Wednesday, October 28, 2020

Judge in Bombay HC bench that had quashed FIR against foreign Tablighi Jamaatis now dissents on linking the case with anti-CAA protests: Read full details

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— Consider reading the article Judge in Bombay HC bench that had quashed FIR against foreign Tablighi Jamaatis now dissents on linking the case with anti-CAA protests: Read full details on OpIndia website —

A week after Bombay High Court dismissed FIRs filed against foreign Tablighi Jamaatis booked under the various provisions for violating their tourist visa, one of the two judges of the bench has now disagreed with certain observations made by his fellow judge who had claimed that action against the foreign nationals was an “indirect warning to Indian Muslims” for protesting against CAA, reports Indian Express.

Justice Mukund G Sewlikar, one of the two judges who delivered the judgement on foreign Tablighi Jamaat members on August 21, has now written a dissenting note against the observations made by the senior judge on the bench – Justice Tanaji V Nalawade.

Justice Sewlikar, on Thursday, in a separate order, said that while he agreed with Justice Nalawade on quashing the FIRs, however, he had differing views on a few observations made by the fellow judge.

Disagreeing with his fellow judge, Justice Sewlikar in his dissenting order on August 27 said that it was difficult to concur with these observations as allegations in this respect are neither made in the petitions nor there is any evidence in this regard.

“Therefore, in my opinion, these observations are outside the scope of the petitions,” the judge observed.

Maintaining that he agreed with all observations made by Justice Nalawade except the one pertaining to CAA protests, Justice Sewlikar said that since none of the offences could be proved by the prosecution, the chargesheets against the petitioners deserved to be quashed.

Action against Foreign Muslims created fear in the minds of Muslims: Justice Nalawade

Linking the Tablighi Jamaat case to anti-CAA protests, Justice Tanaji V Nalawade had opined that action against the foreign nationals, who had attended Nizamuddin Markaz in Delhi, had created a fear in the minds of Muslims. The Bombay HC judge had claimed that such action indirectly gave warning to Indian Muslims that action in any form and for anything can be taken against them.

In the 58-paged judgment quashing FIRs against foreign Tablighis, Justice Nalawade had observed, “There were protests… at many places in India from at least prior to January 2020. Most of the persons (who) participated in the protests were Muslims. It is their contention that the Citizenship (Amendment) Act, 2019, is discriminatory against Muslims…They were protesting against the National Register of Citizens.”

Continuing to link Anti-CAA protests with Tablighi Jamaat case, Justice Nalawade added, “It can be said that due to the action taken, fear was created in the minds of those Muslims. This action indirectly gave warning to Indian Muslims that action in any form and for anything can be taken against Muslims. It was indicated that even for keeping contact with Muslims of other countries, action will be taken against them. Thus, there is a smell of malice to the action taken against these foreigners and Muslim for their alleged activities. The circumstance like malice is an important consideration when relief is claimed of quashing of FIR and the case itself.”

FIR against foreign Tablighis, Maharashtra govt used them as scapegoats: Bombay HC

On August 21, the Bombay High Court dismissed FIRs filed against foreign nationals booked under the various provisions for violating their tourist visa conditions by attending the Tablighi Jamaat congregation at Nizamuddin in Delhi.

The Aurangabad bench of the Bombay High Court, hearing a petition filed by 29 foreign nationals noted that Maharashtra government had acted under political compulsion and police also did not dare to exercise powers given to them under provisions of procedural laws and substantive laws.

Launching a scathing attack on Maharashtra government, the Aurangabad bench of the Bombay High Court had observed, “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”.

Hearing the arguments, the Bombay High Court bench had said that there was no violation of visa by foreign Tablighis as there are no restrictions on foreigners for visiting religious places and attending normal religious activities like attending religious discourses.

The court noted that the allegations against Tablighi Jamaat very vague in nature and from these allegations it cannot be said at any stage that they were spreading Islam religion and there was the intention of conversion.

Another fellow judge had dissented against Justice Nalawade in the past

Interestingly, this is not the first time that a fellow judge has expressed his dissent against the judgement delivered by a bench comprising of Justice Nalawade.

In October 2019, another senior Bombay High Court judge Justice KK Sonawane had strongly dissented with Justice Nalawade while dealing with pleas alleging misappropriation of funds. Justice Sonawane had called the decision an outcome of a “lack of consultation and coordination”.

Justice Sonawane, in his dissenting judgement, had noted that the judgement delivered by Justice TV Nalawade in the same case was made in a “very cryptic” and “obscure manner” by simply declaring that “both petitions are allowed”.

The Supreme court too had repatriated this particular case back to the Aurangabad bench of Bombay high court asking it to pass an order that can be understood.

Unable to understand the order written by Justice Nalawade, the Supreme Court in its order has said, “On perusal of the impugned order, we find it is unintelligible and we could not decipher what has been decided by the High Court”.

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