Mohd. Javed & anr. vs. Union of India & anr.

In The High Court of Delhi
Civil Appellate Jurisdiction
Petitioner
Mohd Javed & Anr
Respondent
Union of India & Anr.
Date of Judgement
28thMay, 2019
Bench
Justice Anup Jairam Bhambhani

Background

The Supreme Court in Hasan Ali Raihany vs. Union of India & Ors., and International covenant of 1966 of Civil and Political in Article 13 has laid down that the foreigner must be given reasonable opportunity to submit his representation against proposed expulsion, except for compelling reasons of national security.

Facts

• Javed, an Indian citizen, married a Pakistani National,Nausheen Naz, on 26^th of August, 2005, as per Islamic Sharia norms and conventions.
• The couple have two minor son, who born in India, and are Indian citizens.
• Last extension of Nausheen’s Long Time Visa (LTV), which was granted on ground that she was desirous of living with her husband (Indian citizen), was valid until 8^thJune, 2020.
• Over a period of Nausheen’s stay in India, she has visited Pakistan on multiple occasions and has been permitted to return to India on the basis of No Objection to Return to India (NORI) under Ministry’spolicy of LTV to Pakistani Nationals.
• Lately Nausheen departed for Pakistan on 10^th April, 2017, 27^thNovember, 2017, and 3^rdJuly, 2018, and on each occasion she returned to India without any objection by authorities.
• On 7^th February, 2019 the Ministry issued LEAVE INDIA NOTICE, in compliance of letter of Ministry of Home Affairs, directing the Appellant to leave India within 15 days of receipt of the said notice.
• Prior to issuance of Notice, there was no communication either seeking response to alleged breach of terms and conditions of LTV, or in relation to proposed curtailment of Nausheens entitlement to stay in India.
• During the course of proceedings, Nausheen has applied for citizenship, as a person married with Indian citizen, under section 5(1) (c) of the Act.

Procedural History

• The Ministry issued LEAVE INDIA NOTICE dated 7^th February, 2019, directing the respondent to leave India within 15 days of receipt of the notice.
• Appellant challenged it before the Single Judge (Delhi High Court) by way of writ petition (civil) No. 1835/2019
• The single Judge passed an impugned order dated 28^th February, 2019 dismissing the writ petition.
• Mohd Javed and Nausheen appealed the order of the single Judge under Clause 10 of the Letters of Patent of the Delhi High Court.

Contentions by both Parties

Appellant’s Contentions

Appellants contended that the act of issuance of Notice to Leave India without any prior communication or information is an arbitrary, baseless act and opposed to all the notions of natural justice, equity, and fair play.Nausheen’s LTV is valid until 8^th June, 2020. There is no reason to direct Nausheen to leave India all of a sudden,abandoning her family.

Respondent’s Contentions

• Leave India Notice itselfis cancellation of further validity of visa period.
• There is no statutory obligation on Central Government to serve a Show Cause Notice to the foreigner.
• Foreigners Act, 1946 vests absolute and unfettered discretion on Central Government, as there is no provision restraining this discretion.
• Adverse inputs from Intelligence Bureau about Nausheen caused toserve her Leave India Notice.

Issues

 In the present case the following points arose for determination

• Are the inputs by intelligence agency enough egregious and proximate to serve Leave India Notice to the appellant?
• Whether respondent is obliged to inform or communicate the petitioner the reasons for proposed deportation?
• Whether Foreigners Act vests Central Government with absolute and unfettered discretion to expel a valid and subsisting Long Time Visa holder without giving him/her reasonable opportunity to representation?
• Is the action of respondent ofpassing impugned order without following any procedure arbitrary?

Judgement

• Considering the classified inputs, and perusing and analysing them carefully, the court concluded that the inputs do not disclose any conduct that is enough egregious to warrant any action of issuing Leave India Notice to the appellant, and matters referred in inputs are not proximate to issuance of Notice, and shows no causal connection.

The Hon’ble High Court noted that no law enforcement agency or ministry had ever made any allegation of sufficient gravity or specific adverse impact against her. The very fact that Nausheen was granted NORI till 7^th August, 2018, and was permitted to depart or enter country freely shows that there was no information against the appellant to direct her to leave the country or even to restrict her movement. The Judges observed that the last extension of LTV of appellant was granted online which suggest that she was allowed to follow routine or ordinary renewal process and was not under watch by authorities in cases of wrongdoing.

She was never questioned or detained, nor her movements were restricted except restrictions contained in LTV itself, which suggest that she was not perceived as persona non grata.On similar lines, as per the Notice she was asked to leave India within 15 days, and no effort was made to peremptorily deport her. With all the above discussed facts the Court reached to the conclusion that the Leave India Noticeissued to the appellant was not for ‘compelling reasons of National Security’.

• The Hon’ble High Court referred the similar matter decided by Hon’ble Supreme Court. In case titled Hasan Ali Raihany vs. Union of India & Ors. (2006) 3 SCC 705, Supreme Court dealt with an order cancelling the residence visa permit of an Iranian descent person. In this case Supreme Court discussed the obligation of government to disclose reasons of proposed deportation to the foreigner. Referring to National Human Rights Commission v. State of Arunachal Pradesh; Sarbananda Sonowal v. Union of India, and Article 13 of the International Covenant of 1966 on Civil and Political Rights the Supreme Court noted that an alien lawfully residing in India should be informed of the reasons for his/her expulsion, and should be given a reasonable opportunity to make representation in order to submit reasons against his/her expulsion before competent authority. And only for compelling reasons of national security an alien lawfully residing in India can be expelled without following any procedure.

Therefore the respondent is obliged to inform the appellant the reasons for her proposed expulsion.

• While making reference to Part 3 of the Constitution, the court said that Article 21 is available to both citizens and non-citizens, and interpreting Article 21 in expanded sense as given by various Landmark Judgements given by Supreme Court, Nausheen is deprived of her right to life and personal liberty.

Referring to Hans Mullers’ case (supra) Supreme Court held that Foreigners Act vests Government with absolute discretion to expel foreigners from India. And Supreme Court in Louis De Raedt Vs. Union of India & Others, AIR 1991 S.C. 1886 held that Fundamental Right of alien is confined to Article 21 for life and personal liberty and does not include the right to reside and settle.

But as per basic legal principle of audi alteram partem, a person affected by civil consequences of administrative decisions must have a reasonable opportunity of being heard. The court referred to Mohammad Sediq’s case where the court held that reasonable procedure should be followed in cases of curtailment of period of authorised residence.

• The Hon’ble court noted that a basic tenet of rule of law is that no power in the hands of authority must be unguided, untrammelled or absolute. And providing procedure for its exercise is basic minimum restraint on any such power. The peremptory and abrupt issuance of Notice itself cannot be construed to be a procedure. Permitting authorities to direct valid visa holders to leave the country without need for any reasoning or consideration would amount to anarchic action.

The court marked that our country is party to the International Covenant on Civil and Political Rights, and according to Article 13 of it , an lawful alien should be allowed to submit reasons against his/her deportation, except for compelling reasons of national security. The court referred to the Judgement given by Supreme Court in Vishakha and Ors. Vs. State of Rajasthan and Ors. In this case the Supreme Court permitted reliance in international conventions for construing fundamental rights expressly guaranteed under the Constitution.

Therefore, considering the above discussion the court concluded that the power of expulsion vested on Central Government under Foreigners Act is subject to reasonable restrictions and and is not absolute. And as discussed in above mentioned cases , and based on principle of audi alteram partem, and fundamental right of appellant under Article 21 of the Constitution of India, every expulsion except for compelling reasons of national security should be subject to reasonable opportunity for representation to the respondent before the competent authority. Action of respondent of issuing expulsion order without following any procedure is arbitrary. Therefore the Hon’ble High Court reached to the conclusion that theimpugned order dated 7^th February, 2019 does not stand the scrutiny of law and there for erequires to be quashed and set aside.

Conclusion

The cases of expulsion from country except for compelling reasons of national security should provide reasonable opportunity to the lawful alien to make representation before the competent authority. The Foreigners Act empowers Government for expulsion of any foreigner. But except for compelling reasons of national security, reasonable procedure should be followed. Foreigners’ fundamental right under Article 21 of Constitution of India should not be infringed.

Edited by Sree Ramya

Approved & Published – Sakshi Raje