R.I.Jebaraj vs Union Of India

The petitioner is a citizen of India residing at Madras. His brother by name Mr.Rajiah John Premkumar was born and brought up in India. Later, he acquired citizenship of France and admittedly, he is no more a citizen of India. He resides in France. He holds French Passport bearing No.03TF 750 95. Most of his relatives and family members reside in India. He has got a valid multiple entry visa dated 03.11.2003 issued by Indian High Commission in London, which expired on 02.11.2008.

2. Mr.Rajiah John Premkumar came to India by flight No.LH 758 on 19.02.2008. But his landing at Chennai Airport was refused by the second respondent. He was served with an order of the second respondent directing the airport authorities to remove him by the same flight. Accordingly, he was deported to France by the same flight. The petitioner came to know that the first respondent had earlier issued an order restricting the petitioners brothers entry into India without prior permission from the first respondent. However, the said order of the first respondent was not served on the brother of the petitioner.

3. Thereafter, the petitioner filed Crl.O.P.No.6511 of 2008 under Section 482 Cr.P.C., before this Court challenging the said order of the second respondent. When the matter was listed for final hearing, the second respondent produced the circular order of the first respondent in Prior Reference Category (S.1) Circular No.1/96 dated 03.10.1996 directing that visa or transit visa for India in favour of the brother of the petitioner should not be granted without prior reference to the Government of India. The said circular is under challenge in this writ petition.

4.The following are the main grounds raised in the writ petition:

i.The impugned order lacks prudence and the same was passed without application of mind; further, there are no grounds satisfying para 3 of the Foreigners Order 1948 impelling the first respondent to issue such an order.

ii.The impugned order came to be passed in violation of principles of natural justice and the same further violates Article 14,19, 21 and 22 of the Constitution of India.

iii.The impugned order is a non-speaking order which does not assign any reason much less a proper reason for restricting the entry of the brother of the petitioner into India. Though the impugned order is stated to have been passed in the year 1996, subsequently, the petitioners brother visited India on several occasions which had caused no prejudice to the interest of the nation and its security. The impugned order was not implemented for several years which would show that there could be no reason to restrict the petitioners brothers entry into India.

5. In the counter filed by the second respondent it has been contended as follows:

i).It is true that the petitioners brother was born and brought up in Chennai and later, he became a French National holding a French Passport. On 16.04.1995, under an entry visa, he came down to India along with one Rev.Gunther Bright of German who had a tourist visa. They attended a Christian conference organized by one Pastor M.Ananda Rao and Sharrow Ministers Union at Tadepalli Mandai, Guntur District, Andhra Pradesh. In the said conference, the petitioners brother abused Hindu Gods, toured pictures of Hindu Gods, trampled upon them and later burnt them. The others in the conference were also induced to do so. The entire incident was covered in a video film. In respect of the said conference, a case in Crime No.53 of 1995 was registered on the file of the Tadepalli Police Station under Sections 295 and 503(3) I.P.C., against Paster M.Ananda Rao and others. Charge sheet in the said case was laid by the police on completing investigation on 12.05.1995 before the learned Judicial Magistrate of I Class, Mangalagiri, Guntur District against Pastor Ananda Rao alone. In the mean while, the petitioners brother rushed back to Chennai. The charge sheet was subsequently returned by the learned Judicial Magistrate directing to clarify as to why the others involved in the offence were not arrayed as accused. Since the petitioners brother and Mr.Gunther Bright left for London on 19.07.1995 and on 31.07.1995 respectively, they could not be brought to Court to face the prosecution. Thereafter, the learned Judicial Magistrate took cognizance of the offence in the case against Pastor M.Ananda Rao in C.C.No.77 of 1995. However, the case ended in acquittal.

ii)In view of the above occurrence which created unrest and dis-harmony among two religions, the Bureau of Immigration recommended to the first respondent to issue a ban for future entry of the petitioners brother and Mr.Rev.Gunther Bright. Based on the said recommendation the first respondent issued the impugned circular in the interest of the Nation's security, peace and harmony. The circular stipulates that the petitioners brother and others narrated in the circular should not be allowed to enter India even on the strength of valid passport without prior clearance of the Government of India.

iii)The counter further proceeds to say that the petitioners brother had knowledge of issuance of the impugned circular even in 1996. To circumvent the same, he obtained a new French Passport bearing No.03TE75095 from Senlis, France on 13.10.2003 in the name of Johan Rajiah S/o Rajiah and came to India on several occasions between 2006-2007 by securing multiple entry visa from the High Commission of India at London. Though the petitioners brother claims to be a French citizen, he had obtained visa from the Indian High Commission at London without approaching the Indian Embassy at Paris, for the reasons best known to him. Since the petitioners brother had used the Passport in the different name, namely, in the name of John Premkumar Rajiah S/o Rajiah his entry into India could not be noticed and prevented. Thus, he had cheated the Government and entered India on several occasions. Therefore, the contention of the petitioner that the petitioners brother was allowed to enter India during the interregnum period and the impugned was not implemented cannot be accepted.

iv)In respect of the contention of the petitioner that his brother was never known as Johan Rajiah and he never changed his name, the records of the second respondent would clearly establish that on earlier occasions, the petitioner had entered India on a different passport in a different name whereas the present passport was obtained only in the year 2003. The change of the name of the petitioners brother in the passport and his visits to India in different names came to the knowledge of the second respondent when he received a complaint from one Venkata Prasad, of Andhra Pradesh. On the basis of the said complaint, when records were perused, it came to light that the petitioners brother had tried to circumvent the impugned circular and tried to enter India through Chennai Airport. That is why, he was refused permission to land and enter India and he was sent back by the very same flight.

v).It is further contended in the counter that it is the sovereign power of the Government to obstruct a foreigner from entering India in the interest of the National Security, peace, harmony etc. and the said power is absolute and not restricted in any manner.

vi).It is further contended that the writ petition itself is not maintainable since the same has not been filed by the person allegedly aggrieved by the order. The petitioner cannot be stated to be aggrieved, and so, he has no locus standi to maintain this writ petition. For all these reasons, the respondents pray for dismissal of the writ petition.

6.I have heard the learned senior counsel Mr.V.T.Gopalan appearing for the petitioner and the learned Additional Solicitor General of India appearing for the respondents. I have also perused the records carefully.

7.Admittedly, the petitioner's brother is a foreigner. There is some dispute regarding the name of the petitioner's brother. It is the case of the petitioner that his brother's name is "Rajaiah JohnPremkumar" whereas according to the respondents, his name was originally "Rev.Johan Rajaiah", but subsequently, he changed his name as "John Premkumar Rajaiah". Admittedly, he holds a French Passport and flew to India on the strength of a visa issued by the Indian High Commission in London. It is also the admitted case that before passing the impugned order, no opportunity was given to him to submit his explanation.

8.The foremost contention of the learned Senior Counsel Mr.V.T.Gopalan, appearing for the petitioner is that, since the impugned circular order came to be passed without following the principles of natural justice, the same is vitiated.

9.Per contra, the learned Additional Solicitor General would contend that the concept of opportunity to satisfy the principles of natural justice is not available to a foreigner as the same is available only to the citizens of this Country.

10.To resolve the above question, it will be useful to refer to various judgments relied on by the learned counsel on either side and also the relevant statutes.

11.Admittedly, the impugned order came to be passed by the central Government in exercise of the powers conferred under Section 3 of the Foreigners Act. The said provision reads as follows:-

"1. The Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into(India) or their departure therefrom or their presence or continued presence therein.

2) In particular and without prejudice to the generality of the foregoing power, orders made under this Section may provide that the foreigner_

(a) shall not enter (India) or shall enter (India) only at such times and by such route and at such port or place and subject to the observance of such conditions on arrival as may be prescribed;

b) shall not depart from (India) or shall depart only at such times and by such route and from such port or place and subject to the observance of such conditions on departure as may be prescribed;

c) shall not remain in (India) or in any prescribed area therein;

(cc) shall, if he has been required by order under this section not to remain in India, meet from any resources at this disposal the cost of his removal from India and of his maintenance therein pending such removal

d) shall remove himself to, and remain in, such area in (India) as may be prescribed;

e)shall comply with such conditions as may be prescribed or specified:

i) requiring him to reside in a particular place;

ii) imposing any restrictions on his movements;

iii)requiring him to furnish such proof of his identity and to report such particulars to such authority in such manner and at such time and place as may be prescribed or specified;

iv) requiring him to allow his photograph and finger impressions to be taken and to furnish specimens of his handwriting and signature to such authority and at such time and place as may be prescribed or specified;

v) requiring him to submit himself to such medical examination by such authority and at such time and place as may be prescribed or specified;

vi) prohibiting him from association with persons of a prescribed or specified description;

vii) prohibiting him from engaging in activities of a prescribed or specified description;

viii) prohibiting him from using or possessing prescribed or specified articles;

ix)otherwise regulating his conduct in any such particular as may be prescribed or specified;

f. shall enter into a bond with or without sureties for the due observance of, or as an alternative to the enforcement of, any or all prescribed or specified restrictions or conditions;

g. shall be arrested and detained or confined:

and may make provision (for any matter which is to be or may be prescribed) and for such incidental and supplementary matters as may, in the opinion of the Central Government, be expedient or necessary for giving effect to his Act.

12.There is no express provision in the Act which provides for opportunity to a foreigner before any order is passed against him by the Central Government under Section 3 of the said Act. The above position was considered by a Constitution Bench of the Honble Supreme Court in Hans Muller of Nurenburg v. Superintendent, Presidency Jain, Calcutta and others (AIR 1955 SC 367). In the said case, the Honble Supreme Court has categorically held that a foreigners right to life is guaranteed in India under Article 21 of the Constitution of India whereas none of the fundamental rights guaranteed under Article 19 of the Constitution of India is available to a foreigner. While dealing with the scope of the Foreigners Act, in the context of Articles 19 and 21 of the Constitution of India, the Honble Supreme Court in paragraph No.36 of the said judgment has held as follows:

36.The Foreigners Act confers the power to expel foreigners from India. It vests the Central Government with absolute and unfettered discretion and as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains........."

" .......A foreigner has no such right and he can be expelled without any formality beyond the making of an order by the Central Government......

40.In the case of expulsion, no idea of punishment is involved, at any rate, in theory and if a man is prepared to leave voluntarily he can ordinarily go as and when he pleases. But the right is not his. Under the Indian Law, the matter is left to the unfettered discretion of the Union Government and that Government can prescribe the route and the port or place of departure and can place him on a particular ship or plane..........

41.........We have already examined the law making power in this behalf and its scope, and as to the third question, the law on this matter in India is embodied in the Foreigners Act which gives an unfettered right to Union Government to expel......"

(Emphasis supplied)

13.Relying heavily on the above, the learned Additional Solicitor General of India would submit that since the power of the Government under Section 3 of the Foreigners Act is unfettered in any manner, there is no need at all to give any opportunity to a foreigner before passing any order against him under Section 3 of the Act. He would emphazise that the Supreme Court has held that no other formality need be followed while making an order under Section 3 of the Act. At the first glimpse there appears to be force in the said argument of the learned Additional Solicitor General of India.

14.But, Mr.V.T.Gopalan, the learned Senior Counsel, would submit that the law laid down by the Honble Constitution Bench of the Supreme Court in Hans Muller of Nurenburgs case has got no application to the facts of the present case. He would submit that subsequent to the above judgment, the United Nations International covenant on Civil and Political rights came into being in the year 1966, and as per Article 13 of the said covenant, a foreigner is entitled to know the reasons for his expulsion and has right of representation before any order is passed. There can be no controversy that under Article 51 of the Indian Constitution, the Central Government has to foster respect for international law and treaty obligations in the dealings of organized people with one another. In view of the said constitutional obligation, there can be hardly any doubt that the Central Government should respect Article 13 of the United Nations International covenant on Civil and Political rights, which reads as follows:-

""An alien lawfully in the territory of a State Party to the present Covenant may expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before the competent authority or a person or persons especially designated by the competent authority."

15.A conjoint reading of the above provision along with Section 3 of the Foreigners Act, would make it clear that a foreigner is entitled to know the reasons for his proposed expulsion and also he is entitled for an opportunity to represent his case before the competent authority. Of course, where there are compelling reasons involving the national security etc., the said procedure need not be followed.

16.As rightly pointed out by the learned counsel for the petitioner, since there was no analogues provision like Article 13 of the United Nations International Covenant on Civil and Political rights when Hans Muller of Nurenburgs case was decided, the law laid down by the Constitution Bench cannot be made applicable to the cases arising subsequent to the advent of the United Nations International covenant on civl and political rights 1966.

17.After the advent of the United Nations International Covenant on Civil and Political Rights, 1966, the very same question came up for consideration in Louis De Raed VS Union of India (1991) 3 SCC 554 wherein, the Hon'ble Supreme Court, after referring to Hans Muller of Nurenburg's case has held in paragraph 13 of the judgment as follows:

"13.The fundamental right of a foreigner is confined to Article 21 for right to life and liberty and does not include the right to reside and stay in this Country as mentioned in Article 19(1)(e), as the said right is guaranteed, only to the citizens of this country. The power of the Government of India to expel a foreigner is absolute and unlimited and there is no provision in the Constitution fettering this discretion."

As regards the right to be heard, there cannot be any hard and fast rule about the manner in which a person concerned has to be given an opportunity to place his case and it is not claimed that if the authority concerned had served a notice before passing impugned order, the petitioners could have produced some relevant materials in support of their claim of acquisition of citizenship, which they failed to do in the absence of a notice.

18.Ofcourse, no reference has been made about the International Covenant 1966 in the said judgment, but the Hon'ble Supreme Court has made a slight deviation from Hans Muller of Nurenburg's case so as to rule out the impossibility of opportunity being given to the foreign nationals before any order of expulsion is passed. The Hon'ble Supreme Court has indicated that though there cannot be any hard and fast rule about the manner in which the person concerned has to be given an opportunity, nevertheless, the Court has ruled by implication that the right to make representation on service of notice in appropriate cases does exist.

19.In Sarbananda Sonowal VS Union of India and another reported in(2005) 5 Supreme Court Cases 665, after elaborately dealing with the various provisions and after making a specific reference to United Nations International Covenant on Civil and Political Rights,1966, the Hon'ble Supreme Court has held that in respect of an alien who is lawfully in India under a valid passport and visa, he is entitled to have an opportunity to represent before an order of expulsion is passed. The Hon'ble Supreme Court has held in paragraph 75 as follows:-

"75........Like the power to refuse admission this is regarded as an incident of the State's Territorial sovereignty. International law does not prohibit the expulsion en masse of aliens. (p.351). Reference has also been made to Article 13 of the International Covenant of 1966 on Civil and Political Rights which provides that an alien lawfully in the territory of a State party to the Covenant may be expelled only pursuant to a decision reached by law and except where compelling reasons of national security otherwise require, is to be allowed to submit the reasons against his expulsion and to have his case reviewed by and to be represented for the purpose before the competent authority. It is important to note that this Covenant of 1966 would apply provided an alien is lawfully in India, namely, with valid passport, visa, etc., and not to those who have entered illegally or unlawfully. Similar view has been expressed in Oppenheim's International Law (Ninth Edn. 1992 in paras 400,401 and 413). The author has said that the reception of aliens is a matter of discretion, and every State is by reason of its territorial supremacy, competent to exclude aliens from the whole or any part of its territory. In para 413 it is said that the right of States to expel aliens is generally recognised. It matters not whether the alien is only on a temporary visit, or has settled down for professional business or any other purposes in its territory, having established his domicile there. A belligerent may consider it convenient to expel all hostile nationals residing or temporarily staying within its territory, although such a measure may be very harsh on individual aliens, it is generally accepted that such expulsion is justifiable. Having regard to Article 13 of the International Covenant on Civil and Political Rights, 1966, an alien lawfully in a State's territory may be expelled only in pursuance of a decision reached in accordance with law."

20.In the above judgment, the Honble Supreme Court has obviated doubt, if any, and has held in clear terms that after the advent of the International Covenant on Civil and Political Rights, 1966,any order of expulsion of a foreigner from India who has a valid passport and visa could be passed only after affording sufficient opportunity to him except in exceptional cases where security of the nation would be put to perils imminently if such an order of expulsion is not passed forthwith without notice.

21.In Hasan Ali Aihany VS Union of India and others reported in (2006) 2 Supreme Court Cases (Cri) 33, while dealing with an identical question, a Division Bench of the Hon'ble Supreme Court has taken a similar view. In paragraph 8 of the judgment, the Hon'ble Supreme Court has held as follows:

"8.Having regard to the facts and circumstances of the case, particularly, having regard to the fact that the petitioner has entered this country legally upon the single entry permit issued to him, it is only fair that the competent authority must inform him the reasons for his deportation. If such a decision is taken, the petitioner must be given an opportunity to submit his representation against his proposed expulsion. The competent authority may thereafter, consider his representation and pass appropriate order. As observed by this Court, this procedure may be departed from for compelling reasons of national security, etc. In the instant case, we have not so far noticed any fact which may provide a compelling reason for the State not to observe this procedure."

22.But the learned Additional Solicitor General would submit that since Sarbananda Sonowal 's case was decided by a coram of three Hon'ble judges and Hasan Ali Aihany's case was decided by a coram of two Hon'ble Judges of the Supreme Court, the law laid down in those two judgments cannot be binding precedents as the law laid down by the constitutional bench in Sarbananda Sonowal 's case alone is binding. I am not persuaded by the said argument for the simple reason that, as I have already stated, the judgments in Sarbananda Sonowal's case and Hasan Ali Aihany's case were subsequent to the advent of the United Nations International Covenant on Civil and Political Rights, 1966 whereas the judgment of the Constitution Bench was prior to the said covenant and so, the law laid down by the Constitutional Bench in Hans Muller of Nurenburg's case cannot be made applicable to the post covenant cases.

23.The learned Additional Solicitor General of India has relied on a judgment of a learned single judge of this Court (Hon'ble Justice Shivaraj Patil, as he then was) wherein, following the judgment of the Constitution Bench in Hans Muller of Nurenburg's case, has held that the Central Government is vested with absolute and unfettered discretion and unrestricted right to expel a foreigner and there is no need to offer any opportunity to a foreigner before an order is passed, as the principle of natural justice can have no application to a foreigner.

24.The learned Senior Counsel Mr.V.T.Gopalan, relies on a judgment of another single Judge of this Court in an unreported case in W.P.No.24647 of 2008 wherein by order dated 23.10.2008, the learned Judge has held that the competent authority must inform the foreigner the reasons for his deportation and before passing the order of deportation, the foreigner should be given an opportunity to submit his representation as against the proposed deportation and such representation submitted by the foreigner has to be considered before passing any order. In the said case, the learned Judge has followed Sarbananda Sonowal's case and Hasan Ali Aihany's case.

25.From all the above judgments of the Honble Supreme Court and this Court, I have to necessarily hold that before any order of expulsion under Section 3 of the Foreigners Act is passed, unless there are compelling reasons involving threat to the security of the nation, the foreign national is entitled for notice and an opportunity for making representation.

26.In the case on hand, in the counter, in respect of opportunity of being heard, it has been stated as follows:

"The Sovereign power of the Indian Union can be invoked to ban the entry of any foreigner into India and the Government need not explain or give an opportunity to such foreigner to impose such ban and the lack of power as stated by the petitioner is unsustainable in law. It is not for the petitioner to suggest which act of the Government will be prudent in the given circumstances. It is respectfully submitted that there is absolutely no infringement of any fundamental rights of the petitioners brother, as he being a foreigner does not have any fundamental right. Hence, ground (a) and (o) have no merits in them. The Union of India need not state any reason to ban the entry of a foreigner. It is enough if it is satisfied that there exists some basis for taking such decision for in such matters the Government is exercising its Soverign Powers."

27.Reiterating the above stand taken in the counter, the learned Additional Solicitor General would submit that it is the absolute and unfettered Sovereign Power of the Government; in exercise of the same only, the impugned order has been passed and there is no need to offer any opportunity to a foreigner before passing any order regulating or banning the entry of a foreigner.

28.As concluded above, if the order under challenge is in the nature of an order of expulsion of a foreigner from Indian soil, necessarily notice should have been given by the central Government to the foreigner to afford an opportunity to him to make representation. The entire argument of Mr.V.T.Gopalan, the learned Senior Counsel, was under the premise that the impugned order is an order of expulsion. But I am unable to subscribe to the said contention. Admittedly, the petitioners brother was not in Indian soil and so, the impugned order cannot be construed to be an order of expulsion at all. As rightly pointed out by the respondents in the counter, the impugned order is only an order banning the entry of the petitioners brother into India without reference to the central Government. Nowhere it has been held in any of the judgments cited supra that before passing any order under Section 3 of the Foreigners Act r/w Clause 3 of the Foreigners Order 1948 such a notice should be given to the foreigner and he should be afforded an opportunity of being heard before passing an order prohibiting the entry of the foreigner. As held by the Honble Supreme Court in Hans Muller v. Supdt., Presidency Jail, Calcuttas case (cited supra) for passing an order either regulating or banning the entry of any foreigner into India, it is the absolute and unfettered discretion of the central Government. The said soverign power is unlimited and unrestricted. The United Nations International Covenant on Civil and Political Rights 1966 does not speak of any such opportunity to be given to any foreign national in respect of prohibitory or regulatory orders. As I have already stated, in Gilles Preifer v. The Union o India & others, Sarbananda Sonowal's case and Hasan Ali Aihany's case, the Honble Supreme Court has held in clear terms that the soverign power of the central Government is absolute and has further held that only in the matter of expulsion of a foreign national who has already been allowed to be in Indian soil, in view of the International covenant 1966, such a notice and opportunity should be given to him before expelling him. But in respect of an order banning the entry of a national into India, the central Government need not state any reason as to why such ban order is imposed on him and it need not give any opportunity or notice to the foreign national. The Constitution of India does not contain any provision obliging the central Government to issue notice affording an opportunity. The right to life guaranteed under Article 21 which is available to any foreign national does not engulf into its ambit a right to a foreign national to compel the central Government either to allow him to enter into India or to afford an opportunity to make representation or to state the reasons for such a ban. Therefore, the contention of the learned Senior Counsel that the impugned order is vitiated on the ground that the same came to be passed without affording any opportunity to the petitioner deserves only to be rejected.

29.The next contention is that there are no grounds satisfying paragraph No.3 of the Foreigners Order 1948 impelling the first respondent to issue such an order. As I have already stated, a foreigner does not have any right to demand the central Government to state the grounds on which the order banning his entry into India is passed. The Honble Supreme Court has held in categorical terms that it is the absolute and unfettered soverign power of the central Government. Therefore, the said contention is also rejected.

30.Yet another ground of attack is that the impugned order is a non speaking order and so the same is vitiated. In my considered opinion, the purpose of insisting for a speaking order is to put the adverse party on notice as to the grounds on which the adverse order came to be passed. But, in the instant case, since there is no obligation on the part of the Government to state the reasons, there is no need to pass any speaking order. Further, when the national interest in the matter of security, peace and harmony is the primary concern of the Government, while taking a decision to ban the entry or to regulate the entry of a foreign national into this nation, one cannot expect the Government to make the reasons public by passing a speaking order as the same would not be in the interest of the nation. Thus, the concept of speaking order is foreign to a foreigner whose entry into this country is sought to be prohibited.

31.For the foregoing discussions, I find no reason to quash the impugned circular order. But, at the same time, it requires to be clarified that, admittedly, the impugned order is not an absolute ban imposed on the petitioners brother from visiting India. The order only stipulates that visa, in any form, should not be issued in favour of the brother of the petitioner without prior reference to the Government of India. The visa issued to him by the Indian High Commission at London on 03.11.2003 has already expired on 02.11.2008 itself. If the petitioners brother is really interested to visit India for genuine reasons without disturbing in any manner the peace, harmony and security of the nation, he is at liberty to apply for visa afresh in which case, the High Commission shall make a reference to the central Government and subject to the decision of the central Government, the High Commission shall issue appropriate order.

32.In the result, the writ petition fails and the same is accordingly dismissed however, with the clarification indicated above. No costs.

jbm/pal To

1. Union of India, rep. by its Secretary, Ministry of Home Affairs, New Delhi.

2. The Bureau of Immigration, Rep. by the Immigration Officer, Chnnai Airport, Chennai 27