The Auarangabad bench of the Bombay High Court quashed FIRs registered against 29 foreign nationals and six Indian citizens who had attended the Markaz Nizamuddin event in Delhi in March. Muslims attending the annual religious meeting at Markaz were arrested after an Islamaphobic propaganda was run by the Indian media that linked them to a spike in Coronavirus cases.
Muslims, including women and elderly languished in jails for over 70 days in extremely “difficult conditions”. Charges were framed against them by governments for “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. Giving a communal colour and blaming the Muslim community for the incidents of coronavirus the governments went a step ahead in maliciously accusing Muslims of propagating religion and doing religious conversions and breaching visa rules by doing so – allegations that were rubbished by the Bombay High court.
The Court observed that these FIRs were filed out of malicious intentions and that is an important consideration while quashing these FIRs. The bench stated that 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 Court also appeared to pull up the government which failed to handle the situation competently and instead made a scapegoat of the foreigners and Muslims. “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 bench observed.
The extreme actions taken by government which “instead of helping them..lodged them in jails” harassed not only the individuals concerned but also their families who were concerned for their wellbeing in different parts of the world, the court said while taking a humane approach which the government failed to adopt.
Two other High Courts– Madras and Karnataka– also made serious observations and closed criminal prosecution against foreign nationals in connection with their presence at the Tablighi Jamaat congregation. The Madras High Court even described the state and Central governments detention and prosecution of the foreign pilgrims as “unreasonable, unjust, and unfair”. The actions of government of India and different state governments amidst the pandemic have contributed to such sufferings that the petitioners are willing to file individual affidavits admitting that they had violated the visa conditions just to return back to their families. These courts have ordered to give them a “reprieve” with the view that the pilgrims have promised to stay away from India for 10 years. The stark reality of their situation points to their current frame of mind not to visit India in the future, which though would make few sections that ran the hateful campaign happy, reminds one of Bombay High Court which questioned if 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”.
The propaganda in the media had sparked a tide of Islamophobia, hate speech and crimes against Muslim. 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.” The Court flayed the print and electronic media too for the “big propaganda” holding that “there was virtually persecution against these foreigners”.
While exonerating the Muslim community from the stigma the court has also underlined that “fraternity”, the idea of secularism were an integral part of the Constitution and that religious harmony were in the interest of all.
The judgment comes as a reprimand to the government and a reminder of the Constitutional principles at a time when they are least observed and applied by those in the seats of power.