Jonathan Baud v. State of Kerala, Criminal Misc. No. 4720/2014
Read the judgement here.
Date of Decision: 02.12.2014
Court: High Court of Kerala
Judges: Justice P. Ubaid
Summary: The Kerala High Court quashed prosecution against the Petitioner, a foreigner on a tourist visa, as he was wrongfully being prosecuted on the allegation that he attended a meeting in violation of the conditions of his visa. The Court reasoned that merely attending a meeting is not adequate to constitute an offence under Section 14(b) of the Foreigners Act 1946 or the Registration of Foreigners Act, 1939.
Facts: Jonathan Baud is a Swiss citizen who visited Kerala on a tourist visa. During his time on visa, he attended a condolence meeting, organised by a political faction said to be a radical group, out of curiosity. Therein, he voluntarily made a speech introducing himself and praising the sanctity of the Indian democracy. However, according to the High Court, the “police thought he is a radical” and arrested him under Section 14(b) of the Foreigners Act.
Section 14 of the Foreigners Act penalises contravention of the provisions of the Act, and Section 14(b) of the Foreigners Act penalises the violations of the conditions of one’s visa issued for the stay and entry in India. In this case, however, the only conditions in the issued visa were that it was “non-extendable and non-convertible, not valid for prohibited and restricted cantonment areas.” The prosecution argued that alternatively, Section 5 of the Registration of Foreigners Act 1939 will be applicable. This provision punishes the violation of any rules issued by the government under Section 3 of the Registration of Foreigners Act.
Holding: The Kerala High Court held the prosecution’s case against the Petitioner to be “legally unsustainable” and quashed the prosecution under Section 482 of the Code of Criminal Procedure. The Court determined that the Petitioner’s visa did not restrict him from attending meetings under any relevant law. It found that the prosecution did not have any clear or definite case as to what condition of the visa was in fact violated by the petitioner under Section 14(b). It observed that in the absence of any condition imposed by the visa to the contrary, apprehending the petitioner merely for attending a meeting organised by a political group by understanding it as a violation of conditions would be contrary to the spirit and object of the law (paragraph 8).
The prosecution strived to alternatively bring a case against the Petitioner under Section 5 of the Registration of Foreigners Act 1939. However, the court found that neither the Registration of Foreigners Act nor the Rules prohibited the attending of any meeting.
The prosecution further argued that the Petitioner is not a ‘tourist’ under Rule 2(j) of the Registration of Foreigners Rules and therefore not a ‘tourist on a valid visa.’ As per this definition, they argued that a tourist is only allowed to attend meetings convened by the Indian Government or any International Body, in a representative capacity. In this regard, the Court clarified that the definition under Rule 2(j) is not a penal provision but merely a definition purporting to guide the relevant authority.
Further, it observed that arresting the foreigner merely on “cynic suspicion” without any basis or material regarding the Petitioner being a radical was violative of the rights available equally to non-citizens under Articles 14, 20, and 21 of the Constitution. It reiterated that foreign nationals should be treated equally before the law and not be discriminated against, as provided for under Article 14; and that their right to live should be protected, as laid down under Article 21. Furthermore, they should not be convicted unless in violation of any law in force in India, as given under Article 20.
The court in its decision held, “Tourists visiting Kerala can see different meetings here, organized by different political or other groups. They cannot identify whether a particular meeting is organised by any political group, or communal group or radical group. They, out of curiosity, may just step in and view such meetings. If that is understood as a violation of Visa conditions, every tourist visiting Kerala will have to be prosecuted. This is not the object of the law, and this is not the spirit of the law also. The Visa issued to the petitioner does not contain any condition that he shall not attend any meeting anywhere in India. Practically the prosecution would concede that the police does not have a definite case as to what condition of Visa was in fact violated by the petitioner. (paragraph 8)”
The Court, therefore, found the prosecution’s case to be “legally unsustainable” as the transcript, the only material before the court, suggested that the Petitioner had done no act in violation of the conditions under the visa.
Significance: This judgement is significant as the Kerala High Court protected the rights of a foreigner in accordance with Indian law. It reiterated certain fundamental rights provided to foreigners under the Indian Constitution and demonstrated that a foreigner should not be convicted of an offence without adequate legal substantiation.
The Indian Constitution provides for certain rights that apply to non-citizens within the Indian territory. Foreigners are equal before the law and have a right to not be convicted unless in violation of applicable Indian law. Reference to this judgement was made in the case of Kamil Siedczynski v. Union of India, in relation to the application of Article 21 of the Indian Constitution to foreigners in India. The Calcutta High Court held that “the rights to life and personal liberty, and associated rights, do not emanate from the Constitution itself but are basic human rights universally accepted by civilized society, and merely recognized in the Constitution of India.”
The above position has been reiterated by the SC in both the Videocon Case as well as Hans Muller of Nurenburg v. Superintendent. This is the position in law as the right to life and liberty are inalienable rights, bestowed on all persons by mere virtue of being human beings.
More specifically, this judgement, read with Kamil Siedczynski v. Union of India, is also significant for the rights of foreigners who may have inadvertently found themselves involved in political meetings; and it places restrictions on the kind of action that the State can take against them.
References:
J. Venkatesan, ‘Right to life, liberty available even to foreign nationals, says Supreme Court’ (The Hindu, 20 June 2013)
Neha Mishra, ‘Are foreign nationals entitled to the same Constitutional Rights as the citizens of India?’ (2014) Volume 1, Issue 6, International Journal of Law and Legal Jurisprudence Studies
This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and the latest developments in citizenship law and adjudication in India. This note was prepared by Anushya Ramakrishna.