"Equality beyond borders": Judicial Response to Rising Islamophobic Norms in India

BY: Areeb Uddin Ahmed & Mohd. Kumail Haider

Writer's note: With reference to the present write-up, the authors commit to a review reading of the Bombay High Court's judgement in Cri.W.P. 548/20 & Ors., that quashed the First Information Report(s) made in pursuance of alleging Tablighi Jamaat as deliberate spreader if Covid-19. The authors revisit the Visa rules in India, the need for peaceful discourse, arbitrary government actions, existence of Islamophobic media norms and the paring note in regards with the Indian Constitution.

On 23rd March, the National Lock down was imposed for the very first time, also transportation and inter-state travelling was totally prohibited. During the lock down period the Tabligh Jamaat controversy was at peak and the media coupled with some authorities, almost made you believe that the virus was here because of these International Foreigner and the members of the Jamaat. On 22nd August, the Bombay High Court came down heavily on the state authorities and the media for defaming the members of the Jamaat. Several First Information Report’s were filed against these members and most of them were Foreigners, the order came in pursuance of quashing some of the First Information Reports filed, along with the charge sheets.  

Revisiting the ‘Visa’ Rules

It was contended by the authorities in most of the cases registered against these members that they violated the basic visa rules. But surprisingly if we go by law, there are no such restraints. Section 14 of the Foreigners Act, imposes penalty if there is any act in contravention of provisions of the Act. But no where in the Act it is mentioned that a foreigner cannot indulge in any ‘religious’ activity. Para 11 of the order dealt with the guidelines and the Passport Act, and it was observed that “Clause 15 of those Guidelines show that though restrictions are put on the foreigners who come to India on tourist visa to prevent them from engaging in Tabligh activity, there is no restriction on them to visit religious places to attend the normal religious activities like attending religious discourse.”

Section 14 has been invoked to punish some of the Nationals, but it is no where mentioned that a foreigner can be directed or prohibited from attending any events, unless it is related to ‘National defense’ or any specific which the government notifies. Also the Kerala High Court in, Jonathan Baud v State of Kerala, (ILR 2015 (1) Kerala 410) quashed the F.I.R. which was fled for the offences punishable under section 14 (b) of the Foreigners Act, 1946. In that case, the accused had attended the condolence meeting organised by a political faction, which was said to be a radical group. There was no reason for the foreigner to believe or know that such group was radical and group was treated as radical political group. In similar situation, Kerala High Court held that there was no condition in visa to prevent the foreigner for attending such condolence meeting. The Kerala High Court observed that cynic suspicion action was taken by police. The facts of the present matter are also similar to the facts of the case of Kerala High Court.

A peaceful discourse

Furthermore the court also made it clear, that there is a difference between ‘conversion’ and ‘discourse’. Reference was given to the literal meaning of ‘discourse’ and it was observed that the Jamaat is not a separate sect of the Muslim community, but only a movement for reformation within the religion. Most of these members were just exercising their right to religion which is guaranteed under Article 25(1) of the Indian Constitution, also it says that “All persons,” not just Indian citizens, are equally entitled to the freedom of conscience and right to profess, propagate and practice. In Para , the court observed that:

“The record shows that there is allegation that they were reading Quran and religious books of Muslims and delivering lectures. The allegations are very vague in nature and from these allegations inference is not possible at any stage that they were spreading Islam religion and there was intention of conversion. It is also not the case that there was element of persuasion on any point from these foreigners.”

A helping hand is not a crime

In most of the cases, the trustees and landlords were dragged into the matter, where they offered some logistic help, including meals and shelters. The court made it clear that these aids were not any different from those of other religious places. It was observed in Para 47, that  --  “In Marathi, there is saying meaning of which is “missing Fakir/beggar can be found in Masjid”. In big religious places including Masjids there are arrangement of stay made for religious persons or the persons who are involved for maintaining of the Masjids. If they allow some persons like foreigners to stay with them, it cannot be said that they have committed the offence of breach of the aforesaid orders. In the present matters, even the trustees of the Masjids are made accused by making allegations against them that they had given shelter to foreigners and they had supplied meals to the foreigners. During lockdown period, all over India in many religious places arrangement was made for destitute persons, to give them shelter and to provide them meals. Such arrangements were made in Gurudwara, Masjids and other religious places. During lockdown period even beggars were not found on the road and some N.G.Os. and such religious institution had made arrangements for them also. The migrant labours were accommodated accordingly. Due to prohibition orders hotels and restaurants were closed. Thus, giving shelter to such persons could not have been treated as offence, commission of the act of disobedience of aforesaid orders.

Rational nexus- not found

The Constitution guarantees right to equality without any stipulations, also if someone is being classified or discriminated for a particular object then test of ‘intelligible’ differentia comes into play. Here, the case was altogether different, other foreign Nationals who were not associated with the Jamaat, were set off without any inquiry and only these foreigners were being exploited for just ‘violating’ visa norms, which cease to exist on the statute. In this regard, it was observed by the court that -- It is a fact that many foreigners of other countries are sent back by the Central Government without making any inquiry. Social and religious tolerance is practical necessity for unity and integrity in India and that is also made compulsory by our Constitution. By hard work over the past years after independence we have reconciled religion and modernity to great extent.

The court observed that there was a different approach being taken with the cases of Jamaat compared to other communities, also these foreigners who were here on ‘permitted’ and authorised visas. Hence, the law does not provide any kind of discrimination and it was rightly opined by the court in Para 51 that,

”The Government cannot give different treatment to citizens of different religions of different countries. Article 14 of the Constitution of India shows that there needs to be ‘law’ as mentioned in this Article and for some object the classification can be made which needs to be reasonable. Such law can be subjected to the test of constitutional validity. The ‘contents’ of ‘the law’ can also be sufficient to rebut the presumption of reasonableness for the classification and the rebuttal of presumption of reasonableness is possible after consideration of even extraneous material. Further, whether such discrimination can be made without making such classification under law, whether such administrative or executive instructions can be issued, will be a question, but this Court is not going in to that question. For the limited purpose, this Court is holding that the police action is based on such instructions probably of the executive and apparently there is discrimination as mentioned above. On this ground also, the malice is infer able and the cases needs to be quashed.”

The media trial and the parallel virus of ‘Islamophobia’

It is noteworthy to mention here about how the media played an irresponsible role during the pandemic in holding the members of the Jamaat as the only reason for the virus. The court came down heavily on print media, it was observed that there was big propaganda in print and electronic media against these foreigners who visited the Markaz and how the attempt was made to create a picture that the foreigners were responsible for spreading the virus in India. It was observed in Para 27 that,“there was virtually persecution against these foreigners. A political Government tries to find the 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 aforesaid circumstances and the latest figures of infection in India show that such action against present petitioners should not have been taken. It is now high time for the concerned to repent about this action taken against the foreigners and to take some positive steps to repair the damage done by such action.”

Of many, the issue of how Tablighi Muslims were played out at the hands and taken up by the uncontrollable media during an health emergency like situation throughout the world puts forth the need of re-looking into the realm of legalities, and what is the part of complete and benign truth and what is not. Mike Ryan, the Emergency Program Director of the World health Organisation, expressed the organisation’s disapproval to the link made out of certain people as sole responsible for the spread of virus, as was important that to not profile the cases on the basis of racial, religious and ethnic lines.  A petition was filed in the Supreme Court accusing some in the media of attributing to the Tablighi event “a communal flavour”, using phrases like “Corona Jihad”, “Corona Terrorism”, “Islamic Resurrection” and “Corona Bombs”, #BioJihad and #TablighiJamaatVirus began to circulate and trend.  The court however paid little heed to the disaster all these hash tags caused and said that it cannot gag the media.

This went contrary to its judgement of UOI v. Association for Democratic Reforms and Another (2002) 5 Supreme Court Cases 294  (paragraph 82) held, “One-sided information, disinformation, misinformation and non-information all equally create an uninformed citizenry which makes democracy a farce when medium of information is monopolised either by a partisan central authority or by private individuals or oligarchic organisations. This is particularly so in a country like ours where about 65 per cent of the population is illiterate and hardly 1½ per cent of the population has an access to the print media which is not subject to pre-censorship.”

Amid the outbreak of novel corona virus worldwide, some of the fake news which went viral building a paranoia against Muslims, tarnishing and ripping down the constitutional guarantee under Article 14 and 21 among masses in India are, false allegations of pitting on fruits, licking utensils, sneezing in Unison to spread Corona, ANI runs baseless story claiming Hindus denied rations in Karachi, an old video circulated as Tablighis spitting on Policemen, video falsely claiming Muslim policeman beating a Hindu priest, Muslim Foreign Nationals with corona virus hiding in Patna Mosque to avoid testing.

At the times when so many Muslims are frequently made target due to false narrative of cow vigilante criminally charged movement , putting the community people’s lives and property at danger, it becomes decisive that such propaganda by both print and electronic media be talked off and taken on the face of it.

Parting note

Not only this order was a relief for many foreigner, but it also brought back the hope of justice from the Judicial wing of the country. The equality doctrine runs without a jurisdiction hence if read with this judgment, it will surely give hope to those who are still imprisoned without any reasons, just because they were exercising their basic rights. Apart from the operative part of the judgment, it also dealt with how the India saying ‘Guest is our God” has been brought down with these incidents of discrimination and exploitation.

To conclude, it is quite relevant refer Para 29 of the order -- In our culture, there is saying like “Atithi Devo Bhava” which means that our guest is our God. The circumstances of the present matter create a question as to whether we are really acting as per our great tradition and culture. During the situation created by covid19 pandemic, we need to show more tolerance and we need to be more sensitive towards our guests particularly like the present petitioners. The allegations made show that instead of helping them we lodged them in jails by making allegations that they are responsible for violation of travel documents, they are responsible for spreading of virus etc.

About the author(s) Areeb Uddin Ahmed and Mohd. Kumail Haider are law student at Faculty of Law, Aligarh Muslim University. They can be reached at -

Emails- kumailhaider777@gmail.com , uddin.areeb@rediffmail.com

Twitter: @kumailhaider777

@Areebuddin14