Justice C. Jayachandran, Kerala High Court
It Is Time That We Start Recognizing Minimal Rights Of Foreign Citizens: Kerala High Court
|The Kerala High Court allowed a Writ Petition in which the question involved centered around the personal liberty of a foreigner who is alleged to have committed a crime in India.
The Kerala High Court has emphasized that it is time that we start recognizing certain minimal rights of the foreign citizens.
The Court emphasized thus in a Writ Petition in which the question involved centered around the personal liberty of a foreigner who is alleged to have committed a crime in India.
A Single Bench of Justice C. Jayachandran remarked, “Legal considerations apart, this Court also takes into account the present international scenario, wherein trade and commerce have been made very liberal between the countries, thus necessitating frequent visits of foreigners into this country, and vice versa. That apart, cross country tourism is in its peak and the same constitutes substantial revenue for the States. In this scenario, it is time that we start recognising certain minimal rights of the foreign citizens, since we are bound to think from their shoes as well.”
The Bench added that this should precisely be the reason for extending the protection of Article 21 to all 'persons'; and not confined to the Indian citizens, as in the case of many other Articles.
Advocate Pranoy K. Kottaram appeared on behalf of the Petitioners while Central Government Counsel (CGC) Suvin R. Menon and Special Government Pleader (SGP) P. Narayanan appeared on behalf of the Respondents. Jacob P. Alex was appointed as the Amicus Curiae.
Facts of the Case
The Petitioners were Nepali citizens who were working as cleaning and housekeeping staff in a resort. Citizens of Nepal can enter India without any visa, by virtue of Article 7 of the Treaty of Peace and Friendship between the Government of India and Government of Nepal, 1950. A crime was registered against the Petitioners in September 2024, alleging that the first accused committed murder of a new born baby by strangulation and accused nos. 2 and 3 acted in aid of the first accused in committing the crime. The offences alleged were under Sections 302, 316, 318, 201, 313, 511, and 34 of the Indian Penal Code, 1860 (IPC).
The Petitioners were arrested and then after a few months, were enlarged on bail. One among the conditions for grant of bail was that the sureties should be Keralites and another condition imposed restriction on the Petitioners in leaving the State of Kerala, except with the permission of the Trial Court. The third condition warranted the Petitioners to surrender their passports before the jurisdictional Court. While so, Orders were issued on Petitioners by the Foreigners Regional Registration Officer (FRRO) under Section 3(2)(e)(ii) of the Foreigners Act and Clause 11(2) of the Foreigners Order, 1948 imposing restriction on the movement of the Petitioners by confining them in a transit home. These Orders were under challenge before the High Court.
Reasoning
The High Court in view of the facts and circumstances of the case, observed, “On the first blush, a court of law cannot sideline the arguments of the Central Government Counsel that there is no enabling provision in the Foreigners Act affording a right of hearing; and that the right of hearing, if afforded, may perhaps defeat the purpose of the special law, besides prejudicing the security of the State and larger public interest.”
The Court said that the founding fathers of our Constitution have recognised, in their farsighted vision, scenarios like the present one to include a larger genus, insofar as protection under Article 21 is concerned.
“In recognising rights to foreign citizens within the sweep of Article 21, all what this Court mean and contemplate is only those rights, which will not cause any sort of fetter or threat to the security of the State, the larger national interest or even public interest”, it further noted.
The Court was of the view that if an Order under Section 3 is necessitated in a situation and circumstance, which will not jeopardise such national interest, an opportunity of being heard should necessarily be conceded within the sweep of Article 21, is the conclusion surfacing from the discussion.
“In the light of the above discussion, this Court can only hold that Exts.P3 to P5 Orders are illegal for want of affording an opportunity of being heard to the petitioners. Compliance to natural justice being a fundamental facet will vitiate an Order for its non compliance. Exts.P3 to P5 Orders are thus declared illegal”, it also held.
The Court, therefore, directed continuance of the Petitioners in the transit home for a period of one more month, within which, the FRRO will pass fresh orders under Section 3 of the Foreigners Act, read with the appropriate order of the Foreigners Order, 1948, after affording an opportunity of being heard to the Petitioners.
Accordingly, the High Court allowed the Writ Petition and held the impugned Orders as illegal.
Cause Title- Manju Saud & Ors. v. Union of India & Ors. (Neutral Citation: 2025:KER:42092)
Appearance:
Petitioners: Advocates Pranoy K. Kottaram and Sivaraman P.L.
Respondents: CGC Suvin R. Menon and SGP P. Narayanan.