By quashing FIRs against foreign Tablighi Jamaat members, Bombay HC shows govt that Muslims can’t be singled out for prosecution

One hopes that the powers that be will take note of the judgement, which quashed the FIRs against 29 foreign Tablighi Jamaat attendees, and mend the errors in their ways. It’s about time someone read the Riot Act to the executive branch

Ajay Kumar August 22, 2020 21:22:14 IST
By quashing FIRs against foreign Tablighi Jamaat members, Bombay HC shows govt that Muslims can’t be singled out for prosecution

For the longest time, England had a law on the books called the Riot Act of 1714. The Act essentially provided that when the authorities found more than 12 people unlawfully assembled, they could read out a proclamation asking them to disperse. Those who did not disperse after the reading of the proclamation, would be guilty of a felony and any force could be used to disperse them.

Today, in the English-speaking world, the phrase "reading the riot act" means a good dressing down given to someone by a person in a position of authority. On 21 August, the Bombay High Court's Aurangabad Bench, did just that.

It gave the government, and quite frankly a lot of people in this country, a proper dressing down about the way certain sections of the community have been targeted.

The Bomay High Court was hearing an application by 29 foreign nationals, who had been charged with a variety of offences, including allegedly violating the visa conditions, by attending a Tablighi Jamaat congregation in Delhi's Nizamuddin Area. The court examined the nature of these offences and made some very pertinent observations. The government should do some serious introspection right now for the Bombay High Court has been scathing in the manner in which it has indicted its behaviour with regards to the Nizamuddin markaz incident.

It was the case of the prosecution that, while patrolling, they received inputs that some Indian and foreign nationals were offering prayers at the Kazi Masjid of Jamked. Upon visiting the site, they found some foreign nationals giving speeches on thoughts and the philosophy of the Muslim religion. The police also found a similar thing happening at the Mehraj Masjid of Ahmednagar and the Bhaldar Masjid of Newasa City. Consequently, FIRs were registered against 29 foreign nationals in total and some Indian nationals as well.

During the hearing, the State contented that the foreigners were in India on a tourist visa but were engaging in religious activites and accordingly were in contravention of the provisions of the Foreigners Act, 1948. Further, they had also breached the lockdown regulations and accordingly were in contravention of the Disaster Management Act, 2005, the Epidemic Diseases Act, 1897, and various sections of the Indian Penal Code of 1860.

The petitioners before the court contended that they were here to see India and experience Indian culture, hospitality and food. They were screened at the airport and only allowed in after they were found COVID-19 negative. Further they said, that when the lockdown was suddenly imposed, vehicular movement stopped and they weren't able to find accommodations so the mosque gave them refuge.

The court, agreed with the petitioners and held that even foreigners, who otherwise do not have the rights guranteed under Article 19 of the Constitution (free speech, etc), while in India, still have rights under Articles 20 (protection in respect of conviction for offences), 21 (Right to Life) and 25 (freedom of religion) of the Constitution of India.

In some scathing observations, the Bombay High Court held:

"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. 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 aforesaid circumstances and the latest figures of infection in India show that such action against present petitioners should not have been taken. 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."

"In our culture, there is saying like 'athithi devo bhava' which means that our guest is our God. The circumstances of the present matter create a question as to whether we are really acting as per our great tradition and culture. During the situation created by COVID-19 pandemic, we need to show more tolerance and we need to be more sensitive towards our guests particularly like the present petitioners. The allegations made show that instead of helping them we lodged them in jails by making allegations that they are responsible for violation of travel documents; they are responsible for spreading of virus, etc.

"The question arises as to what must have tempted the authority to issue such directions against the foreigners like the petitioners. The record of this matter and the submissions made show that (the) action of Central Government was taken mainly against Muslim persons who had come to Markaz Delhi for Tabligh Jamamat. 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.

"There were protests by taking processions, holding dharana at many places in India from at least from prior to January 2020. Most of the persons participated in protest were Muslims. It is their contention that 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). There were protests on large scale not only in Delhi, but in the most of the States in India. It can be said that due to the present action taken fear was created in the minds of those Muslims. This action indirectly gave warning to Indian Muslims that action in any form and for any thingcan 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 FIR and the case itself.

"In Marathi, there is saying meaning of which is 'missing Fakir/begger can be found in Masjid'. In big religious places including Masjids there are arrangement of stay made for religious persons or the persons who are involved for maintaining of the Masjids. If they allow some persons like foreigners to stay with them, it cannot be said that they have committed the offence of breach of the aforesaid orders. In the present matters, even the trustees of the Masjids are made accused by making allegations against them that they had given shelter to foreigners and they had supplied meals to the foreigners. During lockdown period, all over India in many religious places arrangement was made for destitute persons, to give them shelter and to provide them meals. Such arrangements were made in gurdwaras, Masjids and other religious places. During lockdown period even beggars were not found on the road and some NGOs and such religious institution had made arrangements for them also. The migrant labourers were accommodated accordingly. Due to prohibition orders, hotels and restaurants were closed. Thus, giving shelter to such persons could not have been treated as offence, commission of the act of disobedience of aforesaid orders.

"It is already observed that the Muslim persons who had given shelter to the foreigners are made accused probably with some purpose. This action must have created pressure on Indian Muslims. The persons of this community may avoid to keep contact with Muslims of other country now due to such actions. The material in respect of possibility of spreading of infection by the petitioners is already discussed with relevant dates. This situation created by the present action is against the promotion of idea of universal brotherhood. So, this court holds that there is no material on record to make out prima facie case for the breach of aforesaid orders. No other order was produced on record and as already observed, the orders are not specifically mentioned in the charge sheet and copies of the orders are not shown to be supplied by showing them in the charge sheet.

"It is a fact that many foreigners of other countries are sent back by the Central Government without making any inquiry. Social and religious tolerance is 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 great extent. This approach helps (the) participation of most in (the) developing process. We have been respecting both religious and secular sensibilities since Independence and by this approach we have kept India as united.

"The aforesaid material and discussion of law shows that (the) Maharashtra Police acted mechanically. It appears that the state government acted under political compulsion and police also did not dare to exercise powers given to them under provisions of procedural law like CRPC and substantive laws. The record shows that there was no application of mind by (the) police and that is why even when no record was available to make out prima facie case, chargsheets are filed by police. The government cannot give different treatment to citizens of different religions of different countries. Article 14 of the Constitution of India shows that there needs to be ‘law’ as mentioned in this Article and for some object the classification can be made which needs to be reasonable. Such law can be subjected to the test of constitutional validity. The ‘contents’ of ‘the law’ can also be sufficient to rebut the presumption of reasonableness for the classification and the rebuttal of presumption of reasonableness is possible after consideration of even extraneous material. Further, whether such discrimination can be made without making such classification under law, whether such administrative or executive instructions can be issued, will be a question, but this Court is not going into that question. For the limited purpose, this Court is holding that the police action is based on such instructions probably of the executive and apparently there is discrimination as mentioned above. On this ground also, the malice is inferable and the cases needs to be quashed."

The Bombay High Court’s observations are a scathing rebuke to what has now become a part of the policy of the government, which is to specifically single out Muslims for prosecution, which in turn, has turned into persecution. This policy has finally been called out in the open and rebuked for being antithetical to core constitutional values. One hopes that the powers that be will take note of this judgement and mend the errors in their ways. It’s about time someone read the Riot Act to them.

Updated Date:

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