[Image Credits – India Today]
The Ministry of Home Affairs has been in the news as of late, for issuing several ‘Leave-India Notices’ to foreign nationals in India. The Notices are being seen as the government’s attempt to stifle dissent as allegedly, they have been issued only to those foreign nationals who have participated in the protests against the Citizenship Amendment Act (“CAA”). The government has justified the notices, stating that they have been issued because the said foreign nationals have violated their visa conditions.
In the present post, I shall explain and breakdown the legal issues involved in the above stated controversy. I shall first discuss, the law governing an Indian visa and the conditions stipulated therein. Thereafter, I shall explain what is a Leave-India Notice and when can one be issued. This shall be followed up by analysing the recent spree of Notices.
A. Law on Grant of an Indian Visa –
As per the Seventh Schedule of the Constitution of India, the aspect of admission, emigration and expulsion of an individual from/in the territory of India, falls within the sole domain of the Parliament (Entry 19, Union List). Therefore, only the Parliament is empowered to make a law on these aspects, which also includes the law on issuance of passports and visas.
The Foreigners Act, 1946 is the primary legislation governing the entry of foreigners in India. Section 3 of the Act empowers the Central Government to make orders prohibiting, regulating or restricting the entry of foreign nationals in India. The Section also allows the Central Government to lay down the conditions, which a foreign national is bound to abide by during her/his stay in India, in other words the conditions governing her/his visa.
As per the Central Government orders issued under the Section, a foreign national is not allowed to engage in the following conduct/activities during the stay in India:
- Foreign Nationals are to strictly adhere to the purpose of their visit. For instance, a foreign national on a tourist visa is allowed to indulge only in recreation, sight-seeing, casual visit to meet friends or relatives etc. and no other purpose/ activity. Similarly, a foreign national on a student visa is allowed to indulge only in pursuing on-campus studies and no other activity [Clause 10].
- Foreign Nationals are not permitted to engage themselves in tabligh work i.e. preaching religious ideologies, making speeches in religious places, distribution of audio or visual display/ pamphlets pertaining to religious ideologies, spreading conversion etc. [Clause 16]
B. What is a Leave-India Notice/Exit of Foreigners Notice?
In case, a foreign national violates the visa conditions, the respective Foreign Regional Registration Office (“FRRO”) is empowered to issue a Leave India Notice to her/him and subsequently cancel the Indian Visa. In such cases, the FRRO is required to first issue a Notice to the concerned foreign national along with the reasons and seek her/his reply to the same. After considering the Reply, the FRRO may either cancel the Visa or revoke the notice.
In case the FRRO does not follow the said procedure, a foreign national has the right to approach the Courts under Article 226/32 of the Constitution. It should be noted that although majority of the Fundamental Rights enshrined in our Constitution are available only to the citizens, the rights under Article 14, 21, 32 & 226 are available to foreign nationals in India, as well.
The scrutiny that is exercised by the Courts while entertaining a petition that challenges a ‘Leave-India Notice’ is limited. This is primarily because a Foreign National has no substantive right to live/stay in India, whereas on the other hand the Competent Authority has an absolute and unfettered discretion to expel a foreign national from India (Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta, AIR 1955 SC 367 & Mohammad Hassan Jafari Naeimi v. Union of India, 2013 SCC OnLine Bom 1207).
The only fetter on this power of the Authority is the requirement of following due procedure, which is an enshrined right under Article 21 of the Constitution (i.e. the Right to Life) and is available even to a foreign national in India. In other words, while the Court cannot go behind the reasons for issuing the Notice, it can very well assess if the Authority has followed the due procedure (Hasan Ali Raihany v. Union of India (2006) 3 SCC 705).
The Hon’ble Delhi High Court in the case of Mohd. Javed v. Union of India, 2019 SCC Online Del 8741, struck down a Leave-India Notice, as the Authority had not provided any reasons behind issuing it. The Court opined,
“34. If authorities are permitted to direct valid visa-holders to leave the country without basis or without need for any consideration or reasoning, it would amount to anarchic and arbitrary action, which the law will never countenance…”
C. The Recent Spree of Leave India Notices:
The recent Leave India Notices have been issued by the FRRO primarily against students, for allegedly engaging in ‘anti-national activities’. While there is no such phrase mentioned in the Indian Visa Guidelines, foreign nationals are nevertheless prohibited from partaking in activities that do not constitute the purpose behind their visit. The guidelines regarding a Student Visa clearly state that a student shall indulge only in pursuing on-campus studies and no other activity. Therefore, the Notices issued are not against the substantive law of India.
In fact, the FRRO has provided the foreign nationals with an opportunity to respond to the Notice and even considered their reply. Therefore, one cannot allege that the Authority has failed to comply with the procedural or substantive requirements of the law. In fact, in cases where the Foreign National has violated her/his visa conditions and the Authority has followed the due procedure in cancelling the visa, the Court has upheld the move (Hesham Badawy v. UOI, 1998 SCC OnLine Del 712).
Therefore, one may speculate and attribute political motives to the recent Notices issued but it cannot be said that the Authorities have not followed the law.
[While researching for this post, I came across several articles attacking the Notices on the ground that they violate the Right to Peaceful Protest of the foreign nationals. I wish to clarify that the Right to Peaceful Protest is recognised under Article 19 of the Constitution of India and is only available to Indian citizens (Anita Thakur v. Govt. of J&K, 2016 SCC OnLine SC 814). Therefore, it is legally incorrect to state that foreign nationals have a right to protest in India.]
[Views expressed are personal.]
where is clause 10 and clause 16 you are getting from ? please clarify