The Supreme Court on Thursday orally observed that there was “no question” of deporting “foreign Tablighi Jamaat members” if there were criminal proceedings against them.

The court was responding to pleas by the foreign nationals to deport them, saying they had not exactly harmed national security by taking part in a Tablighi Jamaat gathering amid the pandemic lockdown in the national capital. Deportation is the normal action taken by any government for visa violations, they said

“But if there are criminal cases pending, there is no question of deportation. It is the Union of India’s discretion,” Justice A.M. Khanwilkar, speaking for the three-judge Bench, remarked during a virtual court hearing.

The court’s oral observations came soon after the Ministry of Home Affairs (MHA) clarified in an affidavit that visas of 2,679 foreigners were cancelled on a “case-to-case basis”.

In the previous hearing, the court had asked the government to clarify whether the blacklisting and cancellation of visas of the foreign nationals was a blanket directive or care was taken to hear and decide the merits of each case individually.

“If individual orders have been passed, then these orders should be made available to the petitioners (foreign nationals). They (petitioners) will have to challenge the orders in the High Courts,” Justice Khanwilkar addressed Solicitor General Tushar Mehta.

But senior advocate Chander Uday Singh, for the foreign nationals who have petitioned the court, said the government had still not answered a “basic question”.

“The basic question here is why was show cause notice not issued to anyone before these orders were supposedly passed? We received emails only yesterday about the cancellation of visas. They were bland one-liner emails just saying that our visas were cancelled,” Mr. Singh retorted.

The MHA affidavit said 2,765 “foreign Tablighi Jamaat members” were blacklisted. It said these foreign nationals were now “spread” across the country. Hence, 205 FIRs had been registered against the foreigners by 11 States. It said 1,906 look-out circulars had been issued so far. The affidavit said 227 foreigners had left the country before the issuance of the look-out circulars.

It said nobody had been deported so far as criminal proceedings were on against them.

“Please ask the government to deport us. Blacklisting comes into the picture only if we try to come back to India; we want to leave,” Mr. Singh pleaded for the petitioners.

The court responded that they would have to make the necessary representation in this regard with the authorities concerned.

The Solicitor General countered that visa matters were “plenary sovereign functions” and not justiciable.

“Blacklisting is a sovereign function. These people face criminal proceedings. There are summary trials. There more than 900 cases from Delhi itself,” Mr. Mehta submitted.

The court scheduled the case for further hearing on July 9, giving time for the petitioners to file their rejoinders to the Ministry affidavit. The court directed the government to send the individual orders of visa cancellation to the foreign nationals in question.

Four petitions, including one by a Thai national who is seven months pregnant, have challenged the Centre’s decision of April 2 to blacklist foreign nationals from travelling to India for the next 10 years.

The decision by its very unilateral nature, infringes the principle of natural justice, particularly audi alteram partem (hear the other side) by blacklisting 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 plea filed by the Thai woman said.

The petitions contended that the en masse blacklisting of foreigners from 35 nations, without affording them an opportunity to prima facie defend themselves, was an egregious and blatant violation of Article 21 (right to life and personal liberty) of the Constitution.

It said the sudden blacklisting, apart from registration of FIRs against such foreigners, led to the forfeiture of their passports by State authorities, thereby resulting in a complete deprivation of their personal liberty sans procedure established by law.