The noise pollution cases — Forum for Prevention of Environment and Sound Pollution v Union of India (2005) and Church of God (Full Gospel) in India v KKR Majestic Colony Welfare Association (2000)

Module 4 of the syllabus asks for the Noise Pollution Rules 2000.

Between them they settle four propositions that recur in every noise question:

1. The right to be free of noise is part of Art. 21.
2. Art. 19(1)(a) does not protect the amplified voice; there is no right to make an unwilling person listen.
3. Art. 25 does not authorise noise in the name of religion, because no religion requires amplification.
4. Enforcement requires standards, seizure powers and public awareness, and the Court laid down all three.

The questions

Shah J. framed them at the outset: "in a country having multiple religions and numerous communities or sects, whether a particular community or sect of that community can claim right to add to noise pollution on the ground of religion?" and "Whether beating of drums or reciting of prayers by use of microphones and loudspeakers so as to disturb the peace or tranquility of neighbourhood should be permitted?"

The Court's premise

"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."

And the consequence: "in a civilized 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 day-time or other persons carrying on other activities cannot be permitted". The Court particularised the interests protected — "young babies in the neighbourhood are also entitled to enjoy their natural right of sleeping in a peaceful atmosphere"; "A student preparing for his examination is entitled to concentrate on his studies without their being any unnecessary disturbance by the neighbours"; the "old and infirm are entitled to enjoy reasonable quietness during their leisure hours". It recorded that "Aged, sick, people afflicted with psychic disturbances as well as children up to 6 years of age are considered to be very sensible to noise" (the report reads sensible; the sense is sensitive).

On the harm. Noise pollution "is having many evil effects including danger to the health", and the list is worth learning as the standard catalogue: "It may cause interruption of sleep, affect communication, loss of efficiency, hearing loss or deafness, high blood pressure, depression, irritability, fatigue, gastro-intestinal problems, allergy, distraction, mental stress and annoyance etc. This also affects animals alike. The extent of damage depends upon the duration and the intensity of noise."

On rights and duties: "in an organized society, rights are related with duties towards others including neighbours."

Facts

The appellant Church, at K.K.R. Nagar, Madhavaram High Road, Chennai, had a prayer hall for Pentecostal Christians "provided with musical instruments such as drum set, triple gango, guitar etc." The Welfare Association complained to the Tamil Nadu Pollution Control Board on 15 May 1996 that prayers "were recited by using loudspeakers, drums and other sound producing instruments which caused noise pollution". The Board's ambient noise survey, however, "disclosed that noise pollution was due to plying of vehicles on the Madhavaram High Road".

The Association moved the Madras High Court, which applied the guidelines laid down in Appa Rao, M.S. v Government of Tamil Nadu, a Division Bench decision founded on ss. 41 and 71(a) of the Madras City Police Act 1888 and s. 10 of the Madras Town Nuisance Act. In Appa Rao the Court had found the complaints of noise pollution justified and that the authorities "were turning or made to turn by the higher powers a Nelsons eye to the violation of rules and regulations in these matters", and had relied on an ICMR study on noise pollution in South India pointing out that noise "will lead to serious nervous disorders, emotional tension leading to high blood-pressure, cardiovascular diseases, increase in" cholesterol level resulting in heart attacks and strokes and even damage to foetus.

The single Judge held that "the Church was not the sole contributor of the noise", that there was "nothing of malice and malicious wish to cause any hindrance to the free practice of religious faith of the Church", and that "if the noise created by the Church exceeds the permissible decibels then it has to be abated".

The argument on Arts. 25 and 26

The Church argued that the surveys attributed the noise to traffic, and that "the right to profess and practice Christianity is protected under Articles 25 and 26 of the Constitution of India which cannot be dislodged by directing the authorities to have a check on the appellant-Church".

The respondents answered that the Association consisted of members of all religions, that the High Court's order was only about reducing noise, and relied on the Calcutta High Court's decision in Om Birangana Religious Society v The State, where it was held:

"It cannot be said that the religious teachers or the spiritual leaders who had laid down these tenets, had any way desired the use of microphones as a means of performance of religion. Undoubtedly, one can practice, profess and propagate religion, as guaranteed under Article 25(1) of the Constitution but that is not an absolute right. The provision of Article 25 is subject to the provisions of Article 19(1)(a) of the Constitution." And on a true construction of Art. 25(1) read with Art. 19(1)(a), "it cannot be said that a citizen should be coerced to hear any thing which he does not like or which he does not require."

Held

The appeal was dismissed. The direction below was only to follow the Appa Rao guidelines, and was "in conformity with the Noise Pollution (Regulation and Control) Rules, 2000 framed by the Central Government under the provisions of the Environment (Protection) Act, 1986 read with rule 5 of the Environment (Protection) Rules, 1986".

On Arts. 25 and 26 — which are "subject to public order, morality and health" — the Court held detailed consideration unnecessary, "mainly because as stated earlier no religion prescribes or preaches that prayers are required to be performed through voice amplifiers or by beating of drums"; and in any case "if there is such practice, it should not adversely affect the rights of others including that of being not disturbed in their activities".

It relied on the Constitution Bench in Acharya Maharajshri Narendra Prasadji for the general principle that "no rights in an organized society can be absolute"; "Enjoyment of one's rights must be consistent with the enjoyment of rights also by others"; and "Where in a free play of social forces it is not possible to bring about a voluntary harmony, the State has to step in to set right the imbalance between competing interests." A fundamental right "cannot exist in isolation in a water-tight compartment" and, in the Court's words, one fundamental right of a person "may have to co-exist in" "harmony with the exercise of another Fundamental Right by others".

The answer to the traffic argument — and this is the point most often missed:

"because of urbanization or industrialization the noise pollution may in some area of a city/town might be exceeding permissible limits prescribed under the rules, but that would not be a ground for permitting others to increase the same by beating of drums or by use of voice amplifiers, loudspeakers or by such other musical instruments".

The Court closed with a diagnosis that the 2005 case would develop: "even though the Rules are unambiguous, there is lack of awareness among the citizens as well as the Implementation Authorities about the Rules or its duty to implement the same."

How the case arose

The writ petition was filed by Shri Anil K. Mittal, an engineer, "moving the Court pro bono publico". The immediate provocation was reported in the newspapers of 3 January 1998: a 13 year old girl was raped, and "Her cries for help sunk and went unheard due to blaring noise of music over loudspeaker in the neighbourhood." She later set herself ablaze and died. The Court renamed the petition, by order of 6 April 1998, as a public interest matter on the implementation of the laws restricting loudspeakers.

The companion appeal challenged the amendment of 11 October 2002 to the noise rules, which "empowered the State Government to permit use of loudspeaker or public address system during night hours (between 10 pm and 12 pm mid-night) on or during the cultural or religious occasions for a limited period not exceeding 15 days", on the ground that it was "not accompanied by any guidelines and is capable of being misused".

Interventions were conflicting: some sought prohibition of pressure horns and of loudspeakers in religious places and a ban on firecrackers above a decibel limit; others sought "granting exemption in favour of bursting of firecrackers on or during festivals without regard to the limit of time", and a mechanism regulating the manufacture of firecrackers.

The constitutional holding

On Art. 21. The right to life "is not of mere survival or existence"; it guarantees "a right of persons to life with human dignity", including "all the aspects of life which go to make a person's life meaningful, complete and worth living". Hence:

"Anyone who wishes to live in peace, comfort and quiet within his house has a right to prevent the noise as pollutant reaching him. No one can claim a right to create noise even in his own premises which would travel beyond his precincts and cause nuisance to neighbours or others."

The nuisance test: "Any noise which has the effect of materially interfering with the ordinary comforts of life judged by the standard of a reasonable man is nuisance", and when it becomes actionable "has to be answered by reference to its degree and the surrounding circumstances, the place and the time".

On Art. 19(1)(a). This is the passage to quote:

"Nobody can claim a fundamental right to create noise by amplifying the sound of his speech with the help of loudspeakers. While one has a right to speech, others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody can claim that he has a right to make his voice trespass into the ears or mind of others. Nobody can indulge into aural aggression."

If a person amplifies his speech "so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels then the person speaking is violating the right of others to a peaceful, comfortable and pollution-free life guaranteed by Article 21". And decisively: "Article 19(1)a cannot be pressed into service for defeating the fundamental right guaranteed by Article 21."

The Court approved two High Court decisions upholding the right to live in an atmosphere free from noise pollution as guaranteed by Art. 21 — Free Legal Aid Cell Shri Sugan Chand Aggarwal alias Bhagatji v Govt. of NCT of Delhi and P.A. Jacob v Superintendent of Police, Kottayam.

Why enforcement fails

The Court's diagnosis is examinable in itself:

"there is a lack of will on the part of the Executive to implement the laws. This has contributed to lack of infrastructure essential for attaining the enforcement of laws." And "there is lack of requisite awareness on the part of the citizens. The deleterious effects of noise pollution are not well known to the people and are not immediately perceptible. People generally accept noise pollution as a part of life, a necessary consequence of progress and prosperity."

Three concrete problems were listed: the statutes and rules "are not comprehensive enough so as to deal with all the problems and issues related to noise pollution"; "The authorities responsible for implementing the laws are not yet fully identified" and lack specialisation, so what is needed is "a combination of technically qualified and administratively competent personnel"; and "There is lack of proper gadgets and equipments and other infrastructure such as labs for measuring the noise levels", so that "the policemen who are on the job usually end up measuring sound with their ears itself and not with the use of technical instruments".

The directions

I. Firecrackers

1. As between evaluating firecrackers on noise levels and on chemical composition, "the latter method is more practical and workable in Indian circumstances" and shall be followed until replaced by a better system.
2. The Department of Explosives to research and publish "the chemical formulae for each type or category or class of firecrackers", specifying "the proportion/composition as well as the maximum permissible weight of every chemical used".
3. Firecrackers may be divided into "(i) Sound emitting firecrackers, and (ii) Colour/light emitting firecrackers".
4. "There shall be a complete ban on bursting sound emitting firecrackers between 10 pm and 6 am." No time restriction on colour or light emitting firecrackers.
5. Every manufacturer to print the chemical contents on the box; a mismatch makes "the manufacturer may be held liable".
6. Export firecrackers may bear higher noise levels only against an export order, conforming to the importing country's standards, in different colour packing, and carrying a declaration such as "not for sale in India".

II. Loudspeakers

1. "The noise level at the boundary of the public place, where loudspeaker or public address system or any other noise source is being used shall not exceed 10 dB(A) above the ambient noise standards for the area or 75 dB(A) whichever is lower."
2. "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."
3. "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 area in which it is used, at the boundary of the private place."

III. Vehicular noise. "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."

IV. Awareness. Suitable chapters in text-books teaching civic sense, special talks in schools, training of police and civil administration; an active role for the State with "Resident Welfare Associations, service Clubs and Societies"; and "Special public awareness campaigns in anticipation of festivals, events and ceremonial occasions".

V. Generally.

1. "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."
2. Rule 3 of the Noise Pollution (Regulation and Control) Rules 2000 provides for "specifying ambient air quality standards in respect of noise for different areas/zones, categorization of the areas for the purpose of implementation of noise standards, authorizing the authorities for enforcement"; governments "shall take steps for laying down such standards and notifying the authorities where it has not already been done".

The source of the power. The guidelines were "issued in exercise of power conferred on this Court under Articles 141 and 142 of the Constitution of India", and "would remain in force until modified by this Court or superseded by an appropriate legislation". Learn that sentence: it is the constitutional answer to the objection that the Court was legislating.

The interim order on festivals and industry

Faced with applications saying that local festivals customarily involve firecrackers at prohibited hours and that the fireworks industry might face "even partial closure", the Court said, by order of 10 September 2003:

"We have grave doubts if the above said considerations can come in the way of the enforcement of fundamental rights guaranteed by the Constitution for the citizens and people of India to live in peace and comfort, in an atmosphere free from pollution of any kind, such as one caused by noise and foul/poisonous gases."

It nonetheless allowed the affected parties liberty to represent to their State Governments. And it recorded, with evident satisfaction, that "By and large the interim directions made by the Court were observed in compliance", Resident Welfare Associations and school children giving "a very encouraging response".

1. Freedom from noise is part of the right to life under Art. 21; anyone who wishes to live in peace and quiet in his house may prevent noise reaching him, and no one may create noise that travels beyond his own precincts.
2. Art. 19(1)(a) confers no right to amplified speech; the listener's right not to listen prevails, and Art. 19(1)(a) cannot defeat Art. 21.
3. Arts. 25 and 26 confer no right to noise, being subject to public order, morality and health, and because no religion requires amplification.
4. That the ambient noise already exceeds the limits is no ground for adding to it.
5. The Supreme Court may lay down binding guidelines under Arts. 141 and 142 on firecrackers, loudspeakers and vehicular horns, operative until modified or superseded by legislation.

1. Answer a noise question with the Art. 21 and Art. 19(1)(a) passages first. They are short and they decide most problems.
2. Use Church of God for the religious claim — the proposition that no religion requires amplification, and the Acharya Maharajshri principle that no right in an organised society is absolute.
3. Reproduce the loudspeaker limits accurately: 10 dB(A) above ambient or 75 dB(A) whichever is lower at the boundary of a public place; 5 dB(A) above ambient for a private system; silence from 10 p.m. to 6 a.m. except in public emergencies.
4. Give the firecracker regime — chemical composition rather than noise level, the two categories, the night ban and the export conditions.
5. Name Arts. 141 and 142 as the source of the guidelines, and say they hold until legislation supersedes them. That is the difference between describing the case and understanding it.