Calcutta HC sets aside the Leave India Notice issued against Polish student, says “Paranoid Overreaction Contrary To The Rights Enshrined In Article 21 Of The Indian Constitution”

On 4^th March 2020, the writ petition WP No. 4432W of 2020 was submitted by a Polish student/citizen who is enrolled in Jadavpur University in Kolkata, India on a student visa. The presiding judge on the case is Hon’ble Justice Sabyasachi Bhattacharya. The writ is against the issue of Leave India Notice by the Respondent no. 2, i.e. the Foreigners’ Regional Registration Office (FRRO) on the order of the Union of India.

The petitioner submits that the visa was obtained by them by on June 6^th 2016 after the student had received a General Scholarship Scheme (GSS) for the academic year 2016-17 for studying at the Institute of Language, Literature and the culture in Visva Bharati. After passing the course with distinction, he applied to study at the Jadavpur University in MA in Comparative Literature. The Department approved a concession in fees for the student on the ground of the petitioner coming from a low-income family. The Student visa was renewed till the 30^th of August 2020 and still stands valid to the date of the court hearing.

The Respondent submitted that the Leave India Notice issued on 14^th February 2020 is under the ambit of the subsection (2)(c) of Section 3 of the Foreigners Act, 1946. It states that; In particular and without prejudice to the generality of the foregoing powers, orders made under this section may provide that the foreigner —shall not remain in India, or in any prescribed area therein.

On 18^th March 2020, the Court decided on the matter of the writ petition.

Arguments of the Learned Counsel

The following arguments were made by the learned counsel on behalf of the Respondents

• The ambit of the 1946 Act is wide and it gives certain unfettered powers to the Central Government
• Citing section 14 of the 1946 Act, the counsel argued that in any event a foreigner’s stay/entry in India is illegal, the said foreigner is subject to penal consequences.
• Section 3 of the Act does not indicate any requirement for contemplating a reason or a hearing to the foreigner before providing an order of expulsion.
• The dispute Leave India Notice (LIN) is not only based on a newspaper article that shows that the foreigner was involved in two rallies on the same day. It is also based on a confidential report filed in a sealed envelope to protect the identity of the Investigating Officer.
• The counsel argues that the petitioner was under surveillance since the 31^st of January 2020. The newspaper article was not challenged until the 1^st of March which was only done with the intention of making the ground for filing the writ petition.
• The petitioner, counsel argues, cannot take part in criticizing any act of the Indian Parliament, i.e. the Citizenship Amendment Act (CAA) while he is on a student visa.
• The petitioner has admitted that he was present in the two rallies alleged by the newspaper report. Therefore, it was the prerogative of the Central government to order the expulsion of the petitioner through FRRO.
• The learned counsel cited the following judgements to strengthen their case;
• AIR 1955SC 367 (Hans Muller of Nuremberg vs Superintendent, Presidency Jail, Calcutta and others) and AIR 1971 SC 337 (Anwar vs The State of J. & K.) are cited to argue that the Article 19 is not applicable to the foreigners living in the country.
• AIR 1991 SC 1886 (Louis de Raedt vs. Union of India & Ors.) was cited to highlight that any foreigner if expelled under the 1946 Act does not have any right for a hearing. Still, the FRRO has given a date to the petitioner for hearing prior to the expulsion but the petitioner had requested to postpone it.
• AIR 1961 SC 1526 (Union of India & Ors. vs. Ghaus Mohammed) was cited to impress on the Court that a foreigner cannot participate in any political activities while present in India.
• AIR 1966 Calcutta 552 (A.H Magermans vs. S.K. Ghose and other) was cited to advance the proposition that under the 1946 Act, the application of the principles of the Act is left to the discretion of the Executive.

The learned counsel on behalf of the Petitioner counters with the following arguments;

• The counsel argues that according to the Constitution, Article 19 may not be applicable to foreigners but Article 14 (Equality before Law), Article 20 (Protection in Respect of Conviction for Offences), Article 21 (Protection of Life and Personal Liberty), Article 22 (Protection Against Arrest and Detention in Certain Cases) of the constitution are applicable to the foreigners.
• In the matter of Union of India & Ors. vs. Ghaus Mohammed, there was a question whether the concerned person was a foreigner or not. Therefore, the case did not have any merit as far as the present petition is concerned.
• As the visa of the petitioner was renewed till the 30^th of August, it conferred rights on the foreigner, especially the right to life and personal liberty.
• Citing ILR 2015(1) Kerala 410 [Jonathan Baud vs. the State of Kerala, the counsel emphasized that Article 21 is guaranteed even to the foreigners as long as they are in India. Moreover, the judgement also submitted that attending any meeting was not prohibited in any of the rules framed under the 1946 Act.
• Citing the case of Areni Lotha vs. Union of India (UOI) and Ors., reported at AIR 2006 Gau 83, they pointed out that if the Confidential Intelligence Report was not the basis of the order of expulsion, as the respondents argue, then such report cannot be taken into consideration while discussing the validity of the order.
• The following arguments were given by the counsel to counter the respondents;
• The counsel argues that the Article 21 has changed and has a wider scope than before, According to the counsel, and rightly so, “Law follows the society and, as such, the 1946 Act, particularly the interpretation thereof as given in Union of India and others vs. Ghaus Mohammad (supra), has now become obsolete.
• In the case of Hans Muller of Nuremberg vs Superintendent, Presidency Jail, Calcutta and others, the counsel submitted that the judgement was rendered at a juncture when the Constitution of India was at its “rudimentary stage of development”.
• For the Case Anwar vs. The State of J. & K. cited by the Central Government, the counsel countered that foreigner had illegally crossed the ceasefire line and was sentenced upon supply of reasons. Therefore, it does not apply to the present case as the petitioner still holds a valid student visa.
• Countering against the citing of Louis de Raedt vs. Union of India & Ors. the counsel submitted that the visa of the concerned foreigner had already expired which made them an illegal resident in the country which is not the case in the present petition.

The Court’s Order: The Writ Petition Succeeds

The Court submitted that the learned counsel is justified in arguing that such an order of expulsion, without giving any reason cannot be valid decision, especially in the view of the validity of the petitioner’s student visa at least till 30^th August 2020.

The court stated that “reason is the soul of any order and reveals the decision-making process which led to the conclusion logically, from the allegations levelled, the impugned order was, in any event, not valid in the eye of law.” It further said that whatever may be the powers given to the Central government, the necessity of disclosing the reasons for curtailing the valuable rights already accrued by the petitioner cannot be ignored.

Hon’ble Justice Sabyasachi Bhattacharya emphasized that “the Fundamental Rights enshrined in the constitution of India govern not only the Indian citizens, but foreigners as well, as long as they are on Indian soil.” Besides that, the Court submitted that the basic principle of Natural Justice was violated in the present case.

Moreover, the judgements cited by the Respondents’ counsel pertained to illegal immigrants and/or immigrants whose visa had expired which was not the case in the petition under review. The visa conferred valuable rights to the foreign student, not merely to stay in India but other associated rights.

Articles 14, 20, 21 and 22 are applicable to all human beings living in India, be they citizens or foreigners, as stated by the petitioner’s counsel. It has been established that the right to life and personal liberty of any person cannot be curtailed except according to the procedure established by law. These rights are not only enshrined in the Constitution of India but are time and again recognized by the United Nations as well as several charters and treaties between all nations of the world.

Keeping in mind the petitioner’s brilliant record in literature and culture of South Asia, the Court also recognized that “it is natural” for him to have free interactions in an atmosphere of freedom with Indians at least while in India. His ‘life’ and ‘personal liberty’ cannot be limited to a bare existence worth the name but also has the right to pursue and explore his interests in his field of specialization which is essential for him to lead a healthy life.

Furthermore, the Court added that the petitioner is only alleged to have attended a rally, that too as a by-stander and expressed some political opinions to the press. However, “such stray acts by themselves cannot be labelled as political activity, much less unlawful under the 1946 Act.”

The Court set aside the impugned order as null and void declaring that it is “a paranoid over-reaction contrary to the rights enshrined in Article 21 of the Indian Constitution.” The respondents and their agents were restrained from giving any effect to the said order in any manner.

In conclusion, the following statement perfectly encompasses the Court’s and the Country’s ideals;

“Indian society has all along been known as tolerant of all views, religions, and creeds. The influx and intermingling of visitors and Indian citizens are a part of Indian culture. India has welcomed students from all over the world and has permitted free interaction of minds and intellect between foreigners and Indians. Thus, the expulsion of the petitioner during subsistence of his visa, without having committed any penal offence, would send a wrong message to the world about India in general.”

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