Case BriefsCOVID 19High Courts

Allahabad High Court: A Division Bench of Shashi Kant Gupta and Ajit Kumar, JJ., while addressing a Public Interest Litigation held that,

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.”

Background

Member of Parliament (Lok Sabha), Afzal Ansari wrote a letter stating that fundamental right to religion of people at Ghazipur may be protected and State Administration may be directed to permit the recitation of Azan by only one person “Muezzin” from respective mosques of District Ghazipur, since it does not violate any of the directives issued in view of COVID-19 containment.

Senior Advocate of Supreme Court of India, Salman Khurshid also approached Allahabad High Court through Advocate Syed Mohd, Fazal to seek permission of recitation of Azan for the Muslims at Farrukhabad, Hathras, Ghazipur as Azan recitation is an integral part of Islam.

With the prayer of similar relief, Senior Advocate S. Wasim A. Qadri also wrote a letter.

In view of the above, a Public Interest Litigation was filed by Afzal Ansari .

Relief sought was that,

Muslims in the Districts Ghazipur and Farrukhabad, may be permitted to recite Azan through “Muezzin”, by using sound amplifying devices and the restrictions imposed by the administration are wholly arbitrary and unconstitutional since they do not, in any way, violate the guidelines issued for the containment of the pandemic.

Further it was submitted that pronouncement of Azan is not a congressional practice but is simply an act of recitation by a single individual which in no manner violates any of the conditions of lockdown.

Petitioner also added that caretaker of the Mosque is usually responsible for the recitation of Azan who resides in the mosque, in other cases person assigned the duty of recitation Azan is the closes available person, in both the stated cases, no violation of lockdown norms would be observed.

Also ban on Azan through sound amplifying devices is a violation of fundamental right under Article 25 of Constitution of India

Azan is integral to religion and in no way undermines the society’s collective response to the pandemic.

-Senior Advocate, Salman Khurshid

Additional Advocate General while appearing on behalf of the State, supported the Counter Affidavit filed by the Government, wherein it was submitted that, Azan is a call for congregation to offer prayers at the Mosque which clearly is a violation of COVID-19 guidelines.

A meeting was also convened by District Magistrate, Ghazipur on 24th march, 2020 which was attended by several religious leaders wherein it was decided that no religious activities will be conducted during the period of lockdown at any public place of worship and no loudspeakers/amplifiers would be used for the said purpose.

“In the new guidelines issued by Government in view of lockdown, it was stated that all religious places/places of worship shall be closed for public. Religious congregation strictly prohibited.”

Further it was submitted that,

During the period of lockdown with cooperation of religious groups no loud speakers/amplifiers have been used during the festivals like Navratri, Ram Navmi, Hanuman Jayanti and Parasu Ram Jayanti. People of different religions have been following the guidelines and no religious activities are being carried out at any religious place of worship or public place, and no loudspeakers have been used since 24.03.2020

Additional Advocate General 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. Rule 5 of The Noise Pollution (Regulation and Control) Rules, 2000 also states that a loud speaker or a public address system shall not be used except after obtaining written permission from the authority.

Bench Analysis & Decision

While referred to the decision of Calcutta High Court in Moulana Mufti Syed Mohammed Noorur Rehman Barkati v. State of W.B.,wherein it was held that,

use of microphone and loud­speakers were not an essential and an integral part of Azan.

There is catena of judicial decisions which recognizes the right to live in freedom from noise pollution as a fundamental right protected by Article 21 of the Constitution of India. Noise pollution beyond permissible limit is hazardous which violates the fundamental rights of citizens.

In the Supreme Court decision of Church of God (Full Gospel) in India v. K.K.R. Majestic, (2000) 7 SCC 282, it was held that

“No religion prescribes that prayers should be performed by disturbing the peace of others nor does it preach that they should be through voice amplifiers or beating of drums.”

Court also observed the fact that petitioner’s counsel could not explain why the Azan could not be offered without the use of amplifying devices.

There is no such religious order which prescribes that Azan can be recited only through loud­speakers or by any amplifiers. Azan is certainly an essential and integral part of Islam but use of microphone and loud­speakers is not an essential and an integral part thereof.

Thus, Court for the above also stated that Right to religion by no stretch of imagination, ought to be practised, professed and propagated saying that microphone has become an essential part of the religion.

Azan may be an essential and integral part of Islam but recitation of Azan through loud­speakers 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.

Another point of significance to be noted is that, 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.

Hence it is ruled that while the right to offer Azan by voice, without the use of sound amplifying devices is a right protected under Article 25 of the Constitution. However, the right to recite Azan though sound amplifying devices is not protected under Article 25, since it is not an integral part of Islam.

Further, the Court stated that,

Azan can be recited by Muezzin from minarets of the Mosques by human voice without using any amplifying device and the administration is directed not to cause hindrance in the same on the pretext of the Guidelines to contain the pandemic­ Covid­-19.

With the above observations, PIL stands disposed of. [Afzal Ansari v. State of U.P., 2020 SCC OnLine All 592 , decided on 15-05-2020]

Kerala High Court
Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of Shaji P. Chaly andM.R. Anitha, JJ., addressed a PIL with regard to issue of facilitating journey of persons stranded at Walayar Check-Post.

It has ben stated that, certain persons were stranded at Walayar Check-Post on 9th May, 2020 which is an entry point provided by the Kerala Government to permit interstate entry to people outside the State of Kerala.

Further the case put forth by the petitioners was that, even though the persons traveling had secured passes from the State of Karnataka and the State of Tamil Nadu, they could not secure passes from the State Government online since the platform offered by the State Government was not properly functional. Group of people included pregnant women, children, students, senior citizens and people with medical illnesses.

It is also submitted that even though the group of people tried their best to cross the border of the State of Kerala, the State officials did not permit them and they were even denied the basic amenities as is contemplated in the Government Order dated 2.5.2020 issued on the basis of the order of the Ministry of Home Affairs.

State Government submitted that, it is strictly adhering to the directives, orders and advisories issued by the Government of India and there is no manner of laches on the part of the Government in complying with the regulations and the guidelines issued for the purpose.

After assimilating the pros and cons and the facts and figures, Court is of the opinion that ,

every citizen of India has the fundamental right to travel throughout the territory of India and settle in any part of the territory of India by virtue of Article 19(1) (d) and (e) of the Constitution of India. However the State is at liberty to impose reasonable restrictions under clause (5) of Article 19.

In the present situation, attempts of the Governments are to contain the pandemic from being spread in an unprecedented and uncontrollable level to protect the interest of the general public and the nation as such.

Thus, looking at that angle it cannot be said that the action of the State officials not permitting the inter-state movement of the people in question is illegal or bad.

Hence Court is also conscious of the fact that there are clear parameters that, a person securing a pass from the host Government can start travel only after receiving the travel permit from the Kerala Government and the local authority of the person’s location to avoid any problem.

Additional Advocate General submitted that directions will be issued to the officials as a special case to issue passes and permit the people stranded at Walayar on 9.5.2020, who are presently accommodated in the guesthouse of the Tamil Nadu Government in Coimbatore, to cross the border.

Court also stated that, all those persons who are crossing the border in accordance with the passes so issued shall strictly adhere to the order and guidelines specified by State Government.

State Government is directed to ensure that basic facilities are provided to the persons reaching the entry points.

Another issue the Court considered was with persons stranded at Malahalla, for which the bench stated that,

even though Malahalla is not an entry point to receive the stranded persons, since it is submitted that 13 students are stranded there, which is also a forest area having presence of wild animals, the respondents shall adequately attend to the said matter so as to avoid any inconvenient situation.

Hence, in view of the above, matter to be posted on 12-5-2020. [Harish Vasudevan v. State of Kerala, 2020 SCC OnLine Bom 635  , decided on 10-05-2020]