CASE COMMENT : KAMIL SIEDCZYNSKI V UNION OF INDIA by Ritik Dhankhar

Posted on: January 20, 2021 Posted by: admin Comments: 0

Author: Ritik Dhankhar, Student at Army Institute of Law, Mohali, Punjab.

INTRODUCTION

India is one of the largest democracies in the world which is backed up by the most detailed Constitution. Our Constitution lays down various duties and functions of the Central and State Governments and also guarantees every citizen some basic fundamental rights which no entity or institution can take away. It not only focuses on the rights of the citizens but also creates an imperative value for the foreigners who visit the territory of India by guaranteeing them with the same fundamental rights like that of a citizen. But things went differently in this case as a Polish student got entangled in a heated political environment between the protesters and the Central Government.

FACTS OF THE CASE
  1. Kamil Siedczynski, the petitioner, is a Polish national who had come to India on a student visa till 31st August, 2020. He is pursuing a master’s degree in the Department of Comparative Literature.
  2. On December 19th, 2019 the petitioner had participated in a peaceful protest against the Citizenship (Amendment) Act, 2019 which was being discussed in the parliament at that time.
  3. On 14th February, 2020 a Leave India Notice (LIN) was issued to him by the Foreigners’ Regional Registration Office (FRRO) and a last date to appear in a hearing regarding his expulsion was fixed by the authorities as 24th February, 2020.
  4. The petitioner then approached the Calcutta High Court challenging the said notice.
ARGUMENTS BY THE PETITIONER
  1. No hearing was given to the petitioner before the issuance of the Leave India Notice (LIN) since it was issued on 14th February 2020 and the last date for the petitioner to appear in a hearing before the authorities was 24th February 2020. Such procedure is just an empty formality and would serve no purpose.
  2. The notice passed by the respondent does not qualify as an “order” under the provisions mentioned in Section 3 of the Foreigners Act, 1946.
  3. Although Article 19 is applicable to only citizens Article 14, 20, 21, and 22 of the Constitution are applicable to foreigners as well and to protect their rights and liberties are envisaged in the Constitution.
ARGUMENTS BY THE RESPONDENTS
  1. The Foreigners Act, 1946 is wide and gives unfettered powers to the Central Government. Section 14 of the Foreigners Act says that a foreigner can be subject to penal consequences if his/her stay in India is illegal.
  2. Section 3 of the Foreigner’s Act does not mention any provisions that a prior hearing should be given to the concerned foreigner before making an order of expulsion.
  3. The order for expulsion is not only based on a newspaper publication but also on surveillance on the petitioner from January 2020 which is sealed in a confidential report to protect the identity of the concerned Investigative officer and in view of the secrecy involved in the investigation.
  4. The petitioner is a foreigner on a student visa and therefore cannot participate in any political movement (the petitioner has already admitted to attend a political rally) to criticize the Government since the right to criticize the government only lies with the citizens of this country under Article 19 of the Constitution.
ISSUES BEFORE THE COURT
  1. Whether the decision of the Foreigners Regional Registration Office (FRRO) to issue a Leave India Notice (LIN) without giving a proper hearing is valid?
  2. Whether the right to participate in a political movement applies to foreigners as well?
  3. Whether the Confidential Report have any sufficient evidence to issue the Leave India Notice (LIN)?
  4. Whether the Newspaper Reports can be the basis of expulsion?
  5. Whether the government has absolute power under Section 3 of the Foreigners Act, 1946?
JUDGEMENT

PRINCIPLE OF AUDI ALTERAM PARTEM VIOLATED

  1. The court observed that the petitioner was not given any opportunity to be heard before the Leave India Notice (LIN) was issued. The order did not even explain the reason of expelling the petitioner.
  2. The Court agreed with the petitioner’s arguments that passing of such an order without giving any reasonable opportunity to be heard and considering the fact that the petitioner had a valid visa, the impugned order has violated the principle of audi alteram partem.
  3. A hearing was provided after the Leave India Notice (LIN) was issued which makes the hearing merely a lip-service and eye-wash.
  4. Moreover, the court observed that most of the case laws cited by the respondents focused on the consequences of illegal immigrants, giving absolute powers to the government to take necessary actions. However, it cannot be said in the present case because the petitioner was a valid visa holder and not an illegal immigrant.

ARTICLE 21 HAS BEEN VIOLATED

  1. In respect to Article 19, the rights provided to the citizens does not deprive a foreigner of any rights mentioned in the Article. The rest of the fundamental rights (Article 14, 20, 21 and 22) are applicable to all the persons living in the territory and is not restricted to only the citizens of this country.
  2. Therefore, Article 19 is does not insinuate a negative language upon the foreigner’s right and the right to life and personal liberty, along with all associated rights, including the right to have political views and participate in political activities comes under the ambit of Article 21 of the Constitution.
  3. In a democracy like India, the right to life and personal liberty not only emanates from the constitution but is also a basic human right which is accepted by today’s civilized society.

CONFIDENTIAL REPORT NOT SUFFICIENT TO PROVE PETITIONER’S EXPLUSION

  1. A confidential report was prepared by the government after keeping the petitioner under surveillance from January 2020 and was submitted to the court as primary evidence for expelling the petitioner.
  2. Although the court is not allowed to reveal the sensitive contents mentioned in the confidential report but the court concluded that there isn’t any sufficient evidence insinuating that the petitioner was involved in an illegal activity or having committed any criminal offense which may justify the Leave India Notice (LIN).

NEWSPAPER ARTICLE CANNOT BE THE BASIS OF EXPULSION

  1. The court observed that a newspaper article cannot be the basis of the expulsion of the petitioner since such report is not acceptable in any court of law or statutory authority as evidence regarding the activity of the petitioner, in the absence of any concrete proof of any illegal activity being done by the petitioner.
  2. Even the newspaper article submitted by the respondents does not disclose any substantial evidence that the petitioner violated any of the Indian Laws.

GOVERNMENT DOES NOT HAVE ABSOLUTE POWER

  1. Government has the power under Section 3 of the Foreigner’s Act 1946 to expel any foreigner that violates any of the government rules and guidelines that is issued under this Section.
  2. However, the court observed that Section 3 of the Foreigner’s Act 1946 cannot be used in an unfettered and arbitrary manner unless the act explicitly says so. Neither the 1946 Act, nor any other statute restricts an Indian or a Foreigner from taking part in political activities.
  3. Based on the facts of the case, the court also believed that the petitioner was just a bystander and had given certain political opinions to the press since it is natural, that a student with a brilliant academic record, for him to have interactions with other people.

CASE LAWS CITED

  1. The court observed the case of Arena Lotha v Union of India,[1] as it was on a similar issue to the present case since the doctrine of Audi Alteram Partem was held valid to be applicable by virtue of Article 21 of the Constitution of India even for a foreigner. Although the judgement is not binding. It does have a persuasive value.
  2. In Mohd. Javed v Union of India,[2] the Delhi High Court observed once a visa is granted on valid grounds, the same cannot be trimmed down by the Central Government.
  3. In Jonathan Baud v State of Kerala,[3] the Kerala High Court held that Article 21 of the Constitution is applicable to a foreigner as well as the foreigner concerned continues to stay in India. It was held that since the appellant had addressed a meeting organized by a political group, he could not be treated as a radical and could not be confined to jail.
COMMENTS
  1. The Court’s decision was coherent and justified considering the fact that how the Central Government misused their power under Section 3 Foreigners Act, 1946 and tried to expel an innocent foreigner just because he attended a political rally.
  2. The basic principle of Audi Alteram Partem is the heart and soul of any healthy democracy and a basic human right and bypassing this principle attracts arbitrariness and unconstitutional rhetoric. Every person is innocent until proven guilty and without a proper and a fair hearing, this principle would not fade and still hold meaning.
  3. This very principle can also be reflected in Article 14 of the International Covenant on Civil and Political Rights, 1966 states that: “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”
  4. The government is under a solemn oath to protect the constitution and its people and not to exercise any of this power in a vindictive or in an unprincipled manner; it has to be exercised for the public good.
  5. Every Government institution must be within its constitutional obligations it has upon its people and if it departs from such standard, then that action of the authority in power would be liable to be struck down.
  6. The Hon’ble Court also observed that people of various cultures have visited India and often have become an inseparable part of Indian culture and society. The Indian society has been known tolerant of all views, religions and creed. Therefore, discriminating citizens and non-citizens on the basis of their freedom of speech is ambiguous and devoid of logic in a country like ours.
CONCLUSION

Respecting each other’s culture and background is an inherent feature of our country and should never be severed for any political benefit. Therefore, it is essential to treat every individual, irrespective of his background and culture, with equal respect in the eyes of law. That is the inherent value that this country stands for and should always be sustained in order to cherish equality and equity before law.

REFERENCES

[1] Areni Lotha v Union of India, AIR 2006 Gau 83

[2] Mohd. Javed v Union of India, AIR 2019 Del 170

[3] Jonathan Baud v State of Kerala, (2015) 1 KLT 111

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