Gujarat High Court Backs Centre's Policy Denying Entry In India To Foreigners Convicted For Sexual Offences

The Gujarat High Court recently came in support of Centre's policy refusing entry in India to foreigners convicted of rape or foreigners who are found to be morally depraved.Dismissing a US-citizen's plea, Justice Biren Vaishnav observed,"The petitioner has been convicted as a sex offender and the endorsement is so made on his passport too. In the exercise of a statutory power flowing from the provisions of Section 3 of the Foreigners Act, 1946, guidelines have been issued that foreigners who are morally depraved are not permitted to enter the territorial limits of India. The country is within its rights to prescribe norms valid to prevent such people from setting foot on the Indian soil."The Petitioner was stopped at Ahmedabad Airport, was deported to Dubai and his E-Visa was cancelled. The High Court made it clear that a person (foreign citizen) cannot invoke life and liberty under the Constitution if he is not himself present in India. It added that the petitioner being the USA citizen and holding American passport cannot invoke Articles 14 and 19 of the Constitution if he is not on the shore of India. Brief Facts The petitioner though a USA citizen claimed to have his roots in India. In 2015, he was convicted of a sex offence against a minor under Section 22 of the United State Codes 212b(c)(1). He was under probation and had performed community service of 100 hours in 2021. On being covered as a sex offender the petitioner had to surrender his existing US passport and was issued a fresh USA passport with the endorsement that he is convicted of a sex offence against a minor. The endorsement was done by the US State Department by a communication dated 23.05.2022. The petitioner came to India on 01.03.2022 and entered into a marriage. He sought to come to India for celebrating his marriage on 7.1.2023 and was issued an E-Visa on 7.12.2022 with a validity till 6.1.2023. By the communication of the Bureau of Immigration, India, dated 27.12.2022 he was stopped at Ahmedabad Airport and was deported to Dubai and the E-Visa was cancelled. Hence, the petitioner through the petition under Article 226 of the Constitution, challenged the notice dated 27.12.2022 by which he was denied entry in to India. Contentions Counsel for petitioner I.H. Syed argued that the petitioner was not given an opportunity of hearing before the cancellation of his E-Visa. It was submitted that communication dated 27.12.2022 was issued under para 6 of the Foreigners Order 1948 and the power to refuse permission to enter India can be issued if, amongst other things, the Civil authority is satisfied that the foreigner has been sentenced in a foreign country for an extradition offence within the meaning of the Indian Extradition Act, 1903 (replaced by Indian Extradition Act 1962). The counsel for petitioner argued that petitioner is neither a fugitive criminal nor has been convicted for any extradition offence as defined under Indian Extradition Act of 1962 or under the treaty with the State. Reliance was placed upon R.I. Jebaraj v. Union of India 2009 SCC OnLine, Mad., 160 (para 19- the petitioner was entitled to an opportunity of hearing); Mohamaad Salimullah and another v. Union of India 2021 SCC OnLine SC 296 (para 13- right not to be deported is ancillary to the right to reside and settle in any part of the territory of India) and Kamil Siedczynski v. Union of India 2020 SCC OnLine, Cal., 670 (Calcutta High Court held that though Article 19 confers rights on a citizen of India, right to life and liberty under Article 21 cannot be curtailed). ASG Debang Vyas contended that it is a total misconception for the petitioner to bring in the concept of extradition when it was a plain and simple case of deportation by an Airline in compliance of para 6 of the Foreigners Order, 1948. It was further submitted that under Section 3 of the Foreigners Act, 1946, the Central Government may by order make provisions for prohibiting, regulating or restricting their entry. Orders have been issued in accordance with this provisions. Reliance was placed upon Akil Valibhai Piplodwala (Lokhandwala) v. District Superintendent of Police, Panchmahal at Godhra, SCA No.13566/2022 where it was held that a person sitting in Dubai cannot invoke Article 21 to submit that his life and liberty in India is endangered. Court’s Observation The Court observed that the fact that the argument of petitioner that he has entered India on 1.3.2022 and therefore denial of this permission is misconceived. It said, “As on 1.3.2022, the petitioner had a passport without the endorsement as aforesaid. On 23.05.2022, the United States Department of State, Washington D.C. through the Bureau of Consular Affairs, Passport Services, Office of Adjudication informed the petitioner that the earlier passport would stand revoked. Travel to India therefore on a passport prior to the issue of a...

Gujarat High Court Backs Centre's Policy Denying Entry In India To Foreigners Convicted For Sexual Offences

Udit Singh

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