Can a foreign citizen file writ petition in india ?
Chitresh Sharma
(Querist) 10 April 2015
This query is : Resolved
I am working on a matter where an Indian citizen acquired citizenship of Canada.
Now when he came back to meet his relatives, he has been refused to enter India due to some misconception of him being involved in some anti social activities by the Ministry of External Affairs. A writ petition was filled on the issue and On reply from ministry they have just stated that he is involved in adverse activities and secondly writ petition is not maintainable by a foreign national. Petitioner is not involved in any criminal activity in India or in Canada as per the records form Canadian and Punjab Government.
Kindly help me out with the issues.
A. Maintainability of a Writ Petition regarding a foreign national. ( Please support your point with any Supreme Court Judgment ) as it would be really helpful for me.
B. They have mentioned him being involved in adverse activities but have not mentioned exactly what they really mean by that. So how should I go ahead with that, should I file a R.T.I asking the same?
Isaac Gabriel
(Expert) 10 April 2015
Try your luck with RTI.What was the reply furnished by the M/o External Affairs to the Writ petition?
Chitresh Sharma
(Querist) 11 April 2015
The reply that has been supplied to us says exactly the samething that I have mentioned in point B. It's a one page reply in which they have just questioned our credibility relating to filling the same.
Case is listed for August and that's why I need help of experts to tackle this situation.
Sudhir Kumar, Advocate
(Expert) 11 April 2015
Fundamental rights can be divided in tow. One set of rights is available only to Indian NAtionals. Another set is available to the foreigners as well (i.e. Article 21).
Please see as to how the facts of your case fit into the same.
I am right now not able to trace but there are Supreme Court and Gauhati High Court judgements where foreigners have succeeded in writs. ALthough your case doe snot appear to be of asylum but the petitioner therein I believe were non-indians.
Dr J C Vashista
(Expert) 11 April 2015
1. Are you a NRI or foreigner? Even in both the situations Writ is maintainable.
2. What has been mentioned by MEA authorities, is to be perused, evaluated and analysed. Therefore you will have to seek the services of a local lawyer with relevant facts, documents and circumstances as the information is inadequate to arrive at some opinion.
Rajendra K Goyal
(Expert) 11 April 2015
The country may refuse entry if the record of visitor was suspicious. The decision may be administrative in the interest of the country.
Chitresh Sharma
(Querist) 11 April 2015
I agree to Mr Sudhir Kumar Sir, foreigners are covered under Article 14,21 and rest are not available to them.
But the main issue is I required judgments to bring out my point.
Dr. J C Vashista sir, the person has now taken Canadian Citizenship and had been living in Canada since 1993. During this period he rarely visited. His parents used to visit him but now his faster is not in a position to travel and this might be his last opportunity to see him.
R.K Goyal sir, the thing is he is from Punjab and he left during that distressed period here. Now when asked to file reply by the court Punjab government has given a clean chit that no criminal case is registered or pending against him and we do not have any issues with him, but ministry of external affairs has stated that he's involved in adverse activities so that issue pertains to ministry and we cannot reply on their behalf.
The problem remains same as the ministry has raised an objection on our right to file a writ.
alexander
(Expert) 11 April 2015
1. You are presently a Canadian Citizen
2 You now come in the category of PIO ( Person Of Indian Origin) Or OCI 0verseas citizen of India - both are the same
2. PIO, OCI stand on equal footing with an NRI.
3. PIO /OCI have all the rights as enjoyed by any Indian Citizen or an NRI EXCEPT THE FOLLOWING:
(a) A PIO /OCI has no political rights : in that
(i} He cannot vote
(ii) He cannot stand for any election for a public office in India e,g MP,MLA Councillor in Municipal Corporation etc
(iii) normally he cannot hold any job under the Government.
(b) He can buy or sell any immovable property except that he cannot buy any agricultural land / plantation land
3. You are fully entitled to file a writ petition like any other citizen of India
4. You can send any Writ petition to the High Court / Supreme Court. Art 226 for High Court and Article 32 for Supreme Court. Your advocate shall advise you where to file. Normally it should be the High Court. You may chose between the High court of Punjab and Haryana - CHANDIGARH or the Supreme Court (DELHI)
5. Suggest you file a writ of MANDAMUS requesting the High/Supreme Court that the MEA may be directed to permit you entry into India. To strengthen your case you could state the fact that you have not visited India for the last 18 years as your Parents used to visit you. Now that they are sick and not in a position to travel you , as a responsible son, want to visit them in compliance of your filial and moral duty. ANy delay on part of the MEA shall cause me irretrievable and immeasurable pain and anguish for the rest of my life. etc etc
6. Punjab Govt have certified that there is no criminal / involvement in adverse activities case against me.
7. The MEA must clarify on what basis they have branded me as a person involved in " ADVERSE ACTIVITIES against the country of my birth. I shall be available to them in person in India, and am prepared to face any legal Court action the MEA may like to bring against me and settle this mute and totally false "adverse activity" accusation against me
For the rest please consult your advocate
ALEXANDER
nom de plume
Chitresh Sharma
(Querist) 11 April 2015
Thanks Alexander, that was quite helpful.
I now at least know where and what to look for and the direction I was heading wasn't wrong.
alexander
(Expert) 12 April 2015
With your PIO CARD accompanied by your Canadian Passport you don't require any VISA to enter India.
Alexanderr
nom de plume
Chitresh Sharma
(Querist) 13 April 2015
I don't have a PIO card as I never applied for it.
