The Bombay high court on Friday ordered an interim stay on the recent amendment to the anti-noise pollution rules, terming it “ex facie unconstitutional“ as it violates a citizen’s fundamental right to life. It restores all silence zones, including the 1,537 notified areas in Mumbai.The controversial amendment effected on August 10 to the Noise Pollution (Regulation and Control) Rules, 2000, said no area can be a considered a silence zone unless notified by the state government.Maharashtra told the HC that following the amendment, there are no silence zones.

The court held this stand offended Article 14 (Right to Equality) as there is no nexus between the new rules and the object the rules sought to achieve.

The HC also faulted the amended rules, pointing out that the Centre had not followed the mandatory requirement under the Environment (Protection) Act, 1986, to publish a draft amendment calling for objections and suggestions from the public. Neither was any order passed for dispensing with the procedure in public interest. The Bombay high court made it clear that preconditions for making rules are not to be trifled with by governments when it stayed an amendment to the Centre’s Noise Pollution (Control and Regulation) Rules, 2000, on the grounds that it was made without first issuing a public notice.

The court reiterated that the right to peaceful existence without noise pollution is a fundamental right to life and hence, bringing in an amendment that would breach such right was not in public interest.

The HC said the Environment Protection Act, 1986, makes it mandatory for a notice to be issued before tinkering with any rules under it so that the public can offer objections and suggestions to be incorporated. Such notice can be dispensed with only in public interest. The crux of Friday’s HC order was how the court rejected the state’s contention that dispensing with the notice was justified as the amendment was in public interest.

The requirement of a notice seeking objections and suggestions is provided only in certain statutes where public rights are at stake or the proposed modification affects a section of the public. Hence the provision ought to be strictly complied with, the higher judiciary had held in the past.

While “public interest“ is held to be supreme, the apex court has in various judgments upheld the sanctity of a prescribed consultative process over draft rules. In a democracy , the main object of publishing draft rules is to gi ve affected persons an opportunity to object to all or any of the proposed rules, or suggest modifications. It is only when there in urgency in public interest that a rule-making authority may dispense with the procedure.

The Supreme Court has held that there must be valid reasons; such a vital right cannot be dispensed with merely by a superfluous use of the term “public interest“. “In this case, the statute requires such consultation with the public as it is an issue that concerns the public at large and in a democracy , they deserve to be consulted before any such rule is amended,“ said senior counsel J P Cama.

In case of the anti-noise pollution rules, pertinently , almost all earlier amendments by the Centre had abided by the consultative process.