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ALLAHABAD HIGH COURT JUDGMENT ON NO AZAN ON LOUDSPEAKERS










Published by: Aakansha Singh


INTRODUCTION

The Allahabad High Court in the recent case of Afzal Ansari and 2 Others vs State Of U.P. And 2 Others on 15th May 2020[1] held that Azan through loudspeakers is not an integral part of Islam nor protected by Article 25. The right to religion does not mean to violate the rights of other people by creating nuisances in the name of religion. The right is subject to the other provisions of part III of the Constitution of India.

FACTS OF THE CASE

The District Magistrate of Ghazipur ordered the local authorities to restrain all the Mosques from reciting Azan and police personnel started using force to implement the lockdown guidelines of the Covid-19 pandemic on the occasion of Ramzan dated 24th April 2020. It has been alleged by the petitioner that such restriction is arbitrary and illegal as the prohibition on Azan through loudspeakers violates their fundamental rights entitled under Article 25 of the Indian Constitution. Further, they contended that recitation of Azan is an essential part of Islam and it is for the welfare of the community as the entire Muslim Community in the month of Ramzan keeps fast from sunrise till sunset and timings of the beginning and concluding the fast is marked by the sound of the Azan. It has been said that the protocol of opening and concluding the fast by the sound of the Azan is a century-old Islamic tradition prevailing since the time of the Prophet and is being practiced for more than the past 1400 years.


Further, it is said by the petitioner that Azan is not to invite people but is simply an act of recitation by the muezzin, remanding to the believer of Islam to offer Namaz at their homes and therefore it does not violate any of the guidelines of the ongoing lockdown as no congressional prayers were being conducted in any of the Mosques in the district of Ghazipur.


The petitioners prayed in the writ petition that the Muslims in the Districts Ghazipur and Farrukhabad must be allowed to recite Azan through "Muezzin" by using loudspeakers or sound-amplifying devices and the restrictions imposed by the district magistrate must be quashed as it is entirely arbitrary and unconstitutional.

ISSUES RAISED IN THE WRIT PETITION

1. Whether any order prohibiting or restricting the recitation of Azan through loudspeakers or sound-amplifying devices, is violative of Article 25 of the Constitution of India?

2. Whether the recital of Azan by Muezzin violates any of the orders or guidelines of lockdown issued by the Government to stop the spreading of Covid-19?


ANALYSIS OF THE CASE

FIRST ISSUE

The petitioners submitted that they cannot be prohibited or restricted from reciting Azan through loudspeakers since offering Azan through loudspeakers is an integral part of Islam and such prohibitions violate their fundamental rights protected under Article 25 of the Constitution of India.


Further, the petitioners contended that Azan was introduced by Prophet Muhammad to invite the believers in Islam to the congregational prayers by reciting Azan five times a day but by the passage of time, it was felt that public address systems are required to reach to the larger public. Therefore, the reciting of Azan through loudspeakers is an essential part of Islam and must be protected under Article 25 of the Constitution. Therefore any order restricting or prohibiting the recitation of Azan on loudspeakers is unconstitutional.


Whereas Additional Advocate General has argued that rights contained under Article 25 must be read with Article 19(1)(2) which provides for certain reasonable restrictions such as morality, public order, health, etc. He also referred to rule 5 of the Noise Pollution (Regulation and Control) Rules, 2000 which states that a loudspeaker or a public address system shall not be used without getting written permission from the concerned authority under the Rules.


It was held that in the case of Om Birangana Religious Society Vs. The State and Ors.[2] "undoubtedly, Article 25 gives the right to profess, practice, and propagate religion but it is subject to reasonable restrictions provided under Article 19(1)(2) of the Constitution. And the right does not mean to force someone to hear anything which he does not like or require to listen."


And the use of loudspeakers or sound-amplifying devices in reciting Azan was specifically dealt with by the Calcutta High Court in the case of Moulana Mufti Syed Mohammed Noorur Rehman Barkati and Ors. Vs. State of West Bengal and Ors[3]. wherein the Court while recognizing that Azan is certainly an essential part of Islam said that the use of loud-speakers is not an integral part of Azan.


Furthermore the Supreme Court in the case of Church of God (Full Gospel) in India Vs. K.K.R.[4] Majestic held that "no one can claim that the use of loudspeakers is an essential part of any religion to celebrate festivals or to perform prayers protected under Article 25 of the Indian Constitution. We hold that there is no fundamental right to use loud-speakers or similar instruments for religious or cultural purposes. On the contrary, the use of such loudspeakers shall be a violation of the Right to life under Article 21 of the Constitution as citizens cannot be forced to listen to something which they do not desire to listen and it shall also violate the provisions of noise pollution Rule 2000.


In the case of P.A. Jacob v. Supdt. of Police[5], it was held that the right to speech implies the right to silence. A person cannot be forced to hear what, he does not wish to hear. That is an invasion of his right to privacy under Article 21 of the Constitution of India.


Therefore the right to practice, profess and propagate religion is not absolute but it is subject to Article 19(1)(2) of the Constitution of India, and both have to be construed harmoniously. There are a plethora of cases recognizing the right to life under Article 21 includes the right to live in a pollution-free environment and noise pollution beyond the permissible limit violates the fundamental rights of citizens under the Constitution of India

The Court also referred to the provisions of Noise Pollution (Regulation and Control) Rules, 2000 in the case. Rule 5 deals with the use of loud-speakers/public address systems. As per Sub-rule (1) of Rule 5, a loud-speaker or a public address system cannot be used without the written permission from the Authority under the Rules.


Whereas Sub-rule (2) says that a loudspeaker shall not be used during night hours except in closed premises such as auditoriums, conference halls, or during a public emergency. The Schedule provided under the Rules defines day and night time. Day time is defined as a time between 6.00 am to 10.00 pm and the period between 10.00 p.m. to 6.00 a.m. is defined as night time. Thus, loudspeakers or public address systems cannot be used between 10.00 pm to 6.00 a.m.


Further Sub-rule (3) confers the power of relaxation on the State Government. The state government may give the relaxation for two hours at night that is from 10 pm to 12 pm for any cultural or religious occasion but not more than fifteen days in all but such exemption shall not apply to silence zone areas


The Sub-rule (3) was challenged in the case of Noise Pollution (VII) Vs. Union of India and Ors.[6] Where Apex Court held that the exemption granted by the central government cannot be held to be unreasonable as India is a diverse country but the power to grant exemption cannot be further delegated either by increasing the number of hours or by increasing days and if it is done so, then it shall be violative of Article 14 and 21 of the Constitution of India.


The bench concluded in the present case that no permission has been given for reciting Azan through loud-speakers. Therefore, Azan cannot be recited through any sound-amplifying devices otherwise it will be violative of provisions of the Noise Pollution Rules and strict action is liable to be taken against the persons violating such Rules.

For the second issue, the Court said that as Azan is simply a call to offer Namaaz and does not necessarily mean to invite people to offer namaz at mosques and it has been categorically stated by the petitioners that they are offering Namaaz at their homes and they are not visiting or assembling in any mosque, therefore, they are not violating any guidelines or Orders of the Government.


DECISION

The High Court ordered that Azan can be recited without using loudspeakers and directed to the administration not to cause any hindrance in the pretext of Covid-19 unless such guidelines are being violated. The court said that Azan is an essential part of Islam but the recitation of Azan through loud-speakers is not an integral part of the religion therefore, it cannot be protected by the constitution of India.

[1] 2020 SCC OnLine All 592 [2] MANU/WB/0254/1996 [3] MANU/WB/0211/1998 [4] (2000) 7 SCC 282 [5] AIR 1993 Ker 1 [6] (2005) 8 SCC 796.




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