Have we not disregarded the Rig Veda’s message that all human beings are one? The recent directives of the Uttar Pradesh Police were not only contrary to Hindu scriptures but flew in the face of our Constitution and laws. Justice K Ramaswamy in the historic nine-judge-bench judgment of the Supreme Court in S R Bommai (1994) observed that “there can be no democracy if anti-secular forces are allowed to work dividing followers of different religious faith flying at each other’s throats. The secular Government should negate the attempt and bring order in the society.”
Violating well-established rules of separation of powers and the constitutional scheme, the UP Police’s officers have started making “policy” decisions that are arbitrary, irrational, discriminatory and unnecessary. Some of them ordered that Muslims can no longer pray even on the rooftops of their houses. Does the police not know that Eid prayers are offered in a congregation, and cannot be offered individually or in small groups on rooftops? This author has not seen any Muslim offering Eid prayers on the roof. Perhaps in a population of millions in a city, a few people living adjacent to mosques joined the congregation prayers from their roofs. But the heavens have not fallen due to this.
UP Police officers must know that though the right to property has been deleted as a fundamental right by the 44th Constitutional Amendment, it remains a legal and constitutional right under Article 300A. British jurist John Austin has defined ownership as “a right indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration over a determinate thing.” An owner of the property is free to use it in any way he or she wants. He can hold rooftop dinner parties as well as worship or pray. Of course, he is not supposed to, in either case, use a DJ or loudspeaker. In fact, in Muslim prayers, only the imam from inside the mosque speaks and worshippers on roofs or roads remain completely silent.
The Meerut Police had issued a directive that Eid prayers cannot be offered on roads. No one’s preference is to pray on uneven dusty roads in the scorching sun. However, there is an acute paucity of mosques in some high-density states. No prayers are allowed in some historic mosques under ASI’s control. At many places, municipal authorities do not easily permit construction of new mosques. Accordingly, due to the crowd, people are not able to get space within the mosques and for a few minutes offer their prayers on roads in front of mosques. Even Meerut police admitted that fewer people were last year booked for praying on roads. The Eid prayer is for hardly a few minutes and done early in the morning. District administrations across the country have permitted these for years.
Under Sections 30 and 30A of the Police Act, 1861, the police may regulate processions or assemblies on roads. Article 19(1)(b) gives a fundamental right to assemble peaceably without arms to all citizens. The state can impose only “reasonable restrictions” on this right in the interests of the sovereignty and integrity of India or public order. It does not have the right to altogether “prohibit” or “ban” religious assembly. Any unreasonable restriction like the one prohibiting a few minutes of Eid prayers would possibly be held unconstitutional. In Babulal Parate (1961), the Supreme Court held that a citizen has the inherent right to take out a procession or hold an assembly peaceably. The Privy Council, too, in Manzer Hasan (1925) recognised such a right to religious assembly or procession on roads even without Article 19(1)(b) in place. The Madras High Court acknowledged this right in Sadagopa Chariar (1903). Given such consistent judgments, there is a legitimate expectation that the district administration would facilitate peaceful Eid prayers even on roads by people who are unable to find space in mosques.
The district administration’s primary duty is to maintain law and order. It is bad policy to create situations of conflict and disorder. Due to strict enforcement of bans on offering prayers on roads in UP, most mosques hold prayers in shifts. But this leads to the problem of thousands of people waiting on the road outside mosques, creating avoidable traffic jams. The prayers which used to finish in 10-15 minutes in one shift now take 75-90 minutes. Moreover, do we practise similar strictness with the followers of other religions when it comes to Ram Navami, rath yatras, Ganesh Chaturthi, Gudi Parwa, private wedding processions, etc? Doesn’t the UP police shower flower petals from government aircrafts on Hindu religious processions such as the Kanwar Yatra? The UP Chief Minister has ordered a 24-hour Akhand Paath of the Ramcharitmanas in all districts of the state on the occasion of Chaitra Ram Navami. Discriminatory policing unnecessarily divides people, creates fear and suspicion in Muslim minds, alienates them and eventually harms the constitutional ideal of fraternity.
The alleged threat by the Meerut police of seizure or cancellation of passports for praying on roads was equally bizarre. The Passport Act, 1967, is a central law, and Section 2(c) defines the term “passport authority” as an authority under the Act responsible for issuing passports, which includes the central government and its designated authorities. The UP Police is not the passport authority and has no powers of impounding or cancelling passports. Section 10 of the Passport Act gives specific grounds on which a passport can be impounded. The threat of denying police clearance was in bad taste.
Interestingly, rejecting the Muslim claim to the site where a mosque had stood for over four centuries, a five-judge bench of the Supreme Court in Ismail Faruqui (1994) held that a mosque is not an essential practice of Muslims. Justice J S Verma in paragraph 82 observed that “a mosque is not an essential part of (the) practice of religion of Islam and namaz (prayer) can be offered anywhere, even in open”. Now people are told that they cannot pray even in the open. Gurugram has witnessed several such incidents.
On the one hand, without fearing the tag of “appeasement”, the Centre announced Saugat-e-Modi (gift) on the occasion of Eid for lakhs of Muslims. On the other hand, Muslims were told not to pray even on the rooftops of their houses or for a few minutes on roads in front of mosques. Is there a communication gap between the Centre and UP police?
The author is vice-chancellor, Chanakya National Law University. Views are personal
