Bhat Sairam[1]

The number of people dying in urban India due to deteriorating air quality is rising every year and very little is being done to deal with pollution in Indian cities. In early days before the development of Environmental jurisprudence, the Common law remedy of Nuisance was the only means to remedy, and same was wholly based on the discretion of the Judge. Nuisance need not be public nuisance and interference with a person’s personal comfort is enough, though at least in general, a private nuisance pre-supposes possession and control of land from which nuisance proceeds.[2] Whether noise constitutes a nuisance is a question of degree. Yet where the noise is caused maliciously, same will be taken into account. Noise pollution has, thus, two sources-industrial and non-industrial, but movement against noise pollution, has not been effective, as most  people in India do not consider noise as pollution but a part of routine and modern life. In order to curb noise pollution, it is essential that people realize that dangerous consequences of noise and to take some remedial measures.

Noise by definition is unwanted sound. What is pleasant to some ears may be extremely unpleasant to other, depending on a number of psychological factors.[3] 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. Some of the chief causes of man made noise pollution are machines and modern equipment of various types, automobiles, trains, aero planes, 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. However, noise, which are melodious whether natural or man-made, cannot always be considered as factors leading to pollution.

Pollution is a noun derived from transitive verb ‘pollute’, which according to Random House Dictionary of English Language means: to foul, to pollute 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.[4] Health experts are of the opinion that excessive noise can also lead to neurosis and nervous breakdown.

More often than not it is forgotten that Noise travel through air and hence it is measured in ambient air quality level. Hence Noise is essential as important as air pollution or worse than that, as the health hazard is not immediately know.

Noise is measured in  decibel. Experts believe that continues noise level is excess of 90 decibels can cause loss of hearing and irreversible changes in nervous system. WHO has fixed 45 decibels as the safe noise level for a city, though the four metropolitan cities of Mumbai, New Delhi 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 Bombay in noise pollution and if control measures are not taken to reduce sound level, result would be alarmingly disastrous.[5]

Legal response to Noise Pollution:

Various laws address the issues of noise pollution in part, as being specific to certain activity.[6] Viz

1. 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.[7]

2. The Motor Vehicles Act, 1988[8]                             

Vehicles 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.[9]

3. 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.

4. 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. [10]  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.[11]

The Right to means of expressions and sound:

The Indian Constitution under Art. 19 grants fundamental right to every citizen to freedom of speech and expression, with reasonable restriction of decency,[12] morality, security of State, defamation, incitement of offence etc. The use of loudspeaker as a means of expression is regulated by reasonable restriction so as to meet public order and safety.  Having regard to the provision of Art. 19(1)(a) of the Constitution, it cannot be said that the District Magistrate, Sub-Divisional Officer and the Police authorities are the sole authority who can grant at will permission without having any regard to the fundamental rights of the fellow citizens. Such authorities, by granting permission to display microphones, cannot make the public the captive listeners. The citizen has a right to leisure, right to sleep, right not to hear and right to remain silent. He has also the right to read and speak with others. Amplifiers and microphone create tremendous noise and sound which may travel at least half to one kilometer away. Use of microphones certainly take away the right of the citizens to speak with others, their right to read or think or the right to sleep. There may be heart patients or patients suffering from nervous disorder may be compelled to bear this serious impact of sound pollution which has had an adverse effect on them. It may create health problems.[13]

In India, position is different and the use of loudspeaker assumes the status of a fundamental right by virtue of Article 19(1) and Article 25 of the Constitution

A bye-law of a municipality requiring permission for using a loudspeaker does not infringe Article 19(1)(a).[14]  State can regulate the use of loudspeakers and mechanical or other contrivances to amplify sound, and does not amount to an infringement of the right under Article 19(1) (a).[15]  Similar is the case with explosives, fire cracker, etc.  Then comes Article 25 of the Constitution protecting the freedom , conscience and free profession, practice and propagation of religion, Clause (1) of this Article states:

“Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion”. 

This right is made subject only to public order, morality and health.  Since this right is subject to health, noise caused by loudspeakers, use of fire-cracker and explosives can be prohibited in interest of health, but then again, nexus between noise and health will have to be judicially established.[16]  As to other categories of noise pollution, aeroplanes, trains, card and all varieties of automobile, radio and television sets, have the common symptom to add to the noise, since all of them produce noise, now considered to be the most dangerous pollutant of man’s environment.  The Judiciary on its part has come up with some interesting observation as to the freedom of expression and right to religious practice, with that of Pollution free environment. The Judiciary has made balance between the needs of development and the health of citizens.

The Response of the Judiciary

Effect of noise on health is a matter which has yet not received full attention of our judiciary, but it deserves.  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.

Way back in 1952 the Bombay High Court in State of Bombay v Narasu Appa Mali[17] asked authorities to regulate the use of loudspeakers during night when  the Ganesh and Navratri festivals were being celebrated. The Court ordered the strict implementation of Environmental Acts. Nobody can object on celebration of festivals, but their means of celebration must not disturb the peace and tranquility of the neighborhood was the strict view of the Judiciary.

Where noise can be said to amount to nuisance ,a person causing noise can be restrained by injunction, even though that person was causing noise in the course of conducting his business.  Where the nuisance complained of and found was noise generated by the hammering of steel sheets with hammers varying in weight from half a pound to four pounds , it was held in Godham Construction Co. v. Amulya Krishna Ghose[18]  that no money could afford adequate relief to the plaintiff and his neighbours who are thereby discomforted.  It was observed that in determining whether such noise was actual discomfort, the Court as a expert can need no opinion evidence of an expert in order to determine whether hammering of steel plates by hammers up to four pounds in weight would create a terrific noise or not and whether such nuisance could be wholly abated or not by treating the workshop with the well-known method of acoustics.

The Gujarat High Court in GIDC Housing Association[19] case had something interesting to contribute. In a writ petition filed by the residents of the housing association complaining about noise pollution caused by an Iron and steel factory, the court went into the fact ‘who came first’ rule. According to this rule a person who goes to a place of nuisance cannot complain unless the nuisance began after the resident colony was established. Since the housing colony was within the Industrial estate and was established after the factory was functioning, the court held that the residents had come to the place of nuisance, hence cannot complain. The Court asked the Company on the other hand to stick to standards for noise emission under the Environmental Protection Act.

          On the use of Multi toned electric horns which produce a shrill discomforting sound, the Calcutta high Court in Rabin Mukherjee[20] case held that the State authorities should strictly implement the Motor Vehicles Act 1988 and ban the use of such horns and impose fine wherever necessary.

          The Noise from use and bursting of fire crackers came up before the, the Calcutta High court, in Burrabazar[21] case . Taking a highly activist stand, the court put severe restriction on the manufacture, storage and selling of fireworks even in the absence of specific legislation for controlling noise creators. The High Court relied on the Constitution, specifically Art. 19(1)(a) read with Art 21, to hold that citizens have a right to a decent environment, right to live peacefully, right to sleep at night and right to leisure, which are all the necessary ingredients of the right to life. Recently in Free Legal Aid Cell v. Government of NCT of Delhi[22] the Court directed for the establishment of separate courts  to deal with the problem of noise pollution. Further all District Magistrates should be empowered to issues prohibitory orders under Sec. 144 of Cr.P.C to limit the hours for the use of loudspeakers. The Court directed the Delhi government  to restrict the use of firecrackers in religious festivals, marriages, processions etc.,. It shall be the duty of the area SDM's to see that Noise Control Rules are strictly adhered to and any default in this regard will be treated as misconduct, liable for disciplinary action besides action for disobeying court's order.

Religious right to means of expression:

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[23] 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 tranquility.

The Kerala High Court in P. A Jacob[24] asked a Christianity denomination not to use loudspeakers on the ground that it would disrupt the law and order and it might be inconvenient for the other group of citizens. Rejecting the petitioners claim of freedom of speech and expression, the Court held that ‘ recognition of the right of speech and expression is recognition accorded to human faculty. A right belongs to human personality and not to a mechanical device. Relying on various scientific studies which shows 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.

          In an organized society, rights are related with duties towards others including neighbors. This was reiterated  in Church’s of God[25] wherein the Apex Court came down heavily on the practice of beating of drums and use of loudspeakers early in the morning in places of worship. The Supreme Court has ruled that no religion prescribes this practice. In a landmark judgment, the Court held that no religion prescribes or preaches that prayers are required to be performed through voice amplifiers or by disturbing peace and tranquility. ‘In a civilized society in the name of religion, activities which disturb old, infirm persons, student or children having their sleep in the early hours or during day or other persons carrying on other activities cannot be permitted’.  The Court added that ‘it should not be forgotten that babies in the neighborhoods are also entitled to enjoy their natural right of sleeping in a peaceful atmosphere. Rejecting the contention that by this order the church’s fundamental right under Art. 25 would be violated, Mr. Justice Shah said that the fundamental right to preach religion was subject to public order, morality and healthy. ‘No religion prescribes or preaches that prayers are required to be performed through voice amplifiers or by beating of drums’.

Whether one individual can maintain a writ petition complaining noise pollution as public nuisance.?[26] The fact that one individual approached the Court cannot be dismissed  on the ground that only the petitioner was affected. In Sayeed Maqsood Ali v The State of M. P[27]  a cardiac patient, residing near an Eye Hospital and by the side of a Dharmashala  and near an educational institutions complained to the Court that the State run Dharmashala which accommodates various categories of people and many a religious function  was accused  of producing noise at high level. The Dharmashala was given on rent for the purpose of holding marriages and other functions through out the year and the noise was continuous. In the Dharmashala, loudspeakers were utilized where music was played at a very high pitch creating disturbance to the petitioner and other persons residing in the said locality. The Court upheld the complaint of the petitioner and ordered the restricted use  of such public places.

The Noise Regulation Rule 2000

          Till very recently there was no specific legislation in India to deal with the problem due to excessive noise.[28] In the area of water and air pollution there are two independent Acts, in India, the Water Act, 1974 and Air Act, 1981. The Environmental Protection Act, 1986 is the Umbrella legislation to deal with the every dynamic issue in relation to environmental protection. The Environmental Protection Act in Schedule III prescribes measure of Noise pollution in a very crude form. Keeping in view the serious health hazard due from noise the Government thought it fit to enact a special law in regulation to control Noise pollution. The enactment of the Noise Regulation Rules 2000 under Sec. 3 of Environmental Protection Act, 1986, is seen as a comprehensive legislation in controlling the increase of the noise level in Industrial, [75 decibels] commercial [65 decibels] and residential zones [55 decibels]. The Rules have prescribe different level of noise in these areas, and have entrust the DC of the district to be the regulatory authority for its strict implementation. The Rules mention the creation of silence zones to define the 100 meters from school, courts, educational institutions and hospitals. The following are the highlights of the Rules

1.                 no permission can be granted by any authority for use of public address system in the open after 10.00 pm and before 6.00 am. No exception is possible. Any person or organization making noise on amplified system after 10.00 pm is violation of the law and the person can be prosecuted under the provisions of the EPA 1986.

2.                 Authorities [Sub-divisional Magistrates] can only grant permission for use of amplified public address system in the open for the period 6.00 am-10.00 pm. Only the District Magistrates can grant permissions after 10.00 pm, provides the function is within closed premises. District Magistrates cannot grant permission for use of any amplified public address system after 10.00 pm.

3.                 After permission has been procured the sound must fall within the sound limits prescribed in the Noise Rules. This can be measured on a sound meter.

4.                 Any person violating the Rules, is liable to be arrested under the stringent provisions of the EPA

5. If the authorities do not act to stop violation of the Noise Rules, the citizen who has filed a complaint can approach the Court with his complaint after 60 day’s notice and the Court can initiate prosecution.

6. The rules also fixes different ambient air quality levels for firecrackers and industrial activities. [29]

Conclusion

The Noise Regulation Rules fails to check noise in cinema theaters 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[30] 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 heath 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.[31] Euro-I buses by Askoh Leyland and those used by the KSTRC have  sound higher than ordinary vehicles, where is the muffler in the engine or exhaust pipe? Have the people who have certified these vehicles as Euro I or Barath II no responsibility on checking the noise, and leave it only on air pollution. When are we going to integrate the issue of environment as a multidisciplinary study?. When shall we have a comprehensive legislation on one related issue like pollution, either water or air?

The Judicial response has been tremendous and appreciable, but the reality of ground remains unchanged Only people’s movement might bring about this and it is time that people take this challenge.