must not be misused by them (foreign nationals) in any manner either by violating the provisions of the Passports Act or Foreigners Act or other penal statutes of the state or country”.
Justice Chandrashekhara was also alerted about a few cases in which the trial courts had taken too lenient a view and imposed flea-bite sentences on accused persons (accused of violating provisions of the Foreigners Act, 1946, and Foreigners Order, 1948). So even in cases of long overstay of foreign nationals, the accused was slapped with a fine of a mere Rs 10,000 and a day’s simple imprisonment. The Court was requested to lay down clear guidelines regarding the approach to be adopted by the trial court whenever foreign nationals plead guilty to the charges levelled.
The Foreigners Order, 1948, is a statutory order issued by the executive in the exercise of powers conferred under Section 3 of the Foreigners Act, 1946. Order 7 of the Foreigners Order, 1948, speaks about restriction of sojourn in India. The purpose for which visa is issued once will not be converted at any cost. So a foreigner who is in India on a “medical attendant” visa cannot be permitted to do business. And nowhere in the petition filed under Section 439, CrPC is anything mentioned about the profession that the petitioner (Chukwu) was pursuing in Bengaluru and the reason for his long overstay.
The Registration of Foreigners Act, 1939, lays the onus of proof of being or not being a foreigner on that person. Simply put, every foreigner in India must always have a proper document to support his stay in India.
In the case of Janarajan vs State of Tamil Nadu, 2005, the Madras High Court reiterated that if bail is granted to a person who has violated provisions of the Foreigners Act, he cannot stay in India even for a day without a valid passport and visa.
Hopefully, after the Karnataka High Court hears the present matter, all parties concerned will move fast on ensuring that the guests do not illegally overstay their hospitality.