The Bombay High Court on Friday quashed the FIRs filed against 29 foreign nationals who were charged for violating their Tourist Visa conditions by attending the Tablighi Jamaat congregation at Delhi.
A Division Bench of Justice T.V. Nalawade and Justice M.G. Sewlikar observed that there is no restriction on foreigners for visiting religious places and attending normal religious activities like attending religious discourses.
The foreign nationals who belong to countries like Ivory Coast, Ghana, Tanzania, Djibouti, Benin and Indonesia were charged under relevant provisions of IPC, Epidemic Diseases Act, Maharashtra Police Act, Disaster Management Act and Foreigner’s Act. They filed three separate petitions against the Charges framed against them by the police who claimed that they had received secret information that the petitioners were residing at the respective masjids and offering prayers in violation of lockdown orders.
Petitioners’ stand: The petitioners contended that they had a valid visa issued by Indian Government and followed all the required procedure on their arrival, like being screened and also tested for Covid-19. After they tested negative for covid, and were allowed to leave the airport, they also informed the District Superintendent of Police in Ahmednagar. They had to stay in the Masjids not because of doing any illegal activity but only because in wake of the lockdown hotels were closed. Under their visa conditions, neither were they asked to inform the authorities nor were they prohibited from visiting religious places.
Police’s stand: Case was registered against them as they were found visiting places to preach Islam religion and five foreign nationals were even found Covid positive.
Even when official directions were issued to close all public places, they indulged in Tablighi Jamaat and didn’t come forward to get tested for Covid even after announcements were made for all attendees of Markaz Masjid.
Court’s observations: The Court while hearing the case made some strong observations regarding the various contention and accusations against the petitioners:
Violation of Visa Conditions: The Court noted 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. The Bench went on to add that the material on the record shows that Tabligh Jamaat is not a separate sect of Muslim, but it is only movement for reformation of religion. Every religion has evolved over the years due to reformation as reformation is always necessary due to the changes in the society and the development achieved in the material world.
Contention that Petitioners attempted to Preach Islam: The Court concluded that it cannot be inferred that the foreigners were spreading Islam religion by converting persons of other religion to Islam. The foreigners were not talking Indian languages like Hindi or Urdu and they were talking languages like Arabian, French etc. and. it can be said that the foreigners may have intention to know the ideas of Tabligh Jamaat about the reformation.
Role of Media: With regards to the role of media, the Court observed that 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.
Petitioners’responsibility for spreading the Covid-19 virus: The Bench observed that circumstances of the present matter create a question as to whether we are really acting as per our great tradition and culture, referring to the saying ‘Atithi Devo Bhava‘. During the situation created by covid-19 pandemic, there is a need to show more tolerance and to be more sensitive towards the guests particularly like the present petitioners. The allegations made show that instead of helping them they were lodged in jails by making allegations that they were responsible for violation of travel documents, they are responsible for spreading of virus etc.”
According to the Court, allegations against the petitioners 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 an element of persuasion on any point from these foreigners.
Malicious action by State: According to the Court, the action of the State government against these foreign nationals was under political compulsion and can be inferred as malice, hence FIRs must be quashed. The Court related the current incident to the CAA-NRC protests to explain the existence of malice. It noted that in CAA-NRC protests people were protested by taking processions, holding Dharna at many places in India from prior to January 2020. Most of the persons participating in the protest were Muslims. It is their contention 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 National Registration of Citizenship (NRC).
The Court added that due to the present action taken it can be said that fear was created in the minds of those Muslims as it 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.” – the Court said.
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Attempt to find a scapegoat: The Court called this an attempt by the Government to find a scapegoat in wake of the pandemic. The Court stated that 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 circumstances of the case and the latest figures of infection in India show that such action against present petitioners should not have been taken and 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.
-India Legal Bureau