Calcutta High Court sets aside a ‘Leave-India-Notice’ issued by the central government

March 31,2020

by Rajas Salpekar

The Calcutta high, in the case of Kamil Siedczynski v Union of India, stayed a ‘Leave-India-Notice’ issued by the Foreigner’s Regional Registration Office(FRRO), Kolkata to a Polish student, Kamil Siedczynski, studying at Jadvapur University, Kolkata.

The avowed reason for serving the notice under Section 3(2)(c) of the Foreigners Act, 1946 was the petitioner’s partaking in a protest rally against the Citizenship Amendment Act, 2019. Kamil contested the LIN on several grounds, the first being that he was not heard by the FRRO before issuing the notice, second that the LIN was not substantiated by any staunch reasoning and the third being that the notice was clearly in violation of Article 21 of the Indian Constitution.

The counsel, Firoz Eduljee, appearing from the government’s side submitted that the state was under no obligation to conduct a hearing prior to the issuance, he also put forth the argument that a foreigner was not given the freedom of speech under Article 19 and it was only conferred upon the citizens of India and thus appealed to the single-judge-bench, consisting of Justice Sabyasachi Bhattacharyya, to quash the petitioner’s request of a restraining order against the impugned ‘Leave-India-Notice’.

After the hearing, Bhattacharya J., found for the Polish expatriate on all the fronts. He held that a) the serving of notice without a hearing conducted was outright unfair and was thus invalid, b) even though Article 19 was not applicable to a foreigner, Article 21 did protect his life and liberty. The justice also set aside the contentions of the counsels for respondent advocating for no necessity of a hearing for issuance of  the aforesaid notice and held that the growth in Article 14 and Article 21’s jurisprudence now requires a more liberal outlook and thus termed the move of the central government as a ‘paranoid overreaction’.

Justice Bhattacharya bashed the issue of Article 19’s non -applicability by holding that the ‘life’ and ‘personal liberty’ of the petitioner cannot be limited to a bare existence worth the name but also contemplates his “right to actively pursue his interests and fields of specialization, which are necessary for the petitioner to lead a healthy life”. Hon’ble Justice Bhattacharya also opined that the rights to pursue his intellectual interests and to seep in the ethnicity and lifestyle of different communities in India also went hand in hand with his right to life guaranteed under Article 21 of the constitution.

Therefore, the Calcutta High Court, through Bhattachary J., ruled for the Polish student and set aside the ‘Leave-India-Notice’ by granting a restraining order against.

                          

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