Seven foreign nationals, aggrieved by the decision of the Ministry of Home Affairs (MHA) to blacklist foreigners from different countries for their alleged involvement in 'Tablighi Jamaat Activities', have approached Supreme Court challenging the constitutionality of the move.
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. The petitioners also inform that subsequent to this decision, on April 4, the Government further blacklisted around 2500 foreigners, present in India, from travelling to India for a period of 10 years, but there has been no press release regarding the same.
Contending that the decision has been taken unilaterally and arbitrarily, the Petitioners urge the Top Court to declare the decision as unconstitutional and thus, void.
It is emphasised that a decision of en masse blacklisting without issuing notice or giving a chance to be heard is a blatant violation of not only principles of natural justice, but also the Right to Life under Article 21.
"The impugned decision, by its very unilateral nature, infringes the principle of natural justice, particularly, audi alteram partem by blacklisting the aforementioned foreigners present in India without first granting an opportunity of being heard or notice of any form, and resultantly depriving the aggrieved foreign nationals of their right of locomotion and travelling back to the country of their citizenship."
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, it is informed, is in the seventh month of her pregnancy. She 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 entire contention of the petitioners is that the Government "baselessly and arbitrarily passed a blanket ban on the aggrieved foreign nationals under the garb of alleged visa violations pursuant to alleged Tabligh activities, forcing such persons to remain in India under restricted movements…
…on a mere blanket presumption without any substantiation that they violated the conditions of their validly granted visas, under relevant sections of the Foreigners Act, 1946 and Disaster Management Act, 2005."
In furtherance of this contention, 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. The restrictions however are regarding engaging in tabligh work or preaching religious ideologies, making religious speeches or proselytizing.
Further referring to MHA's Press Release from March 31, it is pointed out that the Government stated the following:-
"Devout Muslims from across the country and also from foreign countries visit the Markaz for religious purpose.
…This is a continuous process throughout the year.
…Since March 23, lockdown has been strictly imposed by State authorities/Police across Delhi including in and around Nizamuddin and Tabligh work came to a halt."
This, assert the petitioners, shows that Muslims from all over visit the Tablighi Jamaat Headquarters, and since March, all Tabligh work had come to a halt on account of the nationwide lockdown. Thus, it is submitted that:-
"…even as per the understanding of the MHA with regard to 'Tabligh Activities', what has been prohibited are only acts falling under the category of preaching religious ideologies, making speeches in religious places, proselytization, distribution of audio or visual display/ pamphlets pertaining to religious ideologies, however, there is neither any prohibition in visiting a religious place and attending normal religious activities nor can such an act be said to have constituted a violation of the visa conditions, thereby attracting the arbitrary and unilateral decision of en masse blacklisting of visas validly granted, depriving the fundamental right of personal liberty of all such foreigners."
The petitioners also state that the Government issued a Standard Operating Procedure (SOP) on April 2 regarding the transit of foreign nationals stranded in India amid the COVID-19 outbreak. However, as a result of a short press release on the same day, the present petitioners could not benefit from the same.
The letters subsequently sent to the DGPs and CP of Delhi "has conclusively decided that such foreigners had violated the conditions of their tourist visas by indulging in Tabligh Activities, without ascertaining whether such persons had merely attended a religious discourse or had been found to be indulging in the prohibited activities of preaching and proselytization", submit the petitioners.
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.
With regard to the importance of the Right to life and liberty, it is asserted that:-
"…all human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The importance of these natural rights can be found in the fact that these are fundamental for their proper existence and no other right can be enjoyed without the presence of right to life and liberty. Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning and the life itself would not be worth living. Hence, that is why "liberty" encapsulates the quintessence of a civilized existence. The object of Article 21 is to prevent encroachment upon personal liberty in any manner."
Therefore, in addition to declaring the Government's decision unconstitutional, it is prayed that the names of the petitioners be removed from the 'blacklist' and their visas be reinstated. It is also requested that the Ministry of External Affairs be directed to facilitate the return of the petitioners to their respective countries.
The petition has been filed through Advocates Fuzail Ahmad Ayubbi , Ibad Mushtaq and Ashima Mandla
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