Kerala HC rules in favour of Nepali nationals, reinforces Article 21 protection for foreigners

Kochi: In a landmark judgement reinforcing the primacy of procedural fairness and the constitutional protection of personal liberty, the Kerala High Court has ruled that foreign nationals must be granted an opportunity to be heard before any order restricting their movement is passed under the Foreigners Act, 1946.

Delivering the verdict in the case Manju Saud & Ors vs Union of India & Ors (WP(Crl) No.1353 of 2024), Justice C Jayachandran declared as illegal the movement restriction orders issued by the Foreigners Regional Registration Officer (FRRO) against three Nepali nationals, observing that the orders were passed without affording them a hearing, violating the fundamental tenets of natural justice.

“Bondage in a golden cage is still bondage”

The Court began its judgement with a powerful remark:

“Bondage – though in a golden cage – remains bondage.”

This set the tone for the Court’s deep dive into the interplay between the Foreigners Act and Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty to all persons, regardless of nationality.

Case background

The petitioners—three Nepali nationals—were working in a resort in Kalpetta, Wayanad, and were arrested in September 2024 on charges including murder of a newborn. While they were granted bail with strict conditions, including not leaving Kerala and surrendering their passports, the FRRO issued orders confining them to a transit home without a hearing.

These orders—Exts.P3 to P5—were challenged in the High Court, leading to a landmark pronouncement on the rights of foreign nationals under Indian law.

Article 21 applies to all persons, not just Indian citizens

Justice Jayachandran noted that although foreign nationals do not enjoy all constitutional rights, Article 21—which ensures liberty and due process—applies to everyone on Indian soil. Citing the apex court’s rulings in Maneka Gandhi v. Union of India and Hasan Ali Raihany v. Union of India, the Court affirmed that any curtailment of liberty must be fair, reasonable, and follow natural justice.

“A restriction on movement must meet the test of fairness and reasonableness even if applied to foreigners. Audi alteram partem—let the other side be heard—is not a formality; it is fundamental,” the Court said.

Natural justice cannot be excluded without reason

The judgment delves into the scope of Section 3(2)(e)(ii) of the Foreigners Act, and Clause 11(2) of the Foreigners Order, 1948, noting that while they empower authorities to restrict foreigner movements, the procedural safeguards of a hearing must be upheld unless national security or public interest is at imminent risk.

The Court accepted that restrictions on bail and mobility are legitimate in criminal cases, but emphasised:

“Even when serious charges are involved, the state must afford an opportunity to the accused to present their case before passing a movement restriction order.”

Suggestions for provisional orders

Justice Jayachandran provided a balanced approach for such cases. If authorities fear the foreigner may abscond, a provisional order may be passed to restrict movement, but a full hearing must follow promptly.

He observed:

“Bondage, even if euphemistically called a transit home, is still a deprivation of liberty. To that extent, fairness and non-arbitrariness under Article 21 must prevail.”

Foreigners’ rights and global mobility

In a broader reflection on global realities, the Court acknowledged:

“In an age of liberal cross-border trade, tourism, and commerce, minimal protections must extend to foreigners residing or travelling in India. The framers of our Constitution foresaw this when they made Article 21 applicable to all ‘persons’, not just Indian citizens.”

Court’s directives and conclusion

While declaring the FRRO orders illegal, the Court took a pragmatic stance, directing that the petitioners remain in the transit home for one more month. During this time, the FRRO must conduct a hearing and pass fresh orders, ensuring compliance with legal procedures.

The judgement concluded:

“Exts.P3 to P5 are held illegal. The FRRO shall pass fresh orders within one month after hearing the petitioners. Until then, the petitioners will remain confined to the transit home.”

The Court also commended Amicus Curiae Sri Jacob P. Alex for his detailed submissions and clarity in articulating the legal nuances involved.