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2020 Supreme(Ker) 1052
IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.S. Dias, J.
Johnny Paul Pierce - Appellants
Vs.
Union of India and Ors. - Respondent
WP(C) No. 13263 of 2020
Decided On : 29-07-2020
For the Appellant : S. Saju, A.V. Sajan and Neelanjana Nair
For the Respondents: P. Vijayakumar, ASG of India
Foreign nationals do not have an absolute right to reside and settle in India, and the decision to grant and extend visas falls within the exclusive domain of the Government of India.
Headnote:
Visa Extension - Foreign National's Right to Reside in India - Article 19(1)(e), Article 14, Article 21 of the Constitution of India - [VISA EXTENSION] - [FOREIGN NATIONAL'S RIGHT TO RESIDE IN INDIA] - [Article 19(1)(e), Article 14, Article 21]
Fact of the Case:
Mr. Johnny Paul Pierce, an American national, entered India on a tourist visa but got stranded due to the COVID-19 pandemic. He sought an extension of his visa to explore business prospects in India and for medical reasons.
Finding of the Court:
The court acknowledged the petitioner's predicament but held that the decision to grant and extend visas to foreign nationals falls within the exclusive domain of the Government of India. The court directed the respondent to consider the petitioner's representation in accordance with government guidelines.
Issues: The main issue was whether the petitioner, as a foreign national, had the right to stay in India beyond the stipulated period of his tourist visa due to unforeseen circumstances.
Ratio Decidendi: The court relied on the Constitution of India, specifically Article 19(1)(e), Article 14, and Article 21, and cited previous Supreme Court judgments to establish that foreign nationals do not have an absolute right to reside and settle in India. It emphasized the limited scope of judicial review in matters concerning visa extensions for foreign nationals.
Final Decision: The court directed the respondent to consider the petitioner's representation in accordance with government guidelines and dispose of the same expeditiously.
JUDGMENT :
C.S. Dias, J.
1. Mr. Johnny Paul Pierce's love for India may be heartening, but his yearning to stay back is the carte blanche of the Government of India.
2. Mr. Johnny Paul Pierce - the petitioner, an American National, came to India, on a tourist visa, on 26.2.2020. The visa is valid till 26.1.2025. All of a sudden, the Country went into a lockdown due to the COVID-19 pandemic and the petitioner has got stranded. For the last three months, the petitioner is remaining idle and helpless. His desire to explore the Country has been affected. If it were not for the pandemic, he would have gone back to the United States of America, converted his tourist visa to a business visa, and then returned to India.
3. The petitioner laments that the policy guidelines issued by the Government of India in respect of e-visa, with multiple entries, although has a validity of five years, he is permitted to stay only up to 180 days in one visit. So, he has to leave India on or before 24.8.2020, though his visa is valid till 26.1.2025. Without leaving India, he cannot apply for the conversion of his tourist visa to a business visa.
4. During this pandemic period, if the petitioner is deported, he is at high risk. He sees business prospects in Kochi and would desire to continue here for a further period of six months. He has sent Ext. P-3 email to the respondents 2 and 3, inter alia, stating that there are more than one lakh deaths in the United States of America due to the novel coronavirus compared to only 20 deaths in Kerala. At the age of 74, he feels safer to remain in Kerala than in the United States of America. He is suffering from various ailments and has sought the help of Doctors in Kochi. He has received a tailor-made reply from the 2nd respondent, who has not adverted to any of his requests. In the present scenario, he seeks humanitarian interference by this Court because he has not been able to complete his purpose of stay in India. Hence his visa may be extended for a further period of six months, permitting him to apply for conversion of his tourist visa to a business visa without leaving the Country.
5. Sri. Saju S. Nair, the learned counsel appearing for the petitioner, submitted that a lenient view may be taken in the matter because the petitioner is 74 years old, and he is suffering from various ailments. As the petitioner has a valid visa till 26.1.2025, there is no legal impediment in him staying back in the Country beyond 180 days from the date of his arrival. The 2 respondent has not considered Ext. P3 representation but has sent a stereotyped reply.
6. Sri. Suvin Menon, the learned Central Government Standing Counsel, appearing for the respondents argued that the Government of India, Ministry of Home Affairs, Foreigners Division, by Office Memorandum dated 5.5.2020, has considered the problem relating to foreign nationals stranded in India due to the pandemic, and decided as follows:
"Regular Visa e-visa or stay stipulation, of such foreign nationals whose visas have expired or would be expiring during the period from 01.02.2020 (Mid-night) till the date on which prohibition on international air travel of passengers from India is lifted by the Government of India, would be extended on 'GRATIS' basis on submission of online application by the foreigners. Such extensions would be granted for a period upto 30 days from the date of lifting of prohibition on international air travel of passengers from India without levy of overstay penalty. Exit to such foreign nationals, if so requested by them, will also be granted on the same lines."
7. A foreign national does not have the right to reside and settle in India, as enshrined under Article 19(1)(e) of the Constitution of India, held the Hon'ble Supreme Court in Louis De Raedt v. Union of India and others, (1991) 3 SCC 554 : (AIR 1991 SC 1886).
8. The Hon'ble Supreme Court in State of Arunachal Pradesh v. Khudiram Chakma, (1994) Supp. (1) SCC 615) : (AIR 1994 SC 1461) has held t
