Kerala High Court Asks Govt To Explain Steps Taken To Prevent Encroachment Of Footpath/Public Roads By Political Parties For Protests/Demonstrations

A Bench consisting of Justice Anil K Narendran and Justice Ziyad Rahman A.A. was hearing a petition filed for writ of mandamus against the law enforcement agencies to formulate and issue guidelines for earmarking certain public areas in the State for holding mass assemblies, including protests and campaigns.

"Considering the nature of issues involved in this writ petition, this Court deem it appropriate to suo motu implead the Additional Chief Secretary, Home Department, Government Secretariat, Thiruvananthapuram-695 001; the Additional Chief Secretary, Local Self Government Department, Government Secretariat, Thiruvananthapuram-695 001; and also the Transport Commissioner, Kerala, 2nd Floor, Trans Towers, Vazhuthacaud, Thycaud, Thiruvananthapuram-695014 as additional respondents 5 to 7. Registry to carry out necessary corrections in the cause title".

The petition filed by Trivandrum Chamber of Commerce and Industry along with its President, through Advocates Adarsh Kumar and Shashank Devan, also sought a declaration that stagi ng or holding assemblies including protests and campaigns around Government Secretariat, Raj Bhavan and adjoining footpaths as illegal and unconstitutional.

The plea alleged that since the last several years, footpaths in front of Government Secretariat and Raj Bhavan and the adjacent areas are targeted for strikes and demonstrations by political parties and organizations. It was mentioned that some of these protests initially started on temporary basis and eventually attained the nature of permanence.

Such demonstrations cause traffic congestion and difficulties to pedestrians. The petition states that at times these campaigns also lead to erecting sheds and other structures on footpaths, to provide shelter to the protesters, which added to the hindrance caused to the general public to use the footpath.

This comes after the petitioner observed the scant regard given to the law laid down in several judicial decisions by political bodies. Despite strict directions in place, they continue to put up structures on the right of way of public roads. It was brought to the attention of the Court that protesters/agitators with political backing were even permitted to lay carpets and place chairs on the footpath. On account of such encroachments, pedestrians including those with disabilities and reduced mobility are forced to walk through the right of way of public roads, in unsafe circumstances.

This Court in an earlier decision of Sivaprasad v. State of Kerala & Ors [2020 (6) KHC 373] had observed that footpaths or pavements are public properties intended to serve the convenience of the general public and to ensure that the pedestrians can go about their daily affairs with reasonable measure of safety and security. It was also held that removal of encroachments on the footpaths obstructing the right of passage is reasonable, fair or just.

The petitioners have relied upon the provisions of Kerala Public Ways (Restriction of Assemblies and Processions) Act, 2011 to define 'footpath' as any area comprised in a public way earmarked for pedestrian movement. Section 3 of the said Act was invoked to point out that on all public ways the public shall have the right to unobstructed movement. No person can cause any obstruction by conducting any meeting, procession or demonstration on any public way u/s 4.

It was also contended that despite the enactment of the said Act and the decision of the Apex Court in Union of India v. State of Gujarat & Ors directing that the State shall not grant permission for installation of any statue or structure in public roads, pavements, sideways and other public utility places., no steps were taken to ensure their enforcement.

The petitioner also highlighted the failure to execute Guidelines for Pedestrian Facilities formulated by Indian Roads Congress to prevent any form of encroachment on the right of way or on the pedestrian facilities that adversely affect the mobility and safety of pedestrians including those with disabilities and reduced mobility.

The High Court, upon scrutiny of multiple judicial decisions, observed thus:

"Once roads are constructed as per the standards and guidelines prescribed by the Indian Roads Congress, it has to be maintained as such without any encroachment on the right of way or on the pedestrian facilities provided as per such standards and guidelines. Footpaths are not intended for the purpose of holding campaigns, demonstrations, by political parties and other organisations, by causing any obstruction whatsoever to free movement of pedestrians."