Judiciary should not override executive’s decision to deport a foreign national: Home Ministry

The Union Home Ministry’s (MHA) appeal against a Jammu and Kashmir High Court order to repatriate a 62-year-old housewife who was deported to Pakistan post Pahalgam terror attack said the “judiciary should not override” the executive’s decision to deport a foreign national.

It said the High Court order was constitutionally impermissible and unsustainable, as it directed the enforcement of a judicial writ beyond the sovereign territory of India to Pakistan, where she was deported and was thus ultra vires.

The Ministry also said that the court’s direction was “legally unenforceable and diplomatically untenable.”

“There exists no extradition treaty, legal instrument, or international obligation binding Pakistan to return her to India. The Indian government cannot, under existing international law, compel a sovereign nation to surrender a non-citizen,” the MHA said.

The Home Ministry said “courts must preserve the institutional boundaries necessary for effective governance” and the order, if allowed to stand, would establish a dangerous precedent.

Staying for 38 years

The MHA filed a Letters Patent Appeal (LPA) before a Division Bench of the High Court against a June 6 order by judge Rahul Bharti who directed the Union Home Secretary to bring back the petitioner Rakshanda Rashid in 10 days. Married to an Indian, Ms. Rashid had been staying in Jammu for 38 years on a Long-Term Visa (LTV), which was extended annually even as her citizenship application is pending with the MHA since 1996. On April 29, at the time of deportation, the LTV did not exist, the MHA said. Ms. Rashid had said in her petition that she applied for LTV renewal in January and the application was never rejected. After the April 22 Pahalgam terror attack, where 26 people were killed, the MHA cancelled the visas of all Pakistani citizens and asked them to leave the country by April 29. The order exempted those with LTVs or Pakistani women married to Indian citizens.

The Ministry said that while passing the order, the single judge “failed to appreciate the circumstances and the national security considerations and the reasonable apprehension posed by the Pakistani nationals staying in India on account of war-like situation between India and Pakistan.” It added that the order is “contrary to the principles of judicial restraint in the matters concerning national security and international relations, particularly in dealing with the national of a hostile country.”

It said the order was “based on assumption that marriage to an Indian citizen entitles her to claim a right to reside in India or to have her deportation reopen.”

‘Subject to control’

“It is well settled law that a foreign national does not acquire Indian nationality or legal residency rights solely by virtue of marriage. A foreigner does not possess a fundamental right to reside in India and their entry and stay are subject to regulatory control of the state under Foreigners Act, 1946. Because it is a trite law that a foreign national do not enjoy rights guaranteed under Article 19. The only fundamental right available to a foreigner is under Article 21 of the Constitution of India which does not confer any right to remain in India once a visa expires or is revoked,” the MHA said.

The Ministry said the order would set a dangerous precedent and “may be cited by foreign nationals to invoke Article 226 for personal repatriation” and the outcome “threatens the integrity of constitutional separation and immigration enforcement alike.”

The judiciary, by ordering the repatriation of a foreign national from another sovereign country, had encroached on into the domain of the Union Executive, whose functions under Article 73 include decisions regarding foreign relations, immigration policy, and national security, the Home Ministry said.