Decide in 2 weeks if you’ll permit man convicted for possessing child pornographic material to enter India: Bombay HC to Centre

The Bombay high court (HC) on Thursday directed the central government to decide in two weeks if it would allow an Overseas Citizen of India (OCI) based in the United States of America to visit, considering he had been denied entry into the country earlier on the grounds of being “morally depraved”, as he had been convicted in the US for the possession of child pornographic material.

The division bench of justice Nitin Jamdar and justice Milind Jadhav has directed the immigration department to treat the petition filed by the man before HC requesting entry to the country, and his additional affidavits, as representation of the OCI.

The bench has further directed the immigration authorities to pass a reasoned order, with reference to its relevant legal position: whether the request of the petitioner to enter India is again refused by the authority or not.

The directive came on a petition filed by the man, a 57-year-old chartered accountant (CA) residing at Connecticut, who wants to meet his aged parents – 90-year-old father and 85-year-old mother – both of whom reside in Mumbai.

He said he had lived in India since his birth and had moved to the US in the year 1990. Thereafter, he said he had visited India a number of times, but when he landed at the Mumbai international airport on September 1, 2018, the immigration officer on duty did not permit him to exit the immigration and enter India.

He informed HC that he then made various efforts and took up the issue with Indian authorities through his lawyers to find out why he was not being allowed to enter India but did not get any response from the authorities concerned.

The immigration officer had filed an affidavit in reply to the man’s petition, stating that the petitioner’s passport was cancelled by the US authorities because in 2013, he was convicted for the possession of child pornographic material.

“As per the competent authority of the Government of India, foreigners who are morally depraved need to be blacklisted and prevented from entering India,” stated the officer’s affidavit. It added that the immigration officer had refused the entry of the petitioner to India on these grounds.

However, the petitioner’s counsel, senior advocate Dr Birendra Saraf, controverted the claims. He maintained that the 57-year-old CA holds a valid passport issued by the US Department of State.

Dr Saraf asserted that merely because of the endorsement of his prior conviction on the passport, he cannot be prevented from entering India, especially when he has already undergone the five years’ probation. The senior advocate termed the refusal “arbitrary”, claiming that there were no rules or regulations in place which prevented such entry of an individual.

In this backdrop, HC had on November 26 this year, directed the immigration officer to place on record the relevant statutory provisions, policy decision or memorandum, if any. However, no such decision was placed before the court on Thursday, prompting HC to direct the central authorities to treat the petition as representation of the petitioner and take a decision on it in accordance with prevailing rules and regulations.

“We do not find a decision by the respondent authority with reference to any policy, rules or regulations, declaring that in such a situation a foreigner cannot be allowed to enter India,” said the bench, adding, “No decision has been taken by the authority in the case of the petitioner recording any reasons.”