Bombay HC slams Govt: Tablighis a scapegoat to warn Muslims; fix damage

THE Aurangabad Bench of the Bombay High Court on Friday quashed FIRs filed against 29 foreign nationals and six Indians in connection with a Tablighi Jamaat gathering in Delhi amidst the coronavirus restrictions in end March, saying they had been made “scapegoat”, and that the action against them was an “indirect warning to Indian Muslims” after the protests against the Citizenship (Amendment) Act.

“A political government tries to find a scapegoat when there is a pandemic or calamity and the circumstances show that there is a probability that these foreigners were chosen to make them a scapegoat,” the court said, in its order on three separate petitions by the 29 foreigners, charged with violating their visa terms and Epidemic Act guidelines, and the six Indians accused of granting them shelter in Ahmednagar district of Maharashtra.

“The material discussed shows that no such nuisance was created by the foreigners or Indian Muslims and only an attempt was made by others to create such (an) atmosphere against them,” the court said, blaming “big”, “unwarranted” “media propaganda”. “An attempt was made to create a picture that these foreigners were responsible for spreading Covid-19 virus in India.”

Asking the authorities concerned to “repent” and “repair the damage done by such action”, the Bench said, “The government cannot give different treatment to citizens of different religions of different countries… Social and religious tolerance is a practical necessity for unity and integrity of India and it is made compulsory by the Indian Constitution.”

Under a paragraph marked ‘Background of Malice’, the court said it considered what could have prompted the authorities to issue such directions. “There were protests… at many places in India from at least prior to January 2020. Most of the persons (who) participated in the protests were Muslims. It is their contention that the Citizenship (Amendment) Act, 2019, is discriminatory against Muslims… They were protesting against the NRC (National Register of Citizens)… It can be said that due to the 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 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… Similar action was not taken against other foreigners belonging to other religions,” the court said.

On the cases filed against the Tablighi members for violating the Epidemics Act, Disaster Management Act and Foreigners Act, the Division Bench of Justices T V Nalawade and M G Sewlikar noted that there was no restriction against foreigners visiting religious places, or participating in normal religious activities or discourses. It said the Maharashtra Police had acted “mechanically” and chargesheets had been filed without prima facie evidence and indicated “non-application of mind”.

“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 the Criminal Procedure Code and substantive laws,” the judges said.

The petitioners, belonging to countries such as Iran, Ivory Coast, Indonesia and Djibouti, who are currently out on bail and in Ahmednagar according to their lawyer Mazhar Jahagirder, had pointed out to the court that they had come to India on valid visas, to experience Indian culture, tradition, hospitality and food, and had declared attending the Tablighi gathering as the purpose of their visit. Several of them submitted in the court that they had arrived in February or before March 10, when there was no lockdown, and had been screened for the coronavirus at airport. They refuted police claims of violating their visa terms and said they had come only to participate in a religious tour and not to propagate Islam.

Opposing the pleas, the police argued that following the lockdown, several public announcements had been made asking people who had attended the Tablighi event to come forward for testing, but the petitioners had not done so, thus putting others at risk of contracting the coronavirus.

The six Indians who moved court included trustees of Ahmednagar mosques who had given the foreigners shelter after the Tablighi gathering, as the lockdown started and they couldn’t leave due to flight cancellations.

Pointing out that the Tablighis had been holding such gatherings for years, the court said, “The activity was going on for more than 50 years and it is (held) throughout the year.”

It said the fact that mosques had given them shelter “could not have been treated as (an) offence”, and that gurdwaras too had opened doors for migrant workers during the lockdown. The court said the authorities had submitted no material to indicate mosques had been opened for general public to offer prayers, in violation of the district authority orders.

It refused to grant a stay for filing of an appeal, saying the process of granting the Tablighis permission to go home and arrangement of flights would take time anyway.

At the end of the judgment, Justice Sewlikar said that while he agreed with the part of the order quashing the FIRs, he had differing views on a few observations made by Justice Nalawade. Justice Sewlikar’s separate judgment, with his reasons, is yet to be made available.

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