Cal HC | “Leave India Notice” issued to Polish citizen for participating in anti-government demonstration declared to be null & void; Valid right to reside in India goes hand-in-hand with fundamental rights

Calcutta High Court: Sabyasachi Bhattacharyya, J., while setting aside an impugned order of expulsion of a polish citizen (Student)  dated 14-02-2020, stating the same to be :

“A paranoid over-reaction, contrary to the rights enshrined under Article 21 of the Indian Constitution.”

Petitioner had come to India on a student visa, which was lastly renewed till August 31, 2020. He applied and obtained a renewal of the same on 1-10-2019, valid till 31-08-2020.

It has been stated that he had received a Leave India Notice (LIN) dated 14-02-2020, allegedly in exercise of powers conferred by sub-section (2) (c) of Section 3 of Foreigner Act, 1946 by respondent 2 — Foreigners’ Regional Registration Office, Kolkata (FRRO), against which the present writ petition had been preferred.

Senior Counsel for the petitioner submitted that no hearing was given to the petitioner prior to issuance of LIN. Section 3(2)(c) read with Section 3(1) of the 1946 Act empowers Central Government to make an order inter alia providing that the foreigner shall not remain in India or in any prescribed area therein.

In the present case, LIN issued by respondent 2 could not amount to an ‘order’ passed by Central Government within the contemplation of Section 3 of the 1946 Act. Further, it was contended that decision taken against the petitioner is, on the face of it, arbitrary and without reasons.

Respondent’s counsel submitted that the petitioner being a foreigner on student visa cannot take part in any movement criticizing any act of the Indian Parliament. Such political activity has been stated to beyond the scope of such visa. Petitioner had participated in at least two political rallies.

Further, it was contended that Article 19 of the Constitution of India is applicable only to citizens of India and not foreigners.

Thus, adding to the above, he submitted that it was the prerogative of Central Government to order the expulsion of the petitioner and such order does not tantamount to deportation but is merely an expulsion.

Placing reliance on the judgment of Anwar v. State of J&K, AIR 1971 SC 337, Article 19 is not applicable to foreigners.

In Louis De Raedt v. Union of India,  AIR 1991 SC 1886, laid down the proposition that the foreigner, if expelled under the 1946 Act, does not have any right of hearing as such.

Union of India v. Ghaus Mohammad, AIR 1961 SC 1526, it was submitted that a foreigner cannot participate in political parties in India.

Petitioner’s counsel submitted that although Article 19 may be applicable only to the citizens and not specifically to foreigner, Article 14, 20, 21 and 22 of the Constitution are squarely not applicable to foreigners as well and protect their rights and liberties as envisaged therein.

Further, the Senior Counsel submits that attending any meeting was not prohibited in either the Rules framed under the Registration of Foreigners Act, 1939 or the 1946 Act.

Confidential Intelligence Report filed by the respondents was shown for the first time in court, without the petitioner being given an opportunity of hearing on the allegations placed.

Petitioner had a valid right to stay in India on the basis of the visa issued in favour of the petitioner, which could not be curtailed by an executive order, passed without any reasons.

Thus, in gist, ground for expulsion as reflected was primarily that a student visa does not allow a foreign national to get involved or speak publicly in anti-government demonstrations, which the petitioner was allegedly guilty of.

Analysis & Decision

It appears from the above stated that petitioner’s fault was that he participated in two political rallies.

Petitioner’s counsel is justified in contending that such order without any reason cannot be a vlid decision, since reason is the soul of any order and reveals the decision-making process which led to the conclusion logically from the allegations levelled, the impugned order was, in any event, not valid in the eye of law.

In a democracy like India, the rights of any authority cannot be totally arbitrary and unrestricted. The fundamental rights enshrined in the Constitution of India govern not only the Indian citizens but foreigners as well, as long as they are on Indian soil.

Basic principle of natural justice, that is, audi alteram partem, was patently violated in the instant case.

Further adding to its analysis, the Court observed that, most of the judgments cited on behalf of the respondents for the proposition that the Government had absolute discretion in the matter, pertained to illegal immigrants and/or immigrants, whose visa had expired, thereby rendering him/her a trespasser on Indian soil. However, in the present case, it is the Central Government which consented to the issuance of a student visa to the petitioner, which was subsequently renewed, lastly till August 30, 2020.

Article 19 shows that rights provided therein have been conferred upon “citizens” of India. However, such rights are not specifically excluded by the said provision in respect of foreigners.

It is evident from the language of the Constitution that Articles 14, 20, 21 and 22 apply to all human beings living in India and is not restricted to her citizens only.

All persons living in India are guaranteed the right t life and personal liberty, which, it is well-settled by judicial propositions, is not restricted to a bare existence.

Bench also stated that for a brilliant student of the academic standard of the petitioner, it is but natural that the petitioner shall have free interactions in an atmosphere of freedom with Indians, at least while in India. Such liberties, as guaranteed by the Constitution of India, do not arise from the Constitution alone but are basic rights inherent in human existence, as recognized internationally, over the edges, which are also recognized by the Constitution of India.

Indian society has all along been known as tolerant of all views, religions and creeds. Influx and intermingling of visitors and Indian citizens are a part of Indian culture.

Court adding to its conclusion stated that mere activity of participation in a political rally is included within the right to life and personal liberty and freedom of speech and expression, particularly in respect of a student with brilliant academic career, whose consciousness is above the ordinary and is required to be cultured.

Thus, Article 19 ex facie does not curtail the rights of a foreigner as guaranteed under Article 21 of the Constitution.

Article 19 is not couched in restrictive or negative language. Hence, the right to life and personal liberty, along with all associated rights, including the right to have political views and participate in political activities, as guaranteed to all persons in Indian soil, cannot be curtailed or fettered, since Article 21 acts in harmony with Article 19 and the two Articles do not cancel out each other.

Fundamental Rights of the petitioner cannot be taken away as enshrined under Article 21 of the Constitution by not being provided opportunity of hearing.

Neither the 1946 Act, nor any other statute, debars any person, be her/him an Indian citizen or a foreigner, from taking part in political activities. Such stray acts, by themselves, cannot be labelled as ‘political activity’, let alone being unlawful under any Indian statute, including the 1946 Act.

Therefore, the impugned order dated 14-02-2020 is held to be null and void. [Kamil Siedczynski v. Union of India, WP No. 4432(W) of 2020, decided on 18-03-2020]

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