Freedom from noise : A fundamental right

by
Freedom from noise : A fundamental right

Freedom from Noise: A Fundamental Right 

Introduction

Noise pollution is an undesired and enormous environmental noise which can affect the health of humans and animals and have huge impact on the quality of environment. It is commonly generated from machines in industrial areas, residential buildings, construction of highways, transport, traffic, airplanes, railways, explosions, loud music etc. High noise level may impose serious threat to the life of children’s, older peoples, sick peoples, animals etc from permanent hearing loss to psychological effect. The situation is grave in India where 1.3 billion plus people are living with high level of noise pollution.

But if we talk about the solution to this problem there is a provision under Article 21 of the constitution of India providing freedom from the hazardous and life threatening effects from the noise pollution which we will discuss with reference to the case In Re Noise Pollution (2005) and Sushil Chandra Srivastava v. State of U.P.

In Re Noise Pollution [1] 

Facts of the case-

In this case, the petitioner Sri Anil K Mittal, an engineer by profession moved the court by filing a ‘public interest litigation’ requesting the court to direct the government to strictly enforce the various laws for restricting the use of loudspeakers and high volume noise producing audio-video systems.

The immediate reason for filing the case for due to the incident where a 13 years old girl was a victim of rape as reported in newspaper in January 1998 whose cries were not heard due to the harsh noise of music’s over loudspeakers in the neighborhood. Consequently, she burned herself and died of burn injuries.

The petitioner cited many other reasons and examples – that due to the noise created by loudspeakers used in religious performances or singing bhajans in residential areas, use of firecrackers, loudspeakers by political parties can cause inconvenience to all the sections of the society- students, old peoples, newborn babies, patients making their live unhealthy and miserable.

Judgment-

The Supreme Court in this important decision held that under Article 21 every person has the right to live with a noise free atmosphere which cannot be defeated by right under Article 19 (1) (a) of the constitution. A two judge bench comprised of C.J. R.C Lahoti J. Ashok Bhan held that freedom from noise pollution is a part of the right to life under Article 21 of the constitution. All the aspects of human life which makes a person’s life meaningful, complete and worth living is included in it.

Anyone who wishes to live in peace, comfort, and quiet within its own house has a right to prevent the noise as pollutant reaching him. Undoubtedly, the freedom of speech and expression are fundamental rights but this right is not absolute. Under Article 19 reasonable restrictions can be imposed. Nobody can claim a right to create noise by amplifying the sound of speech with the help of loudspeakers. He or she is violating the right of others to live peaceful, comfortable and pollution free noise guaranteed by Article 21.

So Article 19 (1) (a) cannot be used to defeat the fundamental right guaranteed by Article 21.

The court also held that in modern day’s noise alongside water, soil and air has become one of the major source of pollution and it has a serious effect on human health. India is still lagging behind in enacting adequate laws. Secondly, the court suggested that there is need to create general awareness towards the dangerous effects of the noise pollution. Resisting young children’s to burn firecrackers, use of high sound producing equipment, family get together, festivals and religious & social functions should be the target. Role of special talks and lectures, role of children, state, non-government organizations (N.G.Os) can be taken.

The court have also issued various directives:-

  1. The assessment of fire crackers should be done on the basis of chemical composition unless and until replaced by a better system.
  2. There shall be complete ban on bursting sound emitting fire-crackers between 10 P.M. to 6 A.M.
  3. There shall be two categories of fire-crackers one for export and other for the use in own country.
  4. The noise level at the boundary of public place shall not exceed to 10Dba or noise standard area.
  5. No beating of a drum or tom-tom or blow of trumpet or use of amplifier between 10 P.M. to 6 A.M. except in emergencies.
  6. No horn shall be allowed to use at night between 10 P.M. to 6 A.M. in residential area except in exceptional circumstances.
  7. There is a need to create general awareness towards the hazardous effects of noise pollution to children in schools and police authorities.
  8. Need of state to play an active role.

 

In the case of Sushil Chandra Srivastava v. State of U.P [2], the court has imposed absolute prohibition on use on DJs in the state and directed the state government to issue toll free number from which the complainant can register the complaint against illegal use of loudspeakers. The writ was filed by the two petitioner who were aggrieved by the indiscriminate use of loudspeakers in the residential areas in any time.

It is pointed out that the huge LCDs were installed in the residential area which creates harsh sounds and public nuisance in the residential area. It was contented that the 85 year old mother of the first petitioner is suffering from multiple diseases which is causing serious problem in her ears and heart. It was further stated by the second petitioner that his son is studying in class 12th and due to noise pollution he is unable to prepare for his examination.

It was submitted by the petitioner that the authorities have failed to enforce law & order issued by the Supreme Court. In spite of the laws & rules laid down in In Re Noise Pollution and inaction on the part of the concerned authority most of the citizens are feeling disruption and their health is affected by the noise pollution. The High court also observed that State Government and its functionaries had miserably failed to perform their duties cast upon them under the Rules, 2000 also have failed to enforce the direction of the Supreme Court issued from time to time.

 

Directive principle of state policy-

Even the state has the object to make the environment pollution free. Article 48-A requires the state to take steps to protect and improve the condition of environment and to safeguard the forests and wildlife of the country.

Fundamental duty-

According to Article 51-A clause (g) it is the fundamental duty of every citizen to protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion to living creature.

Provision under Cr. P.C.

According to Section 133 of CrPC, the magisterial court have the power to interfere and remove public nuisance at the first occasion, first with a condition order then with a permanent one in case of any nuisance.

Provision under IPC and torts-

In IPC, noise pollution is penalized under section 268-295 of public nuisance and under law of torts damages can be recovered if there is any creation of nuisance from the other person. But for the plaintiff it is necessary for him to comply with the given requirements of tort of nuisance to file a suit for the damages.

Conclusion

Pollution may be of whatever form, they should be given equal importance. As all the types of pollution poses serious threats to the health and life of humans and animals. But today in our society, noise pollution has not been given importance equal to others. It too shows major implications on health but it was only visible to those who suffers it. The judiciary have done well to prevent the noise pollution by providing various provision. But alongside the law, general awareness and responsibility is the key towards prevention of noise pollution with the support of government and non-government organizations.

 

References:-

 

  1. AIR 200 SC 3136
  2. 2019 SCC 3072

Author: Raman Saxena,
Delhi metropolitan education affiliated to GGSIPU (2nd year/law student)

Leave a Comment