Bombay HC dismisses FIRs against Tablighi Jamaat

How did it all start?

Ministry of Home Affairs (MHA) identified 960 foreigners of different nationalities on the basis of their travel documents linking them with spreading of corona virus. As per the records produced before the Court, most of the foreigners mentioned in the chargesheets came to India before March 10, 2020. They had been screened at the Airport and not found to be infected. These foreigners had come to experience India’s culture and were involved in activities inside the premises of Tabligh Jamaat Markaz, Nizammuddin, New Delhi.

The reformist activities of Tablighi Jamaat are carried out throughout the year. There is no fixed day of there was no particular day for congregation or any function.

29 foreign nationals were booked in at least 3 FIRs in Maharashtra for allegedly spreading infection. The case invoked the provisions of the archaic Epidemic Disease Act along with certain sections of IPC, 1860. Further, the FIRs included charges under the provisions of foreigner’s Act for alleged contravention of visa rules in this regard. Allegations were also made that foreigners associated with Tablighi Jamaat were involved in “missionary and proselytizing” activities in the country. 

The FIRs also accused 6 Indian nationals for giving shelter to these foreigners.

No restriction on foreigners from taking part in religious activities.

Religious Activities can be restricted only when they have potential to cause religious unrest in a particular community. The material produced on record showed that even under recent updated Manual of Visa, there is no restriction on foreigners for visiting religious places and attending religious discourses. These foreigners were attending religious activities until the lockdown was implemented. The Court did not find anything on record indicating a permanent ban on Tablighi Jamaat’s activities. In this connection, it was of the view that Ideas promoting reform do not warrant restrictions.

Bombay HC reprimanded state authorities for violating constitutional rights of the foreigners

The Court criticized the police and the state authorities for failing to consider the rights of the foreigners before acting against them. 

“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.”

The Court also termed the action of the authorities in preventing the foreigners from visiting Masjid, a violation Article 25 of the Constitution of India. The said Article entitles all persons to freely profess, propagate and practice religion subject to certain restrictions.

It also reprimanded the police for abusing the due process and acting mechanically. Acting on a mere presumption of violation of visa conditions does not warrant a prima facie case against the Tablighi Jamaat followers.  Moreover, the court was of the view that the erroneous action was taken to create a fear in the minds of all those Muslims protesting in connection with the citizen amendment Act, 2019. (CAA, 2019)

The malice of unsubstantiated news items running in the media

The widespread misinformation floating in this case hinted towards a massive media propaganda. The standards of news reporting hit an all time low. Media houses and twitter trends started blaming a section of the Muslim community for the spread of virus. There were all kinds of unsubstantiated claims `being made blaming tablighi Jamaat for intentionally spreading the virus.

In its Judgement, The Court has taken cognizance about media’s role in floating rumors, fake news and inducing speculation.   It categorically made the following remarks in this regard

"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 There was big propaganda in print media and electronic media against the foreigners who had come 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.”

“The 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 authorities to repent about this action taken against the foreigners and to take some positive steps to repair the damage done by such action. The material of the present matter shows that the propaganda against the so called religious activity was unwarranted.”

Social and religious tolerance is imbibed in Indian culture

The Court emphasized on the values promoted in the Indian culture. It drew references from Swami Vivekananda’s Chicago speech to point out that our culture is based on the premise of treating every religion equally. 

The Court also highlighted the importance of being sensitive and tolerant towards our guests with the following observation.

“In our culture, there is saying like Athiti Devo Bhava, which means that our guest is our God. The circumstances of the present matter create a question as to whether we are really acting as per our great tradition and culture”

Adopting a human approach could have been the best course of action.

Although, local members of Tablighi Jamaat were able to return home but the foreign nationals could not go back. The detainees in Maharashtra included residents of countries like Tanzania, Ghana and Indonesia. 

The Court suggested that these persons should have been sent back home if there was any possibility of spreading virus through them. It further made the following observation in this regard.

“In the situation created by pandemic near and dear of every person who is out of house and particularly out of country are worried about the wellbeing of such persons. The actions against such persons harass not only such person, but also there near and dears.”

Justice Sewliker to record a separate judgment

The Two Judge Bench unanimously quashed the FIRs stating that these foreigners were chosen as scapegoats amidst the Covid 19 calamity. However, Justice Sewlikar will write a separate judgement in the matter to incorporate his differing views on certain aspects of the judgment