- Apprentice Lawyer
- Legal Jobs
The piece tries to clear the air around the recent judgement of the Allahabad High Court
The recent Allahabad High Court judgment on Azaan was widely discussed and reported. As is the usual practice, especially on issues like this, the reporting was half-baked and uninformed. The common perception pushed in was that the judgment bans the use of loudspeakers for Azaan.
Going by this impression,the judgment has created a considerable amount of confusion and anxiety in sections of the Muslim community who see it as another assault on their identity and their freedom of religion in our country. It is necessary to clear the air surrounding the controversy.
The case arose out of letters written by Lok Sabha MP from Ghazipur, Afzal Ansari; Senior Advocate Wasim Qadri, on behalf of Ghazipur; and Senior Advocate and Congress leader, Salman Khurshid, on behalf of Farrukhabad. The letters stated that the police and the district administration were not allowing pronouncement of Azaan citing it as a violation of the lockdown guidelines which are in place since the outbreak of COVID-19.
The petitioners requested the Court to stop the government from prohibiting Azaan as it had no causal relation with the spread of the pandemic nor was it prohibited under the various orders of the Centre. The government, however, argued that reciting of the Azaan could have the effect of congregating people in Masjids which could lead to a violation of the lockdown. Therefore, the only short question before the Court was whether the prohibition on Azaan in the absence of any formal order was justified on the pretext of containing COVID-19.
It is a fact that the Muslim community has been observing all the regulations of the lockdown, especially in relation to religious congregations. Muslim community leaders and clerics from across the country have all been forthcoming in support of the lockdown and have time and again ordered Muslims to offer Namaaz in their homes and not gather in Masjids even on festive occasions.
It is also relevant to note that the purpose of Azaan in Islam is dual: first, to call the faithful to the Masjid and second, to inform them of the time for namaaz which keeps on changing during the day. In a time like this, when Muslims have given up going to Masjids for Namaaz following the advice of community leaders and the government, the purpose served by the Azaan is only to notify people about the time of prayer. A huge section of the Muslim population is wholly reliant on the Azaan to know the time of prayer and the time of starting and breaking the fast (Sehri and Iftaar) in the currently ongoing month of Ramzaan.
Therefore, noting that the Azaan was being recited without inviting people to Masjids, the High Court held that the mere recital without use of loudspeakers cannot be prohibited under the guise of the guidelines to contain COVID-19. It held that the Muezzins (the one who recites the Azaan) can individually pronounce Azaan from the minaret of the Masjid, but the same could be done using loudspeaker only if the Masjid had permission under the Noise Pollution Rules.
Having held this, the Court engaged in unnecessary judicial activism in holding that while Azaan was integral to Islam, the use of loudspeakers for Azaan was not integral to Islam. This additional enquiry was avoidable and wholly unnecessary.
The use of loudspeakers and public address systems by anyone including Masjids is permitted under the Noise Pollution (Regulation and Control) Rules, 2000 (Rule 5). The only condition is that prior written permission must be taken from the government authorities. The Rules also further provide the sound decibel levels that are permitted to be used by loudspeakers in specified categories of public places. When the use of loudspeakers by Masjids is allowed (subject to permission) by the Rules, the question of essentiality is irrelevant and unnecessary. An enquiry into the essentiality of Azaan via loudspeakers would have been necessary to check if a law violated the freedom of religion under Article 25, only if there was a law or order which prohibited the use of loudspeakers.
On the contrary, in the present case, the prohibition of using loudspeakers was being enforced in the absence of any law or order, but under the guise of enforcing COVID-19 guidelines. The various orders of the Central government and UP government under the Epidemic Diseases Act and the Disaster Management Act in this regard only ordered the closing down of religious places for public and prohibiting religious congregations.
None of the orders prohibited the use of loudspeakers or the complete closure of all religious places. In fact, the daily namaaz, puja, aarti, are being carried out even during the lockdown by Pandits or Imaams and the staff for upkeep and maintenance of the relevant religious place. Furthermore, the fact that the entire essentiality part is itself being re-looked by a 9-judge Bench of the Supreme Court should have been kept in mind before embarking upon that enquiry.
However, as reports of Azaan on loudspeakers being stopped by the police administrations are coming from across the country, it is important to highlight that the judgment does not ban the use of loudspeakers. The only restriction on the use of loudspeakers is that it should be in compliance of Rule 5. This is significant as there have also been reports of authorities refusing permission because the Masjid fell in a mixed area where people of other religions also lived. Not only are such considerations not provided for under the Rules, but they are also absurd as India is a densely populated plural country where people of many religions live together.
Another aspect of the Allahabad High Court judgment which is critical and is independent of the present situation regarding COVID-19, is regarding the use of loudspeakers during night-time (between 10 PM – 6 AM). This is especially crucial for Muslims, as the first Azaan of the day (Fajr) could happen as early as 4 AM depending on the time of sunrise. However, the Rules do not permit the use of loudspeakers during night-time except with a special permission which can only be given for a maximum of 15 days in one calendar year during festivals.
This provision is seemingly to accommodate festive occasions of various religions like Jagran, Navratri, Ganesh Chaturthi, Diwali, Urs, Muharram, holy nights for Muslims like Shab-e-Barat and Shab-e-Meraj etc. where the celebrations are marked by Bhajans, Aartis, sermons, Qawwalis, and music on loudspeakers which go on for long hours late into the night. This provision also covers musical concerts, wedding parties and other similar processions which are accompanied with loud music on music systems.
If festive and cultural occasions which are huge contributors to noise pollution are covered, it makes no sense to not accommodate one Fajr Azaan, which even though falls during night-time, would last only for 2-3 minutes and relatively have very less impact on noise pollution.
The Centre should consider amending the rules suitably to accommodate the Fajr Azaan as an expression of religious freedom of Muslims all over the country. To make provision for night-time permissions for special occasions for festivals while excluding daily religious practices with hardly comparable noise pollution is unreasonable and would arguably attract a challenge on grounds of equality and freedom of religion.
Lastly, in a deeply religious country like India where public expression of religion is the norm, the use of loudspeakers by religious places and during religious functions is commonplace. Therefore, singling out one practice of only one community is dangerous and must be avoided. On the other hand, contributors to noise pollution are many; it is an issue where everyone contributes and everyone is affected. A uniform, unbiased approach must be adopted to deal with noise pollution without targeting any specific community.
It is common knowledge that the provisions of the Noise Pollution Rules are hardly enforced. In many public events, including festivals, the use of loudspeakers, firecrackers and other noise pollution creating objects is carried out without much objection from the public or hindrance from the authorities. While regulations are necessary, a short Azaan which lasts only 2-3 minutes at a time, occupying a maximum of 10-15 minutes in a day, within the prescribed limits, must rather be celebrated as a mark of the plural traditions of our country.
The author is an advocate practising at the High Court of Gujarat. Views are personal.