"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", the Court said.
The Calcutta High Court has struck down the Central Government's notice directing Polish student, Kamil Siedczynski to leave India after he was seen as part of a protest against the Citizenship (Amendment) Act, 2019.
On Wednesday, Justice Sabyasachi Bhattacharyya concluded that,
Kamil Siedczynski, a master's student in Comparative Literature at Jadavpur University was served with a Leave India notice last month from the Foreigners' Regional Registration Office (FRRO), Kolkata. The notice, dated February 14, had directed the student to leave the country within 14 days of its receipt.
The notice was received by the student on February 24. It informed the student that his visa stood cancelled for having participated in anti-government activities, in violation of visa rules.
The Court was told by the State that the decision to serve the Leave India Notice on Siedczynski was based on confidential reports, for participating in political activities that were critical of an act of the Indian Parliament. The same was not permissible for foreigners, it was argued.
In this regard, it was also contended that Siedczynski could not claim rights under Article 19 of the Constitution, since the same is only available to Indian citizens.
The Court, however, pointed out that Siedczynski would still be entitled to rights under Article 21 to life and personal liberty, which cannot be curtailed in violation of the procedure established by law.
"A perusal of Article 19 of the Constitution of India shows that the rights provided therein have been conferred upon “citizens” of India. However, such rights are not specifically excluded by the said provision in respect of foreigners. In the event the right to life and liberty and associated rights are curtailed by any government action, the same is always subject to judicial scrutiny on the yardstick of fundamental rights guaranteed by the Constitution of India … It is evident from the language of the Constitution that Articles 14, 20, 21 and 22 apply to all human beings living in India and is not restricted to her citizens only."
Calcutta High Court
The Court added that the exercise of such rights would include Siedczynski's free interaction on Indian soil. In this regard, the Court has also commented that,
"The expression of one’s free will through any mode and participation and interaction with Indians, of any caste, creed and colour, having whatever socio‐political and economic background, is a part of a healthy life and has to be read into the wide ambit of Article 21 of the Constitution."
Calcutta High Court
"For a brilliant student of the academic standard of the petitioner, it is but natural that the petitioner shall have free interactions in an atmosphere of freedom with Indians, at least while in India", the Justice Bhattacharyya observed.
The judge went on to find that the participation Siedczynski's participation in the Anti-CAA rally by itself "cannot be labelled as ‘political activity’, let alone being unlawful under any Indian statute, including the Citizenship Act,1946.
Further, it was noted that such rights do not only find their source in the Indian Constitution, but rather that they inhere in all human beings, regardless of citizenship. As noted in the judgment passed today,
"Such liberties, as guaranteed by the Constitution of India, do not arise from the Constitution alone but are basic rights inherent in human existence, as recognized internationally, over the edges, which are also recognized by the Constitution of India. The source of such rights is not merely the Constitution, which itself is the grundnorm of Indian legislation, but also inhere in a human being, be she/he an Indian or a foreigner."
Calcutta High Court
The judge went on to find that the participation Siedczynski's participation in the Anti-CAA rally by itself "cannot be labelled as ‘political activity’, let alone being unlawful under any Indian statute, including the Citizenship Act,1946.
While this is the case, the Court held that Siedczynski's expulsion from the country, at a time when he had a valid visa to stay and without sufficient justification would also send the wrong message to the world about India, which is otherwise known for being "tolerant of all views, religions and creeds."
"... 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. The mere activity of participation in a political rally is included within the right to life and personal liberty and freedom of speech and expression, particularly in respect of a student with brilliant academic career, whose consciousness is above the ordinary and is required to be cultured."
Calcutta High Court
In view of these, among other, observations, the Court concluded that there were no grounds justifying the Leave India Notice issued to Siedczynski. Therefore, the notice was quashed as unconstitutional, while allowing Siedczynski's plea.
[Read the Judgment]
