MUMBAI: Legal experts are divided on the ‘Leave India notice’ issued to Imran Khan on Thursday. While several question the “haste” and alacrity with which the Office of the Foreigners Regional Registration Officer (FRRO) issued him the notice four days after the pro-CJP protest, on Oct 14, or its “proportionality”, others back the action as “legally appropriate.”Sorab Kirpal, senior advocate from Delhi, said, “An OCI in India does not have the right to protest under Article 19 (1), however even such person has constitutional protection under Article 14 (right to equality) against arbitrary and indiscriminate state action. Unless govt argues every OCI holder who has ever gone to a protest in India has been acted against similarly, the fundamental right to equality—applicable even to foreigners—can be invoked by the OCI holder. If court finds the state action prima facie arbitrary, it can stay such action, as interim order, pending further hearing.”Kirpal also said, “The FRRO order asking Khan to leave is highly disproportionate. Just because authorities have the power to issue such ‘Leave India notices,’ it cannot exercise it without proper cause.”Senior counsel Pranav Badheka said the govt action appears to be a knee-jerk reaction that can silence others.Advocate Niteen Pradhan from Mumbai, however, said “the govt action is in accordance with the Immigration and Foreigners Act, 2025 and legally appropriate since he is a foreign national.” Pradhan added, “Nowhere else in the world would they tolerate a non-citizen entering into a protest which is nothing but political and protest against the policies of the govt.”Former SC judge Justice Abhay Oka said, “Govt has apparent power to issue the order which they have. But possibly such orders can be challenged in a case on grounds of violation of Article 21, which deals with right to life and personal liberty since it applies even to non-citizens.”Civil rights activists rallied behind Khan. “What are the contraventions? Does the order to leave India mention them? Was a show-cause notice not necessary? Because the right to protest is not a fundamental right for foreigners, can it automatically make it an expellable contravention,” some lawyers asked.The foreigners under the law are, among other stipulations, prohibited from “association with persons of a specified description” and “from engaging in activities of a specified description.” The law also says it can “regulate” the foreigner’s “conduct” in any specified manner.Senior counsel Amit Desai said, “Imran Khan is a respected actor. We respect our OCIs and encourage them to come to India and contribute to India – culturally or otherwise. But to deprive him from his family and friends for an indefinite period seems a bit unfair – only for attending a protest. I wonder if anything he said has flouted any legal provisions to ask him to leave at short notice.”A former HC judge questioned the haste with which the FRRO notice was served and provisions of the Foreigners Act invoked. “He may technically be a foreigner with a foreign passport, but he has stayed in India for long,” the ex-judge said, adding, from media reports it appears he merely joined a group of assembled protesters.“Should the authorities not have issued him a show cause notice first to tell him what provisions of the Act he violated,’’ the former Judge said.The Authorities may argue that for a foreigner a show cause is not necessary since article 19 (1) (b) (right to assemble peacefully and unarmed and protest) is applicable exclusively to Indian citizens, not foreigners, but the Indian Constitution’s other fundamental rights such as right to equality (Article 14) and right to life and personal liberty (Article 21) are applicable to all ‘persons’ which includes foreigners.Article 14 ensures that the government cannot deny to “any person’’ equality before law India and Article 21 says “no person shall be deprived of his life or personal liberty except according to procedure established by law.”The SC has upheld applicability of these other fundamental rights to foreigners, the former judge said and cited a recent July SC judgment in Sabitri Dey vs Union of India. The issue before the SC bench of Justices Vikram Nath and Sandeep Mehta was whether persons declared ‘foreigners’ were heard. The SC said, “A person proceeded against before a Foreigners Tribunal may ultimately fail to establish Indian citizenship, but the process… must still satisfy the constitutional requirements of fairness, reasonableness and non-arbitrariness.”A young lawyer in Mumbai said the Human Rights Act also can be invoked by Khan. He said the Act protects basic human rights of individuals. Protection of Human Rights Act of India refers only to an individual and invokes the International Covenant on Civil and Political Rights (ICCPR), which protects the right to peaceful protest primarily through its Article 21 (freedom of peaceful assembly).The notice to Khan, says it had come to the FRRO’s notice that he as a US national had “contravened the provisions” of the Foreigner’s Act—not setting out which these provisions were. The Foreigners Act had last year replaced the pre-Independence law of 1946.The FRRO invoked its powers under section 7 (2) (c ) which stipulates that it can direct that a foreigner “shall not remain in India or in any specified area therein.’’ The Notice also invoked it in conjunction with section 29 which sets out that the Centre can direct a foreigner’s removal from India for violation of the Act or any rules.The government officer is empowered to enforce the directions which legal experts say could then include use of necessary force to effect such exit.The immediate question his fans may have is when can he return to India? Lawyers say the notice doesn’t stipulate an outer limit; hence it is indefinitely sending him out of India. In such cases, unless the notice is revoked or court stays or sets it aside, said senior counsel Satish Maneshinde.
