It was recently observed in a judgment that national security has also prevailed over individual's interests, for the Delhi High Court dismissed a petition from a Pakistani woman seeking long-term visa in India. Sheena Naz, who was married to an Indian national, sought for a long-term visa at the Bureau of Immigration. However, the Ministry of Home Affairs (MHA) denied her application, claiming security concerns following a terrorist assault in Pahalgam, Jammu.
The plea evidently came before Justice Sachin Datta, who remarked that the government's decision to stop giving visa facilities to applicants from Pakistan was under Section 3(1) of the Foreigners Act 1946, which empowered the Central Government to manage and arrange entry and staying of foreigners in Indian territory. The Court therefore decided not to intervene in the mentioned order on the ground that it takes place due to the most powerful national security concerns and falls out of purview of a judicial lens.
Background of the Case
- The case was of Sheena Naz & Anr v. Union of India & Ors. wherein the applicant approached the High Court asking for the issuance and regularization of her long-term visa until she would be granted Indian citizenship. She also sought a direction from the Court prohibiting the authorities from cancelling or suspending her residential permit valid from March 26 to May 9, and to have it periodically extended in accordance with Rule 6 of the 1992 Registration of Foreigners Rules.
- Her plea, however, faced hiccups because of a strong government order dated April 27. The Ministry of Home Affairs had, in the wake of terrorism attack at Pahalgam, decided to suspend immediately all or any existing and future visa services for Pakistani nationals. It also covers Long Term Visas, except Medical, Diplomatic, and Official visas, which were curtailed or revoked. The clarifications also mentioned that medical visas were also valid until April 29.
Court's Observations
- Justice Datta noted that the order passed under Section 3(1) of the Foreigner's Act 1946, was issued due to national security considerations and thus not open for judicial review. "Prima facie, the order issued by the Union Government… does not warrant any judicial review," he emphasized that the Court cannot interfere where the executive acted upon bona fide security considerations.
- The petitioner's counsel, sensing the unwillingness of the Court to entertain it, sought leave to withdraw the petition. The Court rejected the petition as withdrawn and granted the request. As a result, the order records that the petition is dismissed as withdrawn.
National Security Takes Precedence
- Thus, this situation serves as an example of a careful balance between state interests and individual rights. While the petitioner requested, from a personal and humanitarian angle as the spouse of an Indian citizen, the government's essential concern in light of recent terrorist attacks was the safety and security of the nation. The government's total risk of visa services for Pakistani nationals strikes a balance between caution and a defensive stand during these uncertain days.
- Also drawn to the forefront by this case is how much the judiciary may intervene in areas where executive policy falls squarely in its domain, with national security assessments being the policy driver. By and large, the judiciary has opted to defer to the authority of the executive in matters of foreign relations, defense, and national security, with the latter being an area where courts have no institutional competence to override the judgment of government.
Legal Framework Involved
- Importantly, Section 3(1) of the Foreigners Act, 1946, confers upon the Central Government the power to issue orders regulating the entry of foreigners into India and their stay therein. The provision appears at first glance to be broad enough to provide for sweeping powers, especially in times of heightened threat perception. In this case, the government exercised this power to cancel existing visas and to stop further processing of any visas to be issued to Pakistani nationals.
- Rule 6 is subject to the over-riding power of the Foreigners Act. Hence, permits or visas may, however, be revoked or varied, according to an assessment of governmental authority regarding security.
The judgment of the Delhi High Court in Sheena Naz & Anr v. Union of India & Ors. specifies national security as being paramount in cases concerning immigration and related petitions, particularly when there is heightened political or security crisis. Though the judgment must be personally painful for the Petitioner, it is in consonance with the accepted maxim of law, which places national interest and security above all else.
There was a clear policy decision for the government and further reasonings that swayed the opinion under statutory powers stipulated by the Foreigners Act, and the court rightly decided not to assume jurisdiction in the matter. The said judgment fortifies the notion that issues concerning foreign nationals and national security lie firmly in the realm of the executive and must therefore be accorded due deference.
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