Kerala High Court says foreigners need to be heard before restricting their movement under Foreigners Act

The Kerala High Court recently held that the principles of natural justice are not alien to orders passed by the Foreigners Regional Registration Office (FRRO) that restrict the movements of foreigners in India [Manju Saud & Ors v Union of India & Ors]. .Justice C Jayachandran observed that the Court cannot sideline the Union government's argument there is no enabling provision in the Foreigners Act affording a right of hearing to the foreigner and that the right of hearing, if afforded, may perhaps defeat the purpose of the special law, besides prejudicing the security of the State and larger public interest.However, the single-judge also said if the law makers specifically wanted to exclude the rules of natural justice, the same would have been expressly incorporated to avoid any doubt or confusion in this regard."Therefore, a hearing before the issuance of such an order – at least, immediately after such Orders in cases, where it is not practicable to afford a pre-decisional hearing – cannot be considered as a concept completely alien to Orders of the nature referred to in Section 3 of the Foreigners Act," the Court ruled..The Court made these observations while dealing with the plea of three Nepali citizens accused of the murder of a newborn baby. They were granted bail by the trial court subject to certain conditions. But the FRRO soon passed orders under Section 3(2)(e)(ii) of the Foreigners Act and Clause 11(2) of the Foreigners Order, 1948, confining them in a transit home. They challenged the FRRO decision before the High Court. After considering the arguments, the Bench said that giving an opportunity of hearing to the accused in this case will not prejudice national interest and, therefore, the orders were illegal. It directed the FRRO to pass a fresh order after hearing the petitioners. .On the larger issue of whether such orders can be passed without affording opportunity of hearing to the foreigners, the Court said that in cases where the interest of the State or public is not jeopardised or where the purpose of the statute is not being defeated by giving an opportunity of being heard, the principles of natural justice should be followed.“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, the Bench explained. The Court added that if the FRRO believes that the issuance of a notice of hearing will enable the escape of foreigners, a provisional order can be passed to ensure their availability and then an opportunity of hearing can be granted. .The Court went on to emphasize that certain minimal rights of the foreign citizens must be recognized. "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," it said..Advocate Jacob P Alex served as amicus curiae in the case. Advocates Pranoy K Kottaram represented the petitioners. Advocate Suvin R Menon appeared for the Union of India. Advocate P Narayanan represented the State of Kerala. .[Read Judgment]