ASHIK v. BANDULA AND OTHERS(Noise Pollution Case)

018-SLLR-SLLR-2007-V-1-ASHIK-v.-BANDULA-AND-OTHERSNoise-Pollution-Case.pdf


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Ashik v Bandula and others
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ASHIK
v
BANDULA AND OTHERS(Noise Pollution Case)
SUPREME COURTSARATH N. SILVA, C.J.
TILAKAWARDANE, J.
SOMAWANSA, J.
SC FR 38/2005NOVEMBER 9, 2007
Constitution – Art 3 – Art 126 – 126(4) – Art 12(1) – Non issue of aloudspeaker permit – Police Ordinance Section 80 – Imposing of restrictions -Breach of fundamental rights ? National Environment Act 47 of 1980 – Sections23P – 23R – Amended by Act 56 of 1988 – Penal Code – Section 26 – SoundPollution – Standards – Directions by the Supreme Court. – Public Nuisance.
The petitioners complained that, non issuing of loudspeaker permits underS80 Police Ordinance to the trustees of the Jumma Mosque Weligama andimposing restrictions on such use is in violation of their fundamental rights.
Held:
Per Sarath N. Silva C.J.
"A perceived convenience or advantage to some based on a religiouspractice cannot be the excuse for a public nuisance which causesannoyance to the public or to the people in general who dwell or occupyproperty in the vicinity."
(1) People have been denied the equal protection of the law by thefailure of the executive to establish by way of regulations an effectivelegal regime as mandated by S23P of the National Environmental Act47 of 1980 (amended) to safeguard the public from harmful effects ofnoise pollution – No guidelines for the effective implementation of theapplicable provisions of law so as to provide to the people equalprotection of the law guaranteed by Art 12 (1) have been issued.
The Supreme Court having considered the matters before it, issued specificdirections in terms of Art 126(4) of the Constitution.
APPLICATION under Art 126(1) of the Constitution.
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Cases referred to:
Marshalls/ Gunaratne Unnanse- 1 NLR 179
Church ot God (full Gospel) in India v K.K.R.M.C. Welfare Association -1AR 2000 – SC – 2773.
In Re Noise Pollution – AIR 205 – SC 3136
Ikram Mohamed PC for the petitioners.
Ms. Indika Demuni de Silva – 2nd, 3rd, 4th respondents.
Ms. B.J. Tilakaratne, Deputy Solicitor General for Central EnvironmentalAuthority.
Uditha Egalahewa for 7th respondent.
March 9, 2007SARATH N. SILVA, C.J.
The proceedings in this case commenced with an application 01by the Trustees of the Kapuwatte Mohideen Jumma Mosque ofWeligama impleading the action of the 2nd respondent (ASP) innot issuing a loudspeaker permit under section 81 of the PoliceOrdinance to the extent permitted in previous years and inimposing restrictions on such use, as being in breach of theirfundamental rights.
When the matter was supported on 25.2.2007 for leave toproceed the Court noted that the application raises fundamentalissues with regard to sound pollution and the standards that should iobe enforced by the Central Environmental Authority, and theguarantee of the equal protection of the law (Article 12(1)) in thisregard.
Accordingly notice was issued on the Central EnvironmentalAuthority which was later added as the 6th respondent.
The Environmental Foundation Limited being a non-governmental organization that has consistently engaged in publicinterest litigation to preserve and protect the environmental waspermitted to intervene in the case in view of the general concernthat emerges in this case requiring adequate legal safeguards to 20protect the People from exposure to harmful effects of soundpollution.
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Mr. Senaka Weeraratne, Attorney-at-Law, sought to intervenerepresentng the interests of persons affected by noise pollution. Hewas added as the 8th respondent.
In his affidavit dated 29.6.2007, he contradicted the claim ofthe petitioners for unrestricted use of loudspeakers in the call toprayer from the Mosque. He also contended inter alia that suchunrestricted use makes:-
"Captive listeners of people of other religious faiths and 30violates the fundamental rights of the general public, such asthe right to silence and the right to quiet enjoyment ofproperty."
As a matter of personal experience, he contended inparagraph 4 of is affidavit that he is an aggrieved party as a resultof similar conduct of a place of worship situated on the MarineDrive between Jaya Road and Nimal Road in a residential area inColombo where
"the high pitched sound of a call to prayer is amplified fivetimes a day beginning in the early hours of the morning, that 40is at 5.00 a.m. and ending at 8.15 p.m. and repeated dailyand which conduct is causing unnecessary hardship andmuch disturbance, to residents in the neighbourhood themajority of whom belong to other religious faiths and whichlocality comprise in addition to residential dwellings, schoolse.g. Holy Family Convent, private Accountancy StudiesInstitutions, Buddhist temples, Kovils, Churches"
With the inclusion of the aforesaid parties, and considering thematerial presented and the submissions that were made the Courtproceeded with the matter as being of public interest, to make a 50determination as to the effective guarantee of the fundamental rightenshrined in Article 12(1) of the Constitution for the equal protectionof the law in safeguarding the People from harmful effects of noisepollution. The impact of pollution is pervasive and its effect cannotbe identified with the right of any particular person. The matter hasto be viewed as being of general and public concern affecting thecommunity as a whole.
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The second respondent whose action has been impleaded inthis case filed an affidavit supported with several other affidavitsand documents. It appears that the particular dispute with regard tothe action of the 2nd respondent, the ASP, being himself a Muslim,arose as a result of loudspeakers permits granted to threemosques situated in close proximity in the village of Kapuwatte inWeligama.
The dispute is between the Kapuwatte Mohideen JummaMosque and Jiffery Thakkiya Mosque on the one hand and theJamiul Rahman Jumma Mosque on the other.
In paragraph 5 of the affidavit the 2nd respondent has statedthat to the best of his knowledge from about April 2004 residents inthe area where the three Mosques are located have complained ofnoise pollution due to the excessive use of the loudspeakers by thethree mosques.
That, subsequently a dispute had arisen between the personsassociated with the Mohideen Jumma Mosque and Jamiul RahmanMosque with regard to the use of loudspeakers which resulted inthe parties lodging complaints against each other at the WeligamaPolice Station. The Police conducted investigations into theincidents and being apprehensive of an imminent breach of peacefiled a "B" Report bearing No. 2154/04 in the Magistrate Court ofMatara citing persons associated with the said Mosques as parties.It appears that the proceedings are continuing. The allegation nowappears to be that the 2nd respondent has given more favourabletreatment to the Jamiul Rahman Mosque.
The 2nd respondent has produced marked "2R4A" to "2R4G“photocopies of some of the complaints and affidavits of persons, allof whom are Muslims that specifically state that noise pollutionresulting from excessive noise emitted from loudspeakers of theMosque, has caused severe health problems. Two of thedeponents have coronary ailments and have produced medicalevidence in support. The ASP has stated that it was in thesecircumstances that he reduced the use of loud speakers in the callfor prayer to 3 minutes since in his view as a Muslim that period isadequate. The petitioners have not sought to contradict thematerial adduced by the 2nd respondent.
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It is seen that complaint emerge from Muslims themselves asto the harmful effects of excessive emission of noise fromloudspeakers in Mosques. Thus Mr. Weeraratne does not standalone as a victim of such excessive noise.
Although there is no contest in the case as to the harmfuleffects of noise pollution the case has gone on for more than 2years to enable suitable regulations to be made to be implementedby the Central Environmental Authority effectively.
Section 23P to section 23R of the National Environmental ActNo. 47 of 1980 as amended provides for restrictions on noisepollution. The scheme of section 23P and 23R is that it would be anoffence to emit noise in excess of the volume intensity and qualityof the standards or limitations that are prescribed which thusbecomes a prerequisite for the effectiveness of these provisions.Deputy Solicitor General submitted that the standards andlimitations that have now been prescribed in relation to industrialnoise cannot be used in respect of community noise (Vide,proceedings 28.3.05).
In the circumstances the parties agreed for adjournments tofacilitate the formulation of Regulations.
Draft regulations have been tendered from time to time toCourt.
The Environmental Foundation limited made a comprehensivewritten submission that the initial draft regulations would beunworkable and ineffective and that in contrast the existing legalregime as contained in; section 80 of the Police Ordinanceregarding the grant of permits for the use of loudspeakers,amplifiers and the like; section 261 of the Penal Code with regardto the offence of public nuisance; the provisions of the Code ofCriminal Procedure with regard to the abatement of any nuisanceand the National Environmental (Noise Control) Regulations No. 1of 1996; are adequate and that suitable directions could be issuedby this Court in terms of Article 126(4) of the Constitution to assurethe people equal protection of the applicable legal regime.
The Court noted that it is desirable to grant further time toformulate suitable Regulations and the added parties were
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permitted to make representations to the relevant authority toimprove the draft. Several postponements have been granted butthere appears to be indecision, disputes, vacillation and on thewhole a lack of collective will to take positive action. DeputySolicitor General now submit that she has received instructions tomove to add the Ministry of Religious Affairs as a party. This, in ourview puts the matter back to square one. It has to be firmly bornein mind that Sri Lanka is a secular State. It terms of Article 3 of theConstitution, Sovereignty is in the People at common devoid of anydivisions based on perceptions of race religion language and the 140like. Especially in the area of preserving the environment and theprotection of public health, being of immediate concern in this case,there could be no exceptions to accommodate perceived religiouspropensities of one group or another. No religion advocates apractice that would cause harm to another or worse still a wouldcause pollution of the environment, a health hazard or a publicnuisance being an annoyance to the public.
We have had in this country probably the oldest jurisprudentialtradition of a secular approach in dealing with matters thatconstitute a public nuisance. I would refer to the Judgment of this 150Court handed down in the year 1895 in the case reported inMarshall v Gunaratne Unnansei'l In that case the principal trusteeof a Buddhist Vihare in Colombo was charged for creating noise inthe night and disturbing the inhabitants of the neighbourhood. Thereport to Court was under the then applicable section 90 of thePolice Ordinance. Considering the particular circumstances of thecase Bonsor C.J., upholding the conviction stated as follows (atpage 180):
"the idea must not be entertained that a noise, which is
an annoyance to the neighbourhood, is protected if it is made 160in the course of a religious ceremony.
No religious body, whether Buddhist, or Protestant, orCatholic, is entitled to commit a public nuisance, and nolicense under section 90 of The Police Ordinance, 1865 willbe a protection against proceedings under the Penal Code,though it may protect them from proceedings under thePolice Ordinance."
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It is to be noted that in terms of section 261 of the PenalCode a person is guilty of public nuisance who does any actor is guilty of an illegal omission, which causes inter alia anyannoyance to the public or to the people in general who dwellor occupy any property in the vicinity. Section further statesas follows:
"A public nuisance is not excused on the ground that itcauses some convenience or advantage."
The proposition of Bonser, C.J., which could be cited as aclassic statement of a secular approach in dealing with a publicnuisance is referable to the final sentence of section 261 cited byme above. A perceived convenience or advantage to some basedon a religious practice cannot be the excuse for a "public nuisancewhich causes annoyance to the public or to the people in generalwho dwell or occupy property in the vicinity".
Subsequent jurisprudential developments in other countriesfollows a similar trend of reasoning.
In the case of Church of God (full gospel) in India v K.K.R.M.C.Welfare Association<2) at 2773 the Supreme Court of India posedthe selfsame question as follows:
" Whether a particular community or sect of that communitycan claim rights to add to noise pollution on the ground ofreligion?"
Shah, J. in his Judgment at 2774 stated as follows in answer to thatquestion
" Undisputedly no religion prescribes that prayers should beperformed by disturbing the peace of others nor does it preachthat they should be through voice-amplifiers or beating ofdrums. In our view, in a civilized society in the name of religionactivities which disturb old or infirm persons, students, orchildren having their sleep in the early hours or during day-time or other persons carrying on other activities cannot bepermitted. It should not be forgotten that young babies in theneighbourhood are also entitled to enjoy their natural right ofsleeping in a peaceful atmosphere. A student preparing for hisexamination is entitled to concentrate on his studies without
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there being any unnecessary disturbance by the neighbours.Similarly, old and infirm are entitled to enjoy reasonablequietness during their leisure hours without there being anynuisance of noise pollution. Aged, sick people afflicted withpsychic disturbances as well as children upto 6 years of ageare considered to be very sensitive to noise. Their rights arealso required to be honoured.“210
It transpired in the course of the submissions that at timesthere is rivalry between respective religious groups. In this case therivalry appears to be between different places of worship of onereligious group. It is commonly known that when there is call toprayer in the early hours of the morning at about 5.00 a.m. on theother hand amplifiers and loudspeakers blare forth recordedchanting of "pirith". The proceedings in this case evoked muchresponse of persons who are buffeted by the countervailing forcesof such amplified noise.
It may be appropriate here to state albeit briefly some matters 220with regard to the chanting of "pirith" which dates back to the timeof the Buddha. The chanting of "pirith" takes place only upon aninvitation addressed three times to the Maha Sangha. Chantingfollows with compassion to the devotees who address the three-fold invitation.
Much respected Piyadassi Thero in his work titled "TheBuddhas Ancient Path" has stated as follows (at page 17) thatbenefit could be derived only, "by listening intelligently andconfidently to paritta sayings because of the power of concentrationthat comes into being through attending whole-heartedly to the 230truth of the sayings."
Thus there must necessarily be a close proximity between theperson chanting and the person who is listening. Blaring forth thesacred suttas and disturbing the stillness of the environment,forcing it on ears of persons who do not invite such chant is theantethesis of the Buddha's teaching.
I would finally refer to the important case in India. In Re. NoisePollution^) at 3136, especially because in that case the SupremeCourt of India issued several directions in order to safeguard thepeople from the harmful effects of noise pollution. The motion of the 240
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intervenient 6th respondent is that similar directions be issuedpertinent to our legal context in terms of Article 126(4) of theConstitution.
The Chief Justice of India commences his judgment delvinginto the etymology of the term "Noise" itself and has noted that it isderived from the Latin "Nausea" defined as unwanted sound. Hehas cited a leading authority which describes unwanted sound as"a potential hazard to health and communication dumped into theenvironment without regard to the adverse effect it may have onunwilling ears and has continued to state that250
"noise is more than just a nuisance. It constitutes a real andpresent danger to people's health. Day and night, at home, atwork, and at play, noise can produce serious physical andpsychological stress. No one is immune to this stress.Though we seem to adjust, to noise by ignoring it, the ear, infact, never closes and the body still responds – sometimeswith extreme tension, as to a strange sound in the night."
Further, "that noise is a type of atmospheric pollution. It isshadowy public enemy whose menace has increased in themodern are of industrialisation and technological 260advancement." (at 3141 and 3142).
The Supreme Court of India has firmly rejected the contentionthat there is a fundamental right to make noise associated with thefreedom of speech and expression. The Chief Justice observed –
"Nobody can claim the fundamental right to create noise byamplifying sound of his speech with the help of loudspeakers.While one has a right to speech, and others have a right tolisten or decline to listen. Nobody can be compelled to listenand nobody can claim that he has a right to make his voicetrespass into the ears or mind of others. Nobody can indulge 270in aural aggression." (at 3141)
In an exhaustive survey, the Supreme Court of India has dealtwith the developments in many other jurisdictions wherecomprehensive provisions have been made to safeguard peoplefrom the harmful effect of the public nuisance of noise pollution andfinally the Court issued several directions (at 3164-3165) including
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a direction that “no one shall beat a drum or tom tom or blowtrumpet or beat or sound any instrument or use any sound amplifierat night (between 10.00p.m. and 6 a.m.) except in publicemergencies".2ao
There is no dispute in this case that People have been deniedthe equal protection of the law by the failure of the executive toestablish by way of regulations an effective legal regime asmandated by section 23P of the National Environmental Act No. 47of 1980, as amended by Act No. 56 of 1988 to safeguard the publicfrom the harmful effects of noise pollution. The facts also revealthat there are no guidelines for the effective implementation of theapplicable provisions of law so as to provide to the people equalprotection of the law guaranteed by Article 12(1) of the Constitution.
Accordingly, we consider it to be just and equitable in the 290circumstances of the case to make the following directions in termsof Article 126(4) of the Constitution:
That the emission of noise by the use of amplifiers,loudspeakers or other equipment or appliances whichcauses annoyance to the public or to the people ingeneral who dwell or occupy property in the vicinity beconsidered a public nuisance in terms of section 261 ofthe Penal Code and that the Police should entertaincomplaints and take appropriate action for the abatement
of such public nuisance;3oo
That all permits issued by the Police under section 80(1)of the Police Ordinance shall cease to be effectiveforthwith;
That no permits shall be issued in terms of section 80(1)of the Police Ordinance for the use of loudspeakers andother instruments for the amplification of noise asspecified in that section covering the period 10 p.m.(night) to 6 a.m. (morning). Such permits may be issuedfor special religious functions and other special eventsonly after ascertaining the views of persons who occupy 310land premises in the vicinity, a record of such matters to
be maintained and the grant of any such permit shall beforthwith reported to the nearest Magistrate Court;
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That in respect of the hours from 6.00 a.m. to 10.00 p.m.permits may be issued for limited periods of time forspecific purpose subject to the strict condition that thenoise emitted from such amplifier or loudspeaker orequipment does not extend beyond the precincts of theparticular premises.
Where a permit is issued in terms of section 80(1) as 320provided in direction (iii) and (iv) sufficient number ofPolice Officers should be designated and posted to theparticular place of use to ensure that the conditionsimposed are strictly complied with;
That the Police will make special arrangements toentertain any complaint of a member of the public againstany person guilty of an offence of public nuisance asprovided in section 261 of the Penal Code or of using anyloudspeaker, amplifier or other instrument as provided insection 80 of the Police Ordinance contrary to any of 330these directions and take immediate steps to investigate
the matter and warn such person against a continuanceof such conduct. If the conduct is continued after thatwarning to seize and detain the equipment as provided insection 80(4) of the Police Ordinance and to report thematter to the Registrar of this Court.
Copies of this Judgment to be sent to the Secretary, Ministryof Defence and the Inspector General of Police for immediateaction to be taken in regard to – Directions stated above.
The Inspector General of Police to submit a report to Court as 340to the action taken on the judgment.
Mention case on 10.12.2007.
TILAKAWARDENA, J.-I agree.
SOMAWANSA, J.-I agree.
Direction issued under Article 126(4).
Ed. Note • The Supreme Court made order that till the Regulation is made thedirections that have been issued and the circulars issued by theI.G.P. would continue to be in operation and enforced by the S.C.