Li Dong vs Union Of India
2021 Latest Caselaw 5384 Kant

                          1

  IN THE HIGH COURT OF KARNATAKA, BENGALURU              R
   DATED THIS THE 3RD DAY OF DECEMBER, 2021

                       BEFORE

       THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

       WRIT PETITION NO. 22003 OF 2021(GM-PASS)
BETWEEN:

LI DONG,
D/O LI JING HUA,
AGED ABOUT 42 YEARS OLD,
RESIDING AT SCOTT'S BUNGALOW,
B113, WARD 8, SRIRANGAPATNA,
MANDYA, KARNATAKA,
PINCODE - 571 438.
                                         ...PETITIONER
(BY SRI. AJESH KUMAR S, ADVOCATE)

AND:

1. UNION OF INDIA,
   MINISTRY OF EXTERNAL AFFAIRS,
   REPRESENTED BY ITS CHIEF SECRETARY,
   CENTRAL REGISTRY,
   SO (R&D), 74B, SOUTH BLOCK,
   NEW DELHI - 11.

2. FOREIGNERS REGIONAL REGISTRATION OFFICE ("FRRO")
   REPRESENTED BY MR. LABHU RAM, OFFICER
   BMTC BUS STAND, 5TH FLOOR, 'A' BLOCK,
   TTMC BUILDING, K H ROAD,
   SHANTI NAGAR, BENGALURU,
   KARNATAKA - 560 027.
                                       ... RESPONDENTS
(BY SRI. H SHANTHI BHUSAN, ASG)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DIRECT THE RESPONDENT AUTHORITIES TO PROCESS AND
ISSUE THE PETITIONER HER VISA EXTENSION PURSUANT TO
ANNEXURE-M, N AND P.

     THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:-
                                  2

                             ORDER

Petitioner a national of People's Republic of China is

once again knocking at the doors of Writ Court seeking an

appropriate order that would facilitate the extension of her

stay on Indian soil indefinitely, the extension of her Visa

granted on a few occasions having already expired; she

also seeks to lay a challenge to the Leave India Notice that

eventually resulted into issuance of a series of Exit

Permits, the latest being dated 11.11.2021.

2. Learned Asst. Solicitor General of India Mr.

Shanthi Bhushan on request having accepted notice for

the respondents, opposes the writ petition making

submissions in justification of the impugned orders and

the circumstances that resulted into their issuance.

3. Having heard the learned counsel for the parties

and having perused the Petition Papers, this Court

declines to grant indulgence in the matter for the following

reasons:

(a) Petitioner admittedly is a foreigner; the rights &

obligations of the foreigners are inter alia governed by the

Foreigners Act, 1946 and the Orders promulgated

thereunder; she was granted the e-Visa dated 22.06.2019

valid for a period of 365 days in terms of Annexure-C,

subject to the condition that the 'continuous stay during

each visit should not exceed 180 days'; petitioner was

issued Leave India Notice on 30.10.2019; however, in her

letter dated 21.04.2021, she specifically admits "I left India

two months late instead of immediately";

(b) On 19.02.2020, petitioner initially was given a

reprieve of one month due to spread of COVID-19 in

China; the same was extended for one more month on

30.03.2020; thereafter, she was issued multiple reminders

cum the Exit Permits specifically warning her to "LEAVE

INDIA ON FIRST AVAILABLE FLIGHT AFTER

RESUMPTION OF INTERNATIONAL FLIGHT OPERATIONS

FROM INDIA"; she herself has produced copies of all these

permits.

(c) Petitioner had requested for the extension of her

stay; no decision having been taken thereon, she was

before this Court in W.P.No.8461/2021 which came to be

disposed off by a Co-ordinate Bench of this Court vide

judgment dated 24.03.2021 reserving liberty to her to

make a representation within 15 days and that till a

decision thereon was taken she was permitted to stay on

the Indian soil; petitioner accordingly had made a

representation on 07.05.2021 wherein she had made some

grievance against the Visa Authorities in not recalling the

Leave India Notice.

(d) At paragraph 9 of her above representation this

is what the petitioner has said:

"9. I am aware that the Leave India Notice dated Oct.30, 2019 is the reason for the issuance of Exit Permit dated Feb.07, 2020 and for the Refusal of Extension of Exit Permit dated April 19, 2021. Since the LIN has caused me so much grief and I have not been able to understand what I did wrong, I eagerly request a re-examination of the LIN, and an explanation for the issuance, or a cancellation, if there was indeed misunderstanding".

The above text of the said representation is not happily

worded, to say the least; 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 is not that the concession by

way of extension of her stay was not bestowed on her; this

she admits at paragraph 7 of the writ petition itself; that

apart, 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.

(e) The vehement contention of learned counsel for

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, is broadly

true; Article 13 of the said Covenant reads as under:

"Article 13: An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority".

As a well settled principle of international law, the process

of deportation can only be carried out with due process of

law; 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.

(f) 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 period has expired long

ago; despite issuance of Leave India Notices in series, she

has been clinging on to Indian soil with one or the other

excuses; admittedly, she was shown some concession by a

Co-ordinate Bench of this Court too; the question of

passing specific order on the representation of petitioner

would not arise since as a matter of policy extension was

granted to all the foreigners upto 30.09.2021 which she

herself has averred at paragraphs 13 & 14 of the petition.

4. As to what the jurists of International Law say about the rights of aliens in the host Nations:

(a) Oppenheim's International Law, volume 1,

8th Edition, page 675 says:"... no State can claim the right

for its subjects to enter into, and reside on, the territory of a

foreign State. The reception of aliens is a matter of

discretion, and every State is by reason of its territorial

supremacy competent to exclude aliens from the whole or

any part, of its territory... if a State need not receive aliens

at all, it can receive them only under certain conditions...",

similarly, another acclaimed jurist J.G.Starke in his

Introduction to International Law, 11th Edition at Pages

314-315 writes: "Most states claim in legal theory to exclude

all aliens at will, affirming that such unqualified right is an

essential attribute of sovereign government...The absence of

any duty at international law to admit aliens is supported

by an examination of state immigration laws, showing that

scarcely any states freely admit aliens... Most states,

however place aliens under some kind of disability or some

measure of restrictions of varying severity..."

The Apex Court in UNION OF INDIA Vs. AGRICAS, LLP

2020 SCC Online SC 675, has respectfully referred to the

writings of Oppenheim; similarly, the Constitution Bench

of the Apex Court has referred to the opinions of

J.G.Starke, in several cases i.e., UOI Vs. SUKUMAR SEN

GUPTA, 1990 (3) SCR 24 and in SARBANANDA SONOWAL

Vs. UOI, AIR 2005 SC 2920.

(b) It can be broadly normed that the rights of

aliens on a foreign soil are those which the host country

grants and that no alien can lay a claim for more rights

than are granted; 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; the

significance of boundaries of nations justifies the

classification of people as citizens and aliens; SALMOND in

an article on 'CITIZENSHIP AND ALLEGIANCE' published

more than a century ago in (1901) 17 LQR 270 wrote:

"...Citizenship is a title to rights which are not available for

aliens. Citizens are members optimo jure, while aliens stand

on a lower level in the scale of legal right...".

(c) A distinction is made in practically all countries

between citizens & non-citizens and between domiciled &

non-domiciled aliens, with reference to their rights & duties;

how the aliens 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 Executive i.e., 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 doctrine of 'Separation of Powers'

which is recognized as a basic feature of our Constitution

vide INDIRA NEHRU GANDHI Vs. RAJ NARAIN, 1976 (2)

SCR 347.

5. The Apex Court and the rights of VISA overstaying foreigners:

In our country, the law relating to deportation of

aliens has grown from precedent to precedent; in HANS

MULLER OF NURENBURG Vs. SUPERINTENDENT,

PRESIDENCY JAIL AIR 1955 SC 367, the Constitution

Bench of the Apex Court observed at para 39: "The

Foreigners Act confers the power to expel foreigners from

India. It vests the Central Government with absolute and

unfettered discretion and, as there is no provision fettering

this discretion in the Constitution, an unrestricted right to

expel remains"; later, in LOUIS DE RAEDT Vs. UNION

OF INDIA (1991) 3 SCR 149, it is observed that the

foreigners also enjoy some fundamental right under the

Constitution of this country, is also of not much help to

them. The fundamental right of the foreigner is confined

to Article 21 for life and liberty and does not include the

right to reside and settle in this country, as mentioned

in Article 19(1)(e), which is applicable only to the citizens of

this country; this well settled position of law has been

reiterated by the Apex Court and High Courts in several

cases.

      6.   The    treatment     of        VISA     overstaying
foreigners in other jurisdictions:


     (a)    A Writ Court cannot turn a Nelson's Eye to the

realities of the world; it hardly needs to be stated that in

hosting the foreigners, the principle of reciprocity

between the host country and the foreign country

concerned and the doctrine of Sovereignty of Nations,

assume significance in matters relating to expulsion of

foreigners; several other factors that belong to the domain

and expertise of the Executive do also figure; despite

repeated questioning, learned counsel for the petitioner

was not in a position to answer as to how overstaying

Indians are treated in the country to which his client

belongs; a basic search reveals 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; in India, Sec. 14 of the Foreigners Act,

criminalizes the act of overstaying the VISA and the offence

is punishable with an imprisonment upto 5 years and levy

of unlimited fine; that being the position, 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.

(b) The reliance of learned counsel for the

petitioner on the decision of the Apex Court in HASAN ALI

RAIHANY Vs. UOI AND OTHERS, (2006) 3 SCC 705 that

she cannot be expelled without giving reasons, does not

much come to her aid inasmuch as, it was a case of

sudden deportation of a foreign national who was born,

brought up, domiciled & educated in India; since long he

was carrying on lawful business too; this fact matrix is

miles away from that of petitioner's case; similarly, the

Division Bench decision of Hon'ble Delhi High Court in

MOHD. JAVED & ANOTHER Vs. UOI & ANOTHER, AIR

2019 DEL 170, too does not much come to the support of

petitioner because of differential fact matrix; in the said

case, the foreigner was abruptly asked to leave India

absolutely without any justification when his Long Term

Visa (LTV) period had not yet expired; it is pertinent to

mention what Lord Halsbury more than a century ago had

said in QUINN Vs. LEATHEM, 1901 AC 495 that a case is

an authority for the proposition that it lays down in a given

fact matrix and not for all that which logically follows from

what has been so laid down.

7. Some Observations & Suggestions:

a) 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 (however, arguably petitioner's may not be one

such case); one such means is to commit some bailable

offence and to trigger the prosecution which would more

often than not be dragged for long; added to this, the bail

orders obtained by them are wrongly treated by the

quarters that be as the VISA extensions, unmindful of the

difference that galores between them; extension of VISA is

one thing & enlargement on bail is another; bail bars the

custody and ordinarily, it is granted by the courts, whereas

VISA is granted by the authorities of the Union Govt., in its

absolute discretion; therefore, in cases of VISA expiry,

regardless of the bail order, the accused aliens have to be

quarantined consistent with the observations of a

Coordinate Bench of this Court in CHRISTIAN

CHIDIEERE CHUKWU Vs. THE STATE OF KARNATAKA,

ILR 2016 KAR 1232.

b) The above apart, 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; 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; 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;

it is also desirable to 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.

In the above circumstances, this writ petition being

devoid of merits is liable to be dismissed and accordingly it

is, costs having been made easy; 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.

Sd/-

JUDGE

Bsv/Snb