Revisiting the judicial response to foreign Tablighi Jamaat members case in light of the COVID pandemic

Muslim clerics and preachers did not come infected from their home nations to spread COVID here. They were made scapegoats to hide the mismanagement of the Indian Union government. This politicisation and communalisation of the event was noticed by some courts and put on record.

—

IT has been three years since the sudden arrest and jailing of thousands of members of the Tablighi Jamaat (TJ), a global Sunni Islamic missionary organisation, by police across states over the allegations of them being responsible for the spread of COVID.

While those TJ members who had come from aboard left India after acquittal from the courts, the wounds of the Indian TJ members are yet to heal, as they are still facing trial. Additionally, the keys to the Nizamuddin Markaz, the mosque which is the birthplace and global centre of the TJ, were handed over to the organisation for complete reopening by the police only in December last year after the Delhi High Court's intervention.

Initially, the markaz was opened through an interim order of the Delhi High Court on April 1 last year to offer namaz during Ramzan under strict surveillance through CCTV cameras; this was eventually extended till October 2022. This reopening was, however, opposed by the Union government.

Further, public interest litigation filed by, among others, the Jamiat Ulema-i-Hind, a leading organisation of Islamic scholars belonging to the Deobandi school of thought, against the fake news spread against the TJ by TV news channels are still pending.

This indicates that the TJ members are still struggling in many ways due to the communalisation of their congregation that happened at the unfortunate time of the pandemic.

I revisit the judgments passed by courts which eventually sent foreign TJ members back to their countries, and the evidence of their framing in the popular discourse as a political ploy by the government.

Background

TJ is a missionary movement encouraging Muslims worldwide to be more religiously observant. It was founded by Islamic scholar Maulana Muhammad Ilyas in 1926 in the Mewat region of present-day Haryana and Rajasthan.

After the imposition of the first national COVID-induced lockdown on March 23, 2020, foreigners who had arrived in India to be a part of the TJ congregation were stuck in India with panic and confusion. Social media users and various news channels demonised and vilified them. Hashtags like 'CoronaJihad' and 'TablighiJamaatVirus' trended on Twitter. Old, morphed videos were circulated in the media to create an impression that TJ members are to be blamed for spreading COVID. On March 31, 2020, the Nizamuddin Markaz was declared a 'COVID hotspot'.

Also read: SC slams Centre for filing 'evasive', 'brazen' affidavit in case involving media's communalization of Tablighi Jamaat event

In a suo motu case before the Gujarat High Court regarding the government's action to deal with the COVID pandemic, the court, in its order dated April 1, 2020, took cognisance of various media reports on the TJ congregation.

A perusal of the order shows that the Union government furnished the information that around 824 foreigners were involved in TJ's work across the country and had entered India on valid visas; of them, over 216 of whom were staying at the markaz. However, after the lockdown, their work came to a halt.

The government also informed the court that the TJ's clerics and preachers came to India possibly infected with COVID and passed on the infection in their religious congregations in Delhi starting from the second half of February 2020 till the last week of March 2020.

In the order dated April 3, 2020 in the same case, it was recorded that 960 foreigners were found to have been involved in TJ work on tourist visas. Thus, citing the role of TJ members in the spread of the infection, and violation of tourist visa guidelines, the Union home ministry, through circulars, cancelled the visas of these 960 foreigners and blacklisted them.

Circulars titled 'Office Memorandum' were issued by the home ministry on March 31, 2020 and April 2, 2020. The former stated that about 2,000 foreign nationals from various countries were involved in TJ's activities in India. It added that as per the Visa Manual, 2019, foreigners cannot get involved in TJ activities unless granted specific permission by the home ministry.

In the following April circular (page 47), 960 foreigners involved in TJ activities on a tourist visa were identified, and it was claimed that "their Tabligh activities have endangered many lives in the ongoing COVID public health emergency". The circular further advised taking legal action for violation of statutory orders under the Disaster Management Act, 2005, and other relevant provisions of the Indian Penal Code (IPC).

On April, 2020 (page 76), the home ministry also directed the issuance of look-out circulars, and blacklisted TJ members across states and Union territories. On the same day, another circular (page 77) directed legal action against them.

Also read: How is housing Tablighi Jamaat attendees during lockdown an offence, HC asks Delhi Police

After these circulars, first information reports (FIRs) were filed across states under Sections 2 (power to take special measures and prescribe regulations as to dangerous epidemic disease), 3 (penalty) and 4 (protection to persons acting under Act) of the Epidemic Diseases Act, 1897; Section 14(b) (penalty for contravention of provisions of the Act, etc) of the Foreigners Act, 1946, Section 51(b) (punishment for obstruction) of the Disaster Management Act, 2005, and Sections 188 (disobedience to order duly promulgated by public servant), 269 (negligent act likely to spread infection of disease dangerous to life), 270 (malignant act likely to spread infection of disease dangerous to life) and 271 (disobedience to quarantine rule) of the IPC (some added and subtracted in each case), along with other statutes of each state.

The FIRs filed by the police across states were based on similar contentions. For instance, in Maharashtra, in Konan Kodio Ganstone & Ors. versus State of Maharashtra (2020) (discussed in the next section), it was contended that the police officers went out for patrolling on March 25, 2020 and received information about some Indians and foreigners offering namaz in a mosque. They were also involved in giving speeches on their religion and performing religious rites. As they were involved in religious activities, an FIR was registered against them later, on April 5, 2020.

In another FIR, it was contended that the police officers were patrolling the area on March 30, 2020 when they learnt about certain foreigners staying in the mosque. An FIR was registered on the same day against the trustees and on April 4, 2020 against the foreigners for their involvement in TJ work even though they were on tourist visas.

By analysing the judgments and orders passed by high courts and district courts in cases related to the TJ members, I examine whether they violated their tourist visa terms and breached lockdown measures.

Also read: SC expresses displeasure at govt's inadequate affidavit in case on media coverage of Tablighi Jamaat

Decisions by the Courts

In the Konan Ganstone case, the division bench of the Bombay High Court noted that under the Foreigners Act, a case needs to be made out to show that there was a breach of visa conditions. It pointed out that the actions taken by the police against TJ members were after the 2020 home ministry circulars. The conditions that were allegedly breached were those notified by the home ministry in 1996, 2011 and 2015 (in addition to those released after the outbreak of COVID). These circulars were marked 'confidential'.

One of these circulars, dated November 20, 1996, clarifies that attending TJ congregations would not amount to involvement in religious work on a tourist visa and is permissible. The court, based on the circulars, decided whether there was any breach and if there was any malice behind the actions taken against the foreigners.

The court considered that initially, cases were filed only against persons who provided shelter to foreign TJ members, but after the directions from the home ministry, the foreigners themselves were also implicated. Further, nothing in the guidelines prohibited visiting religious places. TJ's work is continuous, and it had made arrangements for stay at the Nizamuddin Markaz. Foreigners regularly visit the markaz, and there is no prohibition on visiting religious places.

The court also pointed out that nothing on record shows that TJ members were involved in converting people or spreading Islam. The allegation that "they were reading Quran and religious books of Muslims and delivering lectures to Muslims in the masjid" was also refuted as vague. The court further adjudicated the validity of the argument in light of Articles 21 (protection of life and personal liberty) and 25 (freedom of conscience and free profession, practice and propagation of religion) of the Constitution.

The court noted, "…[S]uch foreigners cannot be prevented from visiting masjids if they go there to observe religious practices or to offer only namaz." Moreover, Articles 20 (protection in respect of conviction for offences), 21 and 25 of the Constitution apply to foreigners. Had there been a breach of visa conditions, the government could have cancelled their visas and sent them back, the court observed.

It also noted that these people arrived in India in the first week of March 2020 and were screened at the airport to detect COVID. Hence, it seemed more probable that they contracted the infection in India instead of carrying it from their home States.

The court also lashed at the print and electronic media for pushing propaganda against foreigners visiting the markaz. It noted:

"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 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."

The court stated that there was a "smell of malice" in the action taken against TJ's foreign members since no action was taken against foreigners of other religions while Muslim TJ members were implicated during their stay at masjids. The court also rejected the argument that a mosque is a public space and stated that when the lockdown was imposed, it stopped being a public place, and the limit of five people residing in one place did not apply to them. The mosque was serving the purpose of a residential place, it held.

Also read: Criminal charges against Myanmar Tablighi members quashed; nothing to prove they had spread the COVID-19 infection, says Bombay HC

Similarly, in Md. Enamul Hasan versus The Union Of India (2020), the FIR was registered on April 12, 2020 against foreigners after the home ministry circular. Here, the Patna High Court noted that there was no ban on the stay of foreigners in mosques or madrasas, but mosque owners should have informed the police about the stay. Further, there was no material before the court (like in the other cases here) to show that these foreigners were involved in TJ's activities. The court also pointed out that they were under no obligation to furnish information about their stay to the police.

In Hla Shwe & Ors. versus State of Maharashtra through PS Tehsil Nagpur (2020), the Bombay High Court interpreted Section 14 of the Foreigners Act and provisions of the Visa Manual. It held that the applicants, who were Myanmarese nationals, had merely read the Quran and Hadees in their language and acquainted themselves with Indian culture. They were not preaching Islam, and did not violate any terms and conditions of their visas. They were also not violating Sections 269 and 270 of the IPC since they were tested during their quarantine period on April 3, 2020 and the report came negative. They were also isolated from April 24 to 31, 2020, showing they did not commit any acts to spread the virus. It was also held that they did not violate the Epidemic Diseases Act and the Disaster Management Act either.

In Delhi, several FIRs concerning ten foreign nationals were clubbed and presented before one court for resolution after the Supreme Court issued an order in which the Solicitor General of India also stated that the lookout notices issued against these foreigners were recalled. (A detailed counter affidavit justifying the government's actions under the Visa Manual and other legislation, as discussed for other cases, can be accessed here).

The cases were decided in December 2020 in State versus Mohd. Jamaal by a Chief Metropolitan Magistrate (CMM) in Delhi's Saket court. Delhi police implicated 952 foreigners, out of which 908 accused took the route of plea bargaining. The case of 36 persons was being heard in the present case. They were sent to quarantine centres between March 30 and April 1 in 2020. Their passports were also seized until May 15, 2020. There was an alleged violation of a promulgated order dated March 24, 2020 issued under Section 188 of the IPC by the Additional Commissioner of Police, Lajpat Nagar.

The court agreed with the accused's contention that the said order was not appropriately promulgated, that is, it was not made known to the public through available means of media. Further, the markaz register relied on preparing the list of the accused with no columns to ascertain the date of people visiting. Interestingly, none of the 36 accused persons tested positive for COVID.

The court noted:

"the complainant has named only eight accused who all were part of management committee of markaz, however, subsequently during investigation, which has started after an order dated April 1, 2020 of Ministry of Home Affairs [MHA], Government of India, IO [(investigation officer)] has arrayed 952 (all foreign nationals) persons as accused in the 48 chargesheets and 11 supplementary charges, without any identification from the witnesses out of total 2,343 persons who were allegedly evacuated from the markaz premises till early morning of April 1, 2020. It is beyond comprehension of the court, as to how the IO could have identified 952 foreign nationals out of 2,343 persons who, as per the [Station House Officer] SHO, were found flouting the guidelines, without any tip, but based on a list provided by the MHA."

The prosecution failed to prove the presence of all the accused in the markaz premises at the time of their arrest beyond reasonable doubt.

Another important case where the acquittal was done on the basis of lack of evidence was by a Metropolitan Magistrate in Maharashtra's Andheri court in The State versus Niiazov Nurgazy & Ors. in October 2020. The prosecution's case was that the accused were found residing at a mosque on March 29, 2020. During the investigation, police allegedly found that they had visited several places and spread COVID infection by violating the lockdown norms and the order of the police commissioner dated March 22, 2020. An FIR was registered on 5 April.

During cross-questioning, it was found that the informant did not see the accused violating lockdown norms and in fact, the said informant had not even visited the mosque where they were residing. The accused persons had come to him at the police station voluntarily. Further, the cross-examination of the investigating officer revealed lapses in the investigation, like non-preparation of spot panchnama, and no recorded statements of mosque trustees. Additionally, there was no information of anyone being harmed or dying due to the accused. The court held that based on witness testimony, there was no case against the accused.

Also read: Bombay High Court defends constitutional rights of Tablighi followers

Similarly, in Abdullah Sudiana & Ors. versus State of Jharkhand (2021), the Jharkhand High Court ordered the discharge of foreigners due to lack of evidence on record. In this case, the FIR was filed on April 6, 2020. The prosecution stated that it received 'secret' information about the accused staying at a mosque in Dhanbad. They propagated religion and reached the shelter mosque on 23 March, but the local police were not informed about them. Around 26 March, they were sent for a COVID test and quarantined. They were booked under several sections of the IPC.

The court noted that all their tests came back negative. Another argument was raised regarding overstay of their visas, to which the court responded that they overstayed only because of the lockdown. Further, they could not be booked under the Foreigners Act due to lack of sufficient material on record. Thus, they were discharged.

In another order by a CMM at the Saket court in State versus Nurbek Dosmukanbet Uulu (2020), the court held that since there was only a "suspicion" raised and not a "grave suspicion", the accused should be discharged.

The prosecution case was that the accused continued to reside in the mosque even after the issue of prohibitory orders on March 24, 2020. Around 1,300 devotees were found living in the mosque after inspections from 26 to 30 March. Six people who were a part of the congregation died due to COVID, and 477 tested COVID-positive. At the Nizamuddin Markaz, 32 out of 1,500 persons who stayed there were found to be infected on March 28, 2020; by 31 March, 2020, 207 had been admitted to hospitals and 860 were quarantined. The prosecution further relied on the home ministry circular and the Visa Manual, and stated that the accused were in contravention of the guidelines.

The CMM held that no documents showed the presence or participation of the accused at the markaz or even his involvement with the Tablighi Jamaat, and discharged him.

In contrast, the Karnataka High Court in Farhan Hussain versus State (2020) and the Madras High Court in Md. Kameual Islam versus The State (2020) ordered that the foreigners had violated their visa conditions and should be sent back to their countries as they had already spent some time in prison, and they shall not be further prosecuted in light of the 'special circumstances' based on the 'proportionality' principle. They were further restricted from entering the country for the next ten years and fines were slapped against them.

The Karnataka High Court relied on the judgment of the Madras High Court above. It was assumed that these foreigners were involved in propagating religion and hence were in violation of their visa conditions after a study of the Visa Manual. The Karnataka High Court further added that in its view, these cases were not filed due to prejudice in light of media reporting, and praised the police for the work done after putting their life at risk. On the other hand, the Madras High Court noted that the accused were not 'criminals' merely because they had violated their visa conditions.

But the Supreme Court, in its order dated November 16, 2020, clarified that the directions restricting these foreigners from applying for a visa for the next ten years would be infructuous, and their visa applications be considered on merits when they apply in the future.

The Madhya Pradesh High Court also granted bail to foreign nationals in May 2020 in Sajid Kareem versus State of Madhya Pradesh (2020) by relying on a previous favourable bail order passed in April 2020 related to a similar case.

Also read: Tablighi Jamaat: Delhi HC asks Delhi Police to file an affidavit if housing foreigners on valid visa is prohibited

Conclusion

This shows that even in the cases where courts concluded that TJ members were, in fact, in violation of their visa conditions, they should not have been arrested and prosecuted and, instead, sent back to their respective countries.

These judgments further show that TJ members were not violating their tourist visa terms since they were visiting religious places, which was allowed through the home ministry circular. Moreover, there was no proof that they were involved in spreading their religion.

The lapses in the investigation of each state show that there were no cases against TJ members, and the cases were most likely cooked up. In the Konan G. Ganstone case, it was put on record that actions were only taken against Muslim TJ members and no other people.

These judgments and orders clearly show that Muslim clerics and preachers did not come infected from their home nations to spread COVID here. They were made scapegoats to hide the mismanagement of the Indian Union government. It is of little relief to these victims that this politicisation and communalisation of the event was noticed by some courts and put on record.