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Kerala High Court Digest 2023: Human Rights
Tellmy Jolly
22 Jan 2024 9:35 AM GMT
'Children Helping Parents In Selling Articles Not Child Labour' : Kerala High Court Orders Release Of Children From Shelter HomeCase Title: Pappu Bawariya and Anr. v. District Collector Civil Station and Ors.Citation: 2023 LiveLaw(Ker) 10The Kerala High Court ordered the release of two children from Delhi who were sent to a shelter home alleging that they were being forced into child labour...
Case Title: Pappu Bawariya and Anr. v. District Collector Civil Station and Ors.
Citation: 2023 LiveLaw(Ker) 10
The Kerala High Court ordered the release of two children from Delhi who were sent to a shelter home alleging that they were being forced into child labour by selling articles on the streets to the custody of their parents.
In November 2022, the two children were nabbed by the Police alleging that they were being forced into child labour by selling articles on the streets. The Children were thereafter produced before the Child Welfare Committee and sent to shelter home. The Writ Petition was filed for the parents of the children seeking direction to release the children to their custody.
Justice V G Arun while passing the order said, "I am at a loss to understand as to how the activity of the children in helping their parents in selling pens and other small articles would amount to child labour. No doubt, the children ought to be educated, rather than being allowed to loiter on the streets along with their parents...I wonder as to how the children can be provided proper education while their parents are leading a nomadic life. Even then, the police or the CWC cannot take the children into custody and keep them away from their parents. To be poor being not a crime and to quote the father of our nation, poverty is the worst form of violence."
Case Title: Star Health Insurance And Allied Insurance Company Ltd v. Avinash T and Anr.
Citation: 2023 LiveLaw (Ker) 34
The Kerala High Court recently observed that COVID First Line Treatment Centre can be termed as a Hospital for the purpose of insurance claims.
Justice V G Arun said that as per the COVID-19 advisory for patient admission to CFLTCs issued by the Government, the Centre identified as COVID Health Care Centre should treat all mild and moderate symptomatic persons under surveillance and should be utilised for treating positive cases when need arises.
CFLTCs are Primary Level Health Care Centres set up for providing care to less serious cases and referral of serious cases to COVID hospitals, so as to avoid crowding in COVID Hospitals and avoid wastage of resources.
Case Title: Aaron S John v. TKM College of Engineering, Kollam and Ors.
Citation: 2023 LiveLaw (Ker) 37
The Kerala High Court, noting the increasing instances of sexual harassment against students in schools and colleges, observed that lessons in good behaviour and etiquette must be part of the curriculum and at least at the Primary Class level, teachers must be encouraged to instil virtues and values in students.
Justice Devan Ramachandran observed that the archaic concepts of masculinity have changed but it needs to change more.
"Boys, even from a very young age, often grow up with certain sexist stereotypes - reinforced by peer and other social influences. Showing a girl/woman respect and honour is not old fashioned; on the contrary, is a virtue for all times. Sexism is not acceptable or “cool”. One exhibits strength when he respects a girl/woman. Respectfullness is an imperative that needs to be inculcated very young. How one treats a woman gives an insight to his upbringing and personality."
Case Title: Clint Johnson v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 45
The Kerala High Court ruled that 'mentally retarded persons' are also entitled to tax exemption in purchase of motor cars, on par with the physically handicapped persons under the notification issued by the state government in 1998 under Section 22 of the Kerala Motor Vehicles Taxation Act, 1976.
Justice P.V. Kunhikrishnan said when both the Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and Rights of Persons With Disabilities Act, 2016 state that the person with disability includes 'mentally retarded persons' also, their exclusion from tax exemption and restricting the benefit to the physically handicapped persons - blinds, deaf and orthopedically handicapped persons, is discriminatory and is liable to be interfered by the court.
Case Title: Dr. Anupama K.P. v. University of Calicut & Ors.
Citation: 2023 LiveLaw (Ker) 62
The Kerala High Court has held that the reservation procedure followed by the Calicut University by earmarking roster points for persons with disabilities, and providing them with vertical reservation instead of horizontal, as being faulty and illegal, and also violative of Rule 15 of Part II Kerala State and Subordinate Service Rules (KS & SSR). Such reservation had resulted into reduction of the number of posts for Ezhavas, Thiyyas and Billavas (ETB) communities.
The Division Bench of Justice P.B. Suresh Kumar and Justice Sophy Thomas also found the procedure to be violative of the principles laid down in Indra Sawhney v. Union of India (1992), wherein the Apex Court had stated that while effecting the reservations in favour of category of persons like 'persons with disabilities', it would be obligatory on the part of the employer to ensure that the percentage of reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes remains intact.
"It is seen that on account of the faulty procedure adopted by the University, candidates belonging to ETB Communities who were otherwise entitled to 9 posts in a process of selection for filling up of 63 vacancies, could get only 8 posts. That apart, the procedure adopted by the University is violative of Rule 15 of Part II KS & SSR also, for the same is contrary to the rotation turns provided for in the Annexure to Part II KS & SSR. In terms of the said Annexure, the rotation turns for ETB Communities are 2, 14, 18, 28, 34, 42, 54, 58 and 62 and on account of the introduction of additional slots in the roster, the turns of ETB communities have been changed to 3, 15, 19, 30, 36, 44, 57 and 61. When a percentage of reservation is fixed in favour of a category by allotting reserve points in a roster, the same are to be filled from among the members of that reserved category only," the court held.
Case Title: Kalukutty v. P.M. John & Anr.
Citation: 2023 LiveLaw (Ker) 87
The Kerala High Court held that the monetary compensation to be awarded to a housewife who had been injured due to the reckless application of brakes while traveling in a Kerala State Road Transport Corporation (KSRTC) bus, would have to be measured and weighed on the same scales, as it would, had she been a working woman.
"...the contentions of the KSRTC, that a housewife earns no income and therefore, not eligible for compensation for disability and loss of amenities, is outrageous and beyond comprehension. The role of a mother and wife at home is beyond compare, and she is a true nation builder. She invests her time for the family and ensures that the next generation is fostered with the highest levels of excellence; and her efforts can never be taken trivially or brushed aside, as being without monetary value. The lives of human beings are never tested on the scales of their monetary worth, but by their contribution and selflessness", Justice Devan Ramachandran observed while enhancing the compensation that had been awarded by the Tribunal.
Case Title: Kottayam Municipality & Anr. v. The Chairperson, Kerala State Human Rights Commission & Ors.
Citation: 2023 LiveLaw (Ker) 89
The Kerala High Court held that the State Human Rights Commission has jurisdiction to direct payment of compensation for human right violations.
The Division Bench comprising Chief Justice S. Manikumar and Justice Murali Purushothaman passed the order in a case where a street vendor had been evicted by the Kottayam Municipality in a discriminatory manner, and without issuance of notice.
"The right of the 3rd respondent to carry on vending on street guaranteed by the Constitution is subject to the restrictions imposed by the Kerala Municipality Act, 1994. However, we find that the power of removal of encroachers vested in the Secretary under the Municipality Act is not exercised judicially and reasonably. The 3rd respondent's right to livelihood has been deprived otherwise than in accordance with a just and fair procedure established by law. Consequently, it follows that the Municipality has infringed the fundamental rights of the 3rd respondent under Article 21 of the Constitution", the Court observed.
State Human Rights Commission Cannot Entertain Service Matters: Kerala High Court
Case Title: The Institute of Human Resources Development (IHRD) v. Kerala State Human Rights Commission & Anr.
Citation: 2023 LiveLaw (Ker) 95
The Kerala High Court reiterated that the Kerala State Human Rights Commission has no jurisdiction to entertain service matters.
The Division Bench comprising Chief Justice S. Manikumar and Justice Murali Purushothaman relied upon the decisions in Malabar Cements Ltd. (M/s.) v. K. Baburajan & Ors. (2019), and District Tourism Promotion Council, represented by its Secretary v. State of Kerala represented by the Secretary & Ors. (2021), both of which had held that, in terms of Regulation 17(f) of the Kerala State Human Rights Commission (Procedure) Regulations, 2001, the Commission may dismiss in limine a complaint, if the issue pertains to service matters.
Case Title: Jamshid P.V. v. State of Kerala
Citation: 2023 LiveLaw (Ker) 104
The Kerala High Court refused to grant anticipatory bail to a person who had attacked a doctor who examined his wife, alleging that the Doctor had misbehaved towards her.
The Single Judge Bench of Justice A. Badharudeen was of the view that granting anticipatory bail in such a case would lead to a 'dangerous situation', whereby doctors, who are duty bound to treat patients as part of their oath, would not get protection and the the proper maintenance of health of the public at large would also be in peril.
Case Title: K C Antony V State of Kerala and Others
Citation: 2023 LiveLaw (Ker) 106
The Kerala High Court held that the Government cannot retain any amount in excess of the loss already quantified by it with regard to the amount due to a contractor on the premise of breach of contract.“The State and its instrumentalities are expected to deal with the citizens in a fair manner in all circumstances.”, the court observed in this regard.
The division bench comprising of Justice A Muhamed Mustaque and Justice Shoba Annamma Eapen was considering an appeal filed by a contractor, for recovery of claims and release of security deposit for work done for the Kerala State Construction Corporation in relation to a road project. The contract was awarded to the appellant but was subsequently terminated at the risk and cost of the appellant and another contractor was engaged for completion of the work.
Case Title: R. Helan Thilakom v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 108
The Kerala High Court recommended the Government to consider sanctioning regular Music teachers' post in all schools, at least in primary section, irrespective of the student's strength or number of periods.
The Court made the above recommendation, while considering the case of a Music teacher, who was forced to fight throughout her service to get a full-time post of, after completing five years in the part time post.
Case Title: Haseeb O.P. v. Muhammas Sufiyan & Ors. and other connected matters.
Citation: 2023 LiveLaw (Ker) 132
The Kerala High Court modified the order of a single bench that directed the State to give effect to its 2018 decision regarding reservation for employment in favour of persons with disabilities in aided educational institutions and also to take immediate steps to address the backlog in the appointments in the arising vacancies.
The Division Bench comprising Justice P.B. Suresh Kumar and Justice Sophy Thomas said:
1. The State's Educational Officers must provisionally approve appointments made for vacancies set aside for individuals with disabilities that arose between18.11.2018 and 08.11.2023, as long as the appointments are in order. These vacancies should be treated as temporary, and the approval will only be valid until the incumbents who are regularly appointed take charge. The officers should also ensure that the pay and allowances due to these individuals are disbursed. 2. If, despite following the detailed procedure prescribed by the government, regular appointments cannot be made for the vacancies mentioned in direction (1), the vacancies can be treated as substantive, and the approvals already granted can be made permanent. 3. Even if regular appointments are made for the vacancies mentioned in direction (1), the concerned teacher should be absorbed into the next immediate vacancy in the same school or any school under the same management, provided they are qualified for such appointment. The teachers should be treated as claimants under Rule 51A of Chapter XIVA of the Kerala Education Rules. 4. The Managers of all aided schools can hire individuals on a daily wage basis to fill vacancies that arose after November 8th, 2021, until they fully comply with the directions contained in the judgment of the single bench and the judgment in appeal.
Case Title: New India Assurance Co. Ltd. v. Gopinathan K.K. & Ors. and Gopinathan & Ors. v. Lijo V.J. & Ors.
Citation: 2023 LiveLaw (Ker) 140
The Kerala High Court recently considered the issue as to whether the children of a nonagenarian road accident victim, who are themselves senior citizens, would be entitled to compensation for 'Loss of Parental Consortium'.
Noting that the Tribunal had awarded an amount of Rs. 40,000/- under the head 'Loss of Love and Affection', which was challenged by the counsels for the Insurance Company on the ground that no amount could have been granted under that head since the claimants of the deceased were all senior citizens themselves, the Single Judge Bench of Justice Devan Ramachandran observed,
"I am afraid that this argument is too farfetched to be even countenanced because, whatever be the age of the father or the children, their relationship continues till the end; and for every father, his offsprings are always children".
Case Title: Sumesh G.S @ Sumesh Marcopolo V State Of Kerala
Citation: 2023 LiveLaw (Ker) 148
The Kerala High Court recently came down heavily on certain online media channels for broadcasting private moments of a woman and said it is disheartening to note that some online news channels "are in the habit of publishing sleaze more than news."
A single bench of Justice VG Arun while criticising the recent media trend of publishing private content of individuals in the name of news said: “In my opinion, publication of another person's private moments for public viewing is, by itself, an offensive act, even if there is no law preventing such action. No person, whether it be the media or Governmental agencies, have the right to peep into the private lives of the citizens of this country, without there being a valid reason.”
Case Title: Kerala Public Service Commission V. Arjun Geetha & Others
Citation: 2023 LiveLaw (Ker) 155
The Kerala High Court recently dismissed the plea of the Kerala Public Service Commission (KPSC) challenging the interim order of the Kerala Administrative Tribunal that had permitted a transman by the name of Arjun Geetha, to apply for the post of Sub Inspector of Police (Trainee) in Armed Police Battalion.
A division bench comprising Justice S V Bhatti and Justice Basant Balaji considering the plea of the Public Service Commission stated, “we are compelled to observe that the State Government/2nd respondent examine protection granted to the transgender persons by the Act, and the needful is done without subjecting them to avoidable litigation”.
Case Title: Noushad A. v. State of Kerala & Ors. and Nazeer A. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 174
The Kerala High Court held that any purposeful attempt made to create an impression that a convict is not a well-behaved person in turn to deny leave to him is illegal.
Justice Bechu Kurian Thomas, while allowing a petition seeking ordinary leave for a convict, observed that
“There has been an attempt to purposely deny leave to the petitioner by resorting to an unfair procedure. The action is, no doubt, to create an impression that petitioner is not a well-behaved person and in turn to deny leave to him. The procedure adopted is illegal…an eligible convict is entitled to be granted leave for 60 days in a year as per Rule 397 of the Rules read with section 78 of the Act. If the conditions for leave as prescribed in the statute are satisfied, the discretion to grant leave must be exercised in his favour as it will partake the character of a right itself”.
Case Title: Raveendran P.T. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 237
The Kerala High Court recently observed that all unhealthy, unscientific and deleterious practices are to be prevented, even if the same has been done in the name of religion. The Court made the observation while ordering probe against the ritualistic sacrifice of birds and animals at a private residence.
Justice V.G. Arun further directed that if it is found that a place of worship for conducting rituals had been constructed, with members of the public participating in it, immediate action ought to be taken to stop the same.
The court added that if it is found that slaughter of animals and birds is taking place in the precincts of the building, appropriate action under the Kerala Animals and Birds Sacrifices Prohibition Act also ought to be taken.
Case Title: XXX v. State of Kerala
Citation: 2023 LiveLaw (Ker) 252
The depiction of a woman's naked body should not be regarded as sexual or obscene always, observed the Kerala High Court while discharging a mother from a criminal case pertaining to making a video of her children painting on her semi-nude body.
Taking note of the woman's explanation that the video was made to challenge patriarchal notions and to spread a message against the over-sexualization of the female body, the High Court observed that the video cannot be regarded as obscene. She was chargesheeted for offences under under Sections 13, 14, and 15 of the Protection of Children from Sexual Offences Act, 2012 (POCSO), Section 67B (d) of the Information Technology Act, 2000 and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act).
Case Title: Kerala Public Service Commission v. Aneera C. & Ors.
Citation: 2023 LiveLaw (Ker) 272
The Kerala High Court recently refused to interfere with the interim order issued by the Kerala Administrative Tribunal permitting a trans-woman applicant to submit her application for the post of House Keeper (Female) that had been notified by the Kerala Public Services Commission (Kerala PSC).
The Division Bench comprising Justice Alexander Thomas and Justice C. Jayachandran was of the view that the impugned order was only an ad interim interlocutory order, that was intended to 'preserve the subject matter of the lis'.
Case Title: XXX. V State of Kerala
Citation: 2023 LiveLaw (Ker) 288
The Kerala High Court directed the Director General of Police to take steps to remove online images and details of a woman who is a victim of offences under the Immoral Traffic (Prevention) Act, 1956.
The Petitioner had approached the High Court for removal of online content having her name and images circulating on social media, which had resulted in humiliation and cyber attacks on her.
Taking note of the submission of the Petitioner that circulation of such content on social media is violating her right to privacy, a single bench of Justice K Babu observed that:
“Privacy is the ultimate expression of the sanctity of the individual. There cannot be dignity to an individual without privacy. It is a constitutional value founded on fundamental rights. Privacy with its attended values assures dignity to the individual. Dignity is the core which unites fundamental rights. Privacy is the constitutional core of human dignity.”
Kerala High Court Directs State Police Chief To Sensitize Police Personnel To Mental Healthcare Act
Case Title: XXX V. State of Kerala
Citation: 2023 LiveLaw (Ker) 292
The Kerala High Court directed the State Police Chief to ensure that Police Officers are familiar with the provisions of the Mental Healthcare Act, 2017 so that they can sensitively deal with cases involving mentally ill persons.
A single bench of Justice K Babu considered the suggestion made by the Amicus Curiae in the matter to direct the competent authorities to make sure that Police Officers are given proper training in the Mental Healthcare Act.
Case Title: Thushar Nirmal Sarathy v. State of Kerala
Citation: 2022 LiveLaw (Ker) 306
The Kerala High Court recently highlighted the vital role of lawyers as officers of the court in criminal cases and observed that when lawyers visit their clients in prison, it is the duty of prison officials to respect their professional duties and avoid unnecessary delays or detentions. Justice P.V. Kunhikrishnan expressed shock after a lawyer who was forced to approach the Court to obtain the signature of his client convicted in a criminal case lodged at Central Prison. The Judge made it clear that any unwarranted obstacles faced by lawyers in meeting their clients in jail will be viewed seriously by the Court going forward.
Case Title: Santha Kumari v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 348
No one else can give to the ward all that a mother can give to her, said the Kerala High Court while uniting a differently abled child with her mother.
The Division Bench comprising Justice P.B. Suresh Kumar and Justice C.S. Sudha invoked parens patriae jurisdiction to ensure that the child is not left "at the mercy of others".
Case title: Kerala State Legal Services Authority v. state of Kerala
Citation: 2023 LiveLaw (Ker) 366
The Kerala High Court considered whether victims of sexual harassment can claim compensation under the Kerala Victim Compensation Scheme, 2017 (amended in 2021). The issue arose for the reason that 'sexual harassment' punishable under Section 11 of the POCSO Act is not included as an 'injury' under the schedule of Kerala Victim Compensation Scheme.
Justice Kauser Edappagath, while upholding the compensation given to the sexual harassment victims held that a beneficial legislation or scheme must not distinguish between victims. The Court opined that the existing schemes are inadequate for compensating victims of sexual abuse under the POCSO Act and held thus:
“….it is obligatory on the part of the State Government to formulate a comprehensive victim compensation scheme specifically for the victims of sexual offences under the POCSO Act or to make necessary amendments in the existing Kerala Victim Compensation Scheme, 2017 (As amended in 2021) incorporating a separate Schedule applicable to sexual offence victims under the POCSO Act. The State Government shall take necessary steps in this regard forthwith.”
Case Title: XXX & Anr. v. The Health Secretary & Ors.
Citation: 2023 LiveLaw (Ker) 382
The Kerala High Court directed the Government to constitute a State Level Multidisciplinary Committee consisting of experts to examine requests for performing sex-selective surgeries on intersex children.
The Committee is to comprise of a Pediatrician/Pediatric Endocrinologist, Pediatric Surgeon and Child Psychiatrist/Child Psychologist.
The Single Judge Bench of Justice V.G. Arun also called upon the Government to issue an order for regulating sex selective surgeries on infants and children within three months. The Bench clarified that until such order has been issued, such surgeries shall be conducted only on the opinion of the State Level Multidisciplinary Committee that the same would be essential to save the life of the child.
Case Title: XXX & Anr. v. The Health Secretary & Ors.
Citation: 2023 LiveLaw (Ker) 382
The Kerala High Court embarked upon an elaborate medico-legal discussion on the two concepts of 'gender' and 'sex', in an interesting decision raising the question as to whether the parents of a child with ambiguous genitalia would have the right to decide the gender of the child without the latter's consent and ignorant of the child's orientation.
The Single Judge Bench of Justice V.G. Arun observed that while the terms 'gender' and 'sex' were often used interchangeably in casual conversation, they were, in actuality, two distinct concepts.
"Sex refers to the biological characteristics of a person, particularly in relation to their reproductive anatomy and chromosomal composition. Gender, on the other hand, is a social and cultural construct that encompasses the roles, behaviours, expectations and identities associated with being male-female or non-binary," the Court observed.
Case Title: Biju Mathew & Anr. v. Deputy Superintendent of Police, Kodungalloor & Ors.
Citation: 2023 LiveLaw (Ker) 437
The Kerala High Court has held that the role of the District Level Authorization Committee, which considers applications seeking permission for organ transplant, is 'divine' and that it must not raise technicalities in clearing such applications.
Single Bench of Justice P.V. Kunhikrishnan added that if subjective satisfaction is arrived at, the Authorization Committee has to grant approval for the removal and transplantation of the human organs.
"A man is in the death bed. He is hoping that he will get a life from another person. The Authorization Committee and Police shall always try to help the man in the death bed rather than to find out some technicalities and unsupported suspicions to conclude that there is commercial transaction or money transaction," it observed.
Case title: Chandi Samuval V Saimon Samuval
Citation: 2023 LiveLaw (Ker) 438
The Kerala High Court held that a positive law is no sine qua non for granting past and future maintenance and that the right of the elder to such maintenance is recognised irrespective of their religion.
Justice A. Muhamed Mustaque and Justice Sophy Thomas observed thus:
“Even without any positive aid of law the court could have recognized the right of the elder irrespective of the religion to claim the past maintenance and future maintenance. Merely for the reason that the legislation had only provided measures for the award of prospective maintenance, that cannot result in denial of the claim for past maintenance.”
Case title: Hindustan Organic Chemicals Ltd. V Lissiama James
Citation: 2023 LiveLaw (Ker) 448
The Kerala High Court recently upheld the order of the Central Administrative Tribunal granting relief to an employee who suffered serious burns during the course of his employment.
The Court observed the Chief Commissioner under the PWD cannot finally adjudicate upon the right of the employee to claim compensation. The Court also stated that the employers cannot deny the benefits to an employee under the Persons with Disability Act, 1995 (PWD) stating that compensation has already been granted under the Workmen's Compensation Act.
A division bench comprising of Justice Alexander Thomas and Justice C. Jayachandran held thus:
“That apart, the Workmen's Compensation Act provides compensation for injury caused by an accident arising out of or during the course of employment, whereas PWD Act affords protection of rights and full participation of persons with disabilities. Both occupies different fields and the remedy availed in one cannot preclude the remedy under the other enactment.”
Case Title: Radhakrishnan K. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 456
The Kerala High Court recently observed that the provisions of the Rights of Persons with Disabilities Act, 2016, would have to be implemented by State authorities in the context of promotions for persons with disabilities, alongwith the various rulings of the Apex Court governing the field, without inordinate delay.
The Bench added that in case effectuating the same required amendment of the statutory Special Rules, the same could not be a reason for delaying the specific objectives of the parliamentary legislation, and the directions issued by the Apex Court.
"...we make it clear that the Union legislation, as per the Rights of Persons with Disabilities Act, 2016, will have to be complied with by the State authorities, especially in view of the various rulings of the Apex Court governing the field and even if there are no specific provisions in that regard, in the Statutory Special Rules and other executive orders, if any, in the matter of Rules of recruitment and methods of appointment, once the post is identified, there cannot be any further delay in the matter. The process for amendment of the Special Rules etc., may go on, but that cannot be the reason for delaying and frustrating the objectives of the parliamentary legislation as well as the specific directives and admonitions issued by the Apex Court, which, in the case of Leesamma's case (supra) [State of Kerala & Ors. v. Leesamma Joseph (2021)] has been specifically directed against the State of Kerala," the Division Bench comprising Justice Alexander Thomas and Justice C. Jayachandran observed.
Case Title: Shaik Zakir Ahmed v. Fertilizers and Chemicals Travancore
Citation: 2023 LiveLaw (Ker) 482
The Kerala High Court has recently held that a person cannot be denied employment opportunities in the civil or public sector merely on account of Hepatitis- B or HIV infection.
Justice Devan Ramachandran declared that the denial of employment to an infected person was discriminatory and that such practice in this era shocks the collective conscience of the society.
“One can certainly not countenance, particularly in this age and time, that a person be kept out of Civil/Public employment solely because he is suffering from “Hepatitis B” or “HIV” infection. This is contrary to ethos of the times and militates against the collective conscience of the civilized world.”
Case title: Neena T V State of Kerala
Citation: 2023 LiveLaw (Ker) 504
The Kerala High Court recently held that the benefit of the Kerala Freedom Fighter's Continuous Pension (KFFCP) cannot be denied to the divorced daughter of a deceased freedom fighter solely on the ground that her brothers were earning and financially settled.
Justice Devan Ramachandran remarked that the reason cited for the rejection of pension, that that the petitioner would be taken care of by her brothers, was based on outdated patriarchal notions:
“I am afraid that the submissions of the learned Government Pleader smack archaic patriarchal notions. Merely because the petitioner has two brothers, an automatic assumption drawn that she would be taken care of by them for her life, can only be seen to be one solely on account of the afore notions and nothing else.”
Case Title: Abhaya V. Venu v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 539
The Kerala High Court has granted leave to a life convict undergoing incarceration at Central Prison & Correctional Home, Viyyur for undergoing IVF/ICSI treatment.
The convict's wife had approached the Court seeking parole for her husband who had been undergoing imprisonment for the past 7 years, so that he could complete the treatment procedure to have a child, via IVF/ICSI (In Vitro Fertilization / Intracytoplasmic Sperm Injection) Procedure.
Wondering how the Court could turn a blind eye to such genuine requests merely on technicalities, the Single Judge Bench of Justice P.V. Kunhikrishnan observed,
"...when a wife comes before this Court with a request that she wants a child in the relationship with her husband who is undergoing imprisonment in Central Jail, this Court cannot ignore the same on technicalities. Conviction and sentence in criminal cases is mainly to reform and rehabilitate the offenders. The state and society want to see the convict coming out of jail after rejuvenation as a reformed man/woman who will be part of our society. A person who has undergone a sentence in a criminal case need not be treated as a different person when he comes out. He has every right to lead a decent life just like any other citizen".
Case title: Siju K Bhanu v The District Collector & Maintenance Appellate Tribunal & Connected Case
Citation: 2023 LiveLaw (Ker) 575
The Kerala High Court came to the rescue of an ailing nonagenarian senior citizen who was suffering from dementia and was kept away from his wife by their son.
Justice Devan Ramachandran observed that the wife of a senior citizen has absolute and inviolable right to have the custody and company of her husband during the winter years of their lives. It held that the son has no right to keep his parents away from each other. Court stated: “Even being dementia afflicted and his memories fading, the senior citizen clearly finds solace with his wife – as the Social Justice Officer puts it in his report, “they shared good moments”. He must never be denied this, whatever Sri.Siju K.Bhanu may say in justification. The right of Smt.Kameela – the wife of the senior citizen – for his custody and consortium is inviolable and absolute. Her son, Sri.Siju K.Bhanu can never deny this.”
Case Name: New India Assurance Co. Ltd. v. Shymi & Ors.
Citation: 2023 LiveLaw (Ker) 587
The Kerala High Court laid down that a father could also be treated as 'dependent' on his son to determine the personal expenses of the deceased son, while computing the compensation to be awarded under the Motor Vehicles Act.
Justice Ziyad Rahman A.A. noted that while the dependancy of the father upon his son after the latter's wedding would be limited, that by itself would not disentitle the father from being treated as one of the dependants of the deceased in order to determine the deductions to be made towards personal expenses. Court observed: "This is because, when the years pass, and advanced age weakens the earning capacity of the father, or various ailments, age-related or other, start affecting the mental and physical ability of the father, the son is supposed to or expected to come forward and support him. Such support from the son is something which a father can reasonably look forward to,"
Case title: M/S New India Assurance Company Ltd v Vijayan
Citation: 2023 LiveLaw (Ker) 602
The Kerala High Court recently upheld a Motor Accident Claims Tribunal award, granting compensation of Rs.3,18,700 and interest to the children of the deceased mother who died by suicide following a motor accident.
Justice Mary Joseph observed that the deceased suffered head injuries from the accident and was undergoing disappointment and mental dejection since she felt she would not recover from her physical condition. “Based on the medical evidence discussed above and the records with reference to the criminal case registered, it can safely be concluded that the victim committed suicide due to her mental dejection and disappointment resulted from the serious injuries sustained in the motor accident. Or in otherwords, the ultimate cause of death of Mrs.Santha can be taken as the motor accident met with by her.”
Case Title: Prajila M. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 626
The Kerala High Court called upon the State Government and the Kerala Sports Council (KSC) to provide assistance to a young professional handball player, who had been injured during the Junior Girls National Handball Championship. The young handball player, who belonged to a middle class family, and suffere from a ligament tear, had approached the player, who belonged to a middle class family, and suffere from a ligament tear, had approached the KSC for financial aid, stating her grievance that her future as a handball player would be jeopardized without the same.
Justice Devan Ramachandran was of the considered opinion that the State authorities ought to provide necessary assistance to the sports professional, since a vibrant society requires not just persons in academic and service pursuits, but also athletes and sportspersons inclucated with a robust sporting culture.
Case title: Jose v State of Kerala
Citation: 2023 LiveLaw (Ker) 627
"Jail is not a place to show the physical strength of jail officials," the Kerala High Court observed while hearing a plea filed by the convicted prisoners of Viyyur Central Prison at Thrissur alleging that the Deputy Superintendent of Jail along with other officers brutally manhandled and caused serious injuries to them.
Justice P.V. Kunhikrishnan directed that an independent inquiry has to be conducted by the State Crime Branch and disciplinary proceedings can also be initiated against the officials responsible for this.
Case Title: Pattakka Suresh Babu v. State of Kerala
Citation: 2023 LiveLaw (Ker) 635
The Kerala High Court has called for the integration of technology in the criminal justice dispensation system in order to permit two life convicts to attend LL.B. classes in the online mode for the academic year 2023-24.
The Division Bench comprising Dr. Justice A.K. Jayasankaran Nambiar and Dr. Justice Kauser Edappagath, emphasized upon the importance of education in reforming and rehabilitating prisoners.
"...a convict is entitled to basic human rights and has the right to live with dignity in jail. The prisoners' right to education is a human right grounded in the right to dignity. A prisoner has as much a right to pursue study as a person free from the confines of jail. The aims of imprisonment include reformation and rehabilitation apart from deterrence. Education can contribute to a sense among prisoners that they remain a part of the wider community. Prison education can provide a source of hope and aspiration whilst making purposeful use of time in detention. It also helps them lead better lives once they are free. Thus, ensuring that prisoners have access to education is essential to achieving the reformative and rehabilitative objectives of imprisonment as well," the Bench observed.
Case Title: Sreeja @Sini v State of Kerala
Citation: 2023 LiveLaw (Ker) 642
The Kerala High Court has ordered release of a woman detained under the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereafter, KAAPA Act), considering that her daughter is at an advanced stage of her pregnancy.
The Division bench comprising Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen said normally courts do not interfere in detention orders, but it is not devoid of such power when fundamental rights are involved.
“In exceptional circumstances, the recognition invoking Article 21 of the Constitution of India, the Court can order release of such person who is detained in custody. This order is not with reference to invoking statutory provision but with reference to superior right available to such person on a justifiable ground under Article 21 of the Constitution to ensure life and liberty of such citizens and others. It is pleaded before us that nobody is there to take care of her daughter and child and on humanitarian grounds, the period of detention be modified.”
Authorities Will Do Needful To Prevent Illegal Abandonment Of Newborn Babies : Kerala High Court
Case title: Alex Mampuzha @ Alexander K v State Police Chief
Citation: 2023 LiveLaw (Ker) 654
The Kerala High Court stated that the State Police Chief, District Police Chief (Rural) Kollam, Station House Officer (Kottarakara Police Station), and Secretary of Ummanoor Grama Panchayath (Valakom, Kollam) will do the needful to prevent the illegal abandonment of newborn babies in streets, especially at Bathani Chapel in Valakom, Kollam district.
“As far as the prayers are concerned, we are of the considered opinion that the respondent authority will do the needful.”, Chief Justice A.J.Desai and Justice V.G. Arun stated.
Case title: Ramachandran P v State of Kerala
Citation: 2023 LiveLaw (Ker) 668
The Kerala High Court recently held that the District Level Authorization Committee (DLAC) cannot deny authorization for organ donation based on an assumption that the donor was exploited as she was from a disadvantaged community.
Justice Devan Ramachandran observed that DLAC cannot assume or presume based on the social status of the donor that the organ was not offered out of affection and altruism.
“I am guided to the impression that 'DLAC' appears to have taken the afore view being swayed by the social status of the donor, who appear to be from a disadvantaged one; and thus somehow has presumed that she appears to be subjected to exploitation by the 1st petitioner. However, the impugned Ext.P12 report cannot add any force to this presumption or assumption - as the case may be; and am, therefore, of the firm view that 'DLAC' must reconsider the matter, based on the statements that have already been recorded, but adverting specifically to the “Certificate of Altruism”, which the petitioners are stated to have produced before them, from the competent Police Authority.”
Case Title: Vishnu Sajanan v. State of Kerala
Citation: 2023 LiveLaw (Ker) 708
The Kerala High Court held that arbitrary or stringent conditions imposed on an accused when he was released on default bail under Section 167 of the Code of Criminal Procedure (CrPC) was violative of his fundamental rights under Article 21 of the Constitution of India.
The bail application of the accused was allowed by the Sessions Court as the investigation was not completed even after sixty days of judicial custody. The Sessions Court whilst allowing the bail application under Section 167 (2) CrPC imposed stringent conditions which were challenged before the High Court.
Justice PV Kunhikrishnan, while lifting the stringent bail conditions imposed upon the accused observed that default bail was a statutory right that cannot be curtailed by imposition of onerous conditions.
“While imposing conditions in default bail, the Court can only impose such conditions to ensure that the accused will appear before the court concerned for trial and will also co-operate with the investigation. An accused in detention shall be released on bail after the period of detention mentioned in Section 167(2), if he is prepared to and furnish bail. This statutory right cannot be circumvented by imposing onerous conditions. Such arbitrary condition imposed while granting statutory bail amount to infringement of the fundamental right of the detenue under section 21 of the constitution of India.”
Case Title: Jagadesh Ramachandran v The Maintenance Tribunal, Thiruvananthapuram
Citation: 2023 LiveLaw (Ker) 717
The Kerala High Court recently observed that senior citizens cannot be denied the company and presence of siblings and close relatives, as long as they desire it.
The petitioner's son was aggrieved by the order of the Maintenance Tribunal that directed the senior citizen mother to be relocated to his aunt's (mother's sister) house.
Justice Devan Ramachandran noted that both the son as well as the sister of the senior citizen were expressing their concern and wanted to ensure her well-being. It thus noted that more inquiries were required to be conducted by the Maintenance Tribunal since the son submitted before the Court that he was providing all facilities to his mother.
Case Title: Deepa P.M. & Anr. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 761
The Kerala High Court recently berated the Deputy Superintendent of Police (Dy.SP), Thrissur Rural, for refusing to issue a Letter of Altruism to a maid to enable her to donate her organ to her previous employer who is suffering from renal failure.
Justice Devan Ramachandran observed that the said authority had refused to grant the Letter, on acting upon certain surmises and conjectures entered into by the Station House Officer of the Valapad Police Station (SHO) who doubted the intention behind the transplant on account of the poor financial background of the petitioner.
