Daijiworld Media Network- New Delhi

New Delhi, Jul 2: In a strong rebuttal to a recent Jammu and Kashmir High Court order, the Union Ministry of Home Affairs (MHA) has asserted that the judiciary must not override the executive’s authority in matters concerning the deportation of foreign nationals. The MHA’s response came as part of a Letters Patent Appeal (LPA) challenging the court's directive to bring back Rakshanda Rashid, a 62-year-old Pakistani national deported to Pakistan earlier this year.

The High Court had, on June 6, ordered the Union Home Secretary to facilitate the return of Rashid—who had been living in India on a Long-Term Visa (LTV) for nearly 38 years, married to an Indian national. Her deportation came shortly after the April 22 terror attack in Pahalgam, Jammu and Kashmir, which claimed 26 lives, prompting the MHA to cancel visas of all Pakistani nationals as a security measure.

Calling the court order "constitutionally impermissible and diplomatically untenable," the MHA argued that it sought enforcement beyond India’s sovereign territory, namely in Pakistan—a jurisdiction India cannot command.

“There exists no extradition treaty, legal instrument, or international obligation binding Pakistan to return her to India,” the MHA stated, adding that such an order violates the principle of separation of powers and “threatens to set a dangerous precedent.”

The ministry further clarified that marriage to an Indian citizen does not automatically confer the right to reside in India, nor does it guarantee immunity from deportation under the Foreigners Act, 1946. While Article 21 of the Constitution ensures the right to life and personal liberty to all persons, foreign nationals do not enjoy protections under Article 19, which includes the right to reside and settle in India.

The ministry stressed that foreign nationals' rights are subject to the executive's regulatory control, and decisions concerning national security, immigration, and foreign relations fall under the Union executive’s domain as per Article 73 of the Constitution.

The MHA's appeal comes amid growing concerns over national security, especially regarding foreign nationals from hostile nations, and cautioned that allowing judicial repatriation could lead others to misuse Article 226 to seek similar relief.

“The court’s direction is not only legally unenforceable but also undermines the principles of governance and foreign policy,” the appeal read.

Rashid, who was deported on April 29, argued in her petition that she had applied for her visa renewal in January 2024 and had not received any rejection from the authorities. However, the MHA contended that as of her deportation date, no valid visa existed, and her continued stay had become unauthorised.

With the matter now before a Division Bench of the High Court, legal observers say the case could have far-reaching implications on the powers of the judiciary and the autonomy of the executive in handling immigration and national security affairs.