The Bombay High Court quashed three FIRs filed against 29 foreign nationals who were charged with violating their tourist visas by attending the Tablighi Jamaat congregation in Delhi in March.
By Gautam Mishra
In an unprecedented judgment, the Aurangabad bench of the Bombay High Court expressed its anguish over the government filing FIRs against 29 foreign nationals in Maharashtra who had attended the Markaz Nizamuddun event in Delhi of the Tablighi Jamaat in March. The bench said: “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 Tablighi Jamaat gathering was blamed for “spreading” the coronavirus infection and the home ministry asked states to initiate criminal action against the members. After the event, many of them travelled to different states, either visiting friends or staying in mosques.
A divisional bench of Justices TV Nalawade and MG Sewlikar in its judgment noted: “In our culture, there is saying like ‘Atithi Devo Bhavah’ (Hindi font) which means that the 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.”
While the two judges were unanimous in their decision on quashing the FIRs, Justice Sewlikar said he didn’t agree with some reasoning in the judgment and a separate one with reasons would follow.
Three petitions were filed by the foreigners, who were part of some 3,500 foreign nationals from 35 countries, seeking quashing of FIRs filed against them after the police received a secret input they were residing in masjids and violating the lockdown imposed by the centre.
“We have been respecting both religious and secular sensibilities since independence and by this approach, we have kept India as united,” the bench noted. The Court clarified that it cannot be inferred that the foreigners were spreading Islam by converting persons of other religions. It stated that the Tablighi Jamaat was not a separate sect of Muslims, but only a movement for reformation of religion. Every religion has evolved over the years due to reformation as it was necessary due to changes in society, it said.
The tourist visa issued to all the foreigners in this case was given for 365 days with multiple entries, but each visit was not to exceed 90 days. The recently updated visa manual says there is no restriction on foreigners regarding visiting religious places and engaging in normal activities like attending religious discourses.
The counsel for the respondents contended that “they were living in Masjids and so the offense is committed”. The bench then stated:
“If there is a provision of residence in Masjid that may be or may not be in the form of a hostel and if the persons were living in Masjid, it cannot be said that there was a congregation of five persons in a public place. The place which is meant for residential purpose and where the persons are living by restricting their movements cannot be treated as a public place in view of the aforesaid provisions… Further, the record does not show that the Masjids mentioned in the cases were kept open for public after 23.3.2020.”
Regarding the government action against the foreigners, the bench observed that it was taken as an indirect warning to Muslims protesting against the Citizenship Amendment Act (CAA). The bench stated: “There were protests by taking processions, holding Dharna at many places in India from at least from prior to January 2020. Most of the persons who participated in the protest were Muslims. They contend that the 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 the National Registration of Citizenship (NRC). There were protests on a large scale not only in Delhi but in most of the States in India.
“It can be said that due to the present action 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. 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 FIRs were filed for the offences punishable under:
- Section 51(b) of the Disaster Management Act, 2005
- Section 14(b) of the Foreigners Act, 1946
- Section 2, 3 and 4 of Epidemic Disease Act, 1897
- Section 11 of Maharashtra Covid-19 Measures and Rules, 2020
- Section 37 (1)(3) of Maharashtra Police Act, 1951
- Section 188, 269, 270, and 290 of the India Penal Code.
The Court further said the present action of the government reminds it of the famous speech delivered by Swami Vivekanand in Chicago in 1893 at the Parliament of Religions. Vivekanand praised and congratulated America for arranging such a parliament and started his speech with the words “sisters and brothers” showing that he believed in universal brotherhood. He believed that all religions are true.
The bench said: “While interpreting the provisions of the Constitution we always keep in mind the history, constitutionalism. In our Constitution, we have used the word ‘fraternity’ and it can be said that this concept has a background of our past connections with the entire world and the philosophy of great persons like Swami Vivekanand.
“We look towards America as ideal democracy due to things like the aforesaid approach of America, allowing Parliament of Religions in that country. We have borrowed many principles and parts of the American Constitution which include a preamble, fundamental rights, independence of the judiciary, etc. All these things need to be kept in mind not only by the Courts but also by the Executive before taking such action.”
Lead Picture: UNI