Case Note & Summary
The petitioner, Joshua Sadagursky, a US national, filed a writ petition under Article 226 of the Constitution of India challenging a notice dated 21st May 2018 issued by the respondents (Union of India, Bureau of Immigration, and Foreign Regional Registration Office) that effectively expelled him from India. He sought a writ of mandamus to restrain the respondents from obstructing his entry into India and a writ of certiorari to quash the notice. Alternatively, he sought a show-cause notice and an opportunity of hearing. The facts reveal that Sadagursky had been residing in India on various visas and was engaged in business. On 21st May 2018, he was served with a notice at the airport directing him to leave India immediately, without any prior hearing or reasons. The respondents contended that the notice was issued under Section 3(2)(c) of the Passport (Entry into India) Act, 1920, which allows the Central Government to order the removal of a foreign national from India. They argued that the power under this section is absolute and does not require a hearing. The court analyzed the provision and held that while the section confers a power to expel, it must be exercised in accordance with principles of natural justice. The court noted that the notice did not disclose any reasons and was issued without any opportunity to Sadagursky to present his case. The court distinguished between the power to refuse entry at the border (which may be summary) and the power to expel a person already within the country (which requires a hearing). The court held that the impugned notice was violative of natural justice and quashed it. However, the court did not grant a permanent injunction against expulsion; instead, it directed the respondents to issue a fresh show-cause notice to Sadagursky, provide him with an opportunity of hearing, and then pass a reasoned order. The court also directed the respondents to reimburse Sadagursky US$ 2,000 for his return flight expenses. The petition was allowed in part.
Headnote
A) Constitutional Law - Writ Jurisdiction - Article 226 of the Constitution of India - Maintainability - A foreign national can invoke Article 226 to challenge an order of expulsion if it violates principles of natural justice - Held that the court has jurisdiction to examine the validity of such orders (Paras 2, 10-12). B) Immigration Law - Expulsion of Foreign National - Section 3(2)(c) of the Passport (Entry into India) Act, 1920 - Natural Justice - An order under Section 3(2)(c) cannot be passed without giving the foreign national an opportunity of hearing - The power to expel is not absolute and must be exercised fairly - Held that the notice dated 21st May 2018 was issued without hearing the petitioner and is therefore unsustainable (Paras 13-18, 22-25). C) Immigration Law - Show Cause Notice - Section 3(2)(c) of the Passport (Entry into India) Act, 1920 - Requirement of Hearing - Before expulsion, the authority must issue a show cause notice and consider the representation of the foreign national - Held that the respondents must issue a fresh show cause notice and decide after hearing the petitioner (Paras 26-28).
Issue of Consideration
Whether an order of expulsion of a foreign national under Section 3(2)(c) of the Passport (Entry into India) Act, 1920 can be passed without affording an opportunity of hearing to the affected person.
Final Decision
The court allowed the petition in part. It quashed the notice dated 21st May 2018. It directed the respondents to issue a fresh show-cause notice to the petitioner, provide him with an opportunity of hearing, and then pass a reasoned order. The respondents were also directed to reimburse the petitioner US$ 2,000 for his return flight expenses.
Law Points
- Natural justice
- Right to be heard
- Expulsion of foreign national
- Section 3(2)(c) Passport (Entry into India) Act 1920
- Article 226 Constitution of India
