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Kerala Vyapari Vyavasayi Ekopana Samithi v. State Of Kerala And Others
Factual and Procedural Background
Certain associations and citizens filed original petitions expressing distress over frequent processions and agitations in Thiruvananthapuram city that violated the directions of this Court, as affirmed by the Supreme Court. The petitioners highlighted daily occurrences of processions, demonstrations, and agitations before the Secretariat, which obstructed free-flowing traffic and caused damage to business establishments. Anti-social elements were reported to have attacked properties, and the obstruction impeded citizens from accessing offices, hospitals, and other essential places. Despite various Court decisions, the petitioners alleged that the Government failed to take sincere action to protect the fundamental rights of citizens to move freely.
The Government, in its counter-affidavits filed in multiple original petitions, admitted that the protests caused significant difficulties to the public by restricting pedestrian and vehicular movement and affecting business activities. Specific incidents of property damage and attempts to cause further destruction during agitations were detailed. The Government acknowledged that demonstrations by political parties sometimes resulted in violence and that instructions existed for organizers to obtain permissions and maintain readiness to prevent untoward incidents. However, due to congested roads and lack of alternative routes, even small processions caused considerable inconvenience to traffic. The petitioners sought a total ban on dharnas and demonstrations, at least before the Secretariat and on busy roads such as M.G Road from Palayam to Thampanur.
Legal Issues Presented
- Whether the frequent processions and demonstrations violating Court directions infringe upon the fundamental rights of citizens, particularly the right to free movement and business activities.
- Whether the Government’s failure to effectively regulate and prevent unlawful processions and agitations justifies imposition of restrictions or bans on such activities on busy roads.
- Whether the imposition of reasonable restrictions, including a ban on demonstrations and processions on busy roads during working days, is constitutionally valid.
Arguments of the Parties
Petitioners' Arguments
- Frequent processions and agitations violate Court directions and disrupt public life.
- Processions cause obstruction to traffic, prevent access to essential services, and lead to attacks on business establishments.
- The Government is not taking sincere or effective action to protect citizens' fundamental rights.
- A total ban on dharnas and demonstrations, particularly before the Secretariat and on busy roads like M.G Road, is necessary to safeguard public interest.
Government's Arguments
- Admitted that protests cause difficulties to public movement and business activities.
- Some participants in demonstrations may indulge in violence and cause property damage.
- Instructions exist requiring organizers to obtain permission and maintain readiness to prevent unlawful acts.
- Due to narrow and congested roads, even small processions cause traffic inconvenience despite efforts to minimize disruption.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Emperor v. Nana Sahu Sonavane, AIR 1943 Bom 209 | Definition and nature of a procession as a formal, organized march; fundamental right to take out processions subject to reasonable restrictions. | Used to clarify the nature of processions and affirm that the right to procession is fundamental but subject to reasonable state regulation. |
| Shankaranayaranan v. State of Kerala, AIR 1986 Ker 82 | Uncontrolled right to processions causes public problems; reasonable restrictions and regulations are inevitable to protect public passage rights. | Supported the need for restrictions on processions to protect the rights of the public and emphasized remedies under Sections 133 and 144, Cr.P.C. |
| Harrison v. Duke of Rutland, (1883) 1 QB 142 | Use of public roads beyond their dedicated purpose constitutes trespass; reasonable and usual modes of using highways are permitted. | Illustrated that obstruction of highways may be unlawful and that reasonable use of highways is protected. |
| Davis v. Massachusetts, (1897) 167 US 43 | Legislature can forbid public speaking in public places without infringing rights, analogous to a private owner forbidding speech in his house. | Used to support the principle that restrictions on use of public places for certain activities are constitutionally permissible. |
| Olga Tellis v. Municipal Corporation, AIR 1986 SC 180 | Public streets and pavements are primarily for passage; unauthorized use constitutes trespass. | Affirmed that use of public property must be within intended purposes, supporting restrictions on demonstrations blocking passage. |
| Bombay Hawkers Union v. Bombay Municipal Corporation, AIR 1985 SC 1206 | Public roads are meant primarily for passage; other rights are subject to this primary right and must be reasonable. | Supported the principle that rights to use public roads for processions are subordinate to the public’s right of passage. |
| Peoples Council for Social Justice v. State of Kerala, 1997 (2) Ker LT 301 (AIR 1997 Ker 309) (FB) | Right to assemble and take procession is fundamental but must be exercised without causing injury or annoyance; authorities may impose reasonable restrictions. | Provided detailed directions regulating processions and demonstrations balancing fundamental rights and public order, approved by the Supreme Court with slight modification. |
Court's Reasoning and Analysis
The Court recognized the fundamental right of citizens to take out processions and demonstrations but emphasized that these rights are subject to reasonable restrictions to protect the rights of others, including the right to free movement and business activities. Drawing from Indian and foreign precedents, the Court underscored that public roads are primarily dedicated for passage and that unauthorized or uncontrolled use causing obstruction amounts to a violation of public rights and may constitute nuisance or trespass.
The Court noted that despite existing legal provisions and directions issued by a Full Bench of this Court (approved by the Supreme Court), the Government had failed to effectively enforce these regulations, resulting in significant public inconvenience, property damage, and obstruction of fundamental rights. The congested nature of roads like M.G Road exacerbates the problem, as even small gatherings cause major traffic disruptions.
Given these circumstances, the Court held that imposing a ban on demonstrations and processions on busy roads during working days is a reasonable restriction in the public interest. This ban aims to protect the fundamental rights of the majority by preventing obstruction and ensuring smooth traffic flow. The Court directed the Government and police to strictly enforce these restrictions and to consider and dispose of the petitioners' representations expeditiously.
Holding and Implications
DISPOSED OF
The Court disposed of the original petitions by upholding the imposition of a ban on demonstrations and processions on busy roads like M.G Road from Palayam to Thampanur during working days, considering it a valid and reasonable restriction to protect the fundamental rights of citizens. The Government is directed to enforce the earlier Full Bench directions as approved by the Supreme Court and prevent any processions or demonstrations violating these restrictions. The decision directly affects the parties by mandating stricter regulation and enforcement of public order during processions, but it does not establish any new precedent beyond reaffirming existing legal principles and prior directions.
Koshy, J.:— Disgusted, disheartened and distressed by the suffering of people, at large, by the frequent processions and agitation violating the directions of this Court as affirmed by the Supreme Court, certain associations and citizens, in the interest of public, filed these original petitions. They highlighted various incidents happened in Thiruvananthapuram city during such processions. According to the petitioners, almost every day there are various processions, demonstrations and agitations before the Secretariat and free-flow of traffic is obstructed. On such days on may occasions, anti-social elements attack business establishments also. Since entire traffic is blocked, people are unable, to go to offices, hospitals, etc. and in spite of various Court decisions Government is not taking any serious action with sincerity to protect the fundamental rights of the citizens to move about etc.
2. In the counter-affidavit filed by the Government in O.P No. 38037 of 2002 it is stated as follows:
“As regards averments in paragraphs 1 to 4, it is admitted that due to the protests staged before the Secretariat, much difficulties are likely to be caused to the public by restraints in the movements of pedestrian and vehicles and the legitimate rights of the business and commercial establishments in the vicinity to carry out their normal activities. Besides, normal traffic in and around the Secretariat and nearby places may also be affected. In the extreme form, these agitations etc., could lead to unlawful acts like wrongful restraint and wrongful confinement.”
In paragraph 4 of the affidavit it is stated that on the agitation before the Secretariat on 31-10-2002 the following incidents happened:
In the incident, some of the PDP agitators damaged the window glass, ventilator glass, name boards of neghbouring shops and buldings. They also damaged two motorcycles, 21 cars one Jeep, and 3 KSTRC Buses. The mob also tried to destroy the oil, diesel etc. kept in the Civil Supplies Petrol Pump and set fire on it. The overall damage caused by the agitators was about 8 lakhs.”
In paragraph 5 it is averred as follows:
“As regard Grounds A, it is submitted that it is true that some of the protests staged before the Secretariat could disrupt the vehicular and pedestrian traffic. Such agitations affect, very seriously the legitimate rights of the business and commercial establishments in the vicinity to carry out the normal activities.”
Similar incidents which happened during demonstrations before Secretariat on 27-11-2002 and 28-11-2002 were detailed in the counter-affidavit filed in O.P No. 37488 of 2002. In the counter-affidavit filed by the Principal Secretary in O.P No. 2713 of 2003 it is stated as follows:
“As regards the averments contained in paragraph 5 is concerned, it is submitted that many demonstrations and processions are conducted by many including major political parties in the city every year and some of them may result in violence. Some of the participants in such agitations might indulge in stone throwing, and cause damage to the public and private property etc. This does cause a lot of hardship and loss to the members of the society. Instructions already exist that the organizers obtain permission for processions from law enforcing agencies and to keep themselves in readiness to check any untoward incident.”
In paragraph 7 it is averred as follows:
“…… However because of the congested road in Thiruvananthapuram city and lack of roads with sufficient width parallel to M.G Road, even a very small procession does result in inconvenience to traffic. Best efforts are being made to minimize the same and legal action is taken against the violators of law.”
Considering the incidental events admitted by the Government, petitioner seeks a total ban of dharnas and demonstrations or at least before Secretariat and in M.G Road from Palayam to Thampanur and other busy roads.
3. As per the 20th Century Dictionary demonstration is a public expression of feelings as by a mass meeting or a procession. Thus procession is only a form of demonstration. The essential difference is that a procession shall be a moving one while a demonstration need not be a moving one. An organised demonstration in a public place where it is a stationary one is called an assembly or a meeting. Where the demonstration is in motion it is called procession. In Emperor v. Nana Sahu Sonavane, AIR 1943 Bom 209 the Bombay High Court has gone into great details as to the definition, nature and ingredients of a procession. Justice Lokur defined the term procession as a formal and organized march of two or more persons, formal implying a kind of solemnity or something spectacular so as to attract attention and organized implying a common intention or unity of purpose. The right to take out a procession is the fundamental right of the citizens. It is subject to such rights of other citizens and controls exercised by authorities to regulate traffic, but reasonable restrictions can alone be imposed by the State authority. Kerala High Court in Shankaranayaranan v. State of Kerala, AIR 1986 Ker 82 observed that an uncontrolled right to procession causes problems to the public. The freedom of the common public is affected by processions. People are likely to be strangulated in busy streets without finding any way to move out. The Court considered the passage rights of the public especially the city dwellers in the context of processions. It was observed that nobody had the right to take out a procession without any control or regulation. In the larger interest of the public, restriction, and regulations were held to be inevitable. The petitioners sought a remedy for urban citizens to enjoy their property adjoining highways. They needed also a remedy against frequent and unreasonable invasions of rights for longer periods due to processions. Referring to the remedies in such situations under Sections 133 and 144, Cr. P.C it was held that such remedies were useful. Nevertheless the High Court emphasized the need to have a special enactment in the lines of Public Order Act, 1936. The Court observed as follows:
“…….. There seems to be growing impression that effective strength of organisations can be demonstrated only by holding the public to ransom for long periods of time, he who does it the longest being treated as the best. In doing that, these organizations appear to insist that no law shall stand in the way of their expediency. The law enforcement agencies are understandably inactive, their anxiety being not to involve themselves in controversies, which may have political overtones. Instead of acting as law enforcing agencies, they take the role of spectators. Unless there is a change in attitude on the part of the enforcement agencies, any law, however laudable its object may be, is likely only to compound the problem. It is our earnest desire that along with the enactment of a law to regulate public order, the governmental agencies inculcate in themselves an anxiety to see that laws are observed scrupulously and their breaches are dealt with firmly, however, hight the lawbreaker be and whatever be the consequences of action enjoined by law.”
In England the right to use public roads and other public places for processions is limited. In Harrison v. Duke of Rutland, (1883) 1 QB 142 it was held that where a person uses the public roads for any purpose other than the purpose for which the roads are dedicated, it will be trespass. Lord Esher stated as follows:
“Highways are, no doubt, dedicated prima facie for the purpose of passage, but things done upon them for everybody which are recognised as being rightly done, as constituting a reasonable and usual mode of using highways as such. If a person on a highway does not transgress such reasonable and usual mode of using it, I do not think that he will be a trespasser.”
Obstruction of a highway may constitute a public nuisance. In England, the Highways Act makes one penally liable where he without any lawful excuse wilfully obstructs the free passage. In the United States, the Supreme Court in Davis v. Massachusetts (1897) 167 US 43 observed as follows:
“For the legislature, absolutely or conditionally, to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house.”
In Olga Tellis v. Municipal Corporation, AIR 1986 SC 180 the Supreme Court observed as follows:
“Public streets, of which pavements form a part, are primarily dedicated for the purpose of passage, and even the pedestrians have but the limited right of using pavements for the purpose of passing and repassing. So long as a person does not transgress the limited purpose for which pavements are made, his use thereof is legitimate and lawful. But if a person puts any public property to a use for which it is not intended and is not authorized so to use it, he becomes a trespasser.”
In Bombay Hawkers Union v. Bombay Municipal Corporation, AIR 1985 SC 1206 The Supreme Court was of the opinion that public road as meant for passage. Any other right is subject to this primary right and shall also be reasonable.
4. Affidavit filed by the Principal Secretary to the Government, admits the incidents narrated in the petitions. It is also pointed out by the petitioners that a study conducted by the National Transportation Planning and Research Centre (NTPRC) reveals that a whopping loss of Rs. 15, crores is incurred every year owing to protest marches along the M.G Road in Thiruvananthapuram City. A Full Bench of this Court considered the right to conduct demonstration and protest march etc. In Peoples Council for Social Justice v. State of Kerala, 1997 (2) Ker LT 301: (AIR 1997 Ker 309) (FB). Speaking for the Bench, K.G Balakrishnan, J. (as he then was) held as follows:
“12. The right to assemble peaceably and the right to form association or union and to have freedom of speech and expression for such association or union are valuable fundamental rights recognised under our Constitution. The right to take procession along the highway is a part of this right. However, these rights should be exercised without causing injury or annoyance to others. As regards procession and street marches, the authorities have got every right to impose reasonable restriction just as the participants of these processions and marches have got right to use the highway the ordinary citizens and pedestrians have also got equal right to pass and repass along with highway.”
The Full Bench gave the following nine special directions:
i. The organisers of the procession or demonstration shall give advance notice to the highest Police Officer of the District or such other officer authorised by the Government at least six days before the procession or demonstration is intended to be held. The notice must contain a brief note giving the reasons and purpose of the demonstration or procession and the approximate number of participants.
ii. The participants of procession/demonstration shall not be allowed to occupy the entire breadth of the road so as to obstruct the passing and repassing of pedestrians or vehicles through the road. The processionists shall not be allowed to carry lengthy banners so as to occupy the entire breadth of the road. The police should restrict the length of the banners if it is likely that the same would cause obstruction to the pedestrians and vehicular traffic.
iii. In all road junctions pedestrians shall be allowed to cut across the procession/demonstration and the police shall help the pedestrians to cross the road. Such crossing shall be once in every 10 minutes in every road junction and the police shall help and regulate the same by appropriate directions.
iv. If any participant in the demonstration/procession engages in disorderly conduct he shall be dealt with according to law.
v. Participants of processions/demonstrations shall not be allowed to carry any weapons or instruments that could be used as dangerous weapons.
vi. There shall be sufficient contingent of police and the police shall take all possible steps to regulate public assemblies and processions as envisaged under S. 19 of the Police Act and shall see that it shall be peaceful and cause least inconvenience to the public.
vii. Any wrongful act or omission upon or near public street by any of participants in the demonstration/procession whereby the public are prevented from freely, safely and conveniently passing along such public road shall be dealt with according to law.
viii. Road picketing and dharnas on public roads, being clear violations of law, shall strictly be prohibited and the police shall see that the persons who cause such obstruction to the pedestrians and vehicular traffic be removed from the road.
ix. The Government shall issue appropriate circulars to the police authorities impressing upon them the need to enforce the provisions contained in the Police Act.”
The above directions were, approved by the Apex Court except the first direction, which was modified by reducing the period of issuing notice to three days, in Civil Appeal Nos. 1424 to 1426 of 1999. The Apex Court held as follows:
“After hearing learned counsel for the appellant as well as learned counsel for the State, we modify the first direction by reducing the period of issuing notice of at least six days before the procession or demonstration is intended to be held to a period of not less than three days before the procession or demonstration is intended to be held. In all other respects, the direction is maintained. Appeal is thus disposed of in modification of the impugned order as indicated above…..”
5. The state of affairs as averred in the affidavit field by the Government itself shows that Government is not able to implement it fully and fundamental rights of others are violated by the demonstrators. Apart from traffic jams, the demonstrations are creating huge loss to the public. Citizens right to move about freely and carrying on their profession etc. is obstructed. In view of the fact that roads are narrow and on gathering of even 50 peoples before Secretariat will stop the entire traffic, we are of the opinion that Government should prohibit conducting of demonstrations and processions on busy roads like M.G Road from Palayam Junction to Thampanur, and other busy parts of the roads during working days. Imposition of ban on demonstrations and marches in certain parts of busy roads on working days in public interest to protect the fundamental rights of the majority of citizens is perfectly valid and only a reasonable restriction. Government is bound to implement the directions given by the Full Bench of this Court as approved by the Apex Court. Police shall not allow any procession or demonstration against the above directions and shall not permit such demonstrations on working days in busy parts of the roads like M.G Road in Thiruvananthapuram causing traffic block. Petitioners in these cases have filed representations, marked as Ext. P. 1 in the original petitions. Those representations shall be considered and disposed of as expeditiously as possible.
All these original petitions are disposed of accordingly.
Order accordingly.
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