Foreigners Act

• Mr.V.T.Gopalan learned Additional Solicitor General, appearing for the Union Government contends that the orders have been issued under the provisions of the Foreigners Act and there is no requirement to issue any prior notice or to provide any opportunity to show cause against the proposed order. The executive has full powers to use their discretion and, if in their opinion, the petitioners' presence is found to be objectionable, the action of the executive in directing their deportation cannot be called as illegal.
• Learned Additional Solicitor General also relies on the judgment of this Court in "GILLES PREIFFER v. THE UNION OF INDIA and Ors." reported in 1996 W.L.R.386, in support of his contention that the foreign nationals have no right to claim to continue to stay in India when the conduct of any foreigner comes to the adverse notice of the Government.

• in reply, Mr. AR.L. Sundaresan contends that the facts of the case reported in 1996

  W.L.R.386 will not apply to the facts of the present case. That was a case in which the accused was found to be indulging in activities adverse to the security of the country, whereas in the present case, the petitioners have been charged with criminal offence and pursuant to their conviction they have also preferred an appeal. Therefore, the rights of the individuals to pursue the appellate remedy cannot be barred by directing them to leave the country.

• I have considered the submissions of both sides. A perusal of the provisions of the

  Foreigners Act discloses that no reasons are required to be stated while directing deportation of the foreign citizens. Section 3 of the Foreigners Act, 1946 reads as follows.

  "3. Power to make orders:

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  (1) The Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into India, or their departure there from or their presence or continued presence therein.

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  (2) In particular and without prejudice to the generality of the foregoing power, orders made under this section may provide that the foreigner(a)shall not enter India, or shall enter India only at such times and by such route and at such port or place and subject to the observance of such conditions on arrival as may be prescribed.

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  (b) Shall not depart from India, or shall depart only at such times and by such route and from such port or place and subject to the observance of such conditions on departure as may be prescribed;

  (c) Shall not remain in India or in any prescribed area therein;

  (cc) shall, if he has been required by order under this section not to remain in India, meet from any resources at his disposal the cost of his removal from India and of his maintenance therein pending such removal.

  (d) Shall remove himself to, and remain in, such area in India as may be prescribed;

  (e) Shall comply with such conditions as may be prescribed or specified-

  i. requiring him to reside in a particular place;

  ii. Imposing any restrictions on his movements;

  iii. requiring him to furnish such proof of his identity and to report such particulars to such authority in such manner and at such time and place as may be prescribed and specified; iv. Requiring him to allow his photograph and finger impressions to be taken and to furnish specimens of his handwriting and signature to such authority and at such time and place as may be prescribed or specified;

  v. requiring him to submit himself to such medical examination by such authority and at

  Such time and place as may be prescribed or specified;

  vi. Prohibiting him from association with persons of a prescribed or specified description;

  vii. Prohibiting him from engaging in activities of a prescribed or specified description;

  viii. Prohibiting him from using or possessing prescribed or specified articles;

  ix. Otherwise regulating his conduct in any such particular as may be prescribed or specified;

  x. otherwise regulating his conduct in any such particular as may be prescribed or specified.

  (f) Shall enter into a bond with or without sureties for the due observance of, or as an alternative to the enforcement of, any or all prescribed or specified restrictions or conditions;

  (g) Shall be arrested and detained or confined.

  And may make provision for any matter which is to be or may be prescribed for such incidental and supplementary matters as may, in the opinion of the Central Government, be expedient or necessary for giving effect to this Act.

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  (3) Any authority prescribed in this behalf may with respect to any particular foreigner make orders under clause (e) or clause (f) of Sub-section (2)." 12. While interpreting the said provisions, the Supreme Court in SC/0074/1955 cited above, has in clear terms, stated that the Foreigners Act 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 with the Government.

• It is no doubt true that the learned counsel for the petitioner seeks to distinguish the facts of the said case with the present case and contends that the petitioners in this case have got a fundamental right to pursue the appellate remedy. I am unable to accept the said contention. The fact remains that it is open to the petitioners to pursue the appeal before the appellate Court through their counsel and their personal appearance is not required. The petitioners have come to the adverse notice of misbehavior and had been prosecuted under Sections 294, 354, 323 and 506 Part II read with Section 34 I.P.C., which are serious offences. The offences for which the petitioners stand charged cannot be said to be minor charges which can be easily ignored.
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