Judiciary’s role in the right to walk

A Balancing Act Between the Stakeholders

Aditya Aryan*

Indian cities have historically served as hubs for pedestrians, with a large number of people relying on walking, cycling and using public transportation for their daily commutes. Pedestrians comprise the largest group of road users, accounting for 63 per cent of all journeys, according to a 2019 survey conducted in a few chosen locations¹. Unfortunately, amidst the rapid growth of motorisation in Indian cities, the question of pedestrian facilities has taken a backseat. Finding a mere functional footpath in cities seems like a luxury. The increase in number of motor vehicles has also resulted in a significant rise in pedestrian fatalities and accidents, as well as heightened levels of air pollution. Safety has become a primary concern for a pedestrian in India while availing the facility of roads. Apart from pedestrian safety, there have been multiple voices that highlight the impact of pedestrian-friendly cities on the environment such as low carbon emission, less noise pollution, etc. The matter concerning the rights of pedestrians has been persistently and vigorously debated, resulting in the initiation of numerous petitions and cases in Indian courts. The judiciary, on multiple occasions, has attempted to fill in the gaps because of the inaction of legislature and executive.

“Finding a mere functional footpath in cities seems like a luxury.”
“The Rules of the Road Regulation, 1989, where it recognises “The pedestrians have the right of way at uncontrolled pedestrian crossing. .”

Absence of A Central Law

There is an absence of centrally implemented law or policy that governs or enforces pedestrian rights throughout India. The only place the word ‘pedestrian’ finds a mention is in The Rules of the Road Regulation, 1989, where it recognises “The pedestrians have the right of way at uncontrolled pedestrian crossing.” The rights of pedestrians are mentioned in passing in a few other laws like the recently amended Motor Vehicles Act, 1988 (amended in 2019) among others, but is not centre-staged. For instance, Section 279 of the IPC, 1860 stipulates severe penalties for careless or reckless driving. In a similar vein, Section 304 addresses death brought on by carelessness risking the life or personal safety of another individual. In addition, the Motor Vehicles Act’s Sections 7 to 38 and 112 discuss different licence criteria and speed limitations that must be met in order to guarantee authorised driving on public highways. However, none of these actions further the idea of the ‘right to walk’ and/or strictly legislate the rights of pedestrians.

Municipality Acts

In the absence of central legislations, we look at various city Municipality Acts that talk about the construction of public streets, parking rules, footpaths, hawker licensing and many other laws that are related to the maintenance of roads in a city. There is an emphasis on adequate and appropriate development of pedestrianfriendly infrastructure, but the outcome is vastly different. Various cities in India have committed to the idea of ‘smart cities’ in their plans for city development (e.g. DDA Master Plan 2021, DDA Master Plan 2041) and have pedestrianised certain areas. But no city has implemented a city-wide network of functional footpaths. Due to the lack of legislation(s) that govern the issue in India and the constant inability of city planning authorities, we look upon the judiciary and try to evaluate their role in moulding the discourse of the ‘Right to Walk’ in India.

Rights of Pedestrians

It was in 1985 when the Supreme Court first talked about the rights of pedestrians in the landmark judgement of Olga Tellis v. Bombay Municipal Corporation, 1985 and stated that “the main reason for laying out pavements is to ensure that pedestrians are able to go about their daily affairs with a reasonable measure of safety and security. That facility, which has matured into a right of pedestrians, cannot be set at naught by allowing encroachments to be made on pavements.”²

The Delhi High Court in 2007 said “The pavement by its very definition is meant for the use of pedestrians. The pedestrian is as much a user of the road or the circulation system of the city as a bus, a truck or a luxurious car …. Pedestrians include the healthy citizens and also the unhealthy. It includes physically handicapped people and may also include the visually impaired.”³

In the case of Sudhir Madan and Others v. Municipal Corporation of Delhi and Others, 2009, the apex court held that citizens have a fundamental right to use the roads, parks and other public conveniences provided by the state.⁴ If the streets or footways are in bad condition, the citizens are deprived of the effective use of the same thereby infringing upon their constitutional rights.

Another important judgement is Kerala State Insurance Department, represented by District Insurance Officer Civil Station v. Joy Wilson M.V. & Others, 2023 where the Kerala High Court held that “Pedestrians, especially children and the aged, are probably the most vulnerable road users…. that Pedestrian Crossings/Zebra Crossing are meant to offer priority to pedestrians and that it becomes their right to use the same, as and when they require it, especially when there are no traffic lights controlling movement through it.”⁵

“ we look upon the judiciary and try to evaluate their role in moulding the discourse of the ‘Right to Walk’ in India. ”

“Pedestrians, especially children and the aged, are probably the most vulnerable road users…. that Pedestrian Crossings/ Zebra Crossing are meant to offer priority.”

In the case of Shali P v. State of Kerala, 2019, the Kerala High Court said, “Developing a pedestrian environment means more than laying down a footpath or installing a signal. A truly viable pedestrian system takes into account both the big picture and smallest details-from how a city is formed and built to what materials are under our feet.”⁶

Balancing the Rights

It is imperative to note that the problem of walkability in cities is not so black and white despite Indian courts being largely accommodative of the demands. A major contention that the Indian courts have faced in matters related to the right to walk has been the question of balancing the right of usage of footpaths by street hawkers and pedestrians in cities.

The courts have repeatedly assured that they do not want to trample upon the livelihoods of hawkers with a blanket ban. However, it has strongly condemned encroachment of the footpaths by different actors. They are not placed there for private use, and in fact, making use of them for private gain defeats the same objective that led to their removal from some public roadways. Here, it has to be made abundantly clear that the mere existence of street vendors does not directly contradict pedestrian space and safety. The idea of a complete street is a street designed to cater to the needs of all users and uses, through equitable allocation of road space.⁷

In the judgement of Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan and Others, 1997, the Supreme Court said “Footpath, street or pavement are public property which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public roads.”⁸

‘Essential Part of Fundamental Rights’

Citing the above judgement along with the Sudhir Madan judgement, the Karnataka High Court, 2009, stated that “a right to have streets including footways in a good and reasonable condition will have to be held as an essential part of the fundamental rights conferred on the citizens under Article 21 of the Constitution of India.”9 The Kerala High Court held in Sivaprasad v. State of Kerala, 2020 that the main purpose of constructing roadways is to make it easier for people to move around and transport things. It held that “...removal of encroachments on the footpaths or pavements over which the public has the right of passage or access cannot be regarded as unreasonable, unfair or unjust. The State, being the principal protector of the rights of its citizens, keeping in view the doctrine of public trust, should not permit any encroachments on the footpaths or pavements. Nobody has got a right to erect any structures on roads. The State is not an exception.”¹⁰

Limits to Street Trading Rights

In Saudan Singh v. N.D.M.C And Ors, 1992, a constitution bench recognised the right to trade on street pavements, subject to reasonable restrictions imposed by the state.11 However, it clarifies that there is no fundamental right to occupy a particular place on the pavement for trading purposes. Referring to this judgement, the Supreme Court in Gainda Ram and Ors v. Municipal Corporation of Delhi and Ors, 2010 emphasised that street trading is a fundamental right subject to reasonable restrictions and does not extend to occupying specific places on the pavement to the prejudice of others.¹²

A major breakthrough in the ongoing ‘Right to Walk’ discourse in India was when the Punjab & Haryana High Court categorically recognised it as a fundamental right under Article 21 of the Indian Constitution in 2023. Following this, the Punjab government issued orders regarding the same, instructing all state-operating road-making organisations, such as the state public works department, local bodies, and also the National Highway Authority of India to guarantee the presence of sidewalks in all upcoming road construction and expansion projects. The Patiala district in the state also came up with an initial plan to implement the instructions.¹³

Another major win for the ‘Right to Walk’ movement was when the Bombay High Court in Parisar Sanrakshan Sanwardhan Sanstha & Ors. v. The Pune Municipal Corporation & Ors., 2023 held that the Indian Road Congress guidelines are statutory in nature.¹⁴ The court said that, “Rule 166 of the Central Motor Vehicles Rules, 1989 clearly provides that the design, construction and maintenance of roads other than National Highways shall be in accordance with the standards and specifications of the Indian Road Congress, as may be applicable or any other guidelines issued by the Government from time to time. Thus, so far as the applicability of the guidelines issued by the Indian Roads Congress is concerned, we are of the opinion that the same are statutory.”

“ Developing a pedestrian environment means more than laying down a footpath or installing a signal. ”

“Right to have streets including footways in a good and reasonable condition will have to be held as an essential part of the fundamental rights conferred on the citizens under Article 21 of the Constitution of India”

Providing Hope

These judgements are a ray of hope in the uphill battle for the Right to Walk in India. It shows a visible judicial intent in ensuring that cities in our country have roads catering to all stakeholders and not just limited to motorised vehicles. The evolution of legal discourse around the issue is a clear indication of how the implementation of guidelines and laws have not materialised beyond the paper that they were presented on.

It is also extremely crucial to understand that policy changes are difficult to implement and are heavily dependent on behavioural change amongst road users. It is the duty of the policymakers and civil societies to educate the masses that making walkable cities will not only lead to a massive improvement in pedestrian safety but will also reduce carbon emissions and help us live a healthy lifestyle.

Endnotes

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