Tablighi Jamaat: HCs come to the rescue of foreign nationals, grant bail, ask govts to avoid criminal trial

The foreign nationals who came to attend the congregation in Delhi and are now in prisons from violating visa norms, are being safeguarded by the courts of law

Tablighi jamaat

In two separate bail orders, the Allahabad High Court and the Madras High Court have given protection, in their respective cases to the Tablighi Jamaat congregation members who had gathered at Nizamuddin Markaz in Delhi, which ended up becoming a hotspot in Delhi. These foreign nationals have been arrested on the ground that they had engaged in religious activities in breach of the visa conditions and for violating the lockdown regulations issued by the government.

Allahabad High Court (Lucknow bench)

Before the single judge bench of Justice Attau Rahman Masoodi, were applicants who were Bangladeshi nationals. The judge, in his order dated June 9, noted the constitutional provisions under Article 20 of the Constitution of India which guarantees an equal protection to foreign nationals in the matter of trial in criminal cases and Article 21 which guarantees protection of life and personal liberty in equal measure.

The applicants have been booked under section 188 [Disobedience to order duly promulgated by public servant] of the IPC; Section 3 [penalty for disobeying regulation] Epidemic Diseases Act, 1897; Section 56 [Failure of officer in duty or his connivance at the contravention of the provisions of this Act] of Disaster Management Act, 2005; Sections 13 [Attempts to contravene the provisions of this Act], 14B [Penalty for using forged passport] and 14C [penalty for abetment] of the Foreigners Act,

The tourist visa of one of the applicants already expired in April and the court noted that since his presence was required for a criminal trial, he needs to be housed in the Embassy of Bangladesh and hence issued notice to the High Commission of Bangladesh. The court said that the High Commission of Bangladesh is expected to assist the Court for protection of the rights of their nationals through a counsel of their choice as well as for the formulation of conditions of bail. Notice was also issued to the Secretary, Ministry of External Affairs (MEA), for communicating with Bangladesh High Commission according to the treaty of extradition operative, if any. The court further directed MEA to apprise the court as to how the participation of the present applicants can be secured for conduct and conclusion of the trial if their Visa expires.

While the bail of the applicant whose visa has expired, was put on hold, the rest of the applicants were granted interim bail until further orders or until validity of their visas, whichever is earlier. The applicant whose visa has expired has been given the liberty to apply for extension of visa.

Bail was granted to the rest of the 6 applicants and they have been permitted to reside at the place mentioned in the tourist Visas and have been given the liberty to receive disclosed financial support from their relatives in Bangladesh or anyone in India and in case of shortage of support, the central government, after consulting with Bangladesh government,  shall provide necessary financial help to the accused applicants for sustaining their life in a dignified manner inclusive of the medical aid.

The court asked the applicants to approach the court right before the expiry of their visas and granted bail on the following conditions:

1.       The applicants will not leave the last place of residence mentioned in the Visa and shall keep the nearest Police Station informed about their whereabouts every fortnight.

2.       The applicants shall be at liberty to offer prayers according to their faith, only in accordance with central government guidelines

3.       Each applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court, or else it will be treated as abuse of liberty of bail

4.       Each applicant shall remain present before the trial court on each date fixed, either personally or through their counsel.

5.       The applicant shall remain present before the trial whenever required, and failure to do so shall invite criminal proceedings for the same.

6.       The accused applicants shall strictly adhere to the conditions of this order and shall not indulge into any activity endangering the security of the country nor shall violate any condition of the Visa issued under the Foreigners Act, 1982.

The court has listed the matter for consideration of regular bail, on July 16.


The court also suggested that the Centre enter into a dialogue with the government of Bangladesh and decide upon the criminal case without having to resort to a criminal trial, to avoid the same. The court said, “This Court as an abundant caution also leaves it open to the Government of India through the Ministry of External Affairs, New Delhi and Government of Bangladesh to decide the fate of criminal cases otherwise than by way of judicial trial. This shall solely depend upon the examination of offences and material by the respective governments and may not be matter for judicial scrutiny by this Court.”

The complete order may be read here.

Madras HC

The applicants, who are now in judicial custody, were booked under Sections 13 [Attempts to contravene the provisions of this Act] and 14 [Penalty for contravention of provisions of the Act] of the Foreigners Act, 1946, 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], 271 [Disobedience to quarantine rule] and 278 [Making atmosphere noxious to health] of IPC, Section 3 [penalty for disobeying regulation]  of Epidemic Diseases Act 1897, Section 58(4) [Whoever obstructs the removal of any person to any hospital or other place], 134 [Penalties for offences against Act], 135 [Penalty for preventing entry of executive authority or Health Officer] of the Tamil Nadu Public Health Act, 1939 and Section 51(b) [punishment for obstruction] of the Disaster Management Act, 2005.

The single judge bench of Justice G.R. Swaminathan, on June 12, held that the activities of the applicants have not prejudiced public tranquility and that there is absolutely nothing on record to indicate that they had contributed to the spread of the novel coronavirus.

About the applicants, the court refused to categorize them as “Tablighis” and instead wanted to see them just as humans. The court opined,

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.

While considering the question of their bail, the court answered in the affirmative and said that the offences which the petitioners are alleged to have committed are not akin to those offences for which there are limitations for grant of bail. The court also noted that the police had failed to file the final report in this case despite the fact that 70 days had elapsed and that there has been “absolutely no progress in the investigation”.

The court further asked the government to consider allowing the applicants to reside at Jamia Qasmiyah Arabi College, Chennai, while expressing its apprehensions towards confining them to a detention camp like set up within the premises of a prison. The court allowed this since they have not committed any act that is prejudicial to public tranquility or security of India; they will not abscond and their travel documents are not in their possession; and they wish to return to their native country. The court, however, observed that given the strict guidelines to be followed for COVID19, the entire campus of the college can be directed to be handed over to the district administration for inspection and for disinfecting and strict conditions can be levied by the government.

On the question of whether the applicants have the right to return to their native country, the court said,

“The petitioners had come to India to serve the cause of their religion. Circumstances suddenly turned adverse and landed them in prison… Merely because the petitioners have contravened the visa conditions, they cannot be seen as criminals. The situation calls for empathy and understanding.”

The court referred to an essay penned by Prof. Upendra Baxi titled “Exodus Constitutionalism” and quoted him, “at the heart of every constitution there pulsates a distinction between ‘us’ and ‘them’, the constitutional self and the constitutional others”. The court noted that there are provisions transcending this distinction, being applicable to “all persons”, including Article 21.

The Court even addressed the plight of the applicants by observing, “Failure to respond to the petitioners’ existential horror would amount to judicial abdication. If I come to the conclusion that the petitioners have already suffered enough and that they are being put to “surplus or unnecessary suffering”, I am obliged to intervene.”

The court said even assuming that they have in fact committed the offences, yet the court shall grant them bail under section 482 of CrPC.

The Court also referred to Article 12 of the International Covenant on Civil and Political Rights, which inter alia states, “No one shall be arbitrarily deprived of the right to enter his own country”.

The court said that even though the applicants, who have allegedly violated visa conditions, cannot demand to return to their country as a matter of right, the same cannot be arbitrarily denied by the government. The court opined that since they have already been in prison for 70 days, the prison term already undergone by them should be considered as sufficient punishment.

“When the petitioners have already paid the price for their misadventure, to insist that they should continue to remain in India in prison-like conditions till the proceedings are concluded grossly offends the principle of proportionality and fairness.”

Keeping in mind the severe outbreak of the epidemic, the court said,

“the continuance of the criminal prosecution against the petitioners herein would certainly amount to an infraction of their fundamental right under Article 21 of the Constitution of India and directing their closure on appropriate terms alone would secure the ends of justice. Since the petitioners have already suffered enough for their transgression of law and there is prevalence of medical emergency, the petitioners are having the right to return to their native countries at the earliest opportunity.”

The court directed that if the applicants execute appropriate affidavits expressing their regret for having violated the visa conditions, proceedings against them shall be concluded by filing final reports recording the same.

The complete order may be read here.


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