IN THE
HIGH COURT OF KERALA, AT ERNAKULAM
Present:
The
Hon'ble Mr. Chief Justice Arijit Pasayat & Justice K.S. Radhakrishnan,
Anand
Parthasarathy Vs. State of Kerala
ARIJIT
PASAYAT, C.J. & K.S. RADHAKRISHNAN, J.
--------------------------------------------------
O.P.Nos.11016
& 26161 OF 1998
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Dated
this the 1st day of December, 1999.
J U D G
M E N T
ARIJIT
PASAYAT, C.J.
These two petitions are inter-linked and, therefore, shall be governed by this common judgment. Petitions are stated to have been filed in public interest. According to petitioner, uncontrolled and unregulated use of explosives results in sound pollution. Fireworks used in connection with festivals and other purposes in Kerala have added to sound pollution which cause health hazards. Though Explosives Act, 1884 (in short, the Act) has been enacted to regulate activities in connection with use of explosives, there are flagrant violations thereof. It is submitted that format which is required to be used by persons when they desire to purchase and use fireworks in tune with Rule 155 of Explosives Rules, 1983 (in short, the Rules) in Form No.29 was hardly used and complied with. By way of illustration, it is submitted that in Adampillykkavu Bhagavathy Temple at Tripunithura, there is flagrant violation of the statutory provisions and authorities are not taking effective steps to stop sound pollution. A copy of Gazette of Inda (Extraordinary) notification No.488 dated 5-10-1999 has been submitted to show that corresponding GSR 682(E) has been issued on 5-10-1999 in exercise of powers conferred by Sections 6 and 25 of Environment (Protection) Act, 1986 (in short, the Environment Act). Amendments have been made to Environment Rules) and standard has been prescribed and the Department of Explosives has been asked to ensure implementation of standards.
2.
Learned counsel for Pollution Control Board has taken the stand that whenever
any infraction noticed, appropriate
steps have been taken. So far as
temple authorities are concerned, they have taken the stand that there is not
infraction at all and under the garb of public interest, petitioner is trying to
get some cheap publicity.
Learned counsel for State submitted that authorities who are required to
take action under the Act or any other statutory provisions governing the field
are taking necessary steps.
3.
"Pollution is noun derived from transitive verb 'Pollute', which, according to
Random House Dictionary of English Language (College Edn. (1977),
means:
(1) to make
foul or unclean, dirty; to pollute the air with smoke.
(2) to make
impure or morally unclean, defile, desecrate to soil,
defile.
Synonym:
1. Soil, befoul, 2. Taint, containable,
corrupt, debase.
According
to Halsbury's Laws of England (4th Edn. Vol. 38), 'pollution' means
"direct or indirect discharge by man of substances or energy into the quatic
environment resulting in hazard to human health, harm to living resources and
aquatic ecosystems, damage to amenities or interference with other legitimate
uses of water". Above definition
relates to pollution of water, and has not covered pollution in general. As regards noise pollution, it simply
connotes unwanted sound in atmosphere.
It is unwanted because it lacks the agreeable musical quality. Noise is, therefore, sound but it is
pollution when effects of sound become undesirable. Encyclopaedia Britannica (Vol.16, 1968,
p.558) has stated:
"In
acoustics noise is defined as any undesired sound. According to this definition, a
sound
of church bells may be music to others. Usually, noise is a mixture of many
bones combined in a non-musical manner".
Encyclopaedia Americanna further states:
"Noise
by definition is unwanted sound.
What is pleasant o some ears may be extremely unpleasant to other,
depending on a number of psychological factors. Sweetest music, if it disturbs a person
who is trying to concentrate or to sleep, is noise to him, just as the sound of
a pneumatic riveting hammer is noise to nearly everyone. In other words, any sound may be noise
if circumstances cause it to be disturbing".
Pollution
as evil thus brings the society to understand that mankind is part of
nature. Richard Maybe, in his
"Handbook on Pollution" observes that 'root cause of pollution probably lies in
the sort of world we have chosen to build to ourselves, and in our thoughtless
worship of progress at any cost.
This amply illustrates that pollution is plain progress
crisis.
4. It is
seen that various environmental laws have failed to afford sufficient remedial
measures for the individual sufferers, and the criminal liability created
thereunder is mostly generalised and is of little avail to the person or persons
who become victims of any pollutant.
Another vital aspect lacking in the environmental laws is that there is
no independent law on noise pollution.
5. In
England, there was an Act called "Noise Abatement act, 1960, Section 1 of which
has been superseded by sub-section (9) of section 58 of the Control of Pollution
Act, 1974. Noise and vibration
generally have been dealt with in 34 Halsbury's Laws of England (4th
Edition, para 324). Part III of the
Control of Pollution Act, 1974 consisting of Sections 57 to 74 of that Act
relates to measures for control of noise pollution. According to Section 58 of that Act,
noise to be actionable must amount to a nuisance in the ordinary legal sense
(see Banbury Urban Sanitary Authority v. Page - (1881) 8 QBD 97). Nuisance need not be a 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. Whether
noise constitutes a nuisance is a question of degree. Yet where the noise is caused
maliciously, same will be taken into account (see Christie v. Daver -
(1893) 1 Ch.316). One celebrated
point, which the Indian law should be emulous of, is the provision under Sec.62
of the English Control of Pollution Act, 1974, operating as perfect control of
street noise, and the term 'street' under that section is defined to mean 'a
highway and any other road, footway, square or court which is for the time being
open to public'. Section 62 of that
Act reads:
"(1) Subject to the
provisions of this section, a loudspeaker in a street shall not be operated
-
(a) between
the hours of nine in the evening and eight in the following morning for any
purpose;
(b) at any
other time, for the purpose of advertising any entertainment, trade or
business;
and any
person who operates or permits the operation of a loudspeaker in contravention
of his sub-section shall be guilty of an offence against this Part
(Part III)
of this Act".
The
words "subject to the provisions of this section" refer to the provisions of
sub-sections (2) and (3) of that section making inapplicable the provisions of
sub-section (1) to the operation of a loudspeaker -
(a) for
police, fire brigade or ambulance purpose, by a water authority in the exercise
of any of its functions, or by a local authority within its
area;
(b) for
communicating with persons on a vessel for the purpose of directing the movement
of that or any other vessel;
(c) if the
loudspeaker forms part of a public telephone system;
(d) if the
loudspeaker -
(i)
is in or
fixed to a vehicle; and
(ii)
is
operated solely for the entertainment of or for communicating with the driver or
a passenger of the vehicle or, where the loudspeaker is or forms part of the
horn or similar waning instrument of the vehicle, solely for giving warning to
other traffic; and
(iii)
is so
operated as not to give reasonable
cause for annoyance to persons in the vicinity;
(e) otherwise
than on a highway, by persons employed in connection with a transport
undertaking used by the public in a case where the loudspeaker is operated
solely for making announcements to passengers or prospective passengers or to
other persons so employed;
(f) by a
travelling showman on land which is being used for the purpose of a pleasure
fair;
(g) In case
of emergency.
Clause
(b) of sub-section (1) of Section 62 does not apply to the operation of a
loudspeaker between the hours of noon to and seven in the evening on the same
day if the loudspeaker -
(a) is fixed
to a vehicle which is being used for the conveyance of a perishable commodity
for human Consumption; and
(b) is
operated solely for informing members of the public (otherwise than by means of
words) that the commodity is on sale from the vehicle; and
(c) is so
operated as not to give reasonable cause for annoyance to persons in the
vicinity.
While
construing the words 'cause of annoyance', it was held in Raymond v. Cook [1958
(3) All ER.407] that it was
sufficient that an instrument was calculated to cause annoyance and it was not
necessary to produce actual annoyance to persons. Provisions of Section 62 have banned the
use of loudspeakers in a street, and the 'street' defined as a highway and any
other road, footway or square or court which is for the time being open to
public, the expression open to public, which also occurs in Section 1(4) of the
Street Offences Act, 1959, seems to have the same meaning as the phrase to which
the public have access. Therefore,
expression 'street' would cover every road, etc. on which members of public are
found who have obtained access without overcoming a physical obstruction or
defying a prohibition express or implied, in other words, have in fact access
either as a matter of right or by tolerance (see Harrison v. Hill - 1932
SC (J) and Buchanan v. Motor Insurer's Bureau - 1955) 1 All ER 607.)
6. 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. Article 19(1)
provides that all citizens have the right -
(a) to
freedom of speech and expression;
(b) to
assemble peaceably and without arms;
(c) to form
associations or unions;
(d) to move
freely throughout the territory of India.
Although
the right as specified in (10, (b), (c) and (d) above is subject to reasonable
restriction imposed or impossible by law in the interest of
-
(i) the
sovereignty and integrity of India;
(ii)
the
security of the State;
(iii)
friendly
relations with foreign States;
(iv)
public
order, decency or morality or in relation to contempt of court, defamation or
incitement to offence;
(v)
general
public.
It may
not be missed that restrictions to be placed in the interest of general public
to obtain in relation only to the right to move freely throughout the territory
of India, which right has not so much to do with the use of a loudspeaker, with
the result that the right to freedom of speech and expression, or to assemble
peaceably and without arms and to form associations or unions, which are
manifest most in advertisement of wares or entertainment shows, speeches of
party leaders or office bearers of any union, the assemblage of guests or
visitors at marriage or birthday parties or at fairs, meals or exhibitions,
street processions or shobha yatras betokening a social or religious festivity,
where use of fire cracker is there or the twists and pop songs heralding a
marriage procession, or the election campaign of a candidate, which must and
shall invariably go with a loudspeaker, and all these are subject to reasonable
restrictions on ground not of noise being a pollutant, but only on grounds of
the sovereignty and integrity of India, the security of the State, friendly
relations with foreign States or public order, decency or morality or in
relation to contempt of courts, defamation or incitement to
offence.
7. One
thing that, can conceivably cover a ban on noise by loudspeakers can, of course,
be decency, but the difficulty again is that the word 'decency' being itself
undefined, public shall have to wait until some verdict of higher judiciary
might declare noise as contrary to decency. A bye-law of a municipality requiring
permission for using a loudspeaker does not infringe Article 19(1)(a). 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). Similar is the case with explosives,
fire cracker, etc. Then comes
Article 25 of the Constitution protecting the freedom of 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 f 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.
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 men's environment.
8. 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 ailments, 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
opinion that excessive noise can also lead to neurosis and nervous
breakdown. There has been a high
incidence of emotional disaster
among people living near airports, as revealed by study. For children, noise not only causes
hearing problems, but also other neurological reactions that make them irritable
and hyperactive, and this has been noted for slowing down the process of
development of the mental faculties of children. A study conducted by a medical team
discovered an increased incidence of birth defect, still births and usually low
weight among children born to mothers living near airports. A study of more than 2,25,000 births in
Los Angels area of U.S.A. by Dr. Nowell Jones, Professor of psychology at the
University of California, proved that there were birth defects among the babies
whose mothers lived in noise polluted areas near international airports compared
to those who lived in quieter places.
Similar results were obtained in a different study near London's
Heathrew Airport. Foetal development is affected if
expectant mother is subjected to continuous noise stress during pregnancy. Result of studies conducted by medical
experts may or may not be accurate, but deserves serious consideration. Abortion because of uproar was known to
the poet Saint Tulsidas, in the
16th century, who sang (The Ramcharit Manas, Sundar Kand 27/1) that
the roar of Hanuman, while back from Lanka, brought abortion to many a demoness
in Lanka. These aspects have been
highlighted by a learned author in a recently published
article.
9.Measure
of noise is known as decibel. Noise
researchers have shown that continuous noise level in excess of 90 decibels
(units of measuring noise are called decibels and one decibel is the threshold
of hearing, 30 decibels come near whispering range and 60 decibels denotes the
level of normal talk) can cause loss of hearing and irreversible changes in
nervous system. World Health
Organisation has fixed 45 decibels as the safe noise level for a city, though
the four metropolitan cities of Bombay, New Delhi, Calcutta and Madras are
usually registered more than 90 decibels and Bombay has been rated as third
noises 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.
10. By
the international standards, a noise level upto 65 decibels is considered
tolerable. In West, concern over
noise pollution has resulted in introduction of noise-proof motor vehicles,
construction of sound barriers on road sides, tunnels instead of fly-Overs and
restrictions on noisy traffic.
11.
Noise pollution has, thus, two sources - industrial and non-industrial, but
movement against noise pollution seems to be not that sound in India as in other
countries, reason, according to environmental experts, being that most of the
people in India do not consider noise as pollution but as part of routine and
modern life. In order to curb noise
pollution, it is essential that people realise that dangerous consequences of
notice and take some remedial measures.
12.
Causes of noise pollution can also 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 mammals.
Some of the chief causes of man-made noise pollution are machines and
modern equipment of various types, automobiles, trains, aeroplanes, use of
explosives, bursting of fire-cracker and other things leading to noise
pollution. Noise affects human
life in many ways. It affects sleep, hearing,
communication, mental and physical health and makes man peaceless. It may even lead to madness of
people. However, noises which are
melodious whether natural or man-made, cannot always be considered as factors
leading to pollution.
13.
Though in the areas of water and air pollution, there are two independent Acts
in India, named as the Water (Prevention and Control of Pollution) Act, 1974 and
the Air (Prevention and Control of Pollution) Act, 1981, there is no independent
Act to deal with the problem of noise pollution. It was after the enactment of
Environment (Protection) Act, 1986, the attention was attracted to noise
pollution. But instead of bringing
any self contained enactment for preventing noise pollution, the Air (Prevention
and Control of Pollution) Amendment Act, 1987 (47 of 1987) was brought to
include noise in the definition of the term 'air pollutant'. Air (Prevention and Control of
Pollution) Act, 1981 was enacted under Article 253 of Constitution of India to
implement the decision taken at United Nations Conference on Human Environment
held at Stockholm in June 1972, in which India participated. Definition clause under Section 2
thereof, being Clause (a) of that section, had defined the expression air
pollutant to mean 'any solid, liquid, or gaseous substance present in the
atmosphere in such concentration as
may be or tend to be injurious to human
being or other living creatures or plants or property or
environment. In view of Section 2(I) of the above Amendment Act
of 1987, definition of air pollutant as now rendered is 'any solid, liquid, or
gaseous substance (including noise) present in the
atmosphere……..".
14. It
appears, Air Pollution Board is preparing specific standards of noise level,
both industrial and ambient noise level, and industries are expected to be asked
to change thei manufacturing processes or to use suitable techniques to keep the
noise level low. Burea of Indian
Standards, it is reported, is also working to fix new standards of noise
pollution levels. As different
level attempts are being made to develop gadgets that would control noise at
source. In the opinion of
scientists, green trees and plants absorb and dissipate sound, energy and air,
therefore, considered to be effective protection against noise. Trees along the streets have been found
to be good absorbers of the sonic bang.
Besides changing traffic patterns in cities of India, what is desired
further is that vehicles must be compelled to fit efficient mufflers or
silencers to reduce noise.
Researchers on noise say that noise levels in excess of 90 decibels for
continuous periods can cause loss of hearing. It can also cause neurological digestive
and metabolical disorder. A single
exposure of 150 decibels is said to cause permanent injury to ear's internal
mechanism. Standard fixed by the
notification dated 5-10-1999 referred to above, lays down the noise standards
for fire-crackers as follows:
"89. Noise standards for
fire-crackers
A. (I) The
manufacture, sale or use of fire-crackers generating noise level exceeding 125
dB(A1) or 145 dB(C) pk at 4. M. distance from the point of bursting shall be
prohibited.
(ii) For
individual fire-cracker constituting the series (joined fire-crackers), the
above mentioned limit be reduced by 5 log 10(N) dB, where N = number of crackers
joined together.
B. The
broad requirements for measurement of noise from fire-crackers shall be
-
(i)
The
measurements shall be made on a hard concrete surface of minimum 5 m. dismeter
or equivalent.
(ii)
The
measurements shall be made in free field conditions ie. There shall not be any
reflecting surface upto 15 m. distance from the point of
bursting.
(iii)
The
measurement shall be made with an approved sound level
meter".
It is
noted that Central Pollution Control Board in January 1990 had adopted
controlling practice for controlling noise from sources other than industries or
automobiles. Norms were as
follows:
"Public address system
-
Licence
must be obtained by all parties intending to use loudspeakers or public address
system for any occasion.
-
Public
address system and loudspeakers should not be used at night between 9 p.m. to 6
a.m. except in closed premises.
-
Loudspeakers
should be directed at the audiences ad not away from audience (ie. Not towards
the neighbourhood).
-
Loudspeakers
should not be allowed for advertisement and commercial
activities.
-
The
permitted strength of the power amplifier should be just adequate to cover the
audience, and noise level beyond the boundary limit of the noise source premises
should not be increased by more than 5 dB above the ambient noise
level.
Bursting
of crackers
-
Manufacture
and sale of crackers having an impulsive noise of more than 90 dB at 5 m.
distance from the site of bursting should be banned.
-
-
Manufacture
and bursting of joined crackers should be banned.
-
Bursting
of crackers during night between 9 p.m and 6 a.m should be
banned.
-
-
Bursting
of crackers should be permitted only during public
festivals".
15.
Environmental situation has to be treated as an emergency situation. Environmental pollution is still
regarded as 'a subject of halting legislation, hypocritical implementation and
helping interpretation', as observed by apex Court. Not only the environmental laws should
be refined in a manner which could give a legal justification to civil
assessment in terms of compensation, but also to be re-avaluated in the matter
that violation of pollution laws should become unnecessary in the times to come,
and this can materialise by providing sufficient incentives to industrials and
education to layman.
16.
Where noise can be said to amount to nuisance, 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
(AIR 968 Cal. 91) that no money
could afford adequate relief on the plaintiff and his neighbours who are thereby
discomforted. It was observed that in determining whether
such noise was actual discomfort, the court is an expert of experts and can need
no opinion evidence of an expert in order to determine whether hammering of
steel plates by hammers upto 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. Pollution of air, or of water or of
atmosphere through noise, continues to be part of and not severable from common
law of nuisance despite the enactment of the Air (Prevention and Control of
Pollution) Act, 1981, Water (Prevention and Control of Pollution) Act 1974 or
the Environment (Protection) Act, 1986.
Purpose of these enactments has been to include the pollution control
measures in the wider conspectus of social justice.
17.
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. Noise pollution
can be curbed by adopting certain measures. Environment eco-friendly technology
should e adopted. Machinery should
be designed and manufactured in such a way that it should not create more sound
than allowable noise limits. Road
should be made sound proof, trees should be planted on both sides of the roads
and outside the big factories and
industries. Public awareness among
masses should be created through seminars, conferences and discussions, etc.
making them vigilant about the evil effects of noise pollution. Houses of God should be kept peaceful
and noise free as it is rightly said that God is not deaf. Flights of Aeroplanes should be also
planned to curb noise. Noise Code
regulating all aspects of noise pollution may be enacted. As the problem of noise pollution has
already crossed the danger point and noise like a smog is threatening as a slow
agent of death, some immediate measures are needed to be taken in this regard,
some of them being as follows:
(1) Prescribed
standards regarding noise by Government of India may be enforced strictly in
letter and spirit;
(2) Separate
Courts regarding noise pollution may be established;
(3) Cases
should be decided within a prescribed time-limit;
(4) All
District Magistrates and Sub Divisional Magistrates should be empowered to issue
prohibitory orders under Sec. 144 of the Code of Criminal Procedure, 1973
limiting the hours of loud-speakers or public address systems in religious
places and for other special gatherings and functions. Regulatory measures regarding use of
fire-crackers should be enforced;
(5) Subject
of environment protection may be made compulsory at school, college and
university levels;
(6) Press
and media should play a constructive role to highlight disastrous effects of
noise pollution and its remedy;
(7) District
administration and State Pollution Control Board shall work out the modalities
to prevent catastrophic effect of noise pollution by ensuring strict compliance
with statutory provisions, scanty though they are;
(8) Both
Central Government and State Government should consider he desirability of
having adequate legislative measures to prevent this fast growing menace which
though appears to be 'silent' has, in fact, potentialities of producing a future
generation of deaf persons; and
(9) Permanent
monitoring bodies should be appointed to make periodic review of the situation
and suggest remedial measures.
Composition of such body has to be determined by State/Central
Government.
Original petitions are accordingly
disposed of.
Sd/-
Arijit Pasayat, CJ.
Sd/-
K.S. Radhakrishnan, J.