Use of loudspeakers not a fundamental right: Allahabad HC

Loudspeaker
Image Courtesy:deccanherald.com

In a fresh twist in the loudspeaker controversy, the Allahabad High Court has deemed that use of loudspeakers for playing azaan (a traditional call to prayers by mosques) is not a fundamental right. On May 4, 2022 the Allahabad High Court Division Bench of Justice Vivek Kumar Birla and Justice Vikas Budhwar dismissed a Civil Writ Petition no. 12350 of 2022 (Irfan v/s. State of U.P. & Ors.) holding it as ‘patently misconceived’.

The dispute over the use of loudspeakers for ‘azaan’ emerged over the past few months when several right-wing outfits started demanding a ban on it. BJP member and president of Shri Kashi Vishwanath Gyanvapi Movement, Sudhir Singh had asked all Hindu residents of Varanasi to install loudspeakers and join in by reciting Hanuman Chalisa five times a day to coincide with the azaan timings.

Last month, Maharashtra Navnirman Sena chief Raj Thackeray had warned the government that his party workers would start playing ‘Hanuman Chalisa’ at higher decibel levels if the state did not get the loudspeakers removed from the mosques in Maharashtra.

Brief about the Case

The Petition was filed by Irfan, a resident of Budaun district in Uttar Pradesh who sought permission to play azaan using a loudspeaker at the Noori Masjid. The petition prayed for the quashing of order of Bisauli subdivision Magistrate dated December 2021, which rejected his application seeking permission to use a loudspeaker at the said mosque. He further requested the High Court to direct the UP government to grant him permission to deliver azaan on loudspeaker.

The Petitioner’s counsel, Sachin Kumar Sharma argued that the Order passed by the SDM was wholly illegal and violated his fundamental and legal rights to run loudspeakers from the mosque, as reported by Live Law.

Court’s Observation

On May 4, 2022 the Division Bench of Justice Vivek Kumar Birla and Justice Vikas Budhwar observed, “The law has now been settled that use of loudspeaker from mosque is not a fundamental right. Ever otherwise a cogent reason has been assigned in the impugned order.”

The Court had observed that although azaan is an integral part of Islam, delivering it via loudspeaker is not. The Bench sated, “Azaan is an integral part of Islam, but giving it through loudspeakers is not a part of Islam,” a news agency quoted the court as saying.

The Bench while dismissing the Petition held, “Accordingly, we find that the present petition is patently misconceived, hence the same is dismissed.”

The Judgment copy may be read here:

Earlier directions by courts

As reported by The Wire, the court then went on to add that there had been previous instances when courts had ruled that call for prayer on loudspeakers was not a fundamental right.

During the Covid-19 Pandemic in May 2020, the Allahabad High Court Division Bench of Justice Shashi Kant Gupta and Justice Ajit Kumar had made the following observation in the PIL and letter Petitions filed against alleged orders restricting the recital of azaan during the lockdown. According to LiveLaw, the Bench stated, “Azan is certainly an essential and integral part of Islam but use of microphone and loud-speakers is not an essential and an integral part thereof…Azan can be recited by Muezzin from minarets of the Mosques by human voice without using any amplifying device and such recitation cannot be hindered with under the pretext of violation of the Guidelines issued by the State, to contain the pandemic- Covid19.”

The May 2020 ruling was in response to petitions filed by Ghazipur MP Afzal Ansari, Congress leader Salman Khurshid and lawyer S Wasim A Qadri, who challenged the orders of the Ghazipur, Farrukhabad and Hathras administration that placed a ban on loudspeakers to deliver azaan as part of Covid-19 curbs.

According to the Indian Express, in May 2020, the high court had ruled that azaan might be an essential and integral part of Islam, but the same cannot be said of using sound-amplifying devices, loudspeakers. Therefore, it had said the fundamental right of religious freedom enshrined in Article 25 of the Constitution cannot be applied in this particular case. Even so, the court had said, it was subject to public order, morality or health and other provisions of Part III of the Constitution.