Right to religion can’t override citizens’ fundamental rights

Satya Prakash

Relationship between religion and State has had a chequered history. As organised institutions, both have always attempted to dominate each other — be it India, Europe or any other part of the world. Common people often side with one or the other to safeguard their own interest as they cautiously avoid offending either.

The Allahabad High Court’s recent verdict on Azan — the Islamic call to prayer — only highlights this delicate relationship.

A Bench headed by Justice Shashi Kant Gupta held “that Azan may be an essential and integral part of Islam but recitation of Azan through loudspeakers or other sound-amplifying devices cannot be said to be an integral part of the religion, warranting protection… under Article 25 of the Constitution…”

Ruling that Azan can be recited from minarets of mosques by human voice without using any amplifying device, the HC directed the UP administration not to cause hindrance in it on the pretext of Covid-19 guidelines, unless violated. Often over-emphasised, right to religion is the weakest fundamental right as it is subject to public order, morality and health and other fundamental rights.

That’s why the HC gave primacy to citizens’ fundamental rights, saying “One cannot disturb others’ basic human rights and fundamental rights. Use of loudspeakers can cause hearing loss, disturbance of sleep, interference with communication, annoyance etc. and other diseases… Right to sleep is not only a fundamental right but it is to be conceded to be a basic human right.”

It goes on to say, “No person has right to take away the right of others…religious freedom cannot abridge or take away or suspend others’ right under Article 19(1)(a) regarding their freedom of speech and expression… No one has got the right to make other persons captive listeners,” the HC said. Right to freedom from noise pollution was a fundamental right protected by Article 21 (right to life).

Of late, courts have been flooded with issues relating religious practices. Many such issues have been referred to a seven-judge Constitution Bench. It was in the 1950s that the Supreme Court evolved “essential practices test” to judge the validity of such practices. The Allahabad HC verdict underlines that the test still remains a useful constitutional tool.