Plea Against Blacklisting Of Foreign Tablighi Jamaat Attendees: Centre In Supreme Court Seeks Time To Work On Resolution
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As regards the blacklisting of almost 3500 persons in connection with the Tablighi Jamaat congregation, the Supreme Court on Wednesday was told by ASG K. M. Nataraj that the concerned authority is still working on the resolution for which another one week's time is required.On April 21, the Court had orally suggested that since the UOI's affidavit expressly stated that they will serve...
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As regards the blacklisting of almost 3500 persons in connection with the Tablighi Jamaat congregation, the Supreme Court on Wednesday was told by ASG K. M. Nataraj that the concerned authority is still working on the resolution for which another one week's time is required.
On April 21, the Court had orally suggested that since the UOI's affidavit expressly stated that they will serve the blacklisting order at the concerned port of exit, but the petitioners insist that no such order has been served, the Court may record that since the same has not been served, the government has not given effect to this observation. "We will say that in future, if they decide to blacklist, they have to serve you notice and give you prior opportunity. Then you have a cause. If there is no blacklisting order served on you, there is no blacklisting order in place…We may say that no order is served so there is no order…"
At this, SG Tushar Mehta had prayed that the bench may not make any observations as of now as anything that is to fall from the Court would have wide ramifications. Stating that he cannot respond to the Court's suggestions immediately, the SG had sought for time.
He had urged, "Whenever a foreigner comes, the question as to whether visa is granted, not granted, curtailed, is an Executive decision". The SG had pressed, "This is not a case of few individuals. This would be a case which will govern all illegal foreigners whose visa is affected by some Executive order. Your Lordships' one word, if Your Lordships say 'serve it (the blacklisting order) and thereafter they can challenge' will also have ramifications. Let me find a solution so that your lordships are not required to go into legal issues and the problem is also resolved, and as a nation, our country does not suffer any ramifications which are not intended"
The bench had then listed the matter for April 26 which then was adjourned to Wednesday.
On Wednesday, the bench of Justices A. M. Khanwilkar, A. S. Oka, C. T. Ravikumar passed the following order- "ASG K.M. Nataraj, on instructions, submits that the concerned authority is still working on the proposal suggested on the previous date of hearing, for which another one week's time is required. As prayed, list these matters on May 5, 2022."
What transpired in the Court on April 21
Senior Advocates C. U. Singh and Maneka Guruswamy had raised the issue of the "en masse and omnibus" blacklisting of about 960 persons in the first instance and another 2500 subsequent thereto for "alleged involvement in tablighi activities while on tourist visa".
Dr. Guruswamy: "Everybody has returned home, almost everybody has been discharged of all offences. Your lordships and the Union of India facilitated their return. The issue that remains if at all is the issue of blacklisting. The blacklisting is arbitrary, you cannot have such a unilateral, blanket exclusion of a person. It is has been held that if I am blacklisted, then I have the right to be heard under article 21"
Mr. Singh: "We entered India under a valid visa and on the date of the purported blacklisting, we had valid visa"
Justice Khanwilkar: "They have been blacklisted only because there was a valid visa. Blacklisting is on a valid visa?"
Mr. Singh: "No, Your Lordships, there is a cancellation. Blacklisting is that for the next 10 years you cannot enter India"
Justice Khanwilkar: "You have the right to enter India every time? Article 21 will operate when you are in India, not when you are outside of India. When you go back, there is requirement of requesting visa again. Can you take mandatory injunction from this court that whenever you apply, visa should be granted? The answer is 'no'. When Visa is issued, it is always tenured- it is one year, two years or for a particular purpose"
Mr. Singh: "We are only praying that this blacklisting must go, and on merits, let them consider. These are very poor people who come here only for religious learning, they are not preaching"
Justice Khanwilkar: "Now that you have gone back, there is a need to apply afresh. When you apply afresh, it will have to be considered as per the extant regulations applicable at the current time, it cannot be done in anticipation. Therefore, at the relevant time, whatever the applicable regulations are, that will take care of you. So far as blacklisting is concerned, Visa was otherwise valid, it can now not be utilised.
Mr. Singh: "Our contention is not that we have a right to get visa. As and when a person applies for visa, every sovereign country including India, without any right of hearing or intimation or opportunity or justification, has the right to refuse it. But it was open to them to apply. Today, what has happened is because of the presumptive order, in a case where all of them have been discharged and acquitted and so that presumption has been completely demolished, they cannot apply for visa"
Justice Khanwilkar: "We will leave it to the authorities to investigate on a case to case basis...blacklisting cannot be a general declaration. It has to be case to case. Where is that order of blacklisting? If it is not there, that party can always apply for visa"
Mr. Singh: "The Union Home Minister in the Parliament said that the blacklisting is maintained by the Ministry of external affairs and it is not something which is shared with the public. Once you are put on the blacklist, anywhere in the world if you make an application for Indian Visa, it will not be entertained at all"
Justice Khanwilkar: "It is not a matter of blacklisting of individuals. It is a policy matter which policy will then have to be assailed"
Mr. Singh: "It is a case of blacklisting of individuals but it is done en masse"
Justice Khanwilkar: "You say there is en masse blacklisting. But where is that fact? Where is the press release? Press release (official communication of the blacklisting in the Press Information Bureau) pertains only to 960...The position seems to be that in the earlier part of their (UOI) affidavit, they said the blacklisting order would be served on the concerned person at the exit point, but your case is that it has not been served. We will say that as and when they decide to blacklist, they will give you notice and then pass appropriate order"
Mr. Singh: "They have to make a statement that there is no blacklisting order or your lordships may have to so record"
Justice Khanwilkar: "We will record your statement that no blacklisting order has been served on you. It has been expressly stated by them that we will serve it at the exit point of the concerned port of exit. Now you say that no such order has been served on you. We will say that since it has not been served, they have not given effect to this observation. We will say that in future if they decide to blacklist, they have to serve you notice and give you prior opportunity. Then you have a cause. If there is no blacklisting order served on you, there is no blacklisting order in place. Where is it officially communicated to you?"
Mr. Singh: "Their stand is that there is no requirement to communicate to us at all"
Justice Khanwilkar: "Then we may say that no order is served so there is no order?"
At this, SG Tushar Mehta prayed that the bench may not make any observations as of now as anything that is to fall from the Court would have wide ramifications. Stating that he cannot respond to the Court's suggestions immediately, the SG had sought for time.
SG: "Whenever a foreigner comes, the question as to whether visa is granted, not granted, curtailed, is an Executive decision"
Justice Khanwilkar: "That stage will come when you serve the blacklisting order"
SG: "This is not a case of few individuals. This would be a case which will govern all illegal foreigners whose visa is affected by some Executive order. Your Lordships' one word, if Your Lordships say 'serve it (the blacklisting order) and thereafter they can challenge' will also have ramifications. Let me find a solution so that your lordships are not required to go into legal issues and the problem is also resolved, and as a nation, our country does not suffer any ramifications which are not intended"
Background
The Supreme Court had in January agreed to consider the question related to the rights of foreigners with regards to visa restrictions.
SG Tushar Mehta had submitted before the bench that in the petition by foreign nationals challenging the Ministry of Home Affairs order blacklisting them for alleged participation in Tablighi Jamaat activities, an important question related to the right of foreigners with regards to visa restriction had arisen.
Mr Mehta further submitted that there were judgments that say that these rights are sovereign statutory rights.
Requesting the bench to consider the same, he said, "They have already gone back. An important question arises which is Right Of Foreigners With Regards To Visa Restriction. Your lordships' judgments say these are all sovereign statutory rights. Your lordships may have to consider the Passport (Entry Into India ) Act, 1920 Foreigners Act."
Acceding to SG's request, the bench in its order said, "As regards the main matter, a short question is involved which needs to be addressed expeditiously. We direct listing of the main matter in the 2nd week of March, 2022."
Case Title: MAULANA ALA HADRAMI & ORS. v. UNION OF INDIA & ANR.
Click Here To Read/Download Order