(Fwd) Banning Foreign Scholars in India.

[Robert Zydenbos]

This is forwarded from the RISA-L.

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Subject:                Banning Foreign Scholars in India.

Economic and Political Weekly, Vol XXXIV, No 30 (July 24, 1999): 2048-2049

Civil Liberties
Banning Foreign Scholars by A G Noorani

By a recent government order a foreign national intending to attend workshop
seminars has to seek clearance from the home ministry. This order is an
assault on the autonomy of Indian universities, already under stress.

It bagan in the 1970s when T N Kaul was ambassador to the US. There was a
sharp decline in the grant of visas to American scholars to visit India.
Coinciding as it did with the US resumption of links with China, it led to a
significant diminution of interest in India. Be it said to the credit of
American academia that it was sharply critical of the Nixon-Kissinger policy
on Bangladesh.

If a restrictive visa policy marked Phase I, in the next phase, a decade
later, new curbs were put on the appointment of foreign nationals in Indian
universities. Devsagar Singh's report in Indian Express of June 7, 1985
provided the details: "The government of India has put new restrictions on
the appointment of foreign nationals in Indian universities, their research
programme and movement into sensitive areas. All the universities have been
asked to keep a strict vigil on their activities and implement the
guidelines of the government strictly". He amplified: "Appointments of
foreign nationals could be made only in very exceptional circumstances after
obtaining prior clearance of the government... Even for inviting a foreign
scholar as visiting professor, universities will now be required to obtain
prior permission of the government."

Nor is this all. "In case a university proposes to organise an international
seminar or symposium, it will have to furnish to the government a detailed
note on the theme of the conference, level of participation, name of the
countries and their scholars as also the source of funding. The government
will have the right to refuse permission." Subjects like defence, "themes
which are politically sensitive" and the like are barred as subjects for
research. If foreigners come on a tourist visa they must not conduct
research. Lastly,"foreign scholars have also been debarred from delivering
any lecture or talk on topics of controversial nature".

I had then remarked in this column: "Presumably a judge of the US Supreme
Court visiting India will not be allowed to deliver a talk explaining the
Bakke case, on positive discrimination in favour of the Blacks and its
aftermath because it might have a bearing on the 'politically sensitive'
issue of reservations. Nor may he speak on federal-state relations - also a
'politically sensitive' issue.

So much for the casual solitary lecture - what to speak of a series of
lectures sponsored by an endowment or a university. Rise further in this
ladder of state control of knowledge and you find curbs on seminars, or
invitation to or appointment of foreign scholars"... that has now come to
pass as a report in The Hindu of June 24, 1999 shows. It bears quotation in
extenso: In a surprise move, the government has made it 'mandatory' for all
foreign nationals intending to participate in workshops and seminars
organised by voluntary organisations in the country to take clearance from
the Union home ministry.

Though there is no written rule or guideline, the government has started
following this system recently setting up a new precedent. This pertains to
seminars and workshops organised by voluntary organisations. Also, the
voluntary organisations would have to take permission from the ministry of
external afairs to organise such a conference where there are foreign
participants.

Recently, three of the international participants to the 11th Annual Johns
Hopkins International Philanthropy Fellows Conference on Building Civil
Society being organised by the Development Support Initiative, Bangalore,
from July 3-9 got a fax that they will not be given visas. The three
participants were told by the Indian High Commission in London that they
should first get clearance from the home ministry. The High Commission
informed them that "all conferences to do with the voluntary sector and
which appear to be government/politically sensitive has to get clearance for
participants from abroad".

Several government officials, members from the corporate sector and the
media are expected to participate in the conference to be held in Bangalore.
This matter was brought to the notice of the Voluntary Action Network India
(VANI) which expressed shock and surprise at the home ministry setting up
the new precedent of foreign participants having to take clearance from it
for attending workshops and seminars organised by NGOs in the country.  VANI
expressed surprise that while thousands of foreign tourists are coming to
India without much problems and NRIs are getting permanent visas after
paying certain amount of money, the government has started a new precedent
to get special clearance from the home ministry for participants at
conferences organised by the voluntary sector... The officials of the home
ministry failed to give any explanation behind this move.
Indian academia is not only a house divided but one of whose major sections
is possessed of chauvinism while another pays court to the Congress (I) by
sheer force of habit, presumably. What to speak of curbs on foreigners, the
academia has overlooked Sonia Gandhi's untenable claims to copyright in the
Nehru-Indira Gandhi papers which properly belong to the Union of India as
trustees for the nation (Vide the writer's article 'State Property: The
Status of Official Documents', Frontline, August 8, 1997).

The latest order is not only a curb on foreign academies but, above all, an
assault on the autonomy of Indian universities, NGOs and think-tanks -
already under stress and on the rights of the Indian citizen. As has been
pointed out in this column earlier the fundamental right to freedom of
speech and expression (Article 19(1)(a) of the Constitution) necessarily
implies that the citizen is entitled to receive information -
electronically, in print and orally ('Right to Receive Foreign Telecasts',
EPW April 13, 1991). The Supreme Court has ruled repeatedly that the right
to know flows from the right to speak; is "derived from the concept of
freedom of speech" (vide Raj Narain's case AIR 1975 SC 865), Maneka Gandhi's
case AIR 1978 597 and S P Gupta's case AIR 1981 SC 149).

India has ratified the International Covenant on Civil and Political Rights.
Article 19(2) of the Covenant says explicitly that the right to freedom of
expression "shall include freedom to seek, receive and import information
and ideas of all kind, regardless of frontiers, either orally, in writing or
in print, in the form of art, or through any other media of his choice".
India is obligated under the Covenant to submit periodic reports for
examination by the Human Rights Committee on its observance of the rights.
Successive attorneys-general of India have been grilled by experts on the
committee.

It is true that the courts allow the government considerable latitude in
matters of national security and in the admission and expulsion of
foreigners. But the onus is on the state to establish that the acts are so
related. The courts will not scrutinise the adequacy of the evidence.
However, if the order is shown to be mala fide or an abuse of power it will
be struck down. Refusal of visa to a foreign national invited to participate
in a conference or seminar in India is very much open to challenge in the
courts if it is demonstrated to be an attempt to stifle dissent, not the
foreigners dissent so much as their Indian hosts' right to hear a viewpoint
the government of India finds distasteful. The Indian citizen's rights do
not depend on the tastes of the ministers or bureaucrats.

In Kleindienst vs Mandel (1972) 408 US 753, the US Supreme Court upheld the
attorney general, Richard Kleindienst's refusal of a visa for Ernest Mandel,
a Belgian journalist and Marxist theoretician to participate in an academic
conference sponsored by Americans. The court split 6-3. The attorney-general
refused to grant a waiver under the Immigration and Nationality Act, 1952 -
as is required for advocates of communist doctrine - to make Ernest Mandel
eligible for a visa to the US. A Belgian citizen, Mandel, is a scholar, a
professional journalist and an avowed Marxist revolutionary. The government
claimed that he had abused opportunities afforded to him during an earlier
visit. Mandel and several American academics sued the attorney-general
alleging violation of their right to hear him and engage him in a free and
open academic exchange. It turned, however, on the special facts of the case
- the attorney-general's charge of past abuse. The majority held this was
bona fide exercise of discretion and did not consider the other issues.
Imagine its reaction to a blanket ban. Even so Justices Douglas, Marshall
and Brennan dissented. More, even the majority rejected the government's
plea that Mandel's books were available, after all. "This argument overlooks
what may be particular qualities inherent in sustained face-to-face debate,
discussion and questioning", the majority opined. It is unlikely that our
Supreme Court would uphold such a ban and a crying shame if it ever did.
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