Ever since the anti-Citizenship Amendment Act protests erupted across the country, the Ministry of Home Affairs has been quite active in filtering out foreigners among the protesters and serving them with ‘Leave India’ notices.
The latest case is of Polish student Kamil Siedcynski in Kolkata’s Jadavpur University who has been asked to leave India by the MHA after he attended an anti-CAA rally in the city. Days before this, Afsara Anika Meem, a Bangladeshi student of Visva Bharati University, Santiniketan, was asked to depart from the country for indulging in “anti-government” activities, however not specifying what actions of her had fetched her the notice. She had allegedly shared some photographs of an anti-CAA protest on campus. In December last year, Jakob Lindenthal, a German student at IIT Madras, was sent back to his home country and Norwegian tourist Janne Mette Johannson was questioned by Foreigners Regional Registration Office (FRRO) in Kochi for similar reasons.
So, what all according to Indian law fall under “anti-government” activities? Is the definition same for an Indian national and a foreigner on Indian visa?
According to visa guidelines laid out by the MHA, foreign nationals shall be required to strictly adhere to the purpose of visit declared while submitting the visa application. However, a foreign national (other than a Pakistani national) coming to India on any type of visa will be allowed to avail activities permitted under tourist visa.
However, there are no provisions specified under “anti-government” activities subhead.
According to advocate Saptak Sanyal, who practices in Calcutta High Court, the absence of any such provision in visa laws or Foreigner’s Act makes it necessary for the government to define “anti-government” activities under a statute. “Visa laws are not in any derogation with any other law, so inferences can be drawn — which means a court can rule that whatever are defined as “anti-government” activities for Indian national is “anti-government” for foreign national too.” The actions, which are being equated with “anti-government” activities have to be specified, he adds.
According to the lawyers, “anti-government” activities are those which are listed as punishable under Section 124A (sedition) of the Indian Penal Code. Section 124A IPC states: “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which a fine may be added; or, with imprisonment which may extend to three years, to which a fine may be added; or, with fine.”
Right to protest peacefully is enshrined under Article 19(1)(a) of Indian Constitution which guarantees the freedom of speech and expression. Article (19)(b) guarantees the citizens of the country the right to assemble peacefully and without arms. Advocate Shamim Ahmed, counsel for Afsara, says since Article 14 of the Constitution ensures equality to any person before the law or the equal protection of the laws within the territory of India, foreigners also have the right to protest peacefully. He also cites Article 21 of Indian Constitution that states: “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” He adds: “And protesting falls under his personal liberty.”
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Delhi-based lawyer Silpa Das says the act done by the foreigner must not be anything in contravention to the existing laws of India. “Like, being a part of a peaceful protest isn’t illegal and thus, being a part of it isn’t anything wrong even if that is against the Indian government,” she adds.
Citing a 2019 case, where a Pakistani national was served a leave India notice without specifying the reason behind her facing the action, Sanyal says, “The Delhi High Court in that case had reversed the MHA order saying the government does not have unfettered powers to impose such an order without furnishing reasons. Despite fundamental rights being applicable only to the citizens of the country, with respect to Article 21, they can also be extended to foreigners, the court had ruled. So, the government needs to list out the acts which it considers as anti-government before asking any foreigner to leave.”
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He adds that the process of cancelling visa has to adhere to due process and natural justice. “Audi alteram partem (a Latin phrase for ‘letting the other side be heard as well’) is one of the basic components of natural justice. So a person, whose visa is going to be cancelled, has to be given opportunity to represent his/her case before the authority,” he says.