Tablighi Jamaat- Supreme Court Directs Centre To Consider Future Visa Applications of Blacklisted Person Uninfluenced by Blacklisting Order

The Supreme Court on Wednesday had orally remarked that the petitioners may consider the government's suggestion to make a representation for individual cases for a re-think on their own merits, as there may be scope of a resolution as regards deserving cases if not all. SG Tushar Mehta had, at the outset, had submitted, "There is a provision that they 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 this 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 they want, they can make a representation. But after that they cannot challenge it. Because ultimately, it (visa) is a privilege". Justice Khanwilkar hadd then put to Senior Advocate C. U. Singh, for the petitioners, "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".

On Thursday, the bench of Justices Khanwilkar, A. S. Oka and J. B. Pardiwala passed the following order- "...the petitioners before us have already left India consequent to cancellation of visa. The only issue remains is about blacklisting orders passed by the concerned authorities as stated in the reply affidavit filed before us on behalf of the Union of India. We find that the assertion made by the petitioners is that no blacklisting order has been served on any of the petitioners or any other similarly placed person. Similarly, the reply affidavit though refers to the factum of issuance of blacklisting order, the same has not been produced on record. The affidavit filed by the respondents indicates that individual orders of blacklisting have been passed and would be served on the concerned person at the time of their exit from India. As aforesaid, the case of the petitioners is that such order has not been served on them at the time of exit or otherwise...The SG, appearing for the respondents, in all fairness submits that the blacklisting order has not been served on the petitioners or similarly placed persons (It may be noted that on Wednesday the SG had told the court that the authorities, as a part of the strategy, don't inform them that they are blacklisted so that they do not alert people within the country with whom they have liaison)..."

The bench on Thursday continued to dictate in its order- "...In that view of the matter, we direct the concerned authorities to examine the future applications for grant of visa to be made by the petitioners or similarly placed persons on a case to case basis in accordance with law, uninfluenced by the stand taken by the respondents in the reply affidavit before this court. Needless to clarify that while considering such applications, it will be open to the authorities to take into account all aspects of the matter as may be permissible in law. We once again made it clear that we are not dilating on the questions agitated before us by both the sides including the maintainability of the writ petition and the right of the petitioners to seek any claim in the writ petition"