JUDGMENT
Charles A. Turner, Kt., C.J.
1. In 1875 the Muhammadans applied for permission to erect a mosque in Sevvaipett on the site occupied by the mosque recently destroyed, but the Hindus objected and the application was refused. The Muhammadans nevertheless, it would seem, occupied the site, and in 1878 again applied for permission to build the mosque. The Hindus opposed the application : they intimated their apprehension that the erection of the mosque would lead to disturbances when they were conducting their processions with music or celebrating ceremonies in the temples adjoining the river.
2. The Collector, Mr. Longley, accorded sanction to the erection of the mosque on condition that the Muhammadans undertook to allow the free passage of processions; but, professing to act as District – Magistrate, he at the same time ordered that all music should cease when any procession was passing or repassing the mosque; and he directed that this order should be notified to the inhabitants of Sevvaipett and Gogai.
3. The appellant Sundram Chetti and other petitioners immediately protested against this order as opposed to law and usage, and gave notice that they would test its legality by suit. Having failed to obtain a revocation of the order, Sundram Chetti and other Hindus residing in Sevvaipett filed a suit in the Munsif’s Court against the Muhammadans, at whose instance the order had been passed, to contest it and to obtain a declaration of the right they had theretofore exercised to conduct their processions with music past the site occupied by the mosque. They obtained a decree in the Munsif’s Court which was reversed by the District Court, but restored with some qualification by this Court on second appeal.
4. The Sessions Judge has criticised the grounds on which this decision of the High Court proceeded, and has undertaken to point out what law it should have declared and in what form relief should have been granted.
5. These questions have no bearing on the inquiry as to the guilt or innocence of the accused, and in this Court, have been mooted on the part neither of the prosecution nor of the defence. I should, therefore, have contented myself with observing that the Judge’s remarks were inopportune, were it not that by allowing them to pass without further notice I might be assumed to assent to them, and thus confirm the erroneous impressions they are calculated to create on matters of some public moment.
6. In his judgment in Sessions Case No. 1 the Judge observes “the judgment of the High Court does not dispose of the question raised by the parties. The Hindu grievance was that the erection of the Sevvaipett mosque interrupted their processional pathway, and that the same honours were not due to a new mosque as to an old mosque. That was the question dealt with by both the Lower Courts, but the High Court said that it is immaterial. The High Court judgment was in the nature of a compromise, but it satisfied neither party because it was not in accordance with their habits of thought. The law of conflicting rights as laid down by the High Court is undoubtedly a new law for the people of this country, and, in my opinion, it is not a salutary law. It cannot, I think, be too strongly insisted on that the common law of India is neither more nor less than what immemorial custom has sanctioned, and that to introduce any other common law, however cautiously hedged round with limitations, is to make, and not to declare, the law. The custom of stopping Hindu music in front of Muhammadan mosques has nothing to do with the devotional spirit of the people, but is based on the supposed sanctity of the building. It may be, nay, probably is, a relic of times when Muhammadan influence was paramount * * *. When Sir Thomas Munro had to deal with the disputes arising between the right and left hand castes, he wisely refused to listen to the arguments that every man has a right to be carried in a palanquin and to be protected in his right. He laid down the rule Nil innovetur, and, in my humble opinion, this is the only rule which ought to be countenanced by the Civil Courts.”
7. As I understand the Judge, he objects that the High Court did not determine the question raised by the parties; that its decision was a compromise; that the law it declared and the limitations with which, in allowing the right of the Hindus, it limited that right were novel and not salutary; that the Court ought to have recognised a general rule having the force of law, whereby Hindu processions are bound to pass mosques without music. The object of the suit brought by the Hindus was to question, the validity of Mr. Longley’s, order; and to obtain a declaration of the right, which they alleged they had long enjoyed. The Munsif in an able judgment held that the right asserted was a natural right, and being such, without proof of usage, it lay on the Muhammadans to establish their claim to restrict its exercise. He held that a resolution of Government of 9th May 1874, on which the Muhammadans relied, did not apply to newly erected mosques, and that, when read with a subsequent resolution of 9th September 1874,1 it was intended merely to prescribe a rule for the guidance of Magistrates on special occasions; while in the later resolution the right of persons aggrieved by an order of the Magistrate to have recourse to the Civil Courts was expressly recognised. He passed a decree declaring the Hindus ‘ entitled to pass the mosque playing music as freely as they do in other places.” On appeal, the Muhammadans contended the evidence had been misapprehended, and that the decree was bad in law as being opposed to the resolutions of Government; but they did not assert any general custom prohibiting the passage of processions with music in front of mosques. The District Judge held that the resolutions of Government were applicable to any mosque as soon as it was used as a place for public worship, and that they justified the order of the Magistrate, and debarred the Hindus from vindicating by civil suit the right claimed.
8. On second appeal, this Court held that the resolutions of Government were not, as the District Judge assumed, decisive either as to the rights of the parties or the propriety of the Magistrate’s order, and that they had not the force of law. Agreeing with the Munsif that the right claimed was one which could be asserted without proof of usage, the Court intimated that, if its exercise were prohibited or restricted by law, proof of usage would be immaterial. The Muhammadans had not persisted in the assertion of a privilege acquired by custom to restrict the right: they relied on the order of the Magistrate and its justification by the resolutions of the Government. The Court pointed out that the extent of the authority possessed by the Magistrate was to suspend the exercise of the right on particular occasions, and not to prohibit it absolutely and before the occasion arose which entitled him to act; and it consequently held Mr. Longley’s order to be ultra vires. The Muhammadans having failed to show that the exercise of the right was prohibited by law, the Hindus established their claim for some relief. The Court had then to consider the propriety of the decree given by the Munsif. That decree had declared the right in unqualified terms. It pronounced the Hindus “entitled to pass the mosque in procession with music as freely as they might do in other places.” This declaration overlooked a right equally recognised by law, the right of a congregation engaged in public worship to be protected from disturbance. It also overlooked the power conferred on the local authority to regulate, or suspend the exercise of the right for the preservation of the peace. It, therefore, became necessary to qualify the declaration given by the Munsif; and for the words ‘ as freely as they do in other places “the Court substituted the words” on all lawful occasions and in a lawful manner so as not to disturb the defendants or other persons assembled for the performance of religious worship or religious ceremonies.” I am unable to see that the Court failed to determine any question raised by the parties of which the determination was material, or that the term compromise is properly applied to this decree. It is true that it conceded to the Hindus less than they had demanded. But it is not unusual for suitors, especially when actuated by feelings of religious animosity to exaggerate their claims or to overlook the rights of their opponents; nor can I find that the Judge has any grounds for asserting that the Hindus were dissatisfied with the relief accorded them. So far as the evidence taken in these cases warrants an opinion, the Hindus have, since the decree was pronounced, insisted on no more than the limited right decreed to them.
9. I will now address myself to the more important question whether the law declared by this Court and the limitations imposed on the exercise of the right were novel. The Judge did not, I presume, intend to assert generally that the determination of the superior right, where rights conflict, is a novelty, for it is unnecessary I should point out the numerous instances in which this duty is imposed on Courts of Justice. I assume that his observation was intended to apply to the matter then before the Court, and I think I can show that there is not a position in the judgment of this Court which is not supported by judicial decision or legal enactment. In Sambalinga Murti v. Vembara Govinda Chetti M.S.D. 1857, p. 233, a guru of the Devanga caste sued to establish his right to be carried in a palanquin in procession through certain streets in Salem attended by his disciples with bands of music, etc. The defendants pleaded that it was contrary to custom for people of the plaintiff’s caste to go in procession through, streets inhabited by the people of the defendants’ caste. A Full Bench of the Sadr Court on 9th December 1857 held that the right claimed was a natural right inherent in every subject of the State; and that it lay on those who sought to restrain the plaintiff’ in his exercise of it to prove some law or custom having the force of law depriving him of the right. The Court pointed out that user was not necessary to the creation of the right, and that non-user for a series of years would not extinguish the right, and it recognised that the right must be exercised in such a manner as the. Magistrate may not object to as dangerous to public safety.
10. In Sivappachari v. Mahalinga Chetti 1 M.H.C.R. 50, the plaintiff, a goldsmith, asserted a right to conduct a marriage procession along a public highway. The defendant pleaded it was not usual for people of the plaintiff’s caste to pass along the road, which lay in front of the Palubidre pagoda, “in conveyance and with music.” The Court held “the procession was one which the plaintiff was authorised to institute. Being conducted by him on the public highway, his right to make use of the highway could only be questioned by the Magistrate, who for the preservation of the peace might, if he saw sufficient grounds, interdict the procession.”
11. In an unreported case, Terupatti Chetti v. Sambalinga Murti, Sir Colley Scotland, observing that the effect of the Sadr Court’s decision in the Salem case was that the plaintiff had a right to go along the road in a procession subject of course to the general law, added “he might exercise that right provided he did not infringe the general law of the land or act contrary to any lawful order.”
12. The Criminal Procedure Code declares the authority of the Magistrate to suspend the exercise of rights recognised by law, when such exercise may conflict with other rights of the public or tend to endanger the public peace. But by numerous decisions it has been ruled that this authority is limited by the special ends it was designed to secure and is not destructive of the suspended rights.
13. The special right of persons engaged in public worship to protection from disturbance may not be, as I understand the Judge to suggest it is not, in accordance with the peculiar habits of thought of the people of this country. The disturbance of persons so engaged is, however, created an offence by the Penal Code, Section 296,2 in terms which this Court embodied in its decree”, and by the Madras Police Act XXIV of 1859 the superior officers of Police are invested with large powers ”as occasion requires” not only to direct the conduct of processions in thoroughfares, to prescribe the routes by which and the times at which they may pass, and to regulate the use of music on the occasion of native festivals and ceremonies, but also to keep order in the neighbourhood of places of worship “during the time of public worship.”
14. I have shown that the grounds on which the decision of this Court rested are not obnoxious to the charge of novelty and, that, in declaring the right with qualifications, the Court simply gave effect, as it was bound to do, to law already declared by the Courts or prescribed by the Legislature.
15. In his judgment in Sessions Case 11 of 1882 the Judge has receded from the position that, in virtue of a general custom, a probable relic of Muhammadan ascendancy, the passage of Hindu processions with music before mosques is prohibited. He observes that if an inquiry had been made into the custom in existence before 9th June 1874, he has reason to believe the judgment of the High Court would have been to the effect that the privileges the Muhammadans claimed belonged to the Jama Musjid only, and not to any new mosque they might choose to erect, but as they had been misled by the Collector’s order, the Court would have given them time to remove their mosque before enforcing the rights of the Hindus. And he adds that in such a decree the Muhammadans would have acquiesced, or at once have put themselves in the wrong. It is hardly probable the Muhammadans would have accepted any suggestion from the Court that they should remove their mosque. The effect of the decree was not to enforce rights, but to declare them, and it left the Magistracy with a complete power to restrain the exercise of the right until all danger of a disturbance of the peace had been avoided either by the removal of the mosque or otherwise. Moreover, it sanctioned no innovation, but affirmed an ancient usage, though it did not proceed on that ground.
16. No such general custom as the Judge at first asserted was pleaded in this Court; nor, so far as I know, has been recognised in any decision of the Court. The history of the Presidency, at no time wholly subject to Muhammadan rule, suggests the improbability of a general custom. It may well be that in those districts in which the Muhammadan supremacy was more or less permanent, Muhammadan bigotry enforced respect to the religion of the conquerors, and that, even, when their supremacy ceased, the adherents of the creed compelled a concession to their prejudices. The Judge may perhaps be right in assuming that they are claimed in virtue of the supposed sanctity of the building. It is unnecessary for me to pronounce how far such privileges would be supported by the Courts if the usage were proved. But with reference to these and to other privileges claimed on the ground of caste or creed, I may observe that they had their origin in times when a State religion influenced the public and private law of the country, and are hardly compatible with the principles which regulate British administration, the equal rights of all citizens and the complete neutrality of the State in matters of religion. The members of one caste have not been allowed to restrict members of other castes from the free use of public thoroughfares. The pariah in Malabar is no longer excluded from Courts of Justice. These are innovations, but the superseded usages are obviously condemned by the spirit of our laws. When anarchy or absolutism yield place to well ordered liberty change there must be, but change in a direction which should command the assent of the intelligence of the country. With regard to processions, if they are of a religious character, and the religious sentiment is to be considered, it is not less a hardship on the adherents of a creed that they should be compelled to intermit their worship at a particular point, than it is on the adherents of another creed, that they should be compelled to allow the passage of such a procession past the temples they revere. But the prejudices of particular sects ought not to influence the law. A man may have just ground of complaint if he is compelled to recognise the sanctity claimed for a place as the seat of a worship he believes to be false; he has no just ground of complaint if he is compelled to recognise the civil right of his fellow citizens to be protected from disturbance when they are assembled for public worship, unless indeed all recognition of public worship is repugnant to him. Again, assuming that the Courts were satisfied that a privilege had been duly acquired and that it was competent to them to recognise it, it must be remembered that it is based on custom and that custom is sound only when and in so far as it is reasonable. It would have then to be considered, whether it was reasonable to require persons exercising a natural right to abstain from its exercise when passing a place where no public worship was proceeding.
17. Lastly, the Judge has, in support of his views, appealed to the high authority of Sir Thomas Munro. He has, however, somewhat misapprehended the minute to which he refers. That minute was the foundation of the G. O., 18th July 1820. It conveys instructions to the Magistracy how they are to conduct themselves when innovations are introduced into caste usages. The Magistrate is not to encourage but to discountenance innovation. Not only is there no suggestion as to the course to be pursued by a Civil Court, but it is declared that differences respecting caste customs should be settled by decisions of the Courts. The question then in dispute, the right of any subject to ride in a palanquin, was, as I have shown, settled by the Courts in 1857 and 1860.
18. In its resolution on the Tinnevelly riot, 28th January 1859, paragraph 38, the Governor in Council declared “the public high streets in all towns are the property, not of any particular caste, but of the whole community; and every man, be his caste or religion what it may, has a right to the full use of them provided that he does not obstruct or molest others in the use of them, and must be supported in the exercise of that right.”
19. In an order of the 28th March 1859, affirming the last-mentioned resolution, the Government called attention to the distinction between the right of the public to use highways for the purposes of ordinary convenience and the right to use them to carry out processions or get up demonstrations hitherto unusual, and calculated to offend prejudices or raise excitement; and the interdiction of the latter class was ordered if it was probable they would induce tumult or a breach of the peace. It was added that, although the principle that every man had a full right to the free use of the highway, or to do any acts not repugnant to decency or morality or prohibited by law, was a sound principle, and such as the officers of Government should never fail to assert whenever they might be appealed to or a proper occasion might arise, it was not desirable they should go out of their way to enforce the application of the principle.
20. The order of Government on the Gooty riot, 9th May 1874, shows that it was customary for a Hindu procession to pass a mosque with music playing, though not at the hour of evening prayer. That order went somewhat beyond the law in directing that Magistrates should make it an invariable condition that music should cease while a procession was passing any recognised place of public worship; but in the subsequent order of 9th September 1874, the Government expressly allowed that persons aggrieved by the order were entitled to obtain relief from the constituted civil tribunals.
21. I have referred to these orders to show that at the time the decision of this Court was pronounced, there was substantially little difference in the opinions entertained by the executive and judicial authorities. Both acknowledged the existence in every citizen of the right to use a public highway for processional as well as for ordinary purposes. Both recognised in the Magistrate a power to suspend and regulate, and in the police a power to regulate the exercise of the right.
22. They differed in this, that the Government intimated in too general terms that the power committed to the Magistrate should be exercised invariably, while the Court felt itself constrained by the terms of the law to pronounce that it should be exercised only on a consideration of the circumstances of the occasion. In the orders subsequently issued by the Government, the limitation placed by the law on the power of the Magistrate is fully recognised.
23. The Sessions Judge asserts that to the ordinary native mind the order of 1st June 1882 suggested a direct conflict between it and the orders of the High Court. I cannot affirm nor contradict this opinion; but I am bound to say the conflict is not apparent to my mind. The order prohibited the Magistrates from denuding the rural districts of their police force in order to enable certain persons, regardless of ancient custom, to carry out a procession.
24. The first duty of Government is the preservation of life and property, and, to secure this end, power is conferred on its officers to interfere with even the ordinary rights of members of the community. The order of 26th March 1859 appreciates the distinction between rights which have a primary and rights which have a secondary claim to such protection as the Government can afford; and where the Government cannot protect both classes of rights, it may and it ought to abandon the latter to secure the former. In this view, it matters not whether the exercise of the rights of procession is of ancient usage or a novelty; the Government is not bound to deprive some members of the community of the services of the force that is found necessary for the protection of their lives and property to enable others to exercise a right which not only is not indispensable to life or to the security of property, but, in the case assumed, creates an excitement which endangers both.
25. It cannot be reasonably required that the Government should increase the force maintained for the protection of the peace to such an extent that its cost will cast an undue burden on the resources of the country.
26. It will be noticed that the several orders of Government before quoted, with the exception of the order of 9th May 1874, instruct the Magistracy, where the exercise of a right is disputed, to maintain ancient usage until the dispute is determined by judicial decision; and that they do not apply to cases where the exercise of the right is sanctioned by such usage or has been established in a Court of Justice. Where reasonable doubt exists as to the question of right, it. is no doubt the proper course for the Magistrate to have regard to usage, although the existence of the right may not depend on usage. On the other hand, if the Magistrate is satisfied of the existence of an emergency which calls for the exercise of the power conferred on him by Section 5183 of the Code of Criminal Procedure, 1872, he is justified in suspending the exercise of rights however well ascertained.
27. I must nevertheless observe that this power is extraordinary, and that the Magistrate should resort to it only when he is satisfied that other powers with which he is entrusted are insufficient. Where rights are threatened, the persons entitled to them should receive the fullest protection the law affords them and circumstances admit of. It needs no argument to prove that the authority of the Magistrate should be exerted in the defence of rights rather than in their suspension; in the repression of illegal rather than in interference ‘ with lawful acts. If the Magistrate is satisfied that the exercise of a right is likely to create a riot, he can hardly be ignorant of the persons from whom disturbance is to be apprehended, and it is his duty to take from them security to keep the peace. In many instances which have come to my notice, disturbances such as those which have occurred in Salem have been prevented by a judicious employment of the measure of precaution provided by Section 4914 of the Code of Criminal Procedure, 1872.
28. Having vindicated in the proper forum their claim to exercise the right they had enjoyed until prohibited by Mr. Longley’s order, Sundram, Chinna Basava Chetti, and other Hindus, in view of the approaching festival of Kaliamma on 3rd March 1881, applied to the District Magistrate to direct the police to afford them all necessary aid in conducting their procession with music up through the streets and past the mosque on the 14th, 15th, and 16th March. On the 12th March the police submitted a report that they apprehended a riot on the occasion of the processions, and suggested that the leading Hindus and Muhammadans whom they named should be bound over to keep the peace. The petition and report were referred to the Assistant Magistrate, Mr. Mullaly, for disposal, who issued notice to the persons named and examined Sundram Chetti and Syed Pir, one of the leading Muhammadans of Sevvaipett, as to the hours of worship. Mr. Mullaly came to the conclusion that prayer continued in the mosque throughout the day, though he thought it possible the Muhammadans purposely assembled for prayer at the hour the procession would pass. In an informal proceeding directed, not to the Hindus, but to the police, he ordered that no music should take place before the mosque on the 15th, 16th, and 17th March. By other proceedings he ordered that certain of the leading Hindus and Muhammadans should give security to keep the peace on the days before mentioned.
29. In consequence of these orders, the Hindus altogether refrained from conducting the processions, and applied to this Court to revise the orders.
30. The Court declined to interfere, inasmuch as the time appointed for the operation of the orders had already passed. At the same time it intimated that the right to protection from disturbance appertained to persons assembled bond fide for religious worship, and not to persons who pretend to worship throughout the day and night in order to defeat rights decreed to their neighbours. It intimated that the Muhammadans should fix certain hours for prayer on the days on which interruption from processions was to be apprehended.
31. In affording special protection to persons assembled for religious worship or religious ceremonies, the law points to congregational rather than private worship, and it may fairly be required of congregations that they should inform the authorities of the hours at which they customarily assemble for worship, in order that the rights of other persons may not be unduly curtailed. Temples of other creeds than the Muhammadan are open at all hours for private worship; but, so far as I am aware, it has never been claimed by the adherents of those creeds that the passage of processions with music should be prevented at any hours other than those of public worship.
32. An order, which came before this Court, prohibiting a private householder from having music in his house at any hour of the day or night throughout the year, because the house was adjacent to a place of religious worship, illustrates the intolerance an indiscreet Magistrate may countenance.
33. It should always be borne in mind that orders under Section 518 of the Code of Criminal Procedure, 1872, are not judicial proceedings, and if the High Court has power to correct them otherwise than indirectly, which is doubtful, that power can rarely be exercised in time to prevent hardship.
34. The law in sanctioning this imperfectly controlled power is careful to provide it shall be committed only to Magistrates whose discretion is presumably guaranteed by their responsible position or by selection.
35. At the end of the year 1881 the District Magistrate Mr. Stokes, acting on the intimation of this Court, requested the Muhammadans to acquaint him with their customary hours of prayer, and, receiving from them no information, acted on the best he could procure and authorised the passage of a Hindu idol procession with music past the mosque at a stated hour. In consequence of the precautions adopted, no obstruction was offered to the procession.
36. On the 20th July the District Magistrate who was on tour received from the Muhammadans a petition (filed in Sessions Case 11 of 1882), stating that the Hindus had obtained permission from the Second-class Magistrate of Salem to take their car with music past the mosque during the Mariamma festival; they represented that the season for the festival coincided with the season of Ramzan when there would be continuous prayer in the mosque, and that they consequently apprehended a breach of the peace unless the procession through Kannar street were prohibited. On receiving this petition, the District Magistrate issued ex parte, an order under Section 518 of the Code of Criminal Procedure, 1872, prohibiting the Hindus from passing the mosque with music during the Mariamma festival between 21st July and 3rd August 1882.
37. Although the law permits the issue of such an order ax parte, it intends that ordinarily this course should not be pursued, so that each party may have a fair hearing’. Emergent business may have prevented the return of the Magistrate to Salem, where the celebration of the Hindu festival coincidently with the Muhammadan fast suggested the probability of disturbance.
38. The Hindus, in consequence of the order of 21st July, postponed the procession. Under Mr. Stokes’ administration the passage of processions with music on the occasion of private ceremonies had been permitted at stated hours. Mr. Mullaly, referring, I presume, Co a later period, has deposed that private processions had been prohibited by the District Magistrate, and one by him. The passage of such a procession on the 28th July led to a riot. Some dhobies came in procession with music down Appu Chetti street to the river to procure water for the funeral ceremonies of one of their caste. Some 40 Muhammadans who had assembled at the mosque attacked them: a crowd of about 1,000 Hindus soon collected on the Gogai side of the river and were but partially kept back by the police. Mr. Johnson estimates that within an hour 2,000 people had assembled from Gogai and Sevvaipett. The rioting, which was continued on 29th and 30th July, was only quelled on the arrival of a military force. Shops were plundered, principally by Hindus, and it is estimated that 7 Muhammadans and 53 Hindus were wounded. It has been thought that this procession was organised as a wanton provocation on the part of the Hindus to excite Muhammadan aggression. The Sessions Judge was not prepared to affirm that it was so, though the assembly of so large a number of Hindus in so short a time, he admitted, afforded some ground for the suggestion.
39. The District Magistrate on his return to Salem after the riots of July received from the appellant Sundram Chetti and his follow dharmakarta of the temple of Mariamma a petition in which they prayed he would retain in Salem a sufficient force, military or police, to enable them to conduct the processions which had been postponed owing to his order. In this petition the grounds on which the petitioners claimed his assistance were for the main part stated with ability and moderation. Exception must, however, be made of the paragraph in which it was argued that the issue of the prohibitory order was inexpedient as it led the Muhammadans to believe it was given to them because they were powerful and the Hindus to think it was given the Muhammadans because they were troublesome and special favourites of Government. And it was urged that obedience to the order could be secured only by the employment of force; that the order gave occasion to breaches of the peace more frequent and more serious than it had been expected to prevent; that experience had shown, that if Government would not collect forces to enforce rights it would have to collect forces to quell riot, and that the order was at once unjust and injurious. The endorsement of the District Magistrate on this petition is in the terms following:
The District Magistrate has not the means at his disposal to give the protection which would be required under present circumstances, nor is it by any means clear to him it would be his duty to give it if he had it. Petitioners-are warned that processions in Sevvaipett are at this present moment highly dangerous, and that the magistracy and police will apply their powers for preserving the public peace on every occasion that they are required.
40. I am compelled to notice these proceedings and to express an opinion on them, because they are relied on in support of the argument of the prosecution that the irritation produced by the orders of the Magistrate operated to provoke the offence into which we are inquiring, and induced men in the position of the appellants, on the failure of legal remedies to seek one in highly criminal acts. The Sessions Judge has accepted this argument. In his judgment in the case before the Court, he observes: “Religious fanaticism had little to do with the outbreak. It was rather a feeling of indignation that the law was not strong enough to protect the Hindus in the exercise of their civil rights, or, in other words, a feeling that the authorities stood in awe of the Muhammadans: “and in a case we shall presently deal with” The order of 4th August 1.882 on Sundrain Chetti’s petition brought matters to a crisis. To the ignorant man it appeared that because the Muhammadans had shown fight, they were in future to have their own way.”
41. The paragraph of the petition, to which I have referred, doubtless represented correctly the opinion of the Hindus that they were deprived of their due because the Muhammadans were “troublesome.” The prohibitory order was dictated by the Magistrate’s apprehension, that disturbance would attend the exercise of the right: but from whom was disturbance to be apprehended except from the party that opposed the exercise of the right? Such an order issued under such circumstances involves an admission that lawlessness is anticipated and. that at the time the executive is not in a position to afford adequate protection. When such orders are repeated, their justification, the preservation of the public peace, is not so obvious to those whose rights they interfere with, as are their results. The impression is created that the authorities are powerless against the class from whom violence is apprehended; and that a show of force similar to that which has rendered a judicial award practically inoperative will be more effectual to secure the recognition of civil rights than an appeal to the constituted tribunals.
42. When this impression takes hold of the minds of the large majority of the population, graver dangers are to be apprehended from refusing than from conceding protection to the legitimate enjoyment of civil rights. Men to whom obedience to authority is distasteful are to be found in every party, but even those who are ordinarily anxious to uphold authority may be seduced by a sense of hardship and the example of successful tumult.
43. The arguments directed by the petitioners to the policy of the order might,, however, have been advances in terms which were not calculated to give offence. The imputation of partiality was as unbecoming as it was unfounded. Apart from any suspicion the Magistrate may have entertained that the riots of July, which afforded so convenient an illustration, had had their origin in a provoked breach of the peace, the tone of the paragraph in the petition no doubt influenced the tone of the Magistrate’s order, which I am constrained to say was not judiciously worded. The Magistrate may have been fully justified in refusing the prayer of the petition; that is a matter of police on which this Court cannot enter; but in refusing it, something might have been done to reconcile the petitioners to the hardship which consideration for the maintenance of public tranquility imposed on them. Not only was no hope held out to them that under other circumstances the enjoyment of their right would have been protected, but the order may be read as informing the petitioners that the Magistrate doubted, whether at any time it would be his duty to give them protection, if it was in his power to do so.
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Innes, J.
44. I concur entirely with the Chief Justice in his exposition of the law relating to processions which is in accordance with the decisions of this and the late Sadr Court for many years past.
45. The law recognising the right to the undisturbed performance of public worship is not extended to mere private worship, such as may take place in a mosque at all hours of the day.
46. No difficulty ought to arise in fixing the hours of public prayer.
47. If the question of the evidence of a custom for all processional music to stop when passing a mosque should ever be put in issue in a Court it would have to be borne in mind that, though general customs are common law, a custom has to be proved before it can be recognised by a Court as law, and that a practice, however ancient, is not necessarily a valid custom. To constitute a valid custom it must be reasonable as well as certain and ancient, and it is not probable that any Court would hold that to be a reasonable custom which requires the members of one section of the community to restrict themselves in their ordinary rights in recognition of the reverence due to a religion to which they do not belong and in which they do not believe.
48. It is at all times improper for a subordinate tribunal to lay down the law to the superior Court, and I very much regret that the able Judge who tried the case should have thought it right to do so.
49. He was placed by the circumstances in an exceptional position, and should have been careful to avoid expressing an opinion which might have the effect of introducing any element of uncertainty into the authority of the law as laid down by the highest Court.
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Kindersley, J.
50. The Judge appears to me to have somewhat unnecessarily undertaken to correct the Law of the High Court as to the right of procession. I have no doubt that the law as laid down by two Judges of this Court is substantially correct. It is of course open to the Judge as a private person to ventilate his own legal opinions; but, sitting as the Judge of a Court subordinate to this Court, he was bound to accept the law from this Court.
1All parties must be taught to submit to the order of the Magisterial Officer on the spot, as settling the dispute for that occasion. If it is wrong and infringes any established privilege, the persons aggrieved are at liberty to obtain an early adjudication on the point by the constituted civil tribunals.
2Disturbing a religious.
[Section 296:- Whoever voluntarily causee disturbance to any assembly lawfully engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.]
3 Magistrate may issue orders to prevent obstructions, danger to human life, or riots.
[Section 518 : A Magistrate of the District, or a Magistrate of a division of a district, or any Magistrate specially empowered, may, by a written order, direct any person to abstain from a certain act, or to take certain order with certain property in his possession, under his management whenever such magistrate considers that such direction is likely to prevent, ortends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed,
or danger to human life, health or safety,
or a riot or an affray,
Explanation I.–This section is intended to provide for cases where a speedy remedy is desirable and where the delay which could be occasioned by a resort to the procedure contained in section five hundred and twenty-one and the next following sections, would, in the opinion of the Magistrate, occasion a greater evil than that suffered by the person upon whom the order was made, or would defeat the intention of this chapter.
Explanation II.–An order may, in cases of emergency or in cases where circumstances do not admit of serving of notice be passed ex parte, and may in all cases be made upon such information as satisfies the Magistrate.
Explanation III.–An order may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place.
Explanation IV.–Any Magistrate may recall or alter any order made under this section by himself or by his predecessor in the same office.]
4 Summons to any person to show cause why he should not give bond to keep peace.
[Section 491 : Whenever a Magistrate of a division of a district, or a Magistrate of the first class, receives information that any person is likely to commit a breach of the peace, or to do any act that may probably occasion a breach of the peace, he may summon such person to attend at a time and place mentioned in the summons to show cause why he could not be required to enter into a bond to keep the peace, with or without sureties, as such Magistrate thinks fit.
Explanation I.–A summons, calling on a person to show cause why he should not be bound over to keep the peace, may be issued on any report or other information which appears credible and which the Magistrate believes; but the Magistrate cannot bind over a person until he has adjudicated on evidence before him.
Explanation II.–A Magistrate may recall a summons issued under this section if he thinks proper.]
