Manya Dudeja & Akshita Rohatgi
Introduction
Filippo Osella boarded expectantly, a 36-hour flight from London to Kerela on a research visa to speak at a conference. At the airport, he was called by the immigration official, seemingly for routine checks and informed that he would not be exiting the airport rather deported back immediately. The preparations for deporting him back were already made, indicating that the decision was premeditated. Attempts to understand the reasoning behind the decision of deportation did not materialize. More such examples are the cases of Jacob Lindenthal, a German student, and member of Amnesty International, an organisation critical of human rights abuses in India and a Norwegian tourist in Kochi.
These instances show a pattern of the Union Government using its powers of visa revocation extensively, especially with respect to non-citizens. Their decision is often devoid of any substantial reasoning and, in some cases, none at all. This article examines the fundamental rights of non-citizens in interacting with the Indian State, the law involved, the Court’s viewpoint and the fundamental rights of non-citizens vis-a-vis the trend of arbitrary revocation of their visas by the Union Government. Additionally, the article attempts to underline the various provisions of law involved and how Courts change standards to construe which acts are ‘arbitrary’.
Article 14 and Article 21 of the Constitution guarantee fundamental rights to non-citizens by providing them equality before the law and equal protection of the laws and also the right to life and liberty.
The Passports Act, 1920 provides that every foreigner entering India must have a valid national passport or any other globally recognised travel document establishing their nationality and identity. Section 10 of the Act empowers the Passport Authority to vary, impound, and revoke passports and other travel documents. As per Section 10(3)(e), and (h) the Passport Authority may impound, cause to be impounded or revoke a passport or travel document. Section 10(3)(c) allows revocation of a travel document if the passport authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public. An order made under 10(3)(c) is subject to judicial review on natural justice violation, mala fide, ultra vires, and unconstitutionality.
Section 10(5) restricts the Authority’s otherwise unfettered powers, holding that it shall record in writing a brief statement of the reasons for making an order or varying the conditions of a passport or travel document under sub-section (1), or an order impounding or revoking a passport or travel document under sub-section (3), and furnish it to the holder of the passport or travel document on demand, unless, in any situation, the Passport Authority determines that it will be detrimental to India’s sovereignty and integrity, as well as its security. To provide such a copy is subject to India’s good ties with any foreign government or in the general public’s interest. The right to withhold reasons under Section 10(5) should be used sparingly, and the general public’s interests should be current, not future.
In Maneka Gandhi v. Union of India, the Court held that before impounding a passport, the principles of natural justice, including hearing the other side, i.e., audi alterem partem must be followed. It observed that Article 14 strikes at the arbitrariness in State action. This was taken forward in Delhi Transport Corpn. v. D.T.C. Mazdoor Congress where the Apex Court held that it is unreasonable to argue that any competent authority would be vested with wide discretionary power. The lack of proper guidelines or procedures is inappropriate given the march of law made by Article 14, especially after the Maneka Gandhi case.
Unrestricted Rights of Deportation
The progressive legal spirit towards ensuring accountability of state authorities seemed to reverse in the 1991 case of Louis De Raedt v. Union of India. Here, two foreign nationals having proper documents, and engaged in missionary work arrived in India in 1937 and 1948, respectively. Even though living in India continuously, an extension of their stay was denied in 1987, and they were ordered to leave the country. The Supreme Court held that the Indian Government’s ability to remove foreigners is absolute and unfettered, with no provision in the Constitution limiting its discretion. Thus, the executive had unrestricted power to expel foreigners.
In State of Arunachal Pradesh v. Khudi Ram Chakma, it was determined that a foreigner’s fundamental right to life and liberty is limited to Article 21. Article 21 excludes the right to reside and stay in India which is instead covered by Article 19(1)(e), applicable only to the citizens of India. The Court observed that persons dwelling in the territories of nations of which they are not nationals have a distinctive status under international law. Thus, States reserve the power to exclude them from their territory and deny them certain rights that their citizens enjoy.
This was followed in various cases. In the coming years, Indian courts consistently held that the government had limitless authority to deport a foreigner for any reason it saw fit. In Sarbananda Sonowal v. Union of India (2005) it held that no foreigner can stay in India as a matter of right, and the government could deport them at its will.[1] A foreigner could claim life and liberty under Article 21, but the right to remain and settle in India, as granted by Article 19(1)(d) is only open to Indian citizens, not non-citizens.
Curtailment of Arbitrary Powers
The progressive stand of the court was restored in the landmark case of Hasan Ali Raihany v. Union of India. The petitioner who was born in India to Iranian parents, educated in India and intended to stay in the country had his visa cancelled and was deported to Tehran without any reasons ascribed. This unexpected expulsion was a source of contention, especially given that permission to re-enter had been granted in his favour. The petitioner argued that the authorities planning to deport him had a legal obligation to inform him of the reasons for his deportation.
The petitioner relied on the decision of the Apex Court in the National Human Rights Commission v. State of Arunachal Pradesh to argue that he cannot be thrown out of this country because he was born here and has lived here for many years and has not sneaked into the country with some hidden agenda. His application for Indian citizenship is still pending. Thus, even if he’s not an Indian citizen, he should be informed about the reasons behind his deportation.
The Court held that since the petitioner entered this country legally on the single entrance visa provided, the competent authority should inform him of the reasons for his deportation. The petitioner must be allowed to state his case against his proposed expulsion so that the competent authority may then evaluate his representation and issue an appropriate order. However, the Court noted that this approach may be deviated from for compelling national security reasons, etc.
In Mohammad Abdul Moyeed v. Union of India, the Calcutta High Court held that not every violation of a visa rule can result in a person being barred from entering the country unless there is evidence that the person in question acted in a way that was detrimental to our national interests. The present case seemed to be profiling someone purely on the basis of their religious beliefs, which goes against the basic tenants of the Constitution of India. No material was presented to show that the petitioner was detrimental to national interests, and thus, it was not a valid justification for barring the person.
Relationship with Fundamental Rights
In Kamil Siedczynski v. Union of India, the petitioner, a student studying South Asian culture and heritage on a valid visa to the country allegedly attended a political rally against a recently enacted law, after which his visa to India was revoked. The same was done without providing the petitioner with an opportunity to defend himself against specific allegations made against him.
The Court recognised the petitioner’s right under Article 21 of the Constitution and stated that in the absence of any specific charge levelled against the petitioner, the petitioner’s valid visa could not be revoked. Unless and until valid reasons consistent with the provisions of Article 21 of the Indian Constitution are disclosed, such rights as conferred by a visa cannot be revoked in any way by expelling the petitioner on the pretext of ‘political activity’. Neither the 1946 Foreigners Act nor any other statute prohibits any person, whether an Indian citizen or a foreign national, from participating in political activities. The petitioner was merely accused of attending a rally, albeit as a bystander, and expressing certain political opinions to the press. By themselves, such stray acts cannot be classified as ‘political activity’, much less as being illegal under any Indian statute, including the 1946 Act. The discretion conferred on the Central Government by Section 3 of the 1946 Act cannot be unfettered and arbitrary unless expressly stated in the Section itself.
The Court held the contested order as an overreaction that violates the rights enshrined in Article 21 of the Indian Constitution. The process by which the decision was reached is patently in violation of the fundamental rights guaranteed by Article 21 of the Constitution and violates the principle of audi alteram partem. Whatever powers are conferred on the government, the necessity of disclosing reasons for curtailing valuable rights already accrued in favour of the petitioner cannot be dispensed with. Without any justification, the order under challenge cannot be valid in light of the petitioner’s visa’s continued validity. The Court reversed the order of the petitioner’s expulsion in light of Article 19, 21, the basic fundamental rights of foreigners, and the principles of natural justice.
The Court expanding the protection conferred upon non-citizens by Article 19, stated that though it confers rights on ‘citizens’ of India; such rights are not expressly excluded from foreigners. In the event that a person’s right to life, liberty, and associated rights are curtailed by any government action, the action is always subject to judicial scrutiny under the standard of fundamental rights guaranteed by the Constitution. A person’s right to life or personal liberty cannot be curtailed except pursuant to a court order and the Constitution does not limit the application of Articles 14, 19, 20, 21, and 22 to Indian citizens only. These rights apply to all persons residing in India, whether citizens or foreigners. No restrictive or negative language is used in Article 19. Thus, all persons on Indian soil are guaranteed the right to life and personal liberty, as well as all associated rights, including the right to hold political opinions and engage in political activities.
The right to life and personal liberty conferred by Article 21 do not refer solely to bare existence and meaningless liberty. The terms ‘life’ and ‘personal liberty’ encompass the basic necessities and amenities necessary to live a life worthy of human existence, as well as the liberties associated with them. These rights are not derived solely from the Indian Constitution but are fundamental rights inherent in all human beings as recognised by the United Nations.
In light of the petitioner’s knowledge of political situations and socio-cultural issues in South Asia, it would be an unreasonable restriction on the petitioner to prohibit him from participating in political rallies. Unless such participation constitutes sedition or any other Indian law-enforced offence, even if admitted, such facts cannot be of such a nature as to entitle the Central Government to revoke the petitioner’s valuable visa rights by expelling him from India. Article 21 complements Article 19, they do not cancel each other out. Rights and fundamental liberties conferred on individuals lawfully residing on Indian soil cannot be said to have been withdrawn simply by conferring certain fundamental rights on Indian citizens only.
In today’s globalised and borderless world, laws are to be formulated keeping temporary residents in mind. Though in a limited capacity, the Constitution protects non-citizens by guaranteeing the right to equality under Article 14 and the right to life and personal liberty under Article 21.
When state authorities act in a manner that threatens these rights, people look up to courts for redressal. Using the ‘non-citizen’ argument to divest people of basic natural rights could be counter-productive to India’s attempt to become a world leader.
The court’s course correction in Hasan Ali Raihany and recognition of the right to equality and application of natural justice to non-citizens was a welcome step. In Kamil Siedczynski, the Calcutta High Court took this approach forward by giving a wide interpretation of Articles 14 and 21. It considered the petitioner’s academic background in the study of South Asian culture and saw the restriction from participating in protests as a derogation of Article 21, thereby checking the state’s powers.
The approach, however, still awaits the Apex Court’s affirmation in light of the arbitrary withdrawal of non-citizens’ rights. A set of directions curbing the misuse of terms like ‘national security’ and ‘public order’ and elaborating on circumstances in which visas can be revoked would go a long way in the prevention of arbitrariness.
[1]Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665 at page 693; Hans Muller of Nuremberg v. Superintendent, Presidency Jail, Calcutta, AIR 1955 SC 367; Gilles Pfeiffer v. Union of India, 1996 Writ LR 386; David John Hopkins v. Union of India, AIR 1997 Mad 366
Manya Dudeja & Akshita Rohatgi are 3rd-year law students at the USLLS, Guru Gobind Singh Indraprastha University (GGSIPU), Delhi
Image Credits: The Economic Times
Constitutional Law Society 
Leave a Reply