It definitely gives me maximum solace to note that none other than the Kerala High Court while rising above nationality in reinforcing procedural fairness as postulated under Article 21 of the Constitution and standing in full solidarity with humanity, transparency, fairness and probity even while dealing with case of foreigners in a most learned, landmark, logical, laudable and latest judgment titled Manju Saud & Ors vs Union of India & Ors in WP(Crl) No.1353 of 2024 and cited in Neutral Citation No.: 2025:KER:42092 that was pronounced just recently on June 16, 2025 has minced absolutely just no words to hold indubitably that foreign nationals must be given an opportunity to be heard before orders restricting their movement are passed under the Foreigners Act, 1946. It must be noted that the Single Judge Bench comprising of Hon’ble Mr Justice C Jayachandran while delivering this most sagacious judgment in a writ petition declared the movement restriction orders by the Foreigners Regional Registration Officer (FRRO) against three Nepali nationals to be illegal because they were issued without even hearing the petitioners. To put it differently, we thus see that the Kerala High Court has given full weightage to the time tested latin legal dictum titled “Audi alteram partem” which means “let the other side be also heard”. It merits noticing that while referring to the most landmark rulings as in Maneka Gandhi v Union of India and so also in Hasan Ali Raihany v Union of India, the Court propounded most vocally that any restriction on personal liberty, even for foreigners must meet the test of fairness and reasonableness under Article 21. Very rightly so!
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice C Jayachandran of Kerala High Court sets the ball in motion by first and foremost putting forth in para 1 that, ““Bondage – though in a golden cage – remains bondage” The question involved in this Writ Petition centers around the personal liberty of a foreigner, who is alleged to have committed a crime in India. The question has to be addressed in the context of orders passed under the Foreigners Act, 1946 imposing restriction on the movement of the petitioners, dehors bail having been granted in their favour in the crime in question.”
To put things in perspective, the Bench while elaborating on the facts of the case envisages in para 2 that, “The petitioners are Nepali citizens, who were working as cleaning and house keeping staff in a resort at Kalpetta from May, 2024 onwards. Citizens of Nepal can enter India without any visa, by virtue of Article 7 of the Treaty of Peace and Friendship between the Government of India and Government of Nepal, 1950. A crime was registered against petitioners vide Ext.P1 F.I.R on 21.09.2024, alleging that the 1st accused (1st petitioner herein) committed murder of a new born baby by strangulation. Accused nos.2 and 3 (petitioners 2 and 3 herein) acted in aid of the 1st accused in committing the crime. The offences alleged are under Sections 302, 316, 318, 201, 313, 511 and 34 of the Penal Code. The petitioners were arrested on 21.09.2024 and were enlarged on bail, as per Ext.P2 Order dated 08.11.2024. One among the conditions for grant of bail was that the sureties should be Keralites and another condition imposed restriction on the petitioners in leaving the State of Kerala, except with the permission of the trial court. The third condition warrants the petitioners to surrender their passports before the jurisdictional court. While so, Exts.P3, P4 and P5 Orders were issued on petitioners 1, 2 and 3 respectively by the 2nd respondent Foreigners Regional Registration Officer (‘F.R.R.O’, for short) under Section 3(2)(e)(ii) of the Foreigners Act and Clause 11(2) of the Foreigners Order, 1948 imposing restriction on the movement of the petitioners by confining them in a transit home. Exts.P3 to P5 are under challenge.”
As it turned out, the Bench enunciates in para 8 noting that, “Having heard the learned counsel for the respective parties, as also, the learned Amicus Curiae, the sole issue, which falls for consideration, centers around the question of audi alteram partem before passing an Order under Section 3 of the Foreigners Act, for, other propositions with respect to the independent nature and character of an Order under Section 3; that it does not amount to an arrest or detention etc., are too well settled. As pointed out by the learned Central Government Counsel, the issue is seen nailed by the Hon’ble Supreme Court in Frank Vitus (supra), by holding that a foreigner, upon being released on bail, is not entitled to leave India, without the permission of the Civil Authority, as provided in clause (5) of the Foreigners Order, 1948. As per clause 5(1)(b) of the Order, a foreigner cannot leave India without the leave of the Civil Authority and such leave is liable to be refused as per Clause 5(2)(b), if the foreigner’s presence is required in India to answer a criminal charge. Frank Vitus (supra) held that the power to impose movement restriction under Section 3 of the Foreigners Act is wholly independent of the power to grant bail; and that notwithstanding grant of bail, the power to arrest and detain a foreigner can be exercised, if the Central Government makes an Order in terms of Section 3(2)(g) of the Foreigners Act. In Frank Vitus (supra), the Supreme Court held that the Investigating Agency or the State, as the case may be, shall immediately inform the concerned Registration Officer about the grant of bail, so as to enable him to bring that fact to the notice of the Civil Authority under the Foreigners Act. Therefore, the contention of the petitioners that Exts.P3 to P5 Orders are bad and illegal, inasmuch as adequate conditions have already been incorporated in Ext.P2 bail order, will crumble to the ground. In the light of the enabling provision of clause 5(2)(b) of the Foreigners Order, 1948, the same is the fate of the petitioners’ contention that they have been deprived of the benefit of the bail order. Exts.P3 to P5 cannot, therefore, be held to be illegal on those counts.”
Most significantly, most remarkably and so also most candidly, the Bench encapsulates in para 14 what constitutes the cornerstone of this notable judgment postulating that, “Having bestowed my attention, I am of the definite view that the question as to whether rules of natural justice stands excluded or not would essentially depend upon the nature of the Order to be passed; and the circumstances, in which it is made. In cases where, the interest of the State or public is not sacrificed/jeopardised, or where the purpose of the special statute is not being defeated by affording an opportunity of being heard, it is only logical – besides being in consonance with the settled principles of law – to vote for an opportunity being granted, especially when such Orders are to visit the foreign citizen with serious and dire consequences. Per contra, if the issuance of such notice for hearing would either defeat the purpose of the special statute or would jeopardise the interest of State or public, an exclusion of the rules of natural justice should be readily interfered. Say for example, if the concerned authority is in receipt of an information that a foreign national has entered India, though legally, for an unlawful purpose, deleterious to national interest and that it is impracticable to afford him a hearing, for, that may defeat or render infructuous the proposed Order under Section 3, Orders may have to be passed instinctively or instantaneously, depending upon the gravity of the situation. However, in cases of Orders like Exts.P3 to P5, affording an opportunity of being heard would not defeat the purpose of the Orders proposed to be passed. Nor would it jeopardise the State/National interest. In such cases, an opportunity ought to have been granted. Such a right necessarily flows from Article 21 of the Constitution, since an Order under Section 3 restricting the movement of a foreign citizen – which in fact confines him to a transit home, a euphoric expression to a place of incarceration – definitely deprives him of his personal liberty. Bondage, though in a golden cage, remains bondage. If the authority is of the opinion that issuance of notice will pave the way for foreigners like the petitioners to escape from the clutches of law, this Court is, again, of the opinion that a provisional order can be passed, so as to ensure their availability by restricting their movement, and then afford an opportunity of being heard, which procedure will always be in tandem with the requirements of fairness and non-arbitrariness. As rightly contended by the learned counsel for the petitioners, an opportunity of hearing will enable them to point out a less onerous course, alternate to Section 3(2)(e)(ii), but which is recognised by the provisions of the Foreigners Act.”
It is worth noting that the Bench notes in para 17 that, “Coming to the facts at hand, this Court notice that the petitioners have allegedly involved in a heinous crime involving offence under section 302 of the Penal Code and as per Clause 5(1)(b) of the Foreigners Order, they cannot be permitted to leave the State, without the leave of the Civil Authority, since their presence is required in India to answer a criminal charge. If that be so, affording an opportunity of being heard may be an empty formality, is a possible argument. Two fold answer emerges to that argument. Firstly, as pointed out earlier, the petitioners may be able to point out some other provision, which is recognised by the Foreigners Act, but of a less onerous or cumbersome nature. Secondly, it is now settled by the principles of administrative law that an opportunity of being heard cannot be deprived for the reason that such pre-decisional hearing cannot impact the post hearing decision.”
It would be instructive to note that the Bench then hastens to add in para 19 stating precisely that, “Legal considerations apart, this Court also takes into account the present international scenario, wherein trade and commerce have been made very liberal between the countries, thus necessitating frequent visits of foreigners into this country, and vice versa. That apart, cross country tourism is in its peak and the same constitutes substantial revenue for the States. In this scenario, it is time that we start recognising certain minimal rights of the foreign citizens, since we are bound to think from their shoes as well. This should precisely be the reason for extending the protection of Article 21 to all ‘persons’; and not confined to the Indian citizens, as in the case of many other Articles. We may have to construe that the founding fathers of our Constitution have recognised, in their farsighted vision, scenarios like the present one to include a larger genus, insofar as protection under Article 21 is concerned. In recognising rights to foreign citizens within the sweep of Article 21, all what this Court mean and contemplate is only those rights, which will not cause any sort of fetter or threat to the security of the State, the larger national interest or even public interest. If an order under Section 3 is necessitated in a situation and circumstance, which will not jeopardise such national interest, an opportunity of being heard should necessarily be conceded within the sweep of Article 21, is the conclusion surfacing from the above discussion.”
Resultantly and most forthrightly, the Bench underscores in para 20 holding that, “In the light of the above discussion, this Court can only hold that Exts.P3 to P5 Orders are illegal for want of affording an opportunity of being heard to the petitioners. Compliance to natural justice being a fundamental facet will vitiate an Order for its noncompliance. Exts.P3 to P5 Orders are thus declared illegal. However, for that reason, this Court is not directing the release of the petitioners from the transit home, since the same may provide room for the petitioners to escape from the clutches of Indian law, as regards a person, who has to answer a criminal charge in this country. This Court, therefore, in exercise of its powers under Article 226, direct continuance of the petitioners in the transit home for a period of one more month, within which, the 2nd respondent F.R.R.O will pass fresh orders under Section 3 of the Foreigners Act, read with the appropriate order of the Foreigners Order, 1948, after affording an opportunity of being heard to the petitioners.”
As an aside, the Bench then observes in para 21 that, “My whole-hearted appreciation to Sri.Jacob P.Alex, the learned Amicus, who unfurled the convoluted issues of law in an effulgent manner, is recorded. I also acknowledge the learned counsel who argued the matter on both sides, appreciably.”
Finally, the Bench then concludes by directing and holding in para 22 that, “In the circumstances, this Writ Petition is allowed as indicated above.
(i) Exts.P3 to P5 are held illegal.
(ii) The petitioners will remain in the transit home for a period of one more month, within which time, the F.R.R.O shall hear the petitioners and then, pass fresh orders under Section 3 of the Foreigners Act, read with, Foreigners Order, 1948, in accordance with law. Needless to say that, this exercise shall be completed within a period of one month from the date of receipt of a copy of this judgment, until which time, the petitioners will remain confined to the transit home.”
Sanjeev Sirohi