Johnny Paul Pierce v. Union of India and Others (WA No.1177 of 2020)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 09TH DAY OF SEPTEMBER 2020 / 18TH BHADRA, 1942** ## **WA.No.1177 OF 2020** ## **AGAINST THE JUDGMENT IN WP(C) 13263/2020(G) OF HIGH COURT OF KERALA** ## **APPELLANT:** **JOHNNY PAUL PIERCE, AGED 74 YEARS,(U.S.CITIZEN), S/O. PAUL PATRICK PIERCE,RESIDENT AT 1061 OLD MILL CIRCLE, ROSEVILLE, CA 95747, UNITED STATES OF AMERICA, PRESENTLY STAYING AT 4/415K, VILLA NO.3, SHEEJI DWARAKA, KANDANADU P.O., ERNAKULAM DIST., PIN - 682 305.** **BY ADVS.SRI.SAJU S NAIR, SRI.A.V.SAJAN, SMT.NEELANJANA NAIR** ## **RESPONDENTS:** **1. THE UNION OF INDIA,REP. BY ITS SECRETARY TO THE GOVERNMENT, MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, NORTH BLOCK, NEW DELHI, PIN - 110 001.** **2.THE COMMISSIONER OF IMMIGRATION,BUREAU OF IMMIGRATION, MINISTRY OF HOME AFFAIRS, EAST BLOCK-VIII, LEVEL -V, SECTOR -1, R. K. PURAM, NEW DELHI, PIN - 110 066.** **3.FOREIGNERS REGISTRATION OFFICER, OFFICE OF THE FOREIGNERS REGIONAL REGISTRATION OFFICE, (FRRO), 2ND FLOOR, AIRLINES BUILDING, CIAL NEDUMBASSERY, COCHIN AIR PORT P. O., ERNAKULAM, PIN - 683 111.** ## **SRI. SUVIN R MENON, REPRESENTING ASG FOR RESPONDENTS** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1177 OF 2020 2 ## **JUDGMENT** ## **SHAJI P.CHALY,J** Captioned writ appeal is filed by the writ petitioner in W.P.(C) No.13263/2020, a citizen of United States Of America challenging the judgment of a learned Single Judge dated 29.7.2020, whereby the following reliefs sought for in the writ petition were declined, however, directed the 2[nd] respondent i.e., the Commissioner of Immigration, Ministry of Home Affairs, New Delhi to consider Ext.P3 representation submitted by the appellant for extension of visa,strictly in accordance with the guidelines/regulations/policies of the Government of India and dispose of the same as expeditiously as possible and at any rate within a period of two weeks from the date of receipt of a copy of the judgment: a) For the reasons stated in the writ petition and in the accompanying affidavit it is humbly prayed that this Hon'ble Court may be pleased to direct the 1[st] and 2[nd] respondents to consider Ext.P3 representation of the petitioner as early as possible and permit the petitioner to stay in India 180 days more and to extend the tourist visa and also to permit the petitioner to apply conversion of his tourist visa into business visa without leaving the country, pending disposal of the writ petition. WA.No.1177 OF 2020 3 b) Pass such other order or writ or further directions in favour of the petitioner which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. 2. Material facts for the disposal of the appeal are as follows;Appellant is an American national, who came to India on a tourist visa on 26.2.2020. The visa is valid till 26.1.2025. However, fact remains, as per the policy guidelines of the Government of India, the continuous stay of nationals of U.S.A, Canada and Japan, during each visit shall not exceed 180 days. In terms of the said policy guidelines, tourist visa of the appellant was due to expire on 24.8.2020. However the country in the meantime went into lock down due to the pandemic COVID-19 and the appellant became stranded in India. According to the appellant, the appellant is remaining idle and helpless and his desire to explore the country has been affected. 3. The sum and substance of the contention advanced by the appellant in the writ petition was that had there been no lock down consequent to the pandemic COVID -19, the appellant would have returned to U.S.A. and altered his visa to that of a business class visa in order to remain in India for a longer period. It is also pointed out that, since the visa of the appellant is valid upto WA.No.1177 OF 2020 4 26.1.2025, there is no manner of illegality in permitting the appellant to continue in India exceeding the period of 180 days in accordance with the policy guidelines. 4. It is also submitted that during this pandemic period, if the appellant is deported back to his home country, risk exposure is high, and further that appellant is envisaging a prospective business at Kochi and he would like to continue for a further period of six months and until a balancing atmosphere is achieved. Therefore, it was contended that if the appellant is not granted permission to stay back after granting the existing Visa altered as a business Visa from tourist Visa, it would cause irreparable loss and injury to the appellant. 5. The reliefs sought for by the appellant were stoutly opposed by the counsel appearing for the Government of India stating that in the visa issued to the appellant, it was made clear that the stay of the appellant would be confined to 180 days in accordance with the policy guidelines of the Government of India and therefore, there is no legal basis for advancing the contention as discussed above. 6. Learned Single Judge after considering the rival contentions and the various judgements of the Apex Court has arrived at the WA.No.1177 OF 2020 5 conclusion that no reasons are made out for interfering with the policy guidelines of the Government of India and that there is no infraction of Article 21 of the Constitution of India as contended by the appellant since the movement of the appellant during the period of stay was not interfered with by the Government but for the situations prevailing in the country due to the pandemic COVID19 and the restrictions imposed thereunder. It is thus challenging the correctness of the judgment of the learned Single Judge, the writ appeal is filed. 7. The paramount contention advanced by the appellant is that the right conferred under Article 21 applies to natural persons and it is available to every person, citizen or alien. Therefore, even a foreigner can claim the fundamental right under Article 21 of the Constitution of India. So also it is contended that although it does not entitle a foreigner to enjoy the right to reside and settle in India as provided under Article 19 (1)(E), if the life and liberty of such foreign national is deprived, except in accordance with the provisions of the Foreigners Act ,a writ court is vested with ample powers to issue appropriate directions to ventilate the grievances of such a foreigner. Various other contentions are also raised relating to the right of the appellant to continue in India in view of the fact WA.No.1177 OF 2020 6 that appellant has a valid visa uptill the year 2025. 8. We have heard counsel for the appellant Sri.Saju S.Nair, Sri.Suvin R.Menon appeared for the Government of India and perused the pleadings and materials on record. 9. The sole question to be considered is whether any manner of interference is warranted to the judgment of the learned Single Judge ? It is an admitted fact that the visa issued to the appellant was a tourist visa, which has a validity of only 180 days in accordance with the policy guidelines issued by the Government of India. Such an aspect was known to the appellant before he started his travel from the U.S.A and he was also conscious and aware of the fact that on each occasion he travels to India, he cannot stay more than 180 days. There is no provision for extending the tourist visa exceeding that period. There is also no provision to convert the tourist visa into a business visa without leaving the country. Merely because the visa issued to the appellant is valid until 26.1.2025, that is not an enabling circumstance for the appellant to advance the contention that the Government of India consequent to the pandemic situation is liable to change the policy guidelines concerning tourist visa enabling a tourist to remain in India exceeding 180 days by changing it to a business visa. WA.No.1177 OF 2020 7 10. It is also an admitted fact that none of the authorities have detained the appellant during the period of 180 days. If at all the movement of the appellant was restricted, it is only due to the lock down restrictions consequent to the pandemic COVID-19. The learned Single Judge after taking into account the entire aspects of the matter, the proposition of law laid down by the Apex Court in **Louis De Raedt v. Union of India and Others** [(1999)3 SCC 554], **State of Arunachal Pradesh v. Khudiram Chakma** [(1994) Supp.(1)SCC 615] and **Hans Mulller of Nurenburg v. Superintendent, Presidency Jail, Calcutta** [AIR 1955 SC 367], and other intrinsic issues, has arrived at the correct conclusion that the appellant is not entitled to raise any claim based on Article 21 of the Constitution of India. We are also of the opinion that there was no arbitrary or illegal action on the part of the statutory authority to redress the grievances raised by the appellant since the authority was not vested with any powers to tinker with the policy guidelines of the Government in respect to the visa conditions. 11. However, the representation submitted by the appellant was directed to be considered, by the appropriate statutory authority. Accordingly, it was considered, and has granted permission to the WA.No.1177 OF 2020 8 appellant to remain in India upto 30.9.2020.In the facts and circumstances, we do not find any reason to interfere with the judgment of the learned Single Judge since the appellant has not made out any ground justifying interference in an intra court appeal filed under section 5 of the Kerala High Court Act. However, learned counsel for the Government of India fairly submitted that, since no international flights are operated ,if any any application is submitted by the appellant seeking extension of visa, it would be considered in accordance with law. 12. Even though we do not find any reason to interfere with the judgment of the learned Single Judge, having regard to the pandemic situation and the lock down restrictions prevailing in the country, and the submission fairly made by the learned counsel for Government of India that if any application is made by the appellant for extension of stay in India on account of difficulty for undertaking travel, it would be considered by the appropriate statutory authority in accordance with the statutory provisions, regulations and orders issued by the Government of India from time to time. Needless to say, if any application is preferred sufficiently earlier to 30.9.2020, it would be considered at the earliest possible taking into account the aspect that the visa of the WA.No.1177 OF 2020 9 appellant is due to expire on 30.9.2020 and in accordance with law. Writ appeal is disposed of accordingly. Sd/S.MANIKUMAR CHIEF JUSTICE smv Sd/SHAJI P.CHALY JUDGE WA.No.1177 OF 2020 10 ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE A1: TRUE COPY OF THE MEMORANDUM OF WRIT PETITION (CIVIL) NO.13263 OF 2020 FILED BY THE APPELLANT BEFORE THIS HON'BLE COURT DATED 29.06.2020.** **ANNEXURE A2: CERTIFIED COPY OF THE IMPUGNED ORDER PASSED BY THIS HON'BLE COURT IN WP(C) NO.13263 OF 2020 DATED 29.07.2020.**