Foreigners must be heard before restraining their movement after granting bail: Kerala HC
Kochi: High court has held that a foreign national granted bail must be given a chance to be heard before any movement restrictions are imposed under the Foreigners Act, except where national security or public interest demands otherwise.
Justice C Jayachandran made the ruling while allowing a petition filed by a couple and their 22-year-old son, all Nepali citizens, who had been working as cleaning and housekeeping staff at a resort in Kalpetta. They challenged the orders issued by the Foreigners Regional Registration Officer (FRRO), which restricted their movement even after they were granted bail in an alleged murder case.
The petitioners were arrested on Sept 21, 2024, on allegations of murdering a newborn baby by strangulation.
They were enlarged on bail in Nov 2024. According to them, despite having been granted bail by the court, the FRRO issued orders confining them to a transit home, without affording them an opportunity to be heard, an action they contended was illegal and arbitrary. In response, the central govt counsel argued that foreign nationals do not possess a fundamental right to move freely across India and that the Foreigners Act does not mandate an opportunity to be heard before such restrictions are imposed.
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Considering the significance and complexity of the legal issues involved, HC appointed an amicus curiae, who submitted that movement restrictions under the Foreigners Act are distinct from arrest or detention and do not amount to punishment. However, HC observed that, in the present case, allowing being heard would neither defeat the purpose of the proposed orders nor jeopardise national or state interests, and is in line with the principles of natural justice.
The court further noted that restricting the movement of a foreign national amounts to a deprivation of personal liberty. It remarked, "Bondage, though in a golden cage, remains bondage." The court clarified that if the authority fears that issuing a notice may give the individual a chance to abscond, a provisional order may be passed to restrict movement and secure their presence. However, a subsequent opportunity to be heard must be provided in keeping with the principles of fairness and non-arbitrariness.
Accordingly, the court held the FRRO's orders to be illegal. It directed that the petitioners shall remain in the transit home for one more month, during which time the FRRO shall hear the petitioners and thereafter pass fresh orders under the Foreigners Act.
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