• September 29, 2020 1:22 am

Reporting From Delhi

Trial by media, acquittal by court

BySashikala VP

Aug 28, 2020

The public may have forgotten the Tablighi Jamaat incident, but they have been under arrest till now. The Bombay High Court found no evidence that Covid-19 was spread by their actions. In fact, it felt they are victims of circumstances

The Tablighi Jamaat members became the face of the virus in India, with the state and media propagating about the group’s hand in spreading Covid-19. Now court proceedings and orders are throwing light on the cases against hundreds of its members, many of them foreigners from countries including Tanzania, Indonesia, Bangladesh, Ivory Coast, and Kyrgyzstan who entered the country on a tourist visa.

We take a look at how the courts reacted to the two critical accusations against the group, one which accused the religious meet as having led to a rise in numbers of infected, and second, that visa norms were violated.

Not guilty of wildfire

First, we look at the accusation that Tablighis were spreaders of the virus. The strongest pitch against this concerted effort of calling them the master spreaders was made by the Bombay High Court in its order of August 21. It observed that the record showed most of the foreigners had arrived in India in February 2020, and those in March had arrived before the 10th, and had tested negative upon arrival.

It gave the example of Asalebin Mohammad Noor, who had arrived on February 24, allegedly halting at Markaz Masjid, Delhi till the 27th. He then left for Bhopal, reaching the city on the 28th, from where he moved on to Ahmednagar, arriving there on February 29. He was taken into custody on March 30 by police but was kept in quarantine till April 17 at District Civil Hospital, Ahmednagar after which he was arrested.

“His test was negative…” the court observed, adding that all the foreigners are shown to have a similar record in the information supplied by the police. “It appears that the persons who were tested positive were arrested much later like the dates May 7 and May 15, but they were taken in custody on the aforesaid dates.”

The petitioners had contended that due to the lockdown, vehicular movement was stopped and the persons were not allowed to leave for residential places to prevent the spreading of Covid-19. It is contended that the Masjid had given shelter to them as due to lockdown order, hotels and lodges were closed. It is their contention that some order was issued by the Collector, but that was not actually a prohibitory order and they were not involved in illegal activity, including the breach of the District Collector’s order.

The court Bombay HC went on to quash the three FIRs against 35 petitioners – 29 of them foreign nationals – which included charges of “disobedience to order duly promulgated by public servant” (Section 188), “negligent act” likely to spread infectious disease (Section 269), “malignant act” likely to spread infectious disease (Section 270), “public nuisance” (Section 290).

They were also charged under the Epidemic Diseases Act, 1897, Foreigners Act, 1946, and the Disaster Management Act, 2005.

The court noted that going by the latest figures of infection in India, it showed that action against present petitioners should not have been taken. Advocate for the petitioners, Mazhar Jahagirdar tells Patriot, “It was in fact our submissions before the court that they (the Tablighi Jamaat members) have been made into scapegoats. Looking at the number of infections of Covid-19 positive now, what was propagated by the media or the government was totally false”.

And this is also what the bench of Justices TV Nalawade and MG Sewlikar ruled: that the propaganda against the religious activity was unwarranted.

In the case of the Madras High Court, it called it a “fact beyond dispute” that none of the 31 foreign pilgrims had tested positive for Covid-19 and nothing indicated they were responsible for spreading the virus.

“They have been in prison since 5th/9th April of 2020 and more than two months have elapsed,” the court said, noting that “absolutely no progress” had been made in the investigation almost after 70 days of incarceration in “what are truly difficult conditions”.

Here, like in the case of the Karnataka High Court, the foreigners took a plea deal which saw criminal cases quashed with the condition that they immediately leave the country. It followed an undertaking that they won’t visit India again in the next 10 years and pay the fine amount levied by the competent authority.

Advocate Jahagirdar says they had refused to take a plea and instead pursued the case on merit. “Even the court suggested to drop the proceedings earlier, but since the prosecutor was not willing, we went ahead”.

In the case of Delhi, there are still many pending cases, with at least 36 foreigners on trial. Chief Metropolitan Magistrate Gurmohina Kaur has discharged cases against some foreigners “In the absence of any record or any credible material placed before this court”.

The counsel for petitioner in this case had argued that there was “No evidence either ocular or documentary to show that the accused persons were loitering around or had violated any condition of the lockdown and had further submitted that this case was a case of force of circumstances.”

The counsel also argued that there is no evidence on record to show that any of the accused persons were continuously present inside the Markaz as has been alleged and that there is no proof of the same. It has been further argued that Section 271 IPC (Disobedience to quarantine rule) applies to vessels and therefore is not applicable in the present case.

With respect to 269 IPC and 270 IPC, it has been argued that the chargesheet is silent as to what was the negligent act done by the accused persons and what was the overt act done by them to malignantly spread the infection of Coronavirus.

Are tourists not allowed a religion?

Unlike the Madras High Court which called the petitioners’ conduct “reckless and irresponsible”, the Bombay High Court found no wrongdoing on the part of the foreigners who were being targeted by the state for violating visa norms. The prosecution or the state was calling out the Tablighi Jamaat as propagating the Muslim religion which meant it was in violation of the tourist visa which had been secured by the visitors.

The Bombay HC, while quashing the FIRs, said that unless a doctrine or set of principles proposed by the person in question creates unrest in that religion or society, one cannot prevent the foreigner from expressing his ideas about reformation.

“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.”

In its order, it further went on to observe that Articles 25 and 21 of the Indian Constitution meant that once a visa is granted to foreigners, “such foreigners cannot be prevented from visiting Masjids, if they go there to observe religious practices or to offer only Namaz.”

“Religion is part of life at least for those who are believers and so, Article 21 is applicable in case like present one”, the court observed, adding that “before taking any action by police or by the State they ought to have given thought to the rights of these foreigners…It is contended that under the conditions of visa, there was no prohibition to visit religious places like Masjids and there was prohibition to visit containment areas and the connected areas with regard to defence matter. It is their contention that they were not involved in breach of orders or in propagating Muslim religion.”

Madras High Court found them on the other hand as having “contravened the visa conditions”, however, it added that this did not mean they should be seen as criminals. The court made the observation while hearing representation from 31 petitioners in its order on June 12. The judge, GR Swaminathan in fact said that “the petitioners have not committed any act that is prejudicial to public tranquillity or security of India” instead he called the petitioners as those who had come “propelled by a sense of religious idealism. But their mission went awry”.

Another interesting stand he took was against calling the petitioners as a collective of “Tablighis”. Saying, quoting from the judgement, “categorisation can have serious pitfalls. Justicing has to be an individualised exercise. There are scores of foreign Tablighis who are presently in detention. They hail from different countries. Some of them are women. Quite a few are senior citizens. They are normal human beings. They are now stuck in alien surroundings”.

The Karnataka High Court, while it quashed criminal cases against nine foreign nationals, in the plea deal mentioned above, it did not quash the case against seven Indian nationals on grounds of their case being on a different footing.

A single bench of Justice Krishna S Dixit in fact found some wrongdoing. In his order he says that the travel documents “pointedly shows that the visas in question granted to them…bare the nomenclature e-tourist visa” which are not granted for missionary work. Meaning the court deemed the said interactions of the Jamaatis as that of missionary work.

While the courts have placed a different viewpoint on this apparent visa rule break, the observations of the Bombay HC as to why the authority was tempted to issue such directions against the foreigners is something to ponder on. It said, “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 Jamat. 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.”