The Allahabad High Court on Friday has allowed reciting of Azan by Muezzin from minarets of the Mosques by human voice without using any amplifying device and directed the administration not to cause hindrance in the same on the pretext of the Guidelines to contain the pandemic Covid19, unless such guidelines are being violated.
High Court also 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, which is even otherwise subject to public order, morality or health and to other provisions of part III of the Constitution of India.
A letter was written by Afzal Ansari, Member of Parliament (Lok Sabha), Ghazipur with a prayer that fundamental right to religion of the people atGhazipur may be protected and the State Administration maybe directed to permit recite the Azan by only one person“Muezzin” from the respective mosques of the DistrictGhazipur, since it does not violate any of the directives issued for controlling the threat of the spread of the Covid19, pandemic.
Salman Khurshid, Senior Advocate, SupremeCourt as well as Former Union Minister for Law & Justice,Govt. of India had by a letter on 28th April, 2020 approached the Allahabad High Court through Syed Mohd. Fazal, Advocate, seeking that Muslims at Farrukhabad and other districts such as Hathras and Ghazipur, in Uttar Pradesh, be permitted to recite Azan which, according to him, is an integral part of Islam and in no way undermines the society’s collective response to the pandemic.
A letter was written by S. Wasim A. Qadri, Senior Advocate seeking a similar relief with respect to District Ghazipur. Thereafter, Public InterestLitigation was filed by petitioner Afzal Ansari before the High Court, whereas the matter was heard by Allahabad High Court bench of Justice Shashi Kant Gupta and Justice Ajit Kumar. The Additional Advocate General appeared on behalf of the State of U.P.
The relief sought in the writ petition was that the 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.
Pleadings of the petitioner revealed that since 25th April 2020, month of Ramzan was being observed throughout the country, in this month, the entire Muslim Community all over the world observes fasting approximately from sunrise to sunset. The timing of beginning and concluding the daily fast was marked by the sound of the Azan and the practice of opening the fast by the sound of the Azan is an Islamic tradition prevailing since the time of Prophet and is being practiced for past 1400 years.
It was further pleaded by the petitioner that the pronouncement of Azan was not a congressional practice but was simply an act of recitation by a single individual, calling the believer to offer Namaz at their homes and therefore did not violate any of the conditions of the prevailing lockdown and reciting of Azan through loudspeakers five times a day is part of religious rights guaranteed under Article 25 of the Constitution of India. Any restriction or prohibition made with regard to recitation of Azan through loudspeaker would have to be declared unconstitutional.
In terms of the letter, addressed by Senior Advocate Salman Khurshid, which was treated as Public InterestLitigation, that reciting of Azan is a call for the five times prayers, particularly the morning Fajr which is also the beginning of roza fast as well as Maghrib which is the breaking of fast at sun set. It was further pleaded that there has never been any restriction on recitation of Azan by the use of loud speakers to call the faithful to prayer.
Additional Advocate General on behalf of state supported the facts mentioned in the Counter Affidavit filed on behalf of the State by Additional Chief Secretary (Home), Govt. of Uttar Pradesh. It has sought to be contended therein that Azan was a call for congregation to offer prayers at the Mosque and is therefore in violation of the Guidelines for containing the pandemic.
The main questions that raised before the High Court for adjudication in the writ petition were:
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?
2. Whether the recital of Azan by Muezzin/authorised person violates any of the orders or guidelines issued by the Government or administration or otherwise adversely impacts the containment measures of Covid 19 crisis?
Article 25 of the Constitution of India says-
Freedom of conscience and free profession,practice and propagation of religion
1. Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
2. Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus
Explanation- The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion
Allahabad High Court observations
Learned counsel for the petitioner has not been able to explain why, Azan cannot be offered without the use of sound amplifying devices.
Traditionally and according to the religious order, Azan has to be recited by the Imam or the person in charged of the Mosques through their own voice. 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, it cannot be denied that sound is one of the recognised modes of creating pollution and thus sound pollution by means of using loudspeakers, without prior permission of authority, as prescribed in law, has to be controlled.
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.
Thus, under no circumstances loud speakers or any public address system or musical system or sound amplifiers can be permitted to be used between 12.00 p.m. to 6.00 a.m. As according to Noise Pollution Rules, night hours have been fixed between 10. p.m. to 6 a.m.
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 ofIslam.
While dealing with the second issue, it was noted by the High Court that it was the categorical case of petitioners that Azan was simply a call to offer Namaaz and does not necessarily entail the people assembling at any mosque for the purposes of offering Namaaz.
-India Legal Bureau