On Sunday, the Lucknow Police made its seventh arrest in an incident where eight people were offering namaz at Lulu Mall in Lucknow. The persons have been booked under penal sections relating to promoting enmity between groups and causing public mischief, among other sections.

The family of those arrested claim that they had asked for permission to pray. However, the mall’s administration said that it does not allow any religious worship in its premises.

The incident at Lulu Mall is not unique. There have been a spate of instances of Muslims being arrested for praying in public.

Legal experts, however, say that praying in public is not a criminal offence. There must be a specific intent to cause disharmony among groups, which is not apparent in these cases. Further, several acts of public worship occur every day and state authorities do not stop them. Therefore, to only target certain religious acts is discriminatory.

Lucknow: A notice regarding the ban on religious prayers put up inside the atrium of Lulu Mall, a day after controversy had broken out after a group of people allegedly offered namaz in the mall premises. Credit: Nand Kumar/PTI photo

Penalising prayer

In the past few months, there have been a number of instances of Muslims getting penalised for praying in public.

On Saturday, eight people were arrested in Haridwar for offering namaz publicly. They were granted bail a few hours later. Earlier, on Friday, after a video of people offering namaz at the Prayagraj railway station waiting area circulated, the police started an investigation into the matter. The police have said that they will take action based on the result of the investigation.

The politics of this is not new. In June, a professor in Aligarh was sent on a month’s leave after he read the namaz on the lawns of his college. The college set up an inquiry against the professor and the police also started an investigation. In May, four tourists were arrested for offering namaz in a mosque situated inside the Taj Mahal.

Earlier in January, a Hindutva outfit barged into a waiting room of a railway station in Bengaluru where namaz was being offered. They complained that the prayer was a “threat to national security” and threatened severe protests if the authorities did not stop the namaz. This was despite such prayers being offered for “at least 30 years” and the station housing a temple and a Christian prayer hall.

What laws are used to penalise such acts?

In the Lulu Mall incident, the accused were booked under four sections of the Indian Penal Code. These deal with: promoting enmity between groups (Section 153A), outraging the religious feelings of a group (Section 295A), wrongfully restraining a person (Section 341) and statements causing public mischief (Section 505). Under some of these sections, the police can arrest a person without a warrant and bail is not given by default.

In Haridwar, the accused were booked under Section 151 of the Code of Criminal Procedure, which allows a policeman to arrest someone to prevent a crime from being committed. Further, in Agra, the four arrested were booked under Section 153 of the IPC, which penalises any provocation with the intention of causing a riot.

Not a crime

Several legal experts told Scroll.in that arresting people for offering namaz in public was an act not backed by Indian law.

“Based on the facts I know, I cannot understand how offering namaz in public can attract criminal liability,” said Delhi-based senior advocate Nitya Ramakrishnan.

For invoking sections relating to promoting enmity and outraging religious feelings, “there has to be a specific criminal intent in doing acts that can lead to disharmony, which I do not see,” Delhi-based senior advocate Sanjay Hegde said. “In case, the Muslim employees want to keep up with their religion and pray five times a day, it should not invite any criminal action.”

Further, an act can be made a crime only if causes harm to someone. “If there is no harm, there cannot be any criminal action,” Delhi-based advocate on record Talha Abdul Rahman said.

Wrong application of law

There are limited grounds on which praying in public can be forbidden. However, even those are not applicable in the present instance.

“The only thing which the law prohibits is constructing places of worship in public places,” Rahman pointed out. “But praying is like expressing your conscience. That people can do anywhere.”

The Constitution, under Article 25(1), also guarantees the right to freely “profess, practise and propagate religion”. This right can only be regulated on grounds of public order, morality, health and other provisions in the fundamental rights chapter of the Constitution. “Therefore, say if I am causing a public order situation or impinging upon someone else’s rights, then my right can be curtailed,” said Supreme Court advocate Nizam Pasha. “But this is not the case here.”

Further, lawyers said that establishments could have certain rules forbidding worshipping. “You could have a rule, say, prohibiting prayers at a cinema hall,” Hegde said. “But that can also only attract civil action if breached and not a jail term.” Thus, he said that even if Lulu Mall prohibits prayers, the action cannot attract criminal liability.

Religious discrimination

Lawyers also pointed out that prayers regularly happen in public and the state does not, as a rule, act against people worshipping in public places. “Projection of religiosity is a common occurrence in India,” Ramakrishnan said. There are several religious events on “public roads and parks, like bhajans etc.”, Hegde added.

However, Ramakrishnan pointed out that targeting only certain forms of prayers will “make it a state policy of prejudice”. “What is happening right now is arbitrary discrimination against one religion,” Pasha added.

In case it wants to ban praying in public, Hedge asked rhetorically if the state would also prohibit bhajans and similar acts worship.