S.3(2)(e)(ii) Foreigners Act: Foreigners Entitled to 'Audi Alteram Partem' Before Movement Restriction Orders, Even if on Bail for Criminal Charges: Kerala High Court - 2025-06-16

Kerala High Court: Foreigners Must Be Heard Before Movement Restriction, Even if Bailed in Criminal Case

Ernakulam, Kerala – June 16, 2025 – The Kerala High Court, in a significant ruling, has affirmed that foreign nationals facing criminal charges in India are entitled to an opportunity to be heard before orders restricting their movement are passed under the Foreigners Act, 1946, even if they have been granted bail by a criminal court. Justice C. Jayachandran , emphasizing that "Bondage – though in a golden cage – remains bondage," declared that such restrictive orders issued without a hearing violate the principles of natural justice and Article 21 of the Constitution.

The judgment was delivered in the case of Manju Saud vs Union of India (WP(Crl.) 1353/2024), where three Nepali citizens, Manju Saud , Amar Bahadur Saud, and Roshan Saud , challenged orders by the Foreigners Regional Registration Officer (FRRO) confining them to transit homes after they were granted bail in a criminal case.

Case Background

The petitioners, Nepali citizens, were employed at a resort in Kalpetta, Wayanad. They were arrested on September 21, 2024, in connection with Crime No.777/2024 of Kalpetta Police Station, accused of serious offences including murder of a newborn baby under Sections 302, 316, 318, 201, 313, 511, and 34 of the Indian Penal Code.

On November 8, 2024, they were granted bail by the Sessions Court, Kalpetta, with conditions including Keralite sureties, restriction from leaving Kerala without court permission, and surrender of passports. However, immediately thereafter, the FRRO issued orders (Exts.P3, P4, and P5) under Section 3(2)(e)(ii) of the Foreigners Act, 1946, and Clause 11(2) of the Foreigners Order, 1948, restricting their movement and confining them to transit homes.

The petitioners, represented by Adv. Sri. Pranoy K. Kottaram, challenged these FRRO orders, arguing they were illegal, arbitrary, and deprived them of their personal liberty and the benefit of the bail order, especially as they were not given an opportunity to be heard before the orders were passed.

Arguments Presented

Petitioners' Arguments: * The FRRO orders were redundant and punitive given the bail conditions already in place. * The confinement infringed their personal liberty (Article 21) and right to livelihood. * Crucially, the failure to provide a hearing before issuing the restrictive orders violated principles of natural justice ( audi alteram partem ). * They cited precedents including Maneka Gandhi v. Union of India to argue that even if a statute is silent, a hearing is necessary for actions with punitive consequences.

Respondents' (Union of India & FRRO) Arguments: * Represented by Sri. Suvin R. Menon, Central Government Counsel, the respondents argued that foreigners do not possess an unrestricted right to travel under Article 19(1)(d). * The power of the FRRO under the Foreigners Act is independent of the criminal court's power to grant bail, as affirmed in Frank Vitus v. Narcotics Control Bureau . * The Foreigners Act does not explicitly provide for a hearing, implying its exclusion, especially where prompt action or national security might be involved.

Amicus Curiae's Submissions: * Sri. Jacob P. Alex, appointed as Amicus Curiae, highlighted that the Foreigners Act confers "absolute and unlimited" power on the government ( Hans Muller of Nurenberg ). * He concurred that orders under Section 3(2)(e)(ii) are distinct from arrest or detention under penal statutes. * However, he also pointed to Hasan Ali Raihany v. Union of India , where the Supreme Court recognized a limited right of hearing for foreigners in deportation cases.

Court's Reasoning and Key Findings

Justice C. Jayachandran acknowledged the settled legal position that the FRRO's powers under the Foreigners Act are independent of bail proceedings, citing Frank Vitus . The core issue, therefore, was the requirement of audi alteram partem (the right to be heard).

The Court reasoned: > "Having bestowed my attention, I am of the definite view that the question as to whether rules of natural justice stands excluded or not would essentially depend upon the nature of the Order to be passed; and the circumstances, in which it is made."

The Court distinguished situations: * Where national security or public interest is jeopardized, or the purpose of the statute would be defeated, a pre-decisional hearing might be excluded. * However, in cases like the present, where the orders (Exts.P3-P5) aimed to ensure the petitioners' presence for trial, "affording an opportunity of being heard would not defeat the purpose of the Orders proposed to be passed. Nor would it jeopardise the State/National interest. In such cases, an opportunity ought to have been granted."

The Court underscored the protection of Article 21, which extends to "any person," not just citizens: > "Such a right necessarily flows from Article 21 of the Constitution, since an Order under Section 3 restricting the movement of a foreign citizen – which in fact confines him to a transit home, a euphoric expression to a place of incarceration – definitely deprives him of his personal liberty. Bondage, though in a golden cage, remains bondage. "

The Court suggested that if authorities fear a foreigner might abscond upon notice, "a provisional order can be passed, so as to ensure their availability by restricting their movement, and then afford an opportunity of being heard."

Referring to Hasan Ali Raihany , the judgment noted the Supreme Court's stance that a foreigner entering India legally should generally be informed of reasons for adverse action and given a chance to represent, unless compelling national security reasons dictate otherwise. The Court also dismissed the argument that a hearing would be an "empty formality," stating it's a settled principle that a hearing cannot be denied merely because it might not change the decision.

The Court also reflected on the contemporary global context: > "In this scenario, it is time that we start recognising certain minimal rights of the foreign citizens... This should precisely be the reason for extending the protection of Article 21 to all 'persons'; and not confined to the Indian citizens..."

Final Decision and Implications

The High Court declared the FRRO orders (Exts.P3, P4, and P5) illegal due to the lack of an opportunity for the petitioners to be heard.

However, recognizing the need to ensure the petitioners' presence for their criminal trial, the Court directed: 1. The petitioners will remain in the transit home for one more month. 2. Within this month, the FRRO shall hear the petitioners and then pass fresh orders under Section 3 of the Foreigners Act and the Foreigners Order, 1948, in accordance with the law.

This judgment significantly reinforces the principles of natural justice and procedural fairness for foreign nationals in India, clarifying that even powers deemed "absolute and unfettered" under the Foreigners Act must, in most circumstances, be exercised in a manner consistent with Article 21, which includes the right to a hearing before one's liberty is curtailed.

The Court placed on record its "whole-hearted appreciation" for the Amicus Curiae, Sri. Jacob P. Alex, for his assistance on the complex legal issues.