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Hasan Ali Raihany / v. Union Of India And Others
Factual and Procedural Background
The petitioner, born in India to Iranian parents, had been residing and conducting business in India on the strength of a long-term residential permit that was valid until 3-12-2007. On the night of 7/8-10-2005, the authorities deported him to Tehran without prior notice and simultaneously cancelled his residential permit. Seeking to resolve outstanding matters in India, he obtained a single-entry visa from the Indian Embassy in Tehran (valid from 8-11-2005 to 8-2-2006) and lawfully re-entered India.
Upon return, the petitioner was required to report daily to Kurla Police Station and feared a second deportation without being informed of the reasons or being given an opportunity to respond. He therefore filed the present writ petition seeking: (i) quashing of the order cancelling his residence permit, (ii) production of documents relating to his pending citizenship application, and (iii) annulment of the oral deportation order so that he could remain in India.
Legal Issues Presented
- Whether the authorities, having already lawfully admitted the petitioner on a single-entry visa, can deport him again without disclosing the reasons.
- Whether principles of procedural fairness require that the petitioner be afforded an opportunity to make a representation before any fresh deportation order is executed.
Arguments of the Parties
Petitioner's Arguments
- Relied on National Human Rights Commission v. State of Arunachal Pradesh (1996) 1 SCC 742, contending that a person born and long-settled in India cannot be expelled summarily, especially while his citizenship application is pending.
- Emphasised lawful entry with a valid visa and absence of any clandestine intent, arguing that at minimum he must be told the grounds for any proposed deportation and allowed to respond.
Respondent's Arguments
- Drew the Court’s attention to Sarbananda Sonowal v. Union of India (2005) 5 SCC 665, highlighting the State’s sovereign power to expel aliens and the principle that international due-process guarantees apply only to aliens “lawfully” present.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| National Human Rights Commission v. State of Arunachal Pradesh (1996) 1 SCC 742 | Aliens with deep roots in India should not be expelled arbitrarily; basic fairness demands disclosure of reasons and opportunity to represent. | Cited by petitioner to support the plea that he should not be deported without being informed of the grounds. |
| Sarbananda Sonowal v. Union of India (2005) 5 SCC 665 | State’s sovereign right to expel aliens; Article 13 of ICCPR requires procedural safeguards only for aliens lawfully in the territory. | Referred to by the Court to balance State sovereignty with procedural fairness, noting that the petitioner is presently “lawfully” in India and therefore entitled to safeguards. |
Court's Reasoning and Analysis
The Court acknowledged the State’s sovereign power to control the entry and exit of aliens but stressed that such power must be exercised in a manner consistent with basic procedural fairness when the alien is lawfully present. Since the petitioner re-entered India on a valid single-entry visa, the Court found no compelling national-security reason to deny him due process.
Relying on the balance struck in Sarbananda Sonowal, the Bench held that the competent authority (Deputy Commissioner of Police & FRRO, Mumbai) must:
- Furnish the petitioner with adequate reasons for any proposed deportation.
- Allow him two weeks to make a representation.
- Consider that representation and pass a speaking order, communicating the decision to the petitioner forthwith.
The Court permitted daily reporting at Kurla Police Station to continue, directing the petitioner to keep the police informed of any change of address. Any adverse order is to remain inoperative for seven days after service, giving the petitioner time to seek further legal remedies.
Holding and Implications
The writ petition was DISPOSED OF with directions.
Immediate Effect: Authorities must disclose reasons for any contemplated deportation, consider the petitioner’s representation, and delay enforcement of any adverse order for seven days.
Broader Implications: The judgment underscores that aliens lawfully present in India are entitled to minimal procedural safeguards—notice of grounds and an opportunity to be heard—before expulsion, unless overridden by compelling national-security considerations. No new doctrinal precedent was established beyond reinforcing existing principles of procedural fairness.
B.P Singh, J.—
In WP (Crl.) No. 17 of 2006
1. In this writ petition, the petitioner prays for issuance of a writ of mandamus quashing the order cancelling the residence visa permit by order dated 7-10-2005. He has also prayed for directions to the respondent to produce the papers relating to grant of Indian citizenship to him by naturalisation. He further prays that this Court may issue a writ of certiorari quashing and setting aside the oral direction or order of deportation passed by the respondents and allow the petitioner to enter the Indian territory.
2. The case of the petitioner is that he was born in India to parents who were Iranian citizens. He was educated in India and thereafter intended to stay in India. He applied for grant of Indian passport on 15-7-2003 in response whereto he was required to comply with certain formalities. It appears that on the night intervening 7-10-2005/8-10-2005 the petitioner was deported to Tehran. His grievance is that he was never informed as to why such action was taken against him. Be that as it may, he applied again to the Indian Embassy in Tehran to grant him entry visa enabling him to enter this country so that he could settle his pending matters in this country. According to the petitioner, he has been doing business in this country and, therefore, his sudden deportation has created complications for him, and it became absolutely necessary for him to come to India to settle those matters. A single entry permit was issued to the petitioner by the Indian Embassy in Iran which was valid for the period from 8-11-2005 to 8-2-2006. On that basis, the petitioner has re-entered this country.
3. The petitioner states that he is being summoned to Kurla police station every day and is being unnecessarily harassed. His suspicion is that he may again be deported in the same manner as was done on the last occasion without intimating him the reasons why he was sought to be deported and without giving him an opportunity of being heard.
4. We may observe that earlier, a residential permit was issued to the petitioner which has been extended from time to time and which stood extended till 3-12-2007. However, while deporting him, the authorities cancelled the residential permit.
5. Thus, the factual position as of today is that the petitioner has entered this country on the basis of a single entry visa validly issued to him by the Indian Embassy at Tehran. It is also stated that the fact that the petitioner had been deported from this country was mentioned in the application for grant of entry visa and that nothing was concealed.
6. The question that arises for consideration is whether the authorities intend to deport him again and if so, whether they are obliged to disclose to the petitioner the reasons for his proposed deportation.
7. Learned counsel for the petitioner has relied upon a decision of this Court in National Human Rights Commission v. State of Arunachal Pradesh (1996) 1 SCC 742 and particularly to the principles laid down in para 19 thereof and submitted that the petitioner cannot be thrown out of this country having regard to the fact that he was born in this country and lived here for many years and his application for grant of Indian citizenship is still pending. It is not as if he has entered the territory of India stealthily with any ulterior objective and, therefore, it is only proper, even though he is not an Indian citizen, that he should at least be informed of the reasons why he is sought to be deported, and his representation if any in this regard considered. The learned Additional Solicitor General has fairly brought to our notice the principles laid down by this Court in Sarbananda Sonowal v. Union of India (2005) 5 SCC 665. This Court in para 75 of the report has observed as follows:
“Like the power to refuse admission this is regarded as an incident of the State's territorial sovereignty. International law does not prohibit the expulsion en masse of aliens. (p. 351) Reference has also been made to Article 13 of the International Covenant of 1966 on Civil and Political Rights which provides that an alien lawfully in the territory of a State party to the Covenant may be expelled only pursuant to a decision reached by law, and except where compelling reasons of national security otherwise require, is to be allowed to submit the reasons against his expulsion and to have his case reviewed by and to be represented for the purpose before the competent authority. It is important to note that this Covenant of 1966 would apply provided an alien is lawfully in India, namely, with valid passport, visa, etc. and not to those who have entered illegally or unlawfully.”
(emphasis in original)
8. Having regard to the facts and circumstances of the case, particularly, having regard to the fact that the petitioner has entered this country legally upon the single entry permit issued to him, it is only fair that the competent authority must inform him the reasons for his deportation. If such a decision is taken, the petitioner must be given an opportunity to submit his representation against his proposed expulsion. The competent authority may thereafter consider his representation and pass appropriate order. As observed by this Court, this procedure may be departed from for compelling reasons of national security, etc. In the instant case, we have not so far noticed any fact which may provide a compelling reason for the State not to observe this procedure.
9. We, therefore, dispose of this writ petition with the directions to the competent authority, who we are told is the Deputy Commissioner of Police and FRRO, Mumbai, to communicate to the petitioner the reasons why he is sought to be deported from this country. The reasons disclosed must be sufficient to enable the petitioner to make an effective representation, if he wishes to do so. The petitioner shall be given two weeks' time to make a representation which shall be considered by the competent authority as soon as possible. Any order passed shall be communicated to the petitioner forthwith.
10. We further direct that the petitioner shall continue to report at Kurla police station everyday. It is stated by learned counsel appearing on his behalf that the present residential address of the petitioner is the following:
Hasan Ali Raihany,
Deeraj Apartments,
‘C’ Wing, Flat No. 303,
Shastri Nagar,
Santa Cruz (West),
Mumbai.
If there is any change of address, the petitioner will inform Kurla police station of the said change. He shall continue to report to the police station till such time as the competent authority passes appropriate order as directed.
11. In case an adverse order is passed against the petitioner, it shall not be given effect to for a period of seven days from the date of service of that order on the petitioner so that he may seek appropriate legal remedy, if so advised.
12. The writ petition is disposed of accordingly.
Crl. MP No. 2098 of 2006 in and SLP (Crl.) No. … of 2006
13. Permission to file SLP is granted.
14. In view of the disposal of Writ Petition (Crl.) No. 17 of 2006, the special leave petition has become infructuous and the same is dismissed as such.
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