IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 WP(C).No. 29572 of 2008(U) -------------------------- PETITIONERS: --------------- 1. FR.DR.JOHNS ABRAHAM KONAT PRIEST TRUSTEE, NALANKARA ORTHODOX SYRIAN CHURCH KONATTU, PAMPAKUDA PO., ERNAKULAM. 2. DR.GEORGE JOSEPH, ASSOCIATION SECRETARY CATHOLICATE OFFICE, DEVALOKAM, KOTTAYAM-686038. BY ADV. SRI.GEORGE THOMAS (MEVADA) RESPONDENTS: --------------- 1. UNION OF INDIA, REP. BY THE SECRETARY MINISTRY OF HOME AFFAIRS, NEW DELHI. 2. STATE OF KERALA, REP. BY CHIEF SECRETARY GOVT.SECRETARIAT, TRIVANDRUM. 3. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, TRIVANDRUM. 4. THE DISTRICT COLLECTOR, ERNAKULAM. 5. THE COMMISSIONER OF POLICE, COCHIN CITY, ERNAKULAM. 6. THE JACOBAYA SURIYANI CHRISTIANI SABHA, PATRIARCH CENTRE, PUTHENCRUZ, REP. BY ITS SECRETARY 7. IGNATIOUS ZAKA-1, PATRIARCH CENTRE, PUTHENCRUZ. WP(C) 29572/08 : 2 : R1 BY SRI.P.PARAMESWARAN NAIR, ASSISTANT SOLICITOR GENERAL OF INDIA. R2 TO R5 BY GOVT. PLEADER SMT.ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.Ravindran, J. ===================== W.P(C).No.29572 of 2008 ===================== Dated this the 15th day of October, 2008. JUDGMENT The petitioners are members and office bearers of the Malankara Orthodox Syrian Church. They complain that the seventh respondent, the Patriarch of Antioch and the spiritual head of the Jacobite Syrian Christan Church, who is scheduled to visit the State of Kerala as a State Guest from 17th October, 2008 to 23rd October, 2008 on a tourist visa, will participate in various public functions including functions of a religious nature. The petitioners contend that under the provisions of the Foreigners Act, 1946, the Foreigners Order, 1948, the Visa Manual and the instructions issued by the Government of India, the seventh respondent who has been granted a tourist visa cannot indulge in religious activities. The petitioners have in this Writ Petition prayed for the following relief: “(i) Issue writ of mandamus or other appropriate writ order direction compelling the respondents 1 to 5 to ensure that the 7th respondent, Ignatious Zaka-I, does not indulge in religious activities in violation of the Foreigners Act, 1946 and orders issued thereunder.” 2. Sri.George Thomas Mevada, the learned counsel appearing for the petitioners submits that the Ministry of Home Affairs of the Government of India have in circular No.25022/144/97.F-1 dated WP(C) No.29572/08 -: 2 :- 12.6.1997 issued to all Indian Missions/Posts abroad clarified that under the provisions of para 31 of the Visa Manual, tourist visas can be granted only to foreigners who have no residence or occupation in India and whose sole objective in visiting India is recreation, sight seeing and casual visits to friends and relatives. The learned counsel appearing for the petitioners further submits relying on letter No.25022/82/96-F.I dated 10.4.1996 issued by the Ministry of Home affairs, Government of India to the Home Secretaries of all State Governments and Union Territory Administration that a foreigner on a tourist visa cannot indulge in religious activities. 3. I have heard Sri.P.Parameswaran Nair, the learned Assistant Solicitor General of India as well. The learned Assistant Solicitor General of India made available to me a copy of the circular dated 12.6.1997 issued by the Ministry of Home Affairs, Government of India to all Indian Missions/Posts abroad and also a copy of the letter dated 10.4.1996 issued by the Ministry of Home Affairs, Government of India to the Home Secretaries of all State Governments and Union Territory Administration, which read thus: “Confidential F.No.25022/144/97.F-1 dated 12.6.1997: Government of India/Bharat Sarker Ministry of Home Affairs/Grih Manatralaya New Delhi 110003, dated 12.6.97 To All Indian Missions/Posts Abroad WP(C) No.29572/08 -: 3 :- Subject:- Validity of Short-term Tourist Visas. Sir, In accordance with the provisions of Para 31 of the Visa Manual, tourist visas can be granted only to foreigners who have no residence or occupation in India and whose sole objective in visiting India is recreation, sight seeing, casual visits to friends and relatives. As per the existing instructions, the following two categories of short-term visas are granted to the foreigners:- (i) Three moths tourist visa counts from date of entry; and (ii) Six months tourist visa counts from date of issue. 2. The matter regarding having two different categories of short-term visas has been examined and it has been decided that three months tourist visa should be done away with. It is accordingly requested that henceforth, only six months tourist visa may be granted to the foreigners who have no residence or occupation in India and whose sole objective in visiting India is recreation, sight seeing, casual visits to friends and relatives. The six months tourist visa shall be non-extendable and non-convertible which fact should be conspicuously mentioned on the visa itself. This visa shall count from date of issue. The above instructions shall come into force with immediate effect. 3. Hindi version will follow. Yours faithfully Sd/- (M.P.Sajnani) Deputy Secretary to the Govt. of India.” WP(C) No.29572/08 -: 4 :- “No.25022/82/96-F.1 GOVERNMENT OF INDIA MINISTRY OF HOME AFFAIRS *** 10.4.1996. To Home Secretaries of all the State Governments and U.T. Administration. “It has come to notice that some foreigners who enter India on the strength of tourist visas, indulge in religious/Tabligh work against the Visa rules/regulations and thus render themselves to action under the Foreigners Act, 1946. State Governments are required to keep a watch on the activities of such foreigners and as and when any foreigner coming on tourist visa is found indulging himself in religious activities/Tabligh work, action should be taken against him under the Foreigners Act and he should be deported to the country of his origin under the powers already delegated to the State Govts. A report should also be sent to this Ministry so that such persons are put on 'Prior Reference Category' for the purpose of grant of visa to them in future. Sd/- (SUBHASH MEHTANI) Under Secretary to the Govt. of India.” 4. The learned Assistant Solicitor General of India submitted with reference to the said circular and letter that a foreigner on a tourist visa cannot indulge himself in religious/Tabligh activities. The learned WP(C) No.29572/08 -: 5 :- Assistant Solicitor General of India also submitted that if the terms on which a foreigner has been issued tourist visa are violated it is for the State Government concerned to monitor the same and take proper action. 5. This Writ Petition proceeds on the basis that as members of the Malankara Orthodox Syrian Church, the petitioners have a right to prevent the seventh respondent from indulging in religious activities during the period of his stay in the State of Kerala from 17.10.2008 to 23.10.2008. The petitioners are members of the Orthodox faction of the Malankara Orthodox Syrian Church which does not recognise the Patriarch of Antioch as their temporal or spiritual head. The petitioners rely on the decision of the Apex Court in P.M.A. Metropolitan v. Moran Mar Marthoma - A.I.R. 1995 S.C. 2001 to contend that Patriarch of Antioch has no temporal powers over the Malankara Orthodox Syrian Church and that the spiritual powers of the Patriarch of Antioch can be exercised by the Catholicose in accordance with the 1934 Constitution. The petitioners contend that the seventh respondent had participated in the programmes listed out in Ext.P1 news report that appeared in the Indian Express daily dated 17.9.2004 during his last visit, violating the visa norms. It is seen from Ext.P2 judgment that some other persons had moved this Court by filing W.P.(C)No.27372 of 2004 on that occasion to ensure that the seventh respondent, the Patriarch of Antioch does not violate the Foreigners Act, 1946 and the Foreigners Order 1948. By WP(C) No.29572/08 -: 6 :- Ext.P2 judgment delivered on 20th September, 2004, a Division Bench of this Court disposed of the said Writ Petition in the following terms: “The petitioners seek a direction to respondents 1 to 5 to ensure that the 7th respondent Ignatious Zaka-I, Patriarch of Antioch, does not indulge in religious activities in violation of the Foreigners' Act, 1946 and orders issued thereunder. 2. It is submitted that he has obtained only a tourist visa. Therefore, he has to confine his activities in accordance with the provisions contained in the Visa Manual. Whether there is violation of the provisions contained in the Foreigners Act or the provisions of the Visa Manual, is a matter for the Government to consider and do the needful. We are not satisfied that a stage has attained for this Court to step in now. Writ petition is, therefore, dismissed.” 6. In the instant case, the petitioners proceed on the assumption that the seventh respondent who had violated the visa conditions during his visit to the State of Kerala on an earlier occasion will indulge in religious activities and that it will disrupt the communal harmony. The petitioners contend that respondents 1 to 5 are in law bound to prevent the seventh respondent from indulging in religious activities. 7. I have perused the averments made by the petitioners in the Writ Petition. I have also gone through the documents produced along with the Writ Petition. No material has been produced before me to show WP(C) No.29572/08 -: 7 :- that during his visit from 17.10.2008 to 23.10.2008 the seventh respondent will be indulging himself in religious activities. The seventh respondent is the spiritual head of the Jacobite Syrian Christian Church though a section of the Malankara Orthodox Syrian Church in the State of Kerala does not recognise him as their spiritual and temporal head. The circular issued by the Government of India dated 12.6.1997 to all Indian Missions/Posts abroad does not stipulate that a foreigner on a tourist visa cannot indulge in religious activities. It is only in the letter dated 10.4.1996 that the State Governments were directed to ensure that a foreigner on tourist visa does not indulge himself in religious activities/Tabligh work. A reading of the letter dated 10.4.1996 will disclose that the restriction on a foreigner in India on a tourist visa is on indulging himself in religious activities/Tabligh work. The term “religious activities” has got a definite meaning. The petitioners have not produced any material to show that during his earlier visit to the State of Kerala, the seventh respondent indulged himself in religious activities. The seventh respondent is the spiritual head of the Jacobite Syrian Christian Church. The seventh respondent's right to participate in religious functions is not curtailed by the circular dated 10.4.1996. He certainly has a right to offer worship in the Church. The only restriction is on indulging himself in religious activities. The term religious activity occurring in the letter dated 10.4.1996 extracted above can in the context in which it is used, namely, in association with Tabligh work, WP(C) No.29572/08 -: 8 :- mean only an act of proselytization. In the instant case, no cogent material has been produced before this Court to establish that the purpose of the visit of the seventh respondent is to indulge himself in religious activities, of the kind prohibited in the letter dated 10.4.1996. 8. In the absence of any cogent material to show that the seventh respondent is likely to indulge himself in such religious activities, I am of the considered opinion that the grievance voiced by the petitioners is imaginary and unreal and rested on mere surmises and conjectures. On the materials on record, the petitioners are not entitled to the reliefs sought for. This Writ Petition is in my opinion an unwelcome gesture by Indian citizens residing in Gods Own Country that is Kerala, to the spiritual head of thousands of Jacobite Syrian Christians, the world over. This Writ Petition accordingly fails and is dismissed in-limine. P.N.Ravindran, Judge. ess 15/10 WP(C) No.29572/08 -: 9 :- Copy: All Immigration Check posts (List attached) 2. Shri.P.N.Dixit, Deputy Director (I) IB. 3. Ms. Homai Saha, Director (CPV) Ministry of External Affairs, New Delhi. 4. Home Secretaries of State Govt. and UT Admns. 5. Department of Tourism.”