Case BriefsSupreme Court

Supreme Court: In an appeal relating to the assassination of Rajiv Gandhi in 1991, the division bench of B.R. Gavai and B.V. Nagarathna, JJ. has said that the conduct of all the appellants is satisfactory, thus, directed that all the appellants be deemed   to   have   served   their   respective   sentences and to be set at liberty.

In the case at hand, the appellants have been convicted for offences under the Penal Code, 1860, the Arms Act, 1951, the Explosive Substances Act, 1908, the Passport Act, 1967, the Foreigners Act, 1946, the Indian Wireless Telegraphy Act, 1933   and   the   Terrorist   and Disruptive Activities (Prevention) Act, 1987 for the assassination of the former Prime Minister of India -Rajiv Gandhi, and others on 21-05-1991.

The Court noted that out of the six, the death sentence was confirmed in the case of appellants S. Nalini,  Suthendraraja  and Sriharan, which was subsequently converted to life imprisonment on account of inordinate delay in deciding their mercy petition, and the   rest   of   the   appellants were convicted   and   sentenced   to   life imprisonment.

Further, on 09-09-2018, the State Cabinet passed a resolution recommending the release of all the appellants including   the   original   convict   A.G. Perarivalan.

The Court relied on A.G. Perarivalan v. State, 2022 SCC OnLine SC 635, where the Court while dealing with the issue that whether the Governor was bound by the decision of the State Cabinet, or he could refer the matter to the Union of India for its opinion, has held that “Governor, in the matter of remission of an appellant convicted under Section 302, was bound by the advice of the State Cabinet” and observed that indisputably, in the present case also, the State Cabinet   had   resolved   to   grant   remission   to all   the appellants.

The Court examined   the   case   of   each   of   the appellants in light of A.G. Perarivalan (supra) and said that the conduct of all the appellants was satisfactory, as some of them during the period of incarceration, have obtained degrees, did charity work and some were also suffering from various ailments. Further, the Court said that S.   Nalini,    is   a woman and has been incarcerated for a period of more than three decades and her conduct has also been found to be satisfactory.

Thus, the Court directed that all the appellants be deemed   to   have   served   their   respective   sentences and to   be   set at liberty.

[R.P. Ravichandran v State of Tamil Nadu, Criminal Appeal No.  1974   of 2022, order dated 11-11-2022]


Senior Advocate Sanjay Hedge, Advocate G. Ananda Selvam, Advocate Thiru Murugan, Advocate S. Muthu Krishnan, Advocate-On –Record P. Soma Sundaram, Advocate Arunagiri, Advocate Kishor Hussain, Advocate G. Ananda Selvam, Advocate G Muthu, Advocate Sanchit Maheshwari, Advocate Mayilsamy. K, Advocate Raghav Gupta, Advocate Shahrukh Ali, Advocate Mahabir Singh, Advocate-On –Record Anand Dilip Landge, Senior Advocate Rakesh Dwivedi, Additional Advocate General V. Krishnamurthy, Additional Advocate General Amit Anand Tiwari, Advocate-On –Record Joseph Aristotle, Advocate S. Shakeena A.G., Advocate Eklavya Dwivedi, Advocate Monika Dwivedi, Advocate Devyani Gupta, Advocate Tanvi Anand, Advocate Nupur Sharma, Advocate Shobhit Dwivedi, Advocate Vaidehi Rastogi, Advocate Sanjeev Kr. Mahana, Advocate Vaidehi Rastogi, Advocate Riha Vishwakarma, Senior Advocate Gopal Sankaranarayanan, Advocate N. Chandrasekaran, Advocate Prabu Ramasubramanian, Advocate Shivani Vij, Advocate Alagu Raja Bharathi. B, Advocate Bharathimohan. Advocate Priya R, Advocate S. Sabari Bala Pandian, Advocate Avinash Kumar, Advocate-On –Record T. Harish Kumar

Apoorva Goel, Editorial Assistant has reported this brief   

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: A Division Bench of Manojit Bhuyan and Hitesh Kumar Sarma, JJ. upheld the ex-parte order of the Foreigners’ Tribunal and dismissed the writ petition.

In the present appeal, the petitioner assailed the ex-parte order passed by the Foreigners’ Tribunal declaring him to be a foreigner, having illegally entered into India after March 1971. The petitioner responded to the notice issued by the Tribunal and appeared in November 2014 and prayed for time to file a written statement. Thereafter, 11 occasions were afforded to the petitioner, but he continued remaining absent without any steps. In such a situation, an adverse view was taken by the Tribunal and the impugned ex-parte order/opinion was rendered.

The Court taking note of the several opportunities granted to the petitioner and his continuous absence made a noteworthy observation;

“In this context, we may observe that although the procedure of identification and for declaring an individual to be a foreign national cannot be relegated to a mechanical exercise and that fair and reasonable opportunity must be afforded to a proceedee to establish claim that he/she is a citizen of India, however, such grant of opportunity cannot be enlarged to an endless exercise. If a person who is not diligent or is unmindful to take steps to safeguard his interest, he does so at his own risk and peril.”

The Court further pointed out certain pertinent aspects in deciding the primary issue for determination, whether the proceedee is a foreigner or not under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964.

  1. The burden of proving citizenship absolutely rests upon the proceedee, notwithstanding anything contained in the Indian Evidence Act, 1872 as mandated under section 9 of the aforesaid Act, 1946.
  2. The above-mentioned position would not change even in an ex-parte proceeding before the Tribunal as the burden never shifts but continues to be upon the proceedee.
  3. In a situation where no evidence is adduced or the burden is not discharged, the only option left to the Tribunal would be to declare the proceedee to be a foreigner, based on the grounds of reference upon which appropriate proceeding was initiated, where notice was issued and duly served upon the proceedee.

The Court stressed the fact that in the instant case, the petitioner utterly neglected to participate/contest in the proceedings. Further, the Court also emphasised that the scope of interference under Article 226 of the Constitution of India to a decision of the Tribunal is limited to correcting errors of jurisdiction or when the decision is made by the Tribunal without giving opportunity of hearing or when judgment is rendered in violation of the principles of natural justice or where there appears to be an error apparent on the face of the record. In the present case, the Court concluded that none of the above-mentioned grounds existed in the case.[Sadar Ali v. Union of India, 2020 SCC OnLine Gau 3673, decided on 31-08-2020]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: T.V. Anilkumar, J. quashed the final police report against the petitioner which implicated him for offences under the Foreigners Act, 1946.

The petitioner, a British citizen with a British passport, landed in India at the International Airport, Thiruvananthapuram in February 2009.  The allegation against him was that contrary to the place of stay mentioned in the arrival card and handed over to the immigration authorities, he occupied a different hotel in Kollam and violated the relevant Rules and committed an offence punishable under Section 14 of the Foreigners Act, 1946.

The petitioner contended that even though he occupied a hotel different from what he had mentioned in the arrival card, he could not be imputed with any criminal liability inasmuch as he was holding a valid visa for the period in question.

The petitioner further contended that there were no allegations against him that he had committed any offences relating to national integrity or security affecting the country.

Rule 6 of the Registration of Foreigners Rules, 1992 which is very relevant in this context provides that a foreigner entering India shall submit a report to the Registration Officer specifying the details of stay which, however, is not necessary in respect of a person who is holding a valid visa for a period not more than 180 days and who does not remain in India beyond the said period.

The Court agreed with the contentions of the petitioner and reiterated that he was indeed a holder of a valid visa for his stay. Further, the mere change in hotels is in no way against the provisions of the Foreigners Act, 1946 or the Foreigners Rules, 1992.[Ahammed Muhammed Al Jalak v. State of Kerala, 2020 SCC OnLine Ker 3178, decided on 11-08-2020]

Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit, J., quashed the criminal proceedings against 9 foreign nationals belonging to the Tablighi Jamaat while directing FRRO to issue exit permits with imposing a fine and the undertaking to not visiting India for next ten years.

Present petitions challenged the initiation of criminal proceedings inter alia under the provisions of the Foreigners Act, 1946 for the violation of VISAS in question.

Counsel for the petitioner contended that the initiation of criminal proceedings is on a wrong assumption of a jurisdictional fact namely the nature of VISA.

Further, he added that the State is proceedings on a demonstrably wrong premise that the VISAS in question are all Tourist VISAS when they are not.

Central Government holds the power to relieve the foreigners of the criminal action after accepting the fine amounts in terms of the extant norms and therefore, that benefit needs to be extended to the accused.


Bench observed that there is no dispute as to the 9 of the 16 accused being foreigners who gained entry to India on the basis of VISAS in question.

Section 14 of the Foreigners Act, 1946 criminalizes violation of the conditions of VISA and prescribes punishment of imprisonment that may extend to 5 years and also unlimited fine.

Hence in view of the above, the case thus only revolves around one factor namely the nature of VISA.

Accused’s travel documents show that the VISAS in question granted to them answer the description of and bear the nomenclature “e-Tourist Visa”.

“E-VISAS are granted only for the specified purposes and not granted for any other purpose, the missionary activities such as propagation of religion, participating in religious congregation and proselytization are not entitled as the permissible activities.”

Adding to the above, the Court stated that there is no specific prohibition in the Visas in question for preaching religious principles in the Tablighi congregation, hence what is not provided for in the Visa, is deemed to be impermissible.

Court held that there is absolutely no justification for the allegation of the petitioners that the criminal proceedings initiated by respondent-police, with the prejudice generated by the Media propaganda and for the statistical purpose of the State, there is no iota of material for entertaining such baseless grievance.

Bench laid down the following directions:

  • FRRO is directed to issue exit permits to the petitioners and ensure their exit from the country.
  • Petitioners shall pay the fine amounts and file an undertaking to the effect that they would not visit this Country within the next 10 years.[Farhan Hussain v. State, Criminal Petition No. 2376 of 2020, decided on 05-08-2020]
Case BriefsHigh Courts

Karnataka High Court: While deciding the instant petition, wherein the petitioners have been charged with offences under Sections 14A and 14B of the Foreigners Act, 1946, Section 25 of the Indian Arms Act, 1959 and Section 34 of the Aadhar Act, 2016, K.N. Phaneendra, J., laid down certain guidelines in order to deal with the issues arising due to the prolonged stay of illegal immigrants facing proceedings under the Foreigners Act, 1946. 

As per the facts of the case, the accused persons allegedly migrated from Bangladesh and have been staying in India without passport/ visa or any proper documents provided by the competent authorities. It was also alleged that the accused persons have obtained Aadhar Cards using illegal means. The counsel for the petitioners C. Mohammad Pasha and the Government Pleader, Rohith B.J., both of them submitted that there is no decision that spells out any specific ground upon which bail can be granted to individuals such as the accused persons. They further pointed out that there are no guidelines which have been made to regulate the stay of such persons who have come to India without passport/visa.

Perusing the submissions laid down by both the parties, the Court pointed out that though the instant matter is a simple bail matter, but the issue involved is important enough to for the Court to take notice. The Court pointed out that it is a very difficult task to lay exhaustive guidelines in the matter, but it will nevertheless try to address the ‘grey areas of law’ in the current matter. 

Some of the important guidelines laid down by the Court  are as follows-

  • In case a foreign national is arrested under the provisions of Foreigner’s Act and such individual does not possess passport or visa or possesses expired visa, then immediate proceedings shall begin to deport such individual. The jurisdictional police must right away inform the competent authorities to start the deportation proceedings.
  • If the foreign nationals fail to obtain bail in any criminal case, then they should be kept in normal jail till the disposal of the case.
  • If the foreign nationals are granted bail/ anticipatory bail under and their offences are under the Foreigners Act and other such laws, then such individuals shall be kept in detention centres till the time they are not deported to their mother country.
  • In the event a foreign national ends up being convicted, then they shall be kept in the regular prisons till they serve their sentence. After that they shall be kept in detention centres till the time they are not deported.
  • If the foreign national is acquitted, and their nationality is in dispute before the competent Tribunal, then they shall be kept in detention centres from where they shall be deported, unless they have any right which entitles them to remain in India.
  • The public prosecutors and the defence counsels shall try their best to expeditiously deal with such cases.
  • The Central and State Governments shall take all requisite steps to establish sufficient number of detention centres.
  • In case the foreign national/ accused is a woman or a child or a woman having a child, then the competent authorities have to follow the guidelines laid down in R.D. Upadhyay v. State of A.P., (2007) 15 SCC 360, and the specific statutory provisions. If the mother is in custody with an infant below or upto the age of 6 years then the Court may allow the child to accompany the mother in custody. In the event either of the parents are arrested, then the custody will be granted to the parent who is not arrested; if both the parents are under arrest, then the custody shall be given to their close relative or government shelter home as per the provisions of Juvenile Justice (Care and Protection of Children) Act, 2015.
  • If the foreign national is an illegal immigrant who has been involved in a criminal offence under any law other than the Foreigners Act, 1946, then the Centre and State Governments shall take immediate actions with proper application of their mind. In case, the offences committed are not heinous in nature, then the Governments may withdraw those cases under Section 321 of CrPC and start the deportation process as soon as possible.

   [ Babul Khan v. State of Karnataka, Crl. P. No. 6578 of 2019, decided on 19-05-2020]

Op EdsOP. ED.

Articles 10[1] and 11[2] of the Constitution of India permits Parliament to make provisions in the matters of citizenship. Using this power Parliament had enacted the Citizenship Act, 1955 and a special law for Assam titled the Immigrants (Expulsion from Assam) Act, 1950.

There was a massive influx of illegal immigrants from Bangladesh (formerly East Pakistan) into the State of Assam. This lead to social and political conflict in the border State of Assam. In 1985, Assam Accord was signed between the Government and leaders of Assam agitation. It brought the first amendment of the Citizenship Act[3] and thereby Section 6-A was inserted in the Act.

Section 6-A divided the illegal immigrants of Indian origin (i.e. those whose parents or grand-parents were born in undivided India) into three groups:

  1. Those who entered into the State before 1966 were deemed to be the citizen of India.
  2. Those who entered into the State between 1966 to 25-3-1971 (official date of announcement of the Bangladesh war) were deemed to be citizens but their names were deleted from the electoral rolls. This was done because the political parties in order to increase their vote bank were giving citizenship arbitrarily to every immigrant without NRC (National Register of Citizens).
  3. Those who entered into the State after 1971 were to be detected and deported in accordance with the law.

To detect the illegal immigrants in the State of Assam, Parliament passed the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act), two years before the Assam Accord. Under the Act the Government framed the Illegal Migrants (Determination by Tribunals) Rules, 1984 (IMDT Rules). The Act and the Rules taken together, made some departure from the procedure under Foreigners Act, 1946 and Foreigners (Tribunals) Order, 1964 which was applicable for whole India.

IMDT Act and Rules were challenged before the Supreme Court in Sarbananda Sonowal v. Union of India[4] and the Court held the Act and the Rules to be unconstitutional. Thereafter, the Tribunals under IMDT Act ceased to function and statutory regime reverted to Section 6-A of the Citizenship Act, the Foreigners Act and the Foreigners (Tribunals) Order.

Section 6-A of the Citizenship Act was challenged before the Supreme Court in Assam Sanmilita Mahasangha v. Union of India[5]. A two-Judge Bench of the Supreme Court (Justice Ranjan Gogoi and Justice R.F. Nariman) framed 13 questions of law and passed it to Constitution Bench under a referral order under Article 145(3)[6]. The first issue raised in the referral order is:

Whether Articles 10 and 11 of the Constitution of India permit the enactment of Section 6-A of the Citizenship Act inasmuch as Section 6-A, in prescribing a cut-off date different from the cut-off date prescribed in Article 6, can do so without a “variation” of Article 6 itself; regard, in particular, being had to the phraseology of Article 4(2) read with Article 368(1)?

Under Article 6 of the Constitution, a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India if he, or either of his parents or any of his grandparents, was born in undivided India and in addition, has fulfilled either of the following two conditions:

  1. in case he migrated to India before 19-7-1948[7], he had been ordinarily resident in India since the date of his migration; or
  2. in case he migrated on or after 19-7-1948, he had been registered as a citizen of India.

A person could be so registered only if he had been resident in India for at least 6 months preceding the date of application for registration.

The migration envisaged in Article 6 only means coming to India from outside and it must have taken place before, and not after the commencement of the Constitution.

Section 6-A of the Citizenship Act provides cut-off date for the entry into the State of Assam different from that provided in Article 6 of the Constitution. Thus, there posed a conflict between Article 6 and Section 6-A as Section 6-A is said to be contradictory to Article 6.

The main point to be considered is that whether Articles 10 and 11 of the Constitution empowers Parliament to make provisions contrary to the provision of the Constitution without an amendment to the constitution itself.

Section 6-A was inserted by an amendment to the Citizenship Act but there was no amendment of the Constitution w.r.t. variation of Article 6 for the enforcement of Section 6-A.

Articles 2 and 3 of the Constitution states about the territory. If we go by literal interpretation of the word “territory” it means the geographical area under the jurisdiction of a sovereign State. State includes both territory as well as population. Any law made for a territory is directly related to the people residing over the territory. There can be no existence of a territory without the existence of living flesh in that territory. Thus, it may be said that territory does not only include the land but it consists of all living creatures residing in the territory.

A territory is a combination of both land and living creatures residing over there. Article 6 provides for rights of the citizenships of certain persons who have migrated to the territory of India from the territory now included in Pakistan. Articles 2 and 3 talks about territory w.r.t. land. As territory includes both land as well as living creatures, it can be said that Article 6 stands on the same footing as Articles 2 and 3.

Since Articles 2 and 3 are immunised from the constitutional amendment under Article 368(1)[8] by virtue of Article 4(2) then Article 6 shall also come under the scope of Article 4(2) and shall be immunised from the amendment under Article 368(1) of the Constitution. If this interpretation is true it may be said that Article 6 of the Constitution need not to be amended and no such law made thereunder shall be deemed to be an amendment of the Constitution.

Section 6-A of the Citizenship Act may be said to be an expansion of the Article 6 of the Constitution considering the socio-economic conditions of the country. And in enforcement of Section 6-A there is no requirement of the amendment of the Constitution.


*Assam Sanmilita Mahasangha v. Union of India, (2015) 3 SCC 1.

Ekta Rai is a first year student at National University of Study and Research in Law, Ranchi.

[1]  Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.

[2]  Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to acquisition and termination of citizenship and all other matters relating to citizenship.

[3]  Citizenship (Amendment) Act, 1986.

[4]  (2005) 5 SCC 665.

[5]  (2015) 3 SCC 1.

[6] The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five:

Provided that, where the Court hearing an appeal under any of the provisions of this Chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.

[7]  On this date, the influx from Pakistan (Control) Ordinance introduced a permit system to control the admission into India of persons from West Pakistan.

[8]  Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.

Case BriefsHigh Courts

High Court of Himachal Pradesh: The Bench comprising of Sanjay Karol, Acting CJ and Sandeep Sharma. J, held that in circumstances where a foreign national, whose application for extension of visa has been rejected, has no right to endlessly stay in India, except under the procedure established by law.

The petitioner’s application for the further extension of visa was rejected by the Ministry of Home Affairs, after granting an extension for an year and eight months. The High Court observed that there is no rule which prescribes automatic extension of visa and no law authorizes a foreigner to remain on the soil of this country any moment longer than the period so authorized, in accordance with law, be it for whatever purpose. The Court relied upon statutory provisions under the Foreigners Act, 1946, the Foreigners Order, 1948; the Registration of Foreigners Act, 1939; and the Registration of Foreigners Rules, 1992, authoritative books on International Law and existing case laws of Sarbananda Sonowal  v. Union of India, (2005) 5 SCC 665 and Louis De Raedt v. Union of India, (1991) 3 SCC 554 to reach its verdict.

The learned counsel for the petitioner referred to the decisions rendered by the Supreme Court to establish his right of continuing to stay in India. The Court noted that these decisions were not applicable to the case present before them. Further, the petitioner’s contention to continue his stay in India for taking care of an allegedly ailing citizen of India,of whom he claims to be the adoptive father, was dismissed for the lack of evidence. Considering the facts of the case and lack of merit in the writ petition, the case was accordingly dismissed.

The Court held that neither the Constitution nor any statute allows a foreigner to remain in India beyond the authorized period, except under the procedure established by law, be it for whatever purpose. [M. Alexander v. Union of India, 2017 SCC OnLine HP 668, decided on 17.05.2017]