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"Categorisation can have serious pitfalls. Justicing has to be an individualised exercise" the Court said while choosing to view the petitioners as 31 individuals instead of "collectively thingifying them as 'Tablighis'"
The Madras High Court last week granted bail to 31 foreigners who took part in the March 2020 Tablighi Jamaat convention, while making a conscious decision to refrain from "collectively thingifying them as 'Tablighis'", noting that such categorisation of persons can have serious pitfalls.
The 31 petitioners before the Court were arrested in April for having participated in the religious convention in defiance of lockdown regulations issued in the wake of the COVID-19 pandemic (Md Kameual Islam and ors. v. The State and ors.).
Justice GR Swaminathan acknowledged that the "Tablighi Jamaat has come under severe and harsh criticism for its reckless and irresponsible conduct and rightly so."
However, the judge recorded that an essay by Prof.Upendra Baxi on “Exodus Constitutionalism” prompted him to view the petitioners seeking bail before him "as thirty-one individuals instead of collectively thingifying them as 'Tablighis.'" He went on to add,
As such, the Court found that the petitioners are obviously entitled to bail, after taking note of the following factors:
Their acts have not prejudiced public tranquillity;
The petitioners have been in prison since 5/ 9 April and more than two months have elapsed;
None of the petitioners tested positive for COVID-19 and there is absolutely nothing on record to indicate that they had contributed to the spread of the virus;
The offences which the petitioners are alleged to have committed are not akin to those offences for which there are limitations for grant of bail;
Even though almost seventy days have elapsed since their arrest, the final report is yet to be filed;
The police have not placed any material or advanced any contention that would compel the Court to dismiss the petitions for bail.
Given these reasons, the Court concluded that the 31 Tablighi Jamaat members were entitled to be released on bail.
The judge proceeded to emphasise that the State authorities should refrain from arbitrarily blocking the return of these foreigners back home.
While the petitioners cannot demand that they must be allowed to return as a matter of right, given that they violated visa conditions, the judge opined that,
The Court added that the facilitation of the foreigner-petitioners' return would, in fact, be in tune with Executive Policy as well. In this regard, Justice Swaminathan cited a 1996 GO which calls for the deportation of Tablighi Jamaat members to the country of origin where visa conditions are violated.
The Court proceeded to dispose of the bail pleas with the following directions:
The petitioners are granted bail. Accordingly, they are ordered to be released from the respective prisons wherein they are presently detained on submission of their own bonds.
After the petitioners are released on bail, it is open to the authorities to require the petitioners to stay at the special camp earmarked under Section 3(2)(e) r/w 4(2) of the Foreigners Act, 1946. However, the Court added that, "conditions of the camp in which they are to be accommodated cannot be that of a detention camp and the distinction must be clear and apparent and felt." In this regard, the Court also urged the Government to consider an offer made by the management of the Jamia Qasmiyah Arabi College, Washermenpet to accommodate the petitioners.
If the petitioners execute appropriate affidavits expressing their regret for having violated the visa conditions, criminal proceedings against them shall be concluded by filing final reports recording the same.
It is for the petitioners to coordinate with their respective embassies/ consulates and arrange their return to their respective nations. The Government of Tamil Nadu or the Government of India will only play a facilitatory role.
The Court emphasised that such directions are being issued in view of Article 21 of the Constitution (right to life and personal liberty) being applicable to foreigners as well.