Entry into any sovereign country can never be enforceable fundamental right: Centre to SC

The Centre on Wednesday told the Supreme Court that entry into any sovereign country can never be an enforceable fundamental right and India has prohibited Tablighi activities since 2003.

The apex court was hearing the pleas, including those challenging the orders blacklisting several citizens of 35 countries from travelling to India for 10 years for alleged involvement in Tablighi Jamaat activities.

Solicitor General Tushar Mehta, appearing for the Centre, told a bench headed by Justice A M Khanwilkar that the right to enter a sovereign country, contrary to the law of that nation, can never be traceable to Article 21 of the Constitution.

Arguing that the petitions per se are “not maintainable”, Mehta suggested that petitioners can make a representation to the authority for revocation of the blacklisting.

“Let us see (Article) 21. Nobody can be deprived of his life or personal liberty except in accordance with the law. Right to enter a sovereign country, contrary to the law of that country, can never be traceable to Article 21,” the solicitor general told the bench, also comprising Justices A S Oka and J B Pardiwala.

The bench said the petitioners have raised the point that they were not heard or given the opportunity of hearing before passing of blacklisting order against them.

“The argument is, that this order was passed when they were in India and therefore, Article 21 was available to them. That is the argument,” the bench said.

Mehta said Article 21 of the Constitution says that nobody can be deprived of his life or personal liberty except in accordance with the procedure established by law.

“Right to remain in India contrary to the prohibition of the government can never be traceable to right to life and personal liberty. Their personal liberty is not curtailed by blacklisting,” he said during the arguments, which would continue on Thursday.

He said Tablighi activity is prohibited by several countries in various parts of the world and since 2003, India has also prohibited this.

Mehta said entry into any sovereign country can never be an enforceable fundamental right.

Senior advocate C U Singh, appearing for some of the petitioners, told the bench that the issue is whether a blacklisting order could be issued without any intimation or inquiry or notice to the person concerned who has entered the country based on a valid visa.

The bench observed the petitioners can make representation to the authority which would be considered.

The counsel said the petitioners are not served with blacklisting orders.

“….the suggestion given is that you make representation and if that is acceptable to the government, the government will consider. Because, future entry is the prerogative of the government,” the bench observed.

It said even if it sets aside the blacklisting order, the future visa application will depend on the prerogative and discretion exercised by the government.

“That is a good offer made, it appears,” it said, adding that if the petitioners will make representation to the authority, there may be a solution in the deserving cases.

Singh said when the petitions were filed in the apex court, the petitioners were in India.

The bench, which heard arguments on the maintainability of the petitions, said it would decide the legal issue.

The Centre had earlier told the apex court that the right to deny or grant a visa is the executive decision and the government is trying to find a solution so that the national interest and the interest of the foreigners are protected.

The petitioners’ counsel had argued that they have no dispute over India's right to reject or grant a visa and the problem was that of blacklisting which has been done for 10 years and is applicable to those also who have been discharged or acquitted by the courts in Tablighi Jamaat congregation case during COVID-19 in 2020.

Earlier, the Centre had requested the bench to examine the question regarding the scope of the rights of a foreign national to approach the local courts in a matter of violation of visa conditions.

In January this year, the solicitor general had told the bench that a very important “constitutional question” arises for consideration which relates to the rights of a foreigner concerning visa restrictions.

He had said the court may have to consider four legislations — The Passport (Entry into India) Act, The Foreigners Act, The Registration of Foreigners Act, and the Citizenship Act — while considering the issue.

The apex court is seized pleas filed by several foreigners who have challenged the Centre's orders blacklisting more than 2,700 citizens of 35 countries from travelling to India for 10 years for alleged involvement in Tablighi Jamaat activities.

The Centre had earlier sought dismissal of the pleas and informed the top court in July 2020 that it had issued individual orders on a case-to-case basis for cancellation of visas and blacklisting of 2,765 foreign nationals.

As per the information available, 205 FIRs have been lodged against the foreign Tablighi Jamaat members by 11 states and 2,765 such foreigners have been blacklisted so far, the Centre had said in its affidavit filed earlier in the top court.

Some of the petitions have contended that en-masse blacklisting of foreigners without any opportunity to defend themselves is a blatant violation of Article 21 (protection of life and personal liberty) of the Constitution.