By: ilma hasan
October 28 2022
On Sunday, October 25, India’s Railway Police were asked to investigate an incident in which four men had offered namaz – or Islamic prayer – inside a train during a stop in Kushinagar, Uttar Pradesh.
Although no formal complaint had been lodged, the request was made after a video showing the men praying went viral. While the video shows no violence or confrontation – only an onlooker politely asking people to wait in the aisle before moving down the carriage – superintendent of police Awdhesh Singh said the police were looking into the incident and in particular whether passengers faced any issues during their journey because of it.
"A First Information Report (FIR) will be lodged immediately in case we get a written complaint," according to Singh. An FIR, once registered, can lead to criminal charges and prosecution.
The matter had been brought to the attention of the Railway Police by former Bharatiya Janata Party (BJP) legislator Deeplal Bharti who reportedly was traveling on the train and shot the video.
"They offered namaz in a sleeper coach. It caused inconvenience as other passengers were not able to enter or exit the train. How can they offer namaz in public places? It was wrong," he told India Today.
The probe means that the Railway Police have been hauled into a simmering controversy. Since the summer, there have been a spate of objections to Muslims praying in public spaces in Uttar Pradesh (U.P.), Uttarakhand and Madhya Pradesh, escalating from last year's row over designating sites for offering namaz in Gurugram, Haryana.
How did we get here?
Although congregations of Muslims praying in public have historically been a common sight in India, tensions over the phenomenon are not entirely new. In 2018, Hindu groups in Gurugram began raising objections to using public spaces in parks and other public areas for offering namaz, in response to which the Gurugram administration designated 37 sites where namaz could be offered.
A new wave of more organized protests against the offering of namaz in public spaces began in September 2021. While local residents were ostensibly the ones raising objections, press reports noted the involvement of Hindu right-wing groups in this new wave of protests, including a group called the Bharat Mata Vahini and the Sanyukt Hindu Sangharsh Samiti, an umbrella organization set up for this sole purpose, which includes the Vishwa Hindu Parishad (VHP) and Bajrang Dal.
At the time, there were no calls for arrests of those offering prayers in public. Instead, the Gurugram Police took steps to protect worshippers, detaining 50 protestors for trying to disrupt sites in October and 20 protestors in December.
In November 2021, however, in a sign that the authorities were no longer viewing public prayers by Muslims in the same way as before, the district administration in Gurugram reduced the number of designated sites from 37 to 20. Shortly after, Haryana Chief Minister Manohar Lal Khattar on December 10, 2021, said that offering namaz at public places could not be "tolerated," following which the district administration withdrew permission for offering namaz at the 20 sites. The police continued to offer protection where specific permissions were taken and arrangements made with local communities, but what had once been an accepted feature of local life had now been changed.
Even with that change in mind, disputes over offering namaz in public began to take a new direction this year.
In July 2022, a video of eight men offering namaz in the newly inaugurated Lulu Mall in Lucknow, Uttar Pradesh, went viral. By July 19, four of those men had been arrested by the Lucknow Police, and booked for serious offences under the Indian Penal Code (IPC) such as promoting enmity between religious groups, outraging religious feelings, and public mischief.
Soon after, eight Muslim street vendors were arrested for offering namaz in public in Haridwar, Uttarakhand. The arrests were made under Section 151 of the Code of Criminal Procedure (CrPC), a preventative move to ensure peace in the area.
In late August, members of the Bajrang Dal protested against Muslims offering namaz inside a mall in Bhopal, Madhya Pradesh. A video shot in September in Uttar Pradesh's Shahjahanpur showed several men sitting in a bus holding their ears in apology as members of the Vishwa Hindu Parishad (VHP), a right-wing organization, harassed them for praying on the road.
"There is a ban in U.P., you can't pray anywhere but at a mosque. Don't do these antics in this state," one of the men objecting to the prayers is heard saying.
The bus carried over 60 Muslim pilgrims who were reportedly "assaulted, abused, and threatened" and then taken to the police station.
The Railway Police's decision to launch an investigation into what seems like an entirely innocuous incident on the train at Kushinagar follows a growing trend to escalate objections against Muslim worshippers into police action, including the registration of formal criminal cases against the devotees.
What does the law say?
Despite claims by right-leaning protestors, there is no federal or state law that prohibits offering namaz in public.
"There is no legal provision to book namazis for praying in a public space unless it violates an imposed curfew under Section 144," Vibhuti Narain Rai, a retired Indian Police Service officer who served in U.P. for over 20 years, told Logically.
Section 144 of the Code of Criminal Procedure (CrPC) gives local magistrates the power to prevent disturbance to public order – the most common being prohibiting the gathering of five or more people, which can constitute an unlawful assembly.
"Section 144 was not imposed in any of the areas in any of the cases," Rai pointed out, referencing action against those offering namaz in public. "The police and the administration used to facilitate the congregation on Fridays, Eid, etc. as crowds would often overflow from the mosques. Whatever is happening now is happening with malafide intentions," he added.
Lawyers agree that there is no legal framework to prosecute those who offer public prayer.
"Until recently, I don't remember offering namaz becoming an issue," Aman Wadud, a prominent human rights lawyer at the Gauhati High Court, told Logically. "The right to freedom of religion is a fundamental right guaranteed by the constitution."
Others have noted that unless an act of prayer creates a problem or is a nuisance to the public, it cannot be termed a crime, as it is only then that a restriction can be justified against what is the exercise of a fundamental right. "If there is no harm, there cannot be any criminal action," Delhi-based advocate on record Talha Abdul Rahman explained to Scroll.
"Public spaces have been used for picnics, jogging, exercising and even dancing," advocate Mehmood Pracha told Logically. "How is offering namaz a crime, then? [This] appears to be a conspiracy of the right wing."
The Lulu Mall case is a good example of how filing a criminal case against a person just because they prayed in public cannot be justified under the law. The accused were booked under offences in the IPC which require specific intent to create enmity between communities, or offend the religious sentiments of another community, which cannot be demonstrated on the sole basis that they offered prayers in the midst of others.
At least one police force in Uttar Pradesh, where VHP members have claimed Muslims are banned from praying anywhere except mosques, appears to have recognized that merely praying in public is not a crime.
Following complaints on social media about a video of a woman offering namaz in a hospital, police in Prayagraj, the state capital, clarified on September 23 that it did not "fall in any category of crime." While the hospital authorities said they had issued a "strict warning" against such activities since it was a public space, local police said their inquiry found "that the woman in the video was offering namaz without any wrong intentions, and without obstructing any work or traffic, for quick recovery of the patient."
The hospital's response, in that case, is nonetheless a reminder that there are some thornier legal issues when it comes to praying in public view.
On private property, like malls and hospitals, owners can impose restrictions on the ability to pray there. However, breaking that rule would constitute a civil rather than a criminal case. A person would not necessarily have the right to pray in such places, even if generally open to the public, despite them having the right to freely practice their religion under Article 25 of the constitution and to freedom of expression and peaceful assembly under Article 19.
People arguably have the right to pray in unowned public areas, such as roads and parks. However, the state would have the power to impose reasonable restrictions on such a right. For instance, in its 1955 Saghir Ahmad judgment, the Supreme Court clarified that people were entitled to use all public streets "as a matter of right" – but also went on to say that "the state as trustees on behalf of the public is entitled to impose all such limitations on the character and extent of the user."
Authorities can impose restrictions on the fundamental rights in Articles 19 and 25 if there is genuine concern about public order. However, such restrictions would have to comply with the CrPC and Supreme Court precedent – and would also have to be applied in an even-handed manner so as not to violate the right against discrimination under Article 15.
Are there any wider concerns about these recent cases?
The recent objections to namaz in public spaces have become a matter of controversy as they appear to fit within a broader pattern of discrimination against the Muslim community, and similar responses are not seen when it comes to other public religious activities.
For instance, the district administration in Meerut and Baghpat and other cities in U.P. showered flower petals on Kanwariyas, Lord Shiva's devotees, from helicopters during the annual pilgrimage in late July. Police officers were also seen applying pain-relief spray and ointment on Kanwariyas in the state. The police did not file any case over the use of public space on religious grounds.
Rai sees the latest events as an attack on the communal fabric of the country. "Over the decades, I have seen Muslims offer prayers in trains or other public spaces, and the rest of the crowd would ensure silence for those ten minutes. I was really impressed with the decorum maintained by our people," he said. "If [Muslims] can be arrested for creating enmity between groups and offending others, then that means offering namaz in itself is a crime, and the government should pass a bill in Parliament to ban it completely."
A recent analysis by Article 14 suggested that Indian Muslims are being implicated in criminal cases for events as ordinary as "praying, eating, running a business or even falling in love." Some cases can be directly traced to official actions taken by state authorities, such as the enactment of anti-conversion laws in multiple states following baseless claims of "love jihad," while others have arisen from the growing calls for economic boycotts of Muslims.
These trends are themselves arguably connected with an uptick in hate speech towards the Muslim community on television news shows on and at large public gatherings (such as the infamous ‘dharm sansads’ in Haridwar and Delhi), which has prompted action by the Supreme Court as recently as October 21.
With inputs from Vakasha Sachdev.