Law on rights of foreigners should be non-arbitrary and pass the test of reasonableness

Past SC judgments which have set a precedent for the Centre which seeks to frame legislation with “long-lasting implications”

March 19, 2022 09:01 pm | Updated 09:01 pm IST - NEW DELHI

A view of the Supreme Court of India. File

A view of the Supreme Court of India. File

The Union government wants the Supreme Court’s help to frame a law with “long-lasting implications” on the rights of foreigners who violate visa conditions.

The government argues that issuance of visa is a “sovereign function”. There cannot be any remedy in court for a foreigner who breaks visa conditions. The Centre has indicated it wants a law which says that. Moreover, it seems to need the backing of the court too.

A 67-year-old judgment of a Constitution Bench in Hans Muller of Nurenberg versus Superintendent, Presidency Jail, Calcutta is a much-thumbed precedent from the Supreme Court in matters concerning rights of foreigners in India.

The top court, in this judgment, held that the Centre had an "absolute and unfettered right" to expel foreigners. But it added that foreign nationals have the basic right to be not deprived of their life or liberty "except according to procedure established by law”. The judgment took into consideration the prospect of a foreign national being detained before expulsion.

“Article 21 guarantees the protection of personal liberty to citizen and foreigner alike. No person can be deprived of his personal liberty ‘except according to procedure established by law’,” the five-judge Bench held in 1955.

A seven-judge Bench of the top court in Maneka Gandhi case interpreted the word “law” in the expression “procedure established by law” in Article 21 to be a law which “must be right, just and fair and not arbitrary, fanciful or oppressive”. The court held that the mere prescription of “some kind of procedure” cannot ever meet the mandate of Article 21.

“Procedural safeguards are the handmaids of equal justice and since the power of the government is colossal as compared with the power of an individual, the freedom of the individual can be safe only if he has a guarantee that he will be treated fairly,” the court had observed in its judgment in A.K. Roy’s case.

In short, any law or procedure the government proposes to frame to curtail a foreigner’s right to move a local court to protect his life and liberty should be non-arbitrary and pass the test of reasonableness. Such a law needs to be open for judicial review.

After all, the top court’s nine-judge Bench in the historic privacy verdict of 2017 had found judicial review “a powerful guarantee against legislative encroachments on life and personal liberty… To cede this right would dilute the importance of the protection granted to life and personal liberty by the Constitution”.

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