Free to pray v/s free to speak?


Our Constitution guarantees us freedom of speech and expression, but sometimes, in practice, it can hurt others. Yet, how justified would we be in clamping down on our freedom, asks Gajanan Khergamker.

Freedom of religion isn’t just about assertion. Sadly, the constitutional freedom is often scrutinised in public fora where its legality is measured against another constitutional freedom, that of speech and expression.

That Indian playback singer Sonu Nigam’s public tweet deploring the use of loudspeakers for azaan by mosques, loud aartis in temples and gurudwaras was met with incensed rage by irate Muslims, was a given. Much on the same lines was expected from the liberal ‘fence-sitters’!

The legal position
The legal position on the use of loudspeakers by mosques, churches, temples, political parties, private parties et al., in Mumbai, is clear as crystal. After the Bombay High Court directed the civic body BMC (Brihanmumbai Municipal Corporation) to demarcate the ‘silence zones’ in 2009, the same were notified for Mumbai city; boards announcing the same were put up at each location.

The civic body also uploaded maps that identified 1,503 silence zones, which comprise areas within a 100-metre radius around hospitals, educational and religious institutions. A division bench of the Bombay High Court comprising Justice Abhay Oka and Justice Ahmed Sayed said citizens can claim compensation if their complaints about noise pollution are ignored by enforcement authorities.

Now, by the logic and the letter of the law, it is clear that all religious institutions in Mumbai are categorised as silence zones, and have to abide by noise pollution rules. Sonu Nigam’s tweets in the public domain and within social media, were construed as attempts to wedge disruption in ‘the peace’, which is actually a convenient nod to the ‘anomaly in law’, the extraneous use of loudspeakers in a mosque or any other religious institution being outright illegal.

Syed Sha Atef Ali Al Quaderi, Vice President, West Bengal Minority United Council as quoted in a report is alleged to have saidd, “If anyone can shave his hair, put a garland of old torn shoes around his neck and tour him around the country, I personally announce an award of Rs. 10 lakh for that person. I would have reacted the same way if one had talked ill about the sound of bells coming from a temple as well. If we all become so intolerant about each other’s religions, we will soon have a bunch of atheists in our country. People like Nigam should be driven out of the country.”

A curb on freedom?
Now, that squarely comprises an attempt to curb one’s (Sonu Nigam’s) freedom of speech and expression as guaranteed by Article 19 of the Indian Constitution. However, few would, at this point of time, stand by Nigam’s right to freedom of speech and expression.

The azaan summons the faithful to peace and tranquillity, but when made through loudspeakers, turns into a cause of concern. A Navi Mumbai resident Santosh Pachalag had earlier petitioned the Bombay High Court in 2014, through a Public Interest Litigation (PIL) against the ‘illegal use of loudspeakers’ by mosques in his area.

An RTI (Right to Information) plea revealed that 45 of 49 mosques in the area didn’t have permission to use loudspeakers, and on the petition, the Bombay High Court directed the police to remove ‘illegal’ loudspeakers from mosques. Also, in a heart-warming gesture, many in the Muslim community too welcomed the verdict. Several religious institutions, in violation of the Noise Pollution (Control and Regulation) Rules, 2000, have used loudspeakers much above the permissible decibel levels (50 dB during day and 40 dB at night for silence zones, and 55 dB during day and 45 dB at night for residential areas).

Earlier, in 2005, the Supreme Court had issued guidelines that included restrictions on the use of loudspeakers in public spaces at night to bring down the decibel levels. The then Chief Justice of India R.C. Lahoti who headed the bench, banned the use of loudspeakers between 2200 and 0600 hours in public spaces. The court also issued guidelines to the police on how the same should be implemented.

The guidelines included restrictions on the use of loudspeakers in public spaces and norms for the use of high-volume sound systems, generators and vehicles. There was a ban on the use of noisy firecrackers late at night during festivals like Diwali, and a ban on using loudspeakers between 10 pm and 6 am.

The CJI, writing for the bench, also said the decibel level of megaphones or public address systems should “not exceed 10 dB (A) above the ambient noise standards for the area, or 75 dB (A), whichever is lower.”

In Om Birangana Religious Society … vs The State And Ors. on 1st April, 1996, Judge Bhagabati Prosad Banerjee had elaborated, “So far as right of religious organisations to use loudspeaker or amplifier is concerned, that right is not an independent right under Article 25 of the Constitution of India. Article 25(1) of the Constitution of India provides that subject to public order, morality and health and to the other provisions of this part, all persons and equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.”

“It is a matter to consider whether the public are captive audience or listeners when permission is given for using loud-speakers in public and the person who is otherwise unwilling to bear the sound and/or the music or the communication made by the loud-speakers, but he is compelled to tolerate all these things against his will and health. If permission is granted to use microphones at a louder voice, such a course of action takes away the rights of a citizen to speak with others, the right to read or the right to know and the right to sleep and rest or to think any matter.”

The judgment clearly details the reach of freedom of speech and expression as guaranteed under Article 19(1) (a) of the Constitution of India, which is invoked each time one resists noise or cacophony generated for religious, personal, professional or political reasons.

Judge Banerjee said, “Freedom of Speech and Expression includes, by necessary implication, freedom not to listen and/or to remain silent. One cannot exercise his right at the cost and in total deprivation of others’ rights. A right cannot be conferred by the authorities concerned upon a person or a religious organisation to exercise their rights suspending and/or taking away the rights of others.”

The freedom of speech and expression isn’t absolute. Article 19 of the Indian Constitution in the very next clause maintains that nothing shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

Concurrently, Article 15 of the Indian Constitution prohibits discrimination of any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them. It also maintains: No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to:

  • Access to shops, public restaurants, hotels and places of public entertainment; and
  • The use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of state funds or dedicated to the use of the general public.
  • Practicing religion or the act of propagating it should not, however, affect “public order, morality and health.” The Article doesn’t put any restriction on the government when it comes to making any law to regulate “economic, financial, political or other secular” activities, which may be associated with religious practice.

    To strike a balance between the two in India, is like doing a tightrope walk, for this government, the next or any other.

    Gajanan Khergamker

    Gajanan Khergamker is an independent Editor, Solicitor and Film-maker. He is the founder of the International Think Tank DraftCraft.