Religious profiling contrary to constitutional creed: Delhi HC on entry of foreign nationals

In a judgment passed on Friday, the Delhi High Court reiterated that even if the state chooses to deny foreign nationals entry into India, the decision cannot violate rights conferred under Articles 14 and 21 of the Indian Constitution..Justice Rajiv Shakdher emphasised that the rights conferred thereunder, i.e. the right to equality and the right to life and personal liberty, are applicable for foreign nationals as well..While the state is not expected to give foreign nationals unimpeded entry into the country, the Court observed,.“…if the State chooses to deny a foreign national’s request to enter India, the decision of the State can be tested on the anvil of Article 21 and 14 of the Constitution by Courts in India.”.Factual Background.The case before the Court had been brought on behalf of a Canadian national of Indian origin, Mohammed Abdul Moyed. After emigrating in 1997, Moyed had obtained Canadian citizenship in 2001. Notably, Moyed had an Indian wife and four children from that marriage, all of whom held Indian passports..To ease his entry into India, Moyed also held an Overseas Citizen of India (OCI) card..In December 2015, he had flown down to Hyderabad, on being told that his differently-abled son was suffering from a serious illness..However, on arriving at the Hyderabad airport, an immigration officer informed him that he could not enter the country as his entry had been banned by the Indian government. He was therefore forced to return to Canada..Seeking information regarding the reasons for being banned entry, Moyed wrote to the government in January 2016. Moyed also asked whether there were any cases registered against him, so that he could take recourse to legal remedies..Further, apart from stating his personal background, Moyed admitted to having attended Tablighi Jammat for self-discipline and spiritual reasons. The Tablighi Jammat is a non-political Islamic movement that urges Muslims to return to primary Sunni Islam, particularly in matters of rituals, dress and personal behaviour..After his 2016 representation did not receive any response, Moyed eventually filed RTI applications seeking the reasons for his ban. The RTI authorities, however, declined to share the information, citing that they were exempted from doing so, since the issue did not pertain to corruption or human rights..This, in turn, prompted Moyed to move a petition under Article 226 in the Delhi High Court, through his brother..Court’s observations.The High Court agreed with the submissions advanced for Moyed that the authorities had erred in denying him entry to the country without affording him an opportunity to be heard. This was held in light of the fact that Articles 14 and 21 apply to both Indian nationals and foreign nationals. The Court held,.“…the protection afforded by Article 14 and 21, amongst others, is also available to persons who are not citizens of India. .Therefore, though the petitioner…gave up his Indian citizenship, would also be entitled to invoke the provisions of Article 21 of Constitution of India on the ground that his personal liberty was fettered by denying him entry in the country…”.These protections assume more significance when a decision made by the Centre exposes the individual to grave civil consequences, Shakhder J held. In this light, it was observed,.“It is only when an authority which is conferred with powers to take a decision is open to affording an opportunity to persons qua whom it proposes to take a decision which has civil consequences that a wholesome and just decision can be rendered. .… In any event, if a pre-decisional hearing was not possible the respondents, to my mind, were obliged to grant in the very least a post-decisional hearing to the petitioner. The respondents have not, admittedly, done so and have placed him on a Blacklist which has exposed him to grave civil consequences.”.In the instant case, however, no such opportunity had been given to Moyed, before or after the decision to blacklist him was taken..The circumstances under which he was blacklisted itself were questioned. The Court was informed that the Superintendent of Police, Haryana had initiated the process to blacklist Moyed, claiming that he had previously violated Visa norms which required him to intimate the Home Ministry before doing or training to work for Tabligh Jammat..Moyed had neither done Tablighi work nor trained for the same. As noted in the judgment,.“The petitioner avers that he attended the Tableeghi jamat for self-discipline and self-reformation and meditation. It is not his case that he indulged in Tabligh activity or wanted to train in Tabligh work.”.Further, the Court found no merit in the state’s case that Moyed was involved in Tablighi activities to “strengthen Islamic brotherhood” and to “fight against western countries and the USA.”.“A plain reading of these assertions made in the said memorandum show that they are nebulous and based on surmises, at least, at this stage..The only factual aspect qua which, perhaps, there is little room for denial is that the petitioner visited certain mosques where Tabligh work was carried out….What has to be kept in mind is that the petitioner is residing in Canada and that if he was indulging in propagating the idea of uniting muslims to fight against the western countries and the USA surely the Canadian authorities would have taken note of these aspects. The petitioner seems to be moving around like any other free citizen of Canada.”.Further weakening the Centre’s case was the fact that Moyed still held a valid OCI under the Citizenship Act, 1955. In light of these observations, the Court ultimately held,.“Every violation of visa norm cannot possibly lead to banning a person from entering into the country unless there is material to show that the person concerned acted in a manner which was inimical to our national interest. As noted above, in this case no such material was placed before me.”.The Centre has been directed to re-examine the decision to blacklist Moyed’s name by affording him an opportunity to explain himself. The same is to be carried out within eight weeks..While delivering its verdict, the Court also cautioned that the state should bear in mind the doctrine of proportionality.. “The respondents while re-examining the petitioner’s case will also bear in mind the doctrine of proportionality which is deeply embedded in the constitutional ethos of this country. It forms part of the concept of judicial review. One of the facets of Article 14 is that the punishment accorded to a delinquent should be proportional to the offence committed by him.”.Before parting with the case, the Court made a note to also observe,.“It is to be borne in mind that profiling a person solely on the basis of the religion he or she practices is contrary to our constitutional creed.”.Read the judgment: