Moulana Mufti Syed Md. Noorur Rehman Barkati v. State of West Bengal

Mosque authorities in West Bengal asked the Calcutta High Court to keep the noise rules away from the Azan (the Muslim call to prayer) when it is sounded through microphones. The Division Bench held that the Azan is an essential part of Islam, but the microphone is not an essential part of the Azan. It dismissed the petition and ordered the police to seize microphones used against the time and decibel limits.

Quick Revision

Parties

Moulana Mufti Syed Md. Noorur Rehman Barkati — petitioner no. 1; Imam and Khatib of Tipu Sultan Shahi Masjid, Dharamtala, and Chairman of the Gharib Nawaz Educational and Charitable Society, Calcutta (para 1).

Eight other petitioners — joined the writ application with petitioner no. 1. The report does not name them (para 1).

State of West Bengal and others — respondents; the State and the authorities who enforce the noise limits. The report does not list them individually.

West Bengal Pollution Control Board — the State board directed by earlier orders to fix and keep a noise-level register. It is not a named party in the report (paras 2, 12).

Procedural History

1. On 1 April 1996 the Court decided Om Birangana Religious Society v. State (C.O. No. 4303 (W) of 1995). It restricted microphones across West Bengal (paras 2, 9).
2. On 30 September 1996 the Court directed the State Pollution Control Board to act against other sound pollution, such as air horns and fire works (para 14).
3. Some Imams applied to modify the Om Birangana order. A Division Bench refused on 17 April 1997 (para 8).
4. On 26 September 1997 a Division Bench decided Burrabazar Fire Works Dealers Association v. The Commissioner of Police, Calcutta, 1997 (2) CLJ 468 (para 14).
5. On 12 January 1998 the Supreme Court dismissed the special leave petition (a petition asking the Supreme Court to hear an appeal) against the Burrabazar decision (para 16).
6. The present writ application was decided on 4 March 1998. Banerjee, J. wrote the judgment and Mitra, J. agreed (paras 1, 32).

Facts

1. The Calcutta High Court's judgment of 1 April 1996 in Om Birangana's case imposed conditions on microphones in West Bengal (para 2).
2. No microphones may be used between 9 p.m. and 7 a.m. Public authorities may use them only for emergent public duties (para 2).
3. The West Bengal Pollution Control Board must keep a noise level register. It shows the noise permitted for any occasion or area (para 2).
4. The District Magistrate and other officers may permit microphones or loudspeakers. They must follow the Board's conditions (para 2).
5. Dealers who sell or let out microphones must seal the volume to the Board's level before parting with them (para 2).
6. Religious societies may use microphones only to communicate speeches, teachings and tenets to those present. The sound must not give reasonable cause for annoyance to people nearby (para 2).
7. Public meetings must keep to the Board's registered level. The sound should reach the people at the meeting but not beyond that area (para 2).
8. The petitioners filed a writ application. They asked for a declaration that Rule 3 of the Environmental (Protection) Rules, 1986, read with Schedule III, does not apply to Mosques at the time of the Azan (para 1).
9. They also asked for a declaration that Schedule III is ultra vires Articles 14 and 25 (para 1).
10. They asked for withdrawal of all conditions and restrictions notified by the police and other authorities under the Om Birangana order, 100 CWN 617 (para 1).
11. The petitioners said Namaz is the second pillar of Islam. Muslims offer obligatory prayers in congregation in Mosques five times a day. Azan is essential for all of them (para 3).
12. The petitioners said Azan was first called by a person from the mosque in a loud voice. With rising population, industries and environmental change, the voice could not reach believers, so it came to be called through electrical loud-speakers and microphones five times a day (para 4).
13. Some Imams applied to modify the Om Birangana order. The Division Bench refused on 17 April 1997 (para 8).
14. The Court recorded that after Om Birangana's case, the main festivals of West Bengal (Durga Puja, Kali Puja, Saraswati Puja and others) kept to the time and decibel limits (para 11).
15. The Pollution Control Board and other authorities ran a survey. About 96% of the population in West Bengal favoured regulating and restricting microphones as the Court had done (para 12).
16. The Court had punished violators, including renowned hotels on new year's eve. Every offender admitted guilt, apologised in writing and gave an undertaking to the Board. Fines of up to Rs. 50,000 were imposed and paid (para 12).
17. The Court recorded that the petitioners and some other Imams did not comply, claiming microphones had become a part of their religious practice (paras 12, 28).

Issues Raised

1. Do Rule 3 and Schedule III of the Environment (Protection) Rules, 1986 apply to Mosques at the time of the Azan? (para 1)
2. Is Schedule III ultra vires Articles 14 and 25 of the Constitution? (para 1)
3. Is the use of microphones for the Azan an integral and essential part of the Muslim religion, and is that right absolute and free from restriction? (para 8)
4. Do the conditions and restrictions set by the Om Birangana order have to be withdrawn for Mosques? (para 1)
5. Does Article 26 protect the use of microphones, as a matter of religion, for a religious denomination? (paras 22-25)

Arguments Contended

For the petitioners

The report names Mr. K. Banerjee as their advocate (para 4).

1. Namaz is the second pillar of Islam, and the obligatory prayers are offered five times a day in Mosques in congregation. Azan is essential for all of them (para 3).
2. When the Prophet introduced the Azan, it was called in a loud voice by a person from the mosque. Later a system was needed to reach believers, so the Azan is called through loudspeakers and microphones (para 4).
3. Use of microphones for the Azan is part of the religious right guaranteed by Article 25 (para 4).
4. A right to perform a religious practice may also be acquired by custom. Article 25 then protects all rites, practices, observances, ceremonies and functions the community customarily performs, and not the version of the person who opposes (para 5).
5. Citizens also have a duty to show tolerance and patience, to respect another religion and custom, and so to bear the microphones and noise splitters (para 6).
6. The rule laid down in Om Birangana's case applies to all religions and all functions, public or private, and is not confined to one or two religions. The report records this at para 7 without saying who argued it.
7. Schedule III of Rule 3 of the Environment (Protection) Rules, 1986 applies only to standards for emission or discharge of environmental pollutants (para 18).
8. Matter of religion in Article 26(b), printed in the report as Article 21(b), covers more than doctrine and belief (para 22).
9. Article 26 should protect the use of microphones (paras 23-25).
10. In the Om Birangana case, Mr. Samanta argued that the right to propagate religion is guaranteed by Article 25. The report records this at para 9 and does not attribute it to this petition.
11. In the earlier modification application, Mr. Chatterjee and Mr. Idris Ali, for the Imams, asked the Court to modify the Om Birangana order (para 8).
12. The report records, without naming the speaker, the point that the microphone was not used by the Prophet or his main disciples and is of recent origin (para 25).
13. The Environment (Protection) Act, Rules and Schedule are ultra vires Articles 14 and 25 (para 27).
14. The restrictions are enforced strictly only in West Bengal and not elsewhere in India, which is said to be discrimination (para 27).

For the respondents

The report does not record the respondents' arguments or name their counsel in this petition.

1. One argument is recorded in the report's discussion of the Burrabazar case. It is that Parliament and the Legislature passed no law for such a restriction. Without a specific law, the administration cannot act through a court order (para 14). The report does not say who made it.

Court's Reasoning

Bhagabati Prosad Banerjee, J. (para 32: Ronojit Kumar Mitra, J. agreed)

1. Noted: the Bench was assigned by the Chief Justice. The petitioners sought declarations that Rule 3 and Schedule III do not apply to Mosques at the Azan, and that Schedule III is ultra vires Articles 14 and 25 (para 1).
2. Noted: the 1 April 1996 judgment set the conditions on microphones in West Bengal. They include the ban from 9 p.m. to 7 a.m., the noise-level register, permission by the District Magistrate under the Board's conditions, and sealing of volume by dealers (para 2).
3. Noted: the petitioners rely on Namaz as the second pillar of Islam, on the Azan called through microphones, and on custom, tolerance and the reach of the Om Birangana principle (paras 3-7).
4. Noted: on 17 April 1997 a Division Bench refused to modify the Om Birangana order (para 8). It asked whether the right to use microphones for the Azan is integral and essential to Islam, and whether it is absolute (para 8).
5. Noted: Article 25 makes freedom of religion subject to public order, morality, health and the other provisions of Part III, including Article 19. The earlier order treated Article 19(1)(a), freedom of speech and expression, as restrictable only under Article 19(2) (para 8).
6. Noted: the earlier order held that the public cannot be made a captive audience (people forced to listen) by microphones used after getting permission (para 8).
7. Noted: a permitted loud sound takes away a citizen's right to speak with others, to read or to know, and to sleep, rest or think (para 8).
8. Noted: Article 19(1)(a) includes by necessary implication the freedom not to listen and to remain silent. One cannot exercise a right in total deprivation of the rights of others. Authorities cannot confer on a person or a religious organisation a right that suspends the rights of others (para 8).
9. Noted: the right to propagate religion means communicating one's belief to another or exposing the tenets of that faith. The earlier order asked whether this includes loudspeakers and microphones for chanting religious texts (para 8).
10. Noted: the earlier order treated sound as a known source of pollution with a tremendous impact on the nervous system. It said the religious teachers who laid down the tenets could not have desired microphones as a means of performing religion (para 8).
11. Noted: amplifiers and microphones make sound that may travel half to one kilometre. The authorities cannot grant permission without regard to the fundamental rights of fellow citizens. Heart patients and people with nervous disorders suffer most (para 8).
12. Noted: the earlier order held that Azan "is definitely an integral and essential part of the Muslim Religion, but use of microphones is certainly not an integral part of Azan". In that earlier application, the Imams' counsel Mr. Chatterjee and Mr. Idris Ali sought modification of the order. Their clients could not satisfy the Court that the Azan cannot be given without a microphone (para 8).
13. Noted: the Azan used to be given by the human voice. The earlier order said the sweetness of that voice disappeared with electronic devices, which create sound pollution. So microphones need not be allowed before 6 a.m. (para 8).
14. Noted: the earlier order said whether a sound is sweet or sour is not for the Court. Citizens have a right to speak with family, to worship, to meditate, to live in peace and silence, and to read. A student has a right to read for an examination (para 8).
15. Noted: violators of the 1996 order, including puja committees and clubs, had paid fines and promised to comply (para 8).
16. Noted: the earlier order said the time had come to think whether to survive or perish. Sound is a recognised pollutant. One may like sound, but has no right to take away or reduce the rights of others (para 8).
17. Noted: religious freedom is subject to Article 25 and Article 19(1)(a). If the earlier order were modified for one community, the Court would lose its secular character (para 8).
18. Noted: the Preamble of the Constitution makes India a sovereign socialist secular (treating all religions alike) democratic republic and secures liberty of thought, expression, belief, faith and worship. The Court cannot relax an order for one religion and so destroy secularism (para 8).
19. Noted: the earlier order saw no reason to alter, modify or vacate the finally decided order of 1 April 1996. It said the order must be carried out by all sections in the State (para 8).
20. Noted: in Om Birangana's case the Court had considered Article 19(1)(a) in detail with Article 25(1). It quoted Article 19(1)(a), which is restricted only by Article 19(2). Article 19(2) allows restriction on grounds such as sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality, contempt of Court, defamation and incitement to an offence. It also asked whether a permit-holder may keep others as captive listeners (para 9).
21. Noted: the quotation in the report calls it Article 20(1) while describing Article 25. The report also records counsel's point that the right to propagate religion is guaranteed by Article 25 (para 9).
22. Noted: Ward v. Rock Against Racism, 491 US 781, upheld city rules that controlled the volume of amplified music in Central Park, New York. The challenge to the noise rules was rejected (para 9).
23. Noted: the quoted Om Birangana passage repeats that the practice of religion under Article 25(1) is not absolute. It is subject to Article 19(1)(a). A citizen has a right to leisure, to sleep, not to hear and to remain silent (para 9).
24. Noted: sound pollution cannot be stopped altogether. Its level must be reduced so it does not travel beyond a reasonable limit. In a public meeting, for example, it must not go beyond the zone where the listeners are (para 9).
25. Noted: the Central Pollution Control Board's Schedule III, framed under Rule 3 of the Environment (Protection) Rules, 1986, gives ambient noise standards in dB(A) for industrial, commercial and residential areas and silence zones (areas where noise is banned) (para 10).
26. Noted: in Schedule III, day time is 6 a.m. to 9 p.m. and night time is 9 p.m. to 6 a.m. A silence zone extends 100 metres around hospitals, educational institutions and courts, where horns, loud-speakers and crackers are banned. Silence zones are to be declared by the competent authority (para 10).
27. Noted: mixed areas are to be declared as one of the four categories by the competent authority. The standards of that category then apply (para 10).
28. Noted: after Om Birangana, the main Bengali festivals followed the restrictions and the time and decibel limits (para 11).
29. Noted: ambient noise limits for areas have been fixed and strictly followed. Only the writ petitioners and some Imams of other Mosques claim an exception (para 12).
30. Noted: a survey showed that about 96% of the people favour the regulation. The Court recorded cases of violence against persons who had used microphones against the norms. It punished violators and received unqualified apologies and undertakings, with fines up to Rs. 50,000 (para 12).
31. Noted: fire works also create sound. Noise comes from traffic, air horns, electric horns, microphones and crackers. The Burrabazar Fire Works and Mohan Fire Works objected to the ban on noisy fire works (para 13).
32. Noted: in Burrabazar Fire Works Dealers Association v. The Commissioner of Police, Calcutta, 1997 (2) CLJ 468 (26 September 1997), the Court regretted that the Central Pollution Control Board had set no decibel limit for fire works. It had also made no serious attempt to regulate microphones (para 14).
33. Noted: the Burrabazar Court said the Police Act, the Calcutta Police Act and the Calcutta Suburbs Act give powers to stop nuisance from microphones. The Central Government had laid down no policy or standard by legislation (para 14).
34. Noted: Burrabazar said no research is needed to hold that sound pollution is worse in India than in Europe and America. It said the problem grew for a decade and no authority tackled it (para 14).
35. Noted: for that reason Om Birangana's case directed the Board to fix a noise level. This protects the citizens' right to leisure, sleep, speech, reading, worship and thought under Article 19(1)(a) (para 14).
36. Noted: Burrabazar relied on Supreme Court decisions in Union of India v. Raghubir Singh, Pomal Kanji Govindji v. Vrojlal Karsondas Purohit, M.C. Mehta v. Union of India and National Workers' Union v. P.R. Ramkrishnan. They hold that where a law of the past does not fit the present, the Court should evolve a new law. Law must keep moving with a changing society (para 14).
37. Noted: by its order of 30 September 1996 the Court directed the Board to stop sound pollution from sources other than microphones, such as electric air horns and fire works. The Board's power to do so comes from the Court's order. That order adds to the powers the Board or other authorities have under the law (para 14).
38. Noted: Burrabazar said West Bengal is densely populated. Deepawali is a festival of sound, not of light, and there is no cultural or religious sanction behind it (para 14).
39. Noted: the Court expressed strong displeasure that the Pollution Control Board never took a formal decision as directed. It claimed to have acted on the Court's order, but showed no record. The Court kept its displeasure on record only because the ban was meant to do public good. It directed the Board to follow the orders strictly (para 14).
40. Noted: the Court recorded its appreciation of the fire works makers and dealers. They stopped storing and selling the banned noisy fire works for the last year, though the Central Board had set no decibel limit (para 14).
41. Noted: Professor K.J. Nath of the All India Institute of Hygiene and Public Health wrote on 26 August 1997. He cited United States Environmental Protection Agency standards of 65 dB(A) leq in commercial areas, 55 in residential areas and 50 in silence zones by day. Noise above 65 dB(A) harms community health, causing hearing impairment and neurological and psychological problems (para 14).
42. Noted: Professor Nath also said fire works are made with hazardous chemicals and cause fatal fires. He said fire works manufacture in Calcutta should be banned totally and use restricted to limits fixed by the Board (para 14).
43. Noted: Burrabazar said that outside the United Kingdom, other countries have no such constitutional protection of fundamental rights. In India even Parliament cannot make a law that unreasonably interferes with them. Article 19(1)(a) cannot be suspended, and no person or authority can have a chilling effect on it (para 14).
44. Noted: Burrabazar relied on Coverjee v. Excise Commissioner. There is no inherent right to sell liquor by retail, and a dangerous trade may be prohibited or allowed on conditions. The reasonableness of restrictions depends on the nature of the business and the conditions in the trade (para 14).
45. Noted: fire works, loud-speakers, aircraft and railways make sounds that damage hearing. Noise also disturbs sleep and is a source of annoyance. Citizens have a right to a decent environment and to sleep peacefully (para 14).
46. Noted: Burrabazar cited the British Medical Journal article by Fiona Goolee, as printed. Bad sleep brings mood change, reduced cardiovascular performance and poor intellectual and mechanical performance. Sleeping quarters should not exceed 45 dB(A). Loud noise raises anxiety and aggression (para 14).
47. Noted: noise has been identified as a pollutant under the Air (Prevention and Control) Act, 1981. Calcutta's ambient noise is alarming: Ballygunj 94 in the morning, 84 in the afternoon and 75 at night (para 14).
48. Noted: Salt Lake has 82 in the afternoon and 78 at night. B.B. Bag has 87 in the early morning and 90 at night. Esplanade has 91 in the morning and 81 at night (para 14).
49. Noted: Europe and America cannot be compared with West Bengal. Calcutta has some of the highest population density in the world. The State took in millions of refugees and traders after Partition (para 14).
50. Noted: Europe and America have thin population density and perfect roads. They have insignificant traffic noise and ban horns except in an emergency. European or American decisions have no direct bearing on fixing sound levels in West Bengal (para 14).
51. Noted: in India, unnecessary horns have become part of the culture. A neighbour may be dying while others play loud television or music. A citizen must be allowed to live in a society free from mechanical and artificial sounds (para 14).
52. Noted: the contention that Parliament passed no law and so the administration cannot act through a court order has no force. Courts are the custodians of citizens' rights. The principle of judicial activism lets a court be active to protect rights, duties and obligations (para 14).
53. Noted: Article 51A casts on every citizen the fundamental duty to protect and improve the natural environment and to have compassion for living creatures. Tremendous sound is unacceptable to animals too, such as pets (para 14).
54. Noted: Deepawali is a festival of light, not of sound. Noisy fire works are not part of any religious order. Music soothes, but sudden loud sound from microphones and fire works harms health and is a punishable nuisance (para 14).
55. Noted: in R. v. Secretary of State for Transport ex p. Richmond upon Thames London Borough Council (No. 4), [1996] 4 All ER 903, the Court of Appeal looked at night flight limits at Heathrow, Gatwick and Stansted set under Section 78(3) of the Civil Aviation Act, 1982. It held that the Secretary of State had not infringed local residents' legitimate expectation (para 14).
56. Noted: England has no written Constitution. English common law gives no right to sleep as such. Comfort and health are protected by nuisance and negligence in tort. If noise is sanctioned by statute, those remedies are removed under Section 76(1) of the Civil Aviation Act, 1982 (para 14).
57. Noted: under the European Convention on Human Rights, the balance between individual and State rights works differently. In Powell and Rayner v. U.K., the European Court said aircraft noise can affect private life and enjoyment of the home under Article 8(1). Article 8(2) permits interference needed in the economic well-being of the country (para 14).
58. Noted: Burrabazar said excessive noise is a pollution. India has no effective and elaborate law against noise creators. Under Article 19(1)(a) read with Article 21, citizens have a right to a decent environment, to live peacefully, to sleep at night and to leisure, all part of the right to life (para 14).
59. Noted: Burrabazar said the war of decibels has begun worldwide. India has two weapons: pollution law and Article 19(1)(a). Other countries, except the United States, have no such constitutional weapon (para 14).
60. Noted: Burrabazar said people have a right to sleep and leisure. Disturbed sleep causes mental stress, lack of concentration, irritability and lower efficiency. It also affects the digestive and cardiovascular systems (para 14).
61. Noted: after the fire works directions, the Board fixed a decibel limit for fire works. Most sound-making fire works were banned in West Bengal (para 14).
62. Noted: Mohan Fire Works, petitioner no. 2 in Burrabazar, moved the Supreme Court. On 12 January 1998 a Bench led by the Chief Justice of India dismissed the special leave petition. It approved the Calcutta view and the directions on fixing the noise limit (para 16).
63. Held: right to sleep is not only a fundamental right. It is to be considered as a basic human right. Disturbing sleep by microphones before 7 a.m. cannot be justified as essential and integral to a religion (para 17).
64. Noted: no religious text or book was shown saying that the Azan must be given through a microphone or any machine other than the human voice. The Court has not prohibited the Azan, only the use of microphones. Azan is given five times a day. The only main restriction is no microphone in the early hours before 7 a.m. (para 17).
65. Noted: counsel argued that Schedule III applies only to standards for emission or discharge of pollutants. The Court said Burrabazar had considered this and held it very doubtful that the quality of the air includes sound (para 18).
66. Noted: noise has been defined as tonal components disagreeable to man (Noise Control by Christopher N. Penn). Sound is any pressure variation the human ear can detect. Only ambient noise quality standards for four zones had been set. No standard existed for impulsive noise (para 18).
67. Noted: for microphones and loud-speakers the Court had acted not only on pollution but on the citizens' rights under Article 19(1)(a). Nobody has a right to suspend the rights of other citizens (para 18).
68. Noted: ordinarily the Court enforces the law and leaves new law to Parliament. But the Supreme Court held in Union of India v. Raghubir Singh that Judges make law and much law flows from superior courts' decisions (para 18).
69. Noted: Pomal Kanji Govindji v. Vrajlal Karsandas Purohit held that law must respond to felt compulsions of circumstances. The Court must take cognizance of facts unless the statute says otherwise (para 18).
70. Noted: M.C. Mehta v. Union of India held that where a law of the past does not fit the present, the Court should evolve a new law. National Workers' Union v. P.R. Ramkrishnan held that law must keep adapting to a changing society and shake off its colonial legacy (para 18).
71. Noted: the report quotes a passage from The Reform of Equity in C.J. Hamson (ed.), Law Reform and Law Making (1953), p. 31. It says Judges make law every day and uncertainty should be recognised (para 18).
72. Noted: the report quotes James S.C. Reid, The Law and the Reasonable Man (1968). He says most common-law doctrines were invented by some Judge. Appellate Judges should get them back on the rails if they have gone too far (para 19).
73. Noted: the Supreme Court approved this view in Mohan Fire Works (para 20).
74. Noted: the right to religion under Article 25 is subject to public order, morality and health (para 21).
75. Noted: counsel argued that matter of religion in Article 26(b), printed as Article 21(b), covers more than doctrine and belief (para 22).
76. Held: the Supreme Court judgment referred to does not apply to the point at issue. Article 26 gives four rights to every religious denomination (a group with a common faith, organisation and name), subject to public order, morality and health. The rights are to run religious and charitable institutions, to manage its own affairs in religion, to own property, and to administer it by law (para 23).
77. Noted: a religious denomination is a collection of individuals with a system of beliefs they regard as conducive to spiritual well-being, a common organisation and a distinctive name. The report lists these as three conditions (para 24).
78. Noted: Article 26 gives rights to manage religious affairs to a denomination or a section of it. The Court cited Durguh Committee v. Hussain, as printed (para 25).
79. Noted: Durguh Committee held that matters of religion include practices regarded by the community as part of its religion. Only practices that are essential and integral get protection under Article 26 (para 25).
80. Held: Islam is one of the important religions of the world. It is not a religious sect, and it is not clear how counsel could claim Article 26 protection, which applies only to a denomination or sect of a religion (para 25).
81. Noted: Hindu Religious Endowment v. Laxmindra Thirathaswamiar held that a denomination has complete autonomy to decide the essential rites and ceremonies of its religion. a recognised denomination decides what rites are essential, and no other authority can interfere. Acharya Jagdiswarananda Avadut's case held Ananda Marg a denomination within Hinduism (para 25).
82. Noted: Durguh Committee also held that the Chishti sect of Muslims is a religious denomination (para 25).
83. Held: Article 26 deals with the collective rights of a denomination or section. Article 25 protects the rights of an individual. The concept of denomination could not be imported here (para 25).
84. Held: Azan is certainly an essential and integral part of Islam, but microphone and loud-speakers are not. The microphone is a gift of the technological age. It is a source of pollution and health hazards (para 25).
85. Noted: the report records the point that microphone was not used by the Prophet or his main disciples and is of recent origin. So it could not be said to be essential and integral (para 25).
86. Noted: traditionally and by religious order the Azan is given by the Imam or person in charge of the Mosque in their own voice (para 25).
87. Held: the right to religion cannot be stretched to make the microphone essential to practising, professing and propagating religion. Azan is not a form of propagation. It is an essential part of religion, a call to meet at prayer (para 25).
88. Held: Mr. Banerjee's submissions cannot be accepted. Most points stand approved by the Supreme Court's decision, and the other submissions are wholly misconceived (para 26).
89. Held: use of microphone is not integral to the Azan or necessary to make it effective. Azan is there and will be there. A microphone is a major source of sound pollution. It affects the rights of citizens under Article 19(1)(a) and makes them captive listeners (para 27).
90. Held: none can claim an absolute right to suspend the other basic human and fundamental rights to sleep and leisure (para 27).
91. Held: the argument that the Environment (Protection) Act, Rules and Schedule are ultra vires Articles 14 and 25 is wholly misconceived. They caused no discrimination. Citizens have a right under Article 19(1)(a) to be protected against excessive sound (para 27).
92. Held: the restrictions imposed by the Court, the Central Pollution Control Board and the State Board must be carried out by all concerned at any cost (para 27).
93. Held: that no such formal restrictions exist in other parts of India, and Article 19(1)(a) is enforced strictly in West Bengal, is not discrimination (para 27).
94. Held: the petition is misconceived and has no merit, and is dismissed (para 27).
95. Noted: it is unfortunate that most of the petitioners' community, barring a few, did not follow the order of 1 April 1996. They kept violating the time and decibel restrictions even though the question had earlier been dealt with and dismissed (para 28).

Authorities

• Om Birangana Religious Society v. State, 100 CWN 617 (C.O. No. 4303 (W) of 1995, judgment of 1 April 1996). Followed and applied; its restrictions and Article 19(1)(a) reasoning were quoted at length (paras 1, 2, 8, 9, 11, 14, 28).
• Division Bench order of 17 April 1997 refusing to modify Om Birangana. Its reasoning was quoted and followed (para 8).
• Ward v. Rock Against Racism, 491 US 781 (United States Supreme Court). Cited as an example of noise-volume rules being upheld (para 9).
• Burrabazar Fire Works Dealers Association v. The Commissioner of Police, Calcutta, 1997 (2) CLJ 468 (26 September 1997). Followed; quoted at length (paras 14, 17, 18).
• Supreme Court order of 12 January 1998 dismissing the special leave petition of Mohan Fire Works. Approved the Burrabazar view and directions (paras 16, 17, 20, 26).
• Union of India v. Raghubir Singh. Judges make law. Citation not given in the report (paras 14, 18).
• Pomal Kanji Govindji v. Vrajlal Karsandas Purohit. Law must respond to felt compulsions of circumstances. Citation not given in the report (paras 14, 18).
• M.C. Mehta v. Union of India. A new law should be evolved where the old law does not fit. Citation not given in the report (paras 14, 18).
• National Workers' Union v. P.R. Ramkrishnan. Law must keep up with a changing society. Citation not given in the report (paras 14, 18).
• Coverjee v. Excise Commissioner and the Chief Commissioner, Ajmer (Constitution Bench). No inherent right to sell liquor by retail; reasonable conditions in the interest of safety, health, peace, order and morals. Quoted through Burrabazar (para 14).
• R. v. Secretary of State for Transport ex p. Richmond upon Thames London Borough Council and others (No. 4), (1996) 4 All ER 903 (Court of Appeal). Night flight limits and legitimate expectation. Quoted through Burrabazar (para 14).
• Powell and Rayner v. U.K. (European Court of Human Rights, 21 February 1990, Series A No. 1724, as printed). Aircraft noise can affect private life under Article 8(1). Quoted through Burrabazar (para 14).
• Durguh Committee v. Hussain (as printed). Only essential and integral practices are protected under Article 26. Citation not given in the report (para 25).
• Hindu Religious Endowment v. Laxmindra Thirathaswamiar. A denomination decides its own essential rites and ceremonies. Citation not given in the report (para 25).
• Acharya Jagdiswarananda Avadut's case. Ananda Marg held a denomination within Hinduism. Citation not given in the report (para 25).
• Also cited in footnotes: none (the report has no footnotes). Secondary sources named in the text: Noise Control by Christopher N. Penn (para 18); The Reform of Equity in C.J. Hamson (ed.), Law Reform and Law Making (1953) (para 18); James S.C. Reid, The Law and the Reasonable Man, 1968 (para 19); Fiona Goolee's article in the British Medical Journal and Christopher N. Phenn, as printed (para 14).

Provisions mentioned

• Article 14: equality before the law. The petitioners said Schedule III is ultra vires it (paras 1, 27).
• Article 19(1)(a): freedom of speech and expression. It includes the freedom not to listen. It is restricted only by Article 19(2) (paras 8, 9, 14, 27).
• Article 19(2): allows reasonable restriction on that freedom for the interests of sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality, contempt of Court, defamation and incitement to an offence (para 9).
• Article 20(1): printed in the report, apparently for Article 25(1), in the description of the right to propagate religion (para 9).
• Article 21: the right to life. The Court read it with Article 19(1)(a) to include a decent environment, sleep and leisure (para 14).
• Article 25: freedom of conscience and the right to profess, practise and propagate religion, subject to public order, morality, health and Part III (paras 8, 9, 21, 25).
• Article 26: rights of a religious denomination or section, under public order, morality and health. It protects collective, not individual, rights (paras 23-25).
• Article 51A: the fundamental duty to protect and improve the natural environment and to have compassion for living creatures (para 14).
• The Preamble: secular, socialist, democratic republic, with liberty of thought, expression, belief, faith and worship (para 8).
• Environment (Protection) Rules, 1986, Rule 3 and Schedule III: ambient noise standards by area (paras 1, 10, 18).
• Air (Prevention and Control) Act, 1981: noise identified as a pollutant (para 14).
• Police Act, Calcutta Police Act and Calcutta Suburbs Act: powers to stop microphone nuisance (para 14).
• Section 78(3) and Section 76(1) of the Civil Aviation Act, 1982 (United Kingdom): night flight orders, and removal of common-law remedies for noise made lawful by statute (para 14).
• Article 8(1) and Article 8(2) of the European Convention on Human Rights: respect for private life, and interference needed for the country's economic well-being (para 14).

Ronojit Kumar Mitra, J.

1. Held: he said he agreed. He agreed with the judgment of Banerjee, J. and added no separate reasoning (para 32).

Judgement

1. The writ petition is dismissed as misconceived and without merit (para 27).
2. From the date of this order, the police must immediately seize and confiscate any microphone or loud-speaker found used against the restrictions. They must report it to the Court so it can take drastic action against wilful violators (para 29).
3. The Officer-in-Charge of every police station in West Bengal must keep a watch on all Mosques. They must check whether any Mosque uses a microphone before 7 a.m. or exceeds its decibel limit, and act as directed (para 29).
4. All Superintendents of Police of the Districts and the Commissioner of Police, Calcutta must call for reports from each police station about the Mosques in its jurisdiction. They must submit a report to the Court within two weeks (para 29).
5. The Pollution Control Board must immediately bring to the Court's notice any complaint it receives against a Mosque, for drastic action according to law (para 29).
6. The Officers-in-Charge of all police stations under the Commissioner of Police, Calcutta, and the Director General of Police of West Bengal must confiscate microphones from any Mosque that still violates the time limit (no loud-speaker before 7 a.m.) or the decibel limit (para 30).
7. They must report to the Court through the Commissioner of Police and the Superintendents of Police of the Districts to the Pollution Control Board. The Board must inform the Court (para 30).
8. The West Bengal Pollution Control Board must circulate these directions immediately to all authorities. It must make the public and the Mosque authorities aware of them through Radio, Television and notices, warning that violations will be dealt with very severely (para 31).
9. Any laxity by the administration in implementing the order is also to be dealt with very severely (para 31).
10. The report states no order as to costs.

Legal Principle / Ratio

The Azan is an essential and integral part of Islam, but the microphone and loud-speaker are not essential to it. So Article 25 gives no right to use them against the time and decibel limits. Rights under Article 25 and Article 26 do not extend to suspending other citizens' fundamental rights under Article 19(1)(a) and Article 21, including the right to sleep and leisure. In the Court's words, "None can claim an absolute right to suspend other rights" (para 27).

Commentary, not labelled obiter in the judgment: the Court's remarks that courts may act where the legislature has not, that fire works noise is a nuisance, and that Europe and America cannot be compared with West Bengal (para 14).

Subsequent Treatment

In Re: Noise Pollution v. Forum, Prevention of Environment and Sound Pollution, (In Re: Noise Pollution — Restricting use of loudspeakers), Writ Petition (Civil) No. 72 of 1998, Supreme Court of India, decided 18 July 2005

• Bench: R.C. Lahoti, C.J.I. and Ashok Bhan, J. The judgment has no numbered paragraphs, so references are to its parts.
• It named this case in Part X (Firecrackers), under the question whether relaxation is desirable for festivals (Part X).
• The Supreme Court refused relaxation of the time limit for bursting crackers for festivals. Indian society is pluralistic, and if relaxation is allowed to one festival there is no reason to refuse it to others (Part X).
• It quoted this case's passage that the conditions of Europe and America cannot be equated with West Bengal. It repeated the points about density of population, roads and the use of horns (Part X).
• It then said the picture of the entire country compared with West Bengal shows no material difference. Rules for relaxation in Europe or America may not help India (Part X).
• Present position: the Supreme Court adopted this case's reasoning on comparing foreign standards. It did not decide the Azan or microphone question here.

Other later cases (not summarized): none fetched. A search found no later case that distinguished or overruled this decision.

Critical Analysis

Analysis based on the judgment text.

• The report prints several article numbers wrongly (Article 20(1), Article 21(b), "Article 2ft" and Article 26(4)). This makes some reasoning hard to follow.
• The report gives no citation for several Supreme Court cases the Court relied on, so the reader cannot confirm what each case held.
• The Court mixes two lines of reasoning: the essential practice test under Article 25, and the effect of noise on other citizens' rights. The ratio rests mainly on the second.
• The Court itself said no religious text had been shown requiring a microphone (para 17). It did not discuss what the petitioners' evidence of custom might show (para 5).
• Para 15 does not appear in the report. The text goes from para 14 straight to para 16.

Significance

• It separates the Azan, an essential practice, from the microphone, which is not essential (paras 25, 27).
• It links noise control to Articles 19(1)(a) and 21: a right to sleep, leisure and silence.
• It ordered the police to confiscate microphones, which made the limits enforceable.
• It was later cited in the Supreme Court's 2005 noise pollution judgment (see Subsequent Treatment).

Exam-Important Points

• Rule: Azan is essential and integral to Islam; the microphone is not (paras 8, 25).
• Rule: the right to sleep is a basic human right, and part of Articles 19(1)(a) and 21 (paras 14, 17).
• Rule: Article 26 protects a denomination, not Islam as a whole, and only essential and integral practices (para 25).
• Rule: no discrimination arises because the limits are enforced strictly in West Bengal alone (para 27).
• Trap: the Court allowed the Azan itself. The only restriction is on microphones before 7 a.m. and above the decibel limits (para 17).
• Trap: there are two opinions, Banerjee, J. (paras 1-31) and Mitra, J. (para 32, agreed).
• Trap: Schedule III is under Rule 3 of the Environment (Protection) Rules, 1986. Day is 6 a.m. to 9 p.m.; a silence zone is 100 metres around hospitals, educational institutions and courts (para 10).

Prepared from the full text of the judgment. Paragraph numbers follow the judgment text; law reports may number the same paragraph differently.