The world will not be the same after COVID-19. Humanity will have to find newer ways of dealing with public health emergencies, considering the developed countries of the West are the worst affected despite their state-of-the art health infrastructures. The United States, in particular, must have realised that its excessive expenditure on the war against terror was flawed and misdirected.
The blame game
Initially, no one blamed China for underreporting and delayed sharing of information with the World Health Organisation (WHO). No one pointed a finger at the WHO for advising against travel bans for weeks together. No one faulted the United States either for wasting crucial weeks before recognising the dangers of this new virus – President Donald Trump kept saying, we will be fine, and ignored his own experts’ advice (now he has created another crisis by suspending the United States’ monetary contribution to the WHO).
Further, no one censured some European nations for playing a major role in converting the epidemic to a global pandemic – if the virus made its way to 27 countries from China, it travelled from Italy alone to as many as 46 countries. And, finally, no one criticised the Indian government or Mukhtar Abbas Naqvi for saying, as late as March 13 and March 18 respectively, that “there is no need to panic and there is no health emergency” or for delaying the lockdown long after France, Italy, Germany and Spain decided to do so.
As per the WHO constitution, it is the governments which have the primary responsibility for ensuring their people’s health. The question is will governments ever be held liable for their failure?
Subsequently, when cases of people affected by COVID-19 started being reported from several countries, the blame game started – and how! The United States started calling it the China virus, some in the United States blamed orthodox Jews, African nations pointed the finger at the white race, Pakistan found fault with the Shias, and we in India have put the entire responsibility for the spread of the novel Coronavirus on the Tablighi Jamaat (TJ).
Although Telangana had informed the Centre about the first TJ case on March 18, nothing was done about it for more than a week (recall Mukhtar Abbas Naqvi’s March 18 statement in parliament that there was no need to panic). No one talked about the undue delay in the Indian government’s response in terms of travel bans, universal screening at the airport, inadequate supply of masks, PPEs and ventilators, the sudden lockdown without requisite preparations, the delayed ban on religious congregations and, above all, the extremely low rate of testing.
Even at the end of almost two weeks of lockdown, on April 8, we were doing just 0.092 tests per 1000 when Germany was testing 15.96 per 1000. We were doing ten times less tests than Canada and six times less tests than USA. Today (April 16), 5.5 lakh antibody testing and 1 lakh rapid testing kits from China will reach India. One hopes this will improve our testing rates.
But those facts were not deemed important enough to be newsworthy. Instead, TV news channels and their sensationalist journalists used the irresponsible conduct of TJ’s head, Maulana Saad, as a godsend to further add fuel to the fire of hate and bigotry.
And, despite the fact that TJ is just one small sub-group of the Deoband school, the entire Muslim community was demonised. Under criminal law liability is individualistic. Let alone the entire Muslim community, all the members of TJ or all those who were evacuated from the TJ mosque – the Banglewali Masjid, or Nizamuddin Markaz – cannot be held criminally liable for the wrongs or misdemeanour of the TJ head.
One newspaper even published an editorial titled ‘Bad apples in the basket’, referring to “an annoying 18 percent of its [India’s] population self-identifying as rotten apples” and concluding that the ideal solution to the “problem created by bad apples is to get rid of them”.
In fact, even the Deoband school has serious differences with TJ and had issued a fatwa against Maulana Saad, calling him ‘misguided’ and rejecting his interpretations. He is indeed a controversial figure and not many within the Muslim community support him. Muslims, like Hindus, are not a homogenous community. There are several sects, sub-sects and groups within sub-sects like TJ.
At a time when real businesses are seeing their worst slowdown in decades, the fake news business is booming in India. On April 14, some news channels tried to hold Muslims responsible for the surge of huge crowds of migrant workers in Mumbai who wanted to go home after the prime minister’s announcement of an extension of the nationwide lockdown till May 3. Soon, similar crowds were seen in several other cities, too.
As far as hard statistics are concerned, until now neither the Government of India nor the Indian Council of Medical Research (ICMR) have made public information about the following: the total number of people who were present at the TJ mosque or came in contact with them and were tested, and how many of them tested positive.
Some sensible reports said 30 % of Indian cases can be attributed to the TJ event (March 13-15). But even these reports kept mum on the profile of the remaining 70 % and how they got infected. In any case, the right to privacy was not respected and the names, phone numbers and passport numbers of many were made public.
Tablighi Jamaat’s core philosophy and organisational structure
TJ, founded by Maulana Muhammad Ilyas Kandhlawi in 1927, is not an organisation in the true sense of the term, with an identified membership. It does not even have a proper office or branches and just operates from mosques, though the Nizamuddin mosque is kept in the loop as regards TJ activities all over the world
TJ does not have any enrolment register, is not registered anywhere as a trust, NGO or Section 8 company, nor does it engage in any proselytizing activity – it works only amongst Muslims to improve their worshipping habits, concerning itself with life in the hereafter. It does not issue any fatwa and never takes a position on any political issue. As it happens, the biggest criticism of TJ within the Muslim community is that the affairs of life in this world are a non-concern.
TJ does not produce any literature. In its sessions the book Fazail-e-Amaal, written by Maulana Mohammad Zakaria Kandhlawi, a nephew of TJ’s founder, is read with a great deal of reverence. The book, which is about the virtues of good deeds, is criticised by Islamic scholars for quoting several unauthentic sayings of the Prophet and is not considered an authoritative scholarly work.
TJ’s sessions are open to anyone who goes to a mosque for prayers. An announcement is made after the prayer that those who are interested in conversations about religion and life hereafter may, if they so wish, stay back for a few minutes and listen to the speaker These speakers are not professional preachers but are selected through consultation from those present. There is no list of such speakers.
There was a time when TJ had a highly decentralised and consultative decision-making process. For the smallest of decisions, many people used to be consulted. Even now this consultation takes place in the Nizamuddin mosque from 10 a.m. on a daily basis, but it is Maulana Saad who has the final word. It seems that some kind of record is maintained of these deliberations in one diary.
The founder of TJ was succeeded by Maulana Muhammad Yusuf Kandhlawi and after him came Maulana Inamul Hasan Kandhlawi who died in 1995. He did not name any successor; instead, he appointed a 10-member consultative council to manage the affairs of TJ. It seems almost all the members of the council except Maulana Saad, the great grandson of TJ’s founder, passed away in the following two decades. By 2016, Maulana Saad himself took over the affairs of TJ.
This led to a vertical split, with elders constituting a rival TJ under Maulana Ibrahim Dewla and Maulana Ahmed Laat. They had serious reservations about the authoritarian style of Maulana Saad. Maulana Saad may well have to pay a heavy price for his authoritarian leadership and for not having the benefit of competent advisors.
It is important to note that the rival TJ group (Ibrahim and Laat), which operates from the Faiz Ilahi Mosque at Turkman Gate, in Delhi, did cancel its congregations in the national capital as well as Mumbai. In fact, it suspended all its activities in the first week of March itself.
The aspect of criminal liability
We will now examine the criminal liability of TJ head, Maulana Saad, and those who attended the congregation at the Markaz in Nizamuddin West, New Delhi (March 13-15). Since religious congregation was not banned until March 15, the decision to go ahead with it was certainly stupid and irresponsible but not criminal.
However, there is no doubt it was contrary to the instruction of the Prophet of Islam who in such situations had rightly advised Muslims to pray in their homes and not go to mosques. Moreover, the Quran clearly says that saving one life is like saving all humanity and taking one life is like killing all humanity. Islam treats human life as most precious and, therefore, all precautions must be taken to protect human life.
The entire Muslim world, including fundamentalist Saudi Arabia, had prohibited prayers in mosques. At a time when even the Mecca and Medina mosques had been closed to the public, Maulana Saad preferred to go against saner voices. Subsequently, after the closure of the Nizamuddin mosque, he himself advised TJ followers to stay home. In doing so he contradicted himself as in his earlier speeches he had ridiculed the social distancing advisory.
By going against the Sunna of the Prophet (sayings and actions of the Prophet), he has also gone against the Quran which clearly says the best example for the Muslims is the Prophet himself. In unnecessarily risking the lives of his followers and other human beings, he has lost the right to lead his group unless he seeks God’s repentance after admitting his mistakes and his followers yet again repose faith in him. Of course, he never intended any harm to anyone and therefore his followers may eventually forgive him.
The congregation was in fact a routine, bi-annual meeting that was fixed two years’ ago to evaluate the activities of TJ in Telangana and Andhra Pradesh. After the Delhi event, TJ workers from Tamil Nadu were to meet next from March 22-24. Accordingly, most people who were present at the TJ mosque were from these three states. As usual, no invite was issued to anyone. Attendees came voluntarily, spending their own money as TJ does not sponsor anyone. Even foreigners bear their own expenses.
In any case, until March 15 there was no domestic travel ban either. As far as the foreigners present at the Nizamuddin mosque are concerned, they may be held liable for violating visa conditions, but the bigger question is why the visas of people from Malaysia and Indonesia were not revoked and why they were released at the Delhi airport rather than being sent back or put in quarantine if that was the government policy by March 15.
We should also keep in mind that Article 25 gives freedom of religion to “all persons”, hence foreigners who come to India even on tourist visas are at par with citizens and do have the right to profess, practice and propagate their religion.
Of course, this freedom is subject to public order, health and morality and other fundamental rights. For instance, the government has now closed all religious places and, therefore, no one, including a foreigner, today has the fundamental right to pray in any religious place of worship.
Since TJ does not engage in propagation or proselytization, which is prohibited while granting tourist visas, that is not an issue here. Foreigners could certainly attend the daily prayers, visit religious places like mosques or practise their religion. To the best of this author’s knowledge, foreigners associated with TJ do nothing beyond praying in mosques. Of course, if their visas mentioned only certain cities that they were allowed to visit, going to any other city would clearly be a violation, making them criminally liable.
The TJ congregation – a criminal conspiracy?
If some TV channels termed TJ’s irresponsible acts ‘corona jihad’, others straightaway declared that it was responsible for the criminal conspiracy of spreading COVID-19, making viewers familiar with the term ‘super spreaders’.
Criminal conspiracy requires an agreement between the accused to commit the crime. Who entered into this agreement on behalf of TJ? In Mohd Amin (2008), the Supreme Court held that knowledge of the main object and unity of purpose is a necessary requisite of conspiracy under section 120-B.
There is likely to be no evidence whatsoever to prove that Maulana Saad first entered into an agreement with his seven advisors to retain people in his mosque after March 15 so that they would first get infected by the foreigners present there and then intentionally spread the deadly virus in the entire country.
It is important to remember that almost all the 1500 people who were eventually evacuated from the Nizamuddin mosque on March 30 and 31 were themselves victims, not perpetrators or culprits. Many of them got infected and some of them even died due to Maulana Saad’s lack of foresight, rejection of medical science and erroneous and flawed interpretation of Islam.
Due to the lockdown imposed in the national capital from March 22 by the Delhi government, followed by the 21-day nationwide lockdown from March 24, people were stranded in Nizamuddin and could not move out.
For that matter there are 4,000 Sikh pilgrims from Punjab who are similarly stranded in Nanded (Maharashtra); the Jammu & Kashmir High Court had to intervene for those stranded at Vaishno Devi. There has been no information as to how many of them were tested and what the results of such tests were.
Also, about 1800 people from Gujarat were evacuated from Haridwar in 28 luxury buses in early April. Why was this facility not extended to the people in Nizamuddin? This despite the fact that they went to the police, gave a list of all those stranded there and merely sought e-passes for travel after arranging buses and drivers themselves. It is a matter of record.
The charges framed against the TJ head and advisers
On the complaint of the Nizamuddin Police Station SHO, Mukesh Walia, an FIR was filed on March 31 against TJ (Saad Group), Maulana Saad and seven others under Section 3 of the Epidemic Diseases Act,1897, and Sections 269, 270 and 271 read with Section 120B of the Indian Penal Code (IPC), 1860. Through these sections he is being accused of disobeying orders of a public servant and spreading infectious disease.
On April 15, another charge was added: the TJ head was booked on charges of culpable homicide not amounting to murder (Section 304, IPC). The punishment for culpable homicide is life imprisonment or 10 years imprisonment.
Section 299 of the IPC defines culpable homicide. It says whoever causes death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Guilty mind, or mens rea, is central to the crime of culpable homicide.
The accused under Section 299 must have intended the death of the victim. It is absolutely absurd and ridiculous to say that Maulana Saad intended anybody’s death. Neither did he cause injuries likely to cause death nor did his act of non- cancellation of the event of March 13-15 or giving of shelter to those who got stranded due to the initial lockdown in Delhi and later across the country, can legitimately be said to be acts done with the knowledge of causing the death of anybody.
Knowledge means consciousness and connotes awareness of the consequences of his conduct. The whole problem with Maulana Saad was that due to his irrational and erroneous religious beliefs, he had no consciousness at all of the possible consequences of congregational prayers at the Nizamuddin mosque.
Disobeying the orders of a public servant
The Epidemic Diseases Act,1897, is an archaic colonial law that merely empowers state governments and the central government to prescribe temporary regulations to be observed during a dangerous epidemic if ordinary laws are found to be insufficient. Section 3 of the Act does not create any new offence. It merely punishes people for disobeying an order promulgated by public servants under Section 188 of the IPC. Such an FIR has to be filed after a complaint to a magistrate.
Though mens rea, or guilty knowledge, is an essential ingredient of this crime, the explanation of Section 188 makes it clear that it is not necessary that the offender should intend to do harm or contemplate his disobedience as likely to do harm. It is sufficient that he ‘knows’ of the order which he has disobeyed and that his disobedience does or is likely to do harm (here in terms of human life, health or safety as mentioned in Section 188).
In Ram Samujh and Others vs State (1967), it was held that when orders have been passed under Section 144 of the Code of Criminal Procedure, 1973, disobedience of such orders shall be punishable under Section 188 of the IPC. If the audio clips of Maulana Saad in circulation are authentic, he is likely to be held guilty under Section 188 as it is clear that he was aware of COVID-19 and the advisory about social distancing, yet due to his blind and wrong religious beliefs, he urged those present in Nizamuddin not to stop coming to God’s house, i.e., the mosque.
Maulana Saad erroneously believed that Islam mandates people to have congregational prayers even during such taxing times. He could not understand the concept of social distancing. In fact, he could not understand the nature and quality of his acts. He is not the only one to behave in an irresponsible manner. Churches in France, South Korea and Florida and the ISKON temple in London continued to offer services and similarly contributed to the spread of the coronavirus. Even on April 12, several churches in the United States offered Easter services.
The maximum punishment under Section 188 is simple imprisonment of one month or a fine, which may extend to Rs 200, or both.
A mind guilty of spreading coronavirus?
Let us now discuss the other charges. Section 269 of the IPC lays down that whoever performs an act unlawfully or negligently, which he knows or has reason to believe to be likely to spread the infection of any disease dangerous to life, shall be punished with a term which may extend to six months or with a fine or both. The expressions “knows” as well as “reason to believe” do indicate the requirement of a guilty mind. What does term “knows” mean? Knowledge is awareness as to the consequences of the act on the part of the accused, indicating his mind.
Common sense will tell us that Maulana Saad certainly did not know that some of those listening of him were already infected and that there were carriers sitting next to him in his mosque or eating with him who would infect him or others. In fact, he, like a few other preachers from other religions, was so blinded by his religious beliefs that he thought that coming to the mosque would actually cure people or protect them from the Coronavirus. In fact. he endangered his own life and had to go in self-quarantine. Ideally, he should have offered to be tested.
Section 270 of the IPC is an aggravated crime and is almost identical to Section 269 except that it uses the expression ‘malignantly’ and enhances punishment to two years imprisonment or fine or both. The term ‘malignantly’ too refers to a guilty mind, or mens rea, as it requires that the accused, while spreading infection of any disease dangerous to life, must have done so with malice, i.e., deliberate intention.
What is intention? In Jai Prakash (1991), the Supreme Court observed that intention is the conscious exercise of the mental faculties of a person to do an act for the purpose of accomplishing or satisfying a purpose. A result is intended when it is an accused’s purpose to cause it or when the result is virtually a certain consequence of his act and the accused does know that it is virtually a certain consequence. Maulana Saad certainly did not have the ‘purpose of spreading Coronavirus’ in his mind. Similarly, he was also not virtually certain of the consequence of its spread the way it has across the country.
A person is said to act intentionally in respect of a result when he acts either in order to bring it about or is aware that it will occur in the ordinary course of events. This possibly was not the case with Maulana Saad. Getting his own followers or advisors infected was certainly not the purpose or the intention of Maulana Saad. But then the law also says that every person is to be presumed to intend the natural or probable consequences of his own act.
Can Maulana Saad take the defence, based on his blind religious beliefs, that coming to the mosque for prayers would cure diseases? To put it another way, with regard to the aspect of negligence can the judge take into account the accused’s personal inability to appreciate the risk of the proscribed harm? Under classical law, having less foresight than the ordinary prudent man will not help the accused. British legal philosopher HLA Hart favours taking into account the specific mental and physical capacities of the accused, but courts have not accepted this. Therefore, this defence won’t help him.
Similarly, Maulana Saad would find it difficult to exempt himself from criminal liability under the mistake of fact exception under Section 79 of the IPC. The mistake of fact exception negatives guilty intent or knowledge and is available if the accused can prove by preponderance of evidence under Section 105 of the Indian Evidence Act, 1872, that he was ignorant of the relevant facts or mistook the facts and that he neither intended nor foresaw the resulting unlawful consequences of his act.
In such situations the courts normally proceed on the fiction that the facts were as the accused had mistakenly believed them to be and not as they really were. Thus, in Chirangi (1952), a person who killed his own son under the mistaken impression that he was killing a tiger was given the benefit of the mistake of fact exception. In the TJ case, the court may, therefore, go by the believed fact, i.e., God would keep those safe from Coronavirus who come under his wings for refuge and visit mosques for prayers.
But, to get the benefit of the mistake of fact exception, Maulana Saad has to prove that he acted in ‘good faith’. Section 52 of the IPC defines ‘good faith’. It says that nothing is said to be done or believed in ‘good faith’ which is done or believed without due care and attention. Maulana Saad acted without due care and attention and, therefore, his act cannot come within the purview of ‘good faith’.
As a matter of fact, the IPC merely gives a negative definition of ‘good faith.’ Section 3(22) of General Clauses Act,1897, on the other hand, gives a positive definition of ‘good faith’, laying down that “a thing shall be deemed to be done in ‘good faith’ where it is in fact done honestly, whether it is done negligently or not”. Unlike the IPC, here honesty or right motive have been emphasised, so if the intention of the accused is honest, then even if his act was negligent, it shall be deemed to be in ‘good faith’.
The media has accused TJ of negligence and attributed guilty intention and guilty knowledge to Maulana Saad without realising that negligence does not involve a mental state, or mens rea. Negligence can be proved without examining the accused’s state of mind. He did not have a guilty intention and yet can be punished for negligence.
What is negligence? Negligence is the failure to conform to the standard of care to which it is an accused’s duty to conform. Liability for negligence is based on the utilitarian argument – it is the failure to behave like a reasonable or ordinary prudent man. It is a different thing that in law this ordinary prudent man is not the man on the street but a figure supposed to be cautious, ideal, sober, and exemplary. Unfortunately, in this entire episode Maulana Saad has not emerged as an exemplary figure. What he has come across is as a man who has put at risk not only his own life but also of his advisors, followers and larger humanity, in the course irreparably damaging the cause of TJ.
Let the law take its own course. As for Maulana Saad, he should himself come forward and surrender to the police. In a rule of law society every person must have faith in the due process of law. Let the liability of Maulana Saad be determined in a fair trial. Under our criminal justice system every accused is presumed to be innocent unless found otherwise and if two versions of the prosecution story are possible, one favouring the accused and other supporting the prosecution, it is the former that has to be accepted.
But then the criminal liability of one individual or even of seven others cannot be extended to the entire Muslim community. True criminal law is an instrument of state but ideally it should never be used either in retaliation or to cover up the failures or unjustifiably delayed government decisions.
It is solidarity rather than the act of demonising which will help us cope with this unprecedented crisis. Due to the fault of a few, the exclusion/boycott or persecution of the larger Muslim community is not only totally unwarranted, but also unethical and illegal.
Faizan Mustafa is vice-chancellor, NALSAR University of Law, Hyderabad. The views expressed are personal.
Note: An earlier version of this article, based on a news report in The Hindu on March 31, 2020 had noted “there are people stranded even at the Isha foundation of Sadguru Jaggi Vasudev”. That line has been removed as in an email to The Wire, the Isha Foundation said “not a single person is stranded in the Isha Yoga Center and the reports of the regular check-ups suggest that none of the residents and volunteers, including foreigners, who are staying in the ashram premises have any COVID-19 symptoms”.