“Law has reached in finest moments when it has freed men from the unlimited discretion of some ruler, some civil or military official, some bureaucrat. Where discretion is absolute, man has always suffered. At times it has been his property that has been invaded; at times his privacy; at times, his liberty of movement; at times, his freedom of thought; at times, his life. Absolute discretion is a ruthless master. It is more destructive of freedom than any of man’s other inventions.”
--Justice William Douglas in United States vs Wunderlick , 342 U.S. 98 (1951)
T HE notion that a state has an unfettered right to refuse visas to any alien it does not like has had its day. It is no longer valid. That power, like any other, is subject to judicial review. The state undoubtedly enjoys a large margin of discretion on security and defence which is not subject to judicial review. But if the refusal is, on the face of, it arbitrary or violative of an international treaty or of its own citizen, it can be struck down.
On January 18, the Vibrant Gujarat Summit began in Ahmedabad. Two days earlier, Chief Minister Vijay Rupani announced that “no delegation from Pakistan is coming”. The delegation was slated to take part in the Global Conclave of International Chambers—part of the summit—to be organised by the Gujarat Chamber of Commerce & Industry (GCCI), on January 19.
Separately, GCCI president Jaimin Vasa said that Pakistani delegates would not be attending the conclave as they were not able to get visas. “They are very eager to come here [for the summit]. They requested us to use our clout to see that visas are issued to them. But we have told them that that issuing visas is at the discretion of the Indian government,” Vasa said. He also said that about 35 trade and industry bodies from different countries, including the United States, the United Kingdom, Thailand, South Korea, Belgium, Canada and China would be taking part in the global conclave.
The State government tried to distance itself from the issue, with Rupani saying it was the GCCI that had invited the chambers from different countries. The confusion in the government over the issue was evident as Chief Secretary J.N. Singh had told reporters: “There is nothing wrong in inviting Pakistani delegates. We are happy they are coming... It is not that we have zero business relations with Pakistan.”
In 2013, a trade delegation from Pakistan came to Gujarat to participate in the summit, but it left without attending the main event because of tension on the border. No Pakistani delegation was invited for the investor meets held in 2015 and 2017.
This is utterly disgraceful. “It is not that we have zero business relations with Pakistan.” Trade goes on; India and Pakistan are not at war. This show of churlishness stems from a policy to box Pakistan in. It is self-defeating. Traders in Karachi are for the most part Gujaratis— Memons, Khojas and Bohras. Very many of them are migrants from Gujarat or their descendants who still speak Gujarati. Karachi boasts of Gujarati newspapers and periodicals. A Pakistan TV channel showed a famous actor, Latif Kapadia, reading a Gujarati newspaper to assess the “vatavaran”, the atmosphere. This diaspora is part of India’s soft power and part of the peace constituency in Pakistan. Instead of encouraging them, New Delhi snubs them for reasons that have nothing to do with national security. This is sheer abuse of power. In a country governed by the rule of law, any abuse of power is liable to be quashed.
This is by no means exclusively the doing of the Bharatiya Janata Party (BJP) government. Congress governments were no better. Pugwash enjoys international respect. A conference of Indian and Pakistani diplomats, academics and journalists it had organised with great effort had to be called off because the government of India so desired. Its weapon? Refusal of visa. For decades, the Home Ministry has applied “guidelines for security clearances for holding international conferences/seminars/workshops” in India. The one I could get hold of is dated September 1, 2000, in supersession of the one of 1986, which doubtless superseded several before and is now still in full force in its draconian sweep.
Briefly: “It would be necessary to obtain prior approval/clearance of MHA for holding an international conference/seminar/workshop etc., if: (i) the subject matter of the conference being organised is political, semi-political, communal or religious in nature, or is related to human rights; or (ii) the conference includes participants from Afghanistan, Bangladesh, China, Pakistan or Sri Lanka.” So much for support to the South Asian Association for Regional Cooperation (SAARC).
“It would also be necessary to obtain the prior clearance from MEA for holding an international conference, etc., if (i) the subject matter of the conference has a bearing on external relations; and (ii) the conference includes participants from Afghanistan, Bangladesh, China, Pakistan or Sri Lanka.” Thus, approval from both the Home Ministry and the Ministry of External Affairs is required if participants from the neighbouring countries are invited. The Home Ministry’s tentacles reach further. They even control matters “semi-political” or those “related to human rights”.
As for the grant of visa, “A foreigner participation should not be generally considered [ sic ] to attend conferences of political, semi-political, communal or religious nature or those related to human rights or sensitive technical subjects which can be utilised as a platform for any particular line of propaganda or where the subject matter of the conference is of a purely national or local character.” The guidelines were sent to universities, deemed universities, “sports/academic federations/associations” and “voluntary organisations” besides the Indian missions abroad. This, in the land of Gandhi and Tagore.
Seminar on federalism in J&K
The Institute of Social Sciences convened a seminar on “Indian Federalism at Work” in Srinagar on August 25-27, 2006. “Political clearance” for the seminar was sought in January 2006. Both N.N. Vohra, who was then the Government of India’s Special Representative in Jammu and Kashmir, and Deputy Secretary Amit Agrawal agreed. Halfway through the event, if not at the fag end, the institute’s director, Dr George Mathew, received a letter dated August 25 from the Joint Secretary (Coord.) of the Ministry of External Affairs. It said: “Approval for holding of [ sic ] this conference is given subject to the following conditions.” Quite apart from the sheer stupidity of an approval so belated as to be worthless, the conditions betrayed the mindset of its real author in New Delhi. The highly respected N.N. Vohra, who later went on to become the State’s Governor, had given his approval to the seminar at the very outset as an “extremely useful” endeavour. As if to undercut him, the letter stipulated that his association “with the initiative is at a personal level”. Vohra’s speech at the seminar was highly appreciated. Other conditions were: “Participation would be limited to those who have proven track record on issues relating to federalism—the theme of the conference; participation of those espousing violence and militancy to change the status quo should be absolutely avoided; preferably the choice of the venue should be other than Srinagar.”
One would have thought that Srinagar was a perfect venue to bring home to Kashmiris the working of India’s federalism. This writer was glad to note that academics and students from Kashmir University thronged the venue. It is a pity that there are not more such exchanges. That is the best way to engage Kashmiris. Distinguished Pakistanis like I.A. Rehman and Mubashir Hassan participated. Only one who prefers repression would baulk at this idea and send that letter of August 25, 2006. Its last line was a giveaway: “This issues with the approval of Prime Minister’s Office.” Who in the PMO, pray? For, on January 13, 2006, an official in the PMO itself had accorded a warm approval to the proposal. The PMO’s official who inspired the letter of August 25, 2006, sought to reverse that decision.
This episode, revealing in itself, should invite attention to two larger issues. One is the offensive Office Memo on all international visas. The other is refusal of visas to foreign intellectuals. This violates the Indian citizen’s fundamental right to freedom of speech, which includes the right to know.
The seminar was not on Kashmir as such but on “Indian Federalism at Work”. Kashmir was made part of this wider context. Only a wooden-headed official would cavil at it. He was acting in flat contradiction to Prime Minister Mamnohan Singh’s policy on Kashmir. His Dialogue with President Pervez Musharraf was in full swing in August 2006.
The letter of August 25, 2006, was from Yogesh Gupta, Joint Secretary (Coord.) in the Ministry of External Affairs. It was addressed to George Mathew, whose dedication and hard work raised the institute’s prestige and made the Srinagar seminar a great success. I reproduce its text below:
“Reference your letter to seek political clearance for holding a conference on ‘Indian Federalism at Work’ at Sher-e-Kashmir International Conference Centre, Srinagar from 25-27 August 2006.
Approval for holding of this conference is given subject to the following conditions.
(i) Institute of Social Sciences (ISS) will not accept any foreign funding to hold this conference; (ii) There will be no official endorsement or official funding from the Government of India (GOI) to this conference; (iii) The association of Shri N.N. Vohra with this initiative is at a personal level and has no connection with his role as the Special Representative on J&K Dialogue; (iv) There is no official GOI participation in this conference or official participation from other countries; (v) Invitation to participation does not guarantee automatically grant of visa for participation in the conference, the latter will be processed by the concerned departments as per their procedures; (vi) Participation would be limited to those who have proven track record on issues relating to federalism—the theme of the conference; (vii) Participation of those espousing violence and militancy to change the status quo should be absolutely avoided; (viii) Preferable the choice of the venue should be other than Srinagar. This issues with the approval of Prime Minister’s Office.”
This could only have been issued by M.K. Narayanan, the National Security Adviser, who was known to be a hardliner on Kashmir. Justice J.S. Verma’s remarks on him as the Intelligence Bureau’s Director at the time of Rajiv Gandhi’s assassination were unfair. But he was culpable on other counts. His performance during the Mumbai blasts on November 26, 2008, earned him what is called in officialese “a kick upstairs”. He was made Governor of West Bengal in the good Swadeshi tradition for his stellar performance.
It was written on August 25, the day the seminar began. No one alleged official participation. Credentials of participants were surely for the host, Mathew, to judge, not Narayanan. Mathew did not need to be warned against participation of militants, surely. And, pray, why the objection to the venue? Did Narayanan wish it to be held in Pahalgam or Budgam? Very likely, in Jammu.
As it happened, the host kept the doors open. It was heart-warming to see students and faculty members of Kashmir University fill the seminar hall and the floors of the hotel so enthusiastically with just one desire—to communicate; to communicate with the people with whom New Delhi bars communication. Farooq Abdullah heartily supported the venture. The Governor, Lt. General S.K. Sinha, a rabid communalist, hosted a dinner for the participants. The only one out of the show was Narayanan.
None of the so-called “guidelines” profess to be made in pursuance of law, an Act of Parliament. They are purely an executive order, no more. The Act can be challenged, more so, a mere executive order, especially if it is in breach of an international treaty on the citizens’ right to know which includes the right to meet, the right to communicate.
Agreement on shrines
On August 1 and 4, 1953, India and Pakistan concluded an agreement on preserving religious shrines. The Indian delegation was led by Mehar Cand Khanna, Adviser, Ministry of Rehabilitation, on whom Dr B.R. Ambedkar showered epithets that properly fell short of sheer abuse. Khanna had rehabilitated himself adroitly. Pakistan’s delegation was led by Ahmed E.H. Jaffer, Adviser, Ministry of Refugees and Rehabilitation, but his overbearing understudy was the bluff, hearty and upright Ghulam Ahmed, Secretary, Ministry of Interior. As Director of Intelligence Bureau he told off the Viceroy Lord Linlithgow, in reply to Prime Minister Winston Churchill’s daft query whether there was any evidence of collaboration between Gandhi and the Japanese. Ghulam Ahmed’s reply was a flat, unequivocal “None”.
The meeting was held “at Karachi in the room of Mr. G. Ahmed”. In its first paragraph, the accord read thus: “(o) Every effort should be made to ensure that places of religious worship in both countries are properly protected and maintained and their sanctity preserved particularly in the case of buildings of historical importance; buildings which have been damaged should be repaired.” India broke this accord when it allowed the demolition of the Babri Masjid on December 6, 1992.
The second paragraph is of current reference: “(ii) increased facilities for visits to places of worship in both countries should be granted to pilgrims on their auspicious days; the Sewadars and Khadims at such places of worship should be granted facilities for residence and adequate protection.” How do you “provide facilities for visits to places of worship” without granting visas to the pilgrims?
There is a firm legal basis for challenging those “guidelines”. A ruling by the U.S. Supreme Court was given in 1972 during the Cold War. It is nearly half a century old, 47 years to be exact. It was a split decision. It is the dissenting judges who emerge with credibility. The Supreme Court of India has ruled in a series of cases that the right to free speech and expression includes the right to receive information. A full bench of the Kerala High Court, therefore, struck down an order that said that detainees shall not “receive or purchase Mao literature”. It ruled that even “a person under detention can continue to give expression to his views, indulge [ sic ] in writing books, in reading books and in learning subjects and generally in acquiring knowledge”.
India is bound by a treaty obligation to respect this right. Successive Attorneys General of India have appeared before the Human Rights Committee, set up under the International Covenant on Social and Political Rights, to explain and defend India’s reports to the U.N. on its observance of the rights embodied in the covenant (not least its Article 19 which explicitly covers the right to “receive” information).
The basic issue, therefore, boils down to a narrower one—namely, whether this right is confined to reception only of books, the print media, telecasts, radio broadcasts and the Internet or extends to personal contacts as well. Is not the citizen entitled, in this age of globalisation, to seek to broaden his horizons or deepen his insights by personal interaction with persons outside his country?
The U.S. Supreme Court ruled unanimously that the right personally to interact with others is an integral part of the rights to know. The bench split (6-3) only on the state’s right to prevent an alien, a Marxist Belgian scholar Ernest Mandel, from entering the country. The majority ruled it could do so. But it rejected the government’s plea that American scholars who had invited him to a conference had “free access to Mandel’s ideas through his books and speeches, and because ‘technological developments’, such as tapes or telephone hook-ups, readily supplant his physical presence”.
Eight American professors in various fields of social sciences joined Mandel in a civil suit against the government. As American citizens, they asserted their right under the First Amendment (guarantee of free speech) to “learn his views and engage him in a free and open academic exchange”.
The district court ruled in their favour (2-1). Two judges held that although Mandel had no personal right to enter the U.S., American citizens had a First Amendment right to have him enter and to hear him explain and seek to defend his views. The court held that the pertinent statutory provisions were invalid. The defendants were enjoined from enforcing them so as to deny Mandel admission as a non-immigrant visitor.
The Supreme Court reversed this decision. But the majority was concerned only with the state’s power to exclude aliens. The citizen’s First Amendment right to hear him and exchange ideas with him was explicitly recognised. There was, thus, no question of seeking the state’s prior approval for organising the conference or inviting the alien. The state stepped in only when he applied for a visa.
Grant or refusal of a visa to an alien is a power altogether different from the claimed power to grant or refuse permission to hold an international conference or seminar—irrespective of the subject to be discussed or the participants to be invited.
Speaking for the majority, even Justice Blackmun said: “The government also suggests that the First Amendment is inapplicable because appellees have free access to Mandel’s ideas through his books and speeches, and because ‘technological developments’, such as tapes or telephone hook-ups, readily supplant his physical presence. This argument overlooks what may be particular qualities inherent in sustained, face-to-face debate, discussion and questioning. While alternative means of access to Mandel’s ideas might be a relevant factor were we called upon to balance First Amendment rights against governmental regulatory interests ... we are loath to hold on this record that existence of other alternatives extinguishes altogether any constitutional interest on the part of the appellees in this particular form of access.”
Right to listen
In plain words, there is a constitutional right to listen in person. Justices William Douglas, Thurgood Marshall and Brennan vigorously dissented. “Dr Ernest Mandel, who is described as ‘an orthodox Marxist of the Trotskyist school’ has been admitted to this country twice before—once as a working journalist in 1962 and once as a lecturer in 1968. The present case involves his third application, made in 1969, to attend a conference at Stanford University on Technology and the Third World. He was also invited to attend other conferences, one at MIT, and to address several universities. Princeton, Amherst, the New School, Columbia, and Vassar. This time the Department of Justice refused to grant a waiver recommended by the State Department; and it claims that it need not state its reasons, that the power of the Attorney General is unfettered.
“Dr Mandel is not the sole complainant. Joining him are the other appellees who represent the various audiences which Dr Mandel would be meeting were a visa to issue. While Dr Mandel, an alien who seeks admission, has no First Amendment rights while outside the Nation, the other appellees are on a different footing. The First Amendment involves not only the right to speak and publish but also the right to hear, to learn, to know. Martin v Struthers , 319 US 141, 143, 87 L Ed 1313, 1316, 63 S Ct 862; Stanley v Georgia , 394 US 557, 564, 22 L Ed 2d 542, 549, 89 S Ct 1243.
“Can the Attorney General under the broad discretion entrusted in him decide that one who maintains that the earth is round can be excluded? That no one who believes in the Darwinian Theory shall be admitted? That those who promote a Rule of Law to settle international differences rather than a Rule of Force may be barred? That a genetic biologist who lectures on the way to create life by one sex alone is beyond the pale? That an exponent of plate tectonics can be barred? That one should be excluded who taught that Jesus when he arose from the Sepulcher, went east (not up) and became a teacher at Hemis Monastery in the Himalayas?
“I put the issue that bluntly because national security is not involved. Nor is the infiltration of saboteurs. The Attorney General stands astride our international terminals that bring people here to bar those whose ideas are not acceptable to him. Even assuming, arguendo, that those on the outside seeking admission have no standing to complain, those who hope to benefit from the traveller’s lectures do....
“As a matter of statutory construction, I conclude that Congress never undertook to entrust the Attorney General with the discretion to pick and choose among the ideological offerings which alien lecturers tender from our platforms, allowing those palatable to him and disallowing others. The discretion entrusted to him concerns matters commonly within the competence of the Department of Justice—national security, importation of drugs, and the like.”
Justice Marshall, with whom Justice Brennan concurred, said: “Dr Ernest Mandel, a citizen of Belgium, is an internationally famous Marxist scholar and journalist. He was invited to our country by a group of American scholars who wished to meet him for discussion and debate. With firm plans for conferences, colloquia and lectures, the American hosts were stunned to learn that Mandel had been refused permission to enter our country. American consular officials had found Mandel ‘ineligible’ to receive a visa under Sc 212 (a) (28) (D) and (G) (v) of the Immigration and Nationality Act of 1952, 66 Stat 185 which bars even temporary visits to the United States by aliens who ‘advocate the economic, international, and governmental doctrines of world communism’ or ‘who write or publish ... any written or printed matter ... advocating or teaching’ such doctrines. Under Sec. 212 (d) (3), the Attorney General refused to waive inadmissibility.
“I, too, am stunned to learn that a country with our proud heritage has refused Dr Mandel temporary admission. I am convinced that Americans cannot be denied the opportunity to hear Dr Mandel’s views in person because their Government disapproves of his ideas. ... The activity of speakers becoming listeners and listeners becoming speakers in the vital interchange of thought is the ‘means indispensable to the discovery and spread of political truth’. Reading is not enough. Discussion is indispensable to the discovery of the truth. Exclusion is permissible only if there is “a compelling governmental interest”.
“Dr Mandel has written about his exclusion, concluding that ‘[i]t demonstrates a lack of confidence’ on the part of our government ‘in the capacity of its supporters to combat Marxism on the battleground of ideas’. He observes that he ‘would not be carrying any high explosives, if I had come, but only, as I did before, my revolutionary views which are well known to the public’. And he wryly notes that ‘[i]n the nineteenth century the British ruling class, which was sure of itself, permitted Karl Marx to live as an exile in England for almost forty years’.
“It is undisputed that Dr Mandel’s brief trip would involve nothing but a series of scholarly conferences and lectures. The progress of knowledge is an international venture. As Mandel’s invitation demonstrates, individuals of differing world views have learned the ways of cooperation where governments have thus far failed. Nothing is served—least of all our standing in the international community—by Mandel’s exclusion. In blocking his admission, the government has departed from the basic traditions of our country, its fearless acceptance of free discussion. By now deferring to the Executive, this Court departs from its own best role as the guardian of individual liberty in the face of governmental overreaching. Principles of judicial restraint designed to allow the political branches to protect national security have no place in this case. Dr Mandel should be permitted to make his brief visit.”
This applies a fortiori to the cases of refusal of visas to pilgrims who wish to visit the dargah at Ajmer of Khwaja Moinuddin Chishti (Gharib Nawaz) or Nizamuddin Auliya in New Delhi, participants at seminars, book fairs and sundry others where no issue of security is violated.
On a petition challenging refusal for visa, the state will have to plead “national security” and justify it in court. Unless that is involved, the refusal and the guidelines can be, should be, struck down.