Foreigners Must Be Heard Before Passing Order Restricting Their Movement: Kerala High Court

In a significant ruling that reinforces procedural fairness under Article 21 of the Constitution, the Kerala High Court has held that foreign nationals must be given an opportunity to be heard before orders restricting their movement are passed under the Foreigners Act, 1946.Justice C. Jayachandran, delivering judgment in a writ petition, declared the movement restriction orders issued by the Foreigners Regional Registration Officer (FRRO) against three Nepali nationals to be illegal, because they were issued without hearing the petitioners.The petitioners, Nepali citizens working in a resort in Kalpetta, were accused in a serious criminal case and subsequently released on bail. Despite the bail, the FRRO issued orders confining them to transit homes under Section 3(2)(e)(ii) of the Foreigners Act and Clause 11(2) of the Foreigners Order, 1948, purportedly to ensure their presence for trial.The petitioners argued that even if the power under the Foreigners Act is considered absolute, the procedure adopted must not be arbitrary, unfair, or oppressive. The government contended that foreign citizens are not entitled to the fundamental right of free movement under Article 19 and that the Foreigners Act does not mandate a hearing.The Court also heard the learned Amicus Curiae in the matter, who submitted that the language used by the Hon'ble Supreme Court in Hans Muller of Nurenberg v. Superintendent, Presidency Jail, Calcutta and Others [AIR 1955 SC 367] recognises an unfettered right conferred upon the Union Government under the Foreigners Act to expel a foreign citizen.Interpreting the powers under the Act, a Constitution Bench of the Hon'ble Supreme Court in Hans Muller of Nurenberg held that the Foreigners Act confers power on the Central Government to expel foreigners from India with “absolute and unfettered discretion,” and therefore, the power is unrestricted.The High Court analysed whether the principle of audi alteram partem (the right to be heard) applies before issuing orders under Section 3 of the Foreigners Act. Referring to landmark rulings in Maneka Gandhi v. Union of India and Hasan Ali Raihany v. Union of India, the Court ruled that any restriction on personal liberty, even for foreigners, must meet the test of fairness and reasonableness under Article 21.The Court opined that:“ I am of the definite view that the question as to whether rules of natural justice stands excluded or not would essentially depend upon the nature of the Order to be passed; and the circumstances, in which it is made. In cases where, the interest of the State or public is not sacrificed/jeopardised, or where the purpose of the special statute is not being defeated by affording an opportunity of being heard, it is only logical - besides being in consonance with the settled principles of law to vote for an opportunity being granted, especially when such Orders are to visit the foreign citizen with serious and dire consequences.”The Court added that conversely, if issuing a notice for hearing would defeat the purpose of the special statute or jeopardise the interests of the State or public, then the exclusion of the rules of natural justice would be justified.Specifically addressing the facts of the case, the Court observed:“in cases of Orders like Exts.P3 to P5, affording an opportunity of being heard would not defeat the purpose of the Orders proposed to be passed. Nor would it jeopardise the State/National interest. In such cases, an opportunity ought to have been granted. Such a right necessarily flows from Article 21 of the Constitution, since an Order under Section 3 restricting the movement of a foreign citizen which in fact confines him to a transit home, a euphoric expression to a place of incarceration – definitely deprives him of his personal liberty.”“Bondage, though in a golden cage, remains bondage”, the court emphasised.The Court also relied on Hasan Ali Raihany to emphasise that it is only fair for authorities to inform a foreign national of the reasons for deportation or restriction, and to give them a chance to respond.Reinforcing the need for procedural fairness in a changing global context, the Court noted the rise in cross-border trade, employment, and tourism. It observed:“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. 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.”The Court further held:“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. If an order under Section 3 is necessitated in a situation and circumstance, which will not jeopardise such national interest, an...

Foreigners Must Be Heard Before Passing Order Restricting Their Movement: Kerala High Court

Rizmi Lia

Tags