Last Friday (10 December), Haryana Chief Minister Manohar Lal Khattar told mediapersons in Gurugram, “The tradition of offering namaz in the open cannot be tolerated, but an amicable solution will be found to it. We will try to find how they can get back the encroached Waqf Board land, or they can offer namaz at their homes. We will not allow any confrontation. Some decision was reached after the talks, but the designated places have been withdrawn. We will approach the matter in a fresh manner.” The Chief Minister added that all religious activities should be confined to religious places only.
On 4 December, a video shared widely on social media showed the hooliganism by the protesters trying to disrupt namaz. The refrain was, “There shall be no namaz here”. Muslims exercised restraint, and the police, for a change, controlled the hooligans well without resorting to the use of force to disperse them. Namaz was offered amidst the ruckus.
At the Core, It’s the Administration’s Fault
In May 2018, the district administration had permitted Muslims to offer namaz at 37 places. Local residents of various sectors of Gurugram and some organisations have, however, been protesting against the offering of namaz in these public places for the past several weeks. They argue that there was either no formal permission or that it was only for a specific period of time (or just a day), and in any case, was given unilaterally without consulting local residents. Conceding their point and admitting their ‘mistake’, the administration subsequently withdrew permission in respect of eight places. Now, with the Chief Minister’s statement, it appears that the permission now stands withdrawn in respect of all places.
Knowing the correct legal position in this regard would be instructive. The Muslims did not commit a mistake by going to a place to offer namaz for which they had been permitted by the administration. The protesters committed a mistake by protesting at the namaz site, whereas they should have approached the administration instead. The real mistake was committed by the administration.
The administration had no authority to give permanent permission for namaz in respect of even one public place. The Indian Police Act, 1861 (or later Police Acts of those states that have enacted them), allows occasional permission only for private purposes, be it religious, political or other purposes. Permission cannot be given for regular or recurring private purposes.
The ‘Kanwar yatra’, for example, takes place only once a year, and hence, permission is granted for it. But permission cannot be granted for a month-long ‘Katha’ at a public park. In December 2018, the Noida administration had rightly denied permission both to namaz as well as Bhagwat Katha at a municipality park.
Past Judgments of the Supreme Court
In any case, the Chief Minister has now corrected that mistake of the administration. Even as he has been criticised (a TV programme used the word anti-minority with a question mark for his decision), the fact remains that he is legally correct.
In the case of Dr M Ismail Faruqui (1994), a three-Judge Bench of the Supreme Court had held that the right guaranteed under Article 25 of the Constitution of India did not extend to the right of worship at any and every place.
In July 2018, the Jyoti Jagran Mandal wanted to hold a ‘Jagran’ and ‘Mata Ki Chowki’ at a park in South-West Delhi. They had challenged an order by the National Green Tribunal (NGT) denying it permission. A Division Bench of the Supreme Court observed that “such religious activity” could not be held in public places. Before this, in 2017, a Division Bench of the Bombay High Court had ruled in the case of Dr Mahesh Vijay Bedekar, “No one has a fundamental right of offering prayers or worshipping on a street or footway by obstructing the free flow of traffic as it is not an essential part of any religion.”
Misleading Comments on Social Media
Most sections of liberals on social media have reacted to these developments along expected lines, without realising that their comments were both legally wrong as well as objectionable, and on which concerned parties could move for legal action.
On Twitter, the caption of a video of the disruption of namaz on 4 December read, “Hindutva extremists attempt to prevent Muslims from praying.” The tweet was tagged to the American President and Vice-President also, and the author wondered whether this will be discussed in the ‘Summit for Democracy’. The objectionable word is ‘extremists’. To my knowledge, the word extremist has not been defined in any judgment of the Supreme Court but its popular meaning is pejorative and is liable for defamation. Then, it says, “attempt to prevent Muslims from praying”, thereby creating an impression as if, in a brazen atrocity over Muslims, they were prevented from exercising a fundamental right. This attracts Section 505(2) of the Indian Penal Code for intent to cause fear or alarm, or incite some people into committing offences by deliberately and mischievously misrepresenting facts, as it omits the fact of the use of public space.
Another tweet read, “Public humiliation and subjugation of Muslims. Struggle to exercise their basic religious freedom guaranteed under the Constitution.” There was no direct “subjugation” of Muslims, though there was hooliganism. If this argument were to be accepted, any communal dispute could be claimed by both parties to be an attempt to “subjugate” the other. Then, as we have seen in the judgments cited above, the right guaranteed under Article 25 of the Constitution of India (religious freedom) does not entail the right to undertake religious activity in public places. The tweet further says, “Muslims are resisting.” All three aspects of misrepresenting facts and speaking of “resisting” qualify for action under Section 505(2).
A Few Questions Need to be Asked
Yet another tweet said, “In the ‘secular’ republic of India, congregational prayer, part of Islam, is being virtually outlawed in BJP-ruled Haryana.” There is no dispute about congregational prayer being part of Islam. The issue is offering prayer in a public space, which is prohibited by law. It is not the BJP-ruled Haryana that is ‘outlawing’ it, the Hon’ble Supreme Court of the country has done that. The factually and legally wrong insinuation against a state government is inflammatory. It also qualifies for action under Section 505(2).
One tweet claimed that the state government had allowed 42 temples and 18 gurudwaras but only one mosque. It implies discrimination by the government and is misleading because details are missing. Even if we presume that the facts are correct, we need to have details of the circumstances under which permission was granted for the aforesaid temples and gurudwaras. When was it granted? What was the population in the concerned sector then? The face of Gurugram and the real estate therein has rapidly changed in the past few years and is changing every day since then. Was the permission granted before land became scarce as well as prohibitively costly, or after that?
'Not Able to Get Waqf Properties Back'
The Chief Minister can resolve the issue by permitting the construction of some new mosques. That is the only legal way out to avoid unnecessary tension and conflict between communities. He has said, “We will try to find how they can get back the encroached Waqf Board land.” This would earn Khattar the goodwill of the Muslim community if he could cut through the red tape and really expedite this process. In the current atmosphere of trust deficit, mere assurances do not carry much value.
The Gurgaon Muslim Council has told the media, “The Waqf Board and administration have not been able to get Waqf properties back from encroachers for a very long time … We request him [the Chief Minister] to instruct the HSVP [Haryana Shehri Vikas Pradhikaran] to allocate us land in multiple sectors to build multi-storey mosques and that shall be the end of the Juma Namaz row.”
In my considered opinion, the demand is quite reasonable, but with a caveat. Even if the government finds it difficult to allocate them land in as many sectors as demanded, a viable solution could be found by giving land in a lesser number of sectors. The Muslim community, if their population is about 5 lakhs there, can easily arrange a fleet of private ‘Namaz Special’ buses for a day per week from public contribution, to ferry Muslims from different localities to the mosques. Both sides must be reasonable.
Dr NC Asthana, a former DGP of Kerala, is the author of 46 books and 76 research papers. His latest book is ‘State Persecution of Minorities and Underprivileged in India’ that has been reviewed by Justice J. Chelameswar (Retd) of the Supreme Court. The views expressed are his own.
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