One area of focus of the “Clean Sri Lanka” programme initiated by the new government that has enthused the people at large is the drive to clean the environment.
People affected by intense noise hope that cleaning the environment will not be limited to keeping public spaces clean but will also address the issue of noise pollution.
This is evident from letters to newspapers and social media posts calling upon the authorities to deal with noise pollution from varied sources, such as entertainment, places of religious worship, vehicular traffic, construction and industrial activities as part of “Clean Sri Lanka”.
I write this piece not only as one having an interest in fundamental rights but also as a victim of noise pollution.
In the locality where I live, off Rajagiriya, residents have for years been subjected to intense noise forced upon them, mainly by music but also by fireworks, emanating from events conducted on the premises of a government-owned institution.
Complaints to the institution, as well as to the Police, bore no results.
I refrain from naming the institution as the matter is under investigation by the Human Rights Commission, and the new management of the institution has promised us that remedial measures will be taken.
While the “Clean Sri Lanka” programme was in full swing, a group of tourists participating in a musical event in the Weligama area had objected vociferously to the Police prohibiting the use of loudspeakers after 10 p.m. when the period for which a permit had been issued ran out.
One female tourist is heard in a video of the incident that not allowing the use of loudspeakers will adversely affect tourism.
Reacting to the incident, two government spokespersons said that the present government cannot be blamed as the Police were only giving effect to a judgment of the Supreme Court.
Not stopping at that, they said that steps would be taken to have the judgment revised.
It might interest readers to know that the then Deputy Minister of Tourism, Diana Gamage, made a similar statement in October 2022.
Supreme Court on noise pollution, Ashik v. Bandula
The judgment referred to is Ashik v. Bandula and others, reported in [2007] 1 Sri Lanka Law Reports on page 191 which was widely welcomed.
The case commenced as a fundamental rights application by the trustees of a mosque in Weligama against the Police for refusing a loudspeaker permit.
The Police contended that residents in the area had complained of noise pollution due to the excessive use of the loudspeakers by three mosques.
The Supreme Court noted that the application raised fundamental issues with regard to sound pollution and standards that the Central Environmental Authority (CEA) should enforce.
The CEA was accordingly added as a party.
Environmental Foundation Limited was permitted to intervene.
The court proceeded with the case as being of public interest.
Noting that our country has probably the oldest jurisprudential tradition of a secular approach in dealing with a public nuisance, the Court referred to the 1895 case of Marshall v. Gunaratne Unnanse where the Supreme Court upheld that conviction of the principal trustee of a Buddhist Vihara in Colombo who was charged under the then applicable section 90 of the Police Ordinance for creating noise in the night and disturbing the neighbourhood.
The Supreme Court referred to Re Noise Pollution, a celebrated case decided by the Indian Supreme Court, noting that the latter Court had firmly rejected the contention that there is a fundamental right to make noise associated with the freedom of speech and expression.
The Chief Justice of India delved into the etymology of the term “Noise” and noted that it is derived from the Latin word “Nausea”, defined as unwanted sound, a potential hazard to health and communication dumped into the environment without regard to the adverse effect it may have on unwilling ears.
Chief Justice Lahoti continued: “Noise is more than just a nuisance. It constitutes a real and present danger to people’s health. Day and night, at home, at work, and at play, noise can produce serious physical and psychological stress. No one is immune to this stress.
“Though we seem to adjust to noise by ignoring it, the ear, in fact, never closes and the body still responds —sometimes with extreme tension, as to a strange sound in the night. … Noise is a type of atmospheric pollution.
“It is a shadowy public enemy whose growing menace has increased in the modern age of industrialisation and technological advancement.
“… Nobody can claim the fundamental right to create noise by amplifying sound of his speech with the help of loudspeakers. While one has a right to speech, and 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 in aural aggression.”
The Sri Lankan Supreme Court held that there was no dispute that people have been denied equal protection of the law by the failure of the executive to establish by way of regulations an effective legal regime as mandated by the National Environmental Act to safeguard the public from the harmful effects of noise pollution.
The facts also reveal that there are no guidelines for the effective implementation of the applicable provisions of law so as to provide to the people equal protection of the law guaranteed by Article 12(1) of the Constitution.
Accordingly, the Court considered it to be just and equitable in the circumstances of the case to make the following directions:
(i) That the emission of noise by the use of amplifiers, loudspeakers or other equipment or appliances which causes annoyance to the public or to the people in general who dwell or occupy property in the vicinity be considered a public nuisance in terms of section 261 of the Penal Code and that the Police should entertain complaints and take appropriate action for the abatement of such public nuisance;
(ii) That all permits issued by the Police under section 80(1) of the Police Ordinance shall cease to be effective forthwith;
(iii) That no permits shall be issued in terms of section 80(1) of the Police Ordinance for the use of loudspeakers and other instruments for the amplification of noise as specified in that section covering the period 10 p.m. (night) to 6 a.m. (morning). Such permits may be issued for special religious functions and other special events only after ascertaining the views of persons who occupy land premises in the vicinity, a record of such matters to be maintained and the grant of any such permit shall be forthwith reported to the nearest Magistrate Court;
(iv) That in respect of the hours from 6.00 a.m. to 10.00 p.m., permits may be issued for limited periods of time for specific purposes subject to the strict condition that the noise emitted from such amplifier or loudspeaker or equipment does not extend beyond the precincts of the particular premises.
(v) Where a permit is issued in terms of section 80(1) as provided in direction (iii) and (iv) sufficient number of Police Officers should be designated and posted to the particular place of use to ensure that the conditions imposed are strictly complied with;
(vi) That the Police will make special arrangements to entertain any complaint of a member of the public against any person guilty of an offence of public nuisance as provided in section 261 of the Penal Code or of using any loudspeaker, amplifier or other instrument as provided in section 80 of the Police Ordinance contrary to any of these directions and take immediate steps to investigate the matter and warn such person against a continuance of such conduct. If the conduct is continued after that warning to seize and detain the equipment as provided in section 80(4) of the Police Ordinance and to report the matter to the Registrar of this Court.
The Inspector General of Police was directed to submit a report to the Court as to the action taken on the judgment.
IGP’s Circular No. 2031/2007 and Crime Circular 17/2007 were issued in conformity with the judgment.
A few years later, following representations made mainly by artists to President Mahinda Rajapakse, the State requested the Supreme Court to extend the time period of permits during weekends. This request was granted.
Accordingly, the Supreme Court directed that musical and cultural shows should be brought to an end at 1.00 a.m. on Fridays and Saturdays and 12.30 a.m. on Sundays.
What is important to note is that no change was made to the strict condition made by the Court that noise emitted from an amplifier, loudspeaker or equipment should not extend beyond the precincts of the particular premises.
Southern hoteliers protest relaxing noise laws
The government’s response to a small group of tourists wanting to make merry, unmindful of the rights of the residents of the area, was clearly a knee-jerk reaction.
Its spokespersons went to the extent of adding that not permitting loudspeakers till late would adversely affect the tourist industry.
These responses triggered an immediate backlash from citizens concerned with the environment, especially those affected by noise pollution.
The Facebook group National Coalition Against Noise Pollution (Shabda Dooshanayata Erehi Jathika Ekamuthuva — type in Sinhala fonts to visit the page) is at the forefront.
The authorities may not have expected opposition from the tourist industry itself.
At a media briefing in Galle on 27 January, the Southern Province Tourist Hoteliers Association said that tourists vehemently oppose intense noise.
There have been instances of tourists demanding that room charges be paid back and moving out when unable to bear the noise.
“Tourists come to Sri Lanka to enjoy the beaches, wildlife and places of historical interest in a relaxing environment. Those who visit discos are drug users. It is they who want noise, not genuine tourists,” the Association explained.
A hotel owner from Unawatuna, who had been in the business for twenty years, said that his clients had asked for their money back and left the hotel when disturbed by the intense noise from discos in the neighbourhood.
If discos are to be operated, the halls must be constructed so as not to let out sound, he explained — the same condition that our Supreme Court had imposed.
A German national whose husband is in the tourist trade in Sri Lanka expressed similar sentiments and blamed Sri Lankan authorities, including the Police, for turning a deaf ear to tourists’ complaints.
That tourists want discos and musical shows at night is a misconception, she added.
Noise pollution laws in other countries
The handful of tourists who enjoy loud noise come from countries where laws on noise pollution are very strict.
In their home countries, can they make noise that affects others even during the daytime?
In Re Noise Pollution, Chief Justice Lahoti referred to laws on noise pollution in several other jurisdictions.
In the United Kingdom, the Noise Abatement Act provides that loudspeakers should not be operated between 9.00 p.m. and 8.00 a.m. for any purpose and at any other time for advertisement, entertainment, trade, or business.
The Noise Act of 1996 makes provision about noise emitted from dwellings at night, about the forfeiture and confiscation of equipment used to make noise unlawfully, and for connected purposes.
In the United States, Congress has declared in the Public Health and Welfare Act that it is the policy of the United States to promote an environment for all Americans free from noise that jeopardises their health or welfare.
For regulating noise caused by announcements through the use of loudspeakers and noise emitted during the nighttime operation of bars and restaurants, local governments shall take measures necessary to protect the living environment, including restrictions on operating hours, in accordance with the local physical and social conditions.
In China, the Law on Prevention and Control of Pollution from Environmental Noise has been enacted to prevent and control environmental noise pollution, protect and improve the living environment, ensure human health, and promote economic and social development. For purposes of this law, “environmental noise”; means sound that is emitted during the course of industrial production, construction, transportation, and social activities and that impairs the living environment of the neighbourhood.
The Indian Supreme Court, in Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare Assn., held that the Court may issue directions regarding controlling noise pollution that was a direct result of and was connected with religious activities.
Justice Shah stated what is well to remember:
“Undisputedly, no religion prescribes that prayers should be performed by disturbing the peace of others nor does it preach that they should be through voice amplifiers or beating of drums.
“In our view, in a civilized society in the name of religion, activities which disturb old or infirm persons, students or children having their sleep in the early hours or during daytime or other persons carrying on other activities cannot be permitted.
“It should not be forgotten that young babies in the neighbourhood are also entitled to enjoy their natural right [to sleep] in a peaceful atmosphere.
“A student preparing for his examination is entitled to concentrate on his studies without [him] being any unnecessary [disturbed] by the neighbours.
“Similarly, the old and the infirm are entitled to enjoy reasonable quietness during their leisure hours without there being any nuisance of noise pollution.
“Aged, sick, people afflicted with psychic disturbances as well as children up to 6 years of age are considered to be very sensitive to noise. Their rights are also required to be honoured.”
Indian courts have continued the trend set by Judges such as Chief Justice Lohati and Justice Shah.
In the 2020 case of Afzal Ansari v State of U.P., the issues that arose were whether prohibiting or restricting the recitation of azan (call to prayer) through sound-amplifying devices during the Covid-19 crisis was violative of Article 25 (Freedom of conscience and free profession, practice and propagation of religion) and whether such recitals violate order or guidelines issued by the state.
The Allahabad High Court held: “[W]e are of the considered opinion that azan can be recited by muezzin from minarets of the mosques by human voice without using any amplifying device and the administration is directed not
to cause hindrance in the same on the pretext of the guidelines to contain the pandemic Covid19, but its recitation through loudspeakers or other sound-amplifying devices cannot be said to be an integral part of the religion.”
Last month, in Jaago Nehru Nagar Residents Welfare Association v. Commissioner of Police, the Bombay High Court emphasised that using loudspeakers for prayers or religious discourses is not an essential part of any religion.
It clarified that such practices are not protected under Article 25 of the Constitution, which guarantees the freedom to practice religion.
The Court stressed that noise pollution poses significant health hazards.
Allowing the unrestricted use of loudspeakers would infringe on the rights of residents living nearby, the High Court held, thus prioritising public interest and health over the claimed religious rights associated with loudspeaker use.
Justice Samayawardhena Committee report
In 2023, the Minister of Justice appointed a committee chaired by Justice Mahinda Samayawardhena, Judge of the Supreme Court, to review laws and regulations related to noise pollution in Sri Lanka to bring them on par with global standard setting.
Members included Parinda Ranasinghe, the present Attorney-General, Director General of the Central Environmental Authority and the Deputy Inspector General of Police (Legal).
The committee submitted its report in March 2024.
It reviewed existing laws and regulations and draft regulations on noise emission prepared by the Ministry of Environment.
The committee also referred to global standards and internationally accepted best practices.
The committee’s recommendations cover varied forms of noise emission.
The committee stated that over the past decade, there has been a significant surge in environmental concerns, particularly regarding the escalating crises impacting our climate and, as a result, the state of human life itself.
The World Health Organization states that excessive noise endangers human health by increasing the risk of diseases such as ischemic heart disease, hypertension, sleep disturbance, hearing impairment, tinnitus, cognitive impairment, adverse birth outcomes and mental health problems.
According to the National Geographic Society, noise pollution affects animals’ ability to survive as they use sound to navigate, find food, attract mates, and avoid predators.
The committee was of the view that noise pollution laws and regulations in the country should be on par with international standards.
The most important recommendation of the Justice Samayawardhena Committee relevant to our discussion is that noise pollution in Sri Lanka should primarily be regulated in accordance with the directions issued by the Supreme Court in Ashik v. Bandula.
Police inaction
One of the main reasons for the continuing noise pollution via loudspeakers is Police inaction.
The Facebook page of the National Coalition Against Noise Pollution is replete with posts giving instances of inaction by the Police.
Interactions with Police personnel show that they have not been adequately briefed on the judgment of the Supreme Court and their own IGP’s circulars.
A typical response when a complaint is made is that the organisers of the event causing noise would be asked to ‘reduce’ the sound.
That the judgment and the circulars require that noise emitted should not extend beyond the precincts of the particular premises is not known to almost all officers.
The Weligama Police need to be congratulated for taking action against the disco owners who violated the conditions of the permit.
It is interesting to note that Ashik v. Bandula also resulted from the refusal of the Assistant Superintendent of Police, Weligama Police, himself a Muslim as the Supreme Court observed, to issue a loudspeaker permit to a mosque due to complaints that there was excessive noise from mosques.
Soon after the Weligama incident, Acting IGP Priyantha Weerasinghe instructed the Kiribathgoda Police to order the Kiribathgoda United Traders Association to desist using loudspeakers to advertise their businesses, causing inconvenience to residents of the area.
This followed complaints by the Viharadhipathi of the local temple and residents.
One hopes that these instances are not isolated and that the Police will follow the Supreme Court judgment and the IGP’s circulars to the letter.
Victims of noise pollution and everyone concerned about ensuring a clean environment will surely hope that saner counsel will prevail and that the government will not attempt to change the status quo based on a Supreme Court judgment that has been widely welcomed and is in consonance with international best practices.
Any such change will violate the fundamental rights to equality and equal protection of the law guaranteed by Article 12(1) of the Constitution and the freedom from cruel, inhuman or degrading treatment guaranteed by Article 11. (Colombo/Feb14/2025)
