Kafkaesque case of travel ban
The incarceration and subsequent visa cancellation of foreigners who had congregated at the ‘Markaz’ in March are acts with little in the way of legal reasoning
We are all of us a mixture of good and bad impulses that prevail in an excited crowd. There is in most men an impulse to persecute whatever is felt to be 'different'. There is also a hatred of any claim to superiority, which makes the stupid many hostile to the intelligent few. A motive such as fear of communism affords what seems a decent moral excuse for a combination of the herd against everything in any way exceptional. This is a recurring phenomenon in human history. Wherever it occurs, its results are horrible."
The aforesaid lines by the renowned British philosopher Bertrand Russell, can be found quoted by Justice VR Krishna Iyer, in his concurring opinion in the landmark case of Maneka Gandhi Versus Union of India (1978). Quoting these very lines, Justice Krishna Iyer had cautioned the Government of the day that "merits of a particular case apart, the policing of a people's right of exit or entry is fraught with peril to liberty, unless the policy is precise, operationally respectful of recognised values and harassment proof."
Four decades later, our ideals of liberty and freedom have been tested by another case of denial to the right to travel abroad. This time, it is not about one individual but a batch of more than 2,500 individuals belonging to more than 40 nations; this time the persons aggrieved are not being stopped from travelling out of their own country but to their own countries; only this time perhaps there is not much outrage as these people are felt to be 'different'.
During the last week of March 2020 much furore had been created by sections of the media in bringing to the centre-stage a Delhi based 100-year-old religious self-reformative movement popularly known as the 'Tablighi Jamaat'. Since its inception in 1926, this movement has been functioning with its informal headquarters (Markaz) at the Bangle Wali Masjid in Nizamuddin, New Delhi. Due to its apolitical nature and concept of self-reform, the movement has gained wide popularity and has its followers in most of the parts of the world. As a practice going on for well over a 100 years, Muslims from across the world have been visiting this place in Nizamuddin to seek spiritual awareness, to learn of the prophetic ways of life and the teachings of the Holy Qur'an, through discourses and conversation and not in any form of institutionalised instruction. This very aspect has also been admitted by the Ministry of Home Affairs in its Press Release dated March 31, 2020 states that "Devout Muslims from across the country and also from foreign countries visit the Markaz for religious purpose."
The blame, in the beginning, was against the organisers of the movement for having a congregation of hundreds of followers amidst a pandemic. Whether the organisers of Tablighi Jamaat, a religious organisation, had the medical foresight to cancel any events in early March or whether they had made efforts, as they claim to have made, in order to best handle the situation, are questions which will need proper appreciation of evidence and analysis of the day to day situation in controlling the pandemic as it occurred during the month of March 2020, before the court of law.
Surprisingly, on April 2, 2020, a blanket order was issued by the Ministry of Home Affairs, informed only through a press release by the Press Information Bureau, that as many as 960 foreigners had been 'blacklisted' and that directions are issued to the police departments of all states and UTs to register criminal cases against such foreign 'violators' belonging to the Tablighi Jamaat in their respective states/UTs.
The domino effect of this blanket direction was such that all around the country, police started registering cases against such deemed foreign violators wherever they could be found. As a result, there have been cases registered also against persons who did not even attend the alleged gathering at the Markaz in Nizamuddin, Delhi, held in early March. Men and women, young and old, people belonging to different nations, different classes, different walks of life, all having different languages, who were the guests in our country — where we take pride in the concepts of 'Vasudhaiva Kutumbakam' and 'Atithi Devo Bhawah' — were therefore either condemned to jail or to institution quarantine but the real effect was that during an ongoing pandemic they can't leave the country.
While in Delhi more than 900 foreigners had to undergo an extended quarantine of more than a month, upon their release from quarantine, the Government of Delhi, allowed Indian nationals to return to their homes, however, the custody of these stranded foreign nationals was handed over to the Delhi Police. It was only upon the intervention of Delhi High Court that such foreigners were handed over to the community to be temporarily shifted to places arranged by the community, under the watch of the Delhi Police.
In other states such as Tamil Nadu, Haryana, Karnataka, Maharashtra, etc., such foreigners had been incarcerated and released only after judicial interference. When the Madurai Bench of Madras High Court was dealing with such bail applications by these foreigners, it could not help but note the plight of the foreigners in being denied their return home. Ironically, however, while the High Court granted bail to such foreigners, by virtue of a hurried order passed by the State, it was directed that they shall reside in the 'special camp' at Puzhal, Chennai district, in the event of their release. This 'special camp' is located within the Puzhal Central Jail compound, making the orders granting bail practically redundant.
Four months on, when the Supreme Court asked the Government if cases had been analysed individually with reasoned orders being passed before cancellation of visas, the Government answered in the affirmative but failed to place on record any such order with regard to cancellation of visas of 34 petitioners belonging to 33 countries. When pressed from the Court, undated documents containing a single line intimation were filed by the Government displaying the absolute non-application of mind in cancellation of visas and initiation of criminal proceedings against such foreigners leading to the denial of the right of these foreigners to return to their respective homes.
On one hand, visas were revoked, passports were taken away and look-out-circulars issued against these deemed violators impeding with their right to travel abroad; on the other hand, they were blacklisted so that such foreigners couldn't return to India for the next 10 years, begging the question by many that how is any person not allowed to return to India at the same time when he/she is being stopped from leaving India in the first place.
The General Policy Guidelines relating to Indian Visa, under Paragraph 15, clearly specify that while foreign nationals granted any type of visa will not be permitted to engage themselves in Tabligh work, there shall also be no restriction in visiting religious places and attending normal religious activities like attending religious discourses. Therefore, activities that have been specifically prohibited are preaching religious ideologies, making speeches in religious places, distribution of audio or visual display/pamphlets pertaining to religious ideologies, spreading conversion etc. There is no bar in attending a Mosque. There is no bar in even attending a religious discourse so long as they are not indulging in preaching Islamic thought or spreading conversion, for which neither any proof nor allegation exists here.
Akin to the situation that Josef K had found himself on a Sunday morning in 'The Trial', the famous novel by Franz Kafka, thousands of foreigners have been left uncertain, unsure and unaware of what exactly is their crime that merits such a pinching punishment of denial to reach back to one's own home, own family and own nation.
The writer is an Advocate On Record practicing at the Supreme Court of India. Views expressed are personal