‘Legally untenable’: Why UP police arresting people for offering namaz is a misuse of the law

The arrest of 12 Muslim men in Uttar Pradesh’s Bareilly on Friday for praying inside an empty house even though there were no allegations of damage or violence is not legally tenable, legal experts said

The owner of the house said that the prayers were being conducted with her permission.

This is not the first time that the Adityanath government in Uttar Pradesh has prosecuted Muslims simply for praying. However, legal experts told Scroll the laws used to book these men were being misused.

The police described the Friday prayer as “illegal” and thearrests as a “precautionary measure”, reports said. The authorities invoked Section 170 of the Bharatiya Nagarik Surakhsha Sanhita, which allows the police to arrest, without a warrant, anyone suspected of planning a serious offence. In such cases, detention cannot exceed 24 hours.

The police said they “acted on villagers’ complaints and the 12 men were bound down for peacekeeping”. The arrest took place after a video of the men praying, taken surreptitiously by an unidentified person, went viral on social media.

‘Legally untenable’

Senior advocate practising at the Supreme Court, Sanjay Hegde, said that there is nothing in law that “criminalises namaz or any form of prayer”.

“Even if there was an undertaking by the owner that there would be no religious activity on the under-construction site, breach of such undertaking would have civil consequences like a fine for the owner, but not imprisonment for praying men,” he added. “This action is legally untenable in any view of the matter.”

Hegde said that the police’s argument was so weak, the case would likely not even see a trial. “There is nothing called precautionary arrest,” he said. “Arrest in anticipation of a crime is preventive detention for which there is a different framework. I doubt whether this matter will go to the stage of a prosecution in court.”

Supreme Court lawyer Vrinda Grover asserted that the arrests were unconstitutional, given that the offering of namaz is a cardinal feature of the fundamental right of Muslims to practise their religion, under Article 25 of the Constitution.

Article 25 of the Constitution guarantees all persons the freedom to profess, practise and propagate religion.

“How can the exercise of a guaranteed fundamental right constitute an offence?” she said.

Grover said that peaceful gatherings and “prayers by a community are customary in India” and that all religions routinely hold religious programmes in both public and private spaces. “For instance, Hindu keertans, jagran, Sikh paath, roads and public amenities are made available by the state for processions such as the Kanwariya Yatra of Hindus,” she added.

Advocate on Record at the Supreme Court Anas Tanwir said the first question to be asked is under what law such a gathering or congregation can be prohibited, especially when it takes place on private property.

“We have a right to private property,” Tanwir said. “Even if it is not a fundamental right, it is a constitutional right. So for an executive branch to take up any action, they first need to establish that there’s a law that allows such detention.”

A long pattern

The Bareilly incident is the latest in a series of cases across Uttar Pradesh where Muslims have faced criminal or preventive action for offering namaz in public spaces.

In January, Uttar Pradesh detained a 55-year-old Kashmiri man after he allegedly offered namaz inside the Ram Temple complex in Ayodhya and shouted slogans. His family said he has a mental illness and submitted medical records to support this claim. But the police said “agencies questioned him to assess intent and verify his travel details”. He was released after nothing suspicious was found in his possession.

In March, the police arrested a student at a private university in Meerut after a video of namaz on campus circulated during Holi celebrations and drew protests from local groups. The police booked him under Section 299 of the Bharatiya Nyaya Sanhita, which deals with “deliberate and malicious acts intended to outrage religious feelings”, along with provisions of the Information Technology Act.

He was granted bail but was suspended from the college and placed under police surveillance.

In June, a Muslim caretaker of a temple in Badaun district was arrested after a secretly recorded video showed him offering namaz in the temple courtyard. The head priest of the temple publicly defended the caretaker and criticised the person who filmed the video.

Despite this, the police booked the man under Section 298 of the Bharatiya Nyaya Sanhita, which “penalises damaging or defiling a place of worship or sacred object with the intent to insult a religion”. He spent 14 days in judicial custody before being released on bail.

The same month, a college professor was placed on compulsory leave after a video of him offering namaz on the college lawn went viral and Hindutva groups demanded action. The college set up an inquiry against the professor and the police also started an investigation.

In July 2022, six men were arrested in Lucknow for offering namaz inside a mall and booked under multiple serious Indian Penal Code provisions, including “promoting enmity and outraging religious feelings”, before being granted bail.

The individuals were booked under Sections 153A (promoting enmity between groups), 295A (acts intended to outrage religious feelings), 341 (wrongful restraint) and 505 (statements conducing to public mischief) of the Indian Penal Code.

In November 2020, Uttar Pradesh Police arrested Faisal Khan, a communal harmony activist, for offering prayers at a Mathura temple. He was sent to 14-day judicial custody.

He was booked under Section 153A (promoting enmity) and other Indian Penal Code provisions after a video of him offering namaz in a temple courtyard, as a gesture of communal harmony, went viral. While the trial court denied bail, the High Court granted it, citing Article 21, but restrained him from using social media for such activities until the trial concluded.

Politics not law

Advocate Vrinda Grover said what is worrying is the “signal that is being sent to the minority community”.

“This is also not an isolated instance, as repeated acts of abuse and misuse of law by the law enforcement agencies indicate a pattern of institutional bias against religious minorities,” she said. “Such abuse of law injures our secular fabric.”

Grover said that while such “unconstitutional suppression of basic rights may please political masters”, the courts must hold the “police personnel responsible”.

Referring to the frequency of such actions, Tanwir said this amounts to “thanedaar justice”, where the police assume they are all powerful and arrest people at will.

He said that this is essentially meant to create a chilling effect. “Process is the punishment; once you are arrested, you have to go for bail, and you have to spend money,” Tanwir added.