The family members/dependents of a foreigner who is granted an "Employment Visa" may be granted a dependent visa of the appropriate sub-category. The validity of a Dependent Visa is co-terminus with the validity of the Visa of the principal visa holder or for such a shorter period as may be considered necessary by the Indian Mission. Dependent Visa of the family members/ dependents of such foreign national can be extended by the FRRO/ FRO concerned for a total period of 5 years from the date of issue.
The Foreigners Act, 1946 ("Foreigners Act or the Act")
The Foreigners Act confers power upon the Central Government in respect of foreigners. The Act is intended to deal with entry into, presence of and departure from India of the foreigners.
As per section 3 of the Foreigners Act, the Central Government can by order regulate, restrict, amongst other things, the presence and continued presence of a foreigner in India. Section 3 confers the power to the Central Government to deport any foreign citizen. The relevant extract of Section 3 of the Foreigners Act is reproduced hereunder for ease of reference: -
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 foreigner or 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 power,
orders made under this section may provide that the foreigner—
(a)...................
(b)...................
(c) shall not remain in India or in any prescribed area therein;
.........................."
(Emphasis supplied)
Power has also been delegated to FRROs/ FROs for various visa-related services (https://www.mha.gov.in/PDF_Other/ForeigD-PwrdlgtFRROs.pdf) and in the case of conviction by a court, violation of visa conditions, deportation, issue of Leave India Notice/ Exit of foreigners, Entry refusal, non-issuance of appropriate visas, FRRO/FRO concerned is empowered to cancel the Indian Visa of the foreigner before grant of exit/ deportation
Section 14 of the Foreigners Act, 1946 provides a penalty for contravention of the conditions of Visa issued to the foreigner. Section 15 gives protection to a person for anything which is done in good faith. The text of sections 14 and 15 of the Foreigners Act, 1946 is reproduced hereunder for ease of reference:
"14. Penalty for contravention of provisions of the Act, etc. —
Whoever. —
(a) remains in any area in India for a period exceeding the period for which the Visa was issued to him;
(b) does any act in violation of the conditions of the valid Visa issued to him for his entry and stay in India or any part thereunder;
(c) contravenes the provisions of this Act or of any order made thereunder or any direction given in pursuance of this Act or such order for which no specific punishment is provided under this Act,
shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine; and if he has entered into a bond in pursuance of clause (f) of sub-section (2) of section 3, his bond shall be forfeited, and any person bound thereby shall pay the penalty thereof or show cause to the satisfaction of the convicting Court why such penalty should not be paid by him.
Explanation. — For the purposes of this section, the expression "visa" shall have the same meaning as assigned to it under the Passport (Entry into India) Rules, 1950 made under the Passport (entry into India) Act, 1920 (34 of 1920)
15. Protection to persons acting under this Act.—No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act."
In the case of Hans Muller of Nurenburg v. Superintendent, Presidency Jail, (1955) 1 SCR 1284, the Hon'ble Supreme Court of India observed that "The Foreigners Act confers the power to expel foreigners from India. It vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel.
The Passport (Entry into India) Act, 1920 and Passport (Entry into India) Rules, 1950
The Passport (Entry into India) Act, 1920 ('the Act") read with the Passport (Entry into India) Rules, 1950 ("the Rules") specifies valid travel documents/passports that need to be in possession of foreigners for allowing entry into India. In terms of the provisions in the Act and the Rules made thereunder, every foreigner entering India must be in possession of a valid national passport or any other internationally recognized travel document establishing his/her nationality and identity and bearing - (a) his/her photograph, and (b) a valid visa for India granted by an authorized Indian representative abroad
Attention is further invited to Rule(s) 5 (iv) and 5A of the Rules, which are relevant in the present context and are extracted hereunder for ease of reference:
"Rule 5 - Rule 5
The conditions of a valid passport are
...............
(iv) that when issued by or on behalf of the Government of a foreign country other than Bangladesh, Nepal and Pakistan it shall have been endorsed by a proper Indian diplomatic, consular or Passport authority or by such authority as may be authorized in this behalf by the Central Government by way of Visa for India in one or other of the following kinds, namely:-
(a) a single journey visa, valid for such period not exceeding five year as may be specified therein and for only one journey to India;
(b) a transit visa, valid for such period not exceeding one year or the period of validity of the Visa for the country of ultimate destination, as may be specified therein, and for one or more direct journeys through India undertaken for the sole purpose of reaching any place or country outside India, permitting on each such journey a sojourn of not more than fifteen days in India unless specially extended by a competent authority; and
(c) an ordinary visa, valid for such period not exceeding five year as may be specified therein, and any number of journeys to India;
..........................."
Rule 5-A of Passport (Entry into India) Rules, 1950 :
5-A. Any diplomatic, consular or Passport authority referred to in clause (iv), clause (iv-A), clause (iv-13) or clause (iv-C)] of Rule 5 may, at any time and without assigning any reason make an order that the endorsement by way of Visa made on a passport shall be of no effect and may for this purpose require the production of the Passport before it and cancel the visa endorsement made thereon
............."
Rule 5-A of the Rules gives the discretionary power to any diplomat, Consular, or passport authority to cancel the visa endorsement made on a passport of any person, at any time and without assigning any reason.
It is pertinent to note that all foreigners entering India must have a passport or any other internationally recognized travel document and Visa. Visa is not a matter of right, and it is entirely up to the competent authority of the Government of India to decide on the issue of a visa to any foreigner.
Foreign nationals are required to strictly adhere to the purpose of the visit declared while submitting the visa application. If the activities undertaken by the foreigner in India is not in consonance with the visa category, the same may be treated as a contravention.
Attention is drawn to the judgment given by the Hon'ble Bombay High Court Stelmakh Leonid Iuliia v. Secretary to the Ministry of External Affairs, (2011) 1 AIR Bom R 366, wherein it was held that It is always open to the State to restrict the entry of foreign nationals by imposing restrictions by framing certain policy and the said policy decision should not interfere. The Court further held that the grant of a visa is the discretion of the Government, and the Court cannot take a judicial review of such a matter. In this case, the petitioner's (Ukrainian citizen) employee visa application for the position of Analyst was denied on the grounds that the petitioner is not a highly qualified individual and that there are many analysts available in India who can perform the job. The petitioner, aggrieved by the Embassy of India order, filed a writ petition under Article 226 of the Indian Constitution. The Court while dismissing the petition, observed as under: -
"Asking for Visa by a foreign national cannot be said to be a justiciable issue and High 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. As far as the right to get Visa is concerned, 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. 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. Court cannot decide the issue as to what policy should be framed for granting employment visa or other Visa. Court cannot lay down any criterion in this behalf in any manner. Similarly 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, High 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. (2000) 2 SCC 465 : AIR 2000 SC 988
Analysis
Basis the above discussion, it is evident that the grant of a Visa is a matter of discretion of the Consulate/Embassy. The Embassy reserves the right to interview the visa applicants before the grant of Visa, and its decision is always final. It may also be noted that suppression of facts and information may not only result in delay or denial of Visa applied for but may also debar the applicant from applying in future.
By
Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
Email id: vpdalmia@vaishlaw.com
Mobile No.: +91 9810081079
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AND
Sulekha Kaul
Associate Partner, Vaish Associates Advocates
Email: sulekha@vaishlaw.com
Mobile: +91 9910002836
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