Gujarat High Court Backs Centre's Policy Denying Entry In India To Foreigners Convicted For Sexual Offences

Brief Facts

The petitioner though a USA citizen claimed to have his roots in India. In 2015, he was convicted of a sex offence against a minor under Section 22 of the United State Codes 212b(c)(1). He was under probation and had performed community service of 100 hours in 2021. On being covered as a sex offender the petitioner had to surrender his existing US passport and was issued a fresh USA passport with the endorsement that he is convicted of a sex offence against a minor. The endorsement was done by the US State Department by a communication dated 23.05.2022.

The petitioner came to India on 01.03.2022 and entered into a marriage. He sought to come to India for celebrating his marriage on 7.1.2023 and was issued an E-Visa on 7.12.2022 with a validity till 6.1.2023. By the communication of the Bureau of Immigration, India, dated 27.12.2022 he was stopped at Ahmedabad Airport and was deported to Dubai and the E-Visa was cancelled.

Hence, the petitioner through the petition under Article 226 of the Constitution, challenged the notice dated 27.12.2022 by which he was denied entry in to India.

Contentions

Counsel for petitioner I.H. Syed argued that the petitioner was not given an opportunity of hearing before the cancellation of his E-Visa. It was submitted that communication dated 27.12.2022 was issued under para 6 of the Foreigners Order 1948 and the power to refuse permission to enter India can be issued if, amongst other things, the Civil authority is satisfied that the foreigner has been sentenced in a foreign country for an extradition offence within the meaning of the Indian Extradition Act, 1903 (replaced by Indian Extradition Act 1962). The counsel for petitioner argued that petitioner is neither a fugitive criminal nor has been convicted for any extradition offence as defined under Indian Extradition Act of 1962 or under the treaty with the State.

Reliance was placed upon R.I. Jebaraj v. Union of India 2009 SCC OnLine, Mad., 160 (para 19- the petitioner was entitled to an opportunity of hearing); Mohamaad Salimullah and another v. Union of India 2021 SCC OnLine SC 296 (para 13- right not to be deported is ancillary to the right to reside and settle in any part of the territory of India) and Kamil Siedczynski v. Union of India 2020 SCC OnLine, Cal., 670 (Calcutta High Court held that though Article 19 confers rights on a citizen of India, right to life and liberty under Article 21 cannot be curtailed).

ASG Debang Vyas contended that it is a total misconception for the petitioner to bring in the concept of extradition when it was a plain and simple case of deportation by an Airline in compliance of para 6 of the Foreigners Order, 1948. It was further submitted that under Section 3 of the Foreigners Act, 1946, the Central Government may by order make provisions for prohibiting, regulating or restricting their entry. Orders have been issued in accordance with this provisions.

Reliance was placed upon Akil Valibhai Piplodwala (Lokhandwala) v. District Superintendent of Police, Panchmahal at Godhra, SCA No.13566/2022 where it was held that a person sitting in Dubai cannot invoke Article 21 to submit that his life and liberty in India is endangered.

Court’s Observation

The Court observed that the fact that the argument of petitioner that he has entered India on 1.3.2022 and therefore denial of this permission is misconceived. It said,

“As on 1.3.2022, the petitioner had a passport without the endorsement as aforesaid. On 23.05.2022, the United States Department of State, Washington D.C. through the Bureau of Consular Affairs, Passport Services, Office of Adjudication informed the petitioner that the earlier passport would stand revoked. Travel to India therefore on a passport prior to the issue of a fresh passport with the endorsement, cannot be a comparable instance.”

The court further held that the submission of petitioner, that one who is sentenced for an extradition offences cannot be permitted to enter and in absence of the Act of 1903, the applicable Act of 1962 provides that only a fugitive criminal who commits extraditable offences under a treaty can be prevented whereas the petitioner has not committed such an offence, is misconceived.

It noted that:

“The law of extradition and the Foreigners Act are different Acts. As per the laws of extradition the purpose is to handover persons who are alleged to have committed certain offences on the territories or who have already been convicted of those offences by their Courts are to be handed over to them in custody for prosecution or punishment. Section 3 of the Foreigners Act gives powers to the Central Government by order to make provisions either generally or with respect to all foreigners or a particular foreigner which provides that a foreigner shall not enter India.”

It also laid down:

“The Foreigners Order, 1948 therefore only authorizes the authority to deport a foreigner who lands in India and it is in light of this context that the order dated 27.12.2022 has to be read. The communication is addressed to the Airline to deport the petitioner in light of any of the contingencies as prescribed in para 3. The purpose of extradition not being a relevant consideration in these facts the purpose of his entry being restricted or prohibited is because of an order of the competent authority or under the specific orders of the Central Government. The communication of 27.12.2022 is a consequential order.”

On examining the judicial authorities cited by the learned counsels by both the parties the court observed that being the American citizen the petitioner cannot invoke Articles 14 and 19 of the Constitution on facts admittedly the petitioner is deplaned and is in Dubai.

The court noted that:

“The petition has been filed and affirmed by the petitioner’s father. Life and liberty of a person not on the shore of India, cannot be invoked on his behalf when the individual himself is not in India.”

Hence, the petition was dismissed.

Case Title: Dhanraj Rajendra Patel v. Union of India

Case Citation: 2023 Livelaw (Guj) 10

Coram: Honourable Justice Biren Vaishnav

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