Tablighi Jamaat
Tablighi Jamaat
Litigation News

Arrest of Tablighis indirectly gave warning to Indian Muslims that action in any form and for anything can be taken against them: Bombay HC

"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

Lydia Suzanne Thomas

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:

"... 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 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 record of this matter and the submissions made show that action of Central Government was taken mainly against Muslim persons who had come to Markaz Delhi for Tabligh Jamamat. Similar action was not taken against other foreigners belonging to other religions. Due to these circumstances, the background of the action and what is achieved needs to be considered by the Court."

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,

“Unless a particular programme of such foreigner or idea of such foreigner or doctrine or set of principles proposed by him do not create unrest in that religion or society, one cannot prevent the foreigner from expressing his ideas about reformation (the ideal of Tablighi Jammats). There is no such specifc allegation also against the foreigners. Nothing is said as to which ideas the foreigners were propagating. The record shows that there is allegation that they were reading Quran and religious books of Muslims and delivering lectures to Muslims in Masjid. The allegations are very vague in nature and from these allegations inference is not possible at any stage that they were spreading Islam religion and there was intention of conversion. It is also not the case that there was element of persuasion on any point from these foreigners.

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.

The statements of the witnesses recorded by police are stereotype and it can be said that word to word, line to line and para to para of the statements are copied. Further, some trustees of the Masjids are made accused in these proceedings and also in separate proceedings and there are statements of those trustees which cannot be used against foreigners or against those trustees. Most of the information shown to be given by the witnesses is apparently hearsay in nature.”

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,

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

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.

Read Order:

Konan Kodio Ganstone and Ors. v. State of Maharashtra & Allied Petitions - Judgment dated August 21, 2020.pdf
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