'Rights Of Aliens On Foreign Soil Are Those Which Host Country Grants': Karnataka High Court Denies Relief To Chinese National Overstaying Visa

Observing thus, Justice Krishna S Dixit dismissed the petition filed by one Li Dong, a native of the People's Republic of China, who has been overstaying in India, in spite of her visa having expired.

The petitioner had sought directions to the authorities to facilitate the extension of her stay on Indian soil indefinitely.

The court said, "Our Constitution extends certain Fundamental Rights to non-citizens as well, inter alia under Articles 14, 20 & 21, is true; however, the degree & extent of their availment vary depending upon the circumstances, which the domestic law envisages."

Petitioner Li Dong had challenged the Leave notice and the exit permits issued to her, the latest being dated November 11. Assistant Solicitor General Shanti Bhushan opposed the petition.

Findings:

The court, on considering the facts of the case and the representation made to the authorities by the petitioner on May 7, wherein she had made a grievance against the Visa Authorities in not recalling the Leave India Notice, said,

"A foreigner who has apparently overstayed the Visa period cannot ask for an explanation from the host country as to why she has been issued an Exit Notice. The very language offends the principle of Sovereignty of Nation State."

It added that, "India has shown appreciable leniency in granting automatic extension of visa period because of COVID-19 pandemic till 30.09.2021 by issuing Orders from time to time, as borne out by record."

As regards the contention of the petitioner that India being a signatory to the International Covenant on Civil & Political Rights, 1966, does not permit expulsion of an alien from the territory of a host country except in accordance with law, the court said, "while the ICCPR does require a State to expel aliens in accordance with law, it refers to those foreigners who are in the host country 'lawfully'; petitioner admittedly is overstaying the Visa & extended Visa."

It added, "Petitioner is being asked to leave the country not all of a sudden as sought to be made out by the pleadings & submissions. Her visa expired long ago, despite the issuance of Leave India Notices in series, she has been clinging on to Indian soil with one or the other excuses."

Further, the court noted that a distinction is made in practically all countries between citizens & non-citizens and between domiciled & non-domiciled aliens, with reference to their rights & duties. It observed, "How the aliens (foreigners) should be treated is essentially a policy matter left to the wisdom of the government of host country. Several pragmatic factors and the lessons gained from experience enter the fray of foreign-policy-making and it's implementation.In matters of this kind, courts lack expertise in assessing the worth & relevance of such factors and therefore as of necessity recognize a greater latitude in the Executive."

The court went on to opine that, "The competent authorities have taken the decision to issue Leave India Notices and the judiciary being an organ of the State has to show due deference to such decisions of other organs. That is the essence of the doctrine of 'Separation of Powers' which is recognized as a basic feature of our Constitution."

The court also queried with the counsel for the petitioner as to how overstaying Indians are treated in the country to which his client belongs (China). When no reply was forthcoming, the court based on its own research stated that, "Such persons are treated with hefty penalties & stringent punishments; in almost all countries. Overstaying the Visa period per se is made an offence, although punishments & penalties vary in degrees."

The court held that, "There is absolutely no justification for the petitioner to stay on Indian soil any longer, disobeying a series of Leave India Notices; such foreign nationals cannot be granted indulgence by the constitutional courts."

It added that, "The writ petition being devoid of merits is liable to be dismissed and accordingly it is. However, the Competent Authorities in their discretion may conditionally permit the petitioner to stay in India till the first flight to China is scheduled and not beyond that."

Courts Suggestions:

The bench noted that, "Nowadays courts have been noticing a large chunk of cases involving overstaying of VISA and VISA violation by the foreigners; in quite a few cases, an impression is gathered that the aliens concerned want to somehow perpetuate their continuance in the Indian Territory and for this, several devious strategies are adopted. One such means is to commit some bailable offence and to trigger the prosecution which would more often than not be dragged for a long time."

Accordingly it made the following suggestions:

1: It is desirable to incorporate appropriate conditions in the VISA documents so that the foreigners shall leave Indian territory soon after the expiry of the VISA period without brooking any delay.

2: An assurance can be insisted upon from the concerned foreign countries for the cancellation of the travel documents of their citizens co-terminus with the expiry of their VISA so that their expulsion becomes easy consistent with the principles of Sovereignty & Reciprocity.

3: An appropriate provision can also be made for discouraging their entry to India on subsequent occasions, as well; this apart, the penalties/fines for overstaying aliens should be reasonably enhanced commensurate with the seriousness of the issue.

4: Request the concerned foreign States to recall their Nationals immediately on the expiry of their travel documents; precautionary measures may be many but the policy makers need to advert to them, keeping in view all relevant factors.

Case Title: Li Dong v. Union of India

Case No: WP. 22003 of 2021

Date of Order: 3rd Day of December, 2021

Appearance: Advocate Ajesh Kumar S for petitioner; ASG H Shanti Bhushan for respondents.

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