Back
2009 Supreme(Mad) 163
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. NAGAMUTHU
R.I. Jebaraj
Versus
Union of India, rep. by its Secretary, Ministry of Home Affairs & Another
Decided on: 19-01-2009
Writ Petition No. 25613 of 2008 and M.P.Nos.1,2,3 and 4 of 2008
For the Petitioner:V.T. Gopalan Senior counsel, Abudu Kumar Rajaratnam, Advocates. For the Respondents: (R1 & R2) M. Ravindiran, (A.C.G.S.C.).
Ratios:
a. While expulsion of a foreigner is ordered, notice is to be given to such person, for banning entry of such person into the country is ordered, notice is not necessary;
b. A foreigner cannot insist the Government to insist for reason for banning his entry into the country;
c. Art.21 does not encompass any right to a foreigner to compel the government to allow his entry into the country or disclose reason for such order
Headnote:(A) Constitution of India-Art.226, 21, 51-Foreigners Act, 1946 (31 of 1946)-Sec.3-Natural justice- Expulsion of foreigner-Indian born foreign citizen-Entry was banned into India-Not permitted to enter India-Order challenged-violation of natural justice and International covenants alleged-Held-In the interest of the safety and security of the country, entry of foreigner can be banned-Banning entry is different from order of expulsion-For banning entry reasoned order need not be passed- Petition dismissed.
(B) Foreigners Act, 1946(31 of 1946)-Sec.3-Natural justice-Expulsion-Foreigner is entitled to a reasonable notice for his expulsion except under certain circumstances.
A foreigner is entitled to know the reasons for his proposed expulsion and also he is entitled for an opportunity to represent his case before the competent authority. Of course, where there are compelling reasons involving the national security etc., the said procedure need not be followed.
Para 15
Before any order of expulsion under Section 3 of the Foreigners Act is passed, unless there are compelling reasons involving threat to the security of the nation, the foreign national is entitled for notice and an opportunity for making representation. Para 25, 28
(C) Foreigners Act, 1946(31 of 1946)-Sec.3-Natural justice-Banning entry of a foreigner-Different from expulsion-Notice not necessary-Order need not disclose reason.
In respect of an order banning the entry of a national into India, the central Government need not state any reason as to why such ban order is imposed on him and it need not give any opportunity or notice to the foreign national. The Constitution of India does not contain any provision obliging the central Government to issue notice affording an opportunity. The right to life guaranteed under Article 21 which is available to any foreign national does not engulf into its ambit a right to a foreign national to compel the central Government either to allow him to enter into India or to afford an opportunity to make representation or to state the reasons for such a ban.
Para 28
(D) Foreigners Act, 1946(31 of 1946)-Sec.3-Natural justice-Banning entry of a foreigner-Foreigner has no right to compel Government to state reason for order.
A foreigner does not have any right to demand the central Government to state the grounds on which the order banning his entry into India is passed. Para 29
(E) Natural justice-Notice-Speaking order-It is foreign to a foreigner whose entry is prohibited.
The purpose of insisting for a speaking order is to put the adverse party on notice as to the grounds on which the adverse order came to be passed. But, in the instant case, since there is no obligation on the part of the Government to state the reasons, there is no need to pass any speaking order. Further, when the national interest in the matter of security, peace and harmony is the primary concern of the Government, while taking a decision to ban the entry or to regulate the entry of a foreign national into this nation, one cannot expect the Government to make the reasons public by passing a speaking order as the same would not be in the interest of the nation. Thus, the concept of speaking order is foreign to a foreigner whose entry into this country is sought to be prohibited. Para 30
The petitioner is a citizen of India residing at Madras. His brother by name Mr.Rajiah John Premkumar was born and brought up in India. Later, he acquired citizenship of France and admittedly, he is no more a citizen of India. He resides in France. He holds French Passport bearing No.03TF 750 95. Most of his relatives and family members reside in India. He has got a valid multiple entry visa dated 011. 2003 issued by Indian High Commission in London, which expired on 011. 2008.
2. Mr.Rajiah John Premkumar came to India by flight No.LH 758 on 19.02.2008. But his landing at Chennai Airport was refused by the second respondent. He was served with an order of the second respondent directing the airport authorities to remove him by the same flight. Accordingly, he was deported to France by the same flight. The petitioner came to know that the first respondent had earlier issued an order restricting the petitioner?s brother?s entry into India without prior permission from the first respondent. However, the said order of the first respondent was not served on the brother of the petitioner.
3. Thereafter, the petitioner filed Crl.O.P.No.6511 of 2008 under Section 482 Cr.P.C., before this Court challenging the said order of the second respondent. When the matter was listed for final hearing, the second respondent produced the circular order of the first respondent in Prior Reference Category (S.1) Circular No.1/96 dated 010. 1996 directing that visa or transit visa for India in favour of the brother of the petitioner should not be granted without prior reference to the Government of India. The said circular is under challenge in this writ petition.
4. The following are the main grounds raised in the writ petition:
i. The impugned order lacks prudence and the same was passed without application of mind; further, there are no grounds satisfying para 3 of the Foreigners? Order 1948 impelling the first respondent to issue such an order.
ii. The impugned order came to be passed in violation of principles of natural justice and the same further violates Article 14, 19, 21 and 22 of the Constitution of India.
iii. The impugned order is a non-speaking order which does not assign any reason much less a proper reason for restricting the entry of the brother of the petitioner into India. Though the impugned order is stated to have been passed in the year 1996, subsequently, the petitioner?s brother visited India on several occasions which had caused no prejudice to the interest of the nation and its security. The impugned order was not implemented for several years which would show that there could be no reason to restrict the petitioner?s brother?s entry into India.
5. In the counter filed by the second respondent it has been contended as follows:
i).It is true that the petitioner?s brother was born and brought up in Chennai and later, he became a French National holding a French Passport. On 16.04.1995, under an entry visa, he came down to India along with one Rev.Gunther Bright of German who had a tourist visa. They attended a Christian conference organized by one Pastor M.Ananda Rao and Sharrow Ministers Union at Tadepalli Mandai, Guntur District, Andhra Pradesh. In the said conference, the petitioner?s brother abused Hindu Gods, toured pictures of Hindu Gods, trampled upon them and later burnt them. The others in the conference were also induced to do so. The entire incident was covered in a video film. In respect of the said conference, a case in Crime No.53 of 1995 was registered on the file of the Tadepalli Police Station under Sections 295 and 503(3) I.P.C., against Paster M.Ananda Rao and others. Charge sheet in the said case was laid by the police on completing investigation on 12.05.1995 before the learned Judicial Magistrate of I Class, Mangalagiri, Guntur District against Pastor Ananda Rao alone. In the mean while, the petitioner?s brother rushed back to Chennai. The charge sheet was subsequently returned by the lear
