High Court · 2012

3. Assailing the Guwahati F.R.O’s order, Mr. A. Choudhury, the lear ned Counsel contends that the petitioner entered India on a Tourist Visa valid u ptil 14.2.2021 and being a foreign national, who has entered into through a lega l process, he can’t arbitrarily be ordered to Quit India since a valid decision is not reached in accordance with law, under Article 13 of the International Cov enant on Civil and Political Rights dated 16.12.1966 (hereinafter referred to as (cid:28)the International Covenant (cid:29)).

4. Since Section 3 of the Foreigners’ Act, is an enabling provisio n to regulate the entry of foreigners and such enabling power doesn’t authorize the Central Government to issue a substantive order of expulsion against a fore ign national, the petitioner questions the competence of the Central Government to pass the impugned expulsion order.

5. Referring to Clause 7, 11 & 11(A) of the Foreigners Act, 1996, M r. Choudhury submits that although restriction on a foreign national’s movement and activities is envisaged under the Foreigners Order, since the International Covenant is required to be followed by every signatory nation, expulsion of the foreign individual can’t be ordered unless, the reason for expulsion is made kn own to the affected person as prescribed under Article 13 of the International C ovenant. In order to project the applicability of the International Covenant, Mr . Choudhury refers to Sarbananda Sonowal vs. Union of India reported in (2005) 5 SCC 665, where the Apex Court has spelt out the rights of an alien in our coun try, under Article 13 of the International Covenant.

6. Although reasons were not reflected in the impugned expulsion o rder, Mr. B.J. Ghosh, the learned Government Advocate refers to the report dated 21.2.2012 of the Joint Director (respondent No.3) of the Subsidiary Intelligenc e Bureau to argue that during the last 4 years, the petitioner is preaching Chri stianity and is frequently visiting the North Eastern States and since these act ivities of the petitioner are not permitted under a Tourist Visa, the expulsion of the petitioner was rightly ordered by the Union Home Ministry. The Government Advocate submits that the petitioner since his ar 7. rival in India on 5.9.2007, has crossed over to Nepal (via Raniganj Check gate) once every six months on 7 or more occasions and returned to India the very next day to avoid registration with the local F.R.O. on his re-arrival. Accordingly the Counsel argues that since the petitioner has failed to report to the Registr ation Officer as required by Rule 6 of the Registration of Foreigners Rule 1992, mere holding of a Tourist Visa can’t enable the foreigner to remain in India f or such long periods ---- without due registration under Rule 6 of the Registrat ion of Foreigners Rule 1992. Since the petitioner had visited Manipur without prior approval 8. of the Government of India, Mr. Ghosh submits that the foreign national has infr inged the visa condition(s) and he can’t therefore claim a right to continue to remain in India.

9. Mr. H. Sarma, the learned Central Government Counsel submits tha t the petitioner is indulging in religious activities and preaching Christianity in violation of his Tourist Visa status and accordingly the Union of Home Minis try had to order for his expulsion from the country.

10. The Government affidavit(s) shows that the impugned expulsion or der was the result of the direction dated 21.2.2012 of the Joint Director (respo ndent No.3) of the Subsidiary Intelligence Bureau where only it was indicated th at, the activities of the petitioner are not commensurate with the condition(s) of Tourist Visa and accordingly the F.R.O. was directed to issue the Quit India Notice to the petitioner. But this reason wasn’t disclosed in the impugned conse quential order served on the foreign national.

11.. Since the petitioner’s pastoral training activities is the cause for the Quit India order, it may be useful to consider whether training of past ors and propagation of religion are considered illegal activities in India. In t his context, reference to the case of Ratilal Panachand Gandhi vs. State of Bom bay reported in AIR 1954 SC 388, may be useful where the Apex Court declare d that Article 25 guarantees even to foreign citizens, the freedom for propagat ion of religion subject to reasonable restriction for public order, health and m orality. Thus the Court has to proceed herein with the understanding that even a foreign national has a right to propagate religion within the bound of the regu latory measures permitted by Article 25 of the Constitution. On deportation of alien national, the Supreme Court in Sarbanan 12. da Sonowal (Supra) has made a distinction between those entering surreptitiousl y and those with valid Visas and declared that the International Covenant of 196 6 would apply only to those who have lawfully entered India with a valid Passpor t and Visa. Because of Article 13, expulsion can’t be ordered arbitrarily, but h as to be based on a decision reached in accordance with law and other than compu lsions of national security, Article 13 envisages communication of the reason an d for Review of expulsion decision by considering the representation of the affe cted foreigner.

13. In this case, there is no dispute that the petitioner entered In dia with a valid USA Passport and on the strength of Tourist Visa issued by Indi an authorities. In this backdrop when the procedure for expulsion of the alien i s prescribed under Article 13 of the International Covenant, and in the absence of any emergent compulsion of national security, the authorities are expected to communicate the reason to the affected person. While preaching of Christianity even by a foreign national may b 14. e protected under Article 25 of the Constitution, the permissible extent of acti vities under a Tourist Visa must however be borne in mind. A normal foreign tou rist is expected to confine his activities to recreation, sightseeing, casual vi sits to friends or relative etc. in the country of his visit and non tourist act ivities may amount to misutilisation of Visa privilege. The petitioner in the pr esent case doesn’t claim that his activities in India were that of a tourist but it is frankly admitted that the petitioner is in India with a specific purpose and that is to conduct pastoral training under the banner of the organization PT A.

15. Under Rule 6 of the Registration of Foreigners Rule, 1992, a for eigner can’t remain in India even on a valid Visa for more than 180 days at a st retch and is required to periodically report every 6 months before the Registra tion Officer. But here it is obvious that the petitioner has arranged his one da y Nepal visits in such a manner that his stay in India is broken with a 1 day ex it trip to Nepal. Through this modus operandi of 1 day excursion to neighbourin g Nepal and next day re-entry into India, the foreign national ensures that he c an skip the requirement of reporting under Rule 6. Of course when the petitioner first entered India, he reported to the Registration Officer on his arrival und er Rule 7 of the Registration Rules, but it is clear that the petitioner is avoi ding to periodically report despite the prolonged stay in India for last 4 years , by ensuring that his stay at any given point of time doesn’t stretch at one go , beyond 180 days.

16. Although the Central Government has taken the decision to expel the petitioner for violation of Tourist Visa condition(s) because of his pastora l training activities, the petitioner was never informed about the reason for hi s expulsion. But Article 13 of the International Covenant permits expulsion only in pursuant to a decision reached in accordance with law and in my considered v iew, since the petitioner was never informed of the reason, the impugned decisio n can’t be said to be a valid decision reached in accordance with law.

17. It must also be borne in mind that the impugned order was passed under Section 3(2)(C) of the Foreigners’ Act and since Section 3 is only an en abling provisions, a substantive order can’t legitimately be passed under this p rovision to order expulsion.

18. Furthermore, the F.R.O. while ordering expulsion didn’t give any reasons and the respondents have mentioned the reasons only in their counter af fidavits filed in Court. But this is impermissible because of the law declared i n Commissioner of Police vs. Gordhandas Bhanji reported in AIR (39) 1952 SC 16 where, Justice Vivian Bose declared that (cid:28) & & &.Public orders made by public a uthorities are meant to have public effect and are intended to affect the acting s and conduct of those to whom they are addressed and must be construed objectiv ely with reference to the language used in the order itself (cid:29). Therefore when the impugned order was devoid of reason, the State can’t be allowed to give justifi cation for the order through affidavits filed in the Court.

19. When a procedure is laid down for expulsion of foreign nationals , the State is expected to adhere to the procedure established by law to avoid a rbitrariness in their decision. A person subjected to an adverse decision has a right to know the reason for the decision and subject to compelling reasons of n ational security, the affected foreign national can request to have the decision reviewed by the authority. These procedure under Article 13 of the Internation al Covenant can’t be reduced to mere formality as they provide important safeg uard to prevent arbitrary action by the host nation.

20. In democracy, Rule of law is paramount and when a decision has t o pass the test of fairness, the procedural as well as the substantive complianc e of law is mandatory. When we find that the impugned order is devoid of any rea son and the affected person face expulsion without being aware of the cause for the order, it is a clear case of infringement of the substantive legal process a nd considered from this aspect, the impugned order is held to be legally unsusta inable.

21. If the legality of the procedural leading to issuance of the exp ulsion order is examined, what is seen here is that the expulsion order was not based on any independent assessment by the FRO on the permissibility of the past oral teaching activities of the petitioner. But the FRO issued the order mechani cally on orders of the Union Home Ministry as communicated on 21.2.2012 to the F RO by the Joint Director, Subsidiary Intelligence Bureau. This communication its elf acknowledged that the petitioner visited Manipur in December, 2009 and Augus t 2010, with valid Protected Area Permits (PAP) and that the Indian authorities were certainly aware of the purpose of the petitioner’s multiple visits and his role as the Guwahati based coordinator of Pastoral Training of Asia organization . Furthermore although his activities in India had nothing to do with usual tour isty activities, PAP was issued to the petitioner. Significantly, when the expul sion order was issued, the petitioner was awaiting a decision on his application for change of Visa status from (cid:28)Tourist (cid:29) to (cid:28)X-Visa (cid:29) category, as he got marri ed (5.1.2012) in the meantime to an Indian lady. But all these aspects were not considered by the respondents.

22. As is already recorded earlier, the FRO couldn’t have resorted t o the enabling provision of Section 3 of the Foreigners Act to issue a substanti ve order of expulsion. Under the International Covenant on Civil and Political R ights, each signatory nation is obliged to provide under Article 12, the liberty of movement to a lawful foreign visitor and the power of expulsion is to be exe rcised in the manner provided under Article 13. But in this case, the test of fa ir, just and reasonableness is not satisfied by the procedure followed by the re spondents. The petitioner should have been communicated with the reasons for ex pulsion and if he made a request for reconsideration, the authorities could have re-considered their decision if the circumstances warranted re-consideration. W hen so many aspects of procedural safeguards were disregarded, the action in my view can’t be termed as fair and lawful. Consequently the procedure leading to t he impugned decision is held to be unsustainable in law.

23. However despite the above conclusion, since the activities of th e petitioner in India are not that of a person visiting a foreign country on a T ourist Visa, the State authorities if so advised, are granted the liberty to pro ceed afresh against the petitioner, in accordance with a legally acceptable proc edure. It is ordered accordingly.

24. the extent indicated above without any order on cost. With the above observation, the writ petition stands allowed to