The MHA’s stranglehold over Tablighi foreigners forced them into plea bargaining

In July, the home ministry filed an affidavit in the Supreme Court stating that the government had cancelled the visas of at least 2,765 foreign Tablighi members. PTI
29 August, 2020

On 21 August, the Bombay High Court delivered a scathing judgement questioning the criminal proceedings against members of the Tablighi Jamaat, an Islamic revivalist group. The previous month, the ministry of home affairs had filed an affidavit in the Supreme Court stating that the government had cancelled the visas of at least 2,765 foreign Tablighi members. The MHA added that Tablighi members had been blacklisted from re-entering India. It further noted that a total of 205 first information reports had been registered against foreign Tablighi members across the country. The Bombay High Court quashed the FIRs against 29 foreign nationals, criticising the government for using the Tablighi members as “scapegoats” amid an escalating pandemic. A scrutiny of the home ministry’s affidavit lends significant support to the court’s verdict and raises grave questions about the Indian government’s treatment of the Tablighi foreigners.

The home ministry filed the affidavit in response to a batch of petitions before the Supreme Court by members of the Tablighi Jamaat from 35 different countries. According to the affidavit, the FIRs were registered because the Tablighi members were “found to be involved in Tabligh activities which are not permitted on tourist visa.” Subsequently, the MHA refused to let them leave the country citing ongoing criminal proceedings. The ministry restricted them to India because of the cases pending against them, refusing to let them return home. The petitioners argued that they had entered India on valid tourist visas and that the Indian government had been unable to explain how they violated their visa during their stay.

While the MHA has claimed that it cancelled the visas on a case-by-case basis, the petitioners argued that the visas of foreign Tablighi members were cancelled en masse, without any individual consideration of their activities. The petitioners further pointed out that the police only registered the FIRs against them on the instructions of the home ministry, without specific allegations against any of the members. Unable to leave the country due to these cases, many Tablighi foreigners have been compelled to enter into plea bargaining and accepting petty criminal charges in exchange for an opportunity to return home.

The petitions challenge the validity of the cancellation of visas, the blacklisting of the members and the registration of the FIRs. They argued that by depriving the foreign members “of their right to personal liberty” and their right to travel back to their home countries, the home ministry had violated Article 21 of the Constitution. Article 21 confers the right to life and liberty upon all individuals in the country, and not just Indian citizens. In order to determine the legality of the home ministry’s actions and the legitimacy of the petitioners’ arguments, it is important to examine the three points of dispute—the visa cancellation, the blacklisting and the criminal cases—individually.

The home ministry’s affidavit states that the visa violation by the Tablighi foreigners was that they entered on tourist visas and subsequently engaged “in tabligh activities.” This, it claims, amounted to a “serious violation of provisions of Visa Manual, 2019 and is also a criminal offence punishable under Sections 13 & 14 of The Foreigners Act, 1946.” However, the visa guidelines issued by the ministry—titled “General policy guidelines relating to Indian visa,” and available on its website—do not explicitly define “tabligh activities.” Point 15 of the guidelines outlines the “Restriction on engaging in tabligh activities,” as follows:

Foreign nationals granted any type of visa … 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.

The Visa Manual cited in the affidavit, and annexed to it, largely repeats the contents of this provision, except to add a qualification that any application by an individual seeking to engage in tabligh work must first be referred to the home ministry. As for the provisions of the Foreigners Act cited in the affidavit, Section 13 states that any person who attempts to contravene the act shall be deemed to have contravened it, while Section 14 prescribes the punishment for violating visa conditions and for offences under the act. However, the MHA affidavit does not explain how Tablighi foreigners contravened the act or violated visa restrictions.

A few things become immediately clear from the visa provision: first, “tabligh work” is prohibited under all visas, so the home ministry’s emphasis on the foreigners entering on tourist visas is meaningless. Further, while the guidelines do not explicitly define “tabligh work,” it does provide an inclusive list of activities that are prohibited and those that are allowed. Most importantly, it expressly clarifies that foreigners are not restricted from “visiting religious places and attending normal religious activities.” Yet, according to the petitioners, this is the only act they were involved in—being present at the Bangle Wali Masjid, or Markaz, as the Tablighi Jamaat’s headquarters in Delhi’s Nizamuddin is known.

The petitioners argued that the MHA has “equated the mere act of attending a religious congregation or a religious place of worship on the same footing as with Tabligh work such as preaching religious ideologies, making speeches in religious places, proselytization, distribution of audio or visual display/ pamphlets pertaining to religious ideologies, negating any intelligible differentiation between the two separate and distinct activities.” It further emphasised that, “there is neither any prohibition in visiting a religious place and attending normal religious activities nor can such an act be said to have constituted a violation of the visa conditions.”

To understand this contention, it is important to note that the Tablighi Jamaat is first and foremost a revivalist—and not a proselytising—organisation. It was founded in 1926 by Muhammad Ilyas al-Kandhlawi, a Deobandi Islamic scholar, in Mewat—present-day Nuh—in Haryana. Al-Kandhlawi sought to create a group of preachers who could revive Islam and create a new Islamic society that practiced the faith as it was done by the Prophet Mohammed. As a result, the group does not seek to convert those of other faiths, but to persuade Muslims to practice the more conservative, or “pure” form of Islam, including in terms of rituals, clothing and personal behaviour. The slogan coined by him for the new denomination, as reported by The Hindu, is indicative: “Oh Muslims, become true Muslims.”

Even the Bombay High Court judgement cited this distinction while quashing the FIRs against Tablighi members. Commenting on the nature of the Tablighi Jamaat’s work, the judgement added, “Tabligh Jamat is not a separate sect of Muslim, but it is only movement for reformation of religion. Every religion has evolved over the years due to reformation as reformation is always necessary due to the changes in the society … it cannot be inferred that the foreigners were spreading Islam religion by converting persons of other religion to Islam.”

The Tablighi Jamaat founder Al-Kandhlawi first focused his efforts on the Meo Muslims of Mewat and brought them into the fold of traditional Islam. Over the decades, the organisation grew to vast numbers. In 1941, the Tablighi Jamaat held its first conference and over twenty-five thousand people are estimated to have attended the event. Today, the revivalist group is said to operate in 150 countries and boasts of millions of followers, with its largest chapter in Bangladesh. One explanation for this exponential growth is the organisation’s policy of being apolitical. It has not intervened in any country’s politics, nor offered any political comments about controversial or even communal events, including the Babri Masjid demolition, the Gujarat pogrom or the Citizenship (Amendment) Act.

While this chosen silence has invited criticism from other Islamic quarters, it perhaps suited the Tablighi Jamaat to stay quiet on all issues, and as a result, ensure the freedom from political interference into its own affairs as well. In his latest book, Inside the Tablighi Jamaat, the author Ziya Us Salam noted that at a time when the former prime minister Indira Gandhi came down heavily on two other Islamic groups—the Jamaat-e-Islami Hind and the Jamiat Ulama-i-Hind—for taking a stand against the Emergency, the Tablighi Jamaat was left untouched. This apolitical positioning held it in good stead, free from political interference—until March 2020, when it suddenly became the face of COVID-19 in India, with the Bharatiya Janata Party government and the Indian media unleashing a campaign of hateful persecution on the Tablighi Jamaat.

In the first half of March, thousands of members of the Tablighi Jamaat from across the world flocked to the Markaz for a religious event in Nizamuddin, at its international headquarters. It can be seen as a negligent and irresponsible decision to hold or attend the event in the wake of a global pandemic, the severity of which was predictable from international hotspots, even if India had not yet seen the worst of it. And predictably, the congregation led to a cluster outbreak, beginning with Tablighi members who returned to Telangana and Tamil Nadu testing positive for the virus, followed by a Kashmiri who became Jammu and Kashmir’s first COVID-19 casualty.

The legality of holding the event, however, is not as cut and dry as the Indian mainstream media—which wasted no time in victimising the Muslim patients of a deadly disease, even running the hashtag #CoronaJihad—portrayed. The event continued from 8 to15 March. The Delhi government’s first order prohibiting any congregation in light of the pandemic was issued on 13 March, but it restricted only “sports gatherings (including IPL)/conferences/seminars beyond 200 people.” It was only on 16 March, the day after the event at the Markaz had finished, that the Delhi government issued a fresh circular prohibiting religious gatherings as well. 

Several people left the Markaz to their separate states and countries after the event was over. But when the central government abruptly stopped all rail travel on 21 March, and all international flights on the next day, those remaining at the Markaz could not leave. On 22 March, Prime Minister Narendra Modi also announced a janata curfew—people’s curfew—which was followed by the Delhi government announcing a lockdown on the next day, followed two days later by the nationwide lockdown.

Perhaps finally recognising the gravity of the situation, the Markaz leadership sprang into action once the prohibitory orders began being issued. On 25 March, they wrote to the Delhi Police that they had managed to ensure that 1,500 people had left the premises two days earlier, and noted that there were still over a thousand people remaining at the Markaz, and that they were trying to arrange vehicles for their transportation back home. But the home ministry appears to have been unimpressed by these efforts.

The home ministry’s affidavit spelled out the series of events that led to its decision to cancel the visas, blacklist the foreigners and register cases against them. The petitioners, ironically, cite the same sequence of events to argue how their rights had been violated. The difference lay only in how the two interpreted the relevant provisions of law—and a scrutiny suggests that the Indian government’s targeting of the Tablighi Jamaat has not been lawful.

On 31 March, the home ministry’s affidavit notes, the foreigners division of the ministry requested the bureau of immigration to “identify the foreign nationals who participated in tabligh activities on tourist or other kind of visa, without obtaining permission of MHA.” Again, it did not describe what amounted to “tabligh activities.” The same day, the home ministry issued a press release stating what other measures it had taken to “identify and isolate” Tablighi Jamaat attendees, including the shifting of 1,339 Tablighi members to quarantine facilities.

The home ministry’s description of the Tablighi Jamaat and its activities in the press release are crucial. “Devout Muslims from across the country and also from foreign countries visit the Markaz for religious purpose,” the press release stated. “Some also move out in groups to different parts of the country for Tabligh activities. This is a continuous process throughout the year.” It added, “Usually, all the foreign nationals visiting India as a part of Tabligh team come on the strength of tourist visa. MHA had already issued guidelines that they should not indulge in missionary work on tourist visa.”

Two things become indisputably clear from this press release: that the centre distinguishes between the religious visits of Tablighi foreigners and “missionary work,” and that the members have generally entered India for these religious purposes on valid tourist visas. The press release, in fact, offers an interpretation of “tabligh work” that is in tune with the visa policy, which relates to missionary work. The release proclaimed:

On March 21, approximately 824 foreign Tabligh Jamaat workers were in different parts of the country for missionary work. Besides, around 216 foreign national were staying in the Markaz. In addition, over 1500 Indian TJ workers were also staying in the Markaz while around 2100 Indian TJ workers were touring different parts of the country for missionary work.

It did not explain what sort of “missionary work” the workers were involved in or how the ministry had come to learn about this. Given that Tablighi members only seek to bring fellow Muslims within their fold, and that the centre has provided nothing to demonstrate that the foreigners did more than attend the religious discourse at the Markaz, it is unclear how they violated their visa restrictions. Pertinently, the release concluded stating, “Since March 23, lockdown has been strictly imposed by State authorities/Police across Delhi including in and around Nizamuddin and Tabligh work came to a halt.”

The day after receiving the directions from the foreigners division, the bureau of immigration informed the home ministry that 960 foreigners “were found involved in Tabligh Jamaat activities.” Yet again, the intimation contained no description of “Tabligh activities” or the bureau’s basis of this determination. Despite India’s visa policy restricting such work on all visas, the home ministry’s affidavit added, “All these foreigners were in India on the strength of Tourist Visa.”

The next day, on 2 April, the home ministry issued two memorandums, one to the commissioner of the Delhi Police and the second to the immigration bureau, both titled, “Action against Foreign Nationals who participated in Tabligh Activities on Tourist Visa.” The memorandum to the immigration bureau noted, “Their Tabligh activities have endangered many lives in the ongoing COVID-19 public health emergency.” It repeated that they had violated the provisions of the Visa Manual, 2019 and the Foreigners Act without specifying how they had done so. The memorandum added, “It has been decided to cancel visas of … 960 foreign nationals immediately.”

By 8 April, the ministry’s affidavit notes, the immigration bureau confirmed that it had cancelled 985 visas and issued 1,507 look-out circulars for other Tablighi foreigners who were still in India. By 1 July, when the ministry filed its affidavit, it had cancelled the visas of 2,679 foreigners. The home ministry wrote that it cancelled these visas on a case-by-case basis. A rejoinder filed by the petitioners, however, contested this claim. Referring to the home ministry’s 2 April directive to cancel 960 visas, the petitioners wrote that “they had been cancelled within a day from being provided with a list, en masse and immediately.” The petitioners continued:

Therefore, as can be observed from the aforesaid and as the same has been narrated as the chain of events by the Union of India itself in its preliminary counter affidavit, the entire claim of visas having been cancelled on a case to case basis is incorrect and implausible inasmuch as between 31.03.2020 and 02.04.2020, this Hon’ble Court is being sought to believe that not only the list of 960 foreigners was prepared and passed on by the Bureau of Immigration to the Foreigners Division, Ministry of Home Affairs on 01.04.2020 but also thereafter, within a span of a single day, every individual case was examined for perceived visa violation culminating into the above referred Office Memorandum on 02.04.2020 clearly stating that visas of 960 foreigners indeed had been already cancelled on 02.04.2020 itself.

The petitioners added that the ministry had not provided a single order in support of the claim that all 2,679 visas were cancelled on a case-by-case basis. In the 2 April memorandum, the home ministry had also pronounced its decision to blacklist all the foreigners from re-entering India. The ministry defended this action in its affidavit stating that the directives were issued “with particular reference to foreigners who were found involved in tabligh activities on the strength of their tourist visa thus violating the visa conditions.” Yet again, however, the ministry failed to explain what prohibited “tabligh activities” the foreigners had engaged in.

Instead, the ministry’s affidavit focuses on the fact that they were on tourist visas. But as its press release had already noted, Tablighi foreigners have usually visited India on tourist visas. The ministry did not explain why the previous tourist visas granted to Tablighi foreigners was never subject to such a sweeping crackdown, or what the members had done apart from attending the event at the Markaz, as they have done earlier, to invite such coercive action.

The home ministry’s memorandum to the police also inadvertently revealed a glaring gap in the ministry’s argument—it stated that the foreigners had engaged in tabligh activities “in the premises of Tabligh Jamaat Markaj, Nizamuddin, New Delhi.” Indisputably, then, the ministry’s claim was not that the foreigners had violated their visa restrictions or committed offences by proselytising across the city or the country. Instead, the ministry appeared to believe that the foreigners had violated their visa conditions from within the Markaz. This does not, however, hold scrutiny, given that the Visa Manual itself clearly states that there is “no restriction in visiting religious places and attending normal religious activities like attending religious discourses.”

The home ministry’s actions and its affidavit also point towards a conscious decision to persecute the Tablighi Jamaat members. In its 2 April memorandum to the bureau of immigration, the ministry had stated, “Further action to deport them may be taken after carefully following the protocols issued by the Ministry of Health & Family Welfare.” But the affidavit states that twenty days later, the ministry wrote another letter addressed to the chief secretaries and DGPs of all states, Delhi’s commissioner of police and the immigration bureau, prohibiting them from deporting the Tablighi foreigners even after their quarantine.

This directive also contradicted the norm that has been followed by the Indian government in the past, as the documents annexed by the home ministry revealed. In support of its argument that Tabligh work has been historically prohibited by the Indian government, the home ministry annexed circulars issued in 1996 and 2011. But both these circulars noted that any engagement of Tabligh work in violation of visa restrictions should be met with immediate deportation. The home ministry’s affidavit did not explain its departure from the policy to deport the foreigners.

The petitioners’ rejoinder also pointed out that the Visa Manual prescribed only a financial penalty for visa “violations in the nature of indulging in Tabligh work.” Indeed, a list of financial penalties regarding visa violations in the Visa Manual annexed to rejoinder states that “Visa violations including indulging in Tabligh activities” invites a $500 fine. It is unclear why the Indian government did not penalise the Tablighi foreigners under this very specific provision.

Instead, the government pressed for criminal prosecution, and the ministry’s affidavit reveals that the ministry was not even certain of the offences committed by the foreigners. Apart from its inability to explain how they had violated the Foreigners Act or the Visa Manual, the ministry wrote that the Tablighi members “might have violated the provisions of The National Disaster Management Act, 2005, IPC and Epidemic Diseases Act etc.” The ministry did not elaborate on which provisions of these acts had been violated, or how the Tablighi foreigners had committed offences under them in any manner.

As a result of this push by the home ministry for criminal prosecution, a total of 205 FIRs were registered against the Tablighi foreigners in 11 states. The ministry’s affidavit added, “No foreign Tabligh Jamaat member has been deported so far as criminal proceedings are going on against them.” The petitioners submitted that the ministry issued the directive to arrest the foreigners “without ascertaining whether such persons had merely attended a religious discourse or had been found to be indulging in the prohibited activities of preaching and proselytization.”

As the cases continue, the Tablighi foreigners are stuck in a difficult position. Only 227 Tablighi foreigners were able to leave India before their visas were cancelled and they were blacklisted. As of 31 March, at least 955 Tablighi foreigners were placed under institutional quarantine in accordance with the COVID-19 protocol. However, instead of serving the standard 14 days in quarantine, the Tablighi foreigners remained in quarantine till end May, at which point the Delhi Police sought their custody citing the pending cases against them. But the Tablighi Jamaat rallied in support of its members, and proposed to take their custody instead, and proposed to keep them in eight different facilities organised and monitored by the community. On 28 May, the Delhi High Court agreed that the 955 foreigners could be shifted to those facilities, while prohibiting them from shifting to any other location without the prior permission of the Delhi Police.

In effect, many Tablighi foreigners remain quarantined. While the Delhi Police had stated in court that it has not arrested any Tablighi Jamaat member, there have been reports of foreign members arrested in Madhya Pradesh and Uttar Pradesh. The home ministry has not disclosed the exact number of Tablighi foreigners in custody or quarantine, to the media or in its affidavit. On 10 July, the Press Trust of India reported that the police had so far filed 59 chargesheets against 956 foreigners. In addition to the offences under the Foreigners Act, the chargesheets also accuse the Tablighi foreigners of disobeying the order of a civil servant, committing a malignant or negligent act to spread a disease, and disobeying a quarantine rule.

According to the PTI report, 371 of them had been granted bail by a Delhi court as of 10 July. Five days later, 200 Indonesian Tablighi members were also released on bail. Not all the Tablighi foreigners, however, managed to secure bail. Moreover, even bail does not grant them the liberty of going back home.

Several Tablighi members, desperate to leave the country and return home after being forced to stay in India for four months, have resorted to plea bargaining. The Code of Criminal Procedure allows individuals accused of offences with punishments less than seven-years imprisonment to bargain for a lesser punishment in exchange for admitting to a crime. Tablighi members who enter into plea bargaining are allowed to return home. The PTI report noted that on 10 July, a Delhi court “allowed 62 Malaysians and 11 foreigners from Saudi Arabia to walk free on payment of fine of Rs 7,000 and Rs 10,000 each respectively.” It added that the foreigners “accepted mild charges, under the plea bargain process, related to various violations including visa norms while attending Tablighi Jamaat congregation.” On 17 July, 34 Thai nationals were also released after accepting charges related to the Markaz. Five days later, 98 Indonesian members of the Tablighi Jamaat also entered into plea bargaining to finally be free, each paying a fine of Rs 5,000. However, at least 44 foreign nationals have chosen not to plea bargain and stand trial instead. “What am I guilty of? We did not break any law,” Ahmed Ali, a New York resident, told the Indian Express. “I will stay and fight. I don’t want to be known as the US national who broke the law in a foreign land.”

In a press briefing on 27 August, the ministry of external affairs noted that look-out circulars issued for Tablighi members have been deleted and some have been allowed to leave. “As of August 24, 1,095 look-out circulars were deleted and 630 foreign members of the Tablighi Jamaat have left India,” Anurag Srivastava, the MEA spokesperson said.

The case before the Bombay High Court concerned three separate petitions filed by Tablighi members who came from countries such as the Ivory Coast, Ghana, Tanzania, Djibouti and Indonesia and had attended the Markaz congregation in March. The petitioners had been booked for offences under the Indian Penal Code, the Epidemic Diseases Act, and the Foreigners Act.

The judgement noted, “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.” Highlighting the role of the central government, it added, “It can be said that initially there was no intention of police to go against the foreigners, but subsequently after getting directions from Central Government … Maharashtra police gave F.I.Rs. and filed cases in those crimes.”

The judgement emphasised that according to the Visa Manual, “there is no restriction on foreigners for visiting religious places and attending normal religious activities like attending religious discourses.” Referring to the Markaz, it noted that “from so many years Muslims from various countries have been coming to India to visit that place and they have been coming on tourist visa. … the visits of these foreigners to Masjids from India were not prohibited and even discourse was not prohibited. Activity of Tabligh Jamat got stalled only after declaration of lock down in Delhi and till then it was going on. There is nothing on the record to show that this activity is prohibited permanently by the Government.”

In light of the Bombay High court judgement, the central government’s persecution of the Tablighi Jamaat during the COVID-19 pandemic bears repeating. First, the home ministry and the health ministry blamed the Tablighi Jamaat for spreading the coronavirus in the country, even though cases continued to rise exponentially well after all the members were quarantined. Then, the home ministry cancelled the visas of the foreign Tablighi Jamaat members and blacklisted them without being able to demonstrate how they had violated their visa conditions. But instead of deporting them or fining them as prescribed under law, the home ministry initiated criminal cases against them without identifying their crimes. Finally, driven to desperation, the Tablighi Jamaat members paid fines and admitted to crimes that the centre failed to prove, just so that they could return home.