Bombay HC judge disagrees with CAA comments in judgment quashing FIR against Tablighi Jamaat members
A Bombay high court judge, who was a part of a two-member division bench that quashed cases registered against 28 foreign members of the Tablighi Jamaat and six trustees of local mosques in a strongly worded order, has said he disagrees with certain remarks in the August 21 judgment.
The order said the foreigners were virtually persecuted and also added that a “political government tries to find scapegoat when there is pandemic or calamity”. The bench of Justices TV Nalawade and MG Sewlikar cited the material related to the case and added it shows “that the propaganda against the so-called religious activity [of the members of the Jamaat] was unwarranted”.
Justice Sewlikar passed a separate order on Thursday, saying he especially disagreed with a paragraph regarding protests against the Citizenship (Amendment) Act, or CAA, and the National Register of Citizens (NRC).
In the August 21 order, the bench observed the action against the Jamaat members created fear among those Muslims, who protested against CAA and NRC. “This action (against Tablighi members) indirectly gave warning to Indian Muslims that action in any form and for anything 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 the smell of malice to the action taken against these foreigners and Muslims for their alleged activities,” the division bench said.
Justice Sewlikar said he finds it difficult to concur with these observations as allegations in this respect were not made in the petitions of the Jamaat members nor is there is any evidence in this regard. “Therefore, in my opinion, these observations are outside the scope of the petitions,” he said. Justice Sewlikar maintained the cases against the foreigners and their hosts in Ahmednagar were liable to be quashed for the want of evidentary material.
The division bench struck down criminal proceedings against the 28 foreigners and six locals, observing that they were “virtually persecuted.” It cited the latest figures of Covid-19 infection and said they show the action against the foreigners should not have been taken.
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 hundreds 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.
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.
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 the Indian culture. 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 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.
“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.