Jakob Lindenthal, a German exchange student at the Indian Institute of Technology-Madras (IIT-M) in Chennai learnt it the hard way that foreigners in India do not get to exercise their freedom of speech.
He was famously photographed at protest rallies against the Citizenship (Amendment) Act (CAA) in Chennai invoking his German heritage to warn people of the consequences of marginalisation and disenfranchisement of minorities.
According to reports, Jakob was called in by the immigration department and asked to leave once he expressed his opposition to the CAA.
He even offered unconditional apologies but to no avail. He had to immediately pack up his belongings and leave or risk being forcibly deported. He chose the former.
Actions Defined by Colonial Period Laws
The Foreigners Act 1946, which is a pre-Independence law, empowers the central government to pass orders to provide for regulating the presence of foreigners in India.
Sections 3(vi) and 3(vii) of the Act specify that orders can be made for “prohibiting him from association with persons of a prescribed or specified description” and “prohibiting him from engaging in activities of a prescribed or specified description.”
The language of the section is very clear to the extent that any prohibition on association or activity can only be for something which is of a ‘prescribed or specified description.’ What it means is that such a prohibition must be explicit in nature, and not something vague or to be left up to mischievous interpretation.
The ‘orders’ referred to in the provision are to be made under the Foreigners Order, 1948, which provides that the authority may by order in writing direct that certain conditions may be imposed on a foreigner in respect of association with any person or class of persons specified in the order.
Therefore, even the subordinate legislation provides for a specific order in writing for the purpose of imposing any restriction on association. Since, the Foreigners Order is subordinate to the Foreigners Act, no order can go beyond what the main Act empowers the central government to do.
The Fear of Deportation
In Jakob’s case, in the absence of any written order prohibiting him from association with a specific group or persons, or prohibiting him from participating in a specific activity, he could not have been asked to leave the country or could not have been forcibly deported.
The fear of deportation, however, made him leave voluntarily to avoid legal complications. Considering that Jakob would have been on a S-6 visa, the only activity he was specifically prohibited was indulging in ‘tabligh activities’ which means preaching or disseminating religion or religious ideology.
Even the IIT administration stated that he was only restricted from carrying out business activities on his student visa and they were not aware of any other restriction.
Therefore, the conduct of the government in his case may not have withstood legal scrutiny.
Jakob was studying in IIT on an exchange program, which necessarily implies that an Indian student of IIT would have travelled the other way to study in Germany.
By forcing Jakob to leave, the Indian authorities have also risked the reciprocal expulsion of the Indian student(s) who are currently in Germany as a part of the program.
Likely Effect on Indians Studying in Germany
The government also failed to note, or maybe ignored, that a large number of Indian students travel to Germany for higher studies.
A 2017 report in The Economic Times stated that about 45,000 Indian students were studying in Germany, France, Switzerland etc. The website of DAAD (the program under which India and Germany exchange students) states that the winter session of 2017-18 recorded a 17-18 percent increase in the number of Indian students which stood at 17,570.
It also notes that Indians form the second largest group of international students studying in German universities with about 82 percent of them studying science or engineering.
The data therefore shows that Germany is a highly preferred destination for technical education for Indian students and the government in one single move has jeopardised their access to high quality education in that country.
This may even have a ripple effect on Indian students in other European, American and Canadian universities, not to speak of ramifications on friendly relations with these countries.
In fact, to my knowledge, no student has been deported from these countries for protesting about political issues.
One Twitter user posted that he had been arrested for protesting on the roof of the British Parliament but had not been deported for his action, and in fact now has a business visa which enables him to regularly visit the United Kingdom.
Others have also posted about their experiences and how they were never penalised for any such thing.
With the Kashmir issue being politicised globally, people have come out for and against the decision in countries which do not condone the same.
If taking a political stand deserves expulsion, then many of these non-resident Indians would be at the same risk. Or in future, if the occupant of the White House becomes unfriendly towards the Indian government, every Indian citizen who attended Prime Minister Modi’s events in New York and Texas may be asked to leave the country.
Let’s hope the issue of Jakob’s expulsion does not escalate as it may result in a major foreign policy embarrassment for the government.
(Chitranshul Sinha is a lawyer practicing in the Supreme Court. He tweets using the handle @ghair_kanooni. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)