By Astha Upadhyaya and Anant Sangal
This is the first part in the 2-part post titled “Tiptoeing Religious Freedom in India”.
On 15th May 2020, a two-judge bench of the Allahabad High Court (‘Court’) issued its judgment in Afzal Ansari & Ors. v. State of Uttar Pradesh & Ors.[1] (Civil Misc. Writ Petition PIL No. 570/2020). The petitioner (a Member of Parliament, Lok Sabha from the Ghazipur constituency of Uttar Pradesh) argued that the Moazzin of the local mosque should be allowed to recite the daily Azan (which, the local administration did not allow[2]) as it does not violate the Government Orders (‘GO’) issued in light of the pandemic. The GOs prohibited any kind of ‘congregation’ at religious places as it would enhance the chances of spreading of the pandemic.[3] The petitioner’s claim was that recitation of Azan does not result in any violation of the public health norms issued[4] by the Union Ministry for Home Affairs[5].
The petitioner’s lone claim was that recitation of Azan is an essential part of Islam and must be declared so, so that the restrictions imposed on its recital by the local administration in various districts of Uttar Pradesh are not saved by Article 25. Azan is defined as the Muslim call to ritual prayer which is to be performed five fixed times in a day. This call is made by a Muezzin, who resides in a mosque itself, from the minaret of a mosque. The Court’s ruling is confounding. Although the Court held that Azan is an essential part of Islam (without dealing with that question at any point in its decision), it also held that usage of loudspeakers can take place only with due permission from the local administration given the ‘health hazards’ attached to it. Based on the health hazards issue attached, the Court therefore held that offering of Namaaz using sound amplifying devices is a non-essential part of Islam. While the right to recite Azan was upheld, the usage of loudspeakers was prohibited unless the mosque obtained permission under the Noise Pollution (Regulation and Control) Rules, 2000.
With this backdrop, in the first part of this article, we argue that the decision rendered by the Court is flawed owing to a variety of simple reasons. While we also discuss the impact of the approach adopted by the Court in reaching this (flawed) conclusion, it will not be our main emphasis. In the second part of the commentary, we argue that by this kind of adjudication, the Court has completely abandoned the religious claims and rights involved, reducing the freedom of religion clause to irrelevance. This kind of adjudication is certainly not the first, but just among many instances wherein the writ courts have contributed towards the trivialization of religious freedom in India.[6]
The Inconsistencies Over a Loudspeaker
The petition before the Court, as raised by the parliamentarian in his letter petition[7] to the Chief Justice, sought to direct the local administration to let the Azan take place. The petitioner argued that the recitation of Azan does not result in the congregation of people and is just to indicate the Muslim community about the commencement and conclusion of their daily fast during the month of Ramzan. The right conferred by Article 25(1) is proscribed by the following limitations: (a) public order; (b) morality; (c) health; and (d) other provisions of Part III of the Constitution. Therefore, the most clearly visible shortcoming in the judgment pronounced by the Court is that even while treating the limitation of ‘health’ on the right to recite Azan, the Court preferred a wrong set of public health concerns in thereby answering the question.
However, this shortcoming is not a standalone error that the Court committed. We will come to show how the Court chose a wrong set of public health concerns further down the piece. However, it is imperative to mention that the Court’s questionable conclusion is predicated upon its misconstruction of the first issue raised by the petitioners. The first issue was whether restrictions on the recitation of Azan through sound amplifying devices are violative of Article 25 of the Indian Constitution or not. Notably, this was never an issue raised before the Court. The letter petition, as we mention earlier too, demanded the Court to direct the Uttar Pradesh administration to allow conducting the Azan only by the Moazzin of the Masjid. The petitioner claimed that non-allowing of such recitation is, amid other rights, in clear violation of the Article 25 right, especially because such recitation does not pose any hazards or chances of spreading of the novel Corona virus disease.
However, in the Court’s framing, the issue was about such recitation only through loudspeakers, which, as the Court held, was not saved by Article 25. For substantiating its position, the Court then uses various judgments from the Calcutta High Court[8] and the Supreme Court[9]. This was done to argue that the usage of loudspeakers for Azan poses a health hazard to the elderly, minors, and other people, who may be asleep and might get disturbed by the recital’s loud sound during the wee hours of the day. This brings us back to the shortcoming we discussed at the beginning of this section.
In Afzal Ansari, the Court chose to limit the religious freedom to recite Azan by considerations such as the right to sleep (traceable under Article 21), right not to be disturbed [Article 19(1)(a)], right to remain silent and to read and speak with others [traceable under Article 19(1)(a)], among other such rights. We do not wish to argue that these concerns are not relevant or the right under Article 25 is illimitable by the considerations under Article 19(1)(a). However, by invoking the ‘necessitation of loudspeakers’ as a concern, the Court made a non-issue an issue for adjudication. The State’s valid claim was that the Azan is supposed to call upon people to congregate in the mosque for offering of Namaaz. This would have resulted in spreading of the pandemic and hence, ‘public health is at stake’.
Therefore, the Court should have discussed if the Azan is really aimed at inviting people for offering Namaaz at a certain mosque or could also be used to perform another role, which is to inform the Islam practitioners about the timings of their Rozaa during the holy month of Ramzan. The public health concern is that of coronavirus pandemic and not of noise generated by loudspeakers because, as is our fundamental argument, neither the petitioner nor the respondent (State) have a concern with the ‘noise’ generating aspect of the loudspeakers. The State’s fundamental concern is that Azan should not be offered as it results in congregation of the people (which will then result in a public health crisis). If the Court had undertaken this kind of analysis by discussing that the recital is not necessarily aimed at inviting people and is just indicative of the commencement/conclusion of their daily fast, it would have reached an inevitable conclusion that the recitation is protected and saved by the right under Article 25. When the recitation did not ask people to join for the prayer at the mosque, the limitation of public health being disturbed by the religious practice would not have arisen and hence, the practice would have received adequate protection under the religious freedom clause.
However, when the issue changed from ‘physical congregation of people’ to ‘noise pollution generated by loudspeakers and sound amplifying devices’, it was therefore natural that the Court had to adopt a different yardstick for testing the limitation on the right under Article 25(1).This argument is agnostic to our fundamental position. At the heart of it, we disagree with the manner in which the Court has used the limitations of free speech and expression to limit the right under Article 25(1). That is, instead of treating it as an issue under Article 25(1), the Court treated the recitation of Azan as a matter of free speech, which would then be regulated by Article 19(1)(a) and Article 19(2). Therefore, despite the fact that the claim is a religious one in nature, the Court treats it as a free speech issue, thereby limitable under Article 19(2).
We agree that the limitations under Article 25(1) are broader when compared with those under Article 19(2) as ‘other provisions of this Part’ (Part III, that is) is also a limitation under Article 25(1). However, this is what we precisely argue. That even though the limitations to a religious claim are wide when compared with those on a free speech claim, they are different and may have different impact on the manner in which these rights and their jurisprudence behave for the future courts.
While the disagreement requires an altogether separate thesis for establishing its justification and is something which we do not intend to undertake here, however, as Professor Paul Kahn has argued that, “the shift of religious claims from the sphere of facts (truth) to that of opinion contributed to the substantial collapse of the jurisprudence of religion into the jurisprudence of speech. We protect religious speech not because it is religious, but because it is speech.” The very act of first transforming, and then presenting a claim of religious freedom as a matter of a free speech right finally ends up in vanquishing of such religious freedom itself. While the ‘transfusion’ of the free speech and religious freedom rights to the detriment of the latter is one concern we point out with Afzal Ansari, in the next part, we suggest a workable solution for a confusing and an unclear situation of the kind.
The readers might question our argument that the petitioner’s case, as understood from a reading of the judgement, was that “the ban on Azan through sound amplifying devices is violative of fundamental right as provided under Article 25 of the Constitution of India”. However, considering the fact that the letter petition makes it invariably objective that the concern for the petitioner was only about recitation of Azan, the Court’s judgment warranted emphasis only on recitation (without any focus on the usage of loudspeakers). This claim is further supplemented by the fact that even the State of Uttar Pradesh, in their counter-affidavit, responds by saying that “Strict implementation of the guidelines yielded positive results and till 30.04.2020, no new Corona affected person was found in District Hathras.”
Given the nature of the pandemic, where the stress is constantly laid upon avoiding mass gatherings and proximity with people, it is logical that the concern in the petition as well as the State’s response was about congregating for recitation. This observation suggests that again, instead of deciding whether Azan could be offered by the Moazzin staying inside the mosque, the Court reaches a conclusion against the remedy sought only on the premise of ill effects of the loudspeakers. We do not dispute even for a moment that loudspeakers do not pose a danger to health. However, our position is that the dangers or boons of using a loudspeaker was never argued by either of the parties.
By way of reasonable extrapolation, even if it is assumed that the petitioner sought recitation through loudspeakers and also assuming that the State opposed their usage because of the health hazards they possibly pose, it cannot be ignored that the Court failed to deal with either of the following likely and legitimate options at hand.[10] Assuming a bizarre situation wherein the petitioner demanded usage of loudspeakers (that is detracting from our original argument which remains recitation of Azan during the pandemic), two issues spring up.
First, the Court failed to answer how the coronavirus disease could spread when there is no physical meeting of people. The Court ought to have answered this question when it explained at length the hazards of noise pollution, especially when, as we discussed, the State also responded only to the concern of novel coronavirus (as it cites the guidelines restraining all and any kind of religious activity from 24th March 2020 onwards) and allied issues. Second, the Court did not explore the alternative to ‘hazardous’ noise pollution. The likely alternative would have been to order lowering of volume at which such recitation takes place. Interestingly, the Court awards a slightly similar remedy to the petitioner by saying that recitation is an essential religious practice but recitation through loudspeakers is not. Therefore, the Court could very well have held that recitation through non-sound amplifying devices such as non-electronic megaphones can take place.
Be that as it may, in the second and the final part of this commentary, we will argue on the very method of adjudication the Court puts to use. Notwithstanding what we argue in this part, in the second part, we will proceed with the issues the Court framed and treat them as they are. We will, however, argue that the mode of Court’s adjudication on a dispute involving a religious freedom right was erroneous. It will not be our case at any point that religious freedom must be absolute and hence, should enjoy a ‘trumping’ position. This cannot be our case also because the very language of Article 25 insulates the right from being absolute.
However, as will emerge, we disagree with a reading imparted to the right conferred by Article 25 that prioritizes other rights and more so at the cost of a complete subjugation of people’s right to enjoy their religious freedom. Apart from being constitutionally incorrect, as we will establish during the course of our arguments, it sets a dangerous precedent as well.
The authors, Astha Upadhyaya and Anant Sangal, are currently law students at the National Law University (NLUD), Delhi.
[1]2020 SCC OnLine All 592
[2]UP’s Azan Crackdown: State files misleading affidavit in HC; police intimidates Muslim locals, The Caravan, available at https://caravanmagazine.in/religion/up-azan-crackdown-state-files-misleading-affidavit-hc-police-intimidates-muslim-locals, last seen on 21/07/2020.
[3] Afzal Ansari v State of U.P., 2020 SCC OnLine All 592
[4]Ministry of Home Affairs, Government of India, No. 40-3/2020-DM-I(A), available at https://www.mha.gov.in/sites/default/files/MHAOrderextension_1752020_0.pdf, last seen on 15/07/2020.
[5] Supra 3.
[6]Saptarshi Mandal, Out of Shah Bano’s Shadow: Muslim Women’s Rights and the Supreme Court’s Triple TalaqVerdict, 2 Indian Law Review 89, 89 (2018), available at https://doi.org/10.1080/24730580.2018.1510162, last seen on 21/07/2020.
[7]Letter Petition to Allahabad HC by Member of Parliament Enunciates Ban on “Azaan” in Ghazipur District, U.P., LiveLaw, available at https://www.livelaw.in/news-updates/letter-petition-to-allahabad-hc-by-member-of-parliament-enunciates-ban-on-azaan-in-ghazipur-district-up-155897, last seen on 15/07/2020.
[8] Om Birangana Religious Society v The State, 1996 SCC OnLine Cal 132; Moulana Mufti Syed Mohammed Noorur Rehman Barkati v. State of West Bengal, 1998 SCC OnLine Cal 73.
[9] Church of God (Full Gospel) in India v. K.K.R. Majestic, (2000) 7 SCC 282; Ramlila Maidan Incident,, (2012) 5 SCC 1
[10]Also, to clarify, we agree with the fact that recitation could take place only through loudspeakers and not in their absence.
The Journal of Indian Law and Society 