Centre opposes reopening of Nizamuddin Markaz before HC, cites 'cross-border implications'

In a key development, the Delhi Police has strongly opposed the Delhi Waqf Board's plea before the Delhi High Court seeking reopening of the Nizamuddin Markaz mosque in the national capital. Republic TV has accessed Delhi DCP (Crime) Joy Tirkey's affidavit which has been duly authorized by the Ministry of Home Affairs. Moreover, it highlighted that the present writ petition has become infructuous owing to the HC's order dated August 23 whereby the residential premises of the Markaz should be used. It also asserted that this was not a violation of fundamental rights.

The affidavit said, "It is submitted that since about 1300 foreigners were found to be residing in the said premises and cases against them have cross border implications and involves nation's diplomatic relationship with other countries, it is necessary and incumbent on the part of the Respondent to preserve the said premises for the purpose of Section 310 of CrPC". This section empowers the judge to visit any place in which an offence is said to have been committed for the purpose of appreciating the evidence. Tirkey stressed the need to preserve the case property so that the due process of law can be followed. 

"As such the reasonable restriction which has been imposed on the petitioner‟s right if any under Article 26 of the Constitution of India is on the ground that the said premises were not being used in accordance with law and on public order considerations and therefore cannot be faulted or held to be violative of Part III of the Constitution of India. It is submitted that in view of the aforesaid, in the respectful submission of the deponent there has been no impingement of petitioner‟s fundamental right under Article 26. The same has been curtailed for a short duration on public order considerations and therefore cannot be said to be ultravires the constitution," the affidavit added. 

The Markaz controversy

The controversy erupted when 24 people who had attended the religious congregation at Markaz Nizamuddin tested positive for COVID-19. Thousands of people who participated in the event travelled to various states in India, risking the spread of the novel coronavirus. According to the MHA, 1746 individuals including 216 foreigners were staying in the Markaz building as of March 21, 2020. 

As per the Delhi government, the religious congregation violated the prevailing orders, which prohibited large gatherings. However, the Markaz claimed that it had not flouted the rules and discontinued the religious function after the announcement of the nationwide lockdown. Instead, it alleged that many of the attendees were stuck due to the unavailability of transport services.

On March 31, 2020, the Delhi Police registered a case against Maulana Saad and other officials of Tablighi Jamaat under sections of the Epidemic Disease Act,1897 and Section 269, 270, 271, and 120-B of the Indian Penal Code. In the FIR, it has been stated that the congregation failed to take safety measures for the prevention and treatment of COVID-19. As of April 3, 2020, 30% of the total COVID-19 cases in India were linked to the Tablighi Jamaat religious congregation.

While the mosque has remained virtually shut since March 31, 2020, the authorities have allowed 5 persons to offer prayers 5 times a day in the same premises. In the affidavit, the Centre also clarified that the Station House Officer can relax entry norms upon receiving an application made by the person in charge of religious affairs. It also claimed that the present plea should be dismissed on the ground that two petitions cannot be entertained for the same cause.