Introduction: Larger good of the
people is paramount
Author: Raju Z Moray
Publications: The Indian Express
Dated: December 6, 2001
Incantations calling the 'beuevers'
to prayer often also wake up the 'nonbelievers', way ahead of normal schedules.
God is great but must that be proclaimed on loudspeakers? Whether it is
the azaan of the muezzin or the midnight mass conducted by Christian priests,
supporters argue on the basis of their "fundamental rights". Anyone who
dares voice opposition is dubbed a heretic or worse, an opponent of secularism.
It would be worthwhile to examine what these rights are and what are the
limitations placed by law on the exercise of these.
Article 25 of the Constitution states
that all persons are equally entitled to freedom of conscience and the
right to profess, practise and propagate religion. Article 26 states that
every religious denomination shall have the right to manage its own affairs
in matters of religion. However, these constitutional entitlements are
subject to public order, morality and health. Reasonable restrictions put
on the enjoyment of these constitutionally guaranteed freedoms would not
be unconstitutional or illegal if such restrictions promote or support
public order, morality and health. As Chief Justice Chagla of Bombay High
Court expressed, 'A sharp distinction must be drawn between religious faith
and religious practises. What the State protects is religious faith and
belief. If religious practices run counter to public order, morality or
health, the practices must give way before the good of the people."
Whether using microphones for azaan
is an integral part of Islam and whether this is an absolute right and
free from any restriction has also received judicial consideration. The
Calcutta High Court has held that "it cannot be said that the religious
teachers who laid down the tenets in respect of namaaz and azaan, had in
any way desired the use of microphones." It was held that "on a true and
proper construction of the provisions of Art 25(1) read with Art 19 (1)(a)
it cannot be said that a citizen should be coerced to hear anything he
does not like or does not require." In a very progressive interpretation,
the Court observed that "the freedom of speech and expression as guaranteed
under Art 19(1)(a) includes the freedom not to listen and/or to remain
silent. One cannot exercise his right at the cost of and in total deprivation
of others' rights."
In Mumbai every Friday public streets
are obstructed for prayers despite a 1988 ruling of Bombay High Court holding
that such obstructions of a recurring nature cannot be permitted. Justice
Sujata Manohar, in that landmark case, had held that "Every community has
a right to worship in accordance with its religious practice. But this
cannot be done in violation of law or in a manner which contravenes statutory
provisions made for public benefit." Appeals against this ruling have been
dismissed by the Supreme Court thereby confirming the Bombay High Court's
view.
The 'Church of God' case decided
last year is another landmark decision. The Supreme Court held that "in
an organised society, rights are related with duties towards others." The
Calcutta High Court's views were approved. The Division Bench placed reliance
on the observations of a Constitution Bench about Articles 25 and 26. The
Constitution Bench had observed that "No right in an organised society
can be absoluted. Enjoyment of one's rights must be consistent with the
enjoyment of rights also by others." The Division Bench unequivocally held
that "no community can claim a right to add to noise pollution on the grounds
of religion."
The Supreme Court in the 'Church
of God' case proclaimed, "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 day time or other persons carrying
on other activities cannot be permitted." It can be argued that the Supreme
Court's observations refer only to a "civilised society" and do not apply
to those who give precedence to religious beliefs over civic discipline.
It is our good fortune that we are "civilised" enough not to advance such
arguments.
