Taking a sympathetic view of the 31 foreign Tablighi Jamaat members, imprisoned for over 70 days, the Madurai Bench of the Madras High Court asked the Tamil Nadu government to consider closing the cases against them and allowing them to return. The Bangladesh and Indonesian nationals including women and senior citizens were in Puzhal and Saidapet jails for violating Indian tourist visa conditions and indulging in religious preaching.
Granting bail to them taking into account the COVID-19 pandemic, Justice G.R. Swaminathan observed, “During times of armed conflict or emergency, the right to leave any country can be invoked. The current pandemic times are no different. The petitioners fortunately have not tested [COVID-19] positive so far. The position may be different tomorrow. The lives of the petitioners may be in danger. Times may be uncertain but rights have to be certain.”
“I, therefore, hold that 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,” he held.
The court said that the petitioners have already suffered enough for their transgression of law. With the prevalence of medical emergency, they have the right to return to their native countries at the earliest opportunity.
Merely because the petitioners contravened the visa conditions, they cannot be seen as criminals. “The situation calls for empathy and understanding. The petitioners are yearning to breathe the native air in their own ground,” he said.
Taking the view that the prison term already undergone by them should be considered as sufficient punishment, Justice Swaminathan said “to insist that they should continue to remain in India offends the principle of proportionality and fairness.”
Ordering their release on own bonds, he directed the government to consider the proposal of the Jamia Qasmiya Arabic College, Chennai, to house them after their release.
The petitioners submitted that they would not visit India for the next 10 years and would coordinate with their respective embassies/consulates and bear travel expenses. Hence, the court directed the Central and State governments to play a facilitatory role.
“On the execution of appropriate affidavits by the petitioners expressing their regret for violating visa conditions, the proceedings against them shall be concluded by filing final reports recording the same,” the court said.
The judge pointed out that the prosecution’s case was not that the petitioners had indulged in proselytising activities. Their acts had not prejudiced public tranquility. The court said they came here propelled by a sense of religious idealism. But their mission went awry and they were now eager to go back to their families.
Pointing out to the fact that India was a signatory to the International Covenant on Civil and Political Rights, the court said that though the petitioners had violated visa conditions and cannot demand that they must be allowed to return as a matter of right, the authorities concerned cannot arbitrarily deny their request.
The judge also took into account that none of the petitioners had tested positive for COVID-19 and relied on a government order passed in 1996 that mandated State governments to keep a watch on persons who engaged in religious activities in violation of tourist visas and to deport them immediately.