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2025 DIGILAW 197 (SC)

Union Of India v. Mohd Javed

2025-01-08

J.B.PARDIWALA, R.MAHADEVAN

body2025
ORDER : 1. None appears on behalf of the respondents when the matters were taken up for hearing. 2. Mr. Kanu Agrawal, the learned counsel has appeared on behalf of the petitioner - Union of India. 3. Having regard to the nature of the litigation and the consequences that may ensue if the petition filed by the Union of India is allowed ex-parte, it will be in the fitness of things if someone appears on behalf of the respondents and assist the Court. 4. We are informed that the name of Dr. Nafis A. Siddiqui has been shown as the learned Advocate-on-Record. We are further informed that Mr. Colin Gonsalves, the learned Senior counsel had appeared at one point of time for the respondents. 5. The High Court while disposing of the letters patent appeal and C.M. No.11617/2019 filed by the Union of India in paragraph 37 has summarized its final conclusion as under:- (a) Nausheen's LTV is valid until 08.06.2020. As of date, she has also applied for citizenship in India, which application is pending with the authorities; (b) No notice, order or communication has ever been issued to Nausheen by the Ministry or by any other authority calling upon her to show cause against any alleged breach or violation of any terms or conditions of her LTV; (c) Nausheen's LTV has never been cancelled; (d) The Ministry's decision, as also the decision of the single Judge, against Nausheen's continued residence in India are based upon intelligence 'inputs' which, in our view, do not disclose matters that are egregious enough nor do they disclose a proximate or causal link between what is stated in the 'inputs' and the issuance of the Notice; (e) While the single Judge proceeds on the essential basis of Nausheen being an alien who has no 'right' to continue to reside in India, that view omits to note that being the mother of two children who are Indian citizens and the wife of an Indian citizen, directing Nausheen to leave the country would break-up the family and would thereby be a serious infraction of the rights of at least three Indian citizens, namely the husband and the two sons aged 6 and 11 years, to live as a family. It bears mention that appellant/petitioner No.1 in these proceedings is Mohd. It bears mention that appellant/petitioner No.1 in these proceedings is Mohd. Javed, an Indian citizen; (f) In our view, the right to life under Article 21 of the Constitution of India would include the right of young children to live with their mother and the right of a husband to consortium with his wife; and State entities cannot be permitted to deprive Nausheen's sons and husband of these rights, merely by a stroke of the pen, in a manner that smacks of authoritarianism, without authority of law and without complying with basic tenets of natural justice and without affording her an opportunity of hearing to answer any matter alleged against her; (g) While grant of a visa in the first instance may be a matter of pure discretion with the authorities, curtailing the liberty of residing in the country during the validity of an LTV cannot be permitted except by a reasoned decision, as has been held by the Supreme Court in Hasan Ali Raihany (supra) and by a Division Bench 1 of this court in Mohammad Sediq (supra); (h) If, as contended by the Ministry in affidavit dated 10.04.2019, it derives the power to regulate the entry, stay and exit of a foreign national from India inter-alia from Section 3 of the Foreigners Act 1946, then a fortiori such power can never be untrammelled or unregulated since law abhors absolutism and arbitrariness; (i) What is under consideration here is not Nausheen's 'right' to stay in the country so much as the entitlement of the Ministry to act with manifest arbitrariness in directing Nausheen to leave the country 1n spite of a valid and subsisting visa that she holds." 6. The High Court ultimately thought fit to quash the Notice dated 7-2-2019 titled "Leave India Notice" issued by the Ministry. 7. The High Court also left it open to the Ministry and to the other concerned authorities to consider and decide the application dated 7/9-5-2019 preferred by Ms. Nausheen Naz (Respondent No.2) -herein seeking citizenship. 8. It appears from the materials on record that Nausheen as on today is residing in Delhi with her family consisting of her husband and two minor children. 9. It is not in dispute that her husband is an Indian citizen. As the husband of Respondent No.2 is an Indian citizen, she was granted long term visa to stay in India. 10. 9. It is not in dispute that her husband is an Indian citizen. As the husband of Respondent No.2 is an Indian citizen, she was granted long term visa to stay in India. 10. We take notice of the fact that the High Court has recorded that the long term visa of Nausheen was valid only 8-6-2020. we are informed that later this long-term visa came to be extended once and thereafter it has expired. We want to know what is the position as on today so far as long-term visa is concerned. At this stage, Mr. Agrawal submitted that the authorities have taken a decision that no long-term visa would now be granted to the Respondent No.2 having regard to some materials which has come on record. At the same time, it appears that the application filed by Ms. Nausheen for Indian citizenship also seems to have not been decided till this date. It is but obvious that if the authorities have decided not to grant long-term visa, then they would be definitely reluctant to grant citizenship. 11. Be that as it may, before we proceed to decide this matter one way of the other, we would like to hear the other side. 12. If no one appears on the next date of hearing, we may have to appoint an Amicus to assist this Court. We say so because the ultimate outcome of this petition will decide the fate of Nausheen and her family. 13. Post these matters on 29-1-2025. 14. The learned Advocate-on-Record for the respondents is requested to remain present on the next date of hearing to assist this Court.