Foreign Tablighis in India: Legal Route Only Way Out of Conundrum?

Several foreign attendees of Tablighi congregation are still stranded in India.

Image used for representational purposes only.

(Image: Arnica Kala/The Quint)

More than 10 days since the Aurangabad Bench of the Bombay High Court in a strongly worded judgment quashed FIRs against 29 foreign Tablighis, local police stations in Jamkhed, Newasa and Ahmednagar continue to hold their passports back.

Despite the court quashing the registered offences, reluctant police officers first asked the accused to go to the judicial magistrates, who then directed for the passports to be returned by 30 August. The directive was complied with but soon after the foreign nationals were called back to submit their passports with the police stations again.

Their legal counsel is now preparing to go back to court with a contempt plea.

“This is in utter disregard and disobedience of the Court which refused to stay the judgment while pronouncing it. The police may be planning to appeal the High Court ruling in Supreme Court, which could take few weeks. Does it mean that the accused will have to stay here for such extended time,” asked Mazhar Jahagirdar, the advocate who represented the case in the Aurangabad court.

The Congregation

Tablighis from countries including Ghana, Djibouti, Indonesia, Ivory Coast, Benin, Tanzania, and Brunei were booked under various sections of the Indian Penal Code (IPC) for alleged violations of their tourist visas, violation of lockdown as well as spread of disease by attending the Tablighi Jamaat meeting in Delhi’s Nizamuddin in end of March and having stayed ‘secretly’ in masjids in different areas and offering prayers in violation of the nationwide lockdown imposed amid a pandemic. Six Indian nationals were also booked for providing shelter to the foreigners in mosques.

Initially quarantined, the foreign Tablighis were then sent to police custody and spent around 70 days behind bars and are still under police jurisdiction. In its ruling, the high court dismissed charges of visa violations and said that the Tablighi reform movement has always had international visitors who are free to travel within the country for religious programmes.

Advocate Jahagirdar argues that with its headquarters in Delhi, Tablighi work does not fall under missionary category in India. He adds they are not required to take approval of grant of missionary visas and can come and participate in religious congregations and visit religious places.

In the revised guidelines of Ministry of Home Affairs issued in 2019, paragraph 15 titled ‘Restriction on engaging in tabligh activities’ states: “Foreign nationals granted any type of visa and OCI cardholders shall not be permitted to engage themselves in tabligh work. There will be no restriction in visiting religious places and attending normal religious activities like attending religious discourses.”

“However, preaching religious ideologies, making speeches in religious places, distribution of audio or visual display/ pamphlets pertaining to religious ideologies, spreading conversion etc. will not be allowed,” adds the paragraph, a charge against the Tablighis refuted by various courts in the ongoing row.

Diplomatic Missions Mum But Concerned

Diplomatic missions in India though officially mum on the issue are concerned about the situation of their nationals and what one envoy described as a ‘piece meal effort’.

Multiple officials speaking on conditions of anonymity described the ‘situation as very unfair’ given only a few accused actually tested positive, some said that the tablighis “were caught at the wrong time at the wrong place” and plea bargain or a legal battle in court are perhaps the only options to find a way out of this political and diplomatic conundrum.

The missions remain in touch with the Ministry of External Affairs and have had meetings with officials including the Secretary East in MEA on 3 July on the issue.

In their conversations, the Indian foreign ministry maintains “it is an ongoing  process and justice will be done.” For the missions freeing their nationals and sending them back home is a priority, which requires the accused to be taken off the look out circular and attaining exit permits, a complicated process driven by the Ministry of Home Affairs.

“The safety and security of American citizens is the Department of State’s highest priority.  We are in contact with multiple US citizens who were arrested by Indian authorities in connection with the Tablighi Jamaat case. Due to privacy concerns, we have no further comment at this time,” said a US embassy spokesperson in response to a query on the subject.

The process of release and return can get messier with the time cap on the exit permits and possibility of some nationals testing positive again though asymptomatic at the airports on their way out after months of detention in India.

There have also been cases where the accused freed from one court have been slapped with another FIR somewhere else, which is legally not sustainable but the process does require going through the motion for needful clearance and quashing of the additional cases for the same alleged offence.

Local Muslim Organisations to the Rescue

For many of the foreign nationals, it is local Muslim organisations or the Jamaat that helped with food, accommodation, and legal fees.

A woman belonging to the group who was repatriated only last week was eight months pregnant. “If it were not for the local organisations, the situation of many Tablighis would have been much worse. Now the most humane thing to do is to get them back to their families,” said a foreign official.

Many of those detained have been visiting India regularly over the years on tourist visas. They have travelled in public glare to religious sites in Hyderabad, Jaipur, Ajmer, Kerala, Kolkata depending on the validity of the visas and caps on number of visits each year.

“Many of them cannot even speak the local tongue. How do you expect them to proselytise? They were not here to preach or convert,” argued another official.

Ruling on the contention, Para 28 of the 58-page Bombay High Court judgment said, “In this era, it is not practically possible to prevent discourse on religious matters. Many times such discussion can also be called as preaching the religion and there may or may not be intention to spread Islam. The definition of Muslim person is also important in this regard. In view of all these circumstances, one needs to be very practical. For doing such things, now it is not necessary to visit places like mosques from India and particularly for the foreigners like petitioners who do not know Indian languages.”

Police Action, Legal Proceedings, and Social Stigma

So far, some Tablighis have returned home, many after nearly five months of police action, legal proceedings and facing social stigma propagated through irresponsible coverage of the issue by large sections of Indian media.

The repatriated Tablighis from almost 20 countries include all 12 Saudi nationals who were detained, 92 of the 295 Bangladeshis, 72 of 123 Thais, and 393 of the 751 Indonesians.

The legal wait to return home continues for scores of others as the Indian government is in no position to back pedal with the matter politicised heavily in wake of the CAA-NRC protests. Malaysia, Indonesia, and Bangladesh are among the countries with higher number of nationals caught in this mess.

Earlier in July, a Delhi court granted bail to foreign nationals from 14 countries including 85 Tablighis from Kyrgyzstan after they entered into a plea bargain accepting mild charges and paid fines. While some Tablighis from Sudan, Jordan, US, Russia, and Kazakhstan chose not to plead guilty to milder charges and opted for a legal trial.

While in June, the Madras High Court in its bail order for 31 foreign members who attended the Markaz refrained from calling them ‘Tablighis’ noting that such a classification can have “serious pitfalls.”

“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,” read the 12 June order by Justice GR Swaminathan on the bail applications.

The entire row has raised serious questions about foreign tourists who visit religious places in India. Religious congregations are a part of churches, temples, gurudwaras, monasteries and other places of worship as well and not limited to mosques.

While the Home Ministry mulls about a ten-year possible blacklisting for those members of Tablighi Jamaat accused of violations with cases pending in the Supreme Court, its impact on Indian nationals who visit foreign countries under similar visa categories cannot be ruled out given the framework of reciprocity that guides diplomatic ties. Many officials admitted that the entire saga has left a “bad taste in the mouth” and impacted domestic policy considerations in some countries.

“It is not one of the high moments in bilateral relations, but hopefully will not  jeopardise ties,” remarked a foreign diplomat.

(Smita Sharma is an independent journalist and tweets at @Smita_Sharma. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)