'How Will You Safeguard Interest Of Children Of Foreign Nationals Who Are Kept In Detention Centres' : Karnataka HC Asks Centre/State

Justice K N Phaneendra asked the goverments to refer to International Conventions and Supreme Court Judgements, if there are, on the subject and come out with a solution. They have to submit their responses to the court by December 4. The court said "If the child is a minor they can be allowed to be kept with their parents but what if he/she is not and the parents don't have capacity to take their care, outside the detention centre. What is the fate of such children? State will have to make arrangements. If there is no solution, we will have to pass directions."

The court is hearing a bunch of bail applications, filed by alleged Bangladeshi nationals, Babu Khan and others, who have been arrested for staying illegally in the state, under the Foreigners Act. On the previous hearing the government informed the court 58 illegal foreign nationals were being deported.

Counsel for Union Government told the court that Ministry of Home Affairs has in 2014 and 2018, written letters to all states for setting up detention centres, to house foreign Nationals, found illegally staying in India. It is not a recent development. The notification issued to all the state and union territories gives a standard operating procedure on setting up of detention centres by the states, which will be out of prisons and depending on the number of foreigners arrested/detained. The process for repatriation/deportation, of the foreign national has to begin soon after FIR is lodged or cognizance taken.

Further, it was said that India has an agreement/treaty with 33 countries including Bangaldesh and foreign Nationals, if other criterias are met can be sent back to their home country, to serve their sentence after conviction, by a court in India. Till they are deported back they will have to be kept in detention centres to have easy physical availability for speedy deportation. Or else in many cases when foreign Nationals are released on bail previously they abscond.

Justice K N Phaneendra said "Clarification will have to be give in bail orders or conviction orders that once released the foreign national will have to be shifted to the detention centres. As it is continuous offences and they cannot be allowed to wander in the society. Whether arrested or not if they are secured/FIR registered, brought before the court. Whether court grants anticipatory bail or regular bail, they should be kept in detention centres."

The court added "However, dignity of foreign Nationals will have to be maintained. The detention centres should be like hostels for students or senior citizens, with all the basic facilities. Court cannot issue directions to foreign Nationals to report attendance to FRRO offices."

The cousel for Union said state will have to follow the SOP, laid down in the notifications. If the accused is released on bail it will be the responsibility of the state machinery to trace him and keep him in the detention centres. Court said "Bengaluru is flooded with many illegal immigrants, that is why I am taking so much time to decide this matter."

On a query made by advocate Sirajuddin Ahmed appearing for one of the arrested Bangladeshi national on whether the foreign national who has secured Aadhar card, Election I'd card and has voted, is his vote valid. The court said "Yes vote is valid till he is not detected. As soon as he is he will have to be kept in detention centres. Aadhar and Voter ID card don't grant right of citizenship."

The bench also clarified that if the offence is minor or under Foreigners Act then the foreign Nationals can be kept inside the detention centres with bifurcation of male/female. However, if offence is serious then most probably bail would be rejected