A Division Bench of the Kerala High Court on Thursday struck down as unconstitutional Section 5(1)(c) of the Kerala Public Ways (Restriction of Assemblies and Processions) Act that empowers district police chiefs to grant permission to hold public meetings and assemblies on public roads and road margins.
The Bench comprising Justice C.N.. Ramachandran Nair and Justice P.S..Gopinathan, however, upheld the constitutional validity of Section 5(1) (a) and (d) of the Act that gives the power to the district police chiefs to grant sanction to conduct religious, national and cultural festivals and allow demonstration and procession along the roads subject to the restrictions imposed by a Full Court of the High Court. As per the Full Court verdict, processions and demonstrations can be allowed on one side of the road, leaving out the other side for traffic and pedestrian movement.
The court observed that the fundamental rights under Article 19(1) (a) and (b) (freedom of speech and expression and to assemble peaceably without arms) had to be synchronised with the right under Article 19(1) (d) (move freely throughout the territory of India) which was possible only by prohibiting assemblies and meeting on public roads and such restriction was justified under Article 19(2) of the Constitution.
The court made the ruling while partially allowing two public interest writ petitions filed by Khalid Mundappally and others challenging the constitutional validity of the Act.
The petitioner contended that Section 4(1) and (2) prohibited obstruction on public roads by conducting any meeting or business or taking out any procession or demonstration. Therefore, Section 5 was contrary to Section 4 of the Act.
The court observed that no survey was conducted to identify whether any road margin was suitable or sufficient to hold public meetings and if so, the number of people who could gather there. The road margins were encroached upon by the people and even electricity connection and water connection were given to such encroachers.
In this context, there was no justification to uphold Section 5(1) (c) of the Act. The court had earlier stayed the operation of the Act. The government, in an affidavit, sought to vacate the stay , saying the Act did not violate any fundamental right and was constitutionally valid.