Kerala High Court Says Foreigners Deserve a Fair Hearing Too — Even in Security-Related Orders

In a recent and important judgment, the Kerala High Court ruled that the principles of natural justice—such as the right to a fair hearing—should not be ignored when the Foreigners Regional Registration Office (FRRO) passes orders restricting the movement of foreign nationals in India.

The decision came in the case of Manju Saud & Others v. Union of India & Others, where the Court was looking into the rights of three Nepali citizens who had been confined in a transit home by the FRRO after being granted bail in a criminal case.

What Was the Case About?

The three Nepali nationals were accused of murdering a newborn baby. While they were out on bail from the trial court, the FRRO passed an order under Section 3(2)(e)(ii) of the Foreigners Act and Clause 11(2) of the Foreigners Order, 1948, which confined them to a transit home. These orders restricted their freedom of movement even though they were not convicted.

The petitioners challenged the FRRO's order in the Kerala High Court, arguing that they were not given a chance to be heard before such a serious restriction was imposed on them.

What Did the High Court Say?

Justice C Jayachandran, who delivered the ruling, agreed that national security and public interest are important. The Union government had argued that giving foreigners a chance to be heard before passing such orders might defeat the purpose of the Foreigners Act and could even pose a security risk.

However, the Court pointed out a key detail: If lawmakers wanted to completely exclude the right to be heard, they would have clearly said so in the law. Since they did not, the Court concluded that natural justice cannot be treated as “alien” or irrelevant to such cases.

“A hearing before the issuance of such an order – or at least immediately after – cannot be considered as a concept completely alien to Orders under Section 3 of the Foreigners Act.”

Balancing National Security and Fairness

The Court acknowledged that in some situations, giving a prior notice or hearing may not be possible—especially if it risks jeopardising national interest or could help the foreigner escape. In such cases, provisional orders can be issued first, followed by a hearing later.

But in this particular case, the Court found that there was no such urgent threat or risk. So, denying the foreigners a chance to be heard violated their rights.

The Court made it clear that:

• Natural justice must be followed if there's no danger to the State or public.

• If a notice for hearing might affect the purpose of the law or national security, then exceptions can be made.

• But these exceptions should not become the rule.

  
  

Article 21 Applies to Foreigners Too:

The Court said that certain minimal rights must be recognized even for foreigners. It cited Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty to all persons, not just Indian citizens.

“If national interest is not at stake, a foreigner should be given an opportunity of being heard. This is a basic right under Article 21.”

Who Argued the Case?

• Advocate Jacob P Alex served as amicus curiae (a neutral legal expert appointed to assist the Court).

• Advocate Pranoy K Kottaram represented the petitioners (Nepali nationals).

• Advocate Suvin R Menon appeared for the Union of India.

• Advocate P Narayanan appeared for the State of Kerala.

  
  

Final Decision

The Kerala High Court held that the FRRO’s order was illegal because it was passed without hearing the petitioners. The Court cancelled the order and directed the FRRO to issue a fresh one, only after hearing the three individuals.

Why This Judgment Matters

This decision is important because it reinforces that foreigners are also protected under Indian law, especially when it comes to fair procedure and personal liberty. It also reminds authorities that national security should not be used as a blanket reason to deny basic rights without proper justification.

The Kerala High Court has struck a careful balance: while recognising the government’s right to act swiftly in the interest of security, it also insists that basic fairness cannot be ignored—especially when the situation does not demand extreme measures.