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"A political government tries to find a scapegoat when there is pandemic... the circumstances show that there is probability that these foreigners were chosen to make them scapegoats", states Justice Nalawade's judgment
A Division Bench of the Bombay High Court at Aurangabad has quashed the FIRs filed against 29 foreign nationals and six Indians who were accused of participating in the Tablighi Jamaat congregation at Delhi without permission and for staying and conducting religious discourses in masjids in Maharashtra amid the COVID-19 pandemic.
Slamming the government for charging the petitioners on the presumption that they were already infected, and for the propaganda against the attendees of the markaz at Delhi, Justice TV Nalawade stated:
The Judge also noted, "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."
The Judge proceeded to find that there seemed to be an element of discrimination and malice in the filing of FIRs against the attendees. As noted in his judgment,
The petitioners were booked under provisions of the Indian Penal Code, Epidemic Diseases, Act, the Maharashtra Police Act, Disaster Management Act and the Foreigners Act. The Indian nationals were booked for giving shelter to the foreign nationals in their masjids.
A Division Bench of Justice TV Nalawade and Justice MG Sewlikar heard three petitions filed by three groups of petitioners praying for a quash of the FIRs filed against them.
The petitioners submitted to the Court that they were visiting various places in India to observe Muslim religious activities and had informed the District Superintendent of Police about their arrival much before the crimes were registered against them. They had also informed local officers about their visiting the masjids, they stated.
They further averred that even at the congregation in Delhi, they had observed physical distancing norms, and were not involved in any activity in breach of their tourist visa conditions.
The State, on the other hand, argued that the petitioners were found visiting places, preaching and living in Masjids during their stay in violation of visa guidelines. Religious places in Maharashtra had been ordered to close after March 23 in view of the pandemic, it was submitted in Court.
They did not voluntarily come forward for testing despite public announcements asking markaz attendees to get themselves tested for the virus, the State additionally submitted.
Rejecting the State’s contentions, Justice Nalawade of the Aurangabad Bench found that, "even under recent updated Manual of Visa, there is no restriction on foreigners for visiting religious places and attending normal religious activities like attending religious discourses."
Noting that the Tabligi activities attended by foreign nationals have been undertaken for many years in India, the Court said that no inference of religious conversion could be made since the visitors were speaking foreign languages.
“... from so many years Muslims from various countries have been coming to India to visit that place and they have been coming on tourist visa. The aforesaid material shows that the visits of these foreigners to Masjids from India were not prohibited and even discourse was not prohibited. Activity of Tabligh Jamamat got stalled only after declaration of lock down in Delhi and till then it was going on. There is nothing on the record to show that this activity is prohibited permanently by the Government. These things need to be kept in mind while considering the cases filed against the petitioners”, reads the judgment authored by Justice Nalawade.
On the subject of propagation of Islam and the ambit of ‘discourse’ Justice Nalawade also said,
He also stated that foreigners could not be prevented from visiting Masjids to observe religious practices, given the right to life and freedom of religion under Articles 21 and 25 of the Constitution.
The Judge also recorded in his opinion that witness statements in all of the three investigations were identical.
Discussing the possibilities mooted of the attendees spreading coronavirus infections, the Court noted that it was more likely that they were infected during their stay in the country since they had been screened at the airport on arrival. The Court also recorded that they had not actively moved from place to place after the lockdown was announced.
The Court also noted that the complaints were registered in the backdrop of CAA-NRC protests in Delhi, which had a substantial number of Muslim participants. As such, on the impact that the accusations against the petitioners was likely to have on other Muslims, Justice TV Nalawade added,
With these, among other observations, Justice Nalawade found that the FIRs were liable to be quashed.
The State sought a stay on the operation of the order on the ground that an appeal was to be preferred but the Court. However, the Court refused the prayer saying that there was no ‘question of a stay’.
Pertinently, Justice MG Sewlikar registered his approval of the operative portion of Justice Nalawade’s opinion but stated that he differed in some respects with the reasoning adopted by Justice Nalawade.