Bombay HC’s Tolerance Lesson On Tablighis

As the Bombay High Court quashes cases against 35 Tablighi Jamaat pilgrims saying foreigners were made ‘scapegoats’, we analyse two other judgements that closed similar prosecution: A Karnataka judgement spoke about "bestowing reprieve", while a Madras High Court judge said it was the right thing to do.


ARUSHI THAPAR & ZAID WAHIDI

ILLUSTRATION BY @SMISHDESIGNS

Nagpur/Mumbai: A pilgrimage to India over February and March 2020 turned to trauma for Muslim visitors from various countries—such as Tanzania, the Philippines and the Ukraine—who found themselves under arrest and transformed into central characters in Islamophobic propaganda that linked them to a spike in India’s coronavirus cases.


On Friday, the Bombay High Court quashed three FIRs against 35 petitioners—29 of them foreign nationals—who attended a Tablighi Jamaat congregation in Delhi’s Nizamuddin in March and travelled from there to different parts of India.


Read the entire judgement here.

They faced charges under sections of the Indian Penal Code, 1860, including “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.


“We believe in respecting guests but these people were made the scapegoat,” said advocate Mazhar Jahagirdar, who represented many of the pilgrims and said his clients were detained in various jails in Maharashtra's Ahmednagar district for 60 days before the chargesheet was filed and they could apply for bail.


“They were targeted in the media and in some parts of society," said Jahagirdar.


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

The court asked whether India had been true to that popular belief ‘Atithi Devo Bhava’ (guest is God) and whether we had acted “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," Justice T V Nalawade said in his judgement. "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.”


While Justice M G Sewlikar agreed with the operative portion of the ruling, he disagreed with Justice Nalawade's reasoning and said he would write a separate judgment explaining his reasoning.


“Big Propaganda” Against Foreigners

The judgement said there was “big propaganda” in print and electronic media against the foreign pilgrims which blamed them for spreading Covid-19. “There was virtually persecution against these foreigners,” it said.


On 1 April, the government first claimed—with little evidence—that the Tabligh meet was a major national Covid-19 source, sparking a tide of Islamophobia, hate speech and crimes against Muslims, as Article 14 reported on 11 May.


Relentless social media slander included the use of hashtags like #CoronaJihad. TV news channels like ABP Live called members of the Jamaat manav bomb or human bomb, a sentiment echoed by BJP leaders, including former Maharashtra chief minister Devendra Fadnavis. Sudhir Chaudhary of Zee News said on his show that the “Tablighi Jamaat betrayed the nation.”


Researchers Soundarya Iyer of the French Institute of Pondicherry and Shoibal Chakravarty of the Divecha Centre for Climate Change, IISc., who analysed media reportage about the Jamaat from 20 March to 27 April, found “11,074 stories published from 271 media sources with the term ‘Tablighi Jamaat’.


They found that though the most frequently appearing words alongside ‘Tablighi’ and ‘Jamaat’ were ‘coronavirus’, ‘Delhi’, and ‘lockdown’, words with negative connotations such as ‘violating’, ‘crime’, ‘spitting’, ‘terrorist’, and ‘jihad’ also showed up repeatedly. “These stories fed into an epidemic of Islamophobic fake news and hate speech,” they wrote in The Hindu BusinessLine.


Iyer and Chakravarty told Article 14 in an email that they agreed with the judgement: Sustained media coverage had created the impression that the Tablighi Jamaat contributed to spreading the virus.


“This was possible as new newsworthy events or stories on the same topic were constantly being generated over an extended period," they said. "The sustained coverage can happen organically through real (or fake) stories, and can also be aided by actions of the state machinery, such as explicitly suggesting that the Tablighi Jamaat were responsible for spreading the virus, or putting out a daily list of positive cases associated with Tablighi Jamaat contact tracing.”

The Markaz in Nizamuddin/THEDELHIWALLA.COM

From Vivekanand To Visa Violations

The court said the government’s actions in this case had reminded the court of Swami Vivekanand’s 1893 address at the World’s Parliament of Religions in Chicago. “He had started his speech with the words like ‘sisters and brothers’ showing that he believed in universal brotherhood. He believed that all religions are true,” the court said, underlining that the world “fraternity” was an integral part of the Constitution.


The court dismissed confidential central government circulars that stated the Tablighis had violated provisions of their tourist visa by “spreading Muslim religion by giving speeches in Masjid”. The petitioners contended that they were, “not involved in breach of orders or in propagating Muslim religion.”


Justice Nalawade referred to the history of the Tablighi Jamaat, calling it a “reform movement” that was founded by “Maulana Mohammad Iliyas in 1927 in Delhi and this movement is popular in villages and peasants". He said Muslims from many other countries come to India to visit the Nizamuddin Markaz.


The court rejected the government contention that visa provisions were violated. Visa provisions do not restrict, “foreigners to visit the religious places and to have religious discourse”, according to Justice Nalawade, who said the court could not infer that they were “spreading Islam religion and there was intention of conversion".


Karnataka & Madras High Court: Divergent Views, Identical Result

Two other High Courts also recently closed criminal prosecution against foreign nationals in connection with their presence at the Tablighi Jamaat congregation. While both rulings arrived at the same conclusion, the underlying considerations were different.


However, the pilgrims signed affidavits before the Madras and Karnataka High Courts admitting they had violated visa conditions and would not return to India for 10 years and agreed to pay a fine.


The Madras High Court said it was a “fact beyond dispute” that none of the 31 foreign pilgrims before it 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”.

Categorization can have serious pitfalls. Justicing has to be an individualized 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 petitioners came here propelled by a sense of religious idealism. But their mission went awry. They are now eager to go back to their families. They are willing to file individual affidavits admitting that they had violated the visa conditions.”


Justice G.R. Swaminathan, the judge concerned, described the state and central government detention and prosecution of the foreign pilgrims as “unreasonable, unjust, and unfair”. He ordered the conclusion of proceedings if the pilgrims signed affidavits expressing regret for violating visa conditions.


The Karnataka High Court order said it would not act as a precedent for future rulings, as it quashed FIRs against nine foreign nationals, but refused to quash FIRs against seven Indian nationals. It also rejected the contention of the petitioners that the prosecution of the Tablighis was due to media-generated prejudice.


While following the Madras High Court’s ruling and arriving at the same conclusion, that the pilgrims promise to stay away from India for 10 years, the Karnataka High Court’s ruling was based on the reasoning that “reprieve” needed to be “bestowed” on the foreign pilgrims. The Madras High Court said that “Covid-19 should teach us to care for each other rather than use the arsenal of law…The situation calls for empathy and understanding.” It also held that the Tablighis’ actions had “not prejudiced public tranquility”.


The Karnataka High Court described the petitioners as “miscreants”. In accepting the state and central governments’ “graceful stand” on what they described as “delinquent Tablighis”, the court also invoked the “great traditions of our country", although in a spirit in variance with the rulings of the Bombay and Madras High Courts.


“Times may be uncertain," said Justice G R Swaminathan, Madras High Court. "But rights have to be certain."


Update: Justice M G Sewlikar delivered his judgement on 27 August. He disagreed with Justice Nalawade’s observation that because of these FIRs, Muslims who participated in the protests against the Citizenship Amendment Act (2019) and the National Register of Citizens were given a “warning” 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 smell of malice to the action taken against these foreigners and Muslim for their alleged activities.” read Justice Nalawade’s judgement.


Justice Sewlikar noted that no such allegations had been made in the petitions and said that there was no evidence in that regard. He maintained that, “in my opinion these observations are outside the scope of the petitions”.



(Arushi Thapar is an intern with Article 14. Zaid Sufi Wahidi is a practising lawyer at the Bombay High Court.)

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