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IN THE HIGH COURT OF DELHI
Rajendra Menon, Anup Jairam Bhambhani, JJ.
Mohd Javed And Another - Appellant
Vs.
Union Of India And Another - Respondent
Letters Patent Appeal No. 168 of 2019; Civil Miscellaneous No. 11617 of 2019
Decided On : 28-05-2019
FOREIGNERS ACT, 1946 - SECTION 3 - LEAVE INDIA NOTICE - VALIDITY - RIGHT TO LIFE - DUE PROCESS - FAMILY LIFE - ARTICLE 21 - ARTICLE 13, 17, 23 AND 24 OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR) - Held, the impugned notice issued by the Ministry of Home Affairs (MHA) directing the appellant, a Pakistani national, to leave India within 15 days of receipt of the notice is not valid and is quashed. The MHA's decision is based on intelligence inputs which do not disclose any egregious matters or a proximate or causal link between the inputs and the issuance of the notice. The appellant has a valid Long Term Visa (LTV) until 08.06.2020 and has applied for Indian citizenship. Directing her to leave the country would break up her family and violate the rights of her husband and two sons, who are Indian citizens, to live as a family. The right to life under Article 21 of the Constitution includes the right of young children to live with their mother and the right of a husband to consortium with his wife. The MHA cannot deprive the appellant's sons and husband of these rights without a reasoned decision and without affording her an opportunity of hearing. The power to regulate the entry, stay, and exit of a foreign national is not untrammelled or unregulated. The MHA must act in accordance with law and cannot act arbitrarily. The appellant's application for citizenship should be considered and decided in accordance with law.
Fact of the Case:
The appellant, a Pakistani national, married an Indian citizen in 2005 and has two sons, both Indian citizens. She has been residing in India on a valid LTV since 2007, which has been extended from time to time. In 2019, the MHA issued a notice directing her to leave India within 15 days. The appellant challenged the notice before the Delhi High Court, which dismissed her petition. She then filed an appeal before the Supreme Court.
Finding of the Court:
The Supreme Court held that the impugned notice is not valid and is quashed. The MHA's decision is based on intelligence inputs which do not disclose any egregious matters or a proximate or causal link between the inputs and the issuance of the notice. The appellant has a valid LTV until 08.06.2020 and has applied for Indian citizenship. Directing her to leave the country would break up her family and violate the rights of her husband and two sons, who are Indian citizens, to live as a family. The right to life under Article 21 of the Constitution includes the right of young children to live with their mother and the right of a husband to consortium with his wife. The MHA cannot deprive the appellant's sons and husband of these rights without a reasoned decision and without affording her an opportunity of hearing. The power to regulate the entry, stay, and exit of a foreign national is not untrammelled or unregulated. The MHA must act in accordance with law and cannot act arbitrarily. The appellant's application for citizenship should be considered and decided in accordance with law.
Issues: Whether the impugned notice issued by the MHA directing the appellant to leave India within 15 days of receipt of the notice is valid.
Ratio Decidendi: The MHA's decision is based on intelligence inputs which do not disclose any egregious matters or a proximate or causal link between the inputs and the issuance of the notice. The appellant has a valid LTV until 08.06.2020 and has applied for Indian citizenship. Directing her to leave the country would break up her family and violate the rights of her husband and two sons, who are Indian citizens, to live as a family. The right to life under Article 21 of the Constitution includes the right of young children to live with their mother and the right of a husband to consortium with his wife. The MHA cannot deprive the appellant's sons and husband of these rights without a reasoned decision and without affording her an opportunity of hearing. The power to regulate the entry, stay, and exit of a foreign national is not untrammelled or unregulated. The MHA must act in accordance with law and cannot act arbitrarily.
Final Decision: The impugned notice is quashed. The appellant's application for citizenship should be considered and decided in accordance with law.
JUDGMENT :
Anup Jairam Bhambhani, J.
By the present appeal filed under Clause 10 of the Letters Patent of the Delhi High Court, the appellants Mohd. Javed (appellant No.1) and Nausheen Naz (appellant No.2) impugn order dated 28.02.2019 made by the learned single Judge of this Court in W.P.(C) No.1835/2019, whereby the single Judge has been pleased to dismiss the writ petition, thereby upholding the "Leave India Notice" dated 07.02.2019 issued by respondent No.2 through the Deputy Commissioner of Police, Special Branch, New Delhi ("Notice", for short) directing appellant No.2 to leave India within 15 days of receipt of the Notice, that is by 22.02.2019.
2. Mohd. Javed, an Indian citizen, married Nausheen Naz, a Pakistani national on 26.08.2005 as per Islamic Sharia norms and conventions and a nikahnama was issued in evidence of the marriage. The couple have two sons, one about 11 years and the second about 6 years of age. Having been born in India, both children are Indian citizens.
3. As per a tabulated summary of Nausheen's dates of arrival in and departure from India handed-up by the Ministry of Home Affairs ("Ministry", for short), Nausheen came to India first in August 2005 on a "visitor visa" and returned to Pakistan in September 2005. Thereafter she returned to India in June 2007, again on a "visitor visa"; and subsequently applied for and was granted a Long Term Visa ("LTV", for short) valid until 28.09.2010 on the ground that she was desirous of living with her husband, an Indian citizen. The tabulated summary further shows that Nausheen's LTV was extended from time-to- time, the last extension being valid until 08.06.2020. As per a notation on the tabulated summary, the last extension granted was by way of an on-line application. Over the period of her stay in India, Nausheen has visited Pakistan on multiple occasions; and has been permitted to return to India on the basis of what is called a "No Objection to Return to India" ("NORI") under the Ministry's policy for grant of LTV to Pakistani nationals as detailed hereinafter. The tabulated summary also shows that lately Nausheen departed for Pakistan on 10.04.2017, 27.11.2017 and 03.07.2018, and on each occasion she returned to India without objection or demur by the authorities.
4. At present therefore Nausheen holds a valid and subsisting LTV, with a tenure from 09.06.2015 upto 08.06.2020.
5. That notwithstanding, vid Notice dated 07.02.2019 captioned "LEAVE INDIA NOTICE", the Ministry directed Nausheen to leave India within fifteen days of receipt of the Notice in the following words:
"You, Pak National Smt. Nausheen Naz, P.P. No. AZ9895772 r/o Gali Shahtara, H.No. 4481, Ajmeri Gate, Delhi-6, are hereby directed to 'leave India' within fifteen days from the date of receipt of this Notice in compliance of letter of Ministry of Home Affairs/GOI, F.No. 28020/03/2019-F.III dated 24.1.2019. If you fail to leave India within stipulated time, action will be taken against you as per law and your entry in India will be barred in future."
(Emphasis supplied)
It may be noted that letter dated 24.01.2019 referred to in the Notice was neither enclosed therewith nor is it available on the record of the present proceedings.
6. Notice dated 07.02.2019 was challenged by Mohd. Javed and Nausheen before the single Judge by way of Writ Petition (Civil) No.1835/2019 which culminated in passing of impugned order dated 28.02.2019 dismissing the writ petition.
7. Prior to issuance of the Notice however, there was no communication between the Ministry and Nausheen in relation to any proposed or possible curtailment of Nausheen's entitlement to remain in India on the basis of her LTV ; nor any communication seeking from Nausheen a response to any alleged breach of the terms and conditions of the LTV.
8. The record in fact shows that on 13.07.2016 Nausheen was granted a NORI for a period of 90 days
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