Bombay High Court defends constitutional rights of Tablighi followers

While the law relating to the quashing of an FIR is clear, namely that no offence is made out even if the allegations are held to be true, it is not often that an FIR is struck down on the ground that it is registered for mala fide reasons. In a historic judgment, the Bombay High court holds that foreigners, on visa, have rights protected under Article 25 as also the right to life under Article 21, and quashes the FIRs. 

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"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 a probability that these foreigners were chosen to make them scapegoats. The aforesaid circumstances and 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."

This is not extracted from an article written by a person normally branded as secular liberal, but words of Justice Nalawade of Bombay High Court in a Judgment dated August 21. The court dealt with arrests of mainly foreigners who had at some time passed through Nizamuddin Markaz, which is the international headquarters of Tablighi Jamaat.

The judgment by the Aurangabad Bench of the Bombay High Court that has quashed FIRs and charge sheets against some Indians and a number of foreigners comes as a whiff of fresh air in the present times. The operative part of the judgment has been signed by both the judges. Justice Sewlikar, while agreeing with the final order, does not agree with some of the reasoning of Justice Nalawade and has said that his separate reasoning will follow. This seems to be because Justice Nalawade has not just found legal infirmities with the prosecution but also found it mala fide, and in his judgment attributed malice to both State and Central Governments.

His reasoning is hard-hitting, but I wish was better crafted as it opens itself up for intervention by the Supreme Court. The discussion on Articles 14 (non-discrimination and arbitrariness), 21 (life and personal liberty), and 25 (freedom of religion) of the Constitution should have been much more elaborate. At the time of writing this article, the separate reasoning of Justice Sewlikar is not available.

In late March and early April, the media as well as the Central Government had gone on an overdrive virtually blaming the Mazar e Tablighi functions for the spread of COVID-19  in India. The majoritarian narrative was to attribute the spread of COVID-19 in India to Muslims. On social media various hate groups and tags were created such as 'coronajihad' and 'coronaterror'.

Even the courts got swept in by this propaganda. In fact, the Gujarat High Court took suo motu action against the presence of Tablighi within the state. Of course, this is not to give a clean chit to the Tablighi jamaat heads who themselves played a role in not acting with adequate caution and feeding into this propaganda.  At least till the first week of April, this was spreading like wildfire. This story could not be sustained for too long with positive cases increasing by leaps and bounds in different parts of the country where Tabligh had no presence.

But discrimination is obvious. Tirupati Mandir was opened on June 11 and since then has had 2.38 lakh pilgrims visit the shrine. 743 employees have contacted COVID, three have died and there is no information about how many devotees have tested positive. But of course, this does not get covered in the mainstream media or by the Government sources and the temple remains open. Similarly Yogi Adityanath, in violation of lockdown and social distancing rules, participated in a pre-dawn religious ceremony in Ayodhya,  which was held to shift the idol of Ram Lalla to a temporary structure inside the Ram Janmabhoomi premises.

Similar is the case with the Prime Minister himself playing the lead role in the August 5 Ayodhya ceremonies, when in fact the head priest was detected positive.  At the end of March, Chief Minister B S Yediyurappa attended a marriage ceremony in Belagavi where hundreds had gathered, showing scant regard for the government's own directive which had banned public events, including marriages with more than hundred people. There are numerous such cases that can be cited.

As per the Home Ministry's directives, towards the end of March and beginning of April, a large number of Muslims (mainly foreigners) who had passed through the Nizamuddin Markaz at Delhi, were arrested across the country. They were mainly found to be residing in Masjeeds. They were charged with violation of visa conditions and various other provisions of the Penal Code and Disaster Management Act.

In May, petitions for quashing FIRs came to be filed in the Madras High Court. The Court passed its judgment on June 12,  directing the arrested persons to be released on bail and placing them in Government camps while barring them to leave the country. This was on two conditions. First, they will file an Affidavit apologising for violating the visa conditions and upon this closure, reports would be filed by the prosecution. Second, they will not be allowed to return to India for 10 years. The cases against Indian nationals were however to be continued.

Following this, on August 5, the Karnataka High Court passed a judgment in a series of matters with similar conditions. Both these judgments proceeded on the footing that the visa conditions, as well as lockdown conditions, had been violated, but it would serve no useful purpose to detain these persons in India. The petitioners also seem to have agreed to this and the State also appears to have conceded.

Also Read: Bombay HC slams media for virtually persecuting Tablighi foreigners; quashes FIRs against them

But the recent Bombay High Court case took a different turn. The petitioners as well as the State took a position that they did not want any judgment on concession and wanted a decision on merits. The petitioners argued that they had neither violated any visa conditions nor had they violated the lockdown. They did not dispute that they had been to Markaz Nizamuddin, that they visited various mosques, and that in Ahmednagar they were staying in Masjids. However, according to them, these acts did not amount to any offence.

Three FIRs were filed in Ahmednagar District, Maharashtra against 35 persons under various sections of Indian Penal Code, Maharashtra Police Act, Disaster Management Act, Foreigners Act, and Epidemic Diseases Act. Thirty of the persons charged were foreigners and 5 Indians. The charge against them was that towards the end of March, they were found offering namaz in masjids and were giving religious speeches on the Muslim religion. Essentially they had come on tourist visas but were doing religious work. They were initially quarantined and then arrested. They were also charged with having violated lockdown conditions by residing in religious places which were ordered to be closed.

The court held that while tourist visas did not allow these persons to carry out propagation of their religion, "there is no restriction on them to visit religious places to attend the normal religious activities like attending religious discourse. However, preaching the religious ideology, making speeches in religious places, distribution of audio or visual display/pamphlets pertaining to religious ideologies, spreading conversion etc. is prohibited."

The court noted that, since 1996, circulars had been issued by the Home Ministry concerning religious activities performed by foreigners in India, including Tabligh work. However, a circular issued on 20th November 1996 stated:

"It is clarified that attending Tabligh Jamat Ijtemah (congregations) does not amount to Tabligh work prohibited under instructions contained in the letter under reference. However, Tabligh work does include place to place preaching, speaking from Tabligh platform/canvassing during congregations, etc and action against foreign nationals indulging in these activities has to be taken."

Similarly, a circular issued on November 3, 2011, mentioned:

3. It is reiterated that State Govt./UT Administrations should keep a close watch on the activities of foreigners entering India on the strength of 'Tourist' Visa and including in religious/Tabligh work. As and when any foreigner is found indulging himself in any religious activity/Tabligh work, action must be taken against him under the Foreigners Act, and he/she should be deported to the country of his/her origin under the powers already delegated to State Govts/Uts. Immediately after the deportation of the foreigners, a proposal should be sent to the Ministry of Home Affairs (Foreigners Division) for placing the name of the said foreigner in the Black List."

Further, notifications were issued by the Home Ministry on March 30, 2020, and April 2, 2020, directing action to be taken against those foreigners involved in Tablighi Jamaat activities as they were involved in also spreading the virus.

The updated Visa Manual of 2019 provides:

"Foreign nationals granted any type of visa and OCI cardholders shall not be permitted to engage themselves in Tabligh work unless they are granted specific permission in accordance with para 19.8 of this Visa Manual. There will be no restriction in visiting religious places and attending normal religious activities like attending religious discourses. However, preaching religious ideologies, making speeches in religious places, distribution of audio or visual display/ pamphlets pertaining to religious ideologies, spreading conversion etc. will not be allowed."

The court observed that Tablighi Jamaat was not a banned organisation and carried on regular activities in India until the lockdown started. It was founded in 1927 by Maulana Mohammed Iliyas and has a large number of followers across the world, with its head office at Markaz in New Delhi.  The court held that Tabligh was a reform movement within Islam (an extremely doubtful proposition but which should not have any impact on the decision) and there was nothing to show that those arrested were trying to convert people or were giving religious lectures. The court went on to say that visiting Masjids or reading Korans or being present in religious discourses did not violate any visa conditions since these were anyway permitted under the Visa Manual.

A notification was issued by the State Government, on March 14, 2020,  which said that any person with a history of travel in the last 14 days from a country where COVID-19 has been reported should report to the State officials. The arrestees had arrived in India prior to the lockdown on different dates and had left Delhi also on different dates prior to the imposition of the national lockdown. Besides, the reporting to state officials was to be made only if they had arrived from countries where COVID-19 has been reported and there was nothing to show that the countries from which they had arrived had any reported COVID-19 cases prior to their departure from those countries.

The court concluded that all the arrested foreigners had entered India prior to the national lockdown. They had been screened at the airport while entering and were not found to be infected. Only a few of them were much later found to be positive and therefore it is very probable that they got infected in India rather than bringing the infection from outside.

The court also rightly held that while Article 19 is not available to foreigners, once a foreigner enters with a valid visa he is entitled to the protection of Articles 20, 21 and 25 and hence he cannot be prevented from entering a Masjid, officering Namaz or staying in a Masjid. Further, while religious places were closed for public at large after lockdown, many of the masjids had residential places and there was nothing to show that any outsiders were allowed inside the Masjids after the lockdown began.

The court thereafter went into the issue of malice, in taking action against the Tablighi Jamaat attendees and Muslims generally, tracing it back to the CAA/ NRC issue which had led the Muslims in India to feel totally insecure. It observed:

"This action indirectly gave warning to Indian Muslims that action in any form and for anything 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 a smell of malice to the action taken against these foreigners and Muslims for their alleged activities. The circumstances like malice is an important consideration when relief is claimed of quashing of F.I.R. and the case itself." 

The court goes on to reprimand the authorities:

"The aforesaid material and discussion of law show that 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 nonapplication of mind by police and that is why even when no   2 record was available to make out prima facie case, charge sheets are filed by police. The Government cannot give different treatment to citizens of different religions of different countries."

To conclude, the court held that no violation of any law was made out and in fact, the authorities had acted mala fide. It quashed the FIRs and charge sheets against foreigners as well as Indians. In the present times when the country's politics is rife with majoritarianism, with complete demonisation of the Muslim community, the strong observations of Justice Nalawade are like a breath of fresh air. Hopefully, it will be a precursor to courts giving orders in the context of the political reality rather than executive deference. For all justice is inherently political and one wishes that the politics of the higher courts change from majoritarianism to constitutionalism.

(The author is a Senior Advocate at High Court of Bombay and Supreme Court of India. Views expressed are personal.)