Safiya Malik

The High Court of Kerala Single Bench of Justice C. Jayachandran declared as illegal the orders passed by the Foreigners Regional Registration Officer (FRRO) confining three Nepali nationals to a transit home, citing violation of principles of natural justice. The Court held that the impugned orders restricting the petitioners’ movement under the Foreigners Act, 1946 were passed without granting them an opportunity of being heard. While refusing to direct their immediate release, the Court permitted their continued stay at the transit home for a period of one month, within which the FRRO must issue fresh orders after affording a fair hearing to the petitioners.

The petitioners, citizens of Nepal, had been working in a resort at Kalpetta, Wayanad district since May 2024. On 21 September 2024, the Kalpetta Police registered Crime No. 777/2024, alleging the murder of a newborn child by the first petitioner, with the other two petitioners alleged to have assisted. Offences were registered under Sections 302, 316, 318, 201, 313, 511, and 34 of the Indian Penal Code.

Also Read: Supreme Court Slams Tamil Nadu Over ADGP Suspension | You Can’t Do This, This Is Very Demoralising | Shocked By High Court’s Arrest Order

Following their arrest, the petitioners were granted bail on 8 November 2024 by the Sessions Judge, Kalpetta. The bail conditions required that sureties be residents of Kerala, prohibited the petitioners from leaving the state without trial court permission, and directed them to surrender their passports.

Subsequently, the FRRO issued three separate orders dated 8 and 9 November 2024 against the petitioners under Section 3(2)(e)(ii) of the Foreigners Act, 1946 and Clause 11(2) of the Foreigners Order, 1948. These orders confined the petitioners to designated transit homes in Wayanad and Kollam districts.

The petitioners challenged the legality of these orders before the High Court, asserting that the movement restrictions amounted to incarceration and undermined their right to personal liberty despite the bail granted. It was contended that they were not given a hearing prior to the issuance of the orders, violating the principles of natural justice and Article 21 of the Constitution.

The petitioners argued that no breach of the Foreigners Act or Foreigners Order had occurred and that sufficient safeguards to ensure their presence for trial had already been incorporated in the bail conditions. They claimed the FRRO’s orders deprived them of the liberty granted by the bail order, effectively resulting in continued detention. The petitioners also relied on various Supreme Court and High Court precedents, arguing that procedural fairness demanded that they be given an opportunity to present their case before restrictions impacting their liberty could be imposed.

The respondents—the Union of India, the FRRO, and the State of Kerala—contested the petitioners’ claims. It was submitted that foreigners do not possess the same fundamental rights as citizens, particularly under Article 19(1)(d), which guarantees freedom of movement. Citing the Supreme Court’s judgment in Hans Muller of Nurenberg v. Superintendent, Presidency Jail, Calcutta and the recent precedent in Frank Vitus v. Narcotics Control Bureau, the respondents argued that the FRRO’s powers under the Foreigners Act are independent of the criminal court’s authority to grant bail.

They maintained that Section 3 of the Foreigners Act empowers the Central Government to regulate or restrict the presence of foreigners in India and that orders issued in exercise of such powers are not subject to judicial review on grounds of fairness. The FRRO’s satisfaction, it was argued, was sufficient justification under the statute and no personal hearing was required unless the statute expressly provided for it.

The Amicus Curiae appointed by the Court, Sri Jacob P. Alex, submitted that while the Foreigners Act conferred broad powers on the executive, it did not equate to unreviewable discretion. He distinguished between provisions allowing confinement in transit homes and those enabling arrest or detention. Drawing upon case law, the Amicus contended that restrictions under Section 3(2)(e)(ii) were not punitive but administrative in nature and that procedural safeguards such as a hearing could not be dispensed with unless expressly excluded.

The Amicus further noted that the Supreme Court had, in Hasan Ali Raihany v. Union of India, recognised a limited right to be informed of the reasons for deportation, stating that Article 21 applied to “persons” and not merely to citizens. He argued that even in the absence of statutory requirement, fairness demanded that affected persons be heard when their personal liberty was at stake.

The Court, examining the statutory and constitutional dimensions of the case, observed:

“Bondage – though in a golden cage – remains bondage.”

Justice Jayachandran recorded that while bail had been granted, “the power to impose movement restriction under Section 3 of the Foreigners Act is wholly independent of the power to grant bail.” Referring to Clause 5(2)(b) of the Foreigners Order, the Court stated: “A foreigner cannot leave India without the leave of the Civil Authority… if the foreigner’s presence is required in India to answer a criminal charge.”

The Court also noted:“There cannot be any dearth of power for the 2nd respondent F.R.R.O to issue Exts.P3 to P5 Orders. The challenge in this regard is liable to be repelled straight away.”

However, the key issue identified was the absence of hearing before the issuance of these restrictive orders. On this, the Court stated:“In cases where the interest of the State or public is not sacrificed or where the purpose of the special statute is not being defeated by affording an opportunity of being heard, it is only logical—besides being in consonance with the settled principles of law—to vote for an opportunity being granted.”

The Court added:“Such a right necessarily flows from Article 21 of the Constitution, since an Order under Section 3 restricting the movement of a foreign citizen— which in fact confines him to a transit home, a euphoric expression to a place of incarceration—definitely deprives him of his personal liberty.”

Addressing the potential conflict between administrative exigency and individual rights, the Court further remarked:“If the authority is of the opinion that issuance of notice will pave the way for foreigners like the petitioners to escape… a provisional order can be passed… and then afford an opportunity of being heard.”

The judgment also cited Hasan Ali Raihany v. Union of India, where the Supreme Court required disclosure of reasons for deportation and permitted a representation. Drawing from this, the Court concluded: “In cases of Orders like Exts.P3 to P5, affording an opportunity of being heard would not defeat the purpose of the Orders proposed to be passed. Nor would it jeopardise the State/National interest.”

The Court found that the orders issued by the Foreigners Regional Registration Officer, marked as Exts. P3 to P5, were unlawful on the ground that the petitioners had not been granted an opportunity to be heard.

It concluded that the absence of such a hearing constituted a violation of the principles of natural justice and rendered the orders invalid.

Also Read: Uttarakhand High Court Backs Employer’s Right To Set Qualifications | Dismisses Plea Against Inclusion Of Geology Degree For Mines Officer Role

Despite this finding, the Court declined to order the immediate release of the petitioners from the transit home, citing concerns that such a release could allow them to evade the Indian legal process.

Instead, the Court directed that the petitioners shall remain confined in the transit home for one more month. During this period, the FRRO was instructed to conduct a hearing and issue fresh orders under Section 3 of the Foreigners Act, 1946, read with the relevant provisions of the Foreigners Order, 1948, in accordance with law.

The Court specified that this process must be completed within one month from the date of receipt of the judgment, and until then, the petitioners would continue to be held in the transit home.

Advocates Representing the Parties

For the Petitioners: Sri. Pranoy K. Kottaram, Sri. Sivaraman P.L

For the Respondents: Sri. Suvin R. Menon, Central Government Counsel; Sri. P. Narayanan, Special Government Pleader to DGP and Additional Public Prosecutor
Amicus Curiae: Sri. Jacob P. Alex

Case Title: Manju Saud & Ors. v. Union of India & Ors.

Neutral Citation: 2025:KER:42092

Case Number: WP(Crl.) No. 1353 of 2024

Bench: Justice C. Jayachandran

[Read/Download order]