Right To Grant Visa A 'Sovereign Right' Of State, Tabligh Members Can't Be Deported Unless Criminal Trial Completed: Centre Tells SC

The Supreme Court on Thursday took note of the affidavit filed by the Centre in reply to the plea filed by foreign nationals who have been blacklisted by the Ministry of Home Affairs (MHA) for their alleged "Tablighi Jamaat Activities" at Delhi's Nizammudin.

The Centre responded to the Court's query pertaining to visa cancellation processes towards the foreign nationals raised on June 29, stating that 2679 foreigners including 9 overseas Citizens of India (OCI) holders have been cancelled so far on a case to case basis by the Bureau of Immigration.

The Union stated before a bench of Justices AM Khanwilkar, Dinesh Maheshwari & Sanjiv Khanna that individual cancellation of visa orders had been effectuated individually via e-mail to all those petitioners who were on e-visa while some of the executable orders are only pending as the members are still to be located.

"It is submitted that firstly, the individual orders have been passed by the competent authorities with regard the cancellation of the visa, the blacklisting of individuals and the other steps taken in pursuance of the same. It is submitted that since the Petitioners and other persons are spread across various parts of the country, some of whom are still to be located, the execution of the orders would take place at the time of the exit of the said foreigners at the port of exit"

Further to this, while the petitioners batted for deportation on account of alleged violation, the Centre stated in reply that there existed "no fundamental right on the part of a foreigner to obtain a visa or to continue a cancelled or rescinded visa".

Senior Advocate CU Singh, appearing for the petitioners, submitted: "If there are violations, let the petitioners be deported. Usually in cases of violations, foreigners are deported"

Solicitor General Tushar Meha rebutted this by stating that "grant of a visa is a plenary sovereign function of the Central Government and across the world, the matters concerning the non-grant, rejection or cancellation of visas, are not justiciable"

"It is submitted that grant of a visa not an enforceable right let alone a fundamental right and visa is a privilege that any country grants to a foreigner. The said visa is always subject to unilaterally imposed restrictions and remains terminable unilaterally in case of a brach. It is submitted that no right of hearing can be read in to any purported right on part of the Petitioners under Article 21 and the right to life and liberty under Article 21 is always subject to the procedure established by law. It is submitted that in such matters, the procedure established by law does not specifically provide for a right of hearing as the same does not regulate any rights of an individual vis-a-vis the State rather is merely a unilateral grant of a privilege" - Centre to SC

Highlighting the specific nature of the breach committed by the present Petitioners and the reasons for the action taken by the Centre, the Central Government stated that the Petitioners had indulged in activities in the nature of "Tabligh activities" which, are not permitted on Tourist Visas and are liable for legal action against them.

"The petitioners have been clearly found, under due investigation under the CrPC to have breached the said mandate of the Manuals and of the substantive provisions of the Foreigners Act which required them to take prior permission from the relevant authorities before indulging in work in the nature of tablighi activities."

It was pointed out that apart from visa violations, the activities of petitioners in the nature of Tabligh activities in question have endangered many lives in the ongoing COVID-19 pandemic and therefore are liable to legal action.

With regard to invocation of Article 32 for their benefit, the Centre states that no "illegal immigrant" can crave the leave of the Top Court to question the decision taken by a statutory scheme.

"It is submitted that the Petitioners cannot claim a fundamental right to travel to the country as a fundamental right. As evident from the Constitutional guarantee flowing from Article 19 of the Constitution, the right to reside and settle in any part of the territory of India as well as the right to move freely throughout the territory of India is available only to the citizens of India...."

Further, the Centre clarified that 227 members left India before issuance of Black Listing/look out circulars and that no member has been deported so far post that due to pendency of criminal proceedings against them.

The Top Court will now take up the matter on July 10 after a formal rejoinder from the Petitioner(s) side is filed.

Click here to download the affidavit