On August 22, the order of the Aurangabad bench of the Bombay High Court quashing the first information reports (FIRs) against 29 foreigners and six Indian members of the Tablighi Jamaat and chastising the police for “non-application of mind” brought much-needed relief to the affected persons and has hopefully drawn the curtain on the sustained vilification of the largest Muslim organisation in the country. “There was virtually persecution against these foreigners,” the judgment said.
The order stated: “A political government tries to find a scapegoat when there is pandemic or calamity, and the circumstances show there is a probability that these foreigners were chosen to make them scapegoats.”
In response to three separate petitions filed on behalf of foreign nationals from Indonesia, Ivory Coast, Djibouti, Ghana, Benin and Tanzania, the division bench of Justices T.A. Nalawade and M.G. Sewlikar ordered the quashing of the FIRs against 35 accused, stating that the decision to file FIRs en masse against the men who had gathered at a religious congregation was done to give an indirect warning to Indian Muslims who had participated in the protests against the Citizenship Amendment Act (CAA) in huge numbers.
In its 58-page order, the court held: “There were protests by taking processions, holding dharna at many places in India at least from prior to January 2020. Most of the persons who participated in protest were Muslims. It is their contention that Citizenship Amendment Act, 2019 is discriminatory against the Muslims. They believe that Indian citizenship will not be granted to Muslim refugees and migrants. They were protesting against National Registration of Citizenship (NRC). There were protests on large scale not only in Delhi, but in most States in India. 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 anything can be taken against Muslims.”
Significantly, even though Justice Sewlikar agreed with the operative portion of the judgment, he disagreed with Justice Nalawade’s reasoning for it.
The Tablighi Jamaat, it may be recalled, was widely criticised for hosting a congregation in Nizamuddin, New Delhi, from March 13 to 15, and was held responsible for the spread of COVID-19 by a large section of the electronic and print media when news of early infections trickled in on March 30. Some of its members were incarcerated for over two months under various provisions of the Indian Penal Code, the Epidemic Diseases Act, the Foreigners Act and the Disaster Management Act. The Nizamuddin markaz (centre) was sealed and asymptomatic volunteers were quarantined at different places. The Tablighi Jamaat chief, Maulana Muhammad Saad, was charged with culpable homicide. The social outrage at the religious meet allegedly forced a volunteer from Himachal Pradesh to take his life after he was subjected to abuse by villagers. The visitors sought relief from the court, pointing out that they had entered the country with a valid visa, undergone tests for COVID-19 prior to travel, and had been left stranded at the mosque owing to the lockdown.
In the aftermath of the March 30 incident, 3,500 Tablighi Jamaat volunteers from 35 countries were detained at various government and private facilities, and FIRs filed against them across the country. In Maharashtra, too, the police did likewise, following instructions from the Ministry of Home Affairs. The court observed: “The 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 CrPC 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, charge sheets are filed by police.”
Allegations of conversion
The court rubbished the charges of Tablighi volunteers seeking to convert non-Muslims to their faith. Incidentally, the Tablighi Jamaat, founded in 1927 in Mewat by Maulana Mohammad Ilyas, works only among Muslims, aiming to promote ideals of Islam among them. Its volunteers undertake 40-day and four-month self-financed outstation trips for spiritual rejuvenation. It has no outreach programme for people of other faiths. The court held: “The material on the record shows that Tablighi Jamaat is not a separate sect of Muslims but it is only a movement for reformation of religion. In any case, even from the record it cannot be inferred that the foreigners were spreading Islam by converting persons of other religion to Islam. The record shows that the foreigners were not talking Indian languages like Hindi or Urdu and they were talking languages like Arabian, French etc (sic).”
Dismissing the allegations of the foreigners seeking to convert Indians, the court observed: “Unless a particular programme of such foreigner or idea of such foreigner or doctrine or set of principles proposed by him do not create unrest in that religion or society, one cannot prevent the foreigner from expressing his ideas about reformation. There is no such specific allegation also against the foreigners. Nothing is said as to which ideas the foreigners were propagating.”
Upholding the petitioners’ right to offer prayers at any mosque, the court held: “It is true that in view of wording of Article 19 [the right to freedom of speech and expression] of the Constitution of India, the freedoms given under this Article are not available to foreigners, a person who is not the citizen of India. However, it needs to be kept in mind that when permission is given to the foreigners to come to India under visa, Article 25 [freedom of professing religion] comes into play. Then Articles 20 and 21 [that relate to fundamental rights] are also available to the foreigners.”
The Bombay High Court verdict came on the heels of judgments by the Madras High Court and the Karnataka High Court, both of which allowed the visitors to be released. The Madras High Court found their incarceration unreasonable and unjust, and gave the foreigners a clean chit on the issue of the spread of COVID-19. The foreigners filed affidavits expressing regrets for visa violations in order to obtain release. The Karnataka High Court, too, ordered the quashing of criminal proceedings against nine foreigners, even as it refused to do the same against seven Indian nationals.
The Bombay High Court verdict was followed by a Delhi court discharging eight members of the Tablighi Jamaat who faced trial at Saket District Court in New Delhi, stating that there was “no prima facie evidence” against them. The verdict came as 44 men had decided to stand trial in Delhi, refusing to take up a plea deal. It may be recalled that soon after the March 30 detention of hundreds of Tablighi members, as many 955 foreigners were charge-sheeted by the Delhi Police for allegedly violating their visa terms and conditions, not following the COVID-19 restrictions and indulging in proselytisation.
The rulings of various courts came as a relief to Tablighi Jamaat members who had been subjected to the worst form of Islamophobia. Some of the television news channels had coined hashtags such as “human bomb”, “corona jihad” and “corona spreaders”. Fake news and fake videos holding the Tablighi Jamaat responsible for the spread of COVID-19 were circulated, discarding the fundamental principles of journalism. Even newspapers used terms such as “Tabligh men hiding in a mosque” for volunteers stranded in the Nizamuddin mosque owing to the lockdown. Incidentally, the term “stranded” was used for pilgrims from Vaishnodevi who had been left in the lurch in Jammu owing to the sudden imposition of the lockdown.
The Bombay High Court bench stated in its judgment: “There was a big propaganda in print media and electronic media against these foreigners who had come to Markaz... 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.” These words may just be what the members of the Tablighi Jamaat needed to hear after the sustained vilification.
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