Legal Representation to Curtail Loudspeaker

8/14/2019 Legal Representation to Curtail Loudspeaker

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K.V.DHANANJAY.B.Com. LL.B

Advocate

Date: 12-Mar-2010

To

The Commissioner

State Election

Commission

State of Karnataka

Bangalore 560 052

AND

To

The Administrator

Bruhat Bengaluru

Mahanagara Palike

Bangalore 560 002

To

The Chairman

Karnataka State Pollution

Control Board

Bangalore 560 01

AND

To

The Commissioner of

Police

Bangalore City District

Bangalore 560 001

Copy to:

To

Honble Governor

Sri H.R.Bharadwaj

State of Karnataka

Raj Bhavan

Bangalore 560 001

To

Honble Chief Minister

Sri B.S.Yediyurappa

Government of

Karnataka

Vidhana Soudha

Bangalore 560 001

Sub: To disallow loudspeakers by candidates to the BBMP

election

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Respected Sir

I write here to make a legal representation on behalf of

Karnataka Unaided Schools Managements Association

(KUSMA, for short), a Registered Society of educational

institutions across Karnataka that do not receive aid or

grant of any kind from the Government, Central or the

State. KUSMA has its office at No.9, Vanivilas Road,

Visveswarapuram, Bangalore 560 004 and is represented

by its President, Sri G.S.Sharma. I state as under:

1. Membership to KUSMA is strictly enforced and the current

membership stands above 1100 educational institutions.

2. KUSMA wishes to express utmost objection to the

use of loudspeakers by candidates in connection

with campaign to the upcoming BBMP election.

3. The months of March and April are the most

critical periods of an academic calendar. The

annual examination in schools is held during this

period. Also, the annual examinations for a

number of collegiate courses are held in these

very months April and May.

4. There have been a series of educational reforms to

ensure that the performance of a student in the

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annual examination is not accorded overwhelming

significance to the exclusion of other factors.

However, notwithstanding reforms, the

performance in annual examinations continues to

be a matter of utmost concern for students and

their parents.

5. It may further be noted that a substantial number

of students embark upon a serious study of their

subjects only a few days or weeks prior to the

examinations. Consequently, the months of March

and April deserve special attention by authorities

which enforce laws regulating sound pollution.

6. The deleterious effects of noise upon the human

mind has been the subject of numerous academic

and medical studies. There is unanimity of

scientific opinion on one aspect a student keen

to focus upon a subject for study is bound to be

distracted upon the introduction of an external

noise; louder the noise, greater is the distraction.

7. In terms of data published by the Government of

Karnataka, 1115894 students are enrolled in Standards 1

to X in schools across the city of Bangalore. Another 5

lakh students are estimated to be enrolled in pre-

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university, under-graduate, post-graduate, diploma,

professional, vocational or other institutes across the city

of Bangalore. As such, the use of loudspeakers in the

BBMP election is bound to affect a significant proportion

of approximately 16 lakh students in the city of

Bangalore.

8. The right to education is no ordinary right. It is not

a mere statutory right either it is a core

constitutional, fundemental right. If a citizen of

this country is entitled to hold his right to

education as a fundamental right, he should

expect protection against external disruption

before and during his examinations. Students inBangalore who happen to study for examinations

during the campaign phase of the BBMP election

are bound to be gravely affected should

authorities allow candidates to use loudspeakers

for the purpose of campaign.

9. A candidate to an election has no right of any

nature to insist upon the use of a loudspeaker for

the purpose of campaigning in view of the laws

already made in this regard. A candidate has a

right to use a loudspeaker only so long as a

competing candidate is allowed the use of a

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loudspeaker so as to ensure that there is no

discrimination. But, where authorities determine

that public interest demands that loudspeakers be

disallowed altogether for the purpose of

campaigning, no candidate is legally entitled to

insist that the authorities are bound to allow him

to use a loudspeaker during elections.

10. The use of a loudspeaker in a public place in India has

always been the subject of regulation by the jurisdictional

police or Magistrate. The laws made in this regard are

discussed below.

11. Further, even if loudspeakers were allowed on the

condition that they shall be operated only during

designated hours, the student community in Bangalore is

bound to be affected in view of the fact that the reading

habits of students do not follow any fixed pattern

students study at different hours of a day or night.

12. In relation to the State of Karnataka, there are severalstatutes, notifications, circulars and executive

instructions that touch upon the use of loudspeakers, in

general, and during elections. When these laws are

specifically considered in their application to the city of

Bangalore, I would like to state that:

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13. The Karnataka Police Act, 1963 is the principal

consolidating statute in Karnataka that provides for the

regulation of the State Police and for maintenance of

public Order.

14. Section 31 of the Karnataka Police Act, 1963 authorises

the Commissioner or the District Magistrate to make rules

for the preservation of order in public places. In respect

of the city of Bangalore, the Commissioner of Police1 is

generally invested with powers to regulate to the

exclusion of the District Magistrate in relation to matters

governed by the Act.

15. Section 31 of the Act, in relevant part, states:

31. Power to make Orders for regulation of traffic

and for preservation of order in public places, etc.

1 Section 7. Commissioner.(1) The Government may appoint a Police

Officer not below the rank of a Deputy Inspector-General of Police to be the

Commissioner of Police for the City of Bangalore or any other area

specified in a notification issued by the Government in this behalf and

published in the official Gazette.

Provided also that in any area for which a Commissioner is appointed and

is empowered to exercise any power or perform any function or duty under

this Act, the District Magistrate shall not exercise the same power or

perform the same function or duty notwithstanding the fact that such area

forms part of a District within the territorial jurisdiction of the District

Magistrate:

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(1) The Commissioner and the District Magistrate, in

areas under their respective charges or any part thereof,

may make, alter or rescind orders not inconsistent with

this Act, for,

(n) licensing, controlling or, in order to prevent

obstruction, inconvenience, annoyance, risk, danger or

damage to the residents or passengers in the vicinity,

prohibiting the playing of music, the beating of drums,

tom-toms or other instruments and blowing or sounding

of horns or other noisy instruments in or near streets or

public places;

(r) licensing, controlling or, in order to prevent

obstruction, inconvenience, annoyance, risk, danger or

damage to the residents or passengers in the vicinity,

prohibiting,

(iii) the using of a loudspeaker in or near any public

place or in any place of public entertainment;

16. Accordingly, the Commissioner of Police has, in discharge

of his duties under the above provision, issued

instructions requiring any person who wishes to use a

loudspeaker in a public place to obtain a prior permission

in writing of the jurisdictional police.

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17. Further, Section 37 of the Karnataka Police Act, 1963

provides that:

37. Licensing use of loudspeakers, etc.(1) Subject

to the provisions of section 36 and of any orders made

under section 31, no person shall use or operate,

i. in or upon any premises any loudspeaker or otherapparatus for amplifying any musical or other sound,

at such pitch or volume as to be audible beyond fifty

feet from such premises;

ii. in any open space any loudspeaker or other apparatus

for amplifying any musical or other sound, at such

pitch or volume as to be audible beyond two hundredfeet from the place at which the musical or other

sound is produced or reproduced, except under and in

accordance with the conditions of a licence granted by

the Superintendent or in such local area by such other

officer as the State Government, may, by notification

in the official Gazette specify in this behalf.

(2) The provisions of sub-section (1) shall be applicable to

such area from such date as the Government may by

notification in the official Gazette specify. On the

application of sub-section (1) to any area, no local

authority shall, notwithstanding anything contained in

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any other law, be competent to grant a licence for the

use of loudspeakers or other apparatus for amplifying

any musical or other sound.

18. As such, in view of the provision stated above, the

Commissioner of Police retains an independent power to

disallow use of loudspeakers by candidates on the ground

that such use is bound to affect students preparation

and performance in examinations.

19. Accordingly, it is hereby represented to the

Commissioner of Police for the Bangalore city that

the interest of students demands that the

Commissioner of Police disallow the use of

loudspeakers by candidates contesting to the

BBMP election. In order to so forbid, the

Commissioner of Police is hereby requested to

instruct appropriate officers under his jurisdiction

to disallow the use of loudspeakers by candidates

to the BBMP election.

20. In relation to the State Election Commissioner, it is stated

that the 73rd Amendment to the Constitution of India

mandates the creation of a State Election Commission.

Article 243K has been accordingly inserted to the

Constitution of India to provide for the establishment of a

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State Election Commission consisting of a State Election

Commissioner to be appointed by the Governor.

21. Article 243ZA mandates the holding of elections to

Municipalities2. The State Election Commission is vested

with the authority in this regard.

22. Accordingly, the State Election Commission retains

complete authority to disallow use of loudspeakers by

candidates to the BBMP elections on the ground that to

allow use of loudspeakers tends to injure the interest of

students preparation and performance in examinations.

23. In this regard, the State Election Commission has issued

several instructions that largely borrow from instructions

issued by the Election Commission of India [issued by the

Election Commission of India, in terms of Article 324 of

the Constitution of India].

24. In this regard, an instruction No.3/8/2000-J.S.II dated

26.12.2000 issued by the Election Commission of India to

the Chief Electoral Officers of all States and Union

Territories may be noted:

2 243ZA. Elections to the Municipalities (1) The superintendence,

direction and control of the preparation of electoral rolls for, and the

conduct of, all elections to the Municipalities shall be vested in the State

Election Commission referred to in Article 243K.

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INSTRUCTION SL. No. 38

Election Commissions letter No.3/8/2000-J.S.II dated

26.12.2000 addressed to the Chief Electoral Officers of all

States and Union Territories.

Subject: Use of Loudspeakers for election

campaigns- Consolidated instructions

1. All political parties, candidates and their workers,

supporters and sympathizers are using loudspeakers for

their electioneering campaigns. These loudspeakers are

not only used from fixed rostrums but are also used

mounted/fitted on vehicles like trucks, tempos, cars,

taxis, vans, three wheeler scooters, cycle rickshaws, etc.

These vehicles move on all roads, streets and lanes and

also go around villages, basties, Mohallas, colonies and

localities with the loudspeakers broadcasting at very

great volume. This results in serious 'noise pollution' and

causes great disturbance to the peace and tranquility of

the general public. The student community, in

particular, gets seriously disturbed as their

studies are badly hampered because the

loudspeakers start blaring from very early hours in

the morning and continue to do so throughout the

day and till extremely late hours in the night. The

aged, the infirm and the sick whether in institutions,

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hospitals, etc. or at home are also put to severe

discomfort.

2. The Commission is aware that the use of loudspeakers

cannot be stopped altogether during the election period

as the loudspeakers are one of the means of election

propaganda and imparting information to public. But. at

the same time, indiscriminate and unfettered use of

loudspeaker at odd hours and at odd places at very high

volumes which have the effect of disturbing peace and

tranquility and causing annoyance to the general public,

the sick, and the student community in particular cannot

be permitted. Some reasonable restrictions are essential.

3. After considering all aspects of the matter, the

Commission, in exercise of its powers conferred by

Article 324 of the Constitution and all other powers

enabling it in this behalf and in supersession of its earlier

instructions, hereby DIRECTS that the use of

loudspeakers at all future elections shall be strictly

regulated as follows:-

i. The use of loudspeakers, whether fitted on vehicles

of any kind whatsoever, or in static position used for

public meetings for electioneering purposes, during

the entire election period starting from the date of

announcement of election and ending with the date of

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declaration of results shall be permitted only (a)

between 6.00 a.m. and 11.00 p.m in rural areas i.e.

areas outside corporation or municipal Limits: and (b)

between 6.00 a.m. and 10.00 p.m. in other areas, i.e.

areas falling within corporation or municipal limits.

(This para has been substituted vide Election

Commissions letter No.3/8/2005/JS-II, dated 26th

September, 2005 reproduced at Item No.184 as

under:- 3(i) A public addres system or loudspeaker or

any sound amplifier, whether fitted on vehicles of any

kind whatsoever, or in static position, used for public

meetings for electioneering purposes, shall not be

used at night between 10.00 p.m. and 6.00 a.m.

ii. All loudspeakers whether used for general

propaganda or for public meetings or procession, and

whether used on moving vehicles or otherwise, shall

be used during the restricted hours only mentioned in

clauses (ii) above and never beyond.

iii. All loudspeaker being used beyond the hours as

prescribed above, shall be confiscated along with all

the apparatus connected with the use of these

loudspeakers.

iv. All political parties, candidates and any other

persons using any loudspeakers on moving vehicles

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including but not restricted to trucks, tempos, cars,

taxis, vans, three wheeler scooters, cycle rickshaws,

etc. shall intimate the registration identification

number of those vehicles to the authorities granting

permission to use the loudspeakers and such

registration identification numbers of the vehicles shall

be indicated on the permits granted by the authorities

concerned.

v. Any vehicle on which a loudspeaker is used without

the said written permit shall be confiscated forthwith

along with the loudspeaker and all the apparatus used

along with it.

vi. All political parties, candidates and even other

persons using loudspeaker either on a moving vehicle

or at a fixed place shall intimate -

1) the Returning Officer of the Constituency, and

2) local Police authorities, in writing, the full details

of the permits obtained by them before using

any of those loudspeakers. In the case of mobile

loudspeakers, the registration identification

numbers of the vehicles shall also be registered

by them with the Returning Officer and the local

Police authorities.

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vii. It shall be the responsibility of the State

Government authorities granting permits for use of

loudspeakers and the local Police authorities to

strictly enforce that no loudspeaker is used by

anyone in violation of any of the above directions,

4. No loudspeakers fitted on vehicles of any kind or in

any other manner whatsoever shall be permitted to be

used during the period of 48 hours ending with the hour

fixed for the conclusion of the poll in any polling area.

Even after the close of poll, proper law and order is

required to be maintained till completion of election after

the declaration of result. Use of loudspeakers is generally

regarded as source of public nuisance and can often give

rise to tension in a politically surcharged atmosphere.

The District Administrations should, therefore, consider

any application for permission to use loudspeakers after

the aforesaid prohibitory period of 48 hours, on merit of

each application and keeping in view the need to

maintain proper law and order till the completion of

election.

5. The above directions of the Commission, which will

check noise pollution and disturbance of public peace

and tranquility must be scrupulously implemented and

strictly enforced by all State government authorities

concerned. Any violation thereof will be viewed by the

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Commission with grave concern and will invite severe

disciplinary action against the defaulting officers.

6. A copy of this order shall be made available to local

units of all recognized National and State parties in

English/Hindi and in local official languages, and 10 each

candidate at the time of his nomination, under

acknowledgment.

7. The receipt of this letter should be acknowledged

immediately.

25. As may be seen from the above, a positive obligation is

invested in the State Election Commission to not

derogate from the spirit that is contained in theinstruction referred to above.

26. It is hereby represented to the State Election

Commission to appreciate the need for disallowing

use of loudspeakers by candidates contesting to

the BBMP election.

27. It is hereby requested of the State Election

Commission to instruct all candidates contesting

to the BBMP election to not use loudspeakers so

as to protect students preparation and

performance in examinations; it is further

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requested of the State Election Commission to

instruct officers subordinate to it so disallow and

to forbid the use of loudspeakers by candidates

contesting to the BBMP election.

28. In relation to the Karnataka State Pollution Control Board,

it is stated that:

29. The Karnataka State Pollution Control Board is

constituted under Section 5 of theAIR (PREVENTION AND

CONTROL OF POLLUTION) ACT, 1981. The said statute

has been enacted for the purpose of regulating and

controlling air pollution in the country.

30. By a series of amendments, the definition of air

pollution has been amended to include noise or sound

pollution. Sections 2(a) and 2(b) of the statute may be

noted for the purpose:

2(a) Air pollutant means any solid, liquid or gaseous

substance including noise present in the atmosphere in

such concentration as may be or tend to be injurious to

human beings or other living creatures or plants or

property or environment;

2(b) Air pollution means the presence in the atmosphere

of any air pollutant

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31. In this context, it may be noted that the Honble Supreme

Court of India has, in Writ Petition No.72 of 1998 [IN

RE:NOISE POLLUTION -IMPLEMENTATION OF THE

LAWS FOR RESTRICTING USE OF LOUD SPEAKERS],

by a series of Orders, directed authorities across the

country to limit the use of loudspeakers.

32. By an Order dated 18-Jul-2005 in the above matter, the

Honble Supreme Court has directed that:

II. Loudspeakers

1. The noise level at the boundary of the public place,

where loudspeaker or public address system or any other

noise source is being used shall not exceed 10 dB(A)

above the ambient noise standards for the area or 75

dB(A) whichever is lower.

2. No one shall beat a drum or tom-tom or blow a

trumpet or beat or sound any instrument or use any

sound amplifier at night (between 10.00 pm and 6 a.m.)

except in public emergencies

3. The peripheral noise level of privately owned sound

system shall not exceed by more than 5 dB(A) than the

ambient air quality standard specified for the area in

which it is used, at the boundary of the private place.

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33. The Karnataka State Pollution Control Board is expected

to be aware of the above Order.

34. It is hereby represented to the Karnataka State

Pollution Control Board that it is under a positive

duty to recognise that the use of loudspeakers by

candidates to the BBMP election tends to injure

the students preparation and participation in

examinations.

35. It is hereby requested of the Karnataka State

Pollution Control Board to recognise that, in terms

of Section 17 of the said Act, the use of

loudspeaker by candidates to the BBMP election is

bound to immediately injure students preparation

and performance in examinations and to

therefore, forbid the use of loudspeakers by

candidates to the BBMP election.

36. The purpose of furnishing a copy of this representation to

the Honble Governor and to the Honble Chief Minister isapparent enough the Honble Governor and the Honble

Chief Minister possess adequate legal powers to compel

the authorities to discharge their obligation to protect

students preparation and performance in examinations

by also directing the authorities to disallow the use of

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loudspeakers by candidates contesting to the BBMP

election.

Sincerely

K.V.DHANANJAY

(ADVOCATE)

FOR KUSMA

(Sri.G.S.SHARMA)

(PRESIDENT)

Advocate

No.296, Kamakshipalya

Magadi Main Road

Bangalore 560 079

No.43, Ajantha Apartments

(No 36), I.P. Extension

Near AVB Public School

Patparganj

New Delhi 110092

Mobile: 09902909390

[email protected]

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