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Salat and the Indian Public Law: judicial misconceptions
By Prof. Tahir Mahmood

Freedom of religion is the hallmark of the basic law in secular India; and it extends to all religions of the country irrespective of the majority or minority status of their followers. The Constitution of India guarantees the right both to ‘profess’ and ‘practise’ religion. In judicial opinion ‘religious practice and performance of acts in pursuance of religious beliefs are as much a part of religion as faith or belief in particular doctrines’ - AIR 1954 SC 388.

Islamic religious practices are, therefore, as much legally protected in this country as the Islamic beliefs. In the Arkan-e-Khamsa [Five Pillars ] of Islam, except the Sahadah which represents essential Islamic beliefs, the other four - salat, siyam zakat and Haj - represent essential religious practices; and all these are covered by the Constitutional provisions relating to freedom of belief and practice of religion.

Namaz [Salat in Arabic] is a particular form of prayer to be offered in a series of fixed postures - standing still, kneeling down, sitting and prostration. As is well known, there are five obligatory daily prayers to be offered at dawn, noon, afternoon, evening and late evening - called Fajr, Zuhr, 'Asr, Maghrib and 'Isha respectively; and all these must be said by all adult men and women regularly and punctually. Though these may be offered individually, men should offer each namaz preferably in a group either at a mosque or elsewhere. On each Friday the noon-prayer, Zuhr, is replaced with the weekly congregational prayer, arranged in bigger mosques; and this is considered more important than the daily prayers. Besides, on the two 'Id days congregational prayers are held in the mosques and 'idgahs.

Under the Indian Constitutional law namaz is a practice of religion to pursue which Muslims have a fundamental right within the limits set by the statute. In a Lucknow case, upholding State acquisition of a certain mosque property, a court had once wrongly observed that it was ‘not necessary’ for the Muslims to pray in the mosques - AIR 1978 All 280. Sharply criticizing this observation, eminent Constitutionalist HM Seervai had said ‘An individual Muslim has the right to profess his religion. He may do so by offering prayers at home or in a public place. But he has equally a right to offer prayers in a mosque. Religion has both a personal and an institutional side. No doubt men can pray in their homes. But throughout the ages men have worshipped in temples, churches, mosques and the like. In practice the personal right is inseparable from the institutional right and a person could justly complain that he has been denied the freedom of religion if the right of private worship is conceded but the right of public worship is denied to him. Articles 25-28 of the Constitution recognize this two-fold aspect of religion’ - Constitutional Law of India 936 (3rd ed., 1983), p.936.

In practice individual namaz offered in the privacy of homes, or even in a public place, raises no complications in this country. Group-prayers are offered at railway stations and airports and in government buildings on occasions when practising Muslims assemble in these places. No legal or administrative agency interferes with this practice. However, certain matters relating to offering congregational namaz are sometimes sought to be regulated by the public law of India. The way this is done annoys the concerned Muslims. In some such cases they have sought justice from the courts.

The timing of the five daily prayers is announced in the mosques by the call of the mu’azzin. This is known as the adhan. Now all big mosques in the cities are equipped with public-address systems and azan is called on amplifiers, especially during the fasting month, the holy Ramadan. This has been objected to in some places by those who feel disturbed by it. In several cases, entertaining such objections civil authorities or the police have imposed restrictions on the use of amplifiers in the mosques; and in judicial opinion such restrictions have the sanction of public law. The Calcutta High Court once observed, ‘Congregational prayers are a beautiful feature of the Muslim religion; and one remembers with pleasure the romantic sound of an early morning muazzin from the turrets of an upcountry mosque on a misty morning. But to transform this in a noisy fanfare is neither artistic nor necessary. I find nowhere that the religion of the Muslims enjoins it’-- AIR 1958 Cal 9. Bitterly criticizing how on Hindu festivals loudspeakers ‘dole out cheap jazz or cinema music’, the judge said he was ‘surprised to hear that the canker has now spread into the precincts of Muslim religious institutions.’ Explaining his viewpoint he added, ‘May be that what is sought to be propagated in this instance is not profane music but a call to the faithful for offering daily prayers, but the objection remains. What is distasteful and abhorrent in the house of man is singularly inappropriate and even irreverent when used in the house of God. Prayer is intended to be a silent communion with the Creator. It does not call for a tumultuous prelude or a noisy accompaniment.’

Another practice relating to congregational namaz that has attracted judicial scrutiny is the spilling out of Friday congregations on the roads around the mosques. In a Bombay case where civil administration had directed a local mosque that the congregation of namazis must not spill out on the road on a specified side, and the directive was challenged in the court, it was held : ‘Every community undoubtedly has a right to pray and worship in accordance with its own religious practices. No one can or should have any objections to such prayers being offered. But this cannot be done in violation of law. Encroachment of a public street or footpath for religious purposes - whether it is for offering prayers or constructing a temple - is equally contrary to the provisions of law and must be prevented.’-- AIR 1989 Bom 88

In both these cases the courts were seemingly suffering from misconception and misinformation. In one of these cases the court refused to distinguish between brief announcements of prayer-time at a mosque and playing profane music for long hours. In the other case it failed to distinguish between building a permanent place of worship on a road and briefly using the road once a week. In both the cases the courts seem to have drawn parallels only in their anxiety to dispel any impression of being unduly against the religion-based practices of the Muslims only. In any case, in the Azan case the court seemed to be terribly confused about the purpose of 'the call of the mu’azzin’.

In a country where in busy residential localities and commercial places we often find our ears pierced by deafening music and songs of all kinds and our roads blocked by processions of all sorts, there seems to be no justification for putting a ban on such practices for azan and namaz only. Not to interfere with these religious practices of the Muslims - at least as long as much worse practices are being allowed for non-religious purposes - will only eminently conform to Constitutional justice.
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