noise pollution - human rights and constitutional dimensions

Noise Pollution - Human Rights andConstitutional Dimensions

P.S. Seema*

The human rights jurisprudence encompasses all walks of life, byvirtue of their being matters affecting the human being. Human rights, thoughseem to be easy to be defined as the rights which a human has by virtue ofhis being human, are very difficult to enumerate. However, the Parliamentunder section 2(d) of the Protection of Human Rights Act, 1993 defineshuman rights as the rights relating to liberty, dignity and equality of theindividual guaranteed by the Constitution or embodied in the InternationalCovenants and enforceable by courts in India. In this view all thefundamental rights can be treated as human rights in India.

The human rights jurisprudence embraces all branches of law sinceall the above laws are made for man and any violation or protection throughany law will ultimately affect the human beings. The issues in environmentallaw are not exceptions. Infact, any violation of environmental law willeventually lead to the violation of human rights law since without a cleanand healthy environment, a healthy life which is the first requirement of ameaningful life will not be possible. This Philosophy is reflected in caseslike Mathew Lukose l and Subhash Kumar v. State of Bihar' where thehigher judiciary held that right to life under Article 21 includes right to livein a clean and healthy environment.

Any pollution, whether air, water, marine or nuclear violates humanrights, as it finally results in violation of right to life. Noise pollution isanother problem of concern for human rights law as well as environmental

* LL.B. (M.G.), LL.M. (Cochin); Lecturer, School of Legal Studies, Cochin Universityof Science and Technology, Kochi - 22.

1990 (2) K.L.T. 686.

A.I.R. 1991 S.C. 420.

C.U.L.R. P.S. Seema 79

law, since the impact of noise on the health of human beings is very adverse,and can lead to various health problems.

Noise pollution is also a concern of tort law, criminal law, and theconstitutional law. The judiciary is often confronted with the problem ofbalancing various rights like the right to freedom of speech and expressionunder Article 19(1)(a), freedom of profession under 19(1)(g), right to lifeunder Article 21 and the right to freedom of religion in the context of noisepollution.

When a person exercises his freedom of speech and expression, orhis freedom to practice religion using loud speaker, it may result in theviolation of right to privacy, right to life, or the freedom not to practiceany religion of many others. All these rights are undoubtedly human rights.Firstly, (a moral or ethical reason) because these rights are those rightswhich a human being should not be denied. Secondly, (a legal reason)because the Protection of Human Rights Act, 1993 defines all thefundamental rights enshrined in the Constitution as human rights, thusobliterating any distinction between human rights and fundamental rightsin India. Thirdly, because these rights are recognized as human rights inthe International Human Rights Documents such as the UniversalDeclaration of Human Rights and the International Covenant on Civil andPolitical Rights.

This paper is an attempt to examine the various human rights issuesand constitutional dimensions relating to noise pollution and legislative andjudicial measures taken to combat this menace.

Noise Pollution- Impact on Human Health

It is difficult to define noise pollution because it is a highly relativeand subjective terminology. The devotional songs from a nearby templeearly in the morning may be a pleasant experience to a devotee, but thesame may be a nuisance or polluted noise to a non-believer. Similarly,listening to the playing of a musical instrument for some time may be apleasure, but if it is to be continued for long, it may amount to noise

80 Cochin University Law Review [20031

pollution. Interestingly the reverse may also happen. The noise which wasunbearable first may become a comfortable and inevitable part ofsomebody's life. The persons living near aerodromes, railway tracks,factories etc. are examples.

However, there are certain definitions for this term. All the definitionsseem to agree in content that noise is an unwanted or undesired sound.'The causes of noise pollution can be industrial and non-industrial such asloudspeakers, motor vehicles, religious rituals and festivals, trains, workingof machineries etc. The major cause seems to be the advancement inindustry and technology and the consequent activities. The enhancedindustrial activities resulting in noise pollution give rise to a conflict betweenright to development which is a third generation human right on the onehand and the right to have a clean environment free from noise pollutionon the other. This is common phenomenon in all environmental issues.

Noise impairs the health of the people psychologically andphysiologically. The psychological and behavioural effects created byexcessive noise include annoyance, fatigue, improper speech,psychosomatic disorders, tension related diseases, sleep interference,mental illness, emotional illness etc., while the physiological effects includecausing of stomach ulcers, neuroses, allergies, cardiovascular andcirculatory disease, abortion and other congenital defects in unbornchildren.`

For children, noise causes not only hearing problem but also otherneurological reactions that make the child irritable and hyperactive, andthis has been noted for slowing down the process of development of themental faculties of a child. A study conducted by a medical team discovered

Encyclopaedia Britannica defines noise as any undesired sound, EncyclopaediaAmericana defines it as an unwanted sound. The Wilson Committee of Britain inits Report — Noise (Final Report) Commd. 2056, and various English decisionsalso define noise pollution. See S.C. Shastri, Environmental Law, Eastern BookCompany (1 st edn.-2002), p. 159.

Id., p.I64.

C. U. L. R. P.S. Seema 81

an increased incidence of birth defect, still births and usually low weightamong children born to mothers living near airports. Neonatal developmentis affected if the expectant mother is subjected to continuous noise stressduring pregnancy'. Thus noise pollution can result in the violation of therights of the child which is not only a human right violation, but also aviolation of the Convention on the Rights of the Child, 1989 since India isa party to it.' Thus it is not only a constitutional imperative but also aninternational obligation for India to take adequate steps to control noisepollution.

Noise pollution is covered under Tort Law, Criminal Law andEnvironmental Law, and through judicial interpretation it has become asubject matter of Constitutional law as well. Under the Tort Law, theinjury suffered by the victim is to be proved to get damages. But in thecase of noise pollution, it is difficult to prove such an injury, which makesthe Tort law remedies ineffective.Under the Criminal Law, noise pollutionis considered as a public nuisance.' But since the punishment for it is afine up to two hundred rupees under Section 290, the criminal law remedyis also ineffective to curb this menace.

Noise Pollution under the Environment Protection Laws

The most important legislation relating to the protection ofenvironment in India is the Environment (Protection) Act, 1986. Even

Btjayananda Patra v. District Magistrate, Cuttack, A.I.R. 2000 Ori. 70.

The Convention on the Rights of the Child, Articles 6, 24, 25 and 27 entrust theState Parties to ensure the protection of physical as well as mental health of thechild.

7. Indian Penal Code, S. 268 reads : "Public nuisance — A person is guilty of publicnuisance who does an act or is guilty of an illegal omission which causes any commoninjury danger or arrogance to the public or to the people in general who dwell oroccupy property in the vicinity or which must necessarily cause injury, obstruction,danger or arrogance to persons who may have occasion to use any public right. Acommon nuisance is not excused on the ground that it causes some convenience oradvantage".

82 Cochin University Law Review 12003]

though noise pollution is not directly defined as an item of environmentpollution, Section 6(b) read with Sections 2(b) & 2(c) clarifies that noiseis an environmental pollutant' The same was included in the Air (Preventionand Control of Pollution) Act,1981 by way of amendment in 1987, byincluding noise also in the definition of the term "air pollutant" in Section2(a).

Rule 5 of the Environment (Protection) Rules, 1986 under clause( I ) (ii), empowers the Central Government to make rules prescribing themaximum allowable limits of concentration of various environmentalpollutants (including noise) for an area. The Central Government underthe provision of the Environment (Protection) Act, 1986 read with Rule 5of the Environment (Protection) Rules, 1986, framed Noise Pollution(Regulation & Control) Rules, 2000. These rules provide for ambient airquality standards in respect of noise for different areas /zones as specifiedin the schedule.

The enforcement of this rule vests with an authority defined underRule 2(c), which includes the District Magistrate and the PoliceCommissioner. The 2000 Rule permits the use of loudspeaker only withthe consent of the authority, and proscribes the use of loudspeaker orpublic address system at night between 10.00 p.m. to 6.00 a.m., exceptin closed premises for communication.

Likewise there are regulations like the Kerala Police Act, the BombayPolice Act etc., which authorise the police to give sanction to the use ofloudspeaker. Similarly there are state legislations like Madhya Pradesh

8. The Environment (Protection) Act, 1986, S.2(b) reads : "Environmental pollution"means any solid liquid or gaseous substance present in such concentration as maybe or tend to he injurious to environment." S. 2(c) reads : "Environment pollution"means the presence in the environment of any environmental pollutant." S. 6(1)reads : "The Central Government may, by notification in the official gazette,make rules.(2) In particular, and without prejudice to the generality of theforegoing power, such rules may provide for. (a) (b) the maximum allowablelimits of concentration of various environmental pollutants (including noise) fordifferent areas."

C. U. L. R. P.S. Seema 83

Control of Music and Noises Act, 1951, Bihar Control of the Use andPlay of Loudspeakers Act, 1955, Orissa Fire Works and LoudspeakerRegulation Act, 1958, Rajasthan Noise Control Act, 1963 trying to checknoise pollution. 9 The Motor Vehicles Act, 1988, Section 110(d) empowersthe Central Government to make rules with respect to reduction of noiseemitted by or caused by vehicles. The Central Motor Vehicles Rules, 1989,Rule 119 deals with reduction of noise, the standard for which is to belaid down by the Bureau of Indian Standards.

The provisions of the 2000 Rules as well as legislations restrictingthe use of loudspeakers and other activities causing noise pollutionundoubtedly results in violation of various human rights and fundamentalrights like the freedom of speech and expression, freedom to practice anyprofession, right to life, right to privacy and right to religion.

This makes noise pollution more a subject matter of ConstitutionalLaw and Human Rights Law, and requires a serious analysis.

As science and technology developed, with the advent of newdevices like microphones, loudspeakers, the freedom of speech andexpression became more meaningful as the individual expresses his ideathrough speech and could reach more audience through amplified noiseusing loudspeakers. But if this results in noise pollution, it will affect thepublic through violation of various rights like right to leisure, right to sleep,right to talk to others etc. So, to strike a balance the Legislature throughvarious enactments like various provisions of the Police Act, the Air(Prevention and Control of Pollution) Act, and the Environment ProtectionAct, empowered the Executive to put restriction on the use of loudspeakers,in the interest of the general public. These provisions are often challengedas violative of the fundamental right to freedom of speech and expression.It is interesting to see how the legal system resolved these conflicts.

9. Supra n.3, p.173.

84 Cochin, University Law Review 12003]

The Right to Use Loudspeaker - A Fundamental Right?

The freedom of speech and expression is a cherished human rightwhich has world wide acceptance. The Universal Declaration of HumanRights through Article19, the International Covenant on Civil and PoliticalRights through Article 19, the European Convention on Human Rightsthrough Article 19 etc. recognise this right as a human right. But it is notclear whether the right to use loudspeaker forms part of this right. Article19(1)(a) of the Indian Constitution though guarantees the freedom ofspeech and expression, does not give any hint as to whether right to useloudspeaker forms part of it. Various High Courts have given variousinterpretations. An analysis of these decisions reveals that even the differentbenches of the same High Court failed to keep consistency. There is noSupreme Court decision in this regard.

As early in 1958, the Allahabad High Court was confronted withthis question in Rajni Kant v. State.'° In this case, the validity of certainbye-laws framed by the Municipal Board Allahabad which requires thatpermission from the Executive Officer Municipal Board, Allahabad isnecessary for using the loudspeaker was challenged as violative of thefundamental right to freedom of speech and expression, since this freedomincludes the right to use loudspeaker as well.

The Single Judge held that the use of mechanical appliances is notcovered by the guarantee of freedom of speech and expression. The Courtdid not give any reason for coming to such a conclusion.

But in Indulal v. State," while adjudicating upon whether section33 (i) (iii) (r) of the Bombay Police Act and the Rules made there under,which empowered the Commissioner and District Magistrate to prohibitthe use of loudspeaker, was violative of the fundamental right to freedomof speech and expression guaranteed under Article 19(1) (a) of the

10. A.I.R. 1958 All. 360.

II. A.I.R. 1963 Guj. 259.


Constitution, the Court held that the right to use loudspeaker is includedin the freedom of speech and expression. The Division Bench in this casecompared the freedom of press (which is declared as part of freedom ofspeech and expression) with that of freedom of speech and expressionand came to the conclusion that the freedom of speech and expressioncarriers with it the freedom to use loudspeakers.

The Court held :

"This fundamental right is not merely a right to make use of one'slarynx... Thus the essence of the right does not consist in merelymaking use of the human noise, but it lies in the ability to conveyone's views to others.... It follows from this that the right includesnot merely the right to propagate one's views but also comprehendsthe right to circulate those views to as large an audience as one canpossibly reach. If the mechanical appliances and instruments otherthan the press can help the citizen in reaching a wider circle ofaudience, than the limits of his voice can permit, there does notappear to be any good reason why the citizen should not be permittedto avail himself of them".12

However, the Court upheld the constitutionality of the impugnedprovision and rules, as the Court felt that the restrictions put on the use ofloudspeakers were reasonable restrictions and is protected under Article19(2).

The Kerala High Court in Dr. Anantha Prabhu v. DistrictCollectoril was requested to issue a writ of mandamus to direct the DistrictCollector and the City Commissioner of Police to sanction the use ofmike, loudspeaker or such other amplifier appliances, and to issue a writof certiorari quashing the Ext.P2 proceedings in which a total prohibitionwas put on the use of mike, loudspeakers etc. One of the questions before

Id., pp. 263-265.

A.I.R. 1975 Ker.117.

86 Cochin University Law Review [2003]

the court was whether the freedom of speech and expression extends tothe use of mechanical or other contrivances to amplify sound and whetherthe State or its officers can regulate or restrict such user.'

The Single Judge George Vadakkel referred to that part of Indulal'sdecision' which held that the freedom of speech and expression includesthe freedom to use mechanical appliances, and instruments such asloudspeaker, and respectfully agreed with the same, (emphasis supplied)and added that the total prohibition on using the mike, loudspeakers etc.amounts to infringement of fundamental right to freedom of speech andexpression.'

Even though in this case, by agreeing with Indulal the Judge heldthat freedom of speech and expression includes freedom to use amplifiers,in a subsequent decision from the Kerala High Court in P.A.Jacob v. Spt.

of Police" Justice Chettur Shankaran Nair seems to have missed thefocus and reached an erroneous conclusion, in appreciating the ratio

decidenti of Dr. Anantha Prabhu, in this respect.

In this case, permission was refused (though granted at first) to thepetitioner by the S.I. of Police to use loudspeaker to fight the idea orcustom that `Knanaya' Christians should marry only from thatdenomination, on the ground that it may create law and order problemsdue to the opposition from other sections of Christianity. The petitionerchallenged the order of the Sub Inspector cancelling permission to useloudspeakers since freedom of speech and expression implies freedom touse amplifying devices.

The learned judge referred to Indulal's decision and disagreed withthe view in that decision that the freedom of speech and expression includesfreedom to use loudspeaker. The Judge also referred to Dr. Ananda

/d., p.119.

Supra n.12.

Supra n.11, p.122.

A.I.R. 1993 Ker.l.


Prabhu, but held that in that decision the question of fundamental rightwas not involved in the matter of using a loud speaker, and that the learnedjudge in that case assumed that there was a fundamental right

Obviously this observation of the judge in this regard is not rightbecause as was pointed out earlier, the Judge in Dr Ananda Prabhu hadclearly framed the question whether use of loudspeaker is a part offundamental right to freedom of speech and expression, and answeredthe question positively.

The Judge in P.A. Jacob proceeded to hold that freedom

guaranteed under Article 19(1) (a) is freedom of expression of ideas,not freedom of modes of expression (emphasis added). So there is nofundamental right to use loudspeaker. However, the Judge added thateven though there is no fundamental right to use loudspeaker, it cannot bearbitrarily denied.

Interestingly, the decision of Indulal was referred in Francis' s whichis a Privy Council decision. In this case the question before the PrivyCouncil was whether section 5 of the Public Meetings and ProcessionsAct, 1969, which required permission to be obtained from the Chief ofPolice for using loudspeakers is unconstitutional or not. The Privy Councilupheld the constitutionality of the provision. It added that the phrase`public order' which is one of the grounds to put reasonable restriction onthe freedom of speech and expression must be given a meaning wideenough to cover action for the avoidance of excessive noise seriouslyinterfering with the comfort or convenience of substantial persons. ThePrivy Council was also of the view that, as American judges do, it isdesirable to look for the inherent limitation as inherent in the fundamentalfreedoms of the individual if the freedoms of others and interest of thecommunity are not to be infringed.

18. [1973] All E. R. 251 (P.C.).

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In M.S. Appa Rao v. Govt. of a division bench of the MadrasHigh Court was requested to issue a writ of mandamus directing the StateGovernment to take various steps to reduce noise pollution caused byloudspeakers, horn type of loudspeakers, amplifiers and air horns byautomobiles. The Court expressed the view that there are sufficientstatutory rules and government orders regulating the use of loudspeakersor sound amplifiers, or air horns, and directed the Government to followcertain directions to implement the same. The Government was directedto set up a separate cell to receive complaint against violation of conditionsset out in the government order regarding grant of loudspeakers etc.'Later in another case, a single judge of the Madras High Court directedthe respondents to follow the guidelines laid down in Appa Rao whichwas challenged before the Supreme Court in Church of God (full gospel)in India v. K. K.R. Majestic Colony Welfare' which is discussed later.

It is significant to note that in M.S. Appa Rao, the Court referred toIndulal's and P.A.Jacob's decisions (discussed earlier) on the questionwhether freedom of speech and expression includes right to useloudspeaker, and agreed with P.A.Jacob's decision, though that questionwas not at all in issue in this case. The Court also conveniently followedthe ratio decidenti of Dr. Anantha Prabhu as was found by Justice ChetturShankaran Nair in P.A. Jacob without attempting to find out the ratiodecidenti independently. This resulted in perpetrating the error committedby Justice Chettur Shankaran Nair by holding that in Dr. Anantha Prabhuthe question whether right to use loud speaker is a fundamental right wasnot considered.

Another case in this regard is Bijayananda Patra v. DistrictMagistrate, Cuttack". A division bench consisting of Chief Justice (acting)Arijith Pasayat and Justice B.P. Das was requested to take steps to control

1995 A.I.H.C. 4168.

Id., p.4177.

21. A.I.R. 2000 S.C. 2775.

7 2. Supra n.5.


noise pollution caused due to the use of high sounding explosive fire worksand other blaring sound producing devices. The Court referred to themeaning and definition of the word pollution, the position in England andthe position in India. The Court held that in India, the use of loudspeakerassumes the status of a fundamental right by virtue of Article 19(1) andArticle 25 of the Indian Constitution.

The Court did not address the question whether right to useloudspeaker forms part of freedom of speech and expression or/andfreedom of religion. Instead, the Court assumed that the right to useloudspeaker assumes the status of a fundamental right and proceeded toexamine whether the restrictions put on the use of loudspeaker wouldamount to reasonable restriction in the light of Article 19(1)(a) and Article25.

Regarding the restriction on freedom of speech and expression theCourt held that the one thing that can conceivably cover a ban on noiseamong the restriction under Article 19(2) 23 can be decency, but the worddecency being undefined the public shall have to wait until some verdictof the higher judiciary declaring that noise is contrary to decency.'

The Constitution of India, Art. 19(2) reads : "Nothing... shall... prevent the Statefrom making any law in so far as such law imposes reasonable restrictions on theexercise of right conferred... in the interest of the sovereignty and integrity of India,the security of the sate, friendly relations with foreign states, public order, decencyor morality or in relation to contempt of court, defamation, or incitement to anoffence."

Thus if the use of loudspeaker is a part of fundamental right to freedom ofspeech and expression, it can be restricted only on these grounds. In the case ofnoise pollution except the ground of decency, no other ground can possibly beinvoked if the content of what is spoken does not come within those grounds.This is what the court holds.

It is fundamental principle of constitutional law that the State can put restrictionon any fundamental right only on specific grounds which are allowed by theConstitution. The restriction has to be reasonable too. So if any restriction is tobe put on the freedom of speech and expression under Article 19(I) (a), thoserestrictions can be only on any of the grounds mentioned in Article 19(2), whichhas to be reasonable.

90 Cochin University Law Review 12003]

But in the very next sentence the Court held that a byelaw ofMunicipality requiring permission for using a loudspeaker does not infringeArticle 19(1)(a) since state can regulate the same. This reasoning seem tobe contradictory, because on the one hand the court could not possibly finda ground under which reasonable restriction can be put on 19(1) (a), in thecase of use of loudspeaker, and on the other hand it said that if the state canregulate the use of loudspeaker, that can be a reasonable restriction.

The Court seems to have overlooked the fact that if right to useloudspeaker is a part of Article 19(1) (a) the State can regulate it only ongrounds mentioned under Article 19(2) as reasonable restriction, and not thatif the State can regulate it on any ground, that ground becomes a reasonablerestriction automatically. Here also the path adopted by the Privy Council inFrancis" seems to have been a torch to the judge to come to the same endthrough a right means.

The Court issued nine guidelines in this case to curb noise pollution,after discussing in length the effect of noise on health.

Another case in this regard is Free Legal Aid Cell v. Govt. ofDelhi'. In this case the Division Bench consisting of Chief Justice ArijithPayasath and Justice D.K.Jain was requested to issue direction to theappropriate authorities to curb noise pollution caused due to use of highsounding explosive fire works and other blaring sound producing devices.'

Supra n. 16.

A.I.R. 2000 Del. 455.

27. It is interesting to note that the issue before the court in Bijavanananda Patrawas also the same. A perusal into these two decision will reveal that except oneor two paragraphs and certain guidelines, the judgement of Free Legal Aid is areplica of that of Bijayanan.da Patra. This may be due to the presence of ChiefJustice Arijith Pasayat in the both these cases. It is also significant to note that,Btjayananda Patra is no where mentioned in Free Legal Aid. For a criticism, seeP.S.Seema, "Bijayananda Patra v. District Magistrate Cuttack and Free LegalAid Cell v Govt. of NCT of Delhi Proforma Judgements?".2(7) KBCN 19 (August2003).


In this case the Court referred to the Noise Pollution (Regulation and Control )Rules, 2000, apart from what was discussed in Bijayananda Patra and issued13 guidelines (out of these 13 guidelines, 9 are the same guidelines whichwere issued in Btjayananda Patra).

From the above discussions it becomes clear that the main questionfaced by the courts in the case of loudspeaker is that, if the freedom to useloudspeaker is considered as a part of freedom of speech and expressionunder Article 19(1) (a), which is a fundamental right, any restriction on the useof loudspeaker can be only on the grounds mentioned in Article 19(2).Obviously noise pollution has nothing to do with any of these grounds. Noisepollution will affect public tranquility, public peace, public health etc. But noneof this is a ground under Article 19(2).

This is because Article 19(2) is aimed at the content and not at themode of speech and expression. But it will not be safe to conclude that rightto use loudspeaker is not a part of freedom of speech and expression. TheConstitution guarantees the right to freedom of speech and expression to allits citizens which can be restricted by the state only on the grounds availableunder Article 19(2). This means that, anything else which do not come underArticle 19(2) will form part of freedom of speech and expression in the absenceof even an inclusive definition for the term in the Constitution.

The second reason is that the International Covenant on Civil andPolitical Rights (I.C.C.P.R.) to which India is a party, requires the state partiesto ensure freedom of speech and expression to every one, which shall includefreedom to seek, receive and impart information and ideas of all kinds,regardless of frontiers, either orally, in writing or in print, in the foi iii of art, orthrough any other media of his choice (emphasis supplied)." The reasonablerestrictions that can be put on this right are (1) to respect the rights or reputation

28. I.C.C.P.R., Art. 19. The reasonable restrictions that can be put on this right are (1)to respect the rights or reputation of others and (2) for the protection of nationalsecurity or public order, public health or morals.


of others and (2) for the protection of national security or public order, publichealth or morals.

This definition is wide enough to embrace the right to use loudspeakeras well. Due to the reason that, I.C.C.P.R. allows reasonable restriction beput on this freedom for respecting the rights of others, noise pollution being aviolation of various rights of others, can veiy well become reason for controllingthe right to use loudspeakers. But since respect for the right of others is not aheading under Article 19(2) of the Indian Constitution, the noise pollutioncaused through the use of loudspeaker cannot be restricted under Article19(2), easily. Some interpretative techniques will be necessary.

The best possible path seems to be to give a wider meaning to thephrase 'public order' to cover action for avoidance of excessive noise, seriouslyinterfering with the comfort or convenience of a substantial number of persons.Otherwise it ought to have been interpreted that in exercising the fundamentalright to use loudspeaker, there is an inherent limitation in this fundamentalfreedom to not to infringe the freedom of others and the interest of thecommunity as was adopted by the Privy Council in Francis.', ' This will alsohelp the legislature to enact laws like Police Act to regulate the use ofloudspeaker for the protection of public tranquility or health.

As in the case of freedom of speech and expression, the freedom topractice, profess and propagate religion guaranteed under Article 25 of theIndian Constitution also becomes more meaningful with the development ofdevices like loudspeakers and microphones. The devotional songs playedfrom the churches and temples and the Azan from the mosques early in themorning are all possible because of this development. During festivals andother ceremonies in the religious institutions, these devices are helpful in makingthe prayer audible to devotees sitting at distance, to give instructions and alsoto control the crowd. But the same development results in violation of manyother rights too, when the exercise of freedom of religion through loudspeakerresults in noise pollution.

29. Supra n. 16.


The courts in India are confronted with these conflicting rights veryoften. But unlike in the case of the question whether right to use loudspeakerforms part of freedom of speech and expression, there is not much controversyin the area of freedom of religion, since the courts are of the view that noreligion has ever insisted for the use of loudspeaker while praying. But thecourts only seem to have varied in allowing the use based on facts andcircumstances of each case.

The Freedom to Use Loudspeaker — a Part of Freedom to PracticeReligion?

In Om Birangana Religious Society v. State' the Single JudgeBhagwati Prasad Banerjee was requested by a religious organization to orderthe respondent not to interfere with its right of user of microphones, loudspeakeretc., while offering daily pujas and other religious activities.

The Section 34A of the Police Act, 1861 (as amended by the WestBengal Act, 1963) empowers the District or Sub-Divisional Magistrate toprohibit, restrict, regulate or impose conditions on the use of microphones forpreventing arrogance to or injury to the health of the public. The petitioner'scontention was that the sub divisional officer directed them not to use anymicrophone while performing puja and other religious activities.

The petitioners were of the view that this violated their right to religionguaranteed under Article 25 of the Indian Constitution. So the question waswhether the right to propagate religion includes the right to use loudspeakersand microphones for the purpose of chanting religious tenets or religious texts.

The Court held that the provisions of Article 25 is subject to theprovisions of Article 19(1) (a) of the Constitution, and that on true and properconstruction of the provisions of Article 25(1) read with Article 19(1) (a) ofthe Constitution, it cannot be said that a citizen should be coerced to hearanything which he does not like or which he does not require. The Courtfurther held :

30. Cal. L.T. (1996) 2 H.C. 474.


"A citizen has a right to leisure, right to sleep, right not to hear and rightto remain silent. He has also the right to read and speak with others.Use of microphones certainly takes away the right of the citizens tospeak with others, their right to read or to think or the right to sleep..."'

The Court then issued certain guidelines to the West Bengal PollutionControl Board, such as that loudspeakers should not be allowed to operatein streets between 9 p.m. and 7 a.m. for any purpose at any time for purposeincluding that of advertisement of any entertainment, trade or business. So faras the use of microphones or loudspeakers by religious organization at anyreligious place for religious communication is concerned, it was ordered to beused solely for the purpose of communicating the speeches or religiousteachings to the persons who have attended such functions and so operatednot to give reasonable case for annoyance to any person in the vicinity.'

The guidelines issued in Om Birangana again gathered attention inMoulana Mufti Syed Md. Noorur Rehman Barkati v. State of WestBen gar . In this case the appellant prayed for withdrawal of all conditionsand restrictions which were notified by the police and other authorities pursuantto the order passed in the case of Om Birangana. The applicant's contentionwas that the condition and restriction put by Om Birangana that there will beno user of any microphones between 9 p.m to 7 a.m, read with Schedule III

Id., p. 479, para. 21.

These guidelines were followed by the West Bengal Pollution Control Board,and the D.G of Police, Police Commissioner and all District Magistrates wererequested not to allow manufacturing, selling or storing of any fireworks whichgenerate noise pollution. Consequently the Commissioner of Police issued anotification restricting the manufacture, possession etc. of certain fireworkswhich generate noise above 65 decibel. This was challenged by certain fireworks dealers in Burrahazar Fire works Dealers Association v. Commit of PoliceCalcutta, A.I.R. 1998 Ca1.121, as violative of their freedom of professionguaranteed under Article 19(1) (g) of he constitution. The Court held that Art.19(1) (g) does not guarantee the fundamental right to carry on trade or businesswhich creates pollution or which takes away the right of the community's safety,health and peace.

33. A.I.R. 1999 Ca1.15.


of the Environment (Protection) Rules, 1986 4 violate their right to religionguaranteed under Article 25 of the Constitution, as it put restriction on call of

Azan from the mosques, through loudspeakers, during this time.

The Court held that use of microphone is not an integral part of Azan

and /or necessary for making Azan effective. The Court added that Azan isthere and will be there.But simply because microphones has been inventedand ultimately it is found that it is one of the major sources of sound pollutionand it affects the fundamental rights of the citizens under Article 19(1) (a) ofthe Constitution and making the citizens captive listeners, suspending all theirfundamental and legal rights, none can claim an absolute right to suspendother rights or it can disturb other basic human rights and fundamental rightsto sleep and leisure.

The mosques were ordered not to be allowed to use microphonesbefore 7 a.m., and the S.P. and Commissioner were entrusted with the duty tocall for reports from each and every police station about the state of affairs inrespect of the mosques situated within the jurisdiction of each and every policestation.

In Bijayananda Patra 35 and Free Legal Aid Cell'', even though thequestion whether freedom of religion includes right to use loudspeaker wasnot in issue, the Court held that in India the use of loudspeaker assumed thestatus of Articles 19(1) and 25 of the Indian Constitution. The Court examinedwhether restriction put on the use of loudspeaker amounts to reasonablerestriction under Article 25(1) of the Constitution.'

The Environment (Protection) Rules, 1986, Schedule III — lays down ambient airquality standards in respect of noise to be observed in industrial area, commercialarea, residential area and silence zone. However, with the framing of Noise Pollution(Regulation and Control) Rules 2000, this part is impliedly repealed.

Supra n.5.

Supra n.24.

The Constitution of India, Art.25(1) reads : "subject to public order, morality andhealth and to the other provisions of this part, all persons are entitled to freedomof conscience and the right freely to profess, practice and propagate religion."

96 Cochin University Law Review 120031

The Court was of the view that since the right to religion under Article25 is subject to public order, morality and health, the noise caused byloudspeakers can be prohibited in the interest of health, since noise pollutionaffects health. The Court then discussed in detail the nexus between noise andhealth, and established that right to use loudspeaker for the purpose ofpracticing, professing or propagating religion can be reasonably restricted if itcauses noise pollution.

The Supreme Court was confronted with the task of balancing the rightto use loudspeaker and freedom of religion in Church of God Full Gospel inIndia v. K.K.R. Majestic Colony Welfare'''.

The subject matter before the Supreme Court was the noise pollutioncaused by the appellant church using loudspeaker, drums, and other soundproducing instruments, while reciting prayer. A single judge of the MadrasHigh Court directed the appellants to follow the guidelines issued in M.S.Appa Rao v. Govt. of Tamil Nadu" and to keep speakers at a lower level.

This decision was challenged before the Supreme Court as it is violativeof the right to profess and practice any religion, under Article 25 of theConstitution, and that the pollution is caused due to the plying of vehicle, notdue to the prayer by the church.

The Supreme Court rejected the contentions raised by the appellantchurch because the direction given by the learned judge to the authorities wasonly to follow the guidelines laid down in Appa Rao Is case decided by theDivision Bench of the same High Court on the basis of the legislations prevailingin Tamil Nadu. It is also held that it is in confirmity with the Noise Pollution(Regulation and Control) Rules, 2000 framed by the Central Government.

Supra n.19.

Supra n.17.


Responding to the contention with regard to the right under Article 25or Article 26 of the Constitution, the Court held that no religion prescribes orpreaches that prayers are required to be performed through noise amplifiersor by beating drums.

Thus it is interesting to see that, the courts seem to have kept aconsistency regarding the question whether fundamental freedom to religionshould be allowed to cause noise pollution. It may be noted that in Chairman,

Guruvayur Devaswom Managing Committee v. Supt. of Police, Thrissur'a Division Bench of the High Court of Kerala allowed the GuruvayurDevaswom to use horn type loud speaker in the premises of the temple. Thepolice officers had directed the managing committee to remove horn typeloudspeakers, based on a circular issued under section 18 of the Police Actwhich banned the use of horn type loudspeakers. The horn type loudspeakerswere banned based on the report submitted by the Kerala State PollutionControl Board that when compared to box type the horn type is less injuriousto health. This is in contradiction with the PA Jacob's direction that box typeloudspeakers may be used. However, in this case there was no discussionabout any fundamental right issues, such as whether the use of loudspeaker isapart of freedom of religion or whether while exercising this freedom, if thefreedom to not to hear of others is violated.

Conclusion

The higher courts in India have been constitutionalising the issue ofnoise pollution by making it a violation of right to life, freedom of speech andexpression etc. The outcome of this interpretation is that, the State is under anobligation to protect the subject from the menace of noise pollution, since thefreedom from noise pollution has assumed the status of a fundamental right.So the question is, how far the State has succeeded in its mission to combatthis menace.

40. A.I.R. 1998 Ker. 122.


The State has taken sufficient efforts to set enforcement machineries,legislations and rules in this regards. But the functions of enforcementmachineries overlap very much.

Under the Air (Prevention and Control of Pollution) Act, 1976, the

noise being one of the pollutants, the Pollution Control Board is empowered

to control noise pollution. The noise is also a pollutant under the EnvironmentProtection Act, 1986 and under the Noise Pollution (Regulation and Control)Rules, 2000 the enforcement authority is an authority, or officer authorized bythe Central Government, or the State Government in accordance with thelaws in force and includes a District Magistrate, Police Commissioner or anyother officer designated for the maintenance of the ambient air quality standardsin respect of noise.

Under Entry 89 of Schedule I of the Environment (Protection) Rules,the Department of Explosives is to ensure the implementation of the noise

standards of fire crackers.

Thus a multiplicity of enforcement machineries like the Police Officers,District Magistrate, the Pollution Control Board and the Department ofExplosives or even any other authority or person authorized by the Central/State Government are entrusted with the duty to contain the menace of noisepollution. Will this multiplicity defeat the purpose for which they are created,or will it make the eradication of this evil easier is the important question here.Despite the multiplicity of enforcement machinery, there is laxity on the part ofthese machineries; which results in making the existence of those bodies afarce. In almost all the cases discussed earlier, the courts were compelled todirect the Pollution Control Board or the appropriate authorities to take stepsto prevent noise pollution, while these bodies are legally bound to do it without

any instruction from any other body.

In Moulana Mufti Syed Md. Noorur Rehman Barkati v. State of

West Bengal' and Burrabazar Fire Works Dealers Association v.

41. Supra n.26.


Commissioner of Police, Calcutta,' the Calcutta High Court criticized theWest Bengal Pollution Control Board for not having followed its guidelines.,

Apart from that it is found that even in fixing the maximum allowablenoise limit, the executive joins hand with big shots and help them to add tonoise pollution legally by increasing the maximum allowable limit. For examplein Burrabazar Fire Works" the High Court held (which was approved bythe Supreme Court) that no person had a right to manufacture or sell fireworks that created sound beyond 65 decibels, which was the then ambientnoise level prescribed under the E.P. Act, 1986. The fire works dealerssuccessfully lobbied the Union Ministry of Environment and Forest to amendSchedule I to the Environment Protection Rules, by introducing statutory noisestandards for fire crackers that allow noise levels up to 125 decibels.'

These types of betrayals by the executive tend to weaken the legislativeas well as judicial efforts to curb the menace of noise pollution.

A perusal of the functions and powers of the Central and State PollutionControl Boards45 reveal that they are given ample power to control pollutionincluding noise pollution. The presence of a full time member secretary havingqualifications, knowledge and experience of scientific, engineering ormanagement aspects of pollution control makes it the most suitable body tohandle this problem since any other body or even the courts lack knowledgeabout the technical aspects of noise pollution.

Supra n.25.

Ibid.

Armin Rosen Cranz, Environmental Law and Policy in India, Oxford UniversityPress (2nd edn.-200 I), p.286.

As per the Air Act, the Central as well as the State Pollution Control Board are toexecute nationwide programme for prevention, control or abatement of airpollution. No person operating any industrial plant, in any air pollution controlarea shall discharge any air pollutant in excess of standard laid down by thestate board. Any person empowered by a Board also has the power to enter andinspect any place for the purpose of performing any of the function of the StateBoard.


But it may not be practical to approach the Pollution Control Boardeven for getting a sanction for the use of a loudspeaker. In such cases, asenvisaged by the various Police Acts and the noise rules, the Police Officersor the District Magistrate can perform that function, subject to consultationwith the Pollution Control Board and after reaching a consensus so that thereis no arbitrary exercise of this power by the police or District Magistrate.

The enthusiasm shown by the legislature or the judiciary in containingthe noise pollution which is a serious human rights issue will be of no use if theexecutive is lethargic, or is biased to the violators. So what is required is, arelentless enthusiasm and co-operation on the part of the three organs of theGovernment namely the executive, the legislature and the judiciary, so that thedream of pollution free environment, (including noise) which is essential forthe enjoyment of a natural and healthy life comes true.