Sachin Viswanath Naik & Anr. vs Union Of India, Indian Embassy At Finland & Ors.

The Petitioners, by way of the present Petition, invoke the writ jurisdiction of this Court and pray for a writ of mandamus or any writ in the nature of mandamus directing Respondent No.1 to issue an Entry (X) visa, i.e., a spouse visa, to the Petitioner No.2, who is the wife of Petitioner No.1.

The facts germane for deciding the issue arising out of the Petition can be summarised as under:

The Petitioner No.1 is an Indian Citizen and the resident of Pernem Goa, having business across India. The Petitioner No.2 is a Finnish citizen, who is married to the Petitioner No.1 under the Special Marriage Act, 1954. The Petitioner No.2 holds a Finnish Passport bearing No.CP1010267, which is valid till 26.04.2028. On 13.01.2024, the Petitioner No.2 applied for an e-Tourist Visa through the online portal of the Bureau of Immigration, Ministry of Home Affairs. The same was granted to her and was valid until 22.10.2024 for multiple entries.

From 23.10.2023 to 22.10.2024, the Petitioner No.2, being a frequent flyer, visited India on many occasions, during which she was not even stopped once or questioned regarding the validity of her Visa.

On 05.09.2024, the Petitioner No.2 received a letter from Vision Tours extending an invitation to her to visit Ahmedabad for a business venture. Consequently, on 11.09.2024, the Petitioner No.2 submitted an application form for an e-Business Visa. The Bureau of Immigration, India, approved her request for a grant of an e-Business Visa, which was valid until 10.09.2025.

On 12.09.2024, Petitioner No.2 departed from Tribhuvan International Airport, Nepal and arrived in India by using the e-Business Visa. On 27.10.2024, the Petitioner No.1 married Petitioner No.2 in Mumbai, Maharashtra. The marriage is registered under the Special Marriage Act, 1954. Thereafter, the Petitioners travelled to Turkey. However, on 27.11.2024, when the Petitioners arrived at Mumbai International Airport, the Petitioner No.2 was denied entry into India. Consequently, the Petitioner No.2 was compelled to travel back to Turkey.

Since no plausible reason was provided as to why the Petitioner No.2 was not permitted to enter into India, the Petitioner No.2 in view of her marriage to Petitioner No.1 applied for fresh Visa, in a different category, i.e. Entry (X) Visa, which falls in the category of “for persons of Indian origin and spouse and children of Indian citizen/person of Indian origin/OCI holder” to the Bureau of Immigration, Ministry of Home Affairs. A copy of the application was submitted by Petitioner No.2 to the Indian Embassy in Helsinki, Finland.

On 10.01.2025, an Officer of the Indian Embassy in Finland contacted the Petitioner No.1 and requested to provide particulars in respect of Petitioner No.2 so as to enable them to process her application. The particulars were provided by the Petitioners on the very same day and the same were acknowledged. On 14.01.2025, a Consular Assistant addressed an email to Petitioner No.2 informing her that the application for an Entry Visa has been accepted for one year.

On 04.02.2025, Respondent No.1, a Consular Assistant via email informed/intimated Petitioner No.2 that “your Visa application, though processed, but at this moment it is not possible for the Mission to issue any kind of Visa to you”. Immediately, the Petitioner No.2 responded to the said email seeking clarification from Respondent No.1 as to why they were unable to grant her a Visa. However, there was no response.

It is in the matrix of the aforesaid facts and circumstances that the Petitioners, being aggrieved by the refusal of the Respondents to issue a spouse Visa, approached this Court.

The Respondent No.3, Bureau of Immigration, has filed an affidavit in reply dated 26.06.2025, inter alia, contending that the Petitioner No.2 was named in a complaint submitted by one Mr Pankaj Nayyar, resident of Goa and a former business associate of Petitioner No.1, who purportedly was the Proprietor of Riva Beach Resort located at Mandrem Goa. The office of FRRO, Mumbai, conducted an inquiry against Petitioner No.2 on the basis of the above complaint and came to the conclusion that she was involved in Visa violation. Thereafter, an LOC was opened at the behest of FRRO, Mumbai office. The reply further contended that since 2009, the Petitioner No.2 had made frequent visits to India on a tourist Visa. In the year 2004, she entered the country 5 times, thereby exhausting the maximum permissible duration allowed under a tourist Visa, following the exhaustion of limits, she entered India in the year 2024 using a business Visa.

The reply further alleges that the Petitioner No.2 identifies herself as a self-employed make-up artist and there was credible evidence to suggest that she has been engaging in paid make-up assignments in weddings and other private events while in India on a tourist Visa. The business Visa, on the strength of which she entered India, was sponsored by an entity named Vision Tours, which is a proprietary firm based in Ahmedabad, Gujarat. The reply further alleges that in a telephonic conversation, Mr Shah, Proprietor of Vision Tours, admitted to never having met Petitioner No.2 in person and confirmed that there is no existing business relationship between Vision Tours and Petitioner No.2.

The office of FRRO, Delhi also conducted inquiry against Petitioner No.2 and found that she was using a fake Visa reference for obtaining the business Visa and hence she was blacklisted for further entry in India under appropriate category by FRRO, Delhi.

The Petitioner No.2 filed a rejoinder dated 20.12.2024, dealing with the contentions of Respondent No.3 in seriatim. She pleaded that the so-called complaint on the basis of which she has been ultimately blacklisted is purely a commercial dispute between the complainant and the Petitioner No.1, who were partners in the operation of an open Resort in Goa. It further mentioned that the police had investigated the complaint filed by the complainant, i.e. Pankaj Nayyar and have filed a ‘C’ Summary Final Report before the learned JMFC, Pernem, Goa, concluding that the matter is purely civil in nature and that there is no criminality involved.

The Petitioner No.2 has vehemently denied that she has indulged in any visa violation and asserted that although she has been regularly visiting India on a tourist visa to see her friends and family since 2009, at no point of time she was either accused of any malpractice or visa violation. The Petitioner No.2 emphatically pointed out that her tourist visa dated 24.10.2023 did not contain any restriction on the number of times she could enter the Country, in fact, the Visa was a ‘multiple entry visa’. She also denied that she had overstayed during the validity of the tourist Visa, during the calendar years 2023 and 2024. Joining issue with the allegation that she was engaged in paid make-up assignments for weddings in India, the Petitioner No.2 stoutly denied such allegations and submitted that the same were without any basis. Her Facebook account posted photographs to share her creative work and she had never engaged in any commercial transactions. The Petitioner No.2, in her rejoinder, has also denied the allegation that she had provided any false particulars in her business Visa application and asserted that the sponsorship of Vision Tours for the business Visa was not a sham since the Proprietor of Vision Tours was an acquaintance of Petitioner No.1, her husband and it was at his request that the letter was issued by the Vision Tours.

Heard Mr S. S. Kantak, learned Senior Counsel along with Mr Abhijit Gosavi, learned counsel for the Petitioners and Mr Raviraj Chodankar, learned Central Government Standing Counsel for the Respondents.

Rule. Rule is made returnable forthwith with the consent of and at the request of the learned Counsel appearing for the parties.

Mr Chodankar, learned Central Government Standing Counsel appearing for Respondent Nos.1 to 3, has placed before us the Guidelines issued by the Government of India, Ministry of Home Affairs (Foreigners Division) dated 29.03.2023, in the form of “Consolidated Guidelines for Blacklisting of Foreign Nationals” (“MHA Guidelines”). He would invite our attention to Clause 4 therein which has categorised Blacklisting Grades and Blacklist Grade A, is to be invoked when foreigners use forged or fraudulently obtained travel documents including forged Visa to enter India or who have been deported for using forged or fraudulently obtained travel documents, forged Visa or without Visa, and it is this provision which is invoked according to him to blacklist the Petitioner No.2. Mr Chodankar has also relied on an Office Memorandum dated 20.11.2024 issued by the FRRO, Bureau of Immigration, Delhi to the Deputy Director, Bureau of Immigration, Headquarters, New Delhi, which refers to an office Memorandum dated 29.03.2023 issued by the Ministry of Home Affairs (Foreigners Division), New Delhi and states that the name of the Petitioner No.2 is proposed to place under Blacklist Grade “A” and circulars may be issued to prevent her future entry into India. The Memorandum refers to a complaint received by the FRRO and an inquiry conducted by them which held that the Petitioner No.2 used a fake/false Indian reference for obtaining a Visa, and hence, the action for blacklisting her was initiated.

Learned Senior Advocate Mr S. S. Kantak has submitted that the blacklisting of Petitioner No.2 is arbitrary, illegal and without due process of law. He submitted that the rules of natural justice were not followed and no explanation was sought from the Petitioner No.2 before taking a step of blacklisting her merely upon a complaint, without conducting any independent inquiry as to the genuineness or otherwise of the complaint. He would urge that the principles of natural justice would apply to foreigners as well and, more particularly, since Article 14 strikes at arbitrariness, one of the facets of the non-arbitrary action would be following the principles of natural justice. He would also urge that the Petitioner No.2 has not committed any violation of the MHA Guidelines. He has also placed reliance on several decisions of the Apex Court and other High Courts, namely : Francis Coralie Mullin V/s. Administrator, Union Territory of Delhi and Ors^{11.(1981)1 SCC 608}, Githa Hariharan and Anr. V/s. Reserve Bank of India and Anr.^{22.(1999) 2 SCC 228}, Chairman, Railway Board and Ors. V/s. Chandrima Das (Mrs) and Ors^{33.(2000) 2 SCC 465}, Justice K.S. Puttaswamy (Retd.) and Anr. V/s. Union of India and Ors.^{44.(2017) 10 SCC 1} and Kamil Siedczynski V/s. Union of India and Anr.^{55.2020 SCC OnLine Cal 670}

Mr Chodankar, on the other hand, would contend that foreign nationals cannot claim Visa or entry into India as a matter of right. The same is the sovereign function of the Central Government and visa is meant only for those foreign nationals who follow Indian laws and rules. Blacklisting is essentially an executive decision taken by the Government as part of governance of a sovereign nation and as a process of policy making and hence would not be justiciable. The Government has unfettered power when it comes to issues concerning citizenship laws and that discretion cannot be judicially reviewed. He would also submit that if the individuals who are blacklisted are informed about their blacklisting, it would lead to those individuals being more alert and cautious, and they can make attempts to escape the radars of Indian Security Agencies. He has also placed reliance on several decisions of the Apex Court and other High Courts namely : Louis De Raedt V/s. Union of India and Ors.^{66.(1991)3 SCC 554}, Craig Maxwell Sterry V/s. Ministry of Home Affairs, Union of India & Ors.^{77.2009 SCC OnLine Bom 1416}, Dhanraj Rajendra Patel V/s. Union of India^{88.2023 SCC OnLine Guj 148}, Union of India V/s. Savitha Kumar^{99.2019 SCC OnLine Del 12533} and Steven Douglas Harding V/s. Union of India & Ors^{1010.Writ Petition (lodging) No.25346 of 2025} and Yachneet Pushkarna V/s. Union of India^{1111.Writ petition No.610 of 2025}.

It is not disputed by the respondents that before blacklisting the Petitioner No.2, she was not given any opportunity to demonstrate by way of explanation as to why the action of blacklisting should not be initiated against her. Thus, the core issue that arises for consideration before this Court is whether, in the facts of the given case, the respondents ought to have followed rules of natural justice and given an opportunity of hearing to the Petitioner No.2 prior to initiating the action of blacklisting, particularly in the conspectus that Article 14 of the Constitution strikes at arbitrariness, one of the facets of the non-arbitrary action would be adherence to the principles of natural justice and whether the non-observance of the principles of natural justice would render the process of blacklisting of Petitioner No.2 as arbitrary and unreasonable.

We have perused the MHA Guidelines, which categorise the name of the Petitioner No.2 to be placed under Blacklist Grade ‘A’ on the basis of an email complaint against her. These Guidelines are prepared in pursuance of Section 3(2) of the Foreigners Act, which reads as under:

That, upon going through the documents placed on record by Mr Chodankar pertaining to the inquiry conducted by the Respondents on the basis of the complaint against Petitioner No.2, it is evident that the Petitioner No.2 was not granted any opportunity to deal with the accusations on the basis of which she was blacklisted and she is not given a chance to demonstrate the allegation of breach of the guidelines as alleged.

Dealing with the submission advanced by the Counsel for the Respondents that Section 3 of the Foreigners Act, 1946 and the Guidelines framed therein do not contemplate any reason to be attributed of any prior hearing to be granted to the concerned foreigner before initiating the process of blacklisting, we must advert to the observations of the Apex Court in the case of Satwant Singh Sawhney V/s. D. Ramarathnam^{1212.(1967) 3 SCR 525}, which held that the expression “personal liberty” in Article 21 takes in the right of locomotion and travel abroad and hence no person can be deprived of that right except according to the procedure established by law.

The umbrella of protection of fundamental rights guaranteed under the Constitution by Article 21 and Article 14 is available even to the non-citizens, i.e. a foreigner. This fact was reiterated by the Constitution Bench of the Apex Court in Hans Muller of Nurenburg V/s. Superintendent Presidency Jail & Ors., Calcutta^{1313.AIR 1955 SC 36}, while upholding the constitutional validity of Section 3(2)(c) of the Foreigners Act. The concept of liberty was broadened by the Supreme Court in Mrs. Maneka Gandhi V/s. Union of India & Anr.^{1414.(1978) 1 SCC 248}, adding a new dimension to Article 21 and incorporating the principle of reasonableness to be an essential element of equality, emphasising that the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It held that the procedural safeguards are an indispensable essence of liberty and the history of personal liberty is largely the history of procedural safeguards.

The rule of audi alteram partem is not static. There are numerous judicial decisions which lay down that this rule may suffer situational modifications. The core of the rule is that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine one. The modalities of the opportunities and what would be regarded as reasonable would necessarily depend upon the facts and practical necessities of the situation. In the case of Canara Bank V/s. V.K. Awasthy^{1515.(2005) 6 SCC 321}, while commenting on the concept of natural justice, the Hon’ble Supreme Court held as under:

The question regarding the requirement of opportunity even in the absence of a provision of such a hearing was dealt with and considered favourably by the Hon’ble Supreme Court on a number of occasions, including the case of Olga Tellis & Ors. V/s. Bombay Municipal Corporation & Ors.^{1616.(1985) 3 SCC 545}

In the light of the aforesaid discussion and the principles of law regarding natural justice culled out from various decisions of the Hon'ble Supreme Court, we are of the view that the question of whether rules of natural justice stand excluded or not would essentially depend upon the facts of each case, the seriousness of the offence/transgression committed by the concerned foreigner and whether the interest of the State is compromised/jeopardised or the purpose of the statute is defeated by affording of being heard.

Dealing with the Judgments relied upon by counsel for the Respondents, we find that in the Judgment of Dhanraj Rajendra Patel (supra), the issue before the Single Judge of Gujarat High Court was that the Petitioner therein, a US citizen, had sought a direction to quash the notice under para 6 of Foreign Order 1948 by which he had been refused entry into India. The Court, after examining the framework of the law, particularly Foreigner's Order 1948, came to the conclusion that being an American passport holder, the Petitioner cannot invoke Articles 14 and 19 of the Constitution of India, and that the life and liberty of a person not on the shore of India cannot be invoked on his behalf when the individual himself is not in India. The facts and the framework of law alluded to in the said judgment are completely different from the facts and the legal parameters in the present case and hence, the reliance of the Respondents on this judgment would not take their case any further.

The Respondents have relied on a Division Bench ruling of the Delhi High Court in the matter of Union of India V/s. Savitha Kumar (supra) wherein the issue before the Court was the propriety of blacklisting a person who was an overseas citizen of India (OCI) as defined under the Citizenship Act, 1955, which again dealt with a different framework of law namely the provisions of the Citizenship Act, 1955 which is qualitatively distinct from the facts of the present case and hence distinguishable.

The Respondents have relied on a Division Bench ruling of a co-ordinate bench of this Court in the matter of Craig Maxwell Sterry (supra), wherein the Petitioner, a person of Indian origin, a British national whose PIO Card was cancelled by the State authorities, aggrieved by which he had approached this Court. This Court while dealing with the aforesaid issue and particularly in the light of the judgment of Louis de Raedt (supra), was of the view that the Petitioner therein was not entitled for right of protection under Article 19(d) and (e) of the Constitution of India. There can be no quarrel with this proposition. However, the issue that looms large before us is the applicability of Article 14 and 21 of the Constitution of India to foreigners and therefore, this judgment is also of no help to the Respondents.

Lastly, the Respondents have relied on an order of the co-ordinate bench of this court dated 14.08.2025 passed in Writ Petition (Lodging) No.25346 of 2025 Steven Douglas Harding (supra), where the Petitioner sought leave to withdraw the petition since he was already deported back to USA. This Court, while disposing of the aforesaid petition, has observed that it is open for the wife of the Petitioner to make a representation before the Ministry of Home Affairs for removal of the Petitioner’s name from blacklisting. We do not see how these observations would have any bearing on the issue before us.

Revisiting the facts at hand, we note that the Petitioner No.2 was granted a tourist Visa and subsequently a business Visa by the Respondents in the recent past and apart from one stray incident of overstaying, which is factually denied by the Petitioner No.2, there are no other allegations of breach against the Petitioner No.2. It is not the case of the Respondents that the Petitioner No.2 has committed any unlawful act of such gravity that would warrant the drastic action of blacklisting her even without affording her an opportunity of being heard. It is also not the case of the Respondents that she is an imminent threat to national security. In this context, it would be apt to reproduce the observations of the Apex Court in the matter of Hasan Ali Raihany V/s. Union of India^{1717.(2006) 3 SCC 705}, whilst dealing with the issue of cancellation of residence Visa and the obligation by the Authorities to disclose reasons for proposed deportation, which read as under:

Therefore, in the fact situation emerging before us, we are of the view that the action of unilaterally blacklisting Petitioner No.2 is manifestly arbitrary and unreasonable. Respondent No.3 ought to have adhered to the principles of natural justice and afforded an opportunity to the Petitioner No.2 to deal with the allegations made in the complaint on the sole basis of which the Respondents have taken such a drastic and far-reaching step of blacklisting the Petitioner No.2. The modalities and the extent of affording such opportunity is the domain of the Respondents and we do not wish to comment upon the same.

In the wake of the aforesaid facts, circumstances and discussions, we dispose of the Petition with the following directions: