1. The petitioners are Muslims who belong to the Congregation, which habitually worships at the mosque situated at No. 38/A, Brabourne Road in Calcutta, commonly known as the Murgihatta Mosque.
2. It is alleged that since May 1953, the system was introduced of calling the Azan (call for prayer) through an electrical loud-speaker five times a day. Before a loud-speaker can be installed or operated in a public place, the previous permission of the Commissioner of Police has to be obtained.
As this power is not disputed I need not dwell on the source or nature of it. It does not appear that any previous permission was obtained from the Commissioner for operating the loud-speaker. Several residents of the locality complained against the practice and the Commissioner through the local thana officers countermanded the use of it.
Applications were thereafter made to the Commissioner by some of the residents through the General Secretary of the West Bengal Pradesh Congress Committee and the mutawalli of the Murgihatta Mosque for permission to use a loud-speaker in connection with the Azans. By his letter dated 12-11-1953, the Commissioner has refused to accord permission.
3. This rule was issued by Bachawat J. on the 2nd day of November 1954, upon the respondents to show cause why an appropriate writ should not be issued calling upon the respondents not to give effect to the order of respondent No. 1, countermanding the use of the loud-speaker. The mutawalli respondent is supporting the petitioner.
4. Before I proceed further, I have a few words to say about the use of loud-speakers in connection with religious houses or festivals. The discovery of the means to magnify sound has indeed been a major scientific discovery of the age and is utilised in many useful ways e.g. the telephone, radio etc. But like every modern discovery in science, it has helped to create not merely a heaven but also a hell.
The indiscriminate use of the electric loud-speaker in connection with religious festivals inthe city is a standing grievance of every peace-loving citizen. The most offending instances are theuses to which it is put in connection with Hindufestivals, when the city is racked with the raucous cacophony of a thousand loud-speakers, doling out cheap jazz or cinema music, which isnot only singularly inappropriate to such occasions, but to my mind, destructive of public healthand morals.
I might go so far as to say that in no other civilized country would this kind of thing be tolerated. I am now surprised to hear that the canker has now spread into the precincts of Muslim religious institutions. It may be that what is sought to be propagated in this instance is not profane music but a call to the faithful for offering daily prayers, but the objection remains.
What is distasteful and abhorrent in thehouse of man is singularly inappropriate and even irreverent when used in the house of God, Prayer is intended to be a silent communion with the creator, it does not call for a tumultuous prelude or a noisy accompaniment.
5. It is said that the Muslim religion requires that prayer should be offered in congregational manner in a mosque five times a day and that each time, an Azan is to be called, inviting the faithful to prayer.
This much is well known. I think these congregational prayers are a beautiful feature of the Muslim religion, and one remembers with pleasure the romantic sound of an early morning muezzin from the turrets of an upcountry mosque on a misty morning. But to transform this into a noisy fanfare is neither artistic nor necessary. I find nowhere that the religion of the petitioners enjoin it.
6. In my opinion the Commissioner of Police has in no way exceeded his powers or used his discretion in excess of the exigencies of the situation. It is not that he has gone too far. The real grievance is that he has not gone far enough.
7. It is argued by Dr. Chaudhury that India is a secular state and under Article 25 of the Constitution, all persons are at liberty to freely practice their religion.
He says that such liberty has been curtailed by the suppression of the use of loud-speakers to propagate the Azan in a very crowded and noisy locality, where the Azan cannot be heard, unless magnified by some such device as a loud-speaker.
8. This argument overlooks the essential features of Article 25 of the Constitution.
9. In -- 'State of Bombay v. Narasu Appa Mali,' : AIR1952Bom84 , Chagla C. J. said as follows:
'Now a sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is religious faith and belief. If religious practices run counter to public order, morality or health, then religious practices must give way before the good of the people of the State as a whole.'
10. In -- 'Ratilal v. State of Bombay, : AIR1953Bom242 , the Chief Justice of Bombay said:
'There are religions which bring under their own cloak every human activity..... But it wouldbe absurd to suggest that a Constitution for a secular state ever intended that every human and mundane activity was to be protected under the guise of religion.'
11. In -- 'Reynolds v. United States', (1879), 25 Law Ed. 244 (C). Chief Justice Waite said:
'Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.
Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the Civil Government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the Civil Government to prevent her carrying her belief into practice?'
12. The Commissioner points out in his affidavit that the continuous use of loud-speakers would cause great annoyance to people residing in the locality, especially to invalids. He also pointsout that it this practice is, taken up by the numerous mosques in the city it would cause greatinconvenience and annoyance to citizens. I think these observations are perfectly justified.
13. It is next said that there has been a discrimination in this case because the two adjoining mosques viz. Nakhoda mosque and Colootola mosque, have been allowed to use loud-speakers for propagating the Azans. So far as the law is concerned, I can find no discrimination in the law, but what is said is that there has been an executive discrimination.
It is well established that to prove executive discrimination it is necessary to prove that the-discrimination is so widely practised and persistent as to give rise to an inference that the real intention of the Legislature was to discriminate. No such inference can be made on the facts of this case.
There is nothing to show that the circumstances prevailing in all the three mosques are the same. For instance, the Commissioner points out that the Murgihatta mosque is situated in a less crowded locality than the other mosques and so far as the Nakhoda mosque is concerned there exist special reasons why a permission was accorded. Unfortunately, the special reasons have not been mentioned.
However, it is evident from the affidavits that with regard to the other two mosques nobody has yet complained. It would be difficult to say that a thing was causing public annoyance if nobody is in fact annoyed. I hope, however, that the practice wherever it is prevalent, should be put down, and the special reasons mentioned should be carefully looked into.
On the facts before me, I cannot come to the conclusion that there has been any executive discrimination of a description which calls for interference by this Court. I must mention here that Mr. Sen appearing on behalf of the Commissioners has said that if any reasonable proposals are made, viz., that the loud-speaker should only be used on special religious occasions, then the Commissioner would certainly be prepared to consider it on their merits and to find out whether there was any public objection to such a course.
It has also been stated that there exists no intention whatsoever of singling out any particular community for discriminating treatment, particularly in religious matters. The application accordingly fails. The Rule must be discharged. I make no order as to costs. Any interim order that might have been made is vacated.