New Delhi/Srinagar: Eight months after 11 state governments filed 205 FIRs against 2,765 foreign nationals for allegedly violating visa terms and intentionally disregarding Covid-19 guidelines, not one member of the Tablighi Jamaat, a back-to-roots Islamic movement, has been convicted by any court.
Instead, at least 1,086 members of the Jamaat have been exonerated in some way by eight local and high court judgements, according to our review of media reports of such judgements. The terms the judges used include: a “virtual persecution”; “made scapegoats by a political govt”; “not an iota of evidence”; “abuse of process”; “abuse of power”; “maliciously prosecuted”.
Delhi became the focus of criminal cases related to the Tablighi event, with FIRs lodged against 955 foreign nationals and seven Indians, including a sect head called Maulana Muhammad Saad. The Jamaat is a missionary movement that encourages Muslims to adhere to the faith as originally conceived and its global headquarters, or markaz, in Delhi draws pilgrims from many nations.
“This is a classic case, where unsubstantiated allegations were levelled against the foreign nationals,” one of their lawyers Ashima Mandla told Article 14. Mandla and her colleague Mandakini Singh, represented the Tablighi Jamaat in Delhi.
Mandla described an “arduous and protracted litigation” of 150 hearings, 955 bail applications, 5 writs, 44 discharge applications, 26 quashing petitions, 80 revision petitions, 15 hearings before the Supreme Court and then a trial in a Delhi court over 9 months.
“The truth prevailed,” said Mandla, “Not even a single charge so alleged was upheld by the court of law.”
On 18 December, the Supreme Court will hear arguments in a writ petition filed by one of the foreign visitors, Malana Ala Hadrami, challenging the “unilateral and arbitrary” blacklisting of around 2,500 visitors by the ministry of home affairs for participating in a Jamaat event.
Accusations, Islamophobia, Acquitals
In March 2020, adherents of the sect from about 70 countries attended a Jamaat congregation at its markaz in Delhi’s Nizamuddin neighbourhood. The event took place weeks before the promulgation of Covid-19 guidelines prohibiting social and religious gatherings.
The government accused foreign Tablighi visitors of spreading the coronavirus in India, setting off a spiral of Islamophobia across the country, as Article 14 reported in April. A New York Times investigation on 16 December revealed that the virus was actually spread by “virus trains”, special trains the government organised for migrants, who found themselves stranded after Prime Minister Narendra Modi announced a lockdown with no notice on 24 March.
This is what various courts said as they released Tabhlighis over the past few months:
On 16 December, a Delhi Court in Saket acquitted all the 36 foreign nationals that claimed trial by observing that it’s “reasonably possible” that “none of them was present at Markaz during the relevant period and they had been picked up from different places so as to maliciously prosecute them”. The court also said that there’s “no iota of evidence on record to suggest that the order promulgated under section 144 of IPC was brought to the notice of persons staying in Markaz”.
On 2 December, the Allahabad High Court ordered that a charge of attempt to murder to be dropped. It said such a charge reflected an “abuse of power under the law”.
On 19 October, a metropolitan magistrate in Andheri acquitted 28 foreign nationals of all charges by holding that the prosecution did not produce even “an iota of evidence to indicate the visitors had violated government orders”.
On 21 September, the Nagpur Bench of the Bombay High Court quashed an FIR against 8 foreign nationals by holding that the “investigating agency acted without jurisdiction while registering the FIR for allegedly breaching Covid-19 advisories”. The court also noted that “allowing the prosecution to continue would be nothing but an abuse of process of the court”.
On 21 August, the Aurangabad Bench of the Bombay High Court called it a “virtual persecution” of the foreign nationals. While quashing the FIR against 29 foreign nationals, the court said these visitors were possibly made “a scapegoat of the pandemic by a political government”.
On 15 June, while discharging 31 foreign visitors, the Madurai Bench of the Madras High Court said “there is absolutely nothing on record to indicate that they had contributed to the spread of the novel coronavirus”.
What Happened In Delhi
The first FIR in the Tablighi-Jamaat case was filed at the crime branch of the Delhi Police on 31 March against the alleged organisers of the Tablighi event. This FIR was limited to Saad and six other Indians.
This FIR did not mention any foreign visitor. It was only a day later, that another FIR was filed at East Delhi’s Seelampur police station against foreign visitors for offences under sections 188 (Disobedience to order duly promulgated by public servant), 269 (Negligent act likely to spread infection of disease dangerous to life), 270 (Malignant act likely to spread infection of disease dangerous to life), and 271 (Disobedience to quarantine rule) of the Indian Penal Code (IPC), 1860, and section 3 of the Epidemic Diseases Act, 1897.
On 2 April, the ministry of home affairs blacklisted 960 visitors on tourist visas for “involvement in Tablighi Jamaat activities”. The ministry asked state director generals of police and Delhi’s police commissioner to take “necessary legal action against all such violators under the relevant provisions of the Foreigners Act, 1946 and the Disaster Management Act, 2005”.
On 5 June, the Ministry of Home Affairs blacklisted 2,500 more foreign nationals “for involvement in Tablighi activities”.
A spate of FIRs were then registered nationwide, in states such as Maharashtra,
Madhya Pradesh, Bihar, Haryana, Karnataka, Jharkhand, Gujarat, and notices were issued to the foreign nationals under sections 160 (police officer’s power to require attendance of witnesses) and 41A (notice of appearance before a police officer) of the Criminal Procedure Code (CrPC), 1973.
Prolonged Custody, Passports Seized
On 19 May, the foreign visitors filed a writ petition before the Delhi High Court, seeking release from institutional quarantine, where they had been held for over a month and a half, despite repeatedly testing negative for the virus.
The High Court immediately asked the Delhi government for a status report. In its reply, the government said none of the visitors were detained; they were only asked to join the investigation. The court was told that during investigation additional charges under the Foreigners Act were added, and the government seized passports of 736 foreign nationals.
On 28 May, the Delhi High Court ordered the visitors moved from institutional quarantine centres to alternate accommodation, as the Tablighis had suggested.
The Delhi Police filed 48 chargesheets and 11 supplementary chargesheets before the trial court claiming that the accused persons “willfully, deliberately, and malignantly violated the COVID advisories promulgated by the government”.
The chargesheets argued that the foreign visitors violated the terms of their tourist visa by “indulging in missionary work of professing and propagating the principles of Tablighi Jamaat”. The Delhi Police also included section 304 (culpable homicide not amounting to murder) of the IPC in the chargesheet, but later dropped it.
‘Completely Unwarranted, Devoid Of Evidence’
On 6 July, before the Chief Metropolitan Magistrate at Delhi’s Saket court, 911 of 955 foreign visitors accepted plea bargains—they agreed to pay a fine of Rs 4,000 to Rs 10,000 in exchange for closing of cases—and 44 chose trial. The magistrate accepted the plea bargains of the 911 and ordered their deportation.
On 6 August, the Supreme Court directed these trials be “completed expeditiously, preferably within eight weeks”.
Despite deportation orders, the foreign visitors could not leave because their lawyers, Mandla and Singh, found the Delhi Police had filed 26 more FIRs, challenged on 31 July before the Delhi High Court and on multiple dates across August and September. These FIRs were dismissed 24 days later by then Chief Metropolitan Magistrate Gurmohina Kaur, for “being completely unwarranted and devoid of any evidence”.
Of the 44 foreign nationals who chose trial, eight were discharged at the outset— “the chargesheet neither showed their presence nor participation in the markaz during the relevant period”, the Saket magistrate said—and 36 faced trial.
On 16 December, after taking twice as much time as set by the Supreme Court, the Saket court acquitted all 36 men of all the charges against them. Chief Metropolitan observed Magistrate Arun Kumar Garg, who took over after Kaur was promoted on 19 November, that it is “reasonably probable that none of them was present at Markaz (sic) during the relevant period and they had been picked up from different places so as to maliciously prosecute them”.
The magistrate said that station house officer H N Din, falsely claimed he visited the markaz daily and that “there was no question of any violation or disobedience by the foreign nationals of the order issued by the police under section 144 (prohibiting the assembly of four or more) of the CrPC”. The court also rejected the Delhi police claim that the foreign visitors violated section 50 of the Disaster Management Act by holding the congregation.
(Karan Tripathi is a lawyer and a criminal-justice researcher. Maisah Irfan is an intern at Article 14.)