Noida Namaz Notice: A Clash Of Rights?

A notice from a station house officer of Sector 58, Noida, sparked an uproar on social and mainstream media about the fundamental right of the Muslim community to pray. Irrespective of what turn this decision takes, this is a useful opportunity to acknowledge the issue and put its legality to test.

The notice states that Muslim employees of local companies will not be permitted to hold prayers in a public area, such as the park.

The initiative of the concerned official must not only be lauded but also emulated elsewhere – not just in Uttar Pradesh but across the country. A fine balance in the maintenance of fundamental rights is not only the duty of the apex court of the country but also of the government.

The first question to be addressed is whether the police or the local administration has the power to regulate activities in public spaces, and if so, what is the source of such power.

Section 30 of the Police Act, 1861, gives police the power to regulate public assemblies and processions and license the same; and Section 114 of Chapter V of the Uttar Pradesh Municipal Corporation Act, 1959, enumerates the obligatory duties of the Corporation, where one of the clauses says: “(xxiv) the removal of obstructions and projections in or upon streets, bridges and other public places”.

Therefore, both the police and the corporation not only have the power to give orders of this nature but also have a duty to do so.

Whenever an issue of this nature arises, there is a tendency to immediately communalise it. This injects sentimental rhetoric into the discourse, with which a balanced discussion on legality obviously cannot compete.

This has happened this time around, too. Except that there is no parallel that can be drawn between the regularity, magnitude, and scale of the azaan (the multiple calls every day for the orthodox Muslims to pray) and the religious practices of any other large group in the country.

Some stray examples that have been casually mentioned are that of the temporary puja pandals constructed, say, during the annual Durga Puja or Ganesh Chaturthi festivals, as also the kanwar yatras that take place during the Hindu holy month of Shravan. What is not being said is that all the permissions or licences, whether from the police or from the municipal authorities, have to be procured for each of these events.

These events are, thus, not comparable to the azaan conducted five times every day on any road, park, or thoroughfare across the country. Even if only the Muslim Friday prayers are counted, that weekly frequency is still relatively high and, more importantly, no police permission is taken for it.

Those wanting to paint administrative decisions in a religious colour must realise that the appropriate comparison of a Muslim festival that can be drawn with a kanwar yatra, for instance, is that of Muharram, during which time members of the community take out large processions (juloos). However, permissions are sought for such processions (for both Muharram and kanwar) and hence can be precluded here.

It must also be noted that any public gathering or obstruction without the requisite permissions have the effect of violating penal provisions stated in the Indian Penal Code – Section 268 (public nuisance), Section 339 (wrongful restraint), Section 341 (punishment for wrongful restraint) and Section 431(mischief by injury to public road, bridge, river or channel) in particular.

In fact, a bench of the Punjab and Haryana High Court, while rejecting the anticipatory bail applications of protestors who had occupied National Highway 65 as part of their agitation for Jat reservations, held:

“For availing fundamental right by one person, he cannot violate the fundamental rights of others. If they are to agitate, they can agitate anywhere else, where no inconvenience is caused to the general public. But by blocking the national highway, they have violated the fundamental right of general public of free movement and a lot of inconvenience was caused to thousands of people by the act of the petitioners.”

Abu Dhabi, the capital of United Arab Emirates (an Islamic country), recently amended regulations in their Traffic Law No 178 to stop people from praying on the side of the road. The violation of stopping a vehicle on the side of the road in undesignated places will now invite a fine of 1,000 dirham. The secular republic of France also undertook a similar measure a few years ago.

The Supreme Court of India, as also various High Courts across the country, have dealt with the question of encroaching upon or obstructing public roads and highways several times in the past and taken cognizance of such incidents. The courts have repeatedly held that such incidents cannot be permitted. In the decision in “Railway Board v. Niranjan Singh” [AIR 1969 SC 966], the Supreme Court held that:

“…there is no fundamental right for anyone to hold meetings in Government premises. The fact that those who work in a public office can go there does not confer on them a right of holding a meeting at that office even if it be the most convenient place to do so. The fact that citizens of a country have a freedom of speech, freedom to assemble peacefully and freedom to form associations or unions does not mean that they can exercise those freedoms in whatever place they please. The exercise of those freedoms will come to an end as soon as the right of someone else intervenes.”

Similarly, the Supreme Court in “Olga Tellis and Ors. v. Bombay Municipal Corporation” [AIR 1986 SC 180] held that:

“Foot paths or pavements are public properties which are intended to serve the convenience of general public. They are not laid for private use and indeed their use for a private purpose frustrates the very object for which they are carved out from portions of public streets.”

In “Sodan Singh and Others v. New Delhi Municipal Committee and Others” [1989(4) SCC 155], the Supreme Court reiterated that the liberty of one individual comes to an end where the liberty of another begins.

Finally, in the case of “Dr. M. Ismail Faruqui v. Union of India and Others” [AIR 1995 SC 605], the apex court observed that the right guaranteed under Article 25 of the Constitution of India does not extend to the right of worship at any and every place.

If a meeting held on a public road or park is treated as a fundamental right of the persons doing it, then the same directly stands in conflict with the fundamental rights of the public who are prevented from using these public utility services during that period. So, no individual or group has a fundamental right to assemble on public roads or road margins – they are meant only for the public at large.

The meaning of a secular state is that no individual or activity will be advantaged or disadvantaged at the hands of the state on account of religious considerations. If an individual wanting to gather 50 people for a rock concert in the middle of a busy thoroughfare will be curtailed from doing so, why should a group of people be allowed simply because they are offering prayers instead? Wouldn’t permitting the latter be the very antithesis of a secular state? The answer is a yes.

The crux of a secular Constitution lies in the prevention of the state from identifying itself with any particular religion or from favouring or disfavouring any particular religion, or indeed favouring the sacred of any hue over any temporal activity.

This essence of secularism has repeatedly been given a communal twist so much so that its original meaning has almost paled beyond recognition. It is heartening to see that the state has finally taken charge to conduct administration along the lines of true secularism as envisaged by the original Constituent Assembly and not the heavily distorted form of Nehruvian secularism that has been peddled all these years.