The power to regulate can never include the power to prohibit….As they have been regulating the heavy vehicular traffic nearby the temple, church and mosque, they should also regulate the meeting going to be held by the petitioner at Marina beach, the Court said.
Had the then British Government banned Marina Beach from being used for any public meeting, Marina would not have witnessed the presence of Mahatma Gandhi and Thilakar on its sands for the noble cause of Freedom, the Court observed.
In a significant judgment, the Madras High Court, by allowing a ‘river interlinking’ activist, to conduct his ‘peaceful fast meeting’ at Marina Beach for one day, has directed the authorities to identify a suitable space in any part of the beach.
Justice T Raja also observed that it would be logically and ideally proper to consider a part of the Marina for granting permission there to hold the peaceful fasting demonstration, as the enormous space would equally meet both the crowd factor and the surveillance purpose and above all, public nuisance would be sharply less.
P Ayyakannu, state president of the National South Indian River Interlinking Agriculturist Sangam, had sought permission from the authorities to organize a fast at Marina beach to make the people at large aware of constituting the Cauvery Water Management Board. As the authorities did not approach, he approached the high court.
The state, in response to his plea, told the court that no permission was granted to any organization of any nature whatsoever to conduct the demonstration, fast, protest, rally, etc., in the sands of Marina for a longer duration since 2003, in view of the efforts taken to preserve the beaches. It also said that social awareness programmes such as rallies and other social activities including marathons were only permitted on the service lane and not on the sands of Marina, and that too only for one or two hours during non-peak hours. The state suggested alternative places for organizing the peaceful protest, dharna, fast, etc.
The power to regulate can never include the power to prohibit
Referring to some judgments, Justice Raja observed that though police have power to regulate the assemblies and processions, it cannot prohibit them. The court observed: “When the public meeting in open spaces and public streets is held to be forming part of the tradition of our national life, it is practically true that various religious festivals like Vaigunda Ekadasi, Sivarathri, Vinayaga Chathurthi etc., are celebrated by Hindus. When the temples of Lord Vishnu, Lord Siva, Lord Vinayaga are situated all over the cities in Chennai and other places flocked by devotees, it would definitely cause inconvenience not only to Hindus, but also to Muslims, Christians, Parsis and non-believers. That cannot be taken as a reason or a ground for the Police to cancel the celebration of Vaigunda Ekadasi, Sivarathri, Vinayaga Chathurthi festivals. Similarly, for the reason that the Churches located on the main roads in the cities are going to be crowded during Christmas days, for the reason that the celebration of Christmas festival would be causing inconvenience and public nuisance to others, cannot be a ground for cancelling the Christmas festival. Likewise, the respondents cannot refuse to give permission to celebrate Ramzan festival, since the mosque situated in the Big Street at Triplicane in the heart of the city is going to cause inconvenience to the vehicular traffic and to other people. As they have been regulating the heavy vehicular traffic nearby the temple, church and mosque, they should also regulate the meeting going to be held by the petitioner at Marina beach.”
The court further said even the developed nations in the world do not consider the places in front of the White House in USA or the Parliament Square in UK higher than the right to freedom of speech and expression, hence, they permit the citizens to express their views by granting permission to have a protest meeting or procession in the said places. The court also referred to judgment of constitution bench of the Supreme Court in Himat Lal K Shah's case wherein it held that the state by law cannot abridge or take away the right to assemble by prohibiting assembly in any public street or public space.
Even British allowed protests at Marina Beach
The court further remarked: “Marina Beach, where the Father of the Nation-Mahatma Gandhi is said to have addressed about four meetings viz., on 30.03.1919, 13.08.1920, 15.08.1920 and 20.12.1933 for Sathyagraha, Non-cooperation programme and on Labourer and Students' issues and it being the longest urban beach with a promenade length of 6 Kms., a part of which is called as Thilagar Thidal (ground), since the great Freedom Fighter Balagangadhara Thilak came and addressed in this space during the freedom movement, and salutations to the then British Government/Governor, who never thought of banning meetings/demonstrations at Marina Beach. Had the then British Government banned Marina Beach from being used for any public meeting, Marina would not have witnessed the presence of Mahatma Gandhi and Thilakar on its sands for the noble cause of Freedom. Therefore, when the then British Government itself did not think of banning the demonstrations at the Marina Beach, this Court is not inclined to accept the submissions made by the respondents. Now having allotted portions thereof for Anna Square/MGR Samadhi, where large number of people are regularly permitted on all the 365 days to visit the memorials for paying tributes and respects to these leaders, it would be logically and ideally proper to consider a part of the Marina for granting permission there to hold the peaceful fasting demonstration, as the enormous space would equally meet both the crowd factor and the surveillance purpose and above all, public nuisance would be sharply less, compared to the suggested three spaces as mentioned above.”
The court then directed the authorities to grant permission to the activist to hold a peaceful fast meeting in the space to be earmarked at Marina beach only for a day with such reasonable restrictions as they deem fit and proper.