Latest News
Back
Document:
Use of loudspeakers for Azan: Afzal Ansari & Ors. v. State of U.P. & Ors.
Date of judgement: 15/05/2020
Introduction:
Azan or Adhan is a practice followed by the followers of Islam as a reminder to attend the mandatory prayer. [1] It Is recited by a person known as the Muezzin from the minaret of a mosque and is generally expressed with the use of loudspeakers and amplifiers.
The Holy month of Ramzan involves the observance of fasting by the Muslim community. Generally, the time for the beginning and the end of the daily fast is communicated through recitals of Azan with the aid of loudspeakers. However, the onset of Covid-19 resulted in the imposition of a nationwide lockdown that barred the opening of places of worship. Moreover, restrictions were placed by authorities on the use of loudspeakers/amplifiers. Thus, a petition was filed before the Hon’ble High Court of Allahabad seeking permission to recite Azan through loudspeakers/amplifying devices and declare restrictions imposed against it to be arbitrary and unconstitutional.
Arguments advanced:
The counsel for the petitioners submitted that Azan was in practice from the time of the Prophet and for over 1400 years. Additionally, Azan was said to have been recited only by one person, the Muezzin, and would not result in the violation of any lockdown guidelines. They contested that authorities stuck unsigned notices prohibiting the use of amplifiers on the entrances of mosques. It was submitted that recital using amplifiers was an essential religious practice protected by Article 25 and that there was no authoritative ban against the same.
The respondents emphasized on various notices and ordinances issued by the Government in light of the pandemic with the view of prohibiting congregations of people. It was held that Azan was a “call for a congregation of prayers” and would thus violate lockdown guidelines. Additionally, all places of worship including Temples, Mosques, Churches, Gurudwaras, etc. were banned from opening or using loudspeakers since 24th March 2020. They also refuted the claims of sticking of notices barring azan or actions by authorities threatening consequences.
Issues:
- Whether any order prohibiting or restricting the recitation of Azan, through sound-amplifying devices, is violative of Article 25 of the Constitution of India
- Whether the recital of Azan by Muezzin or an authorized person violates any of the orders or guidelines issued by the Government to contain Covid-19.
Judgement:
Article 25 of the Constitution guarantees every individual the freedom of conscience, profession, practice, and propagation of religion. A compelling question to consider while deciding on the validity of a religious practice is that of its essentiality to the religion. The test being, whether the removal of a particular practice will alter the nature of that religion. [2]
Azan was introduced by Prophet Muhammad and was originally recited by a person with a loud voice but shifted to the use of amplifiers over time. The Court acknowledged that the practice was in continuance since time immemorial and would essentially categorize as a right under Article 25. Nonetheless, the right to practice, profess, and propagate religion was not absolute and would be limited to the restrictions of public order, health, and morality. The use of amplifiers would also result in noise pollution governed under the Noise Pollution (Regulation and Control) Rules, 2000.
To substantiate the concept of noise pollution, reference was made to a plethora of decisions of the Supreme Court as well as the High Courts.:
- Precedents on noise pollution and the use of loudspeakers:
The Calcutta High Court in Om Birangana Religious Society v. The State & Ors. (1996), was faced with the question of whether amplifiers that caused noise pollution could be used to propagate the tenets of one’s faith. The verdict held that Article 25(1) was not absolute and when read with Article 19(1)(a) conveyed that one should not be made to hear what one does not wish. In another decision, the Calcutta High Court decided that though Namaz and Azan was an essential religious practice, its dispersion through amplifiers and loudspeakers was not. [3]
The Supreme Court in Church of God (Full Gospel) in India v. K.K.R. Majestic, (2000) 7 SCC 282 held that no religious group or sect could claim the use of loudspeakers and amplifiers as an essential practice. The principle being, the noise pollution caused by the use of loudspeakers violated Article 21 of others. One could not claim the fundamental right of religion under Article 25 if it disturbed others’ peace.
In P.A. Jacob v. Superintendent of Police, AIR 1993 Ker 1, the right to speech under Article 19 was viewed to encompass the right to silence. Individuals have the freedom not to listen and not be forced to listen to things they didn’t want to.
A Division bench of the Allahabad High Court in Masroor Ahmad & Anr. v. State of U.P. (2020) viewed that the use of amplifiers could be refused on grounds of sound pollution to maintain peace and tranquility. Freedom of religion would have to be construed harmoniously with the freedom under Article 19 while also considering the right to life of others. Ramlila Maidan Incident, in re, 2012 (5) SCC 1 incorporated a decision that held the right to sleep a fundamental right as much as the right to eat, breathe, and drink.
These decisions were referred to by the Division Bench to express that Article 25 would nevertheless be restricted by individuals’ right to life under Article 21. Noise pollution through any means beyond the ambient levels as prescribed would be a violation under the Noise Pollution Rules.
- Division Bench’s view & the Noise Pollution Rules, 2000
It was a well-established fact that the recital of Azan was an essential practice in Islam and was protected under Article 25. However, the use of loudspeakers was held to be a result of the technological era and not something rooted in traditions; tradition called upon for recital through the human voice. The learned judges held that the use of sound amplifiers and similar devices infringed upon the rights of others such as the right to leisure, right to sleep, right not to hear and the right to remain silent.
Reliance was also placed on Rule 5 of the Noise Pollution Rules, 2000 which fundamentally entailed that loudspeakers and amplifying devices could not be used unless written permission was obtained from the appropriate authority. The use of sound-amplifying devices without adequate permission would result in a violation of Rule 5(1). The use of sound amplifiers has been prohibited from 10 PM to 6 AM on a joint reading of Rule 5(2) and the Schedule. However, relaxation has been made to the aforementioned sub-rule under 5(3) as it permits use for an additional 2 hours (10 PM to 12 PM) during cultural or religious festivals for a maximum of 15 days. This is subject to the prior approval by the State Authority.
Based on these principles, it was propounded that no one had the right to make another a captive listener. Recital of the Azan is an essential religious practice for the followers of Islam and no one can restrict the same. However, the use of loudspeakers/ amplifiers would not be protected under Article 25 as it was a recent development. The Court also added that the petitioners had made no mention regarding the seeking of approval. It was reiterated that unless a valid permit/license was obtained from the State authorities, the use of loudspeakers would be illegal and subject to scrutiny under the Noise Pollution Rules.
Concerning issue 2 that revolved around the request to recite Azan during the lockdown, the Court observed that such an activity would not result in the congregation of individuals, such that it would violate guidelines. Mere reciting of Azan from the mosque through human voice does not cause any health hazards to any person of the society or breach any guidelines and could not be prohibited.
Decision:
The Division Bench penned that recital of Azan was an essential facet of Islam but its expression through a loudspeaker/amplifier wasn’t. The right protected under Article 25 was subject to its inherent restrictions of public order, health, and morality as the use of amplifiers without prior permission was held to be violative of the Noise Pollution Rules. The Court also added that the use of loudspeakers without obtaining a requisite license was illegal and such a request would not be entertained by any court. To conclude, the recital of Azan by a muezzin from the minaret of a mosque using his voice would not be seen as a violation of anyone else’s right or said to have breached any lockdown guidelines.
[1] https://www.rnz.co.nz/news/national/385330/what-is-the-call-to-prayer
[2] Commissioner of Police & Ors vs Acharya J. Avadhuta And Anr., (1983) 4 SCC 522.
[3] Moulana Mufti Syed Mohammed Noorur Rehman Barkati and Ors. v. State of West Bengal & Ors. (1998)
Document:
