‘Family’ entitled to protection against arbitrary interference by the State, Delhi HC upholds Pakistani national’s Right to Life

Aditi Singh

The Delhi High Court has held that family, being the natural and fundamental unit of society, is entitled to the protection of its integrity against arbitrary interference by the State.

It has also held that the Right to Life under Article 21 of the Constitution of India would include the right of young children to live with their mother and the right of a husband to consortium with his wife.

In doing so, the Court has held that even a Pakistani citizen is entitled to the Right to Life in its expanded interpretation.

The judgment was passed by a Division Bench of Chief Justice Rajendra Menon and Justice Anup J Bhambhani in a plea concerning the cancellation of the ‘Long Term Visa’ granted to one of the petitioners, who is a Pakistani citizen.

The petitioner, Nausheen, was married to Indian citizen Mohd Javed in August 2005 as per Islamic Sharia norms and conventions. The couple had two sons, one about 11 years old and the second about 6 years of age, who were Indian citizens.

Nausheen came to India in August 2005 on a visitor visa and returned to Pakistan in September 2005. Thereafter, she returned to India to visit her family in June 2007 on a visitor visa. Subsequently, she was granted a ‘Long Term Visa’ (LTV) on the ground that she was desirous of living with her husband and family. The LTV, which was to expire in November 2010, was extended from time to time and the latest extension was granted until June 8, 2020 by way of an online application.

Over the period of her stay in India, Nausheen also visited Pakistan on multiple occasions pursuant to a ‘No Objection to Return to India’ issued by a Ministry of Home Affairs’ policy for grant of LTV to Pakistani nationals.

However, in February 2019, the petitioner received a ‘LEAVE INDIA NOTICE’ from the Ministry, directing her to leave the country within fifteen days.

The notice was challenged by the petitioner and her husband before a Single Judge of the Delhi High Court. The writ petition was dismissed by the Single Judge on the ground that Nausheen had no right to reside in India. The Single Judge Bench also went through certain inputs available with the Ministry and concluded that cancellation of LTV was not arbitrary.

The petitioners thus challenged the order of the Single Judge Bench in a letters patent appeal before the Division Bench.

In the appeal, it was argued that the Foreigners Act, 1946, vested the Central Government with absolute and unfettered discretion to expel a foreign national from India and that there was no statutory obligation to serve a Show Cause Notice to the foreigner before expulsion.

The Ministry also placed two separate reports in sealed covers containing inputs received from the Intelligence Bureau, which were the basis for its direction to Nausheen to leave the country immediately.

After going through the reports, the Court recorded that it was “unable to discern any information” which warranted Nausheen’s departure from the country.

We say so for two principal reasons: firstly, the ‘inputs’ do not disclose any conduct on Nausheen’s part that may be perceived as egregious enough to warrant such action; and secondly, the ‘inputs’ refer to matters that are not proximate to the issuance of the Notice so as to inspire any confidence that there is a connection or causal link between the matters referred to in the ‘inputs’ and the issuance of the Notice.”

The Court also recorded that prior to issuance of the notice, there was no communication between the Ministry and Nausheen in relation to any proposed or possible curtailment of her entitlement to remain in India on the basis of her LTV.

It was further observed that till now, no other action by any law enforcement agency, Ministry, or other authority had ever been initiated against Nausheen.

The fact that the last extension of the LTV was granted to Nausheen online suggested that hers was a case of an ordinary, routine renewal and that she Nausheen was not under ‘watch’ by the authorities for any wrongdoing, the Court observed.

..the overall facts and circumstances of the case, including in particular, the conduct of the Ministry and the authorities, do not inspire confidence or persuade us to believe that Nausheen is a persona non grata.”

After examining the case from a “juristic standpoint”, the Court remarked that the matter pertained not to Nausheen’s substantive right, but to her procedural right to due process.

Confusion appears to have arisen from the perception that the ‘right’ being considered is Nausheen’s ‘right to live in India’, which it is contended, she has none since she is an alien or foreigner. That is indeed true. What we are losing sight of though, is the fact that Nausheen is not an illegal immigrant and has not entered India clandestinely or unlawfully but has been continually residing in India for the last thirteen years on a valid visa, which has been renewed by the authorities from time-to-time.

What is under the lens here is not Nausheen’s right to reside in the country but the Ministry’s authority to revoke a valid and subsisting LTV without following any process or procedure whatsoever and without arriving at a reasoned decision based on a factual matrix.”

Reiterating that the rights enshrined in Articles 20, 21 and 22 of the Constitution are available even to non-citizens or foreigners, the Court observed that the notice impacted Nausheen’s Right to Life in its “expanded interpretation”. It also affected her family members, who are Indian citizens.

The Court also concluded that although the Ministry derived the power to regulate the entry, stay and exit of a foreign national from Section 3 of the Foreigners Act 1946, the exercise of such power could never be untrammelled or unregulated.

The fact that the power is exercised upon or against a foreigner is not the point. It is the existence of unguided power in the hands of an authority that is in issue. Providing a procedure for its exercise is the basic minimum restraint on exercise of any power. What, may we ask, is the procedure for exercise of the Ministry’s power to direct a foreigner on a valid and subsisting visa, to leave the country. If no procedure is discernible in the statute, a basic procedure must be read into it.”

The Court further clarified that it was not holding the Ministry to the standard of a “just, fair or reasonable procedure” laid down in Maneka Gandhi vs. Union of India & Anr, but only sought to know if any procedure was followed at all.

We are afraid we are unable to discern any procedure whatsoever having been followed before the issuance of the Notice. The abrupt and peremptory issuance of the Notice itself cannot, on any parameters, be construed to be a procedure.”

The Court further observed that the Ministry’s conduct threw the mandate of Articles 13, 17 and 23 of the International Covenant on Civil and Political Right to the wind.

It also opined that due weight ought to be given to the family life of all the parties concerned in this case. Not just Nausheen, but her husband and the two minor children were also entitled to consortium, love and affection of Nausheen and had the right to live as a family, the Bench held.

How then can the rights of a family against arbitrary and capricious interference by the State not be protected as part of the ever-growing bundle of rights under Article 21? Drawing upon the covenants contained in the ICCPR, we hold that the ‘family’, being the natural and fundamental unit of society, is entitled to the protection of its integrity against arbitrary interference by the State.”

It thus went on to declare that the Right to Life under Article 21 would include the right of young children to live with their mother and the right of a husband to the consortium with his wife.

State entities cannot be permitted to deprive Nausheen’s sons and husband of these rights, merely by a stroke of the pen, in a manner that smacks of authoritarianism, without authority of law and without complying with basic tenets of natural justice and without affording her an opportunity of hearing to answer any matter alleged against her.”

Therefore, the Court held that the notice ought to be quashed and set aside. Accordingly, the order passed by the Single Judge was also set aside.

The Ministry and other concerned authorities were directed to consider and decide Nausheen’s citizenship application in accordance with the law.

The petitioners were represented by Senior Advocate Colin Gonsalves with Advocates Bilal Anwar Khan, Mohd Sajid and Suroosh Anwar.

The Centre was represented by Additional Solicitor General Maninder Acharya with Standing Counsel Anurag Ahluwalia and Advocate Kartikeya Rastogi.

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