A Division Bench of the High Court of Kerala comprising of the Chief Justice S. Manikumar and Justice S.P. Chaly has reserved its orders today on a 'Public Interest Litigation Petition', which has been filed before the Court,impugning the modified guidelines issued by the State of Kerala permitting 'Religious Social Gatherings' of people across the State.
Petitioners who are also practicing Lawyers,Sri B.H. Mansoor and T.V Jayakumar have assailed the present guidelines of State Government as violative of 'covid regulations' issued earlier and notified as per relevant provisions under the Disaster Management Act by the Central Government and implemented by the State Government.Petitioners states that the modified guidelines issued on 05/06/2020 and 24/06/2020 respectively by the 'State Government' are attempted to dilute the regulations issued by the 'Central Government' and the same is impermissible, illegal and an action in excess of jurisdictional mandate of the State.
The main averments in the W.P is as follows-: Novel coronavirus COVID-19, a human killing virus is spreading everywhere in the world. The World Health Organization, viewed that it is now asymptomatic and airborne and the infected patient cannot be identified, without having his swab test, which will take time to give final result. No vaccination has been identified to curb the infection. The Government of India has declared a complete lockdown of the country for more than 40 days and on reopening, limited regulations are being invoked to curb the super spread and community spreading of the virus. One of the important regulatory measures, as per the Government guideline, is complete prohibition on social/ political/ sports/entertainment/academic/cultural/religious function and other large congregations, until further directives, as in Ext P4. However, at present, in Kerala, social and religious gatherings are being permitted without following regulatory guidelines of the Government of India, in the name of religious practices, large human crowd are being permitted throughout the State, within the religious institutions. The health experts viewed that this is a serious lapse and if such incidents are continued, the community spreading cannot be contained and the outcome of such negligence will be grave and irreparable.
According to the petitioners:- "As per the Government of India guidelines; issued under Section 6 and 10 of the Disaster Management Act, 2005, Ext P4 on 29-06-2020, which was adopted by the State Government, as per Ext P7 dated 30-06-2020, no social, religious or other gatherings are permitted in the country, during the regulation period, as regulatory measures to contain Covid 19. However, the State Government is taking an unreasonable stand that as per the Government of Kerala order dated 5-6-2020 and 24-06-2020, a congregation up to 100 persons can be permitted in religious institution."
The grounds urged and contended by petitioners pinpoints as follows:- "Religious freedom and right to manage religious affairs though are identified as fundamental rights Under Article 25 and 26 of the Constitution, the same would subjected to reasonable restrictions, that is restrictions on the ground of public order, morality and health." Petitioners hence state that Ext P4 which is a valid piece of legislation issued by the Central Government on 'Covid Regulations' mandates reasonable restrictions and all religious or social groups are bound to follow it. However, exceeding the above jurisdiction and in total violation to Section 72 of the Disaster Management Act, 2005 as well as in contrary to the constitutional guidelines under Article 254, the Government of Kerala is attempting in enforcing a different stipulation, in the matter of religious congregation, which is highly illegal and unconstitutional.
In support of the facts stated above and grounds urged the petitioners seek the following reliefs:-
" (I) To declare that the public gathering/ assemblies or mass prayers by any social or religious institution or group or congregation, violating the norms issued by the Government of India, from time to time, during the period of pandemic Covid 19, is illegal and unconstitutional.
(II) To issue a certiorari or any other appropriate writ or writs or order or directions to quash Ext P5 and P5(a) orders issued by the 1st respondent, to the extent of it permits social or religious gathering with a participation of maximum 100 persons, which is in violation of Ext P4 and P7 orders.
(III) To issue a Writ of mandamus, or any other writs or order or direction to the 1st and 4th respondents to take strict actions against the organizers or participants; or both, of large social or religious gatherings, who are acting in violation of existing Covid 19 regulations, in Ext P4 or such other directives issued by the Government of India, under Disaster Management Act, 2005, from time to time.
(IV) To declare that Ext P1 Kerala Epidemic Diseases Ordinance, 2020 or any regulation made thereunder or any Standard Operation Procedure or notifications or orders issued there under, 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."
The above matter which came up for consideration today before the bench comprising of Chief Justice S.Manikumar and Justice S.P Chali,who after elaborate and detailed hearing has reserved the same for orders.
(With inputs from Advocate B H Mansoor)
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