This Essay is submitted by –
- Amita Namdeo, 1st year, Dharmashastra National Law University, Jabalpur(M.P.)
- Ishita Sharma, 1st year, Dharmashastra National Law University, Jabalpur(M.P.)
In Calcutta High Court
1998 SCC OnLine Cal 73 : AIR 1999 Cal 15
Petitioner
Moulana Mufti Sayed Md. Noorur Rehman Barkati & ors.
Respondent
State of West Bengal & ors.
Date of Judgement
4th March 1998
Bench
Justice Bhagabati Prosad Banerjee and Justice Ronojit Kumar Mitra
Facts
The petitioners named Moulana Mufti Sayed Md. Noorur Rehman Barkati, Imam and Khatib, Tipu Sultan Shahi Masjid, Dharmatala and Chairman Gharib Nawaz Educational and Charitable Society, Calcutta and eight others filed a writ petition before Calcutta High Court in 1997. They prayed for a proclamation that Rule 3 of the Environmental (Protection) Rules, 1986[1] in regard to Schedule III should not apply at the time of call of Azan (an obligatory prayer called by the head of the Mosque five a day) and for further proclamation that Schedule III of the said rule is ultra vires Articles 14[2] and 25[3] of the Indian Constitution. The petitioners also prayed for revocation of the restrictions imposed by the order passed in Om Bairangana Religious Society vs. State. [4]
Issue:
- Whether the right to use microphones for the purpose of Azan is an integral and essential part of Muslim Religion and whether that right is an absolute right and should be free from any restriction?[5]
- Whether the right to practice or propagate religion includes the right to use loudspeakers and microphones for the purpose of chanting religious tenets or religious texts and/or the indiscriminate use of the same during the religious performance in the society?[6]
Arguments Advanced:
Petitioners
- The petitioners contended that Namaz is the second pillar of Islam. Earlier, Azan was called by a person in a loud voice to summon all believers; however, with current increase in population, industrial and environmental changes, it was called through electrical microphones and loudspeakers five times a day because it is a religious right under Article 25 of the Constitution.
- It is also duty of the citizens to have tolerance and patience for the purpose of respecting other religions and customs.
Respondent
There have been no arguments of the respondents because the petition is dismissed at the admission stage.
Ratio
Use of microphone is not an integral part of Azan. Microphones have been invented later and are found to be one of the major sources of sound pollution and affect the fundamental right of citizens under Article 19(1)(a) of the Constitution, making citizens captive listeners, suspending all their fundamental and legal rights. None can claim an absolute right to suspend other rights, or it can disturb other basic human rights and fundamental rights to sleep and leisure.[7]
Judgement
The Calcutta High court dismissed the writ petition filed by Moulana Mufti Syed. Md. Noorur Rehman Barkati, Imam and Khatib, Tipu Sultan Shahi Masjid, Dharmatala and Chairman Gharib Nawaz Educational and Charitable Society, Calcutta and eight others and upheld the judgment of Om Birangana Religious Society v. State. Although Azan is an essential and integral part of the Muslim Religion, it is certainly not essential for microphones to be used for it.[8]
The court expressed that “sound may be defined as any pressure variation that human ear can detect.”[9] The court expressed concerns over noise pollution and stated that measures should be taken to control the same.[10] Religious freedom is guaranteed under the provisions of Article 25 of the Indian Constitution. This article itself is subject to public order, morality and health and other provisions of part III including Article 19(1)(a) of the constitution of India[11]
Furthering the definitions of day time and night time laid down by the Central Pollution Control Board in Schedule III framed under Rule 3 of the Environmental Protection Rules, 1986; day time is reckoned as the period between 6 a.m. and 9 p.m. and night time as the period between 9 p.m. and 6 a.m.[12]
The court instructed that this order should be treated in addition to the powers conferred to the Pollution Control Board or other authorities that fall under the law.[13] After the failure to fulfill requirements laid down in the Birangana Case by the Pollution Control Board, the court expressed their strong displeasure for the same. Further, they directed the Board to strictly adhere to the order passed by this court.[14]
The court stated excessive noise as a source of pollution in society; however, there is no elaborate law to control the noise creator. Article 19(1)(a) when read with Article 21 of the Indian Constitution, states, the citizens have a right to a decent environment, right to live peacefully, right to sleep at night, and right to leisure, all being necessary and guaranteed under Article 21.[15]
Right to sleep is not only a fundamental right, but also a basic human right. No religious text establishes that use of microphones or any other machine except the human voice is a requisite for giving Azan. A restriction has been placed on the usage of microphones but not on the giving of Azan itself. Out of the five times of Azan, microphones usage is prohibited only once before 7a.m.[16]
It was asserted that microphones are a major source of sound pollution and affect the fundamental right of citizens under Article 19(1)(a) and make the citizens captive listeners.[17] The argument that the Environmental (Protection) Act Rules and the Schedule therein are ultra vires under Articles 14 and 25 is wholly misconceived.[18] Thereby, the writ petition was dismissed.
The authorities were directed to take strict action against the violators of the order. It was instructed to confiscate the microphones of those not in compliance of the rules regarding the time limit.
Present Status
The judgement is still applicable. The writ petition was dismissed in the admission stage.
Approved & Published – Sakshi Raje
Reference:
[1]Environmental (Protection) Rules, 1986
[2] INDIAN CONST. art. 14
[3] INDIAN CONST. art. 25
[4]Om Birangana Religious Society v. State, 132 SCC (Cal.:1996)
[5]Moulana Mufti Sayed Md. Noorur Rehman Barkati and others v. State of West Bengal and others, 1998 SCC OnLine Cal 73
[6]Id. At 5
[7]Moulana Mufti Sayed Md. Noorur Rehman Barkati and others v. State of West Bengal and others, 1998 SCC OnLine Cal 73
[8]Moulana Mufti Sayed Md. Noorur Rehman Barkati and others v. State of West Bengal and others, 1998 SCC OnLine Cal 73
[9]Moulana Mufti Sayed Md. Noorur Rehman Barkati and others v. State of West Bengal and others, 1998 SCC OnLine Cal 73
[10]Moulana Mufti Sayed Md. Noorur Rehman Barkati and others v. State of West Bengal and others, 1998 SCC OnLine Cal 73
[11]Moulana Mufti Sayed Md. Noorur Rehman Barkati and others v. State of West Bengal and others, 1998 SCC OnLine Cal 73
[12]Moulana Mufti Sayed Md. Noorur Rehman Barkati and others v. State of West Bengal and others, 1998 SCC OnLine Cal 73
[13]Moulana Mufti Sayed Md. Noorur Rehman Barkati and others v. State of West Bengal and others, 1998 SCC OnLine Cal 73
[14]Moulana Mufti Sayed Md. Noorur Rehman Barkati and others v. State of West Bengal and others, 1998 SCC OnLine Cal 73
[15]Moulana Mufti Sayed Md. Noorur Rehman Barkati and others v. State of West Bengal and others, 1998 SCC OnLine Cal 73
[16]Moulana Mufti Sayed Md. Noorur Rehman Barkati and others v. State of West Bengal and others, 1998 SCC OnLine Cal 73,
[17]Moulana Mufti Sayed Md. Noorur Rehman Barkati and others v. State of West Bengal and others, 1998 SCC OnLine Cal 73
[18]Moulana Mufti Sayed Md. Noorur Rehman Barkati and others v. State of West Bengal and others, 1998 SCC OnLine Cal 73
