Friday, January 27, 2023

The Call to Prayer

In a major judgment, the Allahabad High Court rejected UP’s stand that the azaan violates Covid guidelines. At the same time, it banned loudspeakers in mosques as not being an integral part of Islam. By Srishti Ojha

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The Allahabad High Court recently permitted the recital of azaan during the lockdown by a single person—muezzins from mosques in UP—without using loudspeakers. While the recital of the azaan is held to be an essential and integral part of Islam, doing so through loudspeakers and sound amplifying devices was not.

A bench of Justices Shashi Kant Gupta and Ajit Kumar gave this ruling while hearing a batch of petitions filed by an MP, Afzal Ansari, senior advocate and former law minister Salman Khurshid and senior advocate Wasim A Qadri against orders passed by the district magistrates (DMs) of Ghazipur, Farrukhabad and Hathras prohibiting the recital of azaan. They challenged these orders through letters and sought permission for its recital by using sound amplifying devices. The petitions said that the restrictions imposed were arbitrary and unconstitutional.

The letter written by Ansari to the chief justice of Allahabad High Court stated that from April 24, 2020, the local administration and police had prohibited azaan based on an oral order from the DM, Ghazipur, making people liable to be booked under the National Security Act. Ansari prayed for the protection of the rights of people and directions to the UP administration to allow azaan by one muezzin from the mosques of Ghazipur. Khurshid in his letter asked that Muslims in these three places be allowed to recite the azaan which is an integral part of Islam.

The counsel on behalf of the petitioners, Syed Safdar Ali Kazmi, told India Legal that banning the recitation of azaan in any district was not legal and the petitioners had expected the state to either withdraw the ban or deny its existence. Instead, it filed a counter affidavit, that too by the additional chief secretary, showing that it intended to defend the ban. “In terms of constitutional morality, the decision to impose the ban and then defend it was immoral on the part of the state, especially when the world is battling Covid-19. The ban on the eve of Ramzan was absurd as the recital of azaan continued harmlessly during the lockdown for almost a month. The timing has implications.” He said the use of loudspeakers was regulated by noise pollution rules. “Most of these mosques already have the permission that is required. In addition to that, a blanket ban was imposed to not recite azaan in any way,” he said.

The Court was faced with the task of deciding if any order forbidding or restricting Muslims from reciting the azaan using sound amplifying devices would violate Article 25 of the Constitution and guidelines laid down by the government to contain the spread of Covid-19.

According to the petitioners, azaan is a simple act of recitation by a single individual asking believers to offer namaz at their homes and it isn’t a “congressional practice”. It doesn’t violate any lockdown measure as it is carried out by a person who ordinarily resides in a mosque and acts as the caretaker there. Muslims throughout the country have willingly accepted the suspension of congregational prayer during the lockdown to help contain the spread of the coronavirus, they said.

However, according to the state government, azaan is a call of congregation, asking people to gather at the mosque and offer prayer, therefore violating the pandemic guidelines.

The Court rejected this contention and said: “We fail to understand as to how the recital of azaan by a single person in the mosque i.e. Muezzin/Imam 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.” The district administration has been asked to not stop people from reciting the azaan on this ground.

But the Court also rejected the petitioners’ contention that the use of loudspeakers forms an essential practice of Islam and requires protection under Article 25. It prohibited use of any amplifying devices between 10 pm and 6 am. Noise pollution rules mandate that loudspeakers can be used only after getting prior permission from the authorities, and even after that, they cannot be used at night. State governments can grant an exemption for 15 days during a festive occasion and allow use of loudspeakers till midnight, the Court said.

Further, it said that there was no reason why the azaan cannot be recited without amplification of sound. It said that it cannot be called an integral part of the religion as it was a recent practice and a result of development in technology. Neither was it developed by the Prophet nor has there been a religious order regarding it. The use of microphones and speakers takes away others’ right to sleep, read, speak, good health, etc., and causes noise pollution, the Court said. The right to freedom of religion is also subject to other factors like public order, morality and health, it said. Therefore, the use of loudspeakers cannot be protected under the right to religion as it infringes on the fundamental rights of other citizens.

Advocate Fuzail Ahmad of the Supreme Court welcomed the Allahabad High Court’s decision and told India Legal that in terms of the protection accorded by Article 25, the Court has ordered that azaan cannot be stopped by authorities even during the lockdown, but the use of loudspeakers had been disallowed unless permitted.

The Supreme Court has in the past decided multiple cases on this issue. In Church of God vs K.K.R. Majestic, it was held that there was no fundamental right to use loudspeakers under Article 19(1)(a) and their use contradicted noise pollution rules and violated the fundamental rights of other citizens as they were forced to listen to something they didn’t desire. No religion prescribes performing of prayers by disturbing the peace of others. In P.A. Jacob vs The Superintendent of Police, it was held that a person can’t be forced to hear what he doesn’t wish to. Right to speech also includes the right to listen, thereby implying freedom to choose what one wants to hear.

Advocate Sagar Shahani of the Bombay High Court said that this was an epoch-making judgment of the Allahabad High Court as it emphasises the importance of practising religion and simultaneously protects the environment for the general public. “Noise pollution beyond permissible limit is hazardous and violates the fundamental rights of citizens. The right to live in freedom from noise pollution is a fundamental right protected under Article 21. As Article 25(1) is not absolute and is subject to Article 19(1)(a) and both have to be construed harmoniously, the Court is correct to protect the integrity of religion and see that noise pollution rules are followed.”

The recital of the azaan and use of loudspeakers for religious reasons have long been debated and the judiciary has often intervened. In 2017, singer Sonu Nigam was slammed for his tweets which said that practices like using loudspeakers for azaan were forced religiousness.

While the freedom to practise one’s religion and express one’s opinion is everyone’s right, a balance needs to be struck. Mahatma Gandhi said: “Our ability to reach unity in diversity will be the beauty and the test of our civilisation.”

Lead Picture: UNI

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