சென்னை மெரினா கடற்கரையில் போராட்டம் நடத்த அனுமதி அளிக்க வேண்டும் என, தென்னிந்திய நதிகள் இணைப்பு விவசாயிகள் சங்க தலைவர் அய்யாக்கண்ணு சென்னை உயர்நீதி மன்றத்தில் கடந்த 03.08.2018 அன்று மனுத்தாக்கல் செய்திருந்தார். இதனை ஏற்க மறுத்த சென்னை உயர்நீதி மன்ற நீதிபதிகள் கே.கே.சசிதரன் மற்றும் ஆர்.சுப்ரமணியன் ஆகியோர் கொண்ட அமர்வு, அய்யாக்கண்ணு மனுவை 03.09.2018 அன்று தள்ளுபடி செய்தது.
இதனைத் தொடர்ந்து போராட்டத்திற்கு அனுமதி கேட்டு உச்சநீதி மன்றத்தில் அய்யாக்கண்ணு மேல்முறையீட்டு மனுத்தாக்கல் செய்திருந்தார்.
இந்த மனுவை இன்று (03.12.2018) விசாரித்த உச்சநீதி மன்ற நீதிபதிகள் அசோக்பூஷன், அஜய் ராஸ்டோகி ஆகியோர் கொண்ட அமர்வு, சென்னை மெரினா கடற்கரையில் போராட்டம் நடத்த யாருக்கும் அனுமதி அளிக்க முடியாது என்று சென்னை உயர்நீதி மன்றம் 03.09.2018 அன்று அளித்த உத்தரவை உறுதி செய்து, தென்னிந்திய நதிகள் இணைப்பு விவசாயிகள் சங்க தலைவர் அய்யாக்கண்ணு தாக்கல் செய்த மேல்முறையீட்டு மனுவை தள்ளுபடி செய்துள்ளது.
சென்னை உயர்நீதி மன்றம் 03.09.2018 அன்று அளித்த உத்தரவின் உண்மை நகல், நமது வாசகர்களின் பார்வைக்காக இங்கு பதிவு செய்துள்ளோம்.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
W.A.No.1042 of 2018
C.M.P.No.8772 of 2018
1.The Government of Tamil Nadu,
Rep. by its Secretary,
St. George Fort, Chennai.
2.The Director General of Police,
3.The City Police Commissioner,
Chennai City, Chennai.
P.Ayyakannu … Respondent
PRAYER: Appeal filed against the order passed by this Court dated 28.04.2018 passed in W.P.No.8652 of 2018.
For Appellants : Mr.P.H.Aravind Pandian,
Additional Advocate General
Assisted by Mr.V.Anandhamurthy,
Additional Government Pleader
For Respondent : Mr.S.Muthukrishnan
J U D G M E N T
1. The challenge in this intra-Court appeal is to the order of the learned Single Judge dated 28.04.2018 made in W.P.No.8652 of 2018, in and by which, the learned Single Judge while, rejecting the prayer of the respondent for issuance of a Writ of Mandamus directing the 3rd respondent to grant permission as per his representation dated 02.04.2018 to conduct fasting struggle for 90 days from 09.04.2018 at Marina Beach in Chennai, directed the respondents to grant permission to the respondent to hold a peaceful fast meeting in the place to be earmarked at Marina Beach only for a day with such reasonable restrictions as they deem fit and proper.
2. The respondent sought for issuance of a Writ of Mandamus directing the appellants to permit him to conduct a fasting struggle for 90 days from 09.04.2018 at Marina Beach to espouse the cause of agriculturists in Tamil Nadu. The cause for the said protest was said to be non-constitution of Cauvery Water Management Board despite the final judgment of the Hon’ble Supreme Court directing constitution of the Cauvery Water Management Board. Apprehending that the appellants may refuse permission, the petitioner had approached this Court.
3. After issuance of notice in the Writ Petition, the appellants had filed a counter affidavit contending inter alia that no permission was granted to any Organization including political parties to conduct any demonstration, fast, protest, rally etc., in the sands of Marina for longer duration since 2003. It is also claimed that the State Government had decided not to grant permission to conduct demonstrations, public meetings, Rallies, Fasts, etc., by political parties and other Organizations, in view of the efforts taken to preserve the ‘Marina’ which is the second longest beach in the World.
4. The Chennai Corporation was also instructed to locate alternative sites for holding such protests or demonstrations. Reference was also made to the decision of this Court in W.P.No.22402 of 2004. The challenge in the said Writ Petition was to the order of the 3rd appellant viz., Commissioner of Police, Chennai City refusing to grant permission to one Mr.Srinivasan to celebrate the 62nd Anniversary of the Quit India Movement in ‘Marina’. Pending the above Writ Petition, as a special case, permission was granted to commemorate the 62nd Anniversary of the Quit India Movement at a place close to Gandhi Statue located on Kamaraj Salai and recording the same the Writ Petition was dismissed.
5. It is also pointed out that the same petitioner in W.P.No.22402 of 2004 had filed another Writ Petition in W.P.No.35442 of 2006 seeking permission to celebrate 150th Birth Anniversary of Lokmanya Balagangadhar Tilak at ‘Marina’. As per the directions of the Division Bench of this Court dated 10.10.2006, permission was granted to the said Srinivasan to celebrate the 150th Birth Anniversary of Lokmanya Balagangadhar Tilak between 17.00 hours and 18.00 hours without use of mike in the Service Lane on the Marina without encroaching upon the beach sands. It is also pointed out that ever since 2003, permissions are granted to organize social awareness programmes, rallies and other social activities including marathons only on the Service Lane and not on the sands of Marina. Such permission, it is pointed out, is granted only for one or two hours during non-peak hours so that the regular traffic on Kamaraj Salai which is a busy arterial road in the city is not disturbed.
6. It is also placed on record vide the counter affidavit that permissions for protests in any form has not been granted either on Kamaraj Salai or on the sands of Marina. It is the further contention of the appellants that the Chennai Corporation has identified three alternative locations, which are as follows:
1. Near Valluvar Kottam, Nungambakkam within the limits of F3-Nungambakkam Police Station.
2. Near Quaid-e-Millath Manimandapam, Binny Link Road, Chindadripet within the limits of F1-Egmore Police station.
3. Near State Guest House, Chepauk within the limits of D-1 Triplicane Police Station.
7. These three places have been earmarked for organizing peaceful protests, fasts, dharnas etc., It is also the consistent case of the Government that nobody including the leading political parties viz., Dravida Munnetra Kazhagam and All India Anna Dravida Munnetra Kazhagam have been granted permission to hold any form of protests either on Kamaraj Salai or on the sands of Marina. On the above contentions, the State opposed the claim of the respondent that he should be permitted to hold peaceful fasting for a period of 90 days on the Marina Beach.
8. The learned Single Judge however taking into account all the relevant facts held that the right of the respondent to protest cannot be scuttled by the Authorities and also the fact that the respondent does not also possess a fundamental right to disturb others, directed the Authorities to grant permission for conducting fast on Marina for one day subject to conditions that may be imposed by the appellants. Aggrieved the appellants are before us by way of this intra-Court appeal.
9. We have heard Mr.P.H.Aravind Pandian, learned Additional Advocate General for the appellants and Mr.S.Muthukrishnan, learned counsel appearing for the respondent.
10. The learned Additional Advocate General would submit that Section 41 of the Chennai City Police Act prohibits any person from conducting any protest without the permission of the 3rd appellant viz., the Commissioner of the City Municipal Corporation.
11. The learned Additional Advocate General would also draw our attention to the recent judgment of the Hon’ble Supreme Court in Mazdoor Kisan Shakti Sangathan Vs. Union of India and another, reported in 2018 (9) Scale 134, wherein, according to him, the Hon’ble Supreme Court has recognized the right of the Government to designate places for organizing protest and also to ban protests in certain places if they were of the opinion that organizing such protest would result in inconvenience to the public.
12. Contending contra Mr.S.Muthukrishnan, learned counsel appearing for the respondent would submit that there is noting in law which empowers the Authorities to permanently ban protest in certain designated locations. He would also submit that the right to protest in a democracy is a fundamental right and the very provision viz., Section 41 which puts restrictions on the constitutional rights is invalid. He would also rely upon the judgment of the Hon’ble Supreme Court in Himat Lal K. Shah Vs. Commissioner of Police Ahmedabad and another reported in 1973 (1) SCC 227 wherein the Hon’ble Supreme Court considered Section 33(1)(o) of the Bombay Police Act, 1951 vis-a-vis the fundamental right granted under Article 19(1)(b) of the Constitution of India. He would also invite our attention to the judgment of the Hon’ble Supreme Court in S.Rangarajan Vs. P.Jagjivan Ram and others reported in 1989 (2) SCC 574, which related to freedom of expression.
13. Mr.S.Muthukrishnan would also rely upon the judgment of the Hon’ble Single Judge of this Court [Hon’ble Mr. Justice V.Ramasubramaniam] in Durai Sankar and others Vs. The Secretary to the Government Home Department, Government of Tamil Nadu and others reported in 2014 (5) LW 865, in which the learned Single Judge had considered the right of persons to hold processions. Our attention was also drawn by Mr.S.Muthukrishnan to the judgment of another Single Judge of this court in K.T.Patchaimal, District Secretary, All India Anna Dravida Munnetra Kazhagam, Kanyakumar District Vs. The Superintendent of Police, Kanyakumari District reported in 2009 Writ L.R. 65. Pointing out the relevant provisions including Section 144 of the Code of Criminal Procedure Mr.S.Muthukrishnan would vehemently contend that the Authorities do not have the right to ban protests/ demonstrations in any particular area. According to him, all that they can do is to regulate such protests or demonstrations, considering public interest.
14. We have considered the rival submissions. The essential question that arises in this appeal is as to whether the Government or the Commissioner of Police have the power to prohibit protests/ demonstrations in a particular area and direct such protests or demonstrations shall be held only in specifically earmarked places?
15. The right to protest, no doubt is available to all the citizens in a democratic country like ours. Unfortunately, this right to protest has been continuously misunderstood as a right to inconvenience the general public. The protesters who claim to espouse the cause of the public, often forget that their right to protest ends when the other person’s right to free movement and right to not to listen to starts. Of course, the Hon’ble Supreme Court had recognized the right to protest in Himat Lal K. Shah Vs. Commissioner of Police Ahmedabad and another reported in 1973 (1) SCC 227 and a Rule which enables the Authorities to totally ban protests was struck down by the Hon’ble Supreme Court. The Hon’ble Supreme Court while doing so had observed as follows:
“31. It seems to us that it follows from the above discussion that in India a citizen had, before the Constitution, a right to hold meetings on public streets subject to the control of the appropriate authority regarding the time and place of the meeting and subject to considerations of public order. Therefore, we are unable to hold that the impugned rules are ultra vires Section 33(1) of the Bombay Police Act insofar as they require prior permission for holding meetings. “
16. While considering the right to assemble peaceably without arms vis-a-vis Article 19(3) of the Constitution of India, the Hon’ble Supreme Court had observed as follows:
“32. This takes us to points (2) and (3) mentioned above. It is not surprising that the Constitution makers conferred a fundamental right on all citzens ‘to assemble peaceably and without arms’. While prior to the coming into force of the Constitution the right to assemble could have been abridged or taken away by law, now that cannot be done except by imposing reasonable restrictions within Article 19(3). But it is urged that the right to assemble does not mean that right can be exercised at any and every place. This Court held in Railway Board Vs. Narinjan Singh, [(1963) 1 SCC 502] that there is no fundamental right for any one to hold meetings in Government premises. It was observed:
“The fact that the citizens of this country have freedom of speech, freedom to assemble peaceably and freedom to form associations or unions does not mean that they can exercise those freedoms in whatever place they please.”
33. This is true but neverthless the State cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public place. The State can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interest of public order. “
17. In the very same judgment the Hon’ble Mr.Justice K.K.Mathew had observed as follows:-
“72. The power of the appropriate authority to impose reasonable regulation in order to assure the, safety and convenience of the people in the use of public highways has never been regarded as inconsistent with the fundamental right of assembly. A system of licensing as regards the time and the manner of holding public meetings on public street has not been regarded as an abridgement of the fundamental right of public assembly or of free speech. But a system of licensing public meeting will be upheld by Courts only if definite standards are provided by the law for the guidance of the licensing authority. Vesting of unregulated discretionary power in a licensing authority has always been considered as bad [see the cases on the point discussed in the concurring opinion of Justice Frankfurter in Niemotko v. Maryland]. “
18. It is therefore clear that even the Hon’ble Supreme Court in Himat Lal K. Shah Vs. Commissioner of Police Ahmedabad and another reported in 1973 (1) SCC 227, did not recognize or advocate an unbriddled right to organize protests or public meetings. While pointing out that a complete ban would amount to an unreasonable restriction, the Hon’ble Supreme Court had upheld the right on the Government to place reasonable restrictions with reference to the time and the place at which such protests or public meetings are to be held.
19. In S.Rangarajan Vs. P.Jagjivan Ram and others reported in 1989 (2) SCC 574, the Hon’ble Supreme Court was concerned with freedom of speech and expression in the context of a cinematograph movie criticizing the Government’s policy of reservations in Government Service, wherein, the Hon’ble Supreme Court held that once the the Censor Board had permitted the movie, the High Court was not right in revoking the certificate issued by the Censor Board. Even though the Hon’ble Supreme Court had observed that the right of freedom of expression can be reasonably restricted, the premise on which the Hon’ble Supreme Court interfered with the judgment of the High Court revoking the certificate was that two revising Committees of the Censor board had approved the film and therefore a group of persons who were intolerant to the views of others could not hold the right of expression to ransom.
20. In Durai Sankar and others Vs. The Secretary to the Government Home Department, Government of Tamil Nadu and others reported in 2014 (5) LW 865, the learned Single Judge of this Court had considered the provisions of Section 41 of the Chennai City Police Act, 1888. The learned Single Judge on an interpretation of Section 41 concluded that Section 41 will not apply to processions. The learned Single Judge had also considered the effect of Section 41A of the Chennai City Police Act r/w. 30(2) of the Police Act, 1861. The learned Single Judge after referring to various decisions including the decision of the Hon’ble Supreme Court in Himat Lal K. Shah Vs. Commissioner of Police Ahmedabad and another reported in 1973 (1) SCC 227 had permitted a procession to be taken in a particular route with various restrictions.
21. In K.T.Patchaimal, District Secretary, All India Anna Dravida Munnetra Kazhagam, Kanyakumar District Vs. The Superintendent of Police, Kanyakumari District reported in 2009 Writ L.R. 65, Hon’ble Mr.Justice K.Chandru had held that refusal of permission to hold a demonstration by a political party would amount to untrammeled exercise of power under the provisions of Section 30 of the Police Act, 1861. Even there, the learned Judge had recognized the regulatory power that was available with the Authorities in terms of Article 19(2) of the Constitution of India. The learned Judge found that refusal of permission on the facts of the said case did not disclose the existence of even a remote connection with a reasonable restrictions set out in Article 19(2) of the Constitution of India.
22. In Ramlila Maidan Incident, in re, reported in 2012 (5) SCC 1, the Hon’ble Supreme Court, while considering the scope and the meaning of the words restriction and prohibition had observed as follows:
33. The Courts must bear a clear distinction in mind with regard to restriction and prohibition. They are expressions which cannot be used interchangeably as they have different connotations and consequences in law. Wherever a prohibition is imposed, besides satisfying all the tests of a reasonable restriction, it must also satisfy the requirement that any lesser alternative would be inadequate. Furthermore, whether a restriction, in effect, amounts to a total prohibition or not, is a question of fact which has to be determined with regard to facts and circumstances of each case.
23. Considering the question of proportionality of the restriction, the Hon’ble Supreme Court in para 39 of the judgment had observed as follows:
39. There has to be a balance and proportionality between the right and restriction on the one hand, and the right and duty, on the other. It will create an imbalance, if undue or disproportionate emphasis is placed upon the right of a citizen without considering the significance of the duty. The true source of right is duty. When the Courts are called upon to examine the reasonableness of a legislative restriction on exercise of a freedom, the fundamental duties enunciated under Article 51-A are of relevant consideration. Article 51-A requires an individual to abide by the law, to safeguard public property and to abjure violence. It also requires the individual to uphold and protect the sovereignty, unity and integrity of the country. All these duties are not insignificant. Part IV of the Constitution relates to the directive principles of the State policy. Article 38 was introduced in the Constitution as an obligation upon the State to maintain social order for promotion of welfare of the people. By the Constitution (Forty-second Amendment) Act, 1976, Article 51-A was added to comprehensively state the fundamental duties of the citizens compliment the obligations of the State. Thus, all these duties are of constitutional significance.
24. After laying down the law broadly as above the Hon’ble Supreme Court went on to examine the factual scenario which led to the passing of the prohibitory orders and finally concluded that the State and the Police could have avoided the tragic incident by exercising a greater restraint.
25. In Mazdoor Kisan Shakti Sangathan Vs. Union of India and another, the Hon’ble Supreme Court had considered the question of holding protests and meetings in Jantar Mantar, New Delhi. While considering the appeals against the orders of the National Green Tribunal which banned protests or dharnas at Jantar Mantar, the Hon’ble Supreme Court had considered the extent of the right of a citizen or an association to hold protests. After considering the entire case law on the subject, the Hon’ble Supreme Court had quoted the following passage from Anita Takur’s case.
13. Notwithstanding above, it is also to be borne in mind that the aforesaid rights are subject to reasonable restrictions in the interest of the sovereignty and integrity of India, as well as public order. It is for this reason, the State authorities many a times designate particular areas and routes, dedicating them for the purpose of holding public meetings.
26. After observing that the right to protest is recognized as a fundamental right under the constitution, the Hon’ble Supreme Court hastens to add that the right is not untrammeled and unlimited in its scope. After considering Articles 19(2) and 19(3) of the Constitution of India, the Hon’ble Supreme Court had observed as follows in para 56 of the judgment in Mazdoor Kisan Shakti Sangathan Vs. Union of India and another:
56. It can be deciphered from the aforesaid provisions that exercise of right to speech conferred in clause (a) and right to assemble peaceably and without arms in clause (b) is made subject to reasonable restrictions which can be imposed, inter alia, in the interests of sovereignty and integrity of India or public order. This legal position is also accepted by all the parties.
27. After referring to Asha Ranjan Vs. State of Bihar and others reported in 2017 (4) SCC 397, the Hon’ble Supreme Court finally observed as follows:
61. Undoubtedly, right of people to hold peaceful protests and demonstrations etc. is a fundamental right guaranteed under Articles 19(1)(a) and 19(1)(b) of the Constitution. The question is as to whether disturbances etc. caused by it to the residents, as mentioned in detail by the NGT, is a larger public interest which outweighs the rights of protestors to hold demonstrations at Jantar Mantar road and, therefore, amounts to reasonable restriction in curbing such demonstrations. Here, we agree with the detailed reasoning given by the NGT that holding of demonstrations in the way it has been happening is causing serious discomfort and harassment to the residents. At the same time, it is also to be kept in mind that for quite some time Jantar Mantar has been chosen as a place for holding demonstrations and was earmarked by the authorities as well. Going by the dicta in Asha Ranjan, principle of primacy cannot be given to one right whereby the right of the other gets totally extinguished. Total extinction is not balancing. Balancing would mean curtailing one right of one class to some extent so that the right of the other class is also protected.
28. Referring to one of the arguments raised by the petitioners which is also raised in this appeal by Mr.S.Muthukrishnan to the effect that banning of protest in an area where there is a concentration of power would belittle the impact of the protest and thereby would amount to unreasonable restriction, the Hon’ble Supreme Court had in Para 64 observed as follows:-
One of the argument raised by the petitioner in the writ petition and appellants in the appeal is that Ramlila Maidan is far away from that portion of New Delhi area where there is a concentration of ‘power’ and, therefore, holding protests and demonstration at a far place in Ramlila Maidan would have no impact or very little effect. It was stressed that the purpose of holding such demonstrations and raising slogans is that they reach concerned persons for whom these are meant. This may be correct. However, it is also to be borne in mind that we are living in an era of technology where a concerned voice by a group of persons can reach the right quarters by numerous means. Electronic and print media play a pivotal role. Then, we have social media and various applications like ‘WatsApp’, ‘Twitter’, ‘Instagram’ etc. which take no time in spreading such events. Secondly, though holding protests and demonstrations is an accepted right, at the same time, nobody can claim that I have a right to hold demonstration at one particular area only. While regulating such demonstrations in public interest, particular areas can be earmarked.
29. From the above legal principles set out in various decisions of this Court as well as the Hon’ble Supreme Court the following principles emerge.
1. The right to protest peacefully has been acknowledged as a fundamental right guaranteed under Article 19(1)(b) of the Constitution of India.
2. Fasting has also been recognized as a form of peaceful protest.
3. Such a right to protest cannot be unrestricted.
4. The State always has the power to impose reasonable restrictions with regard to the time, the place and the manner in which the protest should be held.
5. The Authority in whom such power is conferred is expected to balance the right of the protesters as well as the right of the common man.
6. In the act of balancing the Authority should also bear in mind that ones freedom ends where others’ start.
7. The right to not to listen to should also be taken into account.
30. If we are to examine the present request made by the respondent to conduct a fast for 90 days on the sands of Marina without any restrictions would definitely impinge upon the rights of the public in general. It would have direct bearing on public order. No doubt, Mr.S.Muthukrishnan, learned counsel appearing for the respondent would submit that the respondent is willing to abide by any conditions stipulated by the appellants and he is also willing to hold his protest/ fasting in any area earmarked along the 6 Kms stretch of Marina. The only point that is put forth by Mr.S.Muthukrishnan to buttress his contention that the respondent has a right to protest in the location desired by him is that Marina being close to the centre of power in the State, he would be able to attract the attention of the Authorities or the powers that be to the grievance espoused by him. This very argument has been rejected by the Hon’ble Supreme Court in Mazdoor Kisan Shakti Sangathan Vs. Union of India and another.
31. As rightly pointed out by the learned Additional Advocate General, the right of the State to regulate protest includes the right to prescribe a particular location for the protest. The right of the State to identify locations for demonstrations, dharnas and protests has been recognized by the Hon’ble Supreme Court as well as this Court. No person, in our considered opinion, has a right to contend that he would protest only at a particular place and not any where else. The very fact that the right to protest is acknowledged as a fundamental right under the constitution, makes it subject to reasonable restrictions.
32. The learned Advocate General apart from producing the list of designated places identified by the Chennai Corporation for holding of protest has also filed an affidavit sworn to by the Commissioner of Police Greater Chennai, wherein, it has been categorically stated that no permission is being granted for any procession, demonstration or meeting in the sands of Marina for a longer duration. It is also made clear that permission has been denied to political parties and other organizations to conduct any procession, demonstration or meeting in Marina which is an ecologically sensitive area. What is being permitted on Kamaraj Salai and the service road has also been set out in the affidavit. According to him, permissions have been granted to conduct awareness programmes, hommage to leaders whose statues or samadhis are situate on the Marina and other social activities like marathons or awareness programmes that too for a short duration of not more than 2 to 3 hours.
33. Considering the above, we find that the restrictions placed are reasonable and they do not in any manner curtail the freedom guaranteed under Article 19(1)(b) of the Constitution of India. The affidavit filed by the City Police Commissioner Greater Chennai is placed on record and it is made clear that the Policy decision taken by the state Government not to allow any form of protests or dharnas on the sands of Marina or on the service road or on Kamaraj Salai should be adhered to strictly in future, of course, subject to exceptions like homage to leaders whose samadhis or statues are situate on the Marina, Republic day parade which is being held as a custom on Kamaraj Salai with the Governor of the State unfurling the National Flag in front of Gandhi Statue at Marina and to conduct awareness programmes by holding Marathon and rallies. It is made clear that the awareness programmes should be permitted only during non-peak hours without any inconvenience to the general public. We are therefore of the considered opinion that the petitioner/ respondent has no vested right to demand that he would conduct his protest or fast only at place chosen by him and not at the place offered by the Authorities.
34. We also find that the vehicles belonging to the Government Transport Corporations and other Government Departments which are to be inducted in public service are parked on Kamaraj Salai awaiting inauguration or induction thereby creating traffic snarls inconveniencing the people. We hope that the Government takes into account the inconvenience caused to the public because of such actions and restrict such parking of new vehicles at Kamaraj Salai at the time of launching or induction.
35. For the foregoing reasons the Writ Appeal is allowed the order of the learned Single Judge is set aside, it is however open to the respondent to make application afresh if he is willing to conduct his protest in any one of the areas earmarked by the Chennai Corporation for conducting protests. However in the circumstances we make no order as to costs. Consequently, the connected Miscellaneous Petition is also closed.
(K.K.SASIDHARAN, J.) (R.SUBRAMANIAN, J.)
36. I have had the advantage of reading the well considered judgment circulated by my esteemed brother R.Subramanian, J. and I concur with the views expressed therein. However, taking into account the core issue raised by the respondent relating to the right to freedom of speech and the right to freedom of assembly in a peaceful manner vis-a-vis the restriction imposed on such freedom by the State, I wish to add the following as additional reasons for my concurrence.
Right to freedom of speech and assembly:-
37. The Constitution guarantees right to freedom of speech and expression and the right to assemble peacefully under Article 19(1) and gives authority to the State under Article 19(2) to impose reasonable restrictions on the exercise of such rights. Article 21 guarantees life and personal liberty. Right to life would include all the other aspects of the human life. Therefore, the right under Article 21 would be meaningful only when the other fundamental rights are given due recognition.
The request to assemble at Marina :-
38. The respondent has come up with a claim invoking Article 19(1)(a) and (b) to permit the agriculturists to hold a demonstration at Marina. The respondent after selecting the place to exercise the freedom of speech and assembly, requested the Commissioner of Police to grant permission. The plea was negatived, resulting in the filing of the Writ Petition.
Marina The place of enjoyment :-
39. The magnificent Marina at Chennai, is the second longest urban beach in the world. A pristine expanse of natures marvel , the Marina Beach is an international tourist spot. There is no dearth of crowd at any point of time or in any weather condition; be it the scorching sun or torrential rains. The inflow of tourists to the Marina has increased tremendously, over the period of time. It is this beach, which witnesses multitudinous people flock by its shore every single day, that has been selected by the respondent as the venue for holding the demonstration.
40. The road adjacent to Marina, Kamarajar Salai, is an arterial road, leading to Parry’s and North Madras. The Madras University, Presidency College, Reserve Bank of India, Legislative Assembly, Government Secretariat, Office of the Director General of Police and other official buildings are all situated on the side of this road. This is also the road leading to the High Court and the Port Trust. Naturally, vehicular traffic is high in this arterial road. It is through this road, that the respondent wanted the members of the Agriculturists’ Association to enter Marina to hold a public meeting and undertake a procession. It is quite natural that holding a public protest meeting at this location, which is the Centre of both leisure and public administration would pose a serious and proximate threat to public order.
Freedom not to listen :-
41. The Constitution of India guarantees right to freedom of speech under Article 19(1)(a) which would include by implication, the right not to listen to the speech. The right to sleep without disturbance, right not to hear and right to silence are a part of this right, guaranteed to the citizens by necessary implication. A citizen has no fundamental right to insist that his speech should be heard by an unwilling citizen. Similarly, it is not possible to compel a person to witness a procession, against his wishes.
The Kerala case approved by Supreme Court :
42. While considering the fundamental rights claimed by a member of a denomination of Christianity, a learned Judge of the Kerala High Court interpreted Article 19(1)(a) in P.A.Jacob vs. Superintendent of Police, Kottayam, (AIR 1993 Kerala 1), and held that free speech is not to be treated as a promise to everyone with opinion and beliefs, to gather at any place and at any time and express their views in any manner (emphasis supplied).
43. The learned Judge, further observed in P.A.Jacob thus:-
17. A person can decline to read a publication, or switch off a radio or television set. But, he cannot prevent the sound from a loud speaker reaching him. He could be forced to hear what, he wishes not, to hear. That will be an invasion of his right to be let alone, to hear what he wants to hear, or not to hear, what he does not wish to hear. One may put his mind or hearing to his own uses, but not that of another. No one has a right to trespass on the mind or ear of another and commit auricular or visual aggression. Limits, must be drawn for liberties, lest they turn into licence, and the antithesis of liberty in its true sense.
19. Professions of rights, distanced from realities of life, would make liberties unreal. The liberties of some, could prove to be the end of the liberties of others. The loquacious may silence the meek. The State must protect the mute, the unorganised and inarticulate, against onslaught of enthusiasm of the vocal or the vociferous. It is no use saying hosannas to freedom, unless such freedom is real. Real they will be, only if there is an ordered society. Order to liberty, is what oxygen to life is. There is no basis to think that freedom and order are not compatible. They are complementary. Liberty will be lost in excess of anarchy, if there is no order. Regulation and suppression are not the same in purpose or result. Time it is to think, whether undisguised assertions of rights by some, have not imperilled rights of others. If one were to recognise right to protest by blocking roads and railways, it is recognition of a right, to deny rights of the peaceful citizens. Acorns of today, will grow into oaks of tomorrow.
44. The observation made in Lehman v. City of Shaker Heights (418 US 298) was reproduced in P.A.Jacob in the following words :-
“While petitioner clearly has a right to express his views to those who wish to listen, he has no right to force his message upon an audience incapable of declining to receive it. In my view, the right of the commuters to be free from forced intrusions on their privacy, precludes the city from transforming its vehicles of public transportation, into forums of disemanation of ideas upon a captive audience.”
45. The views expressed in P.A.Jacob was approved by the Hon’ble Supreme Court in Noise Pollution (v) in re, 2005(5) SCC 733.
The Supreme Court observed :-
Undoubtedly, the freedom of speech and right to expression are fundamental rights but the rights are not absolute. Nobody can claim a fundamental right to create noise by amplifying the sound of his speech with the help of loudspeakers. While one has a right to speech, 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. If anyone increases his volume of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels, then the person speaking is violating the right of others to a peaceful, comfortable and pollution-free life guaranteed by Article 21. (emphasis supplied).
46. The Supreme Court in Ramlila Maidan Incident vs. Home Secretary, Union of India & Ors. [2012(2) Scale 682] observed that citizens/persons have a right to leisure, to sleep, to not hear and to remain silent.
47. The Supreme Court in Railway Board v. Niranjan Singh, AIR 1969 SC 966, observed that the fact that the citizens of this country have freedom to assemble peacefully does not mean that they can exercise those freedoms in whatever place they please.
The Supreme Court said :-
“13.It is true that the freedoms guaranteed under our Constitution are very valuable freedoms and this Court would resist abridging the ambit of those freedoms except to the extent permitted by the Constitution. The fact that the citizens of this country have freedom of speech, freedom to assemble peaceably and freedom to form associations or unions does not mean that they can exercise those freedoms in whatever place they please. The exercise of those freedoms will come to an end as soon as the right of someone else to hold his property intervenes. Such a limitation is inherent in the exercise of those rights. The validity of that limitation is not to be judged by the tests prescribed by sub-articles (2) and (3) of Article 19. In other words the contents of the freedoms guaranteed under clauses (a), (b) and (c), the only freedoms with which we are concerned in this appeal, do not include the right to exercise them in the properties belonging to others. If Mr Garg is right in his contentions then a citizen of this country in the exercise of his right under clauses (d) and (e) of Article 19(1) could move about freely in a public office or even reside there unless there exists some law imposing reasonable restrictions on the exercise of those rights.” (emphasis supplied).
48. The Supreme Court in Himat Lal K. Shah v. Commr. of Police, (1973) 1 SCC 227, held that the right to assemble does not mean, that the said right can be exercised at any and every place.
The Supreme Court said :-
42. We may make it clear that there is nothing wrong in requiring previous permission to be obtained before holding a public meeting on a public street, for the right which flows from Article 19(1)(b) is not a right to hold a meeting at any place and time. It is a right which can be regulated in the interest of all so that all can enjoy the right. (emphasis supplied)
49. The Supreme Court in D.C. Saxena (Dr) v. Hon’ble The Chief Justice of India, (1996) 5 SCC 216, observed that interests of the people involved in the acts of expression should be looked at, not only from the perspective of the speaker but also the place at which he speaks.
The Supreme Court further observed :
31. If maintenance of democracy is the foundation for free speech, society equally is entitled to regulate freedom of speech or expression by democratic action. The reason is obvious, viz., that society accepts free speech and expression and also puts limits on the right of the majority. Interest of the people involved in the acts of expression should be looked at not only from the perspective of the speaker but also the place at which he speaks, the scenario, the audience, the reaction of the publication, the purpose of the speech and the place and the forum in which the citizen exercises his freedom of speech and expression. (emphasis supplied)
50. In Ramlila Maidan Incident vs. Home Secretary, Union of India & Ors. [2012(2) Scale 682], the Supreme Court observed that rights, restrictions and duties coexist and on the one hand, it is necessary to maintain and preserve the freedom of speech and expression in a democracy, there, on the other, it is also necessary to place reins on this freedom for the maintenance of social order. It was further observed that the police have got a right to regulate a meeting and have a duty to see that the conduct of such meetings are not causing disturbance to the public or enjoyment of the right guaranteed by the Constitution of India. The Supreme Court while issuing a string of directions, incidentally, referred to the role of police.
“It is neither correct nor judicially permissible to say that taking of police permission for holding of dharnas, processions and rallies of the present kind is irrelevant or not required in law. Thus, in my considered opinion, the requirement of associating police, which is an important organ of the State for ensuring implementation of the rule of law, while holding such large-scale meetings, dharnas and protests, would not infringe the fundamental rights enshrined under Articles 19(1)(a) and 19(1)(b) of the Constitution. This would squarely fall within the regulatory mechanism of reasonable restrictions, contemplated under Articles 19(2) and 19(3). Furthermore, it would help in ensuring due social order and would also not impinge upon the rights of others, as contemplated under Article 21 of the Constitution of India. The police authorities, who are required to maintain the social order and public tranquillity, should have a say in the organisational matters relating to holding of dharnas, processions, agitations and rallies of the present kind.” (emphasis supplied)
51. The Kerala High Court in Chief Secretary to Government vs. Khalid Mundappilly [2010 (3) KLT 757], disposed of a public interest litigation by restraining the Government Agencies including the police, Public Works Department, revenue and municipal authorities from giving permission to hold meetings on public roads and road margins. The Government of Kerala, filed a review petition before the High Court to review the said order. While considering the review petition, the Division Bench found that the purpose of going to the public road junctions for holding meeting is not because there are no other convenient places but to make sure that there is sufficient audience or to make up for the shortage of people for the meeting.
“What is clear from the above is that political parties hold meetings in busy junctions on roadside because they can make the people available there who wait for buses, trains and those who come for shopping, etc., as audience and force speeches on them. Therefore the purpose of going to the public road junctions for holding meeting is not because there is no other convenient place other than the road to hold meeting but for audience or to make up for the shortage of people for the meeting. To our specific question about fundamental rights of the people conferred under Art. 19(1)(d) who are on travel or who have come for peaceful shopping without being disturbed by speeches forced on them by political parties holding meeting, the DGP has no answer. In other words, the case of the State is that wherever people gather on roadside for their purposes political leaders have right to make them audience and force their speeches on them. The freedom of speech of somebody should not interfere with the freedom of peaceful living or movement of others. When somebody’s freedom of speech and assembly are considered, we see no reason why fundamental rights of people assembled in every junction should not be protected by this Court because those who do not want to listen speeches in meeting should be spared from it and speeches should not be forced on them disturbing their peaceful living. The position is the same in so far as shop owners, officials in charge of railway stations, bus-stand, etc. are concerned, because not only they are disturbed in their work but even announcements made in the railway stations and bus-stand will not be heard by the passengers on account of the disturbance and sounds produced in meetings held by the side of the railway stations and bus- stands as in the Alwaye case which was considered in the WPC by us. We are of the view that holding of public meeting and the forceful inclusion of public assembled for their purposes at junctions as audience is not only a violation of law and human rights but is a public nuisance which the Executive Magistrate is bound to remove under Section 133 of the Cr.P.C. Lastly we have to consider the most important fundamental right, i.e., right to life guaranteed under Art. 21 of the Constitution of India of the sick, injured and the pregnant women, who while under transport are held up in traffic blocks leading to delay in getting medical aid and consequent death.”
52. This is not a case of the State prohibiting the assembly or demonstrations throughout the city of Chennai. The Commissioner of Police has identified certain locations for the purpose of holding processions and meetings. Some of these places are very near to the Legislative Assembly and Secretariat. Even otherwise, the leaders of the movement after holding the meeting at any of the dedicated places, can meet the Chief Minister or Minister concerned or the appropriate authorities to submit their representations. There is no necessity for a show of strength at Marina for espousing the cause of agriculturists.
53. The executive, empowered with the task of maintaining law and order, has both the right and duty to exercise its discretion, on logical and unbiased parameters to decide upon permitting a particular place to be used as a centre of protest.
54. Thus, while recognising the fact that dialogue, dissent and deliberation are imperative and necessary in a democracy, other aspects like public order, safety and general public interest must also be given equal weightage and significance, which ultimately make up the true hallmark of a democratic welfare state. The State is therefore correct in regulating the Assembly at Marina in larger public interest.
55. The order dated 28 April 2018 granting permission to hold a public meeting at Marina is set aside. The writ petition in W.P.No.8652 of 2018 is dismissed. The intra court appeal is allowed.
Index : Yes/ No
Internet : Yes/ No
St. George Fort, Chennai.
2.The Director General of Police,
3.The City Police Commissioner,
Chennai City, Chennai.
Pre-Delivery Judgment in
W.A.No.1042 of 2018