Profiling A Person Solely On Basis Of Religion Is Contrary To Our Constitutional Creed: Delhi HC [Read Judgment]

‘Every violation of visa norm cannot possibly lead to banning a person from entering into the country unless there is material to show that the person concerned acted in a manner which was inimical to our national interest.’

Directing the immigration authorities to reconsider the decision to ‘blacklist’ an OCI cardholder, the Delhi High Court has observed that every violation of visa norm cannot possibly lead to banning a person from entering into the country unless there is material to show that the person concerned acted in a manner which was inimical to our national interest.

It is to be borne in mind that profiling a person solely on the basis of the religion he or she practices is contrary to our constitutional creed, Justice Rajiv Shakdher observed while disposing a plea by Mohammad Abdul Moyeed who contended that he was questioned about his religion by the immigration officer on his arrival at Hyderabad Airport and he was forced to take the next flight out of Hyderabad, albeit, to Canada.

According to Mohammad Abdul Moyeed, a Canadian citizen, he had come to India after receiving information that one of his sons, who is differently abled, was seriously ill. When he reached the immigration barrier at RGI Airport, he was accosted by an immigration officer, who told him that he would have to return to Canada as the Government of India had banned his entry into India. He was then forced to take flight back to Canada.

After both the CPIO and the Appellate Authority rejected his RTI application seeking reasons for banning his entry in India, he approached the high court. Before the high court, the authorities, apart from contending that the writ petition is not maintainable, stated that his entry into India was banned on the recommendation of SP, Mewat, Haryana, as he had violated visa norms. It also said, during his previous visit, he visited mosques and interacted with local Muslim people in Mewat district, Haryana, to propagate “Tabligh-e-Jamath” ideology and since he had entered India on a tourist visa, he could not have undertaken the said activity.

Refuting this, Abdul Moyeed contended that he attended the Tabligh-e-Jamath for self-discipline and self-reformation and meditation and he did neither indulge in Tabligh activity nor wanted to train in Tabligh work.

The judge, perusing the memorandum submitted by the authorities, observed: “Second, this very memorandum also shows that three things have been put against him. First, he visited various important mosques in Indian cities for Tabligh activities to strengthen Islamic brotherhood. Second, it was noticed that he believed in orthodox Islam with an intention to propagate that Muslims should unite and should fight against western countries and the USA. Third, he may be involved in arranging funds for anti-national groups. A plain reading of these assertions made in the said memorandum show that they are nebulous and based on surmises, at least, at this stage. The only factual aspect qua which, perhaps, there is little room for denial is that the petitioner visited certain mosques where Tabligh work was carried out. The other aspects which are suggested in the memorandum do not follow as has been, presently, sought to be portrayed by the respondents. At least, I was not shown any material which would demonstrate that the petitioner wanted to propagate the idea of Muslims uniting and fighting against the western countries and USA or that he was involved in arranging funds for anti-national groups. What has to be kept in mind is that the petitioner is residing in Canada and that if he was indulging in propagating the idea of uniting Muslims to fight against the western countries and the USA surely the Canadian authorities would have taken note of these aspects. The petitioner seems to be moving around like any other free citizen of Canada.”

The court also observed that he was issued an OCI Card in 2006 which remains valid and it has not been cancelled till date. It also noted that the SP, Mewat, Haryana, apart from saying that the petitioner took part in Tabligh work did not insinuate or suggest that he wanted to unite the Muslims and have them fight against the Western countries and the USA or that he was involved in arranging funds for anti-national groups. “Because, if that was the case, surely the Central Government would have stepped in and exercised its powers under Section 7D of the 1955 Act to seek cancellation of the petitioner's OCI registration,” the court said.

The court further observed that the authorities did not afford him any opportunity to explain his stand. Directing the authorities to give a personal hearing to him, the court said: “While reconsidering their decision the respondents will also take into account the family status of the petitioner, his status in the Canadian society, his track record of having claimed no involvement whatsoever in any criminal activity and his general reputation amongst the members of his community who reside in India.”

Justice Rajiv Shakdher further remarked: “Every violation of visa norm cannot possibly lead to banning a person from entering into the country unless there is material to show that the person concerned acted in a manner which was inimical to our national interest. As noted above, in this case no such material was placed before me. It is to be borne in mind that profiling a person solely on the basis of the religion he or she practices is contrary to our constitutional creed.”