Author: Rintu Mariam Biju
Publication: Bar and Bench
Date:  May 15, 2020
URL:      https://www.barandbench.com/news/litigation/reciting-azaan-through-sound-amplifying-devices-not-an-integral-part-of-islam-not-protected-under-article-25-of-constitution-allahabad-hc?utm_source=one-signal&utm_medium=push-notification

The Allahabad High Court today held that Azaan (Islamic call to prayer) can be recited by a Muezzin without using any amplifying devices. The Court also held that playing Azaan through sound amplifying devices is not protected under Article 25 of the Constitution.
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Bar & Bench @barandbench
Replying to @barandbench
Holding that recital of Azaan is an integral part of the Islamic religion, the Court directed the administration to refrain from causing any hindrance under the pretext of COVID-19 guideline violations. #COVID #Covid_19 #covid1948 #azaan

Bar & Bench @barandbench
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.#COVID #Covid_19 #covid1948 #azaan
3:42 PM - May 15, 2020
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Holding that recital of Azaan is an integral part of the Islamic religion, the Court directed the administration to refrain from causing any hindrance to the same under the pretext of COVID-19 guideline violations.

The order states,

"Therefore, it is 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."
- Allahabad High Court

The order passed by a Division Bench of Justices Shashi Kant Gupta and Ajit Kumar states,

"Therefore, 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. In case Azan is being recited through aforesaid means, it will be violative of provisions contained under the Noise Pollution Rules and strict action is liable to be taken against the persons violating such Rules, in accordance with law."
- Allahabad High Court

The Court made the above observations while dealing with a batch of PILs and letter petitions challenging the district administration's orders restricting recital of Azaan during the COVID-19 lockdown.

The petitioners include MP Afzal Ansari, former Union Law Minister and Senior Advocate Salman Khurshid, and Senior Advocate S Wasim A Qadri. They had sought permission to recite Azaan through "Muezzin", by using sound amplifying devices, stating that the same is an integral part of Islam.

The order was reserved on May 5.

Arguments raised by parties

The petitioners' counsel Syed Safdar Ali Kazmi contended that the ban on Azaan through sound amplifying devices was violative of Article 25 of the Constitution of India, as reciting Azaan is an essential religious practice. Moreover, the same is arbitrary and unconstitutional, it was pointed out.

It was further pleaded that in case any such congressional prayer is organized at any Mosque in violation of social distancing guidelines, the same would be illegal and stopped by the authorities.

However, in the present case, the pronouncement of Azaan is not a congressional practice, but simply an act of recitation by a single individual, calling believers to offer Namaz at their homes. Therefore, it was argued that Azaan is not in violation of the lockdown conditions.

Appearing for the State, Additional Advocate General Manish Goyal countered by arguing that Azaan is a call for congregation to offer prayers at the Mosque, and is therefore in violation of the guidelines for containing the pandemic.

It was additionally contended that recital of Azaan was contrary to Rule 5 of the Noise Pollution (Regulation and Control) Rules, 2000, which states that a loud speaker or a public address system shall not be used except after obtaining written permission from the concerned authority.

What the High Court held

Taking note of the various arguments of both parties, the Court first identified two main questions of law to be decided in the matter:

* 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?

* 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 Covid19 crisis?

On the first issue, after referring to a catena of judicial decisions, the Court 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. Thus, it cannot be said that a citizen should be coerced to hear anything which he does not like or which he does not require since it amounts to taking away the fundamental right of other persons."
- Allahabad High Court

Moreover, the Court held that the counsel for the petitioner was not able to explain why Azaan could not be offered without the use of sound amplifying devices.

"It will be not out of place to mention that in the past, during old days when the loudspeaker was not invented, Azan used to be given by human voice. The use of microphone is a practice developed by someone and not by the Prophet or his main disciples, and which was not there in the past, and that the microphone is of recent origin and accordingly it could not be said that the use of microphone and loudspeaker is essential and integral part of the Azan."

Concurring with State's contention, the Court further held that loudspeakers cannot be used except with requisite permission of the authorities as per the Noise Pollution Rules.

On the second question, the Court held that the State had not been able to show how the recitation of Azaan merely through human voice can be violative of any provision of law or any guidelines issued in view of the COVID-19 pandemic.

"We fail to understand as to how the recital of Azan by a single person in the mosque i.e. Muezzin/Imaam 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. Merely reciting of Azan from the mosque through human voice does not cause any health hazards to any person of the society."
- Allahabad High Court

With these observations, the Allahabad High Court proceeded to hold that Azaan can be recited by the Muezzin from minarets of the Mosques by human voice, without usage of any amplifying device.

Additionally, the administration was directed to refrain from causing any hindrance to the same on the pretext of the COVID-19 lockdown guidelines.

[Read the order]

https://images.assettype.com/barandbench/2020-05/2d81dd35-8472-49fe-b9d3-98c457bf0cc9/Allahadbad_HC___Azaan_order.pdf