Tablighi Jamaat : SC Adjourns Hearing On Foreigners' Plea Against MHA's Blacklisting Order Till Next Week

The Supreme Court on Monday adjourned by a week, the plea challenging blacklisting of foreign nationals by the Ministry of Home Affairs for their alleged involvement in Tablighi Jamaat activities at Delhi's Nizammuddin Markaz in March.

A bench comprising Justices AM Khanwilkar & & Sanjiv Khanna adjourned the plea by a week at the request of the Solicitor General.

Senior Advocate Menaka Guruswamy stated that she had no objection to the same and that a short date may be given in the matter.

In this backdrop, Court adjourned the matter to July 24 for further hearing. 

On the last hearing, Court had taken note of the Centre's affidavit which stated that individual orders had been passed for cancellation of visas of the foreign nationals and that the petitioners shall have liberty to make representations regarding the individual visa cancellation orders before the appropriate authority.

In light of this, the bench had orally said that since individual orders had already been passed, the Petitioners ought to now approach respective High Courts, challenging the cancellation orders accordingly.

Background

On April 2, the Press Information Bureau (PIB) communicated the Government's decision to blacklist as many as 960 foreigners from 35 countries who were present in India.

At the same time, orders were issued to Director Generals of Police (DGPs) of all States and Union Territories as well as the Commissioner of Delhi Police (CP) to register FIRs against such foreign nationals.

Plea By Foreign Nationals:

Contending that the decision has been taken unilaterally and arbitrarily, the foreign nationals urged the Top Court to declare the decision as unconstitutional and void.

Their plea emphasised that a decision of en masse blacklisting without issuing notice or providing an opportunity of being heard is in blatant violation of not only principles of natural justice, but also, of the Right to Life under Article 21.

The petitioners, all of whom have been blacklisted, submit that not only has the sudden decision led to FIRs being registered against them but has also resulted in them having to forfeit their passports to the State Administration. This, they contend, is a complete deprivation of personal liberty, without following procedure established under law.

One of the petitioners in the seventh month of her pregnancy was quarantined in March and, after being released in May, continues to be in a facility with restricted movement, which denies her the opportunity to go home and give birth in comfortable surroundings with dignity and security, the plea states.

In furtherance of this, it is pointed out that the decision is based on the presumption of involvement in 'tablighi activities', but nowhere is it defined how these activities were prohibited or what led to the violation of conditions of validly granted visas.

Referring to the "General Policy Guidelines relating to Indian Visa", as made available by MHA, it is pointed out that there is no restriction on foreigners visiting religious places or attending normal religious activities.

Pointing out that constitutional rights against preventive detention extend to foreign nationals as well, it is urged that Article 21 of the Constitution uses the word 'person' and not 'citizen' to protect a foreigner's personal liberty, which includes free movement across the country.

Centre's Stand:

The Centre has stated in reply to the plea that there existed "no fundamental right on the part of a foreigner to obtain a visa or to continue a cancelled or rescinded visa".

"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.

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.

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.