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Decide if PIO convicted for possession of child porn in US can enter India to meet aging parents: HC to Centre

The Immigration Officer (IO) said that as per the competent authority of Indian government, foreigners who are ‘morally depraved’ need to be blacklisted and prevented from entering India.

Written by Omkar Gokhale | Mumbai | Updated: December 5, 2020 7:02:04 pm
Sunaina Holey, Sunaina Holey tweet, Bombay high court Uddhav Thackeray, Mumbai newsBombay High Court. (Express Photo)

The Bombay High Court has directed the immigration officer to consider permitting a 57-year-old chartered accountant (CA) of Indian origin, holding an American passport, to enter India despite a stamp on his passport for a conviction in the US for possession of child pornography. The directions were issued after the man informed the court that he had already served the probation period for the conviction and as there were no specific immigration rules for turning him away, he should be permitted to enter the country to meet his aging parents.

A division bench of Justices Nitin M Jamdar and Milind N Jadhav was hearing, on December 3, a plea by the CA seeking to meet his 90-year-old father and 85-year-old mother in Mumbai.  He resides in Connecticut, USA and is an overseas citizen of India,

Senior counsel Birendra Saraf and advocate Ryan D’Souza said he had lived in India from the time of his birth to 1990, when he moved to the US. The man said he has visited India a number of times, however, when he reached the Mumbai International Airport on September 1, 2018, was not allowed to go through immigration.

The immigration officer (IO) and Centre informed the High Court that the man’s passport indicated he was not permitted to enter India and he had to return to the USA. Saraf said various efforts were made by him, but without any cogent reasons, the man was not permitted to enter India.

The IO filed an affidavit in reply to the plea and stated that petitioner’s passport was cancelled by USA authorities as he was convicted in the year 2013 for being in possession of child pornography material and he was insisting on a passport without an endorsement of the conviction.

The IO, while opposing the plea, further said that as per the competent authority of Indian government, foreigners who are ‘morally depraved’ need to be blacklisted and prevented from entering India.

The petitioner then filed an additional affidavit and placed on record a fresh passport with an endorsement recording his prior conviction. He also submitted a certificate issued by USA authorities stating that the petitioner had undergone his period of probation.

However, senior counsel Saraf submitted that the petitioner has a valid passport issued by the US Department of State and merely because there is an endorsement of his conviction, which he has already undergone, he cannot be prevented from entering India and there are no rules and regulations to prevent such an entry.

The bench further noted that despite its November 26 directions to immigration office to place on record statutory provisions and policy to support its stand, the same had not been placed before the court on Thursday and further time was sought to submit the same.

The High Court observed, “We do not find a decision by the respondent Authority with reference to any policy, rules or regulations as in such a situation, a foreigner cannot be allowed to enter India. No decision has been taken by the Authority in the case of the petitioner recording any reasons.”

As a result, the Court directed the respondent immigration authorities to treat the petition and additional affidavits filed by the man as his representation and take a necessary decision.

“If the request of the petitioner to enter India is refused, the same shall be with reasons and with reference to relevant legal position,” the bench noted and disposed of the plea.

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