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2018 Supreme(Del) 1759
IN THE HIGH COURT OF DELHI AT NEW DELHI
VIBHU BAKHRU, J.
Kasha Elizabeth Vande - Petitioner
Versus
Ministry of Home Affairs And Ors. - Respondents
W.P.(C) 2286 of 2018 & CM 9443 of 2018, 20057 of 2018, 23854 of 2018
Decided On : 18-07-2018
For the Petitioner: Mr. Shoumendu Mukherji and Mr. Raghav Awasthi.
For the Respondents: Mr. Ashim Sood, C.G.S.C. with Mr. Rhythm Buaria, Mr. Kirtiman Singh, Mr. Waize Ali Noor, Mr. Prateek Dhanda
Foreigners in India have limited rights, and the government has absolute discretion to expel them under the Foreigners Act, 1946.
Headnote:
Blacklisting - Visa Violation - [Foreigners Act, 1946, Section 3(2)(c)] - The court discussed the petitioner's violation of the terms of the Business Visa, including engaging in NGO activities and overstaying in India, leading to her blacklisting. The court also highlighted the limited rights of foreigners in India and the absolute discretion of the government to expel foreigners under the Foreigners Act, 1946.
Fact of the Case:
The petitioner, a US citizen residing in India on a Business Visa, was blacklisted for visa violation related to NGO activities and overstaying. She challenged the blacklisting on grounds of lack of show cause notice and the validity of the reason for blacklisting.
Finding of the Court:
The court found that the petitioner's actions, including engaging in NGO activities and overstaying, constituted visa violations, justifying her blacklisting. The court also emphasized the limited rights of foreigners in India and the government's absolute discretion to expel foreigners.
Issues: Violation of Visa Conditions, Lack of Show Cause Notice, Validity of Blacklisting Reason
Ratio Decidendi: The petitioner's engagement in activities beyond the scope of her Business Visa, including NGO activities and overstaying, constituted visa violations. The limited rights of foreigners in India and the government's absolute discretion to expel foreigners under the Foreigners Act, 1946, were key factors in the court's decision.
Final Decision: The petition was dismissed, and all pending applications were disposed of.
VIBHU BAKHRU, J.
1. The petitioner has filed the present petition, inter alia, praying that the order dated 18.12.2017 (hereafter ‘the impugned order’) passed by respondent no.1 (the Bureau of Immigration, Ministry of Home Affairs) be quashed. By the impugned order, the petitioner has been blacklisted in Category „B?. The impugned order indicates that the petitioner has been blacklisted for visa violation for the reason for being involved in NGO activities in Puducherry while holding a Tourist Visa and, thus, violating the provisions of the Visa Manual. However, the respondents have affirmed that the reference to a Tourist Visa in the impugned order is an inadvertent error and the petitioner was blacklisted for violation of the terms of the Business Visa issued to the petitioner.
2. The petitioner has assailed the impugned order, essentially, on the ground that no show cause notice was issued to her before the blacklisting and, thus, it is in violation of the principles of natural justice. The petitioner also contends that “being involved in NGO activities” is no valid reason for her to be blacklisted in terms of Category ‘B’ for visa violations.
Factual Background
3. The petitioner is a well-known woman entrepreneur and a citizen of United States of America (USA). Admittedly, she has been residing in India for last 14 years on a Business Visa. The petitioner came to India for the first time in 2001 with her family. The petitioner claims that in 2004, she opened a business concern (a cafe) named as KKA Exports Pvt. Ltd. also known as ‘Kasha ki Asha’ (hereafter ‘KKA’) in Puducherry. The said business concern was a retail business offering Indian products. It is also stated by the petitioner that she has been listed on “Lonely Planet” – a globally reputed Travel Guide – for the last fourteen years. In the meanwhile, the petitioner has been granted a Business Visa in 2007 and again in 2012.
4. The petitioner states that in 2012, the petitioner also started an enterprise (NGO) by the name of ‘Pondi-ART’ for providing free access to art in public spaces. In pursuance of the object of Pondi-ART, the petitioner has been organizing photography exhibitions/public photography festivals every year since last five years. On 01.03.2016, the enterprise named ‘Pondi-ART’ was registered as public charitable trust in Puducherry with the petitioner as one of its trustees.
5. In 2017, the petitioner submitted her application for Business Visa citing the purpose as “business visit to India for small and medium businesses”. In her visa application, the petitioner had further mentioned that she is an employee of a restaurant in Tennessee, USA. The petitioner’s Business Visa was renewed as a multiple entry business visa for the period commencing from April 26, 2017 up to April 25, 2027. Before this renewal, the petitioner was granted a Business Visa on two previous occasions, that is, on February 16, 2007 and April 10, 2012.
6. Thereafter, to the petitioner’s surprise, a memorandum was issued on 18.12.2017 (the impugned order) by the Bureau of Immigration, Ministry of Home Affairs (MHA) directing to place the petitioner in the black list in Grade ‘B’ category for visa violation for being involved in NGO activities in Puducherry. Pursuant to this, a Look Out Circular (LOC) was also issued in the name of the petitioner with the instructions of preventing the petitioner from entering into India. The petitioner left India on 22.12.2017 and when she returned to India on 05.01.2018, she was refused permission to enter past the immigration. She was further informed by the immigration office that there was a particular noting on her file and, as a result, she will be required to leave the country. The aforesaid noting on the petitioner’s file stated “PREVENT SUBJECT FROM ENTERING INDIA AND INFORM ORIGINATOR”.
7. Aggrieved by the said action of the MHA, the petitioner filed a habeas corpus petition before this Court (W.P. (Crl.) 49/2018) on 05.01.2018. The
