Obtaining visa not a fundamental right of foreigners, Centre tells SC in Tablighi case

“It is submitted that firstly, the individual orders have been passed by the competent authorities with regard to the cancellation of the visa, the blacklisting of individuals and the other steps taken in pursuance of the same,” said the affidavit filed by Ministry of Home Affairs (MHA). The ministry said that out of total reported 2,765 cases of Foreign Tablighi Jamaat members, visas of 2,679 (including nine OCI card holders) have already been cancelled.

Foreigners do not have any fundamental right to obtain a visa or to continue a cancelled one, the Centre told the Supreme Court on Thursday, seeking dismissal of the pleas challenging the cancellation of visas of 2,765 foreign nationals and their blacklisting for involvement in Tablighi Jamaat activities. The grant of a visa is a plenary sovereign function of governments across the world and the matters concerning the non-grant, rejection or cancellation of visas are not justiciable, the Centre said. In its affidavit filed on a batch of pleas filed by foreign nationals of 34 countries, who were blacklisted for ten years from travelling to India and their visas were cancelled, the Centre said that individual orders were passed on case-to-case basis. "It is submitted that firstly, the individual orders have been passed by the competent authorities with regard to the cancellation of the visa, the blacklisting of individuals and the other steps taken in pursuance of the same," said the affidavit filed by Ministry of Home Affairs (MHA).

The ministry said that out of total reported 2,765 cases of Foreign Tablighi Jamaat members, visas of 2,679 (including nine OCI card holders) have already been cancelled. It said: "47 Foreign Tablighi Jamaat foreigners are Nepal nationals, who are not holding any visa. Visas of the remaining 39 cases are under process of cancellation. Out of these 39 cases, 18 visas were issued by Indian Missions and in 21 cases, the passport number provided by the originators were wrong/incomplete and the same has been sought from the originator." The government said that since these foreigners are spread across various parts of the country, some of whom are still to be located, the execution of the visa cancellation and blacklisting orders would take place at the time at the port of exit. "It is submitted that since the Petitioners and other persons have been found to be breaching the conditions of the visa granted to them, committing criminal offences, etc., the said persons are being investigated/prosecuted as the procedure established by law," it added. The MHA said, "Apart from violation of the visa conditions, the activities of the Petitioners in the nature of Tablighi activities in question have endangered many lives in the ongoing COVID 19 public health emergency and therefore, they are also liable for legal action." The ministry said the cancellation of e-Visa has been intimated to foreigners who were on e-Visa, by e-mail but some foreigners on regular visa could not be intimated regarding cancellation of the visa as their e-mail IDs are not available with the Bureau of Immigration.

"At the outset, it is submitted that the there exists no fundamental right on part of a foreigner to obtain a visa or to continue a cancelled or rescinded visa. It is submitted that the grant of a visa is a plenary sovereign function of the Central Government and across the world, the matters concerning the non-grant, rejection or cancellation of visas, are not justiciable," the MHA said in its affidavit. It added that grant of a visa is not an enforceable right let alone a fundamental right and it is a privilege that a country grants to foreigners.

"The said visa is always subject to unilaterally imposed restrictions and remains terminable unilaterally in case of a breach. 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 said. Giving the sequence of events of the action taken by the government with regard to these foreigners, the MHA said, "As per information available, total 205 FIRs have been lodged against the foreign Tabligh Jamaat members by 11 states. 2,765 such foreigners have been blacklisted so far." It added that besides these actions, 1,906 Look Out Circulars have been issued against foreign Tablighi Jamaat members so far and 227 left India before the issuance of LOCs/blacklisting against them. It said that no foreign Tablighi Jamaat member has been deported so far, as criminal proceedings are going on against them. The government denied the contention of the foreigners that their visas were cancelled en masse and said that visas of 2,679 foreigners including nine Overseas Citizen of India (OCI) card holders have been cancelled on a case-to-case basis. It said state/UT governments are not empowered to cancel visas and as per the details sent by them regarding black list /LOC of Foreign Tablighi Jamaat members, their Visas were cancelled by the Bureau of Immigration. It clarified that deportation of foreign Tablighi Jamaat members has not been done till date to ensure completion of the legal processes going on against them under the CrPC and all such foreigners against whom cases have been registered will be deported as soon as the legal processes are completed.

The ministry said that the cancellation of e-Visa has been intimated to 1502 foreigners who were on e-Visa, by e-mail but 1168 foreigners on regular visa could not be intimated regarding cancellation of the visa as their e-mail IDs are not available with the Bureau of Immigration..

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