J.B. Koshy, J.@mdashDisgusted, disheartened and distressed by the suffering of people, at large, by the frequent processions and agitations 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 many 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 neighbouring shops and buildings. They also damaged two motorcycles, 21 cars, one Jeep, and 3 KSRTC Buses. The mob also tried to destroy the oil, diesel etc. kept in the Civil Supplies Petrol Pump and set fire on it. The over all damage caused by the agitators was about 8 lakhs..."
In paragraph 5 it is averred as follows:
"As regards 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. 3748 & 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 processsion 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
"......... There seems to be a growing impression that effective strength of organizations 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 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 arid their breaches are dealt with firmly, however high 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 (1893) 1 Q.B. 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 recognized as being rightly done, as constituting a reasonable and usual mode of using a highways as such. If a person on a highway does riot 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 penalty liable where he without any lawful excuse wilfully obstructs the free passage. In the United States, the Supreme Court in Davis v. Massachusetts (1896) U.S. 167 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
"Public streets, of which pavements form apart, 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 use for which it is not intended and is not authorised so to use it, he becomes a trespasser".
In
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) KLT 301 . 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 the re-pass along the 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 u/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 public 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 filed 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 people 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 riot 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.Pl in the Original Petitions. Those representations shall be considered and disposed of as expeditiously as possible.
All these Original Petitions are disposed of accordingly.
