Noise Pollution is violative of Article 21 of the Constitution of India

#slienceplease
What about my right to silence?

“Life is a succession of moments. To live each one is to succeed.” – Justice Corita Kent

Environment is an aggregate of all external conditions and influences affecting the life and development of an organism. Once it is disturbed, no better living conditions for human beings can be created. Hence to make the enjoyment of life more meaningful, the preservation and protection of natural environment must be given priority and the human activities causing ecological imbalance must be stopped forthwith. Justice P. A. Choudhary of Andhra Pradesh High Court, while expressing his views on the need of environment in the enjoyment of life and personal liberty under Article 21 of the Indian Constitution in T. Damodar v. State of Andhra Pradesh has rightly observed: “The enjoyment of life and its attainment and fulfilment guaranteed by Article 21 of the Constitution embraces the protection and preservation of natural gifts without which life cannot be enjoyed.”

Noise may be safely defined as unwanted sound. What is pleasant to some ears may be extremely unpleasant to other, depending on a number of psychological factors. Noise pollution can be divided into two categories viz. natural and man-made. Natural causes of noise pollution are air, noise, volcanoes, seas, rivers, exchanging voices of living organs including man and animals and likewise. Some of the chief causes of man-made noise pollution are machines and modern equipment of various types, automobiles, trains, aeroplanes, use of explosive, bursting of firecracker and other things leading to noise pollution. Noise affects human life in many ways. It affects sleep, hearing, communication and mental health and physical health and finally the peace of living. It may even lead to madness in persons.

Pollution is derived from the Latin word polutus which means ‘defiled or to make dirty’. It is a noun derived from transitive verb ‘pollute’, which according to Random House Dictionary of English Language means: to foul, to dirty the air etc. An important component of air pollution which is assuming importance is the Pollution from Noise. Noise is an inescapable by product of industrial environment, which is increasing very fast with the advancement in industrialization and urbanization. The Industries located in the residential areas such as the printing press, agro based industries, automobiles repairing, grinding mills etc., are the main sources of community noise affecting public continuously living in the vicinity.

Noise not only causes irritation or annoyance but it does also constrict the arteries, and increases the flow of adrenaline and forces the heart to work faster, thereby accelerating the rate of cardiac ailment, the reason being that continuous noise causes an increase in the cholesterol level resulting in permanent constriction of blood vessels, making one prone to heart attacks and strokes. Health experts are of the opinion that excessive noise can also lead to neurosis and nervous breakdown.

Noise is measured in decibel (dB). Experts believe that continuous noise level in excess of 90 decibels can cause loss of hearing and irreversible changes in nervous system. World Health Organization (WHO) has fixed 45 decibels as the safe noise level for a city, though the four metropolitan cities of Mumbai, New Delhi, Kolkata and Chennai, usually registered an average more than 90 decibels, while Mumbai is rated as the third noisiest city in the world. New Delhi is said to be closely following Mumbai in noise pollution and if control measures are not taken to reduce sound level, result would be alarmingly disastrous.

In the days before the development of environmental jurisprudence, the Common Law Remedy against nuisance was the only means available to curtail excessive noise, and this was wholly based on the discretion of the judge. Whether a particular noise constitutes a nuisance, after all, is often a question of degree. The development of standards for public conduct, as well as case law in this area, has led to significant changes in our understanding of noise pollution and the measures adopted to check it.

Various laws address the issues of noise pollution in part, as being specific to certain activity.Viz

Railways Act, 1890 and noise: A large amount of noise pollution is advanced by the noise emitted from railway engines and carriages. There is no check to curb this noise pollution under the Railways Act, 1890 (Act No. IX OF 1890) statutory authority for the use of locomotives to railways administration.

The Motor Vehicles Act, 1988Vehicles are one of the chief noise producing irritants in modern times. The Motor Vehicles Act, 1988 through sections 20, 21 (j), 41, 68, 68 I, 70, 91 and 111 empowers a State Government to frame rules for the un keep of motor vehicles and control of noise produced by them in this jurisdiction. It is submitted that the Motor Vehicles Rules made by States do not contain any effective control measures to control noise pollution except a meagre control of horns and silencers of the motor vehicles.

The Aircrafts Act, 1934: Under Section 5 of the Aircrafts Act 1934 Central Government has power to make rules for manufacture, possession, use, operation, sale, import or export any aircraft and this may cover the regulation of air transport services and the prohibition of the use of aircraft. The Act has many other provisions but there is no provision for the control of noise. In this regard it is suggested that aerodromes be constructed far away from the residential areas of a city in order to protect residence from the noise created by frequent take off and landing.

The Factories Act, 1948: It is very surprising that no industrial law provides any protection to the workers from noise pollution. Section 11 (I) of the Act stipulates that every factory shall be kept clean, without having any nuisance and in particular the use of word ‘nuisance’ in section II may include ‘noise’, but it is very high time that the employees should be protected from noise pollution by making some statutory provisions in the industrial laws. It is also very amusing that under section 35 of the Act, protection is given for the eyes of an employee working but as such no protection is provided to the ears.

Article 21 of the Constitution of India- Protection of Life and Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.

Article 21 starts with a negative word but the word “No” has been used in relation to the word ‘deprived’. The object of the fundamental right under Article 21 is to prevent encroachment upon personal liberty and deprivation of life except according to procedure established by law. Article 21 of the Constitution deals with prevention of encroachment upon personal liberty or deprivation of life of a person.

Personal liberty means a bundle of rights, essential for the existence of human life. In Maneka Gandhi v. Union of India, the Supreme Court pointed out that the expression “personal liberty” does not mean only liberty of the persons but also liberty or rights attached to the person (Jus-personam). A division bench of the Delhi High Court observed in AV Chardel v. Delhi University that the expression “life and personal liberty includes a variety of rights, which though not enumerated in Part-III of the Constitution, can be included in various aspects of liberty provided they are necessary for the full development of human personality. Further in Francis Coralie v. Union Territory of DelhiJustices PN Bhagwati, Fazal Ali, Murtaza, while stressing the quality of life and its enjoyment within the purview of Article 21 have rightly said: “The right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. The right to life includes the right to live with human dignity and all that goes along with it.”

Thus the expression “personal liberty” is not confined to the protection of limb and faculty but includes everything essential for the enjoyment of life with all human dignity.

A very important question how far the violation of liberties essential for life caused by the environmental pollution lies within the scope of Article 21 has been discussed by the High Court of Andhra Pradesh.

Damodar Rao v. S. O. Municipal Corporation, Hyderabad. It observed: “The enjoyment of life and its attainment and fulfilment guaranteed by Article 21 of the Constitution embraces the protection and preservation of nature’s gifts without which life cannot be enjoyed. There can be no reason why practice of violent extinguishment of life alone should be regarded as violative of Article 21 of the Constitution. The slow poisoning by the polluted atmosphere caused by environmental pollution and spoliation should also be regarded as amounting to violation of Article 21 of the Constitution.

Similar question has recently been discussed by Rajasthan High Court in LK Koolwal v State, while issuing the writ of mandamus against the municipal corporation of Jaipur, the Court observed: “Maintenance of health, preservation of sanitation and environment falls within the purview of Article 21 as it adversely affects the life of the citizen and it amounts to slow poisoning and reducing the life of the citizens because health hazards are created.”

Rights to sleep, food, recreation, peaceful living and conversation, etc. are such basic liberties without which the enjoyment of life with all human dignity is not possible. If these were disturbed by noise, their violation would certainly lie within Article 21 of the Constitution especially in those cases where the license for the use of such sources of noise has been granted directly by the state administration or indirectly through its corporate bodies. In these circumstances the state should not be allowed to run away from its responsibility if it fails to control the manner of use of such sources of noise which ultimately results into the violation of personal freedoms besides causing a problem of environmental pollution through noise.

After Narasu Appa Mali case in the Bombay High Court, nothing much was said or done about regulating noise from religious establishment due to sensitive religious sentiments prevailing in the Country. The Court have approached the subject of regulating noise in religious institutions with caution and reverence and most of the decision have been based on the bare facts of the case without the Judiciary touching any aspect about the religious practices.

In Biranagana the Court upheld that power of the Sub-Divisional Magistrate under Sec. 34-A of the Police Act 1861 to direct a religious organization against the use of microphones, which might hinder the rights of citizens to lead a life of peace and tranquillity.

A right belongs to human personality and not to a mechanical device. Relying on various scientific studies which show the negative impact of noise on human beings, the court held that the compulsory exposure of unwilling persons to high noise level would amount to a clear infringement of their constitutional guarantee of right to life under Art. 21. The right to a safe environment including safe air quality and noise level was implicit in the right to life guaranteed according to Art. 21 of our Constitution.

Two decisions in this regard delivered by High Courts have been brought to our notice wherein the right to live in an atmosphere free from noise pollution has been upheld as the one guaranteed by Article 21 of the Constitution. These decisions are – Free Legal Aid Cell Shri Sugan Chand Aggarwal alias Bhagatji v. Govt. of NCT of Delhi and others, AIR (2001) Delhi 455 (D.B.) and P.A. Jacob v.Superintendent of Police, Kottayam, AIR (1993) Kerala. Those who make noise often take shelter behind Article 19(1)A pleading freedom of speech and right to expression. Undoubtedly, the freedom of speech and right to expression are fundamental rights but the rights are not absolute. Nobody can claim a fundamental right to create noise by amplifying the sound of his speech with the help of loudspeakers. While one has a right to speech, others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody can claim that he has a right to make his voice trespass into the ears or mind of others. Nobody can indulge into aural aggression.

The Noise Regulation Rules fails to check noise in cinema theatres and other in-house public events or even for that matter disco shows and musical concerts. Moreover the rules are silent on noise from vehicles, which is regulated by the Motor Vehicles Act 1988, which though regulates the use of multi toned horns is hardly implemented and enforced. Horns of the police siren and ambulance are still used in ordinary transport vehicles and buses are popular with their threatening air horns. This not only creates panic among the fellow riders, but might led to lot of health hazard from the already increased problem of high number of vehicles and stress on urban roads. The issue of mufflers or silencers in vehicles is hardly been seen by people as contributing to noise pollution. Euro-I buses by Ashok Leyland and those used by the KSTRC have sound higher than ordinary vehicles, without any muffler in the engine or exhaust pipe.

The Judicial response has been tremendous and appreciable, but the reality of ground remains unchanged. Only the people’s movement might bring about this and it is time that people take this challenge. The issue of environment must be integrated as a multidisciplinary study and a comprehensive legislation must be evolved to deal with noise pollution. Effect of noise on health is a matter which has not yet received full attention of our legislatures. Pollution being wrongful contamination of environment which causes material injury to the right of an individual, noise can well be regarded as a pollutant because it contaminates environment, causes nuisance and affects the health of a person and would, therefore, offend Article 21, if it exceeds a reasonable limit.

Author- Advocate Lubna Yusuf

Post first published on http://www.lawyersclubindia.com

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