THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
W.P.Nos.6407, 10465, 10474, 31190 & 31199 OF 2022
COMMON ORDER: (Per Hon'ble Dr. Justice Shameem Akther)
Since the issue involved and the point that arise for
determination in these five writ petitions are one and the same, all
these Writ Petitions are taken up together and are being disposed of
by this common order.
2. W.P.Nos.6407, 10465, 10474, 31190 and 31199 of 2022 are
filed by the petitioners, challenging the Government Orders vide (i)
G.O.Rt.No.541, dated 04.10.2021; (ii) G.O.Rt.No.538, dated
04.10.2021; (iii) G.O.Rt.No.593, dated 29.10.2021; (iv)
G.O.Rt.No.540, dated 04.10.2021; and (v) G.O.Rt.No.540 dated
04.10.2021 respectively, issued against (i) Raheemullah, S/o. Abdul
Kalam, (ii) Jaffar Alam @ Abdulla @ Mohd. Sajid, S/o. Mohd. Younus
@ Mohd Farhan, (iii) Abdul Aziz, S/o. Abu Sidhiq, (iv) Noor Qasim @
Mohd Noor, S/o. Ahmed Siddiq @ Mohammed Siddiq, and (v) Nazar-
Ul-Islam @ Hafiz-Ul-Haq, S/o. Ahmed Siddiq @ Sale Ahmed
(hereinafter referred as the 'alleged detenus') respectively, whereby,
permission was accorded to the Director General of Police,
Hyderabad, to detain the alleged detenus at Central Prison,
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Cherlapally, Hyderabad, under proper security, till their deportation
process is completed.
3. We have heard the submissions of Ms. Bibi Aysha Mohammed,
learned counsel for the petitioner in W.P.No.6407 of 2022, Sri
M.A.Shakeel, learned counsel for the petitioner in W.P.Nos.10465,
10474, 31190 and 31199 of 2022, Sri T.Suryakaran Reddy, learned
Additional Solicitor General of India appearing for respondent
No.4/Union of India in W.P.Nos.10465, 10474, 31190 and 31199 of
2022 and Sri S.Mujib Kumar, learned Special Government Pleader
appearing for respondent Nos.1 to 3 and 5 in W.P.Nos.10465, 10474,
31190 and 31199 of 2022 and the respondents in W.P.No.6407 of
2022. We have perused the record.
4. The petitioners herein are the wife/cousin brother of the
alleged detenus, as the case may be. It is an undisputed fact that
the alleged detenus are Myanmar nationals and foreigners. Alleging
that the detenus obtained AADHAR Card, Voter ID Card, etc., on the
basis of fake certificates, Crime No.4/2020 for the offences under
Sections 420, 468, 471 of IPC and Section 14(c) of the Foreigners
Act; Crime No.23/2020 for the offences under Section 420, 468, 417
r/w 34 of IPC and Section 14(c) of the Foreigners Act; Crime
No.127/2019 for the offences under Sections 420, 468, 471 of IPC
and Section 14(c) of the Foreigners Act; Crime No.2/2018 for the
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offences under Sections 420, 465, 468, 471 of IPC and Section 12
(1)(b) of the Passport Act; and Crime No.2/2018 for the offences
under Sections 420, 465, 468, 471 of IPC and Section 12 (1)(b) of
the Passport Act, were registered against the alleged detenus in
subject W.P.Nos.6407, 10465, 10474, 31190 & 31199 of 2022
respectively, and they were arrested and remanded to judicial custody.
Subsequently, all the alleged detenus were granted conditional bail
by the Courts concerned. However, since the detenus are Myanmar
nationals, the Director General of Police, Telangana, vide separate
letters, requested the Government of Telangana to issue orders for
detaining the alleged detenus in Central Prison, Cherlapally,
Hyderabad, subject to the outcome of the criminal cases registered
against them and further stated that if at all the detenus get
acquittal in the crimes registered against them, they have to be
detained till the deportation process is completed. The Government
of Telangana, by exercising powers conferred by clause (e) of sub-
section (2) of Section 3 of the Foreigners Act, 1946 ('Foreigners Act',
for brevity) read with Government of India Notification No.4/3/56 (1)
F.I. dated 19.04.1958, vide S.O.590, issued separate Government
Orders permitting the Director General of Police, Telangana State,
Hyderabad, to detain the detenus at Central Prison, Cherlapally,
Rangareddy District, under proper security, till their deportation
process is completed with a further direction to the Director General
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of Police to take necessary action accordingly and intimate as and
when the deportation process of the alleged detenus is completed.
Accordingly, the Assistant Commissioner of Police, Special
Investigation Team, Hyderabad, addressed separate letters to the
Superintendent, Central Prison, Cherlapally, requesting to detain the
alleged detenus in the said prison till their deportation process is
completed. The alleged detenus are accordingly detained in Central
Prison, Cherlapally, Rangareddy District. That led to the filing of
these writ petitions by the petitioners, seeking a Writ of Habeas
Corpus, directing the respondents to set the alleged detenus at
liberty forthwith, by declaring the subject Government orders and the
consequential orders, as illegal.
5. Learned counsel appearing for the petitioners in all these writ
petitions would contend that the alleged detenus in all these writ
petitions are Rohingya refugees, who are peacefully residing in India
on the status of 'refugee' and are not to be treated on par with
foreigners. The alleged detenus cannot be detained in a prison,
merely basing on a Government order, as they are protected by the
Constitution of India, and cannot be treated as foreigners who visit
India for the purpose of tourism or economic prospects. Further, the
principle of non-refoulment prohibits expulsion of a refugee, who
apprehends threat in his native country on account of his race,
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religion and political opinion. Article 21 of Constitution of India
equally applies to the citizens of India and the foreigners as well.
Further, the detenus in all these writ petitions were granted bail by
the Courts concerned in the crimes registered against them and they
never violated the conditions incorporated in the bail orders.
However, the detenus are ordered to be detained until their
deportation process is completed, since they are Myanmar nationals
and residing in India illegally. The state of affairs of Rohingyas in
Myanmar is not conducive for safe repatriation and in case the
Government takes a decision to expel the Rohingyas from India, the
same would amount to serious violation of human rights. Taking this
Court through various international treaties and conventions, the
learned counsel for the petitioners submitted that the Rohingyas in
India are refugees and not economical or illegal immigrants, and
based on their refugee status, the Government of India recognizes
them as a candidate to hold Long Term Visa (LTV)/resident permit,
as per the internal guidelines on Refugee issued by Ministry of Home
Affairs, Government of India, dated 29.12.2011 relating to refugees.
India recognizes the Advisory Opinion on the Extraterritorial
Application of Non-Refoulment Obligations under 1951 Convention
relating to the status of Refugees and its 1967 Protocol. Though
India is not a signatory to Geneva Refugee Convention, 1951, and
the New York Protocol, 1967, but however, it is a party to the
Dr.SA,J & EVV,J
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Universal Declaration of Human Rights, 1948 and to the International
Covenant on Civil and Political Rights, 1966. Further, there is no
word like 'detention' in clause (e) of sub-section (2) of Section 3 of
the Foreigners Act. The said word 'detention' finds place in clause
(g) of sub-section (2) of Section 3 of the Foreigners Act. The Central
Government did not delegate the power under clause (g) of sub-
section (2) of Section 3 of the Foreigners Act to the State
Government. Hence, the State Government cannot assume power
and permit detention of the alleged detenus under clause (e) of sub-
section (2) of Section 3 of the Foreigners Act. The detention of the
alleged detenus is ex-facie illegal and ultimately prayed to allow the
writ petitions by setting aside the subject Government Orders and
the consequential orders, and direct the release of the alleged
detenus forthwith.
6. Per Contra, the learned Assistant Solicitor General of India
appearing for Union of India would submit that the writ petitions are
not maintainable, either in law or on facts. The Passport (Entry into
India) Act, 1920, prescribes specific authorization of foreign nationals
on their valid travel documents/passports for allowing entry into
India. Under the said Act and the Rules made thereunder, the
foreigners coming to India are required to get VISA from Indian
Missions/Posts on their valid passports. India, as a matter of policy,
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does not support any kind of illegal migration or overstay, either in
its own territory or illegal migration of its citizens to foreign
territories. To facilitate orderly migration and timely exit, India has
robust VISA and immigration regime. Further, India is not a
signatory to Geneva Convention of 1951 relating to the status of
Refugees and the Protocol of 1967 thereof. India does not recognize
refugee status granted by United Nations High Commissioner for
Refugees. Since India is not a party to the said Convention or the
said Protocol, the obligations contained therein are not applicable to
India. Therefore, conferment of 'Refugee Status' by UNHCR to a
foreign national, who is not having valid travel documents, would not
alter their 'illegal immigrant' status and do not provide them
immunity against action taken under the relevant Acts. The Central
Government has been vested with powers under Section 3(2)(e) and
3(2)(c) of the Foreigners Act, to detain and deport foreign nationals
staying illegally in the country. Further, Under Article 239(1) of the
Constitution of India, the administrators of all the Union Territories
have also been directed to discharge the functions of the Central
Government relating to the aforesaid powers. Accordingly, all State
Governments/UT Administrators and Bureau of Immigration have full
powers to detain and deport any foreign national, who is illegally
staying in India, under the powers delegated to them. The Ministry
of Home Affairs, vide letter No.25022/28/2020-F.I, dated
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30.03.2021, has also issued consolidated instructions to all State
Governments/UT Administrators regarding the issue of overstay of
illegal migration of foreign nationals, which include guidelines dated
24.04.2014 and 01.07.2019, regarding procedure to be followed for
deportation of a foreign national and also guidelines dated
09.01.2019, regarding Model Detention Centre/Holding Centre/Camp
Manual. As per the existing procedure, where a foreigner is arrested
and action is taken under the relevant Acts, the foreigner can be
deported only after completion of the sentence/Court proceedings.
In case the foreigner does not have a valid travel document/
passport, it is necessary to obtain the requisite travel document from
the Embassy/High commission of the Country concerned, before
he/she can be deported. In the instant case, since the alleged
detenus have illegally migrated from a foreign country (Myanmar),
they were rightly ordered to be detained until they are deported to
their own country. There is no illegality in passing the impugned
government orders and ultimately prayed to dismiss the writ petition.
In support of his contentions, the learned Assistant Solicitor General
of India has relied on the following citations.
1. Selvakulendran @ Selvam @ Babu Vs. State of Tamilnadu1
2. Premavathy @ Rajathi, W/o. Kamalanathan Vs. State of Tamilnadu2
3. Mr.Innocent Amaeme Maduabuchukwi Vs. State of Goa3
4. Sree latha Vs. Sakthikumar Vs. The Secretary to Government, Government
of Tamilnadu4
1
2006 Law Suit (Mad) 672
2
2004 (2) CTC 10
3
Order, dated 10.07.2020, passed in LD-VC-CRI-7-2020 by High Court of Bombay at Goa.
4
Order, dated 21.09.2007, passed in H.C.P No.1138 of 2006 by the Madras High Court
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5. Rajalakshmi Vs. The Inspector of Police5
6. Momin @ Momimwar Hussain Vs. State of Tamilnadu6
7. The learned Special Government Pleader appearing for
respondents/State Government would contend that the alleged
detenus are refugees. They are Myanmar nationals. The alleged
detenus were arrested in connection with criminal cases registered
against them. Thereafter, on instructions of the Additional
Commissioner of Police, Crimes & SIT, Hyderabad City, the cases
registered against the alleged detenus were transferred to CCS/DD,
Hyderabad and were re-registered. During the course of
investigation, it has come to light that the alleged detenus,
fraudulently and by suppressing their original identity, obtained
AADHAR Card, Voter Card etc. On completion of investigation in the
crimes registered against the alleged detenus, charge-sheets were
filed before the Court concerned. At present, the criminal cases
registered against the alleged detenus are at the stage of framing
charges. The alleged detenus have no permanent address in the
country. They are foreign nationals belonging to Myanmar country
and entered into India illegally. In order to restrict their movements
and prevent them from committing further offences, as per the
orders of the Government vide the subject Government Orders, the
alleged detenus are detained in Central Prison, Cherlapally,
5
Order, dated 26.07.2019, passed in H.C.P.No.1608 of 2020 by Madras High Court
6
Order, dated 28.03.2019, passed in W.P.No.1141 of 2019 by Madras High Court
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WP Nos.6407/2022 & batch
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Hyderabad by duly following the provisions of Section 3(2)(e) of the
Foreigners Act, for deporting them from India. There is no illegality
in passing the impugned Government Orders and ultimately prayed
to dismiss the writ petitions.
8. In view of the above rival submissions, the point that arises for
determination in these writ petitions is as follows:
"Whether the impugned Government Orders vide (i)
G.O.Rt.No.541, dated 04.10.2021, (ii) G.O.Rt.No.538,
dated 04.10.2021, (iii) G.O.Rt.No.593, dated
29.10.2021, (iv) G.O.Rt.No.540, dated 04.10.2021, and
(v) G.O.Rt.No.540 dated 04.10.2021 issued against the
alleged detenus viz., (i) Raheemullah, S/o. Abdul
Kalam, (ii) Jafar Alam @ Abdulla @ Mohd. Sajid, S/o.
Mohd. Younus @ Mohd Farhan, (iii) Abdul Aziz, S/o. Abu
Sidhiq, (iv) Noor Qasim @ Mohd Noor, S/o. Ahmed
Siddiq @ Mohammed Siddiq, and (v) Nazar-Ul-Islam,
S/o. Ahmed Siddiq @ Mohammed Siddique, respectively,
who are detenus in W.P.Nos.6407, 10465, 10474, 31190
and 31199 of 2022, respectively, are liable to be set
aside?"
POINT:-
9. Admittedly, the alleged detenus in these writ petitions are
Myanmar nationals and foreigners. As regards their deportation to
their native country and the applicability of the various international
treaties and conventions referred by the learned counsel for both
sides, the matter is sub judice before the Hon'ble Apex Court in
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WP Nos.6407/2022 & batch
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W.P.(C) No.793/2017 titled "Mohammad Salimullah and another Vs.
Union of Inida". Further, in an interlocutory application, i.e.,
I.A.No.38048 of 2021 filed in the said Writ Petition with a prayer to
release the Rohingya migrant detained therein and not to deport
such Rohingyas detained in the sub-jail in Jammu, the Hon'ble Apex
Court, vide order, dated 08.04.2021, declined to grant the said relief
and observed that deportation of such illegal migrants can be done,
provided the due procedure prescribed for such deportation is
followed. Hence, when the Hon'ble Apex Court is seized of the
matter on this aspect, the same cannot be adverted to by this Court.
Hence, this Court declines to address the said aspect in these writ
petitions.
10. The core question that needs answer in these writ petitions is
whether the respondents/State Government has the power to pass
the impugned Government Orders. There are five similar
Government Orders which are impugned in these writ petitions. One
of such Government Orders which is impugned in W.P.No.10465 of
2022 reads as follows:
GOVERNMENT OF TELANGANA
ABSTRACT
Home (Courts.B) Department - Permission to the Director General of Police,
Telangana State, Hyderabad, for detaining the accused A1 Jaffar Alam @
Abdulla @ Mohd Sajid S/o Mohd Younus @ Mohd Farhan of Myanmar National
in Central Prison, Cherlapally till his deportation to Myanmar - Sanctioned -
Orders - issued.
LAW (LA, LA&J-HOME-COURTS.B) DEPARTMENT
G.O.Rt.No.538 Dated:04.10.2021
Dr.SA,J & EVV,J
WP Nos.6407/2022 & batch
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From the Director General of Police, Telangana State, Hyderabad,
Rc.No.1572/C1/TS/2021, dated: 09-03-2021.
$$$
ORDER:
Whereas, the Director General of Police, Telangana State, Hyderabad, in the reference cited above has informed that A1 Jaffar Alam @ Abdulla @ Mohd Sajid S/o Mohd Younus @ Mohd Farhan of Myanmar National was arrested by Kanchanbagh PS, Hyderabad in Crime No.23/2020, U/Sec. 420, 468, 471, r/w 34 of IPC, and Sec.14(c) of Foreigner Act, 1946, and accused was produced before the Hon'ble VII Additional Chief Metropolitan Magistrate Court, Hyderabad, and sent for judicial custody. Later case was transferred and re-registered in Cr.No.36/2020, U/Sec. U/Sec. 420, 468, 471, r/w 34 of IPC, and Sec.14(c) of Foreigner Act, 1946 at CCS/SIT Hyderabad.
2. And whereas, the Director General of Police, Telangana State, Hyderabad, has requested the Government to issue necessary orders for detaining the accused A1 Jaffar Alam @ Abdulla @ Mohd Sajid S/o Mohd Younus @ Mohd Farhan of Myanmar National in Central Prison, Cherlapally, Hyderabad, subject to the outcome of the judgment of the Hon'ble XII Additional Chief Metropolitan Magistrate Court, Hyderabad, and further stated that if he is acquitted in the said case, he has to be detained till the deportation process is completed.
3. Now therefore, in exercise of the powers conferred by clause (e) of sub-section (2) of Section 3 of the Foreigners Act, 1946 (Act No.31 of 1946) read with the Government of India notification No.4/3/56 (1) F.I. dated: 19- 04-1958, Government, after careful examination of the matter hereby permit the Director General of Police, Telangana State, Hyderabad, to detain A1 Jaffar Alam @ Abdulla @ Mohd Sajid S/o Mohd Younus @ Mohd Farhan of Myanmar National in Central Prison, Cherlapally, R.R.District, under proper security till his deportation process is completed.
4. The Director General of Police, Telangana State, Hyderabad shall take necessary action accordingly and intimate as and when the deportation process of the accused A1 Jaffar Alam @ Abdulla @ Mohd Sajid S/o Mohd Younus @ Mohd Farhan of Myanmar National is completed, to the Government (BY ORDER AND IN THE NAME OF THE GOVERNER OF TELANGANA) A.SANTOSH REDDY SECRETARY TO GOVERNMENT LEGAL AFFAIRS, LEGISLATIVE AFFAIRS & JUSTICE To The Director General of Police, Telangana State, Hyderabad. Copy to:
The P.S. to Prl. Secretary to Government. (Home) The Law Department.
Sf/Sc // FORWARDED :: BY ORDER // Section Officer
11. The basis for passing the aforementioned Government Order is the Government of India Gazette Notification No.4/3/56(1) F.I., dated 19.04.1958, whereunder, power was delegated to State Governments under S.O.590, which reads as follows:
Dr.SA,J & EVV,J WP Nos.6407/2022 & batch 13 New Delhi, the 19th April, 1958 S.O.590 - In exercise of the powers conferred by clause (1) of Article 258 of the constitution and of all other powers enabling him in this behalf and in suppression of all previous notifications on the subject in so far as they relate to the Acts, Rules and orders thereunder mentioned, the President, with the consent of the State Government concerned, hereby entrusts to the Government of each of the States of Andhra Pradesh, Assam, Bihar, Bombay, Jammu and Kashmir, Kerala, Madhya Pradesh, Madras, Mysore, Orissa, Punjab, Rajasthan, Uttar Pradesh, and West Bengal, the functions of the Central Government (i) Under Section 5 of the Indian Passport Act, 1920 (34 of 1920); (ii) under rules 2 and 4 of the Indian Passport Rules, 1950; (iii) under rule 3 of the Registration of Foreigners Rules, 1939; (iv) in making orders of the nature specified in clauses (c), (cc), (d), (e) and (f) of sub-section 2 of Section 3 of the Foreigners Act, 1946 (31 of 1946); and (v) under the Foreigners Order, 1948, subject to the following conditions, namely --
(a) that in exercise of such functions the said State Government shall comply with such general or special directions as the Central Government may from time to time issue; and
(b) that notwithstanding this entrustment, the Central Government may itself exercise any of the said functions should it deem fit to do so in any case."
12. Thus, the aforementioned S.O.590 makes it clear that the Central Government has authorized the State Governments to pass orders in relation to matters falling under clause (e) of sub-section (2) of Section 3 of the Foreigners Act. Clause (e) of sub-section (2) of Section 3 of the Foreigners Act, reads as follows:
3. Power to make orders:
(1) The Central Government may by order, make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into 2[India] or, their departure therefrom or their presence or continued presence therein.
(2) (a) xxxx
(b) xxxx
(c) xxxx
(d) xxxx
(e) shall comply with such conditions as may be prescribed or specified--
(i) requiring him to reside in a particular place;
(ii) imposing any restrictions on his movements;
Dr.SA,J & EVV,J WP Nos.6407/2022 & batch 14
(iii) requiring him to furnish such proof of his identity and to report such particulars to such authority in such manner and at such time and place as may be prescribed or specified;
(iv)requiring him to allow his photograph and finger impressions to be taken and to furnish specimens of his handwriting and signature to such authority and at such time and place as may be prescribed or specified;
(v)requiring him to submit himself to such medical examination by such authority and at such time and place as may be prescribed or specified;
(vi) prohibiting him from association with persons of a prescribed or specified description;
(vii) prohibiting him from engaging in activities of a prescribed or specified description;
(viii) prohibiting him from using or possessing prescribed or specified articles;
(ix) otherwise regulating his conduct in any such particular as may be prescribed or specified;
(f) xxxx
(g) xxxx
13. In the instant case, there is no dispute that the alleged detenus are Myanmar nationals and foreigners. A perusal of the impugned Government Orders reveals that the Director General of Police, Telangana State, Hyderabad, has requested the Government to issue necessary orders for detaining the alleged detenus in Central Prison, Cherlapally, Hyderabad, and acting upon the said request, the impugned Government Orders were passed. In paragraph No.3 of the impugned Government Orders, there is a specific mention of the word 'detain'. The question now arises for determination is that whether the Government has power to 'detain' the alleged detenus. Here, it is apt to extract clause (g) of sub-section (2) of Section 3 of the Foreigners Act, which reads as follows:
"(g) Shall be arrested and detained or confined"
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14. While clause (e)(ii) of sub-section (2) of Section 3 of the Foreigners Act employs the words "imposing any restrictions on his movements", clause (g) employs the words "arrested and detained or confined". There is a lot of difference between 'restricting the movements' of a person and his 'detention'. While the former is somewhat liberal, the later is stricter in its applicability. The word 'detention' is nothing but total confinement of a person. In the former, though the liberty of movement of the person concerned is restricted, he is not detained. While the restriction of movements of a person permits a person to move within particular area or place as may be specified in the order, on the other hand, his/her 'detention' directly and substantially affects his liberty of movement in its fullest extent, which is against the scope and intent of Article 21 of Constitution of India. Article 21 guarantees protection of personal liberty to a citizen of India and a foreigner alike. Hence, restricting the movements of a person cannot be, in any event, equated with his detention. Further, though the power vested with the Central Government under clause (e) of sub-section (2) of Section 3 of the Foreigners Act was delegated to the State Governments by virtue of the above referred S.O.590, the power under clause (g) of sub-
section (2) of Section 3 of the Foreigners Act, which was subsequently included by way of amendment (inserted by Act 42 of 1962), was not delegated to the State Governments. The said power Dr.SA,J & EVV,J WP Nos.6407/2022 & batch 16 vests with the Central Government only. Further, the circumstances narrated in clause (e) and clause (g) of sub-section (2) of Section 3 of the Foreigners Act are quite different. Both the clauses are independent in action and exclude each other. In the instant case, the action taken by the Government, i.e., detaining the alleged detenus in Central Prison, Cherlapally, falls under clause (g) of sub- section (2) of Section 3 of the Foreigners Act, but not under clause
(e) thereof. The situation would have been altogether different, if the Central Prison, Cherlapally, was designated as a 'Refugee Camp' and there was an order imposing any restrictions on the movements of the detenus. Nothing is placed before us to substantiate that the Central Prision, Cherlapally, is designated as a 'refugee camp' with regard to its applicability to the Foreigners Act, so also there is no order as indicated above. Further, when no power to arrest and detain or confine a foreigner under the Foreigners Act has been delegated to the State Government by the Central Government till date, the State Government cannot issue any order, much less Government order, granting permission to the police to detain a foreigner. Viewed so, the impugned Government Orders and the consequential orders are ex-facie illegal.
15. We have gone through the decisions relied by the learned Additional Solicitor General of India. In Selvakulendran's case (1 Dr.SA,J & EVV,J WP Nos.6407/2022 & batch 17 supra), the Hon'ble High Court of Madras, while adverting to the facts of the case and referring to various decisions, held as follows:
"Even otherwise, inasmuch as the petitioner is a foreigner/Sri Lankan citizen, taking note of his involvement in various offences, the State Government is empowered to pass orders including one requiring the petitioner to reside in a particular camp. We have already held that directing the petitioner to stay in a particular place, namely, Special Camp for Sri Lankan immigrants/refugees, as identified and located by the Collector of Kancheepuram District cannot be said to be an absolute restriction on his movement. Further, taking note of the security of the State, which is a prime concern, the Government has the discretion to restrict movement of foreigners requiring them to reside in a particular camp."
16. In Prevavathy's case (2 supra), the Hon'ble High Court of Madras held that Foreigners have no right of free movement under Article 19(1)(d) of the Constitution of India; Depravation of privacy is no defence, unless it is tainted with mala fide; order restricting movement as per Section 3(2)(e) of the Foreigners Act is not preventive detention nor did it violate rights guaranteed under Articles 14 & 21 of foreigners.
17. In Innocent Amaeme Maduabuchukwi's case (3 supra), the Hon'ble High Court of Bombay at Goa observed that Section 3(2)(e) of the Foreigners Act admittedly empowers the Central Government and now that the powers have been delegated, even the State authorities, to require a foreigner to reside in a particular place and further impose restrictions upon their movements. This is different and distinct from placing a foreigner under arrest and detaining and confining him in terms of Section 3(2)(g) of the said Act.
Dr.SA,J & EVV,J WP Nos.6407/2022 & batch 18
18. In Sree latha's case (4 supra), a reference was made to a Larger Bench of Hon'ble Madras High Court to resolve the conflict between the Division Bench decisions of that Court. Answering the reference, a Full Bench of Hon'ble Madras High Court held as follows:
"A distinction is made between the internees held under Section 3(2)(g) of the Foreigners Act, 1946 and the internees held under Sub-section 2(e) of the Act. Insofar as the latter category of foreigners are concerned, they are to reside at a place set apart for residence. In this case, the facts that the detenu was ordered to remain in the Special Camp which was previously a sub-jail and that he was kept there inside a cell and was allowed limited movement outside the cell during day time is a clear case of confinement, for which there is no order under Section 3(2)(g) of the Act. There was no order under the National Security Act, 1980 either. Hence, there is a restriction amounting to detention. Therefore, the argument that the court should lean against the implying repeal does not arise for consideration in the facts of this case."
19. In Rajalakshmi's case (5 supra), the Hon'ble Madras High Court observed as follows:
5 From a perusal of Sections 3 and 4 of the Foreigners Act, it is limpid that there are two classes of foreigners whose movements can be restricted and they are classified as parolees and internees. A foreigner is said to be a 'parolee' if an order under Section 3(2)(e) of the Foreigners Act, has been passed against him and a foreigner is said to be an 'internee' if an order has been passed against him under Section 3(2)(g), ibid. The Central Government has delegated the powers to pass orders under Section 3(2)(a) to (f), ibid., to the State Government under the notification of the Government of India, Ministry of Home Affairs, No.4/3/56 (1) F-1 dated 19.04.1958, by virtue of which, the State Government has been invested with the power to pass orders under Section 3(2)(e), ibid. As regards the internee, the Central Government has not delegated the power under Section 3(2)(g), ibid. to the State of Tamil Nadu.
20. In Momin's case (6 supra), the Hon'ble Madras High Court observed as follows:
"A careful reading of Section 3 makes it clear that it gives power to the Central Government to frame subordinate legislation in the shape of statutory orders which could be general or particular in nature and may be in respect of foreigners or in respect of any individual foreigner. Clause (g) envisages that the order made under Section 3 may provide that the foreigner shall be arrested and detained or Dr.SA,J & EVV,J WP Nos.6407/2022 & batch 19 confined. It is not in dispute that power under Section 3(2)(a) to (f) has been delegated whereas power under Section 3(2)(g) which was included by amendment later on has not been subsequently delegated."
There cannot be any dispute with regard to the preposition of law laid down in the cited decisions. However, in the instant case, the State Government, by assuming the power which was not delegated by the Central Government under clause (g) of sub-section (2) of Section 3 of the Foreigners Act, passed orders permitting the police to detain the detenus herein. The aforementioned citations relied by the learned Assistant Solicitor General of India, do not refer to the subject intricacy and determination. Hence, the facts of the cited decisions are clearly distinguishable from the facts of the case on hand.
21. For the foregoing reasons, the detention of the detenus is wholly unjustified, ex facie illegal, without specific delegation of power under Section 3(2)(g) of the Foreigners Act, which the State Government is not entitled to do so.
22. In the result, the Writ Petitions are allowed. The impugned Government Orders vide (i) G.O.Rt.No.541, dated 04.10.2021, (ii) G.O.Rt.No.538, dated 04.10.2021, (iii) G.O.Rt.No.593, dated 29.10.2021, (iv) G.O.Rt.No.540, dated 04.10.2021, and (v) G.O.Rt.No.540 dated 04.10.2021 passed by the respondents/State and the consequential confirmation orders are hereby set aside. The respondents are directed to set the alleged detenus, namely, (i) Dr.SA,J & EVV,J WP Nos.6407/2022 & batch 20 Raheemullah, S/o. Abdul Kalam, (ii) Jafar Alam @ Abdulla @ Mohd. Sajid, S/o. Mohd. Younus @ Mohd Farhan, (iii) Abdul Aziz, S/o. Abu Sidhiq, (iv) Noor Qasim @ Mohd Noor, S/o. Ahmed Siddiq @ Mohammed Siddiq, and (v) Nazar-Ul-Islam, S/o. Ahmed Siddiq @ Mohammed Siddique, respectively, who are detenus in W.P.Nos.6407, 10465, 10474, 31190 and 31199 of 2022, respectively, at liberty forthwith, if they are no longer required in any case.
Miscellaneous Petitions, if any, pending in these writ petitions, shall stand closed. There shall be no order as to costs.
____________________ Dr. SHAMEEM AKTHER, J _______________ E.V.VENUGOPAL, J 15th September, 2022 Bvv