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Judgment
Arunachalam, J.—All these Writ Petitions are disposed of together by a common order, since the contentions urged, are identical. As far as W.P. Numbers 15978 of 1991, 20 of 1992 and 21 of 1992 are concerned, they stand on a slightly different footing, due to subsequent change of circumstances, after the filing of these Writ Petitions.
In all these Writ Petitions, the prayer is for the issue of a habeas corpus for the production of the respective Sri Lankan nationals who have been ordered to reside identified and located by the concerned District Collectors, before this Court to be set free. In effect, the challenge is for quashing of the respective orders, passed by the State Government u/s 3 of the Foreigners Act, 1946 (Central Act 31 of 1946) for regulating the continued presence of the respective foreigners.
The grounds urged by Mr. B.Kumar, Learned Counsel representing all the Sri Lankan nationals in these Writ Petitions are identical and similarly the stand of the State Government, through Mr. B.Sriramulu, learned Public prosecutor, is the same in all these Writ Petitions.
We do not intend narrative detailed facts in W.P.Nos. 15978 of 1992, and 20 of 1992, for the State has made it clear, through the counter affidavit filed on its behalf, by P.Baskaradoss, Secretary to Government, Public (SC) Department, that in respect of the Sri Lankan nationals concerned in these Writ Petitions, they have already been permitted to leave the special refugee camp Saidapet and have since been transferred and admitted in the refugee camp at Gummidipoondi after revoking the order passed against them under S.3(2) (e) of the Foreigners Act. The affidavit further states, that the refugee camp at Gummidipoondi is an ordinary refugee camp and all that the inmates of the said camp have to comply with is to intimate the authority concerned before they leave the camp, for any length of period.
4.-A Mr.B.Kumar, fairly stated, that in so far as Sri Lankan nationals are concerned in these two Writ Petitions, the Writ Petitions themselves could be disposed of on the ground that in view of change of circumstances and the position now existing, the prayers made, have become infructuous. In that view, W.P. 15978 of 1991 and 20 of 1992 shall stand dismissed as infructuous.
Facts in W.P. No. 15958 of 1991 are as follows: Srimala, petitioner herein is the wife of K.Velayudham, who has been directed to reside at the Special Camp for immigrants/refugees at Thanjavur District. It appears that the petitioners had preferred W.P. 12986 of 1991 earlier. When the said Writ Petition was taken up for hearing, it was represented on behalf of the respondent that an order had been passed under S.3(2) (e) of the Foreigners Act and consequently, the Writ Petition cannot be maintained. On 13.9.1991, the said Writ Petition was dismissed, while giving liberty to the petitioner, to challenge the order if any issued, under the Foreigners Act, in the event of being so advised. It was thereafter that the present Writ Petition was filed.
The petitioner would have it, that she and her husband K.Velayudham came to India on 1.10.1990 as they were driven out of Sri Lanka due to serious ethnic violence. Her husband took treatment in a hospital at Trichy for injuries suffered by him. He has not acted in any manner prejudicial to the national security or economy. The petitioner would urge in her affidavit, that her husband has been imprisoned in a Special Camp and that would amount to illegal detention. Her husband is not concerned in any case. There is absolutely no basis for detaining him in the special camp, which in effect is a Sub-Jail. This deprivation of liberty and also livelihood was not only grave injustice but also was unfair, arbitrary and totally without any authority of law. The action of the State Government will have to be struck down as violative of Art. 14 of the Constitution. The petitioner would further urge in her affidavit, that keeping a person in special camp away from his family and with restrictions, under the care of wardens of the sub-jail, cannot but be termed as deprivation of personal liberty. There was also violation of the mandate of Art.21 of the Constitution. The petitioner has further claimed in her affidavit, that it was incumbent and necessary on the part of the State Government to have issued a show-cause notice, and given an opportunity to her husband, to show-cause before passing of the order under the Foreigners Act. It cannot be stated with any degree of acceptance that there was imminent necessity or urgency to confine her husband in the camp. There was violation of natural justice. Further, the order, ex-facie does not show any reason, for passing of the impugned order. No grounds have been communicated to her husband as to the reasons which, impelled the passing of the order, now challenged. In any event, the petitioner would claim that her husband must have been afforded a right to show-cause at least ex-post facto. The impugned order does not indicate to whom a representation could be made by her husband. Fairness of procedure would require that the husband must have been appraised of his rights. According to the petitioner, her husband had not been furnished with a reasonable opportunity to opt to go out of the country, which option ought to have been mandatorily given to him. The order though issued under the Foreigners Act is really one of Preventive Detention. If that be so, her husband can claim protection under Art.22(4) of the Constitution.
Facts in W.P. No. 15044 of 1991 are as follows:-
Petitioner Kalavathy is the wife of Raju alias Kalapathy who has been directed to reside in the Special Camp for Sri Lankan Immigrants/Refugees at Saidapet, Madras. In her affidavit, the petitioner has stated that she and her husband arrived in India in or about 1983 unable to bear the ethnic violence, unleashed to the Tamils in Sri Lanka. Since then, she and her husband have been living in Madras. The petitioner''s brother, a resident of Canada and gainfully employed, was remitting moneys for her livelihood and that of the petitioner. Her husband is neither involved in any case nor any case is pending against him. As far as the other averments are concerned, they are almost identical with the averments made by Srimala in W.P. No. 15958 of 1991.
7-A. Facts in W.P.No.21 of 1992 are as follows:
Petitioner Kumaraleela is the wife of Saravanan @ Sundaresan @ Satish, directed to stay in the special camp for Sri Lankan refugees, located at Saidapet. In her affidavit, the petitioner has stated that she along with her husband arrived in India in 1983; due to ethnic violence. She married Saravanan in June 1989 at Madras. The sister of Saravanan is a prominent resident of Australia and she has been remitting money to facilitate their honest living. All of a sudden on 20.6.91, Saravanan was taken from his house, kept in the Police Station for about a month and later lodged in the Special Camp. There was no reason whatever for such detention. As far as the other averments are concerned, they are almost identical with the averments made by Srimala in W.P. No. 15958/1991.
Mr. B.Kumar, Learned Counsel for the petitioners in these three writ petitions contended that the places now shown as Special Camps, were previously sub-jails and those detained therein, were not entitled to leave the camps. There were armed policemen, both inside and outside the camp. The inmates of the camp can be visited by their relatives, only under strict supervision. They were never allowed to go outside. The inmates are locked up inside cells during night. Such locking amounted to confinement or detention, leading to deprivation of personal liberty. Arts. 14 and 21 apply equally to citizens as well as non-citizens. Though the impugned orders are stated to have been passed under S.3(2)(e) of the Foreigners Act, it as apparent, that only C1.3(2)(g) would govern these orders. Central Government had not delegated, power under S.3(2)(g), to the State Government. Hence, the action of the State Government, has not support of law, due to lack of delegation. He then submitted that the restrictions contemplated under S.3(2)(e) of the Act were well- known, as could be seen from the promulgation of Foreigners (Restriction on Movements) Order 1960, the Foreigners (Restriction on Chinese Nationals) Order 1962 and The Foreigners (Report to Police) Order 1971. He contended, that the impugned order must be struck down solely on the basis, that they were not supported by any authority of law. Mr. B. Kumar, then urged, that Art.1, in its narrowest sense, has been held to mean, immunity against arrest, detention of confinement. Putting a person in a camp amounts to arrest, confinement and detention. Therefore, the procedure followed must be in accordance with law and cannot be arbitrary. Art.21 of the Constitution postulated substantive requirement of reasonableness as well as procedural reasonableness. If it were to be held, that there was no delegation of power under S.3(2) (g) of the Act, the action of the State Government will not have the support of law. The action of the respondent, confining these foreign nationals for an indefinite period, without time limit will violate substantive reasonableness. The impugned orders do not specify anytime limit, during which these foreign nationals would be kept in the special camps. Procedural fairness was violated since opportunity to be heard was not furnished to these foreign nationals, and no reference against their detention had been made orders do not ex-facie contain any reason. Even the counter affidavits do not disclose the reason if any, entertained by the authority, concerned, before passing the impugned orders. Any opportunity for hearing cannot be affectively made, unless reasons for action were disclosed. Thus every facet of natural justice and procedural fairness have been violated. Mr. B.Kumar, reiterated that the impugned action, in effect and purpose amounted to preventive detention. Hence confinement beyond 3 months, would be violative of Art.22(4) of the Constitution. The Learned Counsel submitted, that he was no inviting us to test the facts under Art. 19 of the Constitution, but the challenge was restricted to non-compliance of the mandate under Arts. 14 and 21 of the Constitution.
Mr.B.Sriramulu, learned Public Prosecutor, contended, that enquiry revealed, that the respective foreign nationals were having illegal connection with the LTTE. These foreign nationals were not in possession of any legal documents, namely, Passport, Visa etc. to show their legal entry into India. These foreign nationals are having close links with the L.T.T.E. The question of issuing show-cause notices, does not arise. The State Government has every right to restrict the movements of foreigners, under the Foreigners Act. There has been no violation of Art. 14 of the Constitution. The impugned order have been passed under S.3(2)(e) of the Act on the basis of delegation, by the Central Government in Notification No. 4/3/56(l) Fl dated the 19th April, 1958, Ministry of Home Affairs, for the purpose of regulating the continued presence of foreigners. Reference to Advisory Board does not arise. The learned Public Prosecutor submitted that there is no arrest, confinement or detention. Petitioners, as well as the State, were permitted to file supplemental affidavits in respect of the conditions prevailing in the Special Camps. One Sripathy, has sworn to an affidavit, the contents of which Mr.B.Kumar, stated, could be taken as valid material for all the Writ Petitions, which are being disposed of, by this common order. The averments in the supplemental affidavit, show that the so-called special camp at Saidapet, originally housed sub-jail. It was situated inside the Saidapet Court ComplEx. The camp consists of several rooms or cells. There are about 19 inmates in the special camp. At the rate of 4 persons per cell, the inmates are locked up at 6 p.m. The are permitted to come out only at 6 a.m. on the next morning Recently, after some relaxation, putting into the cells, is done at 9 p.m. instead of 6 p.m. The inmates (detenus) are given one cup of tea between 7.30 and 8.00 a.m. along with 3 iddiies. They are provided limited meals at 2 p.m. They are supplied tea at 5 p.m. and before locking them up at nights, they are provided with one dosai or one chappathi. The camp is manned by Police Officers of the rank of Inspector and other attendant staff. Armed men are posted inside and outside the camp Between 6 a.m. and 6 p.m. the detenus can be in verandah, or within the compound of the camp, but on no occasion, they can go out of the campus. Visitors are allowed, only after personal check. They are constantly kept under Police watch. In the Additional counter-affidavit filed by the State, the following averments are made. Ethnic violence erupted in Sri Lanka, as a result of genocidal attack on Tamilians, by Sri Lankan Army. In the course of such violences, many people lost their lives, and there has been a steady influx of Sri lankan Tamilians, who were afraid of their life and property. Most of them, who did not have valid travel documents and even bare necessities of life, had to be accommodated in the State of Tamil Nadu, on humanitarian grounds. Besides providing basic amenities, reassurance of protection, had to be given to these refugees who had landed in utter penury and suffering with a further sense of insecurity and fear. It was later found, that a substantial number of people, who had landed in Tamil Nadu, under the guise of refugees, really belonged to rival militant groups between whom internecine faction was existing. These people, belonging to such militant groups, posed security threat to the State of Tamil Nadu. The aforesaid militants were engaging themselves in anti-social activities like smuggling of arms and explosives, unauthorisedly exporting fuel and essential commodities to Sri Lanka, besides committing offences against the local public, apart from getting involved in Rajiv Gandhi''s assassination. While on the one hand, on humanitarian grounds, the State had to expend considerable sums of money, for the maintenance of these refugees, at the same time, it had to encounter security threat, posed by persons belonging to various militant groups, whose ideologies were diametrically opposed to each other. It was in that context in December 1990, the Tamil Nadu Government in consultation with the Central Government drafted a comprehensive plan of action, to segregate and regulate their movements of Sri Lankan militants, belonging to rival group and who were indulging in activities prejudicial to the maintenance of public order within the territory of India. As a part of the aforesaid strategy, the Tamil Nadu Government initiated further action, to segregate such militants belonging to various groups, and regulate their movements by settling them, in the respective refugee camps. This action plan, for segregation of the militants, was an act, intended to avert the activities of such militants which were prejudicial to the maintenance of public peace and security of the nation. It was also made, in an endeavor, to prevent wars and loss of life, a sample of which was witnessed during June 1990, in the city of Madras when one Padmanabha belonging to the E.P.R.L.F. group, was massacred along with fifteen others, using sophisticated A.K.47 machine guns. Though several thousands of refugees have entered into India without valid travel documents, no action was taken against them, under the normal law, since the Central and State Governments felt, that it would be inhuman to deport them or force them to return to Sri Lanka. The Sri Lankans were permitted to stay in this country, subject to the condition, that they would not indulge themselves in activities prejudicial to the interests of this country, in any maimer. If they had their own plans to settle in peace, they can follow the said plan or in the alternative, accept the plans of the Central or State Government to settle themselves peacefully in this country. The State Government never intended to detain or regulate the movements of State or peace. However, persons who belonged to various militant groups, had to be segregated and their movements regulated, not only in the interests of the State but also for the welfare of the families of those militants, who were enimically disposed towards each other. Alleged detenu in W.P. No. 15044 of 1991, had close links with the L.T.T.E. and had assisted the accused in Rajiv Gandhi''s assassinatioa case, by procuring house and helping them financially.
Special refugee camp at Saidapet, which was originally functioning as sub-jail, Saidapet, was taken over by the Collector of Madras on 21.7.91 and placed under the charge of the Tahsildar, Mambalam-Guindy Taluk. The camp is managed by Revenue officials. Police men are posted outside the camp for providing security to the camp. The inmates of the camp are supplied food by the Revenue Department and for this purpose Deputy Tahsildar are deputed. It will be incorrect to state, that the liberties of the alleged inmates were taken away. Persons settled in Special refugee camp, Saidapet, were permitted to bring their families and stay with the. Except that there was a limited restriction, of their movements, no other liberty or freedom of the inmates, were curtailed in any manner. The entire boarding and lodging expenses, of the inmates as well as their families, were borne by the State of Tamil Nadu. There were 19 inmates in the Special camp at Saidapet, including two children. It will not be correct to state, that the inmates are locked up. The camp is not manned by Police officials. It is manned by S.Jayachandran, TahsiJdar, Mambalam-Guindy Taluk, who is the Camp Officer in-charge. Policemen are posted outside the camp, solely to provide security. The inmates are allowed to move freely within the camp premises. It will not be correct to state that the inmates are confined. Except that reasonable restrictions have been imposed, on those foreigners, who have entered into India without any valid travel document and had indulged in activities which were prejudicial to the safety, security and territorial integrity of India, their liberties have not been taken away. Visitors are allowed to see the inmates. There can be no contrast or comparison between the special camp and the ordinary refugee camp. No privilege can be claimed by the inmates of the special refugee camp to go out of the camp, as the Government of Tamil Nadu, have information, that they, if allowed to go out of the camp, might indulge in acts prejudicial to the interests of the country. Orders were passed to regulate the continued presence off the these foreign nationals. The action of the Government was totally ''bona fide, taking into account the various circumstances set out earlier.
The learned Public Prosecutor coo-tended, that there was no scope, of claiming protection under Art.22 of the Constitution, for there was neither arrest nor detention. Foreigners Act, has been held to be intra-vires and non-specification, if any, of the period from which the Sri Lankan nationals would be kept in the Special Camp would not make the impugned orders invalid. The State of Tamil Nadu was constantly reviewing the cases of the inmates kept in the special refugee camps and whenever need to keep one or other of the inmates in the special refugee camp closed to exist, they were always transferred to the ordinary camps. As a matter of fact, during the pendency of these Writ Petitions, a few of the Sri Lankan nationals, were sent away to the Gummidipoondi Camp from the special refugee camp, Saidapet. These inmates have no fundamental right to remain in India and once they have chosen to violate the law of the land, their continued presence in the country without travel documents, would be illegal, though they were entertained initially, on humanitarian grounds, solely, on the ground, they were innocent refugees. It must be presumed, that the highest authority of the State, will act bona fide, and if there was any abuse of power, the Court will always step in, to correct it. The Act does not prescribe any time limit, for taking action, OR to regulate the presence of a foreigner in this country. The impugned orders do inform the concerned foreigners, that they can leave the boundaries of the special refugee camp, only with the permission of the Collector of the District. Therefore, it will not be correct to state, that the inmates have no opportunity whatever, to put forth their grievance if any. There was no violation of the mandate of Art.21 of the Constitution or reasonable restrictions, have always been upheld.
We have carefully Considered the divergent contentions placed before us, by Mr.B.Kumar and the learned Public Prosecutor. The Foreigners Act, is intended to deal with three- different aspects regarding foreigners, namely, 1)their entry into India, 2) their presence in India and 3)their departure therefrom. The object of the Act is limited to powers over entry, presence and departure of foreigners into, in and from India. This is a power which every Government must possess over foreigners, whose presence may be, or may in the course of time, become dangerous to the security of the administration or undesirable for other reasons. Since such reasons may be many and may arise on account of political or other considerations, too numerous to define, the Legislature could not have visualized all the eventualities. Hence, the whole matter of the foreigner''s presence in India, was left to Executive discretion. The problem of immigration and presence of foreigners is difficult for the Legislature to resolve once for all since the problem is linked up with many variables both national and inter-national. The first duty of a State is to survive. To do so, it has to deal with enemies both overt and covert whether they be inside the country or outside.
Keeping in view, the object and purpose of the Act, let us now look, into S.3(2)(e) and 3(2)(g) of the Act. Under S.3(2) (g) without prejudice to generality of the "foregoing powers", orders made under the Section, may provide, that a foreigner shall be arrested and detained or confined. Under S.3(2) (e), a similar order made, may provide, that a foreigner shall comply with such conditions as may be prescribed or specified requiring him to reside in a particular place or may impose any restrictions on his movements. On facts, we are not concerned with the other facets of S.3(2) (e) of the Act.
Mr.B.Kumar, harped, that in view of the Internment Order and allied orders, referring to internee as a person arrested or liable to be arrested, foreigners detained in internment camps, were persons arrested and confined. He then pointed out, that restrictions contemplated therein regarding movements, refer to a District, a vaster area, than a mere camp and hence the words "resides in a particular place", would not include in their fold, a narrow special refugee camp.
We are unable to accept this contention, "Place" has not been defined under the Foreigners ACT. However place has been defined u/s 2(p) of the Code of Criminal Procedure, to include a house, building, tent, vehicle and vessel. Section 100, Cr.P.C. refers to inhabitants of the locality. Law Lexicon states the "Place" certainly does not mean "geometrical point of space or the earth". It must mean "area" having length and breadth. "An area" defined by specified boundaries and described otherwise to delimit its ambits is known as "a place". There is nothing to indicate, that the word "place" is either as big or as small as a town, village, market place or otherwise. The word "place" has been used to denote certainty rather than "size". "Locality" according to Law Lexicon, is a definite region in any part of space. "Locality" is a place with an area which is reasonably small and compact so that, it has come to exist and be treated as one unit, a reference to which sufficiently identifies the area and the persons therein: Ordinarily, the unit which has acquired a name by which it is referred and understood. Locality has been interpreted, not to mean the same quarter, but inclusion of places even 3 or 4 miles, of the place of search. Locality need not mean, that person should be living, within a stone''s throw of the house, to be searched. It is therefore, abundantly, clear, that the word "place'' contemplated under S.3 (2)(e), is different from the word "locality", the latter being broader in concept. The learned Public Prosecutor submitted that the Special Camp, Saidapet has an area of 10,000 square feet. The special camp, Saidapet, can therefore, certainly be a particular place, contemplated under S.3(2)(e)(i) of the Act. Mr. B. Kumar, was able to realise the possible difference between a place and locality and hence, conceded, that the special refugee camp can be termed as a "Particular place". If that be so, under S.3 (2)(e) of the Act, the State Government does have the power, to require foreign nationals, not only to reside in a particular place, as a special refugee camp, but also have power to impose restrictions, on their movements. Power, to pass orders under S.3(2)(e) of the Act, indisputably has been delegated by the Central Government to the State Government. We are unable to agree, that the foreigners involved in these writ petitions, have been arrested and detained or confined. Only certain limited restrictions have been made in their movements and place of residence. A special refugee camp cannot be termed as an internment camp. If that be so, the argument that the impugned orders must be deemed to have been made under S.3(2)(g) of the Act cannot survive. Similarly, the protection sought under Art.22 (4) of the Constitution also, cannot exist, since the said Article deals with protection against arrest and detention in certain cases.
We will now turn our attention to the arguments advanced, claiming protection under Arts. 14 and 21 of the Constitution of India. The underlying principle of Art. 14 is that like should be treated alike. Unequal treatment does not arise as between persons governed by different conditions and different sets of circumstances. It is an accepted principle, that persons may be classified into groups and such groups may be treated differently, if there was a reasonable basis, for such difference or distinction. Art. 14 does not forbid classification or differentiation, which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed, or by the territory within which, it has to operate. An established important principle, is that, law may be constitutional even though it relates to a single individual. If on account of special circumstances, reasons applicable to him and not applicable to others, that single individual may have to be treated as a class by himself. A discretionary power is not necessarily discriminatory. In applying this principle, due regard should be given to the authority in whom the discretion is vested. If it is vested in the State Government, abuse of power cannot readily be inferred.
The counter affidavit filed on behalf of the State, the contents of which we have extracted earlier, clearly show, that the Sri Lankan refugees, who had come down to India, due to ethnic violence and who were housed in refugee camps, had to be segregated, mainly due to some of them, being members of militant organisations having close links with L.T.T.E. Exercise of such a discretionary power of segregation cannot be held to be discriminatory. In Giani Bakshish Singh Vs. Government of India and Others, the Apex Court while considering detention of a foreigner under the provisions of Maintenance of Internal Security Act, held that, prejudicial activities were not necessarily activities prohibited or made punishable by specific provisions of law. In that case, the appellant attempted to take advantage of the tact that by race, he was in India, and proposed to indulge in activities which was dangerous to the integrity and security of this country. In that context, the Apex Court observed as follows: -
The first duty of a State is to survive. To do so if has got to deal with enemies both overt and covert whether they be inside the country or outside. The fact, that the appellant if released would go to England and from there continue to indulge in activities prejudicial to the security and integrity of this country, is a relevant factor in determining whether he could be detained in mis country when he is found in mis country ..... ........... But if such a person happens to come to this country we presume he can be detained. We do not accept the argument mat a person like the appellant could be detained only if it is apprehended that if not detained he would indulge in prejudicial activities in mis country and not if his activities are outside this country even though they may have a prejudicial effect on this country. Take the case of a person acting prejudicially to the security of a State in this country ''while residing in another State. We have no doubt that he can be detained by the former. State. The same analogy applies to this case. International Law does not seem to deal with the case of nationals of one country acting in mat country to the prejudice of the security and integrity of another country" and whether anything could be done about them. To allow a person like the appellant to go back to England at his request in spite of the certainty mat while in England he will continue to indulge in activities prejudicial to the security and integrity of this country would be like action of some foolish people who take a rat cought in a trap in their house to the road and release it.
It cannot therefore be argued that if reasonable restrictions were imposed by the State, to preserve its security, for the same is paramount, there has been a discrimination under Art. 14 of the Constitution. The facts narrated earlier clearly show, that only a small percentage of the Sri Lankans who had been entertained as refugees, have been sought to the detained in special refugee camps, in view of the information available to the State Government, that they belong to militant groups and have close links not only with the L.T.T.E. organisation but some of them had also a role to play in the Rajiv Gandhi assassination case. Not only the State Government, has authority of law, to act under S.3(2)(e) of the Act, but also, has a right to exercise discretionary power to segregate certain foreign nationals, which act we are not prepared to hold under the circumstances, as discriminatory. We are therefore, not impressed with the argument, that the action of the State Government will have to be struck down as violative of Art. 14 of the Constitution.
We will now examine if the mandate of Art.21 of the Constitution stands violated. Mathew, J. in Gobind Vs. State of Madhya Pradesh and Another, , while considering right of privacy, explained that "even assuming that the right to personal liberty the right to move freely throughout the territory of India and the freedom of speech create independent right to privacy as emanating from them, the right was not absolute and it must be read subject to restriction on the basis of compelling public interest." The expression "procedure established by law" means procedure laid down by statue or procedure prescribed by the law of the State. Firstly, there must be. law justifying interference with the person''s life or personal liberty and secondly, the law should be a valid law, and, thirdly, the procedure laid down by the law should have been strictly followed. There cannot be any dispute that under S.3(2)(e) of the Act, the State Government has power to require a foreign national to reside in a particular place and to impose restrictions on his movements. The validity of the Foreigners Act has been upheld by the Supreme Court. Therefore, the first two facets of the procedure established by the law gets satisfied, on the facts available in this case. The scrutiny will now be restricted to the question if the procedure laid down by law has been strictly followed. In Ananda Bhavanand @ Swamy Geethananda v. Union of India (1991 L.W. Crl. 393), before a Division Bench of this Court, it was argued that Section 3 of the Act as a whole conferred on the Executive unguided and uncanalised powers and that the impugned orders of deportation, violated the principles of natural justice, in that, the petitioners therein, were not afforded an opportunity to make their say on the question. In answering the question, the Division Bench stated as follows:-
So long as the legislature indicates, in the operative provisions of the statute with certainty, the policy and purpose of the enactment, the mere fact that the legislation, is skeletal, or the fact that discretion is left to those entrusted with administering the law, affords no basis either for the contention that there has been as excessive delegation of legislative power as to amount to an abdication of its functions, or that the discretion vested is uncanalised and unguided as to amount to a carte blanche to discriminate and if the power or discretion "has been conferred in a manner which is legal and constitutional, the fact that Parliament could possibly have made more detailed provisions, could obviously not be a ground for invalidating the law.
The Division Bench went on to add as follows:-
Considering the policy behind and the Object of the Act, very many exigencies would arise, which we cannot enumerate and glossaries and which would impel quick and lightening action to be taken under the Act, failing which, the very security of the nation may be jeopardised. The Act is a piece of legislation, having a significance and a play of its own and as pointed out by the Supreme Court that act vests the Central Government with absolute and unfettered discretion and a foreigner can be expelled without any formality'' beyond the making of the order................ ................ It cannot be contended that the present action is violative of the well-known principles of human rights, and the court cannot be weighed down by these theses while dealing with a right of a foreigner to be in mis country, which right has no foundation in law, and in particular when an order under the Act has come to be made.
The Division Bench took note of the decision of the Andhra Pradesh High Court in Mohammed Khan v. State of Andhra Pradesh. (1978 Andhra Weekly Reporter 408) and distinguished the same on the basis, that in that case, the person involved claimed, that he was a citizen of India and asserted that he was not a foreigner. That was found to be a jurisdictional issue, over which there was no adjudication, after affording an opportunity to make his say. It was in that context, the Andhra Pradesh High Court held, that the order of deportation and violated the principles of natural justice. In the instant case, it is not disputed, that the inmates of the special refugee camps are Sri Lankan nationals and hence foreigners, who had come down to India, without travel documents and further they have no valid permits to continue to stay in India. The Division Bench quoted the observation of the Bombay High Court in Bhawalkhan Zelanikhan Vs. B.C. Shah, which need extraction:
Now; before referring to the foreigners order enacted in exercise of the power contained in S.3 of the Act it is relevant to point out mat from S.3 above the object of the Act appears to be to provide for prescribing, regulating and restricting amongst other dungs me presence and continued presence of a foreigner in India. What appears to have been intended is to confer power on the Executive Authority to prescribe and specify conditions for continuance of a foreigner in India. Extremely wide kind of or unlimited restrictions and prohibitions and regulations can be validly prescribed and specified. The Legislature intended to give widest possible powers to the Government for obvious reasons. A foreigner is not entitled to any guarantees or fundamental rights as a citizen is entitled to under the Constitution. A foreigner can be dangerous to security of India. His presence may be undescribable for any reason of any kind and it appears to have been intended by the Legislature to leave the whole matter of the foreigners presence in India to the Executive discretion of the Government. The provisions as contained in S.3 make this object of the Act abundantly clear. The last words in the Sub S.(2) of S.3 of the Act show the wide character of the powers intended to the conferred on the Government. The power is given to make provision for any matter which is to be or may be prescribed and for such incidental and supplementary matters which may be deemed expedient or necessary by the Government for giving effect to the Act.
The Foreigners Act has vested the discretion in the concerned Government, to restrict the movements of foreigners and further to require them to reside in a particular place, obviously, when circumstances so warranted, such a course. The security of the State has to be the prime concern. Obviously, every possible contingency could not have been contemplated by the Legislature and in that context, prescription of a time limit under S.3(2)(e) was apparently felt not necessary. We cannot overlook that there is no detention and hence fixation of time cannot be mandate. If a foreigner had been received in this country, with open arms when he came down due to ethnic violence in Sri Lanka he has to necessarily abide by the laws of this country. As long as he abided by the laws of this country, his having come down to India without valid travel documents, would not have been taken against him, for the circumstances then prevailing in Sri Lanka, which needed exodus so imminently; had been taken note of by the State Government, which on humanitarian grounds had provided all facilities for the refugees. Once, some of those refugees attempted to violate the law of the land, naturally, the security of the State, which is paramount has led to the passing of the impugned orders against a few of the Sri Lankan nationals, who have been identified as having close links with the L.T.T.E. and belonging to rival ethnic groups as well. It is quite true, that the impugned orders, do not ex-facie show the reasons, which prompted the State Government to pass orders for regulating the continued presence of these foreigners. But, the counter-affidavits filed by the State, have clearly given out the reasons therefor, namely, the close links of the inmates of the special refugee camps concerned in these Writ Petitions, with the L.T.T.E. and the danger they had posed to the security of the State, apart from they being members, belonging to various militant groups.
Recently, the Supreme Court had occasion to consider the fundamental right of a foreigner to life and liberty under Art. 21 of the Constitution. In respect of the right to be heard, the Apex Court stated, that there cannot be any hard and fast rule about the manner in which a person concerned has to be given an opportunity to place his case. In the said case Louis De Raedt and Others Vs. Union of India and others, after quoting its earlier view in Hans Muller of Nurenburg Vs. Superintendent, Presidency Jail, Calcutta and Others, stated, that the power of the Government in India to expel foreigners was absolute and unlimited and there was no provision in the Constitution fettering this discretion. Regarding the right to be heard it was held that there cannot be any hard and fast rule about the manner in which a person concerned has to be given an opportunity to place his case. The Supreme Court further observed, that it was not claimed that if the authority concerned had served a notice before passing the impugned order, the petitioners could have produced some relevant material in support of their claim of acquisition of citizenship, which they failed to do, in the absence of a notice. We have already stated, that reasonable restriction imposed on certain foreigners (Sri Lankan nationals) was in the interests of the security of the State and further those persons have been furnished with an opportunity to obtain permission of the concerned Collector, before they could seek to go out of the special refugee camps.
We have already held that there has been no detention and the State has power to reasonably restrict the movements of foreign nationals and direct them to reside in a particular place. If that be, so, the claim of the Writ Petitioners, that their cases should have been referred either to an Advisory Board or an impartial authority, does not appear to be sound. If we hold, that the discretion has been exercised by the State Government bonafide and further malafides cannot be attributed, that would be the end. It may not be possible to prescribe a particular length of time for stay, of these foreign nationals in the length of time for stay, of these foreign nationals in the special refugee camps, for various factors relating to security of State will necessarily govern the further decisions to be taken from time to time, as rightly pointed out by the learned Public Prosecutor. Even during the pendency of these Writ Petitions, a few of the foreigners have been transferred from the special refugee camps to the ordinary refugee camp at Gummidipoondi. That the State Government is engaged in the consideration of the need to segregate or otherwise of some of the foreign nationals in special refugee camps periodically, is prima facie sufficient guarantee to exclude malafies.
In Anwar Vs. The State of J. and K., it was held that Habeas Corpus, though a writ of right is not a Writ of course. Its scope has grown to achieve its purpose of protecting individuals against erosion of the right to be free from wrongful restraint on their rightful liberty. But, when as in the present case, petitioner has no right to move about freely in this country without a proper legal sanction, restraint exercised on him for expelling him from India could not be considered on the facts and circumstances of this case to amount to his custody being illegal, so as to require this Court to direct his immediate release. Constitutional protection against illegal deprivation of personal liberty construed in a practical way cannot entitle non-citizen like the petitioner, to remain in India contrary to the provisions of the law governing foreigners."
In Smt. Pushpa Devi and others Vs. Milkhi Ram (Dead) by his L.Rs., the following observations were made, which would aptly apply, while considering the provisions of the Foreigners Act.
Great artistry on the Bench as elsewhere is, therefore, needed before we accept, reject or modify any theory or principle. Law as creative response should be so interpreted to meet the different fact situations coming before the Court. For, Acts of Parliament were not drafted with divine prescience and perfect clarity. It is not possible for the legislators to foresee the manifold sets of facts and controversies which may arise while giving effect to a particular provision. Indeed, the legislators do not deal with the specific controversies. When conflicting interests arise or defect appears from the language of the statute, the Court by consideration of the legislative intent must supplement the written word with ''force and life. See, the observation of Lord Denning in Sea-ford Estate Ltd. v. Asher (1949) 2 KB 481 at P.498.
On the basis of the law laid down by Supreme Court in Hans Muller of Nurenburg Vs. Superintendent, Presidency Jail, Calcutta and Others, it can easily be concluded that any notice prior to passing of the impugned orders cannot be expected by these foreigners. Once we are able to see that the Sri Lanka nationals will have opportunity to leave the boundaries of the special camp on sufficient cause with the permission of the District Collector concerned, it cannot be held that any procedural mandate has been violated. To reiterate, the survival of the State is paramount, and if to preserve the security and integrity of the country, certain restrictions have to be imposed on these foreigners, it will be difficult, on the present set of facts, to hold, that there has been violation of the mandate of Art.21 of the Constitution.
On the basis of the counter-affidavits filed on behalf of the State Government, we are able to comprehend, that the foreign nationals involved in these writ petitions are not confined and are allowed to mingle inside the camp and further are afforded opportunities, to stay in these camps, with their families.
There is no absolute prohibition to move from one place to another. The orders say that the inmates shall not leave the camp except with permission of the District Collector. In other words, they can move on grant of permission. The dimensions of freedom to move throughout the territory of India available for a citizen, is not the same for a foreigner. Having regard to the particular explosive situation prevalent in the country, it is only reasonable that restrictions of this sort are sought to be imposed. Such imposition can never be stated to be arbitrary or capricious exercise of power, violating the mandate of Articles 14 and 21 of the Constitution. As already stated, there is a fallacy in the argument that the orders become bad in the absence of fixation of definite periods of stay in the special refugee camps, for each order is not one of detention but only one of reasonable restriction.
It is true, in A.K. Gopalan Vs. The State of Madras, it was held that the narrowest meaning of the term "personal liberty", guaranteed protection against confinement or imprisonment. Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, accepted reasonableness and procedural reasonableness have been accepted in Rustom Cavasjee Cooper Vs. Union of India (UOI), and A.D.M. Jabalpur''s case ( AIR 1975 S.C. 1207). Only on the basis of these requirements, we have already considered, the variety of tacts placed or our consideration by the Counsel. We have no hesitation in holding that the impugned orders are perfectly valid.
We are unable to accede to any one of the contentions urged by Mr. B.Kumar. Hence, these three Writ Petitions which have no merit, shall stand dismissed.
In the result, of the five writ petitions, W.P. 15978 of 1991 and 20 of 1992 shall stand dismissed as infructuous. Writ Petitions 15958 of 1991, 15044 of 1991 and 21 of 1992 shall stand dismissed on merits.