The Supreme Court on Monday asked the government whether a mechanism can be devised by which nine foreign citizens facing trial for allegedly violating lockdown norms to attend a gathering in the National Capital can file “affidavits of apology” as a precondition to close the cases against them.

A Bench led by Justice A.M. Khanwilkar said the court would give priority to their right of liberty.

The nine are the only ones left facing trial among the total 34 foreigners who had moved the Supreme Court.

Appearing before a Bench led by Justice Ashok Bhushan, Solicitor General Tushar Mehta said that of the 34 petitioners, two have no cases against them and had approached the apex court owing to some “misconception”. Trial was over for 23 of the remaining 32 of the petitioners. All the 23 had pleaded guilty under the plea-bargaining process and were set free by the magistrate court after paying a fine. Only these nine were left.

Senior advocates C.U. Singh and Menaka Guruswamy said the nine were compelled to face trial because conviction or pronouncement of guilt, even by plea-bargaining, would visit them with serious consequences in their native countries.

Madras HC action

It was Mr. Singh who suggested an alternative to a court trial for the nine foreign citizens by referring to how the Madras High Court had allowed lockdown violators to file “affidavits of apology” in court after which the police closed the cases against them.

Justice Khanwilkar asked Mr. Mehta to respond to this suggestion, saying “we will prioritise the liberty issue. We will also address the issue of plea-bargaining having serious consequences [for the nine petitioners]”.

The Ministry of Home Affairs (MHA) had clarified in an affidavit that visas of 2,679 foreigners were cancelled on a “case-to-case basis”.

In the previous hearing, the court 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.

Mr. Mehta said the power to blacklist was a sovereign function. The scope of judicial review to very narrow.

The MHA affidavit said 2,765 “foreign Tablighi Jamaat members” were blacklisted. They were now “spread” across the country. Hence, 205 FIRs were registered by 11 States. Look-out circulars numbering 1,906 have been issued so far and 227 foreigners had left the country before the issuance of the circulars. Nobody had been deported so far.

Four petitions, including one by a Thai national who is seven months pregnant, had 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, infringed 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 deprived 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.