Loudspeaker use in mosques not a fundamental right – Judiciary Exam

HC Stated –

“Azan is certainly an essential and integral part of Islam but use of microphone and loud-speakers is not an essential and an integral part thereof… Azan can be recited by Muezzin from minarets of the Mosques by human voice without using any amplifying device and such recitation cannot be hindered with under the pretext of violation of the Guidelines issued by the State, to contain the pandemic- Covid19,”

Main question that arises

From the facts mentioned above, the main questions that arise for adjudication in the present writ petition are:
1. 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?
With respect to first issue, the main argument of the petitioners is that they cannot be prohibited or restricted from reciting Azan through by the use of loundspeakers/microphones since offering Azan through sound amplifying devices is an integral part of Islam and the prohibitions/restrictions, sought to be imposed in this regard, impede their fundamental right under Article 25 of the Constitution of India to profess, practice, and propagate the religion of Islam.
It has been submitted by the learned counsel for the petitioners that Azan was introduced by Prophet Muhammad. It was recited by a person from mosque in a loud voice but by passage of time, it was felt that a system was required to be introduced to invite the Believers in Islam to the congregational prayers by reciting Azan five times a day through a sound amplifying instrument, since on account of increase in population, It was not possible for the Azan to reach all believers of Islam. Therefore, reciting of Azan through loudspeakers five times a day is part of religious rights guaranteed under Article 25 of the Constitution of India.

Government’s Argument-

Per contra, learned Sri Manish Goyal, Additional Advocate General has stated that right contained under Article 25 of the Constitution of India is subject to public order, morality, health and Part III of the Constitution of India.
He also very specifically referred to rule 5 of The Noise Pollution (Regulation and Control) Rules, 2000 (in short “Noise Pollution Rules”) which states that a loud speaker or a public address system shall not be used except after obtaining written permission from the authority.
HC State –
16. The argument made by the learned counsel for the petitioner is totally misconceived and has no basis.
We proceed to deal with this issue in detail. At this stage, it will be relevant to quote Article 25 as well as Article 19 (1)(2)
the issue of the use of sound amplifying devices for amplifying human voice and other sounds while offering daily pujas by a Hindu Organization arose before the Calcutta High Court in the case of Om Birangana Religious Society Vs. The State and Ors.,
“15. It is well-settled that the right to propagate one’s religion means the right to communicate a person’s belief to another or to expose the tenets of that faith. The question is whether the right to propagate religion includes the right to use loud-speakers and microphones for the purpose of chanting religious tenets or religious texts and/or the indiscriminate use of microphones or loud-speakers during religious performance in the society. …
17. There cannot be any dispute that sound is a known source of pollution. The adverse and ill effect of sound on human body is also known. It has a tremendous impact on the nervous system of human being
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.”
Subsequently, the issue of using sound amplifying devices for the purposes of reciting Azan was specifically dealt with by the Calcutta High Court in the case of MoulanaMufti Syed Mohammed NoorurRehman Barkati and Ors. Vs. State of West Bengal and Ors. –
After detailed discussions the Calcutta High Court while recognizing that Azan was certainly an essential part of Islam, held that the use of microphone and loudspeakers were not an essential and an integral part of Azan.
The Apex Court in the case of Church of God (Full Gospel) in India Vs. K.K.R. Majestic reported in (2000) 7 SCC 282 has held as follows:
“no religion or religious sect can claim that the use of loudspeakers or similar instruments for prayers or for worship or for celebrating religious festivals is an essential part of the religion which is protected under Article 25. We hold that there is no fundamental right to use loudspeakers or similar instruments under Article 19(1)(a) of the Constitution. On the contrary, the use of such instruments contrary to the Noise Pollution Rules will be a violation of fundamental rights of citizens under Article 21 of the Constitution as well as fundamental right of citizens of not being forced to listen something which they do not desire to listen”

HC also Held that –

A citizen has a right to leisure, right to sleep, right not to hear and right to remain silent. He has also the right to read and speak with others.
Use of microphones certainly takes away the right of the citizens to speak with others, their right to read or think or the right to sleep.
There may be heart patients or patients suffering from nervous disorder and they may be compelled to bear this serious impact of sound pollution which has had an adverse effect on them. It may create health problems.
No person has right to take away the right of others. There is no religious freedom in this country except the provisions of Art. 25 of the Constitution which is subject to public order, morality and health and other provisions of part III including Art. 19(1)(a) of the Constitution of India.
Freedom of religion is subject to others’ right as guaranteed under Article 19(1)(a) of the Constitution, namely, religious freedom cannot abridge or take away or suspend others’ right under Article 19(1)(a) regarding their freedom of speech and expression. Use of loudspeakers is not an integral part of Azan or necessary for making Azan effective.