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2020 Supreme(Ker) 493
IN THE HIGH COURT OF KERALA AT ERNAKULAM
S. MANIKUMAR, SHAJI P. CHALY, JJ.
Jayakumar T.V. S/o Eswaran Namboodiri – Petitioner
Versus
State of Kerala, Rep. by its Chief Secretary, Thiruvananthapuram – Respondent
W.P. (C) No. 15342 of 2020
Decided On : 30-07-2020
Advocate Appeared:
For the Petitioners: Dr. K.P. Pradeep, Smt. T. Thasmi.
For the Respondents: Sri. Ranjith Thampan, Sri. P. Narayanan, Sri. V. Manu, Sri. P. Vijayakumar.
Important points:
In exercise of powers conferred under Sec. 20(3) of the Disaster Management Act-2005, the undersigned in his capacity as Chairperson, State Executive Committee of State Disaster Management Authority, hereby orders that the regulations and guidelines in the above order of Ministry of Home Affairs would be applicable to the entire State of Kerala.
Headnote:
The Disaster Management Act-2005, Sec. 20(3), Sections 6(2)(i) and 10(2)(1) -The powers conferred under Sections 6(2)(i) and 10(2)(1) of the Act, 2005- National Disaster Management Authority has decided to re-open more activities in a calibrated manner, in areas outside the containment zones and to extend the lockdown in the containment zones upto 31.07.2020-Issued Order No. 40-3/2020-DM-I(IA) dated 29.06.2020-Religious places/places of worship for public have already been opened in Phase I-The Guidelines for Phased Re-opening (Unlock 2)-Notification dated 29.06.2020
Statement of facts:
The grievance of the petitioners is that in the Annexure which is appended to Exhibit-P5, it is stated that -Number of person's at a time may be decided on the basis of the area of religious/worship place. 15 persons per 100 sq. ft. can be taken as a parameter. In any case, the number of persons shall not exceed 100 at a time” which is in contradiction with Exhibits-P3 order and P6 Standard Operative Procedure issued by the Government of India. However, in the Annexure appended to Exhibit-P4 notification dated 29.06.2020, Government of India have made it clear that public assembly of 20 persons and 50 persons are allowed in the case of funeral as well as marriage functions- Exhibits-P5 and P5(a) are not in terms of Exhibit-P6 SOP and the Government of Kerala has exceeded in its jurisdiction while issuing Exhibit-P5 order, wherein public assembly upto 100 persons have been allowed in the religious and other worship places
Finding of the court:
Mass in a Church is conducted at a particular time, prayer in a Mosque is performed at a particular time and so also worship in a Temple. One will have to give a meaningful intent when the Central Government have issued guidelines for opening activities in religious places/places of worships for public, whether a person belongs to it is Hindu/Muslim/Christian or any other religion. Though contentions are made on bona fides of the petitioners, who are advocates, we are not inclined to delve into the same. Contentions that there is an absolute bar on religious assembly is not accepted.
Result: Writ Petition is dismissed.
JUDGMENT :
S. MANIKUMAR, J.
1. Instant public interest writ petition is filed for the following reliefs:
“(i) To declare that public gathering/assemblies or mass prayers by any social or religious institution or group or congregation, violating the norms issued by Government of India from time to time during the period of COVID-19 pandemic, is illegal and unconstitutional.
(ii) To issue a certiorari or any other appropriate writ or writs or order or directions, to quash Exhibits-P5 and P5(a) orders dated 05.06.2020 and 26.06.2020 respectively, issued by respondent No. 1-State of Kerala, to the extent they permit social or religious gathering with a participation of upto 100 persons and in violation of Exhibits-P4 and P7 orders dated 29.06.2020 and 30.06.2020 respectively.
(iii) To issue a writ of mandamus, or any other writ or order or direction to respondents 1 and 4, viz. State of Kerala, represented by its Chief Secretary, Thiruvananthapuram and State Police Chief, Kerala Police Head Quarters, Thiruvananthapuram, to take strict actions against the organisations or participants; or both, of large social or religious gathering, who are acting in violation of existing COVID-19 Regulations, issued in Exhibit-P4 or such other directives issued by Government of India under Disaster Management Act, 2005 from time to time.
(iv) To declare Exhibit-P1 Kerala Epidemic Diseases Ordinance, 2020 or any regulation made thereunder or any Standard Operation Procedure or notifications or orders issued thereunder, to the extent of its repugnancy or contravention to the order or notification or rules issued or framed under the Disaster Management Act, 2005 is unconstitutional and unenforceable.
(v) Direct the respondents to pay the cost of this proceedings.”
2. Facts leading to the filing of instant writ petition are, petitioners are lawyers practicing in this Court and are actively involved in the forefront of COVID-19 mitigation activities, by providing necessary assistance and guidance to the needy people. Considering the spread of Novel Corona-Virus as a threat to human life, the public at large are required to follow the health advisories of the Government of India and the respective State Governments, issued from time to time.
3. This Court, after taking note of the increasing cases of COVID-19 positive and its contact spreading, considered Suo-Motu W.P. (C) No. 9401 of 2020, as well as W.P. (C) Nos. 14141 and 14196 of 2020 and issued orders on 14.07.2020 and 15.07.2020, wherein direction was issued to the respondents 1 and 4 therein to strictly abide by the directives of the Government of India.
4. Petitioners have further stated that at the beginning of COVID-19, considering the gravity of the situation, Hon'ble Governor of Kerala has promulgated Kerala Epidemic Diseases Ordinance, 2020, by Exhibit-P1 Notification No. 6640/Leg.H1/2020/Law dated 27.03.2020, to unify and consolidate the laws relating to regulation, prevention of epidemic diseases and for matters connected therewith or incidental thereto. Consequently, the State Government issued an order dated 29.03.2020 vide SRO No. 250 of 2020, initiating measures necessary for regulation and prevention of epidemic diseases by the Government, viz. Kerala Epidemic Diseases Corona-Virus Disease (COVID-19) Regulations, 2020.
5. Petitioners have further stated that by Exhibit-P2 order dated 2.7.2020, Government of Kerala have issued Kerala Epidemic Disease Corona-Virus Disease (COVID-19) Additional Regulations, 2020. Though public health is a subject enumerated in Entry 6 of List II, State List in Schedule VII of the Constitution of India, once an epidemic or pandemic is notified as disaster under the Disaster Management Act, 2005, (for short ‘Act, 2005’) which is a Central Legislation, the State Government cannot formulate separate guidelines, contrary to the regulations framed under the Act, 2005. Hence, Exhibits-P1 and P2 are subject to law and regulations enacted or framed by the Government of In
