After a special sitting held on Sunday, the High Court of Kerala directed the Kerala Government to allow the entry of persons who got stranded at Walayar checkpost on Saturday without the necessary 'entry passes' issued by the Government.
The Court passed the order taking note of the special circumstances, despite holding that the action of the State officials in not permitting the entry of the people in question cannot be termed as "illegal or bad".
"It is an admitted fact that the people stranded at Walayar on 9.5.2020 did not have passes issued by the State of Kerala", the Court stated in the order.
Yet, treating it as a "special case", the Court allowed their entry. Immediate attention and preference should be given to the pregnant women, aged senior citizens and children in the group. The Court however clarified that the direction should not be used as a "precedent" for future cases.
The Court endorsed the submission made on behalf of the Government by the Additional Advocate General that the restrictions were made in the "best interest of the larger general public".
As stated in the order :
"the learned Additional Advocate General submitted that if the restrictions contained under the order dated 2.5.2020, the guidelines thereto and any periodical advisory issued by the Central Government are not adhered to strictly, the containment of the pandemic would be impossible. We find much force in the contention so advanced since they are issued in the best interest of the larger general public and the nation as such. Anyhow it is fairly submitted by the Additional Advocate General that directions will be issued to the officials as a special case to issue passes and permit the people stranded at Walayar on 9.5.2020, who are presently accommodated in the guesthouse of the Tamil Nadu Government in Coimbatore, to cross the border. The said submission is recorded".
The Court also directed the Government to attend to needs of 13 persons stated to be stranded at Malahalla near Kerala-Karnataka border, even though it was not an "entry point". This direction was passed taking note of that fact that it was a forest area having the presence of wild animals.
The bench comprising Justices Shaji P Chaly and M R Anitha made it clear that pass from the Kerala Government was necessary for a Keralite to enter from another state, as per the guidelines framed by the Government in accordance with the Standard Operating Procedure formulated by the Union Ministry of Home Affairs.
The bench observed that the restrictions imposed on inter-state travel amount to "reasonable restrictions" under Article 19(5) of the Constitution of India on the fundamental right of a citizen to travel throughout the territory of India and to settle anywhere within the country.
The Court stated in the order :
"...the present meticulous and stringent restrictions imposed on crossing the borders of State have occurred due to the outbreak of pandemic COVID-19. It was thereupon that the Government of India and the State Government have started issuing advisories and orders. The Government of India has ordered the lockdown during the third week of March 2020. However taking into account the difficulties faced by the people stranded outside their home State advisories were issued relaxing the lockdown conditions. In our considered view the restrictions are imposed by the Central and the State Governments by virtue of the powers vested on them under the provisions of the Epidemics Act 1897, the Disaster Management Act 2005 and the Kerala Epidemics Diseases Ordinance 2020.
Therefore, what we intend to convey is that the attempts of the Governments are to contain the pandemic from being spread in an unprecedented and uncontrollable level to protect the interest of the general public and the nation as such. Hence it cannot be said that the restrictive orders and advisories issued are in any manner unreasonable so as to interfere with the fundamental rights enjoyed by the citizens. Looking at that angle it cannot be said that the action of the State officials not permitting the inter-state movement of the people in question is illegal or bad".
It further ordered that the stranded persons should strictly obey the advisories of the state upon being given entry.
Ensure basic facilities, co-ordinate with other States : Directions to government.
The Court directed the State Government to ensure that basic facilities are provided to the persons reaching the entry points as is stated in the guidelines and cautioned that any violations of the same would be viewed by it strictly.
There was a further direction to the Kerala Government to co-ordinate with officials of other State Governments with respect to the passes issued for inter-state travel so as to have parity of dates and other requirements in order to avoid any inconvenience to the movement of the people in future.
In conclusion, the Court expressly clarified that its directions are not meant to "water down" the advisories and guidelines of the government.
"We further make it clear that the directions made above are not intended to water down the advisories, orders and guidelines issued by the appropriate Governments, since we are conscious of the fact that the Governments and their officials are better equipped to deal with the situations taking into account the factual circumstances occurring from time to time during the lockdown period"
The Court was hearing an urgent writ petition filed by Advocate Harish Vasudevan, after several persons of Kerala origin were denied entry at Walayar checkpost at Kerala-Tamil Nadu border on Saturday. While several persons went back after the Kerala authorities turned them away, about 135 persons remained at the border. They were later accommodated at a guest house at Coimbatore, Tamil Nadu.
Senior Advocate George Poonthottam, appearing for the petitioner, submitted that pregnant women, children and senior citizens were among the group of persons stranded at border. The government failed to arrange basic facilities at the border, he submitted.
People have a right to return to their native places, submits the Sr Advocate.#KeralaHC— Live Law (@LiveLawIndia) May 10, 2020
People have a right to return to their native places, submits the Sr Advocate.#KeralaHC
Additional Advocate General Ranjith Thampan submitted that the thronging of large number of people without the necessary pass created the problems at the checkpost. As per the SOP, passes from both the guest state and host state are required for inter-state travel. One can commence journey only after obtaining pass, the AAG added.
No serious situation necessitating the interference of the Court. Persons with passes are being allowed entry : AAG#KeralaHC— Live Law (@LiveLawIndia) May 10, 2020
No serious situation necessitating the interference of the Court. Persons with passes are being allowed entry : AAG#KeralaHC
During the course of hearing, the Court observed that guidelines have to strictly implemented, considering the pandemic situation. The Court cannot say that everyone can enter, ignoring the guidelines and SOP formulated in that regard.
"The State only says that a person should obtain a pass from the host state and the guest state for inter-state travel. Is it not a reasonable restriction considering the pandemic situation?", observed Justice Shaji P Chaly during the hearing.
Click here to download Order