Case BriefsHigh Courts

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]

Case BriefsHigh Courts

Meghalaya High Court: The Bench of S.R. Sen, J. allowed a writ petition challenging cancellation of tender for procurement of Assam Rifles.

In the present case, the petitioner was declared a successful bidder in a tender for procurement of ‘coat combat disruptive for Assam rifles’. But his tender was cancelled by the authorities all of a sudden without providing him with the opportunity of hearing stating the ground as ‘administrative difficulties’. 

Respondent’s contention was that the petitioner had tried to mislead it by submitting two samples – an advance sample and a final sample. The advanced sample was acceptable but when the final sample was furnished, it was found that it was totally different from the advanced sample. Therefore, the entire bidding was cancelled and the authority called for re-tender. 

The Court, after considering facts of the case, disposed of the petition holding that if respondent wanted to go for re-tendering, it was liberty to do so; but the petitioner had to be given an opportunity of being heard before canceling tender on the ground of mismatch or any other grounds.[Hanumanbux Umadutt v. Union of India, 2018 SCC OnLine Megh 290, decided on 20-12-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission: The National Commission, through a Bench comprising of Anup Kr Thakur, Presiding Member and C. Vishwanath, Member allowed the revision petition and set aside the order passed by the State Commission in the present case.

The present case was filed by the respondents in the District Commission against the petitioners for an award of compensation to the tune of Rs 50,000 for the physical, mental and financial pain which was inflicted and Rs 20,000 legal expenses which had been incurred. The respondents had given a laptop for repair to the petitioners, who after having given an assurance of the timely repair of the laptop, subsequently did not respond to the correspondences of the respondents, nor did they complete the repair. The District Commission gave the respondents Rs 15,000 in compensation and Rs 5,000 for legal expenses, to which a revision petition was filed to the State Commission. The State Commission dismissed the appeal due to non-appearance of the petitioners. In the present revision petition before the National Commission, the petitioners have argued that due to certain pressing reasons, such as the resolution passed by the Bar, calling for all lawyers to abstain from work, illness, and incorrect date being mentioned on the cause list by the reader, the petitioners were not able to appear before the State Commission.

The National Commission held that the non-appearance before the State Commission was not deliberate and, as there were sufficient reasons for the absence of the petitioners, it is in the interest of justice that he be heard, otherwise his position in law will be severely prejudiced. Accordingly, it was decreed by the National Commission that the order passed by the State Commission be set aside, and the State Commission was to hear both the parties in the appeal and decide on merits. [Multycare Solutions v. Malay Bhaumik, 2018 SCC OnLine NCDRC 404, order dated 03-10-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: The Court recently dealt with a petition under Section 482 CrPC praying for quashing of complaint against petitioner under Sections 195 and 211 IPC that is, for fabricating false evidence and false charge of offence with an intent to injure, respectively.

In a case titled State v. Sanjay, relating to FIR No. 432 dated 14.06.2010 under Sections 376(2)(g), 366, 120-B and 506 IPC, a show-cause notice was issued by the court to the petitioner for prosecuting her for the commission of the offence under the abovementioned provisions in January, 2015 ordering the complaint to be filed against her in the Court of CJM, Rohtak. However, this order was set aside on appeal with an observation as well as an instruction that the petitioner be allowed to file the reply to show-cause notice.

Petitioner filed reply praying that she may be forgiven by having pity on her, so that her future career is not spoiled and notice in hand may kindly be withdrawn. Not convinced with this reply, the Court passed the order in September, 2015 for filing the complaint. So, a complaint was filed by the court praying for the quashing of which the present petition has been filed.

Considering the chain of facts and highlighting the reply filed by the petitioner to the notice under S. 340, the Court clarified that there was nothing illegal in it and did  not amount to miscarriage of justice at all, for the opportunity of being heard was given to the petitioner as she was allowed to file reply to the show-cause notice. It is the non-acceptance of the forgiveness sought that has led to the filing of complaint in the Court. Inderjit Singh, J accordingly held that there is no merit in the case and accordingly, dismissed the petition. [Meenakshi v. State of Haryana, 2017 SCC OnLine P&H 1643,  decided on 04.05.2017]