Mumbai: “A political government tries to find a 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 Aurangabad bench of the Bombay high court observed while quashing FIRs registered in Maharashtra against several foreign nationals who had attended the Markaz Nizamuddun event in New Delhi in March.
Stating that the decision to criminalise foreign nationals en masse was done to give “an indirect warning” to Indian Muslims who had been protesting against the Citizenship Amendment Act (CAA) across the country, the division bench of Justices T.V. Nalawade and M.G. Sewlikar quashed FIRs registered against 29 foreign nationals and six Indian citizens. The court also observed that these FIRs were filed out of malicious intentions and that is an important consideration while quashing these FIRs.
In its 58-page judgment, delivered on August 21, the court observed:
“There were protests by taking processions, holding dharana at many places in India 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 most 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 anything can be taken against Muslims.”
While the two judges were unanimous in their decision on quashing the FIRs, Justice Sewlikar said that he had differing views on certain observations made by Justice Nalawade and he would be writing a separate judgment on the matter.
In March, right after a lockdown was imposed countrywide, the Tablighi Jamat gathering was blamed for “spreading” the coronavirus infection. The home ministry had soon after directed state governments to initiate criminal action against the Tablighi Jamat members who had attended the New Delhi event. After the event, many of them travelled to different states and were either visiting friends and relatives or were staying at Masjids there.
‘Police acted mechanically’
The high court order came close to six months after nearly 3,500 foreign nationals from 35 countries were arrested and later detained in different government and private facilities across India. In Maharashtra, too, the government identified several Tablighi Jamat members. Following the home ministry’s order, the state police filed multiple FIRs across different districts and several foreign nationals have since been stuck in the state.
To this, the Bombay high court observed that:
“The aforesaid material and discussion of law shows that 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 Cr.P.C. and substantive laws. The record shows that there was non-application of mind by police and that is why even when no record was available to make out prima facie case, chargesheets are filed by police.”
At least three FIRs were registered in Ahmednagar district. Advocate Shaikh Mazhar Jahagirdar, appearing for the foreign detainees in the district told The Wire that while the Indian nationals belonging to other states had managed to return to the hometown, the foreigners have had to stay back with only local community support.
“They have since been in Ahmednagar as one of their bail conditions were to not leave the district limits. Many Muslim community organisations have offered help and those detained have since been largely dependent just the help offered to them,” Jahagirdar said. Most of these foreign nationals, he added, belonged to poor families and were finding it difficult to continue living away from their respective countries for such a long period.
Bombay high court order by The Wire on Scribd
Although accused of similar “crimes”, different state polices have adopted different approach while registering the case. In some cases, the FIRs only mentioned sections of the Epidemic Diseases Act or the Indian Penal Code. In some cases, the police also invoked sections of the Foreigners Act for allegedly flouting visa rules by “indulging in the proselytization activities”.
The Bombay high court, however, rubbished these allegations and observed:
“The material on the record shows that Tabligh Jamat is not a separate sect of Muslim but it is only movement for reformation of religion… In any case, even from the record, it cannot be inferred that the foreigners were spreading Islam religion by converting persons of other religion to Islam. The record shows that the foreigners were not talking Indian languages like Hindi or Urdu and they were talking languages like Arebian, French etc (sic).”
In the judgment, the court further observed, “Unless a particular programme of such foreigner or idea of such foreigner or doctrine or set of principles proposed by him do not create unrest in that religion or society, one cannot prevent the foreigner from expressing his ideas about reformation. There is no such specific allegation also against the foreigners. Nothing is said as to which ideas the foreigners were propagating.”
Those detained in Maharashtra belonged to several foreign countries like the Ivory Coast, Tanzania, Djibouti, Ghana and Indonesia. The court, taking a humane approach said, “If there was any substance in the contention that there was possibility of spreading virus by these persons, proper action would have been taken against them, to send them back to their own country without taking action like present one. In the situation created by pandemic near and dear of every person who is out of house and particularly out of country are worried about the wellbeing of such persons. The actions against such persons harass not only such person, but also there near and dears.”
The Bombay high court is not the first court to make serious observations in the handling of the Tablighi Jamaat and its alleged role in spreading the coronavirus. The Madurai bench of the Madras high court, in June, had observed that the detainees in Tamil Nadu had already “suffered enough” and that Article 21 of the constitution of India applies to the applicants, even if they are of foreign nationality.
The Bombay high court too has equated religion with Article 21 and observed that that religion is a part of life, at least for believers, and hence should be covered under an individual’s right to life. Similar orders have been passed from time to time by different district courts and high court while either ordering for the foreign detainees’ release or quashing of the FIR.