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Friday, Apr 01, 2005

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Legality of denying visa

By Rajeev Dhavan

The controversy over the U.S. denial of a visa to Narendra Modi cannot be raised to the level of an international crisis.

IN 1964, Peter Griffiths became the Member of Parliament from Smethwick in England after an ignominious racist campaign won him his election. In response, the then British Prime Minister famously retorted that Mr. Griffith would "serve the rest of his term (in Parliament) ... as a parliamentary leper." Those politicians responsible for genocidal violence, fascism and communal strife are political outcasts — both in and out of the country in which they live. Many people feel that Narendra Modi falls in this class of politicians and deserves to be treated as such.

This view is not shared by the BJP and others who revere Mr. Modi as an electoral mascot. Since the Gujarat riots of 2002, report after report criticised his Government for inaction, indifference and complicity whilst Gujarat witnessed riots, arson, pillage and murder. The view was supported by the National Human Rights Commission, which did not get responsible responses from the Gujarat Government. Nothing could have been more embarrassing for Mr. Modi than the Supreme Court speaking of `modern-day Neros' when it transferred the Best Bakery case to Maharashtra because it believed Gujarat could not provide justice in the case in which Muslims were torched alive. Despite this, the BJP stood by Mr. Modi. When the young BJP politician, Smriti Irani, raised the banner of revolt in 2004 to demand Mr. Modi's removal, she had to withdraw her demand within 12 hours of making it! But although many believe that Mr. Modi and his Government have brought shame to both Gujarat and India, the BJP maintains that as Chief Minister of a BJP-ruled State, he is officially entitled to universal respect and concern.

The present controversy has arisen because on March 18, 2005, Mr. Modi was denied a visa for a private visit to the United States on the invitation of the Asian-American Hotel Owners' Association. As far as the Indian law is concerned, even after Maneka Gandhi's case (1978), the right to travel abroad has not been recognised as fundamental. American authorities maintain they acted according to law. Under Section 214(b) of the Immigration and Nationality Act, Mr. Modi was denied a diplomatic visa because he was on a private visit. Likewise, Section 212(a)(2)(g) obliges the U.S. immigration authorities to deny a visa to "any government official who was responsible for, or directly carried out, at any time, particularly severe violations of religious freedom." The law is unusually phrased, but is not, by itself, unusual. Instead of the general category of `undesirable alien,' this provision is specific and concerned with the complicity of government officials in "severe violations of religious freedom." Since Mr. Modi was not on a diplomatic visit, this clause applied.

How is a U.S. official to go about his business of enforcing such a law? Can he ignore it? Or must he make a reasonable decision on the material available to him? Should the U.S. Embassy in India have asked Mr. Modi to present himself for interrogation? Or left this for his arrival in New York? On March 18, Mr. Modi asked: "On what judicial evidence has the U.S. based its conclusion about the violation of religious freedom?" But judicial evidence is not necessary in such cases.

In 1998, the U.S. set up an official Commission under the International Religious Freedom Act which reports on denial of religious freedom throughout the world. Whether the U.S. should become the moral policeman of the world is another matter. The Report of the U.S. Religious Commission of 2002 concluded that the Gujarat Government's complicity in perpetrating religious atrocities "was tacit if not explicit."

In 2003, the U.S. Commission drew further conclusions on further actions and inactions in Gujarat. In May 2004, the Commission criticised Mr. Modi by name and even called upon the BJP to denounce the RSS and anti-religious policies to recommend that India be treated as a `Country of Particular Concern.' These reports have to be read with the U.S. Department of State's Country Reports on Human Rights in India from 2002 — specifically referring to Gujarat and Mr. Modi's "disrespectful remarks about Muslims" in his speeches. On March 15, 2005, the U.S. Religious Commission sent a special report advising against Mr. Modi's visit. More significantly, on the same day, the House of Representatives passed a resolution saying it "condemns the conduct of Chief Minister Narendra Modi for condoning or inciting bigotry and intolerance against any religious group in India, including people of the Christian and Islamic faiths." This is a resolution by one of the Houses of the highest legislature in America.

Indians may not like these reports. Significantly, for the years 2002-04, neither the NDA Government at the Centre nor Mr. Modi made a public issue of these reports or the indictments in them. In any event, no U.S. immigration official discharging his duty under Section 212 of the Immigration Act could possibly ignore these reports. And if they are taken into account, there can be little doubt that under the American law, the decision to deny Mr. Modi entry into the United States was valid and proper.

Now can it be argued that there was a serious violation of international law and policy? The preamble to the Vienna Convention on Diplomatic Relations, 1961, emphasises that "the purpose of (diplomatic) ... privileges and immunities is not to benefit individuals but to ensure the efficient performance of the function of diplomatic missions as representing (nation) states." Quite apart from the fact that diplomatic status could have been refused, Mr. Modi has no special privileges as an individual and was not representing India. He was not even on an official or trade mission. He was merely an individual on a private visit.

However, under pressure from the BJP and its chorus of voices, on March 18, the Centre protested saying the U.S. Government's action "displays lack of courtesy and sensitivity towards a constitutionally elected Chief Minister of a State in India." Is this really an international discourtesy? All countries retain the right to ostracise both individuals and countries who they feel are unworthy. By limiting its boycott to the denial of an individual visa, America has stayed within diplomatic limits to enforce its immigration law. Mr. Modi's view that this was an insult to the Indian Constitution is not even shared by many Indians who believe that it is Mr. Modi's Government that has undermined constitutional governance in India.

America's decision on Mr. Modi does not necessarily open up a diplomatic Pandora's Box. India too retains the right to deny entry to such government officials of other countries whose entry it considers undesirable. This is one moral right that every nation is obliged to retain. Some states go further. They have passed extra-territorial laws to try dictators for international crimes against human rights even if committed outside the territories of these states.

These laws were invoked against President Augusto Pinochet who sought cover of extradition procedures. Apart from its Alien Tort Claims Act of 1789, the U.S. also enacted the extra-territorial Torture Victim Protection Act, 1992. India claims jurisdiction over its own citizens abroad and wants to extend this to various classes of international criminals. Along with America, India has not objected to the various international tribunals on atrocities in Rwanda and former Yugoslavia but refuses to accede to the jurisdiction of the International Criminal Court.

India is answerable to various human rights committees set up by the United Nations to which periodic reports are submitted by the Government. In other words, India broadly accepts that there are valid international law norms that can be taken into account while adjudging the quality of a nation's governance. India is not answerable to America for what it does but it is answerable to the peoples of the world. There are moral humanitarian issues on which all peoples and all nations are entitled to take a stand.

The controversy over the U.S. denial of a visa to Mr. Modi cannot be raised to the level of an international crisis. It is just another reminder to the politicians of the world that they are not just accountable to their own electorates but to the peoples and nations of the world who must eventually decide who must be ostracised as a political outcast and who must not. America's denial of a visa to Mr. Modi was neither a constitutional affront nor a diplomatic insult to India. Mr. Modi has no social, political or diplomatic immunity to shield him from what the global community thinks of him. Mr. Modi is out of line, not the U.S. Government.

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