Afzal Ansari & Ors. v. State of UP & Ors, Allahabad HC (2020)
A letter dated 26th April 2020 was written by Mr. Afzal Ansari, Member of Parliament (Lok Sabha), Ghazipur (former Union Law Minister) with a prayer that fundamental right to religion of the people at Ghazipur may be protected and the State Administration may be directed to permit recite the Azan by only one person “Muezzin” (muezzin, derived from the Arabic: مُؤَذِّن, muʾaḏḏin, simplified mu’azzin, is the person appointed at a mosque to lead and recite the call to prayer for every event of prayer and worship in the mosque.) from the respective mosques of the District Ghazipur, since it does not violate any of the directives issued for controlling the threat of the spread of the Covid-19, pandemic.
Mr. Salman Khurshid, Senior Advocate, Supreme Court as well as Former Union Minister for Law & Justice, Govt. of India has by a letter dated 28th April 2020, approached this Court that Muslims at Farrukhabad and other districts such as Hathras and Ghazipur, in Uttar Pradesh, be permitted to recite Azan which, according to him, is an integral part of Islam and in no way undermines the society’s collective response to the pandemic.
A letter dated 25th April 2020 has also been written by Mr. S. Wasim A. Qadri, Senior Advocate seeking a similar relief with respect to District Ghazipur.
Thereafter, Public Interest Litigation was filed in appropriate format on 30th April 2020 by Mr. Afzal Ansari. All the three matters including the letters were tagged together and were registered as Civil Misc. Writ Petition (PIL) No. 570 of 2020 (Shri Afzal Ansari Vs. State of UP and
FACTS OF THE CASE:
The main relief sought in the writ petition is that the Muslims in the Districts Ghazipur and Farrukhabad, may be permitted to recite Azan through “Muezzin”, by using sound amplifying devices and the restrictions imposed by the administration are wholly arbitrary and unconstitutional since they do not, in any way, violate the guidelines issued for the containment of the pandemic.
It was said by the petitioner that during the Ramzan (which was started from 25th April 2020)The timing of beginning and concluding the daily fast is marked by the sound of the Azan. Further, Petitioner also pleaded that the practice of opening the fast by the sound of the Azan is an Islamic tradition prevailing since the time of Prophet and is being practiced for past 1400 years.
It has been further submitted that ban on Azan through sound amplifying devices is violative of fundamental right as provided under Article 25 of the Constitution of India, as reciting Azan is an essential religious practice.
Respondant contended that Azan is a call for congregation to offer prayers at the Mosque and is therefore in violation of the Guidelines for containing the pandemic. He argued that ever since 24th March 2020, no religious activity is being carried out at any religious places and no loud speakers are being used for any religious purpose by Temple, Mosque, Church, Gurudwara etc., in District Ghazipur.
In a meeting which was convened on 24 March 2020 by the District Magistrate, Ghazipur (alongwith all other religious associated persons) whereupon it was agreed that no religious activities will be carried out during lockdown period at any public place of worship and no loud speakers/amplifiers would be used on such religious public places during the lockdown period.
Further, he argued that Local Muslim community have been following the directions of the Government of India and no religious activities including Azan are being carried out at any public place of worship and no loud speakers are being used for any purpose with effect from 24.03.2020. Further, during the period of lockdown with cooperation of religious groups no loud speakers/amplifiers have been used during the festivals like Navratri, Ram Navmi, Hanuman Jayanti and Parasu Ram Jayanti.
Therefore, he claimed that reciting of Azan through loudspeakers five times a day is part of religious rights guaranteed under Article 25 of the Constitution of India. Any restriction or prohibition made with regard to recitation of Azan through loudspeaker would have to be declared unconstitutional.
Question before Hon’ble Allahabad HC:
Whether any order prohibiting or restricting the recitation of Azan, through sound amplifying devices, is violative of the Article 25 of the Constitution of India and therefore arbitrary and unconstitutional?
Judgement by the Hon’ble Allahabad HC:
References by the Court:
The Hon’ble Court referred to the case of Calcutta High Court in the case of Om Birangana Religious Society Vs. The State and Ors., MANU/WB/0254/1996, wherein it was held as under:
“The religion that has been performed by the petitioner and others, is nothing new, but the same is
there for several centuries. It cannot be said that the religious teachers or the spiritual leaders who had laid down these tenets, had any way desired the use of microphones as a means of performance of religion. Undoubtedly, one can practise, profess and propagate religion, as guaranteed under Article 25(1) of the Constitution, but that is not an absolute right. The provisions of Article 25 is subject to the provisions of Article 19(1)(a) of the Constitution. On true and proper construction of the provisions of Article 25(1), read with Article 19(1)(a) of the Constitution, it cannot be said that a citizen should be coerced to hear anything which he does not like or which he does not require.”
The court also referred Calcutta High Court in the case of Moulana Mufti Syed Mohammed Noorur Rehman Barkati and Ors. Vs. State of West Bengal and Ors. MANU/WB/0211/1998 held that:
“the use of microphone and loudspeakers were not an essential and an
integral part of Azan.”
In the case of Church of God (Supra), the Supreme Court has held that no religion prescribes that prayers should be performed by disturbing the peace of others nor does it preach that they should be through voice amplifiers or beating of drums.
The Hon’ble Court also referred to the Rule 4, 5, 5A and Section 6 of the Noise Pollution Rules as follows:
Rule 4- Responsibility as to enforcement of noise pollution control measures.
Rule 5- Restrictions on the use of loud speakers/public address system (and sound producing instruments).
Rule 5A- Restrictions on the use of horns, sound emitting construction equipments and bursting of fire crackers.
Rule 6- Consequences of any violation in silence zone/area.
The Court also talked about the effects of the noise pollution and adverse effect of technology on the health. The Court said that the noise pollution beyond permissible limit is hazardous which violates the fundamental rights of citizens. Microphone is a gift of technological age, its adverse effect is well felt all over the world. It is not only a source of pollution but it is also a source which causes several health hazardous.
The Court said that there is chain of judicial decisions which recognizes the right to live in freedom from noise pollution as a fundamental right protected by Article 21 of the Constitution of India.
Therefore, the Hon’ble Allahabad HC said that: “The argument made by the learned counsel for the petitioner is totally misconceived and has no basis.”
Also, that the right to offer Azan by voice, without the use of sound amplifying devices is a right protected under Article 25 of the Constitution. However, the right to recite Azan through sound amplifying devices is not protected under Article 25, since it is not an integral part of Islam.
However, the court allowed that if in the present case permission taken from the from the authorities concerned under the Noise Pollution Rules to recite the azan only then it will be permissible otherwise it will be violative of Rules of Noise Pollution Rules.