Case BriefsSupreme Court

Supreme Court: After Solicitor General Tushar Mehta submitted before the bench of AM Khanwilkar and Dinesh Maheshwari that as of today only ten petitioners in the Tablighi Jamaat case have decided to contest the criminal cases pending against them and are not willing to exercise the option of plea bargaining, the Bench directed that the criminal cases concerning these ten petitioners pending in different Trial Courts in the NCT of Delhi be brought before the same Court i.e. to the Chief Metropolitan Magistrate, South-East Delhi, Saket Court Complex, Saket, so that all the cases can be disposed of expeditiously. It further directed the said Court to dispose of all the cases expeditiously preferably within eight weeks from today.

SG also submitted before the Court that  if the concerned petitioners tender apology, as envisaged by the Madras High Court in the concerned criminal case, the said petitioners can be permitted to leave India despite the pendency of the criminal case but subject to such orders that may be passed by the concerned Trial Court.

He also told that Court that the look out notices issued against the petitioner(s) before this Court stand withdrawn and that the concerned petitioner(s) will be free to leave India subject to any other pending proceedings including order passed by the Court requiring his/her presence in the stated proceedings.

The Court has listed the matter after 8 weeks.

Petitioners who are foreign nationals were arrested by respondent police on the ground that they had engaged in religious activities in breach of visa conditions. They defied COVID-19 lockdown norms as were imposed by the Government. In the norms, religious places were ordered for closure, yet the petitioners allegedly stayed inside the mosques in groups by defying the norms laid down by the Government.

Thus, in view of the above stated reasons, FIRs were lodged against the petitioners for committing offences under Section 13 and 14 of the Foreigners Act, 2014, Sections 188, 269, 270, 271 and 278 of IPC, Section 3 of Epidemic Diseases Act 1897, Section 58(4), 134, 135 of the Tamil Nadu Public Health Act, 1939 and Section 51(b) of the Disaster Management Act, 2005.

Madras High Court had, in it’s June 12 order said that the petitioners had come to India to serve the cause of their religion. Circumstances suddenly turned adverse and landed them in prison. They have spent more than 70 days in what are truly difficult conditions.

“Merely because the petitioners have contravened the visa conditions, they cannot be seen as criminals.”

[Maulana Ala Hadrami v. Union of India, 2020 SCC OnLine SC 629, order dated 06.08.2020]


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Madras HC | Tablighi Jamaat | Foreigners who attended congregation not criminals: HC grants bail and allows return of foreigners to native country


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Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., while addressing a petition with regard to release of Tablighis, stated that,

Covid-19 should teach us to care for each other rather than use the arsenal of law.

Petitioners who are foreign nationals were arrested by respondent police on the ground that they had engaged in religious activities in breach of visa conditions.

They defied COVID-19 lockdown norms as were imposed by the Government.

In the norms, religious places were ordered for closure, yet the petitioners stayed inside the mosques in groups by defying the norms laid down by the Government.

Thus, in view of the above stated reasons, FIRs were lodged against the petitioners for committing offences under Section 13 and 14 of the Foreigners Act, 2014, Sections 188, 269, 270, 271 and 278 of IPC, Section 3 of Epidemic Diseases Act 1897, Section 58(4), 134, 135 of the Tamil Nadu Public Health Act, 1939 and Section 51(b) of the Disaster Management Act, 2005.

There are accusations that its puritanical and revivalist project prepares the ground for islamic radicalization.

Court’s opinion on “Tablighis”

[Categorization can have serious pitfalls]

Bench recorded,

Prof. Upendra Baxi’s remark in his recent essay on “Exodus Constitutionalism” published by The India Forum that “there is, also, no such thing as ‘migrants’ but only persons and groups with distinctively (and often disturbingly) different needs and abilities…”

The above stated helped the Court to see the petitioners as “30 individuals” instead of collectively thingifying them as “Tablighis”.

Justicing has to be an individualized exercise.

Further the Court added that, 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 to India propelled by a sense of religious idealism. But their mission went awry.

The stated petitioners are eager to return back to their families and are also willing to admit through affidavits that they had violated the visa conditions and were willing to undertake that they will not enter India for the next ten years.

Entitled to bail?

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 Bench states that there cannot be any objection for granting bail to the petitioners.

Continued incarceration of the petitioners will not serve any purpose. Since the petitioners are foreigners, it would obviously be difficult for them to arrange local sureties.

Thus, petitioners shall be released on their own bond.

Right to return to native country

Bench stated that the petitioners had come to India to serve the cause of their religion. Circumstances suddenly turned adverse and landed them in prison. They have spent more than 70 days in what are truly difficult conditions.

Merely because the petitioners have contravened the visa conditions, they cannot be seen as criminals.

Court feeling sensitive to the petitioners’ misery in the present COVID-19 times, posed a question, whether it is acting beyond jurisdiction?

To the above, bench stated,

The Hon’ble Chief Justice has allotted the subject of Criminal Original Petition-Bail, Anticipatory Bail Petitions, Criminal Appeal and Criminal Revision Petitions to be dealt with by me. But, in view of my being a Judge of the High Court, I certainly have the inherent power to make such orders as may be necessary to secure the ends of justice.

Failure to respond to the petitioners’ existential horror would amount to judicial abdication.

Of course, the petitioners having violated the visa conditions cannot demand that they must be allowed to return as a matter of right. But then, the authorities cannot arbitrarily deny the said request.

Unjust, Unreasonable and Unfair

Petitioners are willing to bear the cost of transportation. They will coordinate with their embassies and consulates and arrange their return. All that the respondents need to do is to play a facilitatory role. Instead of doing so, if the respondents insist on detaining the petitioners and prosecuting them, it can only be characterized as unreasonable, unjust and unfair.

Thus, in view of the above, Court issues following directions:

  • Petitioners are granted bail.
  • After the petitioners are released on bail, it is open to the authorities to require the petitioners to stay at the special camp earmarked under Section 3(2)(e) r/w 4(2) of the Foreigners Act, 1946.
  • If the petitioners 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.
  • It is for the petitioners to coordinate with their respective embassies/consulates and arrange their return to their respective nations. Government of Tamil Nadu or the Government of India will only play a facilitatory role.

[Md Kameual Islam v. State, 2020 SCC OnLine Mad 1171 , decided on 12-06-2020]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Govind Mathur, CJ and Siddhartha Varma, J. denied to interfere with the petition for seeking opening of Mosque for offering Jamaat/Namaj of Eid-Ul-Fitr in State of Uttar Pradesh.

Petition sought direction for respondent-State to open Mosque/Idgah situated in Uttar Pradesh for offering Jamaat/Namaj of Eid-Ul-Fitr and Dova in congregation for 1 hour and future Namaj till June, 2020.

Court noted that the petitioner before approaching the Court did not first approach to authority competent for redressal of grievance which they should have.

Thus, Court refused to interfere and asked the petitioner to approach the State and if denied of relief from the authority concerned then, may approach the Court.

Petition stands disposed of.[Shahid Ali Siddiqui v. State of U.P., 2020 SCC OnLine All 612 , decided on 19-05-2020]

Case BriefsCOVID 19High Courts

Allahabad High Court: A Division Bench of Shashi Kant Gupta and Ajit Kumar, JJ., while addressing a Public Interest Litigation held that,

Azan may be an essential and integral part of Islam but recitation of Azan through loud­ speakers or other sound amplifying devices cannot be said to be an integral part of the religion, warranting protection of the fundamental right enshrined under Article 25 of the Constitution of India.”

Background

Member of Parliament (Lok Sabha), Afzal Ansari wrote a letter stating that fundamental right to religion of people at Ghazipur may be protected and State Administration may be directed to permit the recitation of Azan by only one person “Muezzin” from respective mosques of District Ghazipur, since it does not violate any of the directives issued in view of COVID-19 containment.

Senior Advocate of Supreme Court of India, Salman Khurshid also approached Allahabad High Court through Advocate Syed Mohd, Fazal to seek permission of recitation of Azan for the Muslims at Farrukhabad, Hathras, Ghazipur as Azan recitation is an integral part of Islam.

With the prayer of similar relief, Senior Advocate S. Wasim A. Qadri also wrote a letter.

In view of the above, a Public Interest Litigation was filed by Afzal Ansari .

Relief sought was that,

Muslims in the Districts Ghazipur and Farrukhabad, may be permitted to recite Azan through “Muezzin”, by using sound amplifying devices and the restrictions imposed by the administration are wholly arbitrary and unconstitutional since they do not, in any way, violate the guidelines issued for the containment of the pandemic.

Further it was submitted that pronouncement of Azan is not a congressional practice but is simply an act of recitation by a single individual which in no manner violates any of the conditions of lockdown.

Petitioner also added that caretaker of the Mosque is usually responsible for the recitation of Azan who resides in the mosque, in other cases person assigned the duty of recitation Azan is the closes available person, in both the stated cases, no violation of lockdown norms would be observed.

Also ban on Azan through sound amplifying devices is a violation of fundamental right under Article 25 of Constitution of India

Azan is integral to religion and in no way undermines the society’s collective response to the pandemic.

-Senior Advocate, Salman Khurshid

Additional Advocate General while appearing on behalf of the State, supported the Counter Affidavit filed by the Government, wherein it was submitted that, Azan is a call for congregation to offer prayers at the Mosque which clearly is a violation of COVID-19 guidelines.

A meeting was also convened by District Magistrate, Ghazipur on 24th march, 2020 which was attended by several religious leaders wherein it was decided that no religious activities will be conducted during the period of lockdown at any public place of worship and no loudspeakers/amplifiers would be used for the said purpose.

“In the new guidelines issued by Government in view of lockdown, it was stated that all religious places/places of worship shall be closed for public. Religious congregation strictly prohibited.”

Further it was submitted that,

During the period of lockdown with cooperation of religious groups no loud speakers/amplifiers have been used during the festivals like Navratri, Ram Navmi, Hanuman Jayanti and Parasu Ram Jayanti. People of different religions have been following the guidelines and no religious activities are being carried out at any religious place of worship or public place, and no loudspeakers have been used since 24.03.2020

Additional Advocate General stated that right contained under Article 25 of the Constitution of India is subject to public order, morality, health and Part III of the Constitution of India. Rule 5 of The Noise Pollution (Regulation and Control) Rules, 2000 also states that a loud speaker or a public address system shall not be used except after obtaining written permission from the authority.

Bench Analysis & Decision

While referred to the decision of Calcutta High Court in Moulana Mufti Syed Mohammed Noorur Rehman Barkati v. State of W.B.,wherein it was held that,

use of microphone and loud­speakers were not an essential and an integral part of Azan.

There is catena of judicial decisions which recognizes the right to live in freedom from noise pollution as a fundamental right protected by Article 21 of the Constitution of India. Noise pollution beyond permissible limit is hazardous which violates the fundamental rights of citizens.

In the Supreme Court decision of Church of God (Full Gospel) in India v. K.K.R. Majestic, (2000) 7 SCC 282, it was held that

“No religion prescribes that prayers should be performed by disturbing the peace of others nor does it preach that they should be through voice amplifiers or beating of drums.”

Court also observed the fact that petitioner’s counsel could not explain why the Azan could not be offered without the use of amplifying devices.

There is no such religious order which prescribes that Azan can be recited only through loud­speakers or by any amplifiers. Azan is certainly an essential and integral part of Islam but use of microphone and loud­speakers is not an essential and an integral part thereof.

Thus, Court for the above also stated that Right to religion by no stretch of imagination, ought to be practised, professed and propagated saying that microphone has become an essential part of the religion.

Azan may be an essential and integral part of Islam but recitation of Azan through loud­speakers or other sound amplifying devices cannot be said to be an integral part of the religion warranting protection of the fundamental right enshrined under Article 25 of the Constitution of India, which is even otherwise subject to public order, morality or health and to other provisions of part III of the Constitution of India.

Another point of significance to be noted is that, until and unless there is a license/permission from the authorities concerned under the Noise Pollution Rules, under no circumstances, Azan can be recited through any sound amplifying devices.

Hence it is ruled that while the right to offer Azan by voice, without the use of sound amplifying devices is a right protected under Article 25 of the Constitution. However, the right to recite Azan though sound amplifying devices is not protected under Article 25, since it is not an integral part of Islam.

Further, the Court stated that,

Azan can be recited by Muezzin from minarets of the Mosques by human voice without using any amplifying device and the administration is directed not to cause hindrance in the same on the pretext of the Guidelines to contain the pandemic­ Covid­-19.

With the above observations, PIL stands disposed of. [Afzal Ansari v. State of U.P., 2020 SCC OnLine All 592 , decided on 15-05-2020]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Pankaj Mithal and Vipin Chandra Dixit, JJ., while addressing a petition preferred by the people of the Muslim religion in regard to the use of amplifiers and loudspeakers as it is an essential part of their religious practice, held that,

“It is true that one can practice, profess and propagate religion as guaranteed under Article 25(1) of the Constitution of India but the said right is not an absolute right. The right under Article 25 is subject to the wider Article 19 (1) (a) of the Constitution and thus both of them have to be read together and construed harmoniously.”

In the present case, the petitioner 1 had moved an application before the authority concerned for license/permission to use of amplifiers and loudspeakers on two Mosques which were specified by them for the purposes of Azaan for Namaaz. The permission was granted for a specified period of time with certain conditions.

Further, the said pieces of equipment were removed from the mosque for the purpose of repairs but when they were being re-fixed, the local area police stopped the petitioner from reinstalling the same.

Petitioner was refused from using the equipments at the mosque not only for the inherent reason for noise pollution but in order to maintain peace and tranquillity in the area.

It is also to be noted that, Rule 5 (1) of Noise Pollution (Regulation and Control) Rules, 2000 also puts restrictions on the use of loudspeakers/public address systems and sound-producing instruments.

Permission to use sound pieces of equipment on the mosque concerned was for a limited period of time and the same was denied for extension/renewal on account of law and order situation.

Court also cited the case of Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare Assn., (2000) 7 SCC 282, wherein it was held that,

“…the rights under Articles 25 and 26 of the Constitution of India are subject to public order, morality and health. No religion prescribes or preaches that prayers are required to be performed through voice amplifiers or by the beating of drums and if there is such practice, it should not adversely affect the rights of the others including that of not being disturbed.”

Supreme Court decision in Noise Pollution (V), IN RE, (2005) 8 SCC 796 was also referred, wherein it was stated that,

“…fundamental right of a person under Article 19 (1) of the Constitution of India of freedom of speech and expression is not absolute and no one can claim fundamental right to create noise by amplifying sound of his speech with the help of loudspeakers as every citizen has a fundamental right to live in peace, comfort and quietness of his house.”

Thus, in view of the above, the writ petition was dismissed. [Masroor Ahmad v. State of U.P., 2020 SCC OnLine All 43, decided on 09-01-2020]