IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 8-10-2010 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN W.P.No.9686 of 2010 S.Thiyanayaguy Ammal ... Petitioner Versus 1.Bureau of Immigration, (MHA) Government of India Chennai Airport, Chennai-600 027. 2.Union of India, Rep. by its Secretary, Ministry of External Affairs, New Delhi. 3.The Secretary of Home Affairs, Union of India, New Delhi. ... Respondents (R3 Impleaded Suo Moto as per order dt.2.8.10 in W.P.No.9686 of 2010) Writ Petition filed under Article 226 of Constitution of India praying for Writ of Mandamus directing the respondents to grant permission to the petitioner's son Mr.Alain Anandane to visit Pondicherry and Chennai for few days. For Petitioner :Mr.V.Deenadayalan for V.Heramban For Respondents :Mr.D.BR.Prabhu for RR1&2 Mr.J.Ravindran ASG for R3 ORDER The petitioner has approached this court seeking mandamus directing the respondents to grant permission to her son Mr.Alain Anandane to visit Pondicherry and Chennai for a few days. 2. This Court considering the age of the petitioner who is in the evening of her life, suggested the respondents' counsel to find out whether there was any possibility of allowing the petitioner's https://hcservices.ecourts.gov.in/hcservices/ son to land in Chennai and to allow the petitioner to meet her son in the Airport itself for a few hours so that the mother who gave birth the son could have the satisfaction of meeting her son. Counsel for respondents 1 and 2, submitted that Home Ministry is the competent authority to take a decision in this regard. Hence this court suomotu impleaded the Secretary, Home Affairs, Union of India as third respondent to the writ petition by order dated 2.8.2010. Para 3 of the order of this Court is extracted as follows: "3. Mr.Srinivasan for Mr.T.P.R.Prabhu, learned counsel appearing for respondents 1 and 2 on instruction represents that the ban has been imposed by the Home Ministry and the Bureau of Immigration to take decision with regard to that. Therefore, considering the age of the petitioner namely, 86 years, who wants to meet her son, this Court Suo motu impleads, the Secretary of Home Affairs, Union of India, New Delhi as 3rd respondent in the writ petition." On instruction, the learned Assistant Solicitor General reported before this court that the security of the nation is involved in this matter. Therefore this court decides the matter on merits. 3. The case of the petitioner is that her son Mr.Alain Anandane is in Parrys, France. Earlier up to 2008 her son visited India and stayed with the petitioner. She contends that she is aged about 85 years and suffering from various ailments and she wants to see her son. 4. She further averred that her another son Mr.Ravichandran filed W.P.No.10845/2009 before this Court forbearing the respondent from preventing the petitioner's son from landing in India, whenever he chooses to do so. The said writ petition was disposed of on 17.11.2009 directing the petitioner to give a representation to the 2nd respondent. Pursuant to that a representation was given by the petitioner's another son viz. Ravichandran and the same was negatived by the respondent through a letter dated 3.3.2010 stating that there is a permanent ban on petitioner's son's entry into India. The petitioner submits that for marriage of her grand son who is the son of Mr.Alain Anandane, was to be conducted at Pondicherry and his presence as father would be necessary. In this regard he sent a petition and telegram dated 23.4.2010 and 24.4.2010 to the respondents to grant him permission to visit India for a few days. Therefore the petitioner has before this court praying for the relief. 5. It is contended by way of counter affidavit that the Ministry of Home Affairs Government of New Delhi by a letter dated 3.3.2010, informed Mr.Ravichandran, another son of the petitioner that the request to review or lift the ban to entry into India by the petitioner's son could be acceded only after 10 years from the date https://hcservices.ecourts.gov.in/hcservices/ of the ban. It is also stated that the petitioner's son is a French national and he was not allowed to enter into India on 25.4.2010 as there was a look out circular issued by the Government of India banning the entry in India. 6. Mr.Deenadayalan, learned counsel for the petitioner submits that the order of this court in W.P.No.18045 of 2009 directed the respondents to consider the petitioner's application with reference to Section 3(e) of Foreigner's Act and pass orders. However the respondent without considering the order in proper perspective informed the petitioner's another son that petitioner's son name has been placed in the negative list and his entry has been banned. He filed documents and photographs to show that the petitioner's son, an important person who is connected with borders and cultural functions. Learned counsel contended that the order passed by the respondents is erroneous and moreover the petitioner is in verge of her life and she wants to see her son and therefore seeks the relief. 7. On the other hand, learned counsel for the respondent submitted as per the order passed by this court in W.P.No.18045 of 2009, the application submitted by the petitioner's another son was considered and the same was rejected stating that, the prayer for petitioner's son entry into India cannot be granted, as there is a ban. 8. Learned counsel for the petitioner strenuously argued that the respondents failed to consider the application seeking VISA to her son in proper perspective with reference to Section 3(e) of Foreigner's Act. The order of this court made in W.P.No.10845 of 2009 reads as follows: " Though this writ petition is filed for issue of a Writ of Mandamus restraining the respondent or their men, subordinates from preventing the petitioner's brother Mr.Alain Anandane holding passport No.07CR905314 residing at No.10, Avenue Camille Saint Saens 93700 Drancy, Paris form landing in whenever he chooses to do so, today, when the matter is taken up, learned Senior Counsel appearing for the petitioner has submitted that the petitioner will make an application seeking Visa and the respondents may be directed to consider the said application seeking visa in terms of Section 3 (e) of the Foreigners Act, 1946. 2. In view of the above submission made by the learned Senior Counsel for the petitioner, the petitioner is at liberty to make an application seeking visa and in the event of the petitioner making such an application, the 2nd respondent is directed to consider the same with reference to Section 3(e) of the https://hcservices.ecourts.gov.in/hcservices/ Foreigners' Act, 1996 and pass orders thereon, within a period of 4 weeks from the date of receipt of such representation. The writ petition is disposed of accordingly. No costs." 9. A perusal of the order would show that the learned senior counsel appeared for the petitioner therein stated that the application seeking VISA may be directed to be considered in terms of Section 3(e) of the Foreigner's Act 1946 and based on which this Court directed the respondents to consider the application with reference to Section 3(e) of the Foreigner's Act. At this juncture, it is useful to refer Section 3 of the Foreigner's Act, which is extracted as follows: " 3.Power to make orders – (1) The Central Government may, by order, make provision, either generally or with respect to all foreigners or with respect to any particular any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into (India) or their departure therefrom or their presence or continued presence therein. (2) In particular and without prejudice to the generality of the foregoing powers, orders made under this section may provide that the foreigner. (a) shall not enter India or shall enter India only at such times and by such route and at such port or place and subject to the observance of such conditions on arrival as may be prescribed; (b) shall not depart from India, or shall depart only at such times and by such route and from such port or place and subject to the observance of such conditions on departure as may be prescribed; (c) shall not remain in India or in any prescribed area therein; (cc) shall, if he has been required by order under this section not to remain in India, meet from any resources at his disposal the cost of his removal from India and of his maintenance therein pending such removal; (d) shall remove himself to, and remain in, such area in India as may be prescribed; https://hcservices.ecourts.gov.in/hcservices/ (e) shall comply with such conditions as may be prescribed or specified- (i)requiring him to reside in a particular place; (ii)imposing any restrictions on his movements; (iii)requiring him to furnish such proof of his identity and to report such particulars to such authority in such manner and at such time and place as may be prescribed or specified; (iv) requiring him to allow his photograph and finger impressions to be taken and to furnish specimens of the handwriting and signature to such authority and at such time and place as may be prescribed or specified; (v) requiring him to submit himself to such medical examination by such authority and at such time and place as may be prescribed or specified; (vi) prohibiting him from association with persons of a prescribed or specified description; (vii) Prohibiting him from engaging in activities of a prescribed or specified description; (viii) prohibiting him from using or possessing prescribed or specified articles; (ix) otherwise regulating him conduct in any such particular as may be prescribed or specified; (f) shall enter into a bond with or without sureties for the due observance of, or as an alternative to the enforcement of, any or all prescribed or specified restrictions or conditions; (g) shall be arrested and detained or confined and may make provision for any matter which is to be or may be prescribed and for such incidental and supplementary matters as may, in the opinion of the Central Government, be expedient or necessary for giving effect to this Act. (3) Any authority prescribed in this behalf may with respect to any particular foreigner make orders under clause(c) or clause (f) of sub-section (2)" https://hcservices.ecourts.gov.in/hcservices/ A perusal of Section (3) would reveal that the Central Government is vested with power with regard to Foreigners to regulate, restrict the entry of the foreigners into India or their departure or their continuous presence. Section 3(1) is primary Section. Whereas Section 3(2) is consequential power to impose certain conditions which are described in Sub Section 3(2) a to e. Therefore the exercise of power under Section 3(1) would preceed before exercising the power under Section 3(2). Section 3(2)(e) speaks about the conditions which may be prescribed on a foreign national by the authority. Only when the power has been positively exercised under Section 3(1) of the Act, the question of exercise of power under Section 3(2) would arise. If no permission is granted under Section 3(1) to a foreign national, Section 3(2) will not come into play at all. Therefore in the absence of an order under Section 3(1) the question of passing any order under Section 3(2)(e) does not arise. Section 3(2)(e) cannot be independently exercised or exercised in isolation. Any interpretation that the power can be exercised under Section 3(2)(e) without order under Section 3(1) would make section 3(1) redundant. Such interpretation only leads to absurdity. Therefore the power under Section 3(1) is primary and the powers under Section 3(2) is consequential. Hence the contention that the application was not considered with reference to Section 3(e) has to be rejected. 10. Assuming that if an order has been passed in contravention of the order passed by this court, no proceedings has been initiated by the petitioner therein in this regard nor the order has been challenged. Apart from that the petitioner cannot press into service the order obtained by another person and make it as a ground to get relief. 11. It is seen that the petitioner's son is a French national and he is a foreigner and his name has been placed in the negative list from 25.4.2008 onwards. In this regard, there is a look out circular issued by the Government of India banning his entry into India. Usually the government of India would not ban entering of any individual unless there is any compelling reason. Security of this nation is paramount, especially this great is facing a lot of problems both internationally as well as externally. When the government took conscious decision banning entry of a person, the decision of the Government should have been taken on concrete materials and circumstances. Though the wish of the aged mother is to be respected, in the given circumstances, when the Union of India states permitting the petitioner's son into India would endanger to our country, it cannot be taken very lightly. Therefore the prayer sought for cannot be granted. 12. A perusal of the letter dated 3.3.2010 addressed to Mr.S.Ravichandran who is the another son of the petitioner states that the petitioner's son was placed in negative list implying https://hcservices.ecourts.gov.in/hcservices/ permanent ban on his entry into India and there is a provision of review after 10 years to review such order i.e. in 2018. When the petitioner has got knowledge about the placing of her son in the negative list, she should have challenged the said order, if so advised. As long as the order is there, this court cannot direct the respondents to violate the said orders. 13. It has been held by this Court in R.T.Jebaraj vs. Union of India reported in AIR 2009, Madras 127, that when the national interest in the matter of security, peace and harmony is the primary concern of the government, while taking decision to ban the entry or to regulate the entry of a foreign national into this nation, one cannot expect the government to make the reasons public by passing a speaking order and the same would not be in the interest of the nation. Justice K.P.Sivasulbramanian as he was then in K.Sevanthinatha Pandarasannadhi vs. Government of Tamil Nadu reported in (2005) 5 CTC para 34 held that power of discretion of Central Government to decide as to whether foreigner should be permitted to continue to remain in Indian soil or not is a matter of political exigency and discretion of Central Government based on information which they have as regards to activities and conduct of Foreigners. The Hon'ble Supreme Court in Hans Miller vs. Superintendent, Presidency Jail Calcutta reported in AIR 1955 SC 367 held that regulating or banning entry of any foreigner into India is absolute and unfettered sovereign power of Central Government and the same is followed in Louis De Raedt vs. UOI reported in 1991 (3) SCC 554 Sarbananda Sonowal vs. UOI reported in 2005 (5) SCC 665, Hasan Ali Raihany vs. UOI reported in 2006 (3) SCC 705. 14. No doubt, it is seen from the photographs and other documents that petitioner's son is connected with many important national and international leaders and many cultural programmes. However para-5 of the counter affidavit states that the ban was made in view of safety and security of the country. Therefore, though this court sympathises with aged mother, the petitioner herein, the prayer sought for cannot be granted and the writ petition is dismissed. No costs. However there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ vk To 1.The Bureau of Immigration, (MHA) Government of India Chennai Airport, Chennai-600 027. 2.The Secretary, Union of India, Ministry of External Affairs, New Delhi. 3.The Secretary of Home Affairs, Union of India, New Delhi. 1 cc To Mr.J.Ravindran, Advocate, SR.74447 W.P.No.9686 of 2010 GV(CO) sra 20/10/2010 https://hcservices.ecourts.gov.in/hcservices/