Reclaiming the streets: Right to walk as a newly recognised fundamental right

From an indispensable activity to struggle for not so fortunate, even though the walking started long before wheels took over the roads, it is now seen only as a nuisance for motorized vehicles.

It is against this background that the Supreme Court of India elevated the ordinary act of walking into a fundamental right, deriving it from Article 19(1)(d) and 21 of the Constitution.

This article welcomes the new right and explores various nuances relating to the right to walk, including the existing statutory vacuum, the corresponding duties it imposes upon the civic authorities, and the legal remedies available to citizens.

The recognition arose unexpectedly from a motor vehicle claim after a tanker killed a five-year-old boy. While deciding the compensation, the Supreme Court used this occasion to recognize a new fundamental right, the right to walk on demarcated footpaths.

Crucially, this newly recognized fundamental right of citizens takes precedence over the rights of motorized vehicles. Furthermore, to ensure that this right is accessible and enforceable, a duty is cast upon constitutional courts to unequivocally declare its existence, and leverage the existing mechanisms of civil and constitutional remedies for its effective realization.

Walking should not only be seen as a way to reach from one destination to another, but also as a powerful medium to express thoughts, ideas, approvals, and disapprovals.

From Dandi March (also known as Salt Satyagraha), a popular 24-day non-violent civil disobedience campaign led by Mahatma Gandhi, to Subhas Chandra Bose’s 1942 Dilli Chalo movement, which rallied the Indian National Army (INA) to “march to Delhi”, all are perfect examples of walking as a way of expression.

Although the right to walk has been recognised as a fundamental right, there is no specific law that deals with this right or facilitates the demarcation of footpaths to exercise it. In fact, there is no express legal provision that mandates the incorporation of dedicated footpaths during the planning and construction of buildings and roads.

Be it fully developed urban localities or developing rural clusters, the construction and development of buildings and roads take priority, while footpaths are often ignored.

The Motor Vehicle Act,1988, is frequently assumed to deal with pedestrian rights. On the contrary, the act mainly focuses upon “vehicle” as the subject of the legislation, and “human” interests are only incidental, which the motor vehicle has to avoid violating. The courts have tried to squeeze in pedestrian rights in nooks and crannies of the fundamental rights and the Motor Vehicle Act.

It is pertinent to note that judicially recognized rights, such as the right to walk, truly become enforceable through robust legislative and executive actions. For instance, despite the right to information being recognized as part of freedom of speech and expression in a catena of Apex Court judgments, it truly became enforceable only after the enactment of the Right to Information Act, 2005.

Before the RTI Act, a citizen couldn’t simply walk into a government department and demand a file on the sole basis of its recognition as a fundamental right emanating from other fundamental rights; there was no designated officer, no timeline, no fee structure, and no penalty for refusal.

Similarly, the right to education was recognised as a fundamental right emanating from Article 21 in Mohini Jain v. State of Karnataka, (1992) 3 SCC 666 and Unni Krishnan, JP v. State of A.P., (1993) 1 SCC 645. However, even after the right to education being recognized as a fundamental right, a poor child still could not possibly sue a local municipal corporation to instantly construct a school or hire qualified teachers in order to realise his/her right.

It was only after the 86th constitutional amendment act, and subsequent enactment of the Right of Children to Free and Compulsory Education (RTE) Act, 2009, that every child between age of 6 to 14 received an enforceable right to education.

Therefore, to transform the right to walk from a progressive judicial pronouncement to an accessible and enforceable reality, specific statutory legislation is imperative. Such laws must explicitly guarantee pedestrians’ right to walk on safe, accessible, and demarcated footpaths.

Furthermore, to ensure effective implementation, this legislative framework must include other important provisions such as the creation of a dedicated authority to oversee the implementation of the framework, clearly defined duties of civic authorities, and stringent penalties for non-compliance.

It is a fundamental principle of jurisprudence that every right casts a corresponding duty on the concerned authority. In the present case, it imposes a corresponding duty on duty bearers –– including Urban Development Authorities, Municipal Corporations, Municipalities, and Panchayats) — to duly demarcate and maintain footpaths. While acknowledging the same, the Apex Court in para 10 of the judgment held:

“If a road exists, there must then be a duty to ensure that a footpath is demarcated and maintained for the walkers. This is an enforceable duty. The fundamental right to walk on demarcated footpaths shall override the privilege of a motorized vehicle.”

However, effective implementation of this newly recognised right may come with its own set of challenges. Dedicated footpaths are often obstructed by various impediments such as litter, electricity poles, water pipelines, lack of proper maintenance, unauthorized vendors, and construction materials from public projects. Consequently, it is imperative to have a specific law and policy framework to address these hindrances.

At the same time, the right to walk has to be implemented and exercised in consonance with other intertwined statutory enactments. For instance, pedestrians may now perceive street vendors as a nuisance, obstructing their fundamental right to walk. However, long before the Court’s recognition of the right to walk, street vendors’ rights were recognized by the judiciary and later received statutory backing with the enactment of the Street Vendors (Protection of Livelihood and Regulation of Street Vendors) Act, 2014.

It is pertinent to note that Section 3(3) of the Street Vendors Act, 2014, which regulates street vending in public areas and protects the rights of urban hawkers, prohibits the eviction or relocation of street vendors until the Town Vending Committee (TVC) conducts a survey of all the existing vendors. Therefore, the right to walk, as a fundamental right, must be enforced and implemented while respecting these statutory rights.

Citizens are entitled to invoke constitutional and legal remedies, in case of violation of their right to walk, against duty bearers/local authorities for restitution and compensation.

If local authorities fail to provide dedicated, encroachment free, and demarcated footpaths, an aggrieved citizen can file a Writ Petition in the concerned High Court under Article 226, or in the Supreme Court under Article 32 of the Constitution of India.

Moreover, an aggrieved citizen can approach civil courts under Sections 38 to 40 of the Specific Relief Act, 1963, which allow individual to enforce public duties and seek restitution against the Urban Development Authorities, Municipal Corporations, Municipalities, or the Panchayats.

Walking has always been a means by which people moved, gathered, worshipped, and protested. Yet in contemporary India, walking has been reduced to an afterthought of rural and urban planning — tolerated at best, and treated as an obstruction to motorised vehicular movements at worst.

Our modern cities have been designed primarily around motorized vehicles. However, following this progressive and transformative judgment, the priority given to motorised vehicles under existing statutes and policies must inevitably change. 

In the absence of dedicated and safe footpaths, walking will always be susceptible to life-threatening accidents, and the right to walk will remain subjugated to vehicular movements. This fearful situation, where pedestrians are constantly anxious while walking due to the absence of safe footpaths, demands dedicated spaces to ensure a safe and unhindered walk.

About the author: Naveen Kumar is an Advocate-On-Record, Supreme Court of India.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.

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