The Supreme Court on Thursday adjourned till July 10 the hearing on 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, Dinesh Maheshwari & Sanjiv Khanna took note of the Centre's affidavit which stated that individual orders had been passed for cancellation of visas of the foreign nationals and stated that the petitioners shall have the liberty to make representations regarding the individual visa cancellation orders before the appropriate authority.
In light of this the bench orally said that since individual orders had already been passed, the Petitioners ought to now approach respective High Courts, challenging the cancellation orders accordingly.
Justice Khanwilkar: UOI says that they have been served now - case to case basis and earlier could not be served because their whereabouts were not known. Now you challenge them in the HC's.
However Senior Advocate CU Singh, appearing for petitioner(s) stated that the individual orders for cancellation of visas were mere one liners and that there was no show cause notice which was issued. "The foreign nationals may well be deported" added Singh.
Solicitor General Tushar Mehta however stated that there was no enforceable "Right to Return" if there was any pendency of criminal cases against a foreign national.
"Right to return to home country is never an enforceable right. If offence is committed, foreign national has to be tried. These are summary trials", the SG said.
In this backdrop, bench adjourned the matter to July 10 and gave liberty to the Petitioners to file their Rejoinder affidavits.
On the last date, Court had adjourned the plea moved by foreign nationals, who have challenged the Centre's order to blacklist them from travelling to India for ten years, after the parties made conflicting claims regarding serving of the petition copy.
While asking the petitioners to await the Union's response, the Bench notably asked the Centre why these foreigners were still in India if their visas had been cancelled. The Court wanted to hear from the Solicitor General, as he eventually appeared on the screen.
The Bench said:-
"If visas of these foreigners are cancelled, why are they still in India? You deport them. Also, tell us if there was just a general direction or individual orders sent to each one of them informing about blacklisting and cancellation of Visa."
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.
Contending that the decision has been taken unilaterally and arbitrarily, the Petitioners urge the Top Court to declare the decision as unconstitutional and 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 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.
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.