Blacklisting Of Tablighi Jamaat Members: Supreme Court Suggests Petitioners To Make Individual Representations To Govt.

On Wednesday, Senior Advocate C. U. Singh, for the petitioners, framed the proposition as follows- "Where a foreign national has been admitted to India on the basis of a valid visa, whether a blacklisting order or visa cancellation order could be issued without any intimation or enquiry or notice to that person. And whether, in such circumstances, where such a foreigner has entered India validly, Articles 14 and 21 would apply to any action taken against him"

SG Tushar Mehta: "I have had a discussion. We do not place the visa manual and the blacklisting rules in public. Actually, many a times, when a visa application is received by the embassy, there are RAW inputs, IB inputs that he is a spy, that he has some other intention. Nonetheless, Visa is granted with full knowledge, he is put under surveillance so that we come to know who are the local people helping him. He is also permitted to go, he is not deported. He is blacklisted without informing him so that he doesn't convey to people here that I have been blacklisted and you be careful"

SG: "There is a provision that he can make a representation for revocation of the blacklisting. But I would request your lordships that that should be the end of the matter. My submission is that petition per se is not maintainable. I have judgments to support that. Even the US Supreme Court says that this is one of the rare issues where it is plenary, executive power and the judiciary has refrained from touching. If the same thing the government of a sovereign nation does with a citizen, it would be completely unacceptable, but the yardstick would be different while dealing with a foreigner trying to enter your territory. If my friend wants, he can make a representation. But after that they cannot challenge it. Because ultimately, it (visa) is a privilege"

SG: "Here, the people came on tourist Visa, they came in from different countries, they were found to be congregated at one place, prima facie it was the view of the authority that they are engaging in activities which are prohibited from 2003. Tablighi activities are prohibited in several parts of the world. Person coming in as a tourist and doing something else is the ground on which the visa is cancelled. Visa is granted for specific purposes. If I enter on a student visa, I cannot do any other activity- that is how it is world over. Blacklisting would mean that he will not be permitted to enter the country and that is the sovereign right of any sovereign country. Right to enter the country cannot be traced back to article 14 or article 21 but at the most to article 19 which is the right to move freely within the territory. For moving, you have to enter. So entry is an extension of moving about. Article 19 is only for citizens, there is no right of any foreigner to ensure that he is allowed to enter and move about freely"

SG: "Tourist visa includes recreation, casual visit to meet friends or relatives, attending a short-term yoga programme, short duration medical treatment including treatment under Indian systems of medicine, short-term course on local languages etc"

Justice Khanwilkar: "If you come for religious purposes, there is a separate missionary visa. And missionary is not limited to one religion, it is a generic term"

Mr. Singh: "Missionary visa is for people who come for teaching other people. That is not the case here. Tablighi activities are only for visiting the mosques and for learning"

Justice Khanwilkar: "Tourist Visa does not include permission to you to do religious activities"

SG: "In the name of Tablighi, some sort of doctrinal things are brought into the country. There are groups which spread it and preach the same, and therefore, some countries have prohibited the same. And anyway, whether you are a tourist or a student, Tablighi activities are prohibited irrespective of which visa or title you come with"

SG: "Discretions, as in the present case, are used in the larger interest of the country's sovereignty. Such actions are happening several times for various good considerations- diplomatic considerations, security etc- and it is nobody's case that there is any malice or malafide. It is the unfettered discretion of the country because the policy considerations that go into it would never be justiciable. If your lordships accept the petition as maintainable, it will be accepting there is a fundamental right to enter the country and move about freely"

Justice Khanwilkar: "Their argument is of Fairness of procedure- the right to be heard before you pass that order (of blacklisting and visa cancellation), right to atleast be informed that we wish to initiate this action against you, so that then they could have told you that I was not there or involved in any of the activities"

SG: "Article 21 says that nobody can be deprived of his life or personal liberty except in accordance with the procedure established by law. The right to remain in India contrary to the prohibition of the government can never be traceable to the right to life or personal liberty. Their personal liberty is not curtailed by blacklisting. What do we mean by procedure established by law? The procedure established by law is the Parliamentary legislation. Section 3 (of the Foreigners' Act) empowers me to lay down the direction that 'please, leave the country, and henceforth, you will not be permitted to enter the country'. Your lordships will have to accept the argument that the right to enter India is an enforceable right, only then will any fundamental right flow. There is no difference between whether they are expelled or they voluntarily go when we pass an order of blacklisting that henceforth do not come. Blacklisting- the only meaning of the term is that the next time you apply for a visa, you will be denied. It is not a matter of life or personal liberty. Natural justice applies differently to different situations. Your lordships may decide the contours of natural justice based on the nature of the subject matter- when the country is exercising sovereign power of taking a call that don't enter, there is no adverse impact on them unless they say right to enter India is my absolutely enforceable right"

Justice Khanwilkar: "As per their submission, having entered India on a valid visa, then the right under article 14 and 21 are triggered, that is, fairness in the procedure of either cancellation or asking them to go back or blacklisting as the case may be"

SG: "At best, 21 will apply, if you are picked up without in accordance with law, or are punished, or imprisoned, or life is taken away. But 'life' will not mean right to enter a country...in a criminal trial, the standard required is beyond reasonable doubt. So they may have been acquitted or discharged. But here, the exercise of sovereign powers is a suspicion-based jurisdiction. Based just on suspicion also we can refuse you entry. We, as a part of the strategy, don't inform them that they are blacklisted so that they do not alert people here with whom they have liaison"

Mr. Singh: "Not for a moment are we disputing that under the Foreigners' Order, government can have various restrictions. But can it be that a foreigner, who has been given admission into the country by the government of India in exercise of its sovereign powers, pursuant to a valid visa issued by the government of India, is during his valid stay in India told, without any intimation or notice, that you have violated the visa conditions and you will be put behind bars? This is not a case which is so innocuous that we have only exercised our sovereign powers that you will not be allowed to come in for 10 years. One, they cancelled our visa. Two, they say we are treating you as having violated the terms of the Visa and you will be prosecuted for that. We were all imprisoned. We spent time behind bars. And three, they say you will be blacklisted for 10 years. It was a composite action. The Union Ministry directed every state government and the police that you immediately register FIRs against us!"

Mr. Singh: "They, on a presumptive basis that you have violated the visa conditions by doing Tablighi activities, said we are blacklisting you and cancelling your Visa. In every single case, the High Courts have held that this is the absolute and gross abuse of process. It was not on some technicality. All the state governments and government of India have accepted these judgments and not challenged it..."

Justice Khanwilkar: "So far as cancellation is concerned, once you have left the country, that issue became Academic. Whether cancellation was proper or not proper, are you going to claim damages for that? We will not enter into this exercise. So far as criminal prosecution is concerned, those cases have been taken to their logical end, all cases are over, so that issue is closed. The only issue is whether blacklisting can be sustained on the basis of article 21, or if you want to invoke it, article 14?"

Bench: "Can the right to be heard be claimed by a foreigner who has applied for a visa and who is not getting that visa? The answer is 'no'. Your argument virtually, if accepted, would result in that situation practically. The government has he sovereign power of not giving visa when you apply. So it also consists of the power of blacklisting. What is wrong in that? For not giving you visa, no hearing is required. You can only apply. Therefore, today you are claiming issuance of a writ under article 32 for what purpose? That blacklisting is without giving hearing to you Blacklisting is not the consequence of expulsion. It is for future entry. Where is the question of giving you a hearing there? The consequence of cancellation of visa was expulsion and you have already gone back"

Justice Khanwilkar to Mr. Singh: "Future entry is the prerogative of the government. That is why the suggestion was given that if you give a representation, the government can consider. Even if blacklisting is set aside, the fact of your entry remains in the office record. If you make a representation, perhaps they will rethink. You are not taking the clue given by the solicitor general. Even if we set aside the blacklisting order, future visa consideration will depend upon the government's prerogative. That time, you will not come here and say that your Visa application has been rejected. Will we entertain that petition? No, we will reject it straightaway. So use this mechanism which is offered. Even if any intimation is not given to you about blacklisting, the perception of the government to not allow you to enter the country is communicated to you, then that future application you will have to give up anyway. Can you enter India without visa? No. We can keep on debating on the same issue with different thoughts. Ultimately, assuming we are setting aside the blacklisting order, it comes to what? It will be no reflection on the record which is maintained by the office. The government is free to examine future applications from time to time on its own merits. The office which has already made a record about your entry and your activity and the reasons for criminal actions can be good ground for future applications. We will set aside this (blacklisting) order today with those remarks without giving further reason. Will that help you? We will clarify that all options will be open to the government of India as regards future applications. But the perception that the government has because of your entry will remain; your record with the government will not get white-washed by our order. The most stubborn you are, you will get more hard reaction. You make individual representations, you may get some relief. In some cases, you may get relief, not in all cases, perhaps. You have this opportunity. If you wish to argue, continue, we will not say anything, we will take notes, we will decide as we please"

Mr. Singh and Senior Advocate Menaka Guruswamy prayed for time to take instructions from their clients and sought an adjournment for the same. The SG suggested that the clients may be immediately contacted on phone. It was urged by Mr. Singh and Dr. Guruswamy that the petitioners are in 35 different countries.

Justice Khanwilkar: "Convey to your clients that it is in you interest. Otherwise, we will pass that as an order that this offer of government of india is appropriate and we are accepting it. Then the burden is not on you, we are accepting it. We may say there are no fundamental rights and that we permit you to make representation..."

Mr. Singh: "The manner in which they have acted is completely arbitrary..."

Justice Khanwilkar: "You want the operation successful but what happens to the patient? You decide about it. We have still kept the window open- if not the door- but you can enter through the window by making representation...Take the clue. Make representation. They might be able to work on it and find some solution with regard to some cases which are deserving cases. But here, you are asking us to have one brush for all cases"

Mr. Singh: "The SG said that after making the representation, the decision thereon will be final..."

Justice Khanwilkar: "Naturally. There can be no further argument after that. It is a sovereign decision. These issues are better resolved politically. Those countries may take it up with this country..."