“Until and unless there is a license/permission from the authorities concerned under the Noise Pollution Rules, under no circumstances, Azan can be recited through any sound amplifying devices. In case Azan is being recited through aforesaid means, it will be violative of provisions contained under the Noise Pollution Rules and strict action is liable to be taken against the persons violating such Rules, in accordance with law.No one has got the right to make other persons captive listeners.“
Holding that recital of Azan was an integral part of the Islamic religion, the Allahabad High Court today allowed the Muezzins of various mosques in the state to recite the Azan, even amidst lockdown.
Howeverstrictlyobserving against the use of microphones the bench of Justices Shashi Kant Gupta and Ajit Kumar ,
“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,” the bench of Justices Shashi Kant Gupta and Ajit Kumar has held.
The observation has been made in a batch of PILs filed before the High Court against orders restricting recital of Azan during the lockdown. The Petitioners, MP Afzal Ansari, Former Union Law Minister and Senior Advocate Salman Khurshid and Senior Advocate S. Wasim A. Qadri, had sought permissionfor recital Azan through “Muezzin”, by using sound amplifying devices.
Petitioners’ Arguments highlighting Azan
The petitoner’sprimary contention was that the restrictions imposed on the recital of Azan were wholly “arbitrary and unconstitutional”.
It stated, “Ban on Azan through sound amplifying device is violative of fundamental right as provided under Article 25 of the Constitution of India, as reciting Azan is an essential religious practice.“
It was submitting that pronouncement of Azan is “not a congressional practice”, the petitioner added thatit is simply an act of recitation by a single individual, calling the believer to offer Namaz at their homes and hence it does not violate any of the conditions of the prevailing lockdown.
It was further submitted that Azan is mostly given by a person who is the caretaker of the Mosque and hence ordinarily residing in the Mosque. If theduty is assigned the duty to another person it is usually closest available person who can recite Azan. Therefore, in both the cases there is no violation of the lockdown norms by any individual who is reciting Azan in the Mosque.
Senior Advocate Salman Khurshid also informed the court that the local police and administration had pasted “unsigned notices” on the entrances of several mosques in Farrukhabad, and all attempts to seek redressal from the District Administration had been in vain.
State’s Arguments
The State on the other hand contended that Azan is a call for congregation to offer prayers at the Mosque and is therefore in violation issued by the Guidelines.
It stated, “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.“
The allegations of pasting unsigned notices were denied by the Government as they submitted that the mosques were voluntarily not pronouncing Azan since March 24, 2020 no restraint order or direction had been issued
The Government had also contended that reciting Azan was contrary to Rule 5 of the Noise Pollution (Regulation and Control) Rules, 2000 according to which loud speaker or a public address system could not be used except after obtaining written permission from the authority.
Findings
The court rendered its judgment by answering two questions:
(1) Whether any order prohibiting or restricting the recitation of Azan, through sound amplifying devices, is violative of the Article 25 of the Constitution?
While referring to the apex court in Church of God (Full Gospel) in India v. KKR Majestic, (2000) 7 SCC 282, it held that recital of Azan is an integral part of Islam, subject to reasonable restrictions.
The Supreme Court had held in the said case,
“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.“
Relying on this the High Court held,
“Azan may be an essential and integral part of Islam but recitation of Azan through loud-speakers or other sound amplifying devices cannot be said to be an integral part of the religion warranting protection of the fundamental right enshrined under Article 25 of the Constitution of India, which is even otherwise subject to public order, morality or health and to other provisions of part III of the Constitution of India. Thus, it cannot be said that a citizen should be coerced to hear anything which he does not like or which he does not require since it amounts to taking away the fundamental right of other persons.“
A similar finding was also rendered by the Calcutta High Court while deciding the question of using sound amplifying devices for reciting Azan, in the case of Moulana Mufti Syed Mohammed Noorur Rehman Barkati&Ors. v. State of West Bengal &Ors., MANU/WB/0211/1998.
The division bench noted thatmicrophones did not exist at the time of Prophet Muhammad and was a gift of the technological age. Hence, it was held that the use of microphone for reciting Azan through microphones was not essential.
It held, “It will be not out of place to mention that in the past, during old days when the loud-speaker was not invented, Azan used to be given by human voice. The use of microphone is a practice developed by someone and not by the Prophet or his main disciples, and which was not there in the past, and that the microphone is of recent origin and accordingly it could not be said that the use of microphone and loud-speaker is essential and integral part of the Azan.“
Observing that as per the Noise Pollution Rules loudspeakers could not be used except without requisite permission the court held,
“In the present case, there is no averment in the writ petition that any permission has been sought by the concerned persons to recite the Azan through loudspeakers or any public address system. Therefore, until and unless there is a license/permission from the authorities concerned under the Noise Pollution Rules, under no circumstances, Azan can be recited through any sound amplifying devices. In case Azan is being recited through aforesaid means, it will be violative of provisions contained under the Noise Pollution Rules and strict action is liable to be taken against the persons violating such Rules, in accordance with law.“
(2) Whether the recital of Azan by Muezzin/authorized person violates any of the orders issued by the Government for containment of Covid19 crisis?
The court held that as the Government could not explain how reciting Azan merely through human voice can be violative of any provision of law or any guidelines the is valid.
The court held, “We fail to understand as to how the recital of Azan by a single person in the mosque i.e. Muezzin/Imaam or any other authorised person, through human voice without using any amplifying device, asking the Muslims to offer prayer and that too without inviting them to the mosque, can be violative of any guidelines. Merely reciting of Azan from the mosque through human voice does not cause any health hazards to any person of the society.“
It was thus held that Azan can be recited by Muezzin from minarets of the Mosques without using any amplifying device. The court also directed the administration not to cause hindrance in the same.
Case Details:
Case Title: Afzal Ansari &Ors. v. State of UP &Ors.
Case No.: PIL No. 570/2020
Quorum: Justice Shashi Kant Gupta and Justice Ajit Kumar
Appearance: Advocates Syed Safdar Ali Kazmi and Fazal Hasnain (for Petitioners); Additional Advocate General Manish Goel (for State).
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