In the first week of March, 25-year-old Mukhtar and his wife Fhedya had travelled from Addis Ababa, the capital city of Ethiopia, to India’s capital, New Delhi. The couple had planned to spend a few days at the ongoing Tablighi Jamaat gathering, organised at its global headquarter in the Nizamuddin Markaz, before heading down south to Tamil Nadu. The couple were to return to their home country at the end of the same month.
Mukhtar was familiar with India; this was his third visit, but Fhedya’s very first. She was nervous since this was also her first time away from their three-year-old son, Mohamed Mukhtar. In their absence, the child was to live with his grandparents.
The four-week trip took a tragic turn when Prime Minister Narendra Modi, in a hasty decision, put India under a forced lockdown. This was followed by severe communalisation of the Tablighi Jamaat amid accusations of them being the “primary carriers” of COVID-19 in India, and the couple ended up in prison.
Mukhtar and Fhedya are among 129 foreign nationals, belonging to nine Asian, African and European countries, who have since been pushed into forced institutional confinement – first in the Puzhal Central prison in Chennai, followed by a few weeks in Saidapet sub-jail and then in the Borstal School, which was hurriedly converted into a detention centre for them. The last update is that around 31 men and women among them have been moved to Puzhal Prison II for undertrials and the special prison for women.
Back in Addis Ababa, Mukhtar’s family has been anxious, trying every channel to find out where the couple is being held. Mukhtar’s sister Fozia says it has been over three months since the family heard the couple’s voice. “We have no idea what is happening to them and how long will they be stuck here. Their little one (child) has been asking for his momma (mother) and ābayē (father) and we have run out of excuses. This trip has caused us severe distress,” shares Fozia over the phone, from Addis Ababa.
In all, over 3,500 foreigners from 35 different countries have been stranded in different parts of India, according to sources at the Ministry of Home Affairs. Among them are pregnant women and several elderly persons in need of urgent medical care.
But the condition of 129 foreigners in Tamil Nadu – among them at least 12 women, some young mothers – has arguably been the worst.
In April, the Tamil Nadu government first registered 15 different FIRs across the state, then carried out multiple joint inter-district operations and bundled the foreigners into prison. While most of them were picked up from different mosques and private residential centres where they had quarantined themselves, 10 Malaysians were detained just minutes before they were to board a special flight arranged by their government.
Ever since, the arrested foreign nationals have tried every legal remedy available to get themselves out of jail and secure their journey back home. But the state has been unrelenting in its ways.
A new detention centre
Over a month after their arrest, when the Madras high court first granted bail to six Thai nationals on May 6, the Tamil Nadu government, instead of making arrangements for their release, issued a government order (GO) and further kept them under detention. The GO, issued on May 8 by state governor Banwarilal Purohit, devoid of any grounds for further detention, states: “In exercise of the powers conferred under section 3 (2)(e) of the Foreigners Act, 1946…. the governor of Tamil Nadu hereby orders that they shall reside in the special camp at Puzhal, Chennai district, in the event of their release.”
With this order, the Tamil Nadu government became the only state to set up a detention centre under the Foreigners Act in the middle of the ongoing pandemic. Even states which have existing detention centres have not made use of those establishments, but the Tamil Nadu government decided to convert a Borstal School – meant for young adults in conflict with the law – into a detention centre. The state government has been categorising this set up as a ‘temporary camp’ and not a detention centre, but lawyers and activists call this a “false distinction”.
Last year end, even when several state governments, including Karnataka and the then BJP- led government of Maharashtra, decided to set up detention centres for “illegal immigrants” entering India, the Tamil Nadu government did not make any such move. The state already has an “intermediate camp”, another name for detention centres, in Trichy, which mostly houses Sri Lankan nationals.
But with the new GO, lawyers say, the state has joined states that are willing to “persecute religious minorities”. They have also alleged that the recent GO virtually nullifies their long-drawn efforts in Madurai and Chennai courts to secure bail for the detained foreigners. “As soon as we secured bail, we visited the Puzhal Central prison to get them (six Thai nationals) released. We were informed that they will be moved out to another Saidapet sub-jail. On May 8, a GO was issued,” says K.M. Aasim Shehzad, one of the lawyers working towards getting the foreign nationals released in the state.
Between their bail order and the GO, the Tamil Nadu police had detained the six persons unlawfully, Shehzad alleges. The defence lawyers have moved a habeas corpus application before the Madras high court as a protection against their illegal imprisonment.
Shehzad says no other state has made such extreme moves. There are over 3,500 foreign nationals who are facing charges under the Foreigners Act for allegedly flouting visa norms. Even if the foreigners were arrested initially, on securing bail, they could make their own arrangements. Several mosques and local groups came forward to help the stranded tourists. “Only Tamil Nadu government decided to act in such a violative manner,” he says.
The Borstal School attached to the Puzhal Central prison has a capacity to accommodate 38 people. Instead, 129 people were lodged at this centre. Lawyers who have been visiting them at the Borstal School told The Wire that the living conditions inside the centre are abysmal. “Each time we visit them, they only ask us about their return. Most of them aren’t acquainted with Indian food and go hungry on most days. They haven’t talked to their families in months,” says a young lawyer, who has been coordinating their legal documents and occasionally arranging for their native cuisine.
Former MLA and leader of Manithaneya Makkal Katchi party M.H. Jawahirullah is at the forefront coordinating the legal team and helping those detained. He is also the only point of contact for most families who have failed to connect with their relatives despite diplomatic interventions.
Most families that The Wire spoke to say they have not heard from their relatives lodged in the detention centre in Chennai since their arrest in April. Hussain Bin Hassan has been frantically contacting the Malaysian embassy and his contacts in India to know about his 26-year-old son, Mohamed Amirul Hafiz.
“I lost touch with him on April 11. Before that, he would make video calls almost every day,” Hassan told The Wire. This was Amirul’s fourth visit to India and Hassan also says the worst ever. “We have been visiting India and attending the Tablighi since my grandfather’s time. India has always been welcoming of us, we never expected things to get this bad,” Hassan, a resident of Seremban in Negeri Sembilan state, says.
In March, when the cases of coronavirus steadily began to rise and a few among the Tablighi Jamaat members had tested COVID-19 positive in the Nizamuddin Markaz, the ruling BJP party, several pro-government news media and social media supporters aggressively participated in stoking communal sentiments. The result of this was multiple FIRs filed across most states against both Indian and foreign Muslims who had attended the congregation.
Barring a case or two, every other person detained had tested negative for the virus. But since their arrests, they have been thrown in and out of Puzhal Prison, which has at least 40 positive cases detected.
While the Indian attendees have been booked under several sections of the Indian Penal Code and the Epidemic Diseases Act, those from foreign countries have been booked under similar sections along with additional sections of the Foreigners Act for allegedly flouting visa norms.
The prosecution has relied on Clause 15 of the visa rule, which restricts “foreign nationals from engaging themselves in Tabligh work”. The clause, however, has no restriction on visiting religious places and attending religious discourses.
Besides the general policy guidelines drafted for Indian visas, the term ‘Tabligh’ is neither defined nor does it appear in any other government documents or statutes. Advocate Shehzad says the government has made no efforts to clarify the meaning of the term either.
Lawyers have vehemently denied the accusations of proselytisation. It is important, they say, to note that most of these foreigners do not speak English or any local language. “How do you even engage in propagating a religion if you can’t even communicate with the locals?” Shehzad asks.
Similar allegations of flouting visa norms, along with the usual sections of the Indian Penal Code for not maintaining social distancing norms, were levelled against foreign nationals detained in other states. However, in at least six different instances, the district courts have already overturned the state’s claim. In some cases, those arrested even pleaded guilty for gathering at one place and not honouring the state’s order to maintain a social distance but the courts, considering those allegations frivolous, decided to acquit them anyway.
In Maharashtra, Haryana, and Uttar Pradesh, close to 100 foreigners, all attending the Tabligh, have been acquitted so far.
Despite courts order, multiple foreign embassies have confirmed that the look-out notices issued by the Ministry of Home Affairs have not been withdraw, making their return virtually impossible.
On Monday, June 29, while hearing the petition filed by several foreign nationals who are stranded in India and are being blacklisted and barred from entering India for a period of 10 years, the Supreme Court’s bench comprising Justices A.M. Khanwilkar, Dinesh Maheshwari and Sanjay Khanna asked, “If visas of these foreigners are cancelled, why are they still in India?” The bench further added: “You deport them. Also, tell us if there was just a general direction or individual orders sent to each one of them informing about blacklisting and cancellation of visa.”
Are these detentions legal?
All 129 have already been released on bail. Under the Foreigners Act, states have the power to place an accused foreign national under restrictions until she is either acquitted or deported back to their home countries.
On June 12, taking a humane approach, however, Justice G.R. Swaminathan of the Madurai bench of the Madras high court said that the detainees had already suffered enough. The judge also observed that Article 21 (right to life) of the constitution applies to the applicants, even if they are of foreign nationality.
Justice Swaminathan observed:
“To quote (Professor Upendra) Baxi, at the heart of every constitution there pulsates a distinction between ‘us’ and ‘them’, the constitutional self and the constitutional others. But there are provisions transcending this distinction, being applicable to “all persons”. Article 21 of the Constitution surely applies to the petitioners also. 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.”
In the detailed order, the court also directed the state to move those detained at the Borstal School out to a place which is not within the prison structure. The court was referring to the Model Detention Centre/Holding Centre/Camp Manual that the Ministry of Home Affairs had been communicated to every state on January 9, 2019.
Of the 39 amenities mandated in chapter 4 of the manual, setting up camps outside the jail premises is the first criteria. Jawahirullah says the state government failed to make such distinctions. “Since the beginning, those detained were kept in facilities inside the prison. And this did not change even with the high court’s direction,” he points out.
Similarly, among other provisions include regular communication with family members, separate cooking space and access to running water. “Not one requirement is met. In fact, they are treated much worse than other prisoners,” he says.
Meanwhile, Jamiah Qasmiyah Arabic college in Chennai has offered to provide accommodation to the detained foreigners, but the state government has ignored its offer.
The defence lawyers’ team has been awaiting the high court’s intervention in their habeas corpus petition that is being regularly adjourned to a later date. At the same time, the lawyers are also preparing to challenge the government order.
Meanwhile, across countries and oceans, families await the return of their relatives and urge the Indian government to give up playing “communal politics” at the cost of their relatives. Making an emotional appeal, Hasan said, “We have always loved India. Please allow us to remember your country for its beauty and hospitable people. Please put an end to this inhuman treatment of our children.”