15 Dec 2010

No right for employment visa in India: High Court

We had earlier reported a decision of the Bombay High Court holding that foreign had no right to get visa of India. In similar vein, the High Court has recently reiterated that there is no right of a foreign to obtain employment visa of India. The High Court declared the fundamental rights other than right to life and liberty were not amenable to foreigners in India. Further, holding that grant or denial of visa was a policy decision and therefore within the sole realm of the executive, the High Court dismissed a writ petition filed by the foreigner alleging that denial of visa by the Indian Government was contrary to law.

The High Court inter alia observed as under;
6. It is required to be noted that the petitioner is not a citizen of India and she had applied for employment visa by applying to the Indian Embassy at Kyiv Ukraine. Her application was rejected by the Indian Embassy on 28th July,2010. It is no doubt true that a decision for rejecting her Visa is taken by the Indian Embassy on the basis of the policy framed by the External Ministry and since the place of employment where the petitioner seek employment is in Bombay, this Court can be said to have territorial jurisdiction to decide the issue in question. However, the real question which requires consideration is as to whether such type of petition is maintainable at the instance of a foreign national and whether the issue in question can be said to be justiciable issue. 
7. It is pertinent to note that so far as foreign nationals are concerned, all the fundamental rights enshrined in the Constitution of India are not available to them, except Articles 21 and 14 of the Constitution of India. In our view, it is not a fundamental right of a foreign national to get employment Visa in India. If the Visa is rejected on the basis of policy framed by the Government of India, this Court cannot sit in appeal over such decision in order to find out as to whether Visa application should have been granted or not. In our view, asking for Visa by a foreign national cannot be said to be a justiciable issue and this Court cannot issue any writ under Article 226 of the Constitution of India in connection with the availability of fundamental rights where a foreign citizen is concerned.
8. The Supreme Court in the case of Chairman, Railway Board and others Vs. Mrs. Chandrima Das and others, AIR 2000 Supreme Court 988 has considered the said aspect. In the aforesaid case, a Bangladeshi woman was subjected to rape by an accused in India. A writ petition was filed by a Practicing Advocate under Article 226 of the Constitution of India, for paying compensation to the victim. The Supreme Court has considered the applicability of Articles 21 and 14 of the Constitution of India in such a cases. It is observed that : 
29.The Fundamental Rights are available to all the “Citizens” of the country but a few of them are also available to “persons”.While Art.14, which guarantees equality before law or the equal protection of laws within the territory of India, is applicable to “person” which would also include the “citizen” of the country and “noncitizen” both. Art.15 speaks only of “citizen” and it is specifically provided therein that there shall be no discrimination against any “citizen” on the ground only of religion, race,caste,sex,place of birth or any of them nor shall any citizen be subjected to any disability ,liability,restriction or condition with regard to access to shops, public restaurants,hostel and places of public entertainment, or the use of wells,tanks, bathing ghats, roads and place of public resort on the aforesaid grounds. Fundamental Rights guaranteed under Art.15 is,therefore, restricted to “citizen”. So also, Art.16 which guarantees equality of opportunity in matters of public employment is applicable only to “citizens” . The Fundamental Rights contained in Art. 19 ,which contains the right to “Basic Freedoms”, namely, freedom of speech and expression; freedom to assemble peaceably and without arms; freedom to form associations or unions; freedom to move freely throughout the territory of India; freedom to reside and settle in any part of the territory of India and freedom to practice any profession, or to carry on an occupation,trade or business, are available only to “citizens” of the country.
“30. The word “citizen”in Art.19 has not been used in a sense different from that in which it has been used in Part II of the Constitution dealing with “citizenship”(See State trading Corporation of India Ltd.V. Commercial Tax Officer, AIR 1963 SC 1811 :1964(4) SC R 99). It has also been held in this case that the words “all citizens” have been deliberately used to keep out all “noncitizens” which would include “aliens”. It was laid down in Hans Muller of Nurenburg V.Superintendent ,Presidency Jail Calcutta,AIR 1955 SC 367 (374): 1955 (1)SCR 1284 that this Article applies only to “citizens”. In another decision in Anwar V.State of J.& K.AIR 1971 SC 337 : 1971(1)SCR 637 :(1971) 3 SCC 104 ,it was held that noncitizen could not claim Fundamental Rights under Art.19. In Naziranbai V.State,AIR 1957 Madh Bha 1 and Lakshim Prasad V.Shiv Pal,AIR 1974 All 313, it was held that Art.19 does not apply to a “foreigner”.TheCalcutta High Court in Sk.Mohamed Soleman V.State of West Bengal,AIR 1965 Cal.313,held that Art.19 does not apply to a Commonwealth citizen. 
“32. Article 20 guarantees right to protection in respect of conviction for offences. Article 21 guarantees right to life and personal liberty while Art.22 guarantees right to protection against arbitrary arrest and detention. These are wholly in consonance with Art.3 Art.7 and Art.9 of the Universal Declaration of Human Rights,1948.
9. So far as right to get visa is concerned, in our view, it is not a fundamental right of a foreign national and, therefore, the petition under Article 226 of the Constitution of India, violating such right is not maintainable. So far as Article 14 and Article 16 are concerned, Article 16 relates to equality in the matter of public employment and noncitizen cannot invoke Article 16 in any manner as the said Article is only applicable to the citizens of the country. It cannot be said that there is violation of Article 21 of the Constitution in the present case, nor any such argument is canvassed before this Court. Considering the said aspect, in our view, this petition cannot be entertained which challenges the decision of Indian Embassy rejecting employment visa to the petitioner. It is not for this Court to find out whether such restriction in the matter of granting Visa to a Foreigner is proper or not
10. So far as the argument of the learned counsel for the petitioner that at the relevant time when the application was rejected the income criterion was given a goby is concerned, it is not in dispute that at the time when the petitioner applied for Visa, the said income criterion was applicable. It is also not in dispute that the petitioner has not fulfilled minimum income criterion prescribed for getting the employment Visa. Even assuming that for the time being, the said policy was given a goby, it is not in dispute that at the time when the petitioner applied for employment Visa, the said income criterion was in existence. There is nothing on record to show that when the application was rejected income criterion was totally taken away. But even otherwise the application is rejected on the ground that as per the policy framed by the government, the employment Visa cannot be granted for the jobs for which qualified Indians are available. In the instant case, it is pointed out that for the post in question, so many Indians are available. It is also pointed out that employment Visa cannot be granted for routine , ordinary or secretarial/clerical jobs. 
11. Learned counsel for the Union of India submits that the petitioner has applied for the post of Analyst which is not in dispute and there are so many Indian employees available for the said job. It cannot be said that for such a post qualified Indians are not available. In our view what should be the guidelines for giving visa is a matter which is solely in the discretion of the Government of India in its department of External Affairs. This Court cannot decide the issue as to what policy should be framed for granting employment visa or other visa. This Court cannot lay down any criterion in this behalf in any manner. Similarly this Court is not expected to decide as to whether the visa application should be allowed or not. Rejection of visa by the Consulate is not an issue which is justiciable one. If the Government of India in its wisdom has taken a decision by prescribing certain criterion this Court cannot take a judicial review in such a matter. It is always open to the State to restrict the entries of foreign nationals by imposing restrictions by framing certain policy and the said policy decision should not be interfered. As pointed out earlier only few fundamental rights like Article 21 of the Constitution are available to the foreign nationals and Article 16 cannot be said to be applicable to the foreign nationals for getting public employment in this country. In our view, in the instant case, no relief can be granted to the petitioner in view of what is stated hereinabove. It cannot be said that there is a violation of Article 21 in the present case. The petitioner has no right to approach this Court and it cannot be said that income criterion prescribed by the Government of India is arbitrary in any manner, which issue cannot be decided at the instance of the petitioner, who is not an Indian citizen. We accordingly do not find any substance in the petition. Hence the petition is dismissed. Rule discharged. No order as to costs. 

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