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The Aurangabad bench of Bombay High Court has fallen in line with the high courts of Karnataka, Allahabad and Madras in letting off members of Tablighi Jamaat either on bail or by quashing FIRs against them. However, it is the first high court to have called out the blatant communalism and the way the entire incident was handled by the government, the police and the media.
In its 58-page judgment, dated August 21, the bench comprising Justices MG Sewlikar and TV Nalawade, was related to three FIRs filed at Ahmednagar police stations against a total of 29 foreign nationals and 6 Indians. The FIRs were similar in the circumstances under which the accused were charged. They were all found in mosques, stranded and hence given shelter by the mosque trustees/management.
The petitioners, mainly foreign nationals, had contended that they came to India on valid visas issued by the Government of India and they have come to experience Indian culture, tradition, hospitality and Indian food. They had even informed the District Superintendent of Police, Ahmednagar about their arrival. They were just given shelter in the mosques as they were unable to go and live anywhere else due to lockdown restrictions.
Were visa conditions violated?
The contention of the police was that the petitioners were preaching Islam and despite orders dated March 23, to close religious places, they continued to stay in mosques and “indulged in Tablighi activity”. The police further contended that the petitioners were in violation of the Visa conditions and breached orders issued by the authorities created under Disaster Management Act, 2005.
The court observed that a foreigner may be punished under section 14 of the Foreigners Act if he acts in violation of the conditions of the valid visa. The court said that “the so-called conditions are not in the form of provisions of Act or rules framed under any Act. They are in the form of so called guidelines or at the most executive instructions.”
The court further pointed out that though restrictions are put on the foreigners who come to India on tourist visas to prevent them from engaging in Tablighi activity, there is no restriction on them to visit religious places to attend the normal religious activities like attending religious discourse.
The public prosecutor submitted certain circulars issued by the Ministry of Home Affairs (MHA) from time to time over the years stating that if it is found that there was breach of visa conditions, ordinarily such foreigner was to be deported immediately. One circular issued on November 20, 1996 states attending Tablighi Jamaat, Ijtema (congregation) does not amount to Tablighi work prohibited under other circulars.
The Court further observed that all the foreign nationals entered India on a valid tourist visa in February or in March, but before March 10.
It was further submitted by the prosecutor that since a petition was pending before the Supreme Court [Writ Petition (Civil) No. 603/2020] filed by similarly placed foreigners that the central government’s decision to blacklist 950 foreigners was unconstitutional and void, this case should be put on hold until the apex court’s decision. The court rejected this contention and held,
“Criminal cases are fled by State/police though apparently they did it as per the directions given in aforesaid circulars and memorandums. It is the duty of the Court to ascertain as to whether any offence mentioned in the chargesheets is made out, whether there is material to make out prima facie case for these offences.”
Analysing Tablighi Jamaat congregation
The court then commented on what the Tablighi jamaat movement and how it came about and became popular after 1950. The court observed,
“This movement is focused on religion rather than political aspects of Islam and this movement spread throughout Muslim world from 1950 onwards…The record shows that many Muslims from all over the word come to India as they are attracted to the reform movement of Tabligh Jamaat and they visit aforesaid Markaz Masjid from Delhi. It is a continuous process and it appears that there are arrangements of the stay also made by the Muslims at Markaz Delhi.”
The court further observed that the Jamaat is not one event, but a continuous activity and Muslims from various countries come to India for the same on tourist visa only.
“Activity of Tabligh Jamaat got stalled only after declaration of lock down in Delhi and till then it was going on. There is nothing on the record to show that this activity is prohibited permanently by the Government. These things need to be kept in mind while considering the cases filed against the petitioners.”
About the allegations against the petitioners, the court observed that they are vague in nature and one cannot draw an inference that they were spreading Islam religion and there was intention of conversion. The court also observed that “there is nothing on the record to show that the Indians were prevented from accommodating persons in the Masjid or from supplying meals to the persons including the foreigners.”
About the foreigners who tested positive for Covid-19, the court stated that in absence of scientific data or proof on how long the virus stays active in the body, one can rely on the possibility that they got infected in India and they were not already infected when they arrived in India.
Propaganda against Muslims
About the media propaganda against Tablighi Jamaat, the court said,
“There was big propaganda in print media and electronic media against the foreigners who had come to Markaz Delhi and an attempt was made to create a picture that these foreigners were responsible for spreading covid-19 virus in India. There was virtually persecution against these foreigners. A political Government tries to find the scapegoat when there is pandemic or calamity and the circumstances show that there is probability that these foreigners were chosen to make them scapegoats.”
The court further stated, “The latest figures of infection in India show that such action against present petitioners should not have been taken. It is now high time for the concerned to repent about this action taken against the foreigners and to take some positive steps to repair the damage done by such action.” The court also said that the propaganda against the Tablighi Jamaat congregation was unwarranted. “The material of the present matter shows that the propaganda against the so called religious activity was unwarranted,” the court held.
Expressing dismay over the treatment of the foreigners, the court stated that we acted contrary to our tradition where we treat our guests like god. “If there was any substance in the contention that there was possibility of spreading virus by these persons, proper action would have been taken against them, to send them back to their own country,” stated the court.
No case is made out
The court also stated that before taking any action against these foreigners we need to keep in mind Articles 20, 21 and 25 of the Constitution. “It needs to be presumed that before granting visa, necessary inquiry about such foreigner was made by us and only after ascertaining that his presence in India will not be against the interest of the country the visa was granted to him,” the court observed.
The court decided that no case is made out against the petitioners for any offence under section 14 of the Foreigners Act,
“They are entitled to offer Namaz in Masjid if there is practice to offer Namaz in the Masjid. They cannot be prevented to enter and stay in Masjid. This is what updated guidelines of visa say. Thus, before taking any action by police or by the State they ought to have given thought to the rights of these foreigners. Article 20 of Constitution of India shows that the acts which were not prohibited at the time when they were committed cannot be treated as offence and violation of law subsequently. In view of the record which is already discussed, it was not possible to go with the presumption that there was a violation of visa conditions.
The court held that the petitioners were not in breach of any orders issued by the government as they were stationed at one place before the orders were issued and there is no proof to show that they were infected before they came to India.
Question of malice
The court further delved into the question of why such action was taken against these foreigners,
“The record of this matter and the submissions made show that action of Central Government was taken mainly against Muslim persons who had come to Markaz Delhi for Tabligh Jamaat. Similar action was not taken against other foreigners belonging to other religions. Due to these circumstances, the background of the action and what is achieved needs to be considered by the Court.”
The court observed that there was malice on the part of the government to instil fear in the minds of Muslims in India and based it on the protests against the Citizenship Amendment Act which is inherently discriminatory towards Muslims.
“It can be said that due to the present action taken fear was created in the minds of those Muslims. This action indirectly gave warning to Indian Muslims that action in any form and for any thing can be taken against Muslims. It was indicated that even for keeping contact with Muslims of other countries, action will be taken against them. Thus, there is smell of malice to the action taken against these foreigners and Muslim for their alleged activities. The circumstances like malice is important consideration when relief is claimed of quashing of F.I.R. and the case itself.”
Police acted without application of mind
Commenting on the police taking action against the petitioners, the court stated,
“Maharashtra police acted mechanically. It appears that the State Government acted under political compulsion and police also did not dare to exercise powers given to them under provisions of procedural law like Cr.P.C. and substantive laws. The record shows that there was non application of mind by police and that is why even when no record was available to make out prima facie case, chargsheets are fled by police.
While concluding, the court stated that it will be abuse of process of law if the petitioners are made to face trial and hence quashed all the FIRs against the foreign nationals as well as Indians. This judgment was given by Justice Nalawade and while his fellow judge Sewlikar agreed with the operative part, he was in disagreement with some reasonings and he is yet to give his reasoned order.
After the judgment was pronounced, the public prosecutor, Nerlikar, requested for stay on the operative part as the government may want to challenge the decision and the foreigners cannot be immediately sent to their home countries as “there is long procedure for granting permission to them and sending them”. The bench, unanimously, held that the cases are quashed and there is no question of granting stay, the government must arrange for flights to send the petitioners back, “It is the job of the Government to see as to what needs to be done afterwards.”
The complete judgement may be read here.
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