The Bombay High Court (HC) has witnessed dramatic developments in the ongoing case relating to ‘noise’. The case is once again being heard by a Division Bench headed by Justice Abhay S Oka with Justice Riyaz Chagla after the fracas on 24 August 2017 when Chief Justice (CJ) Manjula Chellur first moved the noise related cases from this Division Bench and then restored it. For those who have not followed this development, the case was transferred to another bench, after the Maharashtra government, through State Advocate General (AG) Ashutosh Kumbhakoni asked Justice Oka’s Bench to recuse itself from hearing the case because the Bench had made up its mind on the issue.
Justice Oka’s Bench passed an order, refusing to recuse itself, but this fact was not conveyed by the State to the Chief Justice, while placing an application for transfer of the case. The CJ later revoked the decision to transfer the case, but by then there was a public outcry and strong condemnation by the Bar Association as well.
All this came about because the Ministry of Environment, Forest and Climate Change (MoEFCC) amended the Noise Pollution (Regulation and Control) Rule 2000 (Noise Rule 2000) on 10 August 2017 removing the specified criteria defining Silence Zone, permitting State Governments to notify areas of Silence Zones as it deemed fit. This meant that until the State Government notified this, technically there was no Silence Zone in any state including Maharashtra.
Thane-based Dr Mahesh Bedekar (represented by Adv SM Gorewadkar), supported by Sumaira Abdulali of Awaaz Foundation from Mumbai (Adv Birendra Saraf) and Ajay Marathe from Navi Mumbai (Adv Anil Anturkar) filed a public interest litigation (PIL) challenging the Constitutional Validity of the Amendment. The Bombay HC set up a Division Bench headed by Justice Mohta to hear this PIL. This Bench gave a date much after the current festive season while denying a stay on enforcement of newly amended Noise Rule 2000.
The Bench of Justice Oka and Justice Chagla was hearing the cases of non-compliance of the Order of his Bench given in August 2016. During the hearing on 23 August 2017, when the question arose about the Silence Zone per amended Noise Rule 2000, Justice Oka mentioned that the Order of August 2016, issued by his Bench will continue to be fully in force and the criteria that defined Silence Zones shall continue to hold good until the PIL challenging the Constitutional Validity of the Amendment is heard and disposed. Fearing that the Bench of Justice Oka and Justice Chagla will disallow use of loudspeakers in Silence Zone during the 10-day Ganapati festival beginning 25 August 2017 and then three weeks later the during Navaratri festivals, the AG made an application to the Chief Justice Chellur to withdraw Noise related cases from the Bench of Justice Oka and Justice Chagla.
There has been considerable hue and cry by citizens on social media for the ex-parte action of the Chief Justice and on 26 August 2017, members of the Bombay Bar Association (BBA) met and issued their protest while the citizens’ dissatisfaction continued to gather strength. Perhaps the weight or guilt of having done post haste an unjust act may have been rather heavy on the Chief Justice that, on 27 August 2017 itself she rescinded the Order of Transfer and returned the noise related matter to the same Division Bench headed by Justice Oka. Chief Justice Chellur from Bombay HC also constituted a Full Bench headed by Justice Oka and comprising Justice Mohta and Justice Chagla to hear the petition and a PIL challenging the Constitutional Validity of 10 August 2017 amendments made to the Noise Rule 2000.
The State has been under constant requests over the years from some parties or groups of parties who constantly violate the Noise Rules 2000 in their ‘socio-cultural’ activities or events, to dilute the rules. The Government is aware that the enactment of Environment Protection Act 1986 (EPA-1986) and Noise Rule framed in 1989 subsequently diluted to incorporate Indian socio-cultural practices, resulting in coming into existence of the Noise Rule 2000. Some small odd ambiguities have been addressed in subsequent amendments consequent to hearings of PILs in High Courts and the Supreme Court, giving us a robust Noise Rule 2000.
While making these small odd amendments, it is worth noting that, the amendment made to the Noise Rule 2000 per 9 March 2009. It was so compromising that when it was pointed out to the Secretary MoEF on 28 December 2009
, the Ministry looked at this and corrected the error by a notification on 11 January 2010
. For more than seven and a half years, it stood test of time even as there were parties making efforts to bring about a compromised Noise Rule 2000. All of a sudden, the Noise Rule 2000 was again amended by the Central Government to accommodate Maharashtra’s request on behalf of parties seeking dilution.
Fundamentally, Noise pollution infringes article 21 Right to Life of our Constitution and needs to be dealt with it as such. Over the years petitions heard under several PILs in various High Courts in the country and Supreme Court have held that much thought has been given in framing the Noise Rules 2000 and suitable amendments made to eliminate ambiguities when found and dilute the Rules reasonably. All have held that further dilution and violation of Noise Rule 2000 cannot be tolerated.
It is not that Bombay HC had been giving orders based only in accordance with the letter of the Noise Rule 2000. The HC has given directions to party seeking to use loudspeakers and instruments on whose use loud noise emanate, how to go about it in order to be within the decibel limits specified in the Noise Rule 2000. For example, the case of Shiv Sena holding its annual Vijaya Dashami ‘social cum cultural’event at Shivaji Park, a declared silence zone. Shiv Sena approached the Court in order to obtain permission, which was denied by the Municipal Corporation of Greater Mumbai (MCGM) on the grounds of Shivaji Park being a Silence Zone. Both, the application for permission and denial of permission would be timed close to the event, and hence the High Court would grant permission provided, essentially, the Party uses low powered distributed loudspeaker system (concerning Noise). Shiv Sena would agree to do so but in reality it would only reduce number of loudspeaker units and never had provided distributed speakers at low power. Strict adherence to the HC directive was neither desired by the Shiv Sena nor insisted upon by enforcing authority and as expected, the unacceptably high noise levels diminished very marginally. This happened even as late as last year’s Vijaya Dashami (of 2016). It is an enforcement issue that can be easily handled if government was keen to do so. The Order of August 2016 demands compliance.
On 5 November 2012, the then Chief Justice Mohit Shah of the Bombay HC had organised a collective hearing of all Noise related petitions so that, as he put it at the outset of the collective hearing, the cultural activities did not get restricted due to provisions in the Noise Rule 2000. There is a 26 page write-up “Notes on Noise For Hearing on 11 Dec 2012
” prepared by the author of this piece . The fact is that there is no restriction on holding cultural events so long as it is held in enclosed premises, well insulated from sound perspective. It is clear that on grounds open to air or even in enclosed premises with open doors and windows, whatever restrictions have been spelt out in the Noise Rules 2000, these must be adhered to.
(This is first part of a two part series)
(Sudhir Badami is a civil engineer and transportation analyst. He is on Government of Maharashtra’s Steering Committee on BRTS for Mumbai and Mumbai Metropolitan Region Development Authority’s Technical Advisory Committee on BRTS for Mumbai. He is also member of Research & MIS Committee of Unified Mumbai Metropolitan Transport Authority. He was member of Bombay High Court appointed erstwhile Road Monitoring Committee (2006-07). While he has been an active campaigner against Noise for more than a decade, he is a strong believer in functioning democracy. He can be contacted on email at [email protected]. Twitter @sudhirbadami https://sites.google.com/site/sudhirbadami/