Judicial slip-up

With growing awareness in the country about the hazards of noise pollution, the Ministry of Environment and Forests of the Government of India framed a draft of Noise Pollution (Control and Regulation) Rules, 1999 inviting objections and suggestions from the public. The following year the Noise Pollution (Regulation and Control) Rules, 2000 came into force.

The regulations asked state governments to demarcate areas under their jurisdiction into industrial, commercial, residential or silence areas/zones and to ensure that the noise level in each of these areas stayed within the outer limits specified by the ministry. At the same time, it was also stipulated that no one could use loudspeakers and public address systems without prior permission from relevant authorities. It was also provided that "A loudspeaker or a public address system shall not be used at night (between 10.00 p.m. to 6.00 a.m.) except in closed premises for communication within"

Certain amendments were made in the Noise Rules in November 2000 and again in 2002. The latter gave some leeway to state governments: "the State Government may… permit use of loudspeakers or public address systems during night hours (between 10.00 p.m. to 12.00. midnight) on or during any cultural or religious festive occasion of a limited duration not exceeding fifteen days in all during a calendar year".

Earlier, in a 1998 writ petition filed in the Supreme Court (see main copy), the main prayer was for a court order directing all state governments to rigorously enforce the existing laws for restricting the use of loudspeakers and other high volume noise producing audio-video systems "so that there may not be victims of noise pollution in future".

In 2003, the apex court later attached to the writ petition a special leave petition that questioned the discretion given to states to relax the night-time ban on loudspeakers on the plea that without proper guidelines this would defeat the very purpose of the noise control rules.

In its judgement of July 18, 2005, the division bench of Chief Justice RC Lahoti and Justice Ashok Bhan made certain observations and issued some specific directions:

Observations:

• Noise pollution is a serious issue as it can be related to the constitutional right to life (Article 21). The right to life enshrined in Article 21 is not of mere survival or existence. It guarantees a right of persons to life with human dignity… Anyone who wishes to live in peace, comfort and quiet within his house has a right to prevent the noise as pollutant reaching him.
• Those who make noise often take shelter behind Article 19(1)A pleading freedom of speech and right to expression. Undoubtedly, the freedom of speech and right to expression are fundamental rights but the rights are not absolute… Article 19(1)A cannot be pressed into service for defeating the fundamental right guaranteed by Article 21.
• Noise is more than just a nuisance. It constitutes a real and present danger to people’s health.
• The Legislature and the Executive in India are (not) completely unmindful of the menace of noise pollution. Laws have been enacted and Rules have been framed by the Executive for carrying on the purposes of the legislation. The real issue is with the implementation of the laws. What is needed is the will to implement the laws.
• The Supreme Court in Church of God (Full Gospel) in India vs. KKR Majestic Colony Welfare Assn., (2000) 7 SCC 282, held that the Court may issue directions in respect of controlling noise pollution even if such noise was a direct result of and was connected with religious activities. It was further held: "Undisputedly, no religion prescribes that prayers should be performed by disturbing the peace of others, nor does it preach that they should be through voice amplifiers or beating of drums. In our view, in a civilised society in the name of religion, activities which disturb old or infirm persons, students or children having their sleep in the early hours or during daytime or other persons carrying on other activities cannot be permitted".
• Several interlocutory applications have been filed in this Court, wherein it was pleaded that restriction on bursting of firecrackers in the night should be removed during the Diwali festival. Similar relaxation was demanded for other festivals… Indian society is pluralistic. People of this great country belong to different castes and communities, have belief in different religions and customs and celebrate different festivals. We are tolerant for each other. There is unity in diversity. If relaxation is allowed to one there will be no justification for not permitting relaxation to others and if we do so the relaxation will become the rule. It will be difficult to enforce the restriction.

Highlights, court directions:

• There shall be a complete ban on bursting sound emitting firecrackers between 10 p.m. and 6 a.m. It is not necessary to impose restrictions as to time on bursting of colour/light emitting firecrackers.
• No one shall beat a drum or tom-tom or blow a trumpet or beat or sound any instrument or use any sound amplifier at night (between 10. 00 p.m. and 6.a.m.) except in public emergencies.
• The peripheral noise level of privately owned sound system shall not exceed by more than 5 db(A) than the ambient air quality standard specified for the areas in which it is used, at the boundary of the private place.
• No horn should be allowed to be used at night (between 10 p.m. and 6 a.m.) in residential area except in exceptional circumstances.
• There is a need for creating general awareness towards the hazardous effects of noise pollution. The State must play an active role in this process. Special public awareness campaigns in anticipation of festivals, events and ceremonial occasions whereat firecrackers are likely to be used, need to be carried out.
• The States shall make provision for seizure and confiscation of loudspeakers, amplifiers and such other equipments as are found to be creating noise beyond the permissible limits.

On the eve of Ganeshotsav, the Supreme Court turned down the plea of the government of Maharashtra for relaxation in the night-time ban on loudspeakers. But in response to a petition from the Gujarat government, the Supreme Court passed a further order on October 3. The apex court’s attention was drawn to the fact that under sub-Rule(3) of Rule 5 of the Noise Control Rules, 2002, state governments have the discretion "to permit use of loud speakers or public address systems during night hours (between 10.00 p.m. to 12.00 midnight) on or during any cultural or religious festive occasion of a limited duration not exceeding fifteen days in all during a calendar year".

It was further contended that since in its July 18 judgement the apex court had not specifically upset the division bench judgement of the Kerala high court and had also not even otherwise expressed and recorded any specific opinion on the constitutional validity or otherwise of sub-Rule(3), the state governments could exercise the power conferred by sub-Rule(3) of Rule 5.

Admitting the point made, the court agreed to re-open the case for fresh hearing to the limited extent of examining the constitutional validity of sub-Rule(3). Until then, Rule 5 would remain in force. The court once again refused the plea for allowing the bursting of firecrackers on Diwali.

Unfortunately, the failure of both the government of Maharashtra and the apex court to refer to sub-Rule(3) of Rule 5 earlier, and the concession of the point when raised by the Gujarat government subsequently has, however, reintroduced the element of resentment and competitive religiosity and taken some of the shine off the widely welcomed Supreme Court ruling of July 18.