By: Malika Jain

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Imagine walking on the road and stepping into a pothole in the monsoon. Those rageful emotions have got a legal vent, a fundamental right petition! Recently, Justice Devan Ramachandran of the Kerala High Court expressed his frustration similarly at the persistent uncertainty surrounding the restoration of drains and footpaths in Ernakulum City ahead of monsoon. This, however, is not the first instance of the Indian judiciary recognising the right to road, including footpaths. Rooted in India’s colonial past and the freedom struggle, this right has seen robust judicial engagement over the years. Yet, as courts increasingly constitutionalise infrastructural failures, it is worth asking: how far can—and should—the fundamental rights framework be stretched to accommodate such interests?

THE RIGHT TO ROAD IN PRE-INDEPENDENCE INDIA

With the vision that Indians should be governed by a constitution framed by Indians, the 1924 National Convention, chaired by Tej Bahadur Sapru, drafted the Commonwealth of India Bill 1925. This Bill marked India’s earliest formal recognition of the right to road under Article 7(e). It further influenced its successors, such as the Nehru Report,1928 (Article 4 (xiv)), and the Karachi Resolution, 1931 (Article 1(vi)), both of which affirmed an equal right of access to, and use of, public roads. Interestingly, in 1930, despite the Indian National Congress’ boycott of the Round Table Conferences in London, B.R. Ambedkar and R. Srinivasan attended the same to represent the depressed classes. They presented a comprehensive proposal, titled ‘A Scheme of Political Safeguards for the Protection of the Depressed Classes in the Future Constitution of a Self-Governing India’, to outline eight key demands, including that the depressed classes shall not be discriminated in the “full and equal enjoyment of the…roads”.

Contextually speaking, these demands for the right to road predominantly sought to eliminate discriminatory practices—whether between the British and the Indians, or across different Indian castes—in the use and enjoyment of roads. In the same spirit, Article 15(2) of the Indian Constitution has been enacted, which prohibits discrimination on the grounds of “religion, race, caste, sex, place of birth” in the use of public spaces, including, inter alia, roads. Thanks to judicial creativity, this anti-discrimination context of the right to road has transformed over time.

CONTEXTUAL TRANSFORMATION OF THE RIGHT TO ROAD

In post-Independence India, the Supreme Court discussed the right of public/pedestrians to road in Olga Tellis vs. Bombay Municipal Corpn., which arose out of the obstruction of public roads or pavements due to pavement dwellers. The court upheld the removal of such intrusions on the ground, inter alia, that public places, such as roads and footpaths, over which the public has the right of passage or access, cannot be encroached (¶31, 37, 42, 43, & 45). Yet, it did not articulate this access-based connotation of the right as a fundamental right.

It was in State of H.P. vs. Umed Ram Sharma (¶11) that the Apex Court equated access to roads with access to life under Article 21 for the residents of hilly areas. Further, in Sudhir Madan vs. MCD (¶6 & 9) the Supreme Court explicitly upheld “…the rights of citizens, who have a fundamental right to use the roads, parks and other public conveniences provided by the State”, and ordered the removal of unauthorised hawkers and squatters.

Taking a step even further, the Bombay High Court, while recognising the statutory obligations of the municipal authorities to develop and maintain roads, included the citizens’ interest in the “existence of roads in a reasonable condition” within the ambit of Article 21 (¶5). Relying on Sudhir Madan, the Karnataka High Court also similarly expanded the right under Article 21 to include the “right to have streets including footways in a good and reasonable condition…” (¶14). It re-invoked this approach of recognising statutory obligations and producing constitutional law (fundamental rights) dicta to hold that “…if the footways or public streets are encroached upon in any manner including by parking of vehicles, it will amount to violation of fundamental rights guaranteed under Article 21 of the Constitution of India…” (¶6).

These judgments, thus, implied that the right to road would include the right to access good-conditioned roads.

Following Umed Ram Sharma, the Supreme Court, in the germinal case of Rajive Raturi vs. UOI (¶11, 12 &13), expanded the access-based orientation of the right to road under Article 21 to encompass the principle/interest of accessibility for persons with disabilities (hereinafter ‘PwDs’). However, the right to safe and accessible roads, despite being one of the focal points of the petition, did not meet corresponding emphasis by the Court, as it dealt with the issue more broadly and generally. Although the Court elaborately limned the international, constitutional, and statutory accessibility obligations of the State to mandate that public places, including government buildings, airports, and public transport carriers, be made accessible, it made no explicit direction as such to improve the inaccessible condition of the roads (¶34).

Nevertheless, this judgment catalysed the judicial recognition of the significance of accessible footpaths in enabling and facilitating street accessibility for PwDs and enforcing their fundamental rights.

Recently, the Supreme Court aligned these access and accessibility-based aspects of the right to road/footpaths to hold that “[r]ight to have unobstructed and disabled friendly footpaths is guaranteed under Article 21.” The petition raised concerns regarding pedestrian safety, arising from the compulsion to walk on roads alongside vehicular traffic due to the lack of proper, encroachment-free footpaths. In this regard, the court directed that not only “[a]ll public roads must have proper footways or footpath” but also that “[r]emoval of encroachments from footpaths is mandatory”, and that they must be “accessible and usable by persons with disabilities.” On the strength of this very judgment, Justice Devan Ramachandran of the Kerala High Court observed “I want my fundamental right on MG Road.”

In another recent decision, the Supreme Court reiterated a similar position while deciding an appeal against the Madhya Pradesh High Court’s decision to admit and allow a writ petition under Article 226 against a private entity engaged in the task of road development. In determining the nature of the functions performed by the private party to decide the maintainability question, the Court, however, preferred the route of fundamental rights to that of statutory duty. To fully bring out this contrast, it is necessary to set out a complete observation of the Court as follows:

“…The Madhya Pradesh Highways Act, 2004, repealing the 1936 Act, also reiterates the State’s role in the development, construction, and maintenance of roads in the State. Since the right to access any part of the country, with certain exceptions and restrictions under certain circumstances, is a fundamental right guaranteed under Article 19(1)(g) of the Constitution [sic], and the right to safe, well-maintained, and motorable roads is recognised as a part of the right to life under Article 21 of the Constitution of India, it is the responsibility of the State to develop and maintain the roads directly under its control. The contract for laying of a State Highway/District Road, when assigned by the Corporation owned and run by the government, assumes the character of a public function – even if performed by a private party – and would satisfy the functionality test to sustain the writ petition” (¶8.4).

Thus, despite the existence of a statutory duty, what proved conclusive in ascertaining the public character of the road development function, and in upholding the maintainability of the writ petition, was the Court’s recognition of, inter alia, the fundamental right to safe, well-maintained, and motorable roads under Article 21 of the Constitution.

CONCERNS SURROUNDING THE EXPANDED NOTION OF THE RIGHT TO ROAD

The Supreme Court has transformed the right to road, shifting its context from that of anti-discrimination to access plus accessibility. This is also evident in how Article 21, the right to life and personal liberty, has become the predominant placeholder for the right.

However, except in the case of PwDs or in circumstances akin to those in Umed Ram Sharma, where the absence or inadequacy of proper, obstruction-free roads and footpaths substantially affects the lives of the concerned people, such sweeping expansion of the right prompts a pertinent question: whether municipal or administrative lapses in maintaining footpaths, repairing roads, addressing potholes, or preventing encroachment from improper vehicle parking should be treated as violations of ‘transcendental’ fundamental rights. While access and accessibility are legitimate constitutional concerns, operationalising municipal and administrative negligence or inaction under the banner of the fundamental right to life may risk stretching the same beyond its intended and practical reach.

Such rights expansionism and constitutional overreach, however, is not uncommon in India. For example, in another instance, the Supreme Court allowed a writ petition under Article 32 by issuing directions to the concerned government and municipal corporations to perform their statutory duties, inter alia, of collecting, removing and disposing of garbage and other waste.

Some scholars such as Farrah Ahmed and Tarunabh Khaitan have even demonstrated that some of the most landmark social rights judgements, such as Olga Tellis vs. Bombay Municipal Corporation (right to shelter/housing), Mohini Jain vs. State of Karnataka (right to education), Parmanand Katara vs. Union of India (right to medical care), and Vincent Panikurlangara vs. Union of India (right to maintenance and improvement of public health), were essentially matters of administrative law wherein the Supreme Court could have granted the same remedies without invoking the fundamental rights framework.

Given the limited scope of this article, while it is appropriate to refrain from making any normative judgement about the precedents mentioned by these scholars, it is certainly deducible that the Supreme Court’s threshold for invoking the paramount fundamental rights framework is not very high.

Scholars such as Samuel Clark (p. 205) and M. Ignatieff (p. 90) have criticised such a judicial approach as exhibiting a “tendency to frame almost any grievance as a human-rights violation” and a “tendency to define anything desirable as a right”, respectively. Human/fundamental rights aim to protect “the basic agency or needs or dignity of persons”, signifying the “non-negotiable principles” of a dignified human life. Therefore, undue extrapolation of these rights by including various human interests or social justice claims may lead to the dilution of their rigour and essence. It may also place undue burden on the public law machinery by giving rise to excessive litigation, as time-taking goals are expressed in the absolute and imperative language of fundamental rights, which must be “respected here and now” (p. 129). It may vacuum the administrative flexibility required to resolve administrative issues, such as those identified in this article: non-maintenance of footpaths, pothole-ridden roads, road encroachment due to improper vehicle parking, and even garbage collection.

Moreover, as scholars like Dominique Clément have cautioned, in the face of resource constraints, such rights inflation may create a hierarchy of rights, a notion essentially antagonistic to the fundamental/human rights framework. Simply put, the scarcity of resources would hinder the fulfilment of a widely expanded set of absolute guarantees, thereby compelling the State to prioritise the most fundamental kind of rights over the not-so fundamental ones, while all of them are declared ‘fundamental rights’. In this vein, it would thus be helpful to contemplate if a line should be drawn between constitutional obligations of supreme importance and administrative duties.

ADDRESSING THE CONCERNS

A plausible resolution to the above concerns may be for courts to exercise ‘constitutional avoidance’ in cases that appear to teeter on the edge between constitutional and administrative law. Constitutional avoidance is an interpretive doctrine according to which “[w]here a claim may succeed on constitutional or non-constitutional grounds…the court should…prefer the non-constitutional remedy” (p. 281). This doctrine encourages courts to apply statutory, administrative, or private law—as opposed to constitutional law—wherever applicable and possible without causing substantial injustice. Contextually, it suggests that courts prefer the principles and doctrines of administrative law, such as legitimate expectations, ultra vires, and procedural fairness, to the fundamental rights framework.

The doctrine draws its legitimacy and justification from its utility in restraining judicial overreach and averting anti-democratic critiques of the judicial evolution of social rights. Further, it would not only obviate the above-mentioned concerns arising from rights expansionism, but also help underscore administrative failures, which are often at the heart of social rights cases. Although the courts’ fundamental rights approach might seem appropriate in view of the rampant problems of inadequate or poorly maintained roads and footpaths, administrative laxity in resolving these issues, and the cumbersome nature of alternate civil remedies, it is these very issues that it overshadows. It is only reasonable to think that the resolution of administrative problems requires proactive administrative efforts, as shaped and refined by the courts’ explication of administrative law principles, instead of constitutional recognition in the form of rights.

Some may argue in favour of the constitutionalised approach that administrative lapses may affect fundamental rights in some or the other way, mostly by impacting individuals’ liberty or the quality of their lives. However, it is submitted that fundamental rights are the basic rights of human beings, providing the foundation for a dignified life. Thus, it is inescapable that virtually any harm, however minor, could be construed as a violation of these rights. The doctrine of constitutional avoidance, however, does not mandate constitutional indifference (p. 612); rather, it simply emphasises treating constitutional reflections as contextual while keeping the administrative or statutory law at the forefront.

For instance, in the relevant cases above, the courts could have reflected the constitutional context without evolving a fundamental right and framing the issues as its violation. They could have acknowledged that well-maintained roads and footpaths facilitate the exercise of the right to movement under Article 19(1)(d) and personal liberty under Article 21. The exercise of constitutional avoidance would have still been possible by anchoring the basis of the remedy and the reasoning of the judgment in administrative or statutory law. The courts clearly missed this opportunity by enforcing the public’s statutory right of way on footpaths or roads only through the constitutional framework. Such a constitutionalised approach invites propriety questions, particularly for the High Courts, whose jurisdiction under Article 226 can be invoked for purposes other than the enforcement of fundamental rights.

Nevertheless, the Supreme Court of India and the Kerala High Court quite recently instantiated constitutional avoidance in affirming and ordering toll suspension due to the poor condition of roads, respectively. Relying on statutory and administrative law frameworks, the High Court observed that when the public is statutorily bound to pay tolls, it simultaneously acquires a corresponding (statutory) right to demand unhindered and safe access to well-maintained roads. It further noted that any failure on the part of relevant authorities to ensure such access would amount to a breach of the public’s legitimate expectations, undermining the scaffold of the toll regime (¶14). In reaching this conclusion, the High Court also acknowledged the constitutional background of the issue, namely, the fundamental right to safe, well-maintained, and motorable roads under Article 21 (a right repeatedly affirmed by the Apex Court despite debates over its formulation) (¶14). The Supreme Court further affirmed the High Court’s view and underlined administrative inefficiency, albeit without making any reference whatsoever to any fundamental right (¶11 & 17).

In this vein, two clarifications must, however, be made. Firstly, that constitutional avoidance would be appropriately exercisable only in cases where administrative failure is the main hurdle in achieving greater access to social rights. Secondly, that the concern of this article is not with the underlying interest in well-maintained roads or footpaths, which undeniably deserves judicial attention, but with the propriety of framing such interests as non-negotiable fundamental/human rights.

It is therefore submitted that the courts must be a little cautious in invoking the fundamental rights framework, ensuring that the gravity of the problem does not obscure the need for doctrinal propriety.

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