Eventful Sixty Years: The Kerala High Court Celebrates 60 Years Of Its Existence
The Kerala High Court celebrates 60 years of its glorious existence. It was on November 1, 1956 that the High Court formally came into being as the immediate successor of the Travancore-Cochin High Court. Within this time span of six decades, our High Court has earned a reputation for its superior judicial standards and lofty ideals. Landmark judgments passed by the Court, no doubt, has strengthened and improved the legal and constitutional framework of our country and contributed immensely to the development of law and polity. Further, it has made positive changes in the society. It has established impeccable standards of integrity and upheld the highest principles of independence of the judiciary and separation of powers. It’s Bench and the Bar are known for their intellectual wisdom and legal scholarship.
The High Court represents the rich heritage of its predecessor judicial institutions, right from the times of Desavazhis and Naduvazhis-who would settle disputes in early times according to custom, followed by Zilla court, Huzur court, Sadar court, High Court of Travancore, Cochin High Court, Travancore-Cochin High Court and High Court of Madras which parted in its favour with the Malabar District that was merged with the State of Kerala in due course of time.
With each passing decade, the High Court has been served by illustrious judges who have provided intellectual depth, vigour and vitality necessary to create a world-class Institution. The fact that this Institution has by now contributed 14 illustrious judges to the Supreme Court provides eloquent testimony to the high sense of duty prevailing amongst its judiciary. The Kerala High Court has the proud distinction of giving to the country and to the commonwealth countries its first woman judge to the High Court through Justice Anna Chandy and then added another feather in its cap through Justice M.Fathima Beevi, the first woman judge in the Supreme Court.
Kerala is known for everything that is beautiful and benign. The Kerala High Court, as an Institution has come to be a unique place of historical importance for several reasons. As an Institution, it has created history based on value system. History was also created by men and women who adorned it. It is still crowned as an Institution which one looks up to for enforcement of his rights and protection of civil liberties. It has a rich tradition. It has given wholesome meaning and healthy content to our democracy. We have every reason to be proud of our system and as days go by; our judicial system will go from strength to strength justifying citizens’ faith in it and their hopes and aspirations for speedy dispensation of justice with nobility.
The judgment delivered by Justice Subramonian Poti in Rajan’s case has travelled beyond national frontiers and assumed international proportions. The significance of the judgment is not that it was delivered during the emergency era, but the unusual approach the court has taken in the case to find out truth or otherwise of the plea of detention and thus to impart complete justice to the lis before it. Court could have simply closed the file by recording the version of the respondents who denied the allegation of arrest. But the court as the custodian of fundamental rights and personal liberties sailed through unchartered areas of substantive and procedural jurisprudence to reach at the conclusion that the petitioner’s son continued to be in custody, after having taken into custody from the premises of the Regional Engineering College Hostel, Calicut on the morning of 1-3-1976 and consequently issued writ of Habeas Corpus directing the production of the detenue before the court.
Kerala was the first State to have a court ban on bundh in 1997, which was later upheld by the Apex Court. But when bundhs masqueraded as forceful hartals, Court in the year 2000 boldly ruled that enforcement of a hartal call by a party or association or organization by “force, intimidation-physical, mental and coercion” was unconstitutional. It also ruled that forced hartals and general strikes are to be treated as bundh like situations and nobody can create a bundh like situation or obstruct the fundamental rights of others.
It banned smoking in public places. In another significant verdict championing the cause of human rights, it ruled that “being a Maoist is of no crime, though the political ideology of the Maoist will not synchronize with our institutional polity”. Court therefore ruled that police cannot detain a person merely because he is a Maoist, unless the police form a reasonable opinion that his activities are unlawful.
Court declared that no one has a fundamental right to assemble or hold meetings on public road or road margin which are meant only for vehicular traffic and the travelling public and further held that right to conduct meeting is nothing superior to the freedom of movement. Thus while balancing the conflicting rights under Articles 19 and 21 of the Constitution, court held that freedom of speech of somebody should not interfere with the peaceful living or movement of others. Court emphatically reiterated that holding of public meeting and forceful inclusion of public assembled for their purposes at junctions as audience is not only a violation of law and human rights but is a public nuisance which the Executive Magistrate is bound to remove under Section 133 of the Cr.PC. Though this verdict was not received in good taste by the political parties in the State, it has left a lasting impression in the mind of the common man that court stands for them. Significantly, on an earlier occasion, court had held that pedestrian’s fundamental right is violated by taking out processions blocking the entire road.
Court interference has improved the quality of academic life and restored peace, discipline and order in campus. It prohibited election to school parliament on political basis by reminding that the object of school parliament was to promote games, tournaments, debates, sramadan, etc. Looking at the campus scenario through judicial lens, it took the stand that educational institutions could prohibit political activities within the campus and forbid students from organizing or attending meetings other than official meetings in the campus. Court restrained political parties from carrying on their organizational activities within the campus; to the detriment of the student community. Principal was made the ultimate authority in disciplinary matters. It also allowed the police to enter the campus without permission to prevent crimes.
Court recognized the right of the people for clean air, water and healthy surroundings and took stern action against pollution. Affirming every man’s home to be his castle which cannot be invaded by toxic fumes or tormenting sounds, court ordered removal of workshop from a residential area on account of noise pollution that it caused. Imposing serious restrictions on the use of loudspeakers, court held that use of loudspeakers cannot be included under fundamental right to freedom of speech and expression and further declared that right to be let alone is positively the right to be free from noise. Similarly, court has also justified prohibition of use of air horns in motor vehicles under the provisions of the Noise Pollution (Regulation and Control) Rules, 2000 and Environment (Protection) Act, 1986 by holding that it does not infringe the fundamental right under Article 19(1)(g) of the Constitution[Trichur District Private Bus Operators’ Association v. State of Kerala, 2005 KHC 909].
Our court made supply of safe drinking water to citizens in adequate quantity as the primary constitutional responsibility of the State and its agencies and declared that its failure would amount to violation of fundamental right to life and violation of human rights.
Court has firmly stood for the cause of environment and ecology and enforced the principle of sustainable development. It liberalized the rules of locus standi in environmental litigations by holding that if the act done by a private person affects the environment, a person interested, who is not directly affected by the act, but has projected that claim as public interest, can challenge the act. It also declared that environmentally harmful acts can be challenged even if such act is carried out in the guise of a permit by contending that permits were granted ignoring the impact of the act on the environment. While fixing responsibility on the occupier of an institution generating bio-medical waste, court ruled that such waste shall be handled without any adverse effect to human health and environment [Environment Monitoring Forum v.Union of India, 2003 KHC 1382]. It has recognized principles of customary international law concerning sustainable development as part of municipal law for environmental causes and declared that it restricts the removal of ordinary earth, even from one’s own land, if such excavation or removal affects the rights of the local people guaranteed under Article 21 of the Constitution.
Court has recognized the right of the journalists to interview prisoners, of course, subject to reasonable restrictions. It has recognized the right of the people to live in a crime-free society as a fundamental right [Kailasan v.State, 2012(2) KHC 242(DB)]. In a case concerning an Overseas Indian citizen living in India, who gave birth to a female child in a ‘live in relationship’ with an Indian, Court directed the Passport Officer to treat the lady as an Indian citizen and to issue passport to her minor daughter based on domicile by birth.
It has provided solace to the differently abled and held that there is no disability attached with a totally blind person in fulfilling his obligation as LPG distributor. While declaring the guidelines to the extent it excluded blind persons from the zone of consideration for LPG distributorship, it went on to add that a blind person would also be able to discharge same functions as that of an able bodied person without any impediment for the purpose.
In Venu’s case, court held that the act of publishing by the Bank of photographs of loanees who are in default would infringe the fundamental rights guaranteed to them under Article 21 of the Constitution. The court to fortify its views even quoted with approval the words of Pulitzer Prize winner, Rick Bragg, to say that every life deserves a certain amount of dignity, no matter how poor or damaged the shell that carries it.
Similarly, when protectors of life and liberty turned to be abductors, a Division Bench of the court awarded compensation of Rs.50,000/- under public law to a young lawyer who lost five teeth when manhandled by the men in uniform, thereby zealously asserting that life and liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with except under the authority of law.
In similar terms, when the Corporation demolished a portion of the residential building where the appellants were residing, without notice and in a capricious and arbitrary manner, the Court directed the Corporation not only to restore the demolished portion of the building, but also to pay Rs.1 lakh as compensation, on the finding that right of the appellants for a meaningful life has been deprived of by the Corporation [Subaida Abdul Rasheed v. State of Kerala, 2015 KHC 7031].
Court has meaningfully interpreted the scope of right to life by declaring that it includes right to healthy life. According to the court, healthy life is possible only if safe and unadulterated food is made available for human consumption.
In yet another classical verdict rendered by the court [Puthuppan P.K.v.K.S.Girija, 2008(4) KHC 65], it ruled that guidelines evolved by the Supreme Court in Vishaka’s case in the matter of protection of women in the workplace has to be followed by all co-operative societies and private establishments in the State.
These are definitely verdicts delivered by socially conscious judges and touching the lives of the common man. This approach cogently proves the commitment of the judiciary to advance people’s interest. It is an undisputed fact that there can be no stable legal order unless it secures justice to the people. These judgments have attempted to wipe every tear from every eye, thus accomplishing the sublime goal of justice. It has not only made value additions to law and jurisprudence, but also demonstrated that judge’s ‘unconscious’ (A phrase used by Justice Frankfurter and quoted by Justice V.R. Krishna Iyer in his book ‘Justice and Beyond’, Deep & Deep Publications, New Delhi, p.37.) has played an enormous role in the exercise of judicial process, particularly when it closely touched contemporary social problems. This trend unambiguously establishes that ‘the court exists for the people and not the people for the court’ (For reference, see Lord Gardiner’s statement as quoted in P.L.Hamlyn Law Lectures).
High Court has crossed several milestones in its 60 years of history. Diamond Jubilee is an occasion for introspection and to ponder about the shape of things to come. Massive urbanization in the State and its related environmental, ecological and public health concerns poses new challenges. People will demand better governance, quicker resolution of disputes and effective enforcement as well as protection of their rights. The judiciary shall be required to come up with new and better solutions.
For this, the Bench and the Bar should act together with much greater cohesion. Every judge has to think globally while acting locally. Alternate means of dispute resolution to reduce arrears shall have to be more effectively used to improve the flow of cases and manage them better. However, we shall at all time focus on delivery of quick, effective and inexpensive justice to all.
Computerization of the High Court and the subordinate courts is essential for the development of the e-judicial system. From the time the case is filed, till it is finally disposed off with the judgment, the entire process must take place electronically. This will enable easy search, retrieval, grouping, information processing, judicial record processing and disposal of cases in a transparent manner and enable quicker disposal of cases. At any time litigants should be able to find out the stage, court, date, subject dealt with by the court during a particular hearing, thereby enabling the litigant to be fully prepared for the case.
Apart from bringing total transparency in the case, the judges can also see how the case has progressed, how many adjournments have been sought, whether the grounds are trivial or serious and any such information which will make the delivery of justice efficient and impartial. Though computerization has been made functional in the High Court at some levels, lower courts are yet to be linked fully to the process of computerization. It is high time our High Court should take up this mission of fully transforming the courts into an e-judiciary.
Courts are for the people, the consumers of justice. WE THE PEOPLE OF INDIA are its true owners. It is ultimately for the people to judge whether the Institution has fulfilled the people’s hope of administering law without fear or favour. Diamond Jubilee has heralded the dawn of a new era and our court shall soon reoccupy its pre-eminent position in the vanguard of Indian Judiciary. Let this Institution always remain the sentinel of justice, promoting the ideal of ‘justice for all’.
The writer is a lawyer of the High Court and a member of the Research Committee at National University of Advanced Legal Studies, Kochi.
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