In March last year, a week after the Modi government imposed a nationwide lockdown to curb the spread of Covid-19, the gates of a building comprising a mosque, a school and a hostel, hidden behind a cramped neighbourhood, were locked by the Delhi Police. The building, situated in Nizamuddin in New Delhi, was the headquarters of the Tablighi Jamaat, an Islamic evangelical organisation with a presence in several countries.
The Jamaat had held a congregation in Delhi at the end of February last year which was attended by hundreds of foreigners from countries in South East Asia and Europe. Several cases of Covid-19 among foreign nationals and Indians were traced to this event. The Islamic organisation as well as its headquarters were demonised by the mainstream media for “single handedly derailing India’s efforts to fight the Covid-19”.
The Delhi Police filed a case of criminal conspiracy against the Markaz authorities and locked the building on March 31.
It has been over a year and the Markaz continues to remain sealed.
The reason is that the Centre is still to file an affidavit in response to a petition filed by the Delhi Waqf Board in the High Court in February asking for permission to reopen the building.
There have been seven hearings since February and Solicitor General Tushar Mehta has repeatedly sought more time to file the affidavit. The reason for the Centre’s delay is unclear in the orders passed by the High Court.
On July 16, the court directed the Centre file its response within two weeks. “Do you want to file or not?” the court asked Mehta, The Hindu reported.
What the petition states
Three days before it filed a petition in the High Court, the Delhi Waqf Board had made a presentation to the Delhi government and the police asking for the Markaz to be unlocked. The properties of the Markaz include a mosque called Masjid Bangley Wali, an educational institution called the Madarsa Kashif-ul-Uloom and a residential hostel, all owned by the waqf board.
All the properties had been locked up on March 31, 2020, after the Delhi Police filed a case alleging criminal conspiracy by the Markaz authorities, among other grievous charges, for hosting a large gathering of the Tablighi Jamaat that month.
While the investigation in the case continued, the Centre in May last year issued fresh guidelines to reopen activities in the country in a phased manner. These guidelines permitted the reopening of places of worship that fell outside containment zones from June 8 last year. Containment zones are clusters of neighbourhoods with high numbers of Covid-19 cases where movement is restricted by local authorities.
While the neighbourhood of Nizamuddin was still on the list of containment zones in June last year, it was taken off the list three months later in September, according to the petition filed by the waqf board. Despite that, the Markaz has remained locked.
The petition pointed out that the property had not been officially sealed by the Delhi Police in relation with the investigation of the case. It stated: “That without entering into the correctness of the decision of the Investigating Officer in putting lock on the entire premises, it can only be said that the matter, in which the said FIR is registered does not warrant putting the entire property under lock that too for indefinite period…”
While the general public had been barred from entering the property, the Delhi Police had prepared a list of five to six people in the locality who could enter the mosque to pray. “The local police opens the locks at the main entrance, allows them to enter at the time of prayers, after the prayers are over those people come out and immediately thereafter the police locked the main entrance again,” the petition stated.
How the Centre got involved
The High Court heard the matter for the first time on February 24. It recorded in its order that Tushar Mehta, the Solicitor General of India, had sought more time to file a status report and affidavit on behalf of the Ministry of Home Affairs in the matter.
The petition had named the Delhi government and the Delhi Police as respondents. While Delhi Police reports to the Union home ministry, the ministry had no direct involvement in the matter. Yet, it was impleaded as the third respondent on the “oral request” of the counsel for the petitioner, the order stated.
Wajeeh Shafiq, the standing counsel for the Delhi Waqf Board, denied placing this request, and said the court had “recorded it in this manner” since the Centre had not formally submitted an application to become a respondent in the case. “On the first day of the hearing, Mr Tushar Mehta appeared and said that the Central government wishes to be a party in the case since, as per him, the case was important for them,” said Shafiq. “There is no reason why the Central government should have intervened.”
Shafiq added that neither the Delhi police nor the Delhi government had raised any objection to the reopening of the Markaz.
In the next hearing on March 5, the court gave another ten days to the standing counsels representing the Delhi government, Delhi Police, and the Centre to file their status reports. But none of them did so by the next hearing on March 24.
The additional solicitor general, representing the Centre, informed the court that the Centre had granted permission to 50 people to enter the mosque and offer prayers on March 27 for Shab-e-Barat, an Islamic holiday, if the waqf board also sought permission from the station house officer of the Hazrat Nizamuddin Police Station.
Opening the Markaz for Ramzan
By April 12, the Central government had still not filed its affidavit. The board requested the court to direct the authorities to allow the mosque to open for the holy month of Ramzan which would start two days later.
The court accepted the request and stated the measures the waqf board was taking to adhere to the guidelines prescribed by the Delhi Disaster Management Authority on April 10. The mosque would have to give a list of names of its staffers, who would be present at the premises for the entire month, to the Hazrat Nizamuddin Police Station, the order said. The devotees would have to follow the guidelines and social distancing norms since the national capital was in the midst of a second wave of Covid-19 infections at the time, it said.
The order recorded the assurance given by the board’s lawyer that it would install CCTV cameras in the vicinity and conduct an inspection along with the counsel of the Central government to measure the area inside the mosque where devotees could offer prayers while maintaining social distancing norms. “Blocks will be made at the place where the prayer mats can be put for the devotees to offer Namaz,” the order noted.
However, in a hearing that took place the next day, the Solicitor General of India argued in court that no congregation could be permitted at the Markaz, citing the Delhi Disaster Management Authority’s order which prohibited all religious gatherings. The court then directed the Central government to file a report on the guidelines being followed to allow or disallow religious function at temples, mosques and churches.
It noted that the petitioner had submitted a detailed plan on the number of staffers required during Ramzan and that the Centre had continued its permission to allow five persons to pray five times in the mosque. The court order took objection to a statement made by Amanatullah Khan, the chairman of the board and an elected representative, that the court had completely opened the locks of mosque.
This hearing took place on the same day as hundreds and thousands of devotees were allowed into Haridwar in Uttarakhand to gather at the banks of the Ganges for the Kumbh Mela as Covid-19 cases were surging throughout the country.
The counsel for the Centre filed an affidavit on April 13, stating that 20 people would be allowed on the ground floor of the mosque during Ramzan and that the waqf board and the police had agreed to install ten CCTV cameras.
Two days later, the petitioner responded to the status report and questioned the basis for permitting only 20 people inside the premises and asked for if similar such directions were being followed at other religious places.
The court in its hearing on April 15 noted that “no clear stand has been taken” by the Centre in its affidavit filed on that day on whether or not religious functions were permitted in other places of worship. It pointed out in its order that the disaster management authority did not outline any directions to close down religious places either.
In its order, it granted permission for 50 people each to pray on four floors of the mosque, and directed the Centre to file its affidavit in response to the petition in four weeks. The order noted that the Centre had objected to the petition on grounds of Article 25 of the Constitution which guarantees the freedom of religion, on the basis of a Supreme Court judgement in 1994 in a petition filed by Dr Ismail Faruqui.
In 1994, Faruqui had challenged the validity of the land acquired by the Centre in and around the Babri Masjid in Ayodhya. That year, the apex court ruled in a judgement that a mosque was not “essential part of the practice of the religion of Islam” and that prayers could be offered anywhere.
In the next hearing on July 16, the Delhi High Court’s order noted that the Centre had sought another opportunity to file the affidavit. The court gave it two weeks and listed the matter for September 13.
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