The Bombay high court’s Aurangabad bench on Friday struck down criminal cases registered against 34 people, including 28 foreign Tablighi Jamaat members, in Maharashtra’s Ahmednagar district, saying they were virtually persecuted and the action against them was taken because of malice against a particular religion.
“A political Government tries to find scapegoat when there is pandemic or calamity, and the circumstances show that there is probability that these foreigners were chosen to make them scapegoats,” said a bench of justice TV Nalawade and justice MG Sewlikar. It cited the latest figures of Covid-19 infection in India and said they show the action against the foreigners should not have been taken. “The material of the present matter shows that the propaganda against the so-called religious activity was unwarranted.”
The Jamaat hit the headlines in March when authorities blamed a congregation at its headquarters in New Delhi’s Nizamuddin area for a jump in Covid-19 infections. The headquarters was sealed and thousands of attendees, including foreigners from countries like Indonesia, Malaysia, and the US, were quarantined. Police initially filed a case against Jamaat chief Maulana Saad for violating a ban on big gatherings. He was later booked for culpable homicide, which carries a maximum punishment of 10-year imprisonment.
The Jamaat, which has followers in over 80 countries, maintained many visitors at its headquarters were stranded after the government declared a lockdown to check the pandemic spread. The Centre blacklisted around 1,500 foreign Tablighi members for violating their visa norms and multiple cases were registered against them across the country, including in Maharashtra, for spreading the disease.
The high court said foreigners having valid visas to enter India cannot be prevented from visiting mosques if they go there to observe religious practices.
“It is true that in view of wording of Article 19 [the right to freedom of speech and expression] of the Constitution of India, the freedoms given under this Article are not available to foreigners, a person who is not the citizen of India,” it said. “However, it needs to be kept in mind that when permission is given to the foreigners to come to India under visa, Article 25 [freedom of professing religion] comes in to play. Then Articles 20 and 21 [that relate to fundamental rights] are also available to the foreigners.”
All the foreigners, who petitioned the high court, had participated in the Nizamuddin congregation and thereafter gave religious lectures at mosques in Ahmednagar district allegedly in violation of lockdown norms in the last week of March. Initially, cases were registered against the trustees of mosques where the foreigners had stayed.
All the 34 accused, including the foreigners, moved the high court seeking quashing of the criminal cases registered against them. The foreigners contended they came to India on valid visas and argued they were here mainly to experience Indian culture, tradition, hospitality and food. They said on their arrival at airports, they were screened for Covid-19.
The foreigners argued they were struck in Ahmednagar after the imposition of the nationwide lockdown because of the suspension of the transportation services. They said that is why they stayed at mosques.
Ahmednagar police maintained the Jamaat members were found preaching Islam and so cases were registered against them. They added the foreigners were arrested after institutional quarantine and subsequently five of them were found to be infected.
The police insisted there was sufficient material to indicate the accused had breached lockdown norms and visa conditions.
The court cited guidelines and added foreigners visiting India on tourist visas are prevented from engaging in preaching activity. But it noted under the recently updated visa manual, there is no restriction on foreigners for visiting religious places and attending normal religious activities like attending discourses although tourist visas limit the purposes of a visit to recreation and site seeing.
The court cited the government record and said Jamaat is a reform movement founded by Maulana Mohammad Iliyas in 1927. It added thousands from across the world are attracted to the Jamaat as the movement is popular in villages and among peasants. The court said foreigners have been attending the Jamaat congregations in Delhi on tourist visas and during their visits, they also visit Muslim religious places in India.
The court said the material on the record shows the Jamaat is not a separate sect but is only a movement for reformation. “Every religion has evolved over the years due to reformation as reformation is always necessary due to the changes in society and the development achieved in the material world.”
The court said in any case even from the record, it cannot be inferred that the foreigners were spreading Islam religion by converting persons of other religions. “Reformation is a continuous process and such a process is necessary for peaceful co-existence. 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. There is no such specific allegation also against the foreigners.”
The court said the foreigners were booked and arrested after specific instructions from the central government. It added the record of the matter and the submissions made showed the Centre’s action was mainly directed against Muslims.
“Social and religious tolerance is a practical necessity for unity and integrity in India and that is also made compulsory by our Constitution. By hard work over the past years after independence, we have reconciled religion and modernity to a great extent. This approach helps participation of most in a developing process. We have been respecting both religious and secular sensibilities since independence and by this approach, we have kept India as united,” said the bench.