Melwin Byju vs State Of Kerala
2021 Latest Caselaw 12276 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

                                   &

              THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

      FRIDAY, THE 07TH DAY OF MAY 2021 / 17TH VAISAKHA, 1943

                       WP(C).No.11056 OF 2021(S)


PETITIONER:

               MELWIN BYJU
               S/O. BYJU T.J., THATTIL HOUSE, NELLIKUNNU, EAST FORT
               P.O., THRISSUR DISTRICT-680005, KERALA.

               BY ADV. SRI.G.SREEKUMAR (CHELUR)

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY CHIEF SECRETARY, SECRETARIAT,
               THIRUVANANTHAPURAM-695001.

      2        DISASTER MANAGEMENT DEPARTMENT,
               REPRESENTED BY ITS SECRETARY, STATE OF KERALA,
               SECRETARIAT, THIRUVANANTHAPURAM-695001.

      3        THE STATE POLICE CHIEF,
               KERALA STATE POLICE HEADQUARTERS, VAZHUTHACAUD,
               THIRUVANANTHAPURAM, KERALA-695010.

               SRI.SUMAN CHAKRAVARTHY

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.05.2021, ALONG WITH WP(C).11060/2021(F), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 WP(C).No.11056 OF 2021(S) & con.case

                                          2

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT

             THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

                                          &

             THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

       FRIDAY, THE 07TH DAY OF MAY 2021 / 17TH VAISAKHA, 1943

                          WP(C).No.11060 OF 2021(F)


PETITIONERS:

        1        ALL INDIA ASSOCIATION OF JURISTS,
                 A REGISTERED SOCIETY WITH REG. NO.278/2014, HAVING
                 ITS REGISTERED OFFICE AT ROOM NO.1, ANDHRA
                 INSURANCE BUILDING, THAMBU CHETTY STREET, CHENNAI-
                 600001, TAMIL NADU, HAVING ITS HEAD OFFICE AT #41
                 OLD LAWYERS' CHAMBER, SUPREME COURT OF INDIA, TILAK
                 MARG, NEW DELHI-110001, REPRESENTED BY ITS GENERAL
                 SECRETARY, M.S. VISHNU SANKER.

        2        VARGHESE SABU
                 AGED 26 YEARS
                 ADVOCATE, S/O. SABU JACOB, CHAMBAKKOTTUKUDIYIL
                 HOUSE, WEST VENGOLA P.O., PERUMBAVOOR, ERNAKULAM-
                 683556.

                 BY ADVS.
                 SRI.V.JOHN MANI
                 SHRI.S.JAYANT
                 SRI.JACKSON JOHNY
                 SHRI.SETHULAKSHMI K.K.
                 SRI. SONY P.G.
                 SMT.GAYATHRI MENON
                 SHRI.XAVIER THOMAS V.T.

RESPONDENTS:

        1        STATE OF KERALA,
                 REPRESENTED BY ITS CHIEF SECRETARY TO THE
                 GOVERNMENT, GOVERNMENT SECRETARIAT,
                 THIRUVANANTHAPURAM-695001.
 WP(C).No.11056 OF 2021(S) & con.case

                                       3

        2        UNION OF INDIA,
                 REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME
                 AFFAIRS, NORTH BLOCK, NEW DELHI-110001.

        3        BAR COUNCIL OF INDIA,
                 REPRESENTED BY ITS CHAIRMAN, 21, ROUSE AVENUE
                 INSTITUTIONAL AREA, NEAR BAL BHAVAN, NEW DELHI-
                 110002.

        4        BAR COUNCIL OF KERALA,
                 REPRESENTED BY ITS CHAIRMAN, BAR COUNCIL OF KERALA,
                 BAR COUNCIL BHAVAN, HIGH COURT CAMPUS, ERNAKULAM-
                 682031.

        5        PRINCIPAL SECRETARY,
                 KERALA STATE DISASTER MANAGEMENT DEPARTMENT,
                 OBSERVATORY HILLS, VIKAS BHAVAN P.O.,
                 THIRUVANANTHAPURAM-695033.

        6        DIRECTOR GENERAL OF POLICE,
                 POLICE HEAD QUARTERS, ALTHARA JUNCTION,
                 SASTHAMANGALAM P.O., VAZHUTHACAD,
                 THIRUVANANTHAPURAM.

        7        KERALA HIGH COURT ADVOCATES ASSOCIATION
                 HIGH COURT OF KERALA,
                 KERALA, ERNAKULAM-682031, REPRESENTED BY ITS
                 PRESIDENT ADV.THOMAS ABRAHAM, AGED 65 YEARS, SON OF
                 LATE P.T.ABRAHAM, SRA FI, SOUMYA NAGAR,
                 ALINCHUVADU, EDAPPALLY P.O. - 682 021.

                 (Impleaded as per order dated 07.05.2021 in
                 I.A.No.1/2021)

                 SRI. SUMAN CHAKRAVARTHY
                 SRI.P. VIJAYAKUMAR ASGI,
                 SRI. RAJITH - SC

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07.05.2021, ALONG WITH WP(C).11056/2021(S), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.11056 OF 2021(S) & con.case

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                                                                    "CR"


                                       JUDGMENT

[ WP(C).11056/2021, WP(C).11060/2021 ]

Dated this the 7th day of May 2021

One good thing about the Covid - 19 pandemic is that it

has shown how ordinary men and women have risen above

themselves.

2. Difficult times throw up new challenges each day and

the wordwide extent of the disease confronts us with the

tenuously fragile nature of human life.

3. We have all still endured!

4. There can be no two ways about it that the judicial

system faced arduous challenges in the last more than a year

and taught us that "the price of liberty is eternal vigilance" -

the famous words of Thomas Jefferson, which has gained a

renewed significance in our life time.

5. The Courts have uninterruptedly functioned - evolving

in the process and adopting technology like never before; and

this was possible to a very large extent owing to the inexorable

commitment shown to the justice delivery system by the WP(C).No.11056 OF 2021(S) & con.case

Advocates and the Advocate Clerks. They virtually put their

lives at stake to ensure that those who most need its protection

- the vulnerable and the marginalised - are not left without

legal recourse. The constant but inevitable "lock downs" and

"quarantines" have caused damaging repercussions on court

activities; but in the midst of it all, the system has moved on, as

it must in the future; and certainly there is not gainsaying that

Advocates and Advocate Clerks are an unexpendible component

of it.

6. The "second wave" of the pandemic now once again

forces citizens to confine themselves to their homes and the

Government has issued orders imposing restrictions and even

"lock downs". We are told reliably that such restrictions and

"lock downs" may have to continue, if required, in future.

7. In such scenario, the petitioners in these cases - which

have been heard together on account of the common issues

impelled - who are practicing counsel, justifiably apprehends

that members of the Bar and their Clerks may be interdicted by

the Police Authorities from travelling, to reach their

offices/chambers/courts and other legal forums.

8. We had earlier considered W.P.(C) No.11056/2021 on

05.05.2021 and had passed the following order: WP(C).No.11056 OF 2021(S) & con.case

"The petitioner voices an apprehension that, on account of Exhibit P1 Government Order, advocates and their clerks may be interdicted by the police force from attending their offices, chambers, courts and other legal forums.

The learned Senior Government Pleader submitted that the apprehension of the petitioner is completely baseless since the police are only maintaining constant vigil and will not disturb the professional functioning of any lawyer or their office staff. It is also submitted that if any advocate or clerk is stopped by the police, it will be sufficient that they show their identity cards and explain where they are going and if they are proceeding to their offices, chambers, courts and other legal forums, they will not be stopped in any manner."

9. Today, Sri.Suman Chakravarthy, learned senior

Government Pleader, submitted that the afore undertaking has

been implicitly complied with by the Police and

Sri.G.Sreekumar (Chelur) and Sri.John Mani, the learned

counsel for the petitioners affirm it.

10. That said, we must record that, pending these

matters, the Government has issued a further order imposing a

complete "lock down" in the State of Kerala between

08.05.2021 and 16.05.2021. This certainly therefore presents a

further challenge.

11. Sri.Suman Chakravarthy submits that the undertaking

afore recorded by this Court would certainly continue as long

as the restrictions are in force; but that in the case of a WP(C).No.11056 OF 2021(S) & con.case

complete "lock down", more stringent measures will require to

be placed, in the movement of Advocates and their Clerks, as

other citizens. He added that this has been done by the

Government for common good.

12. Sri.John Mani, learned counsel appearing for the

petitioner in W.P.(C) No.11060/2021, placed reliance on several

precedents to contend that advocates and their clerks must be

regarded as "essential services" and prayed that their

movement be directed to be not interdicted by the Government

even during "lock down". He asserted that without Advocates

and their Clerks, the liberties of ordinary citizens cannot be

protected, particularly when the entire system is closed down

on account of the Covid - 19 restrictions.

13. We find some force in the submissions made on behalf

of the petitioners, but it is also equally important that the

restrictions placed by the Government are honoured and

obeyed. As long as "total lock down" are not ordered, the afore

undertaking made on behalf of the State Police Chief will be

maintained; but in the case of total "lock downs", the situation

certainly will require a further thought.

14. Sri.Thomas Abraham, the President of the Kerala High

Court Advocates Association, appearing in person, also WP(C).No.11056 OF 2021(S) & con.case

endorsed the view that Advocates and their Clerks must be

allowed at least minimum access to their offices and courts, so

that they will be in a position to file and move litigations, if it

becomes absolutely necessary.

15. Sri.Rejith, the learned standing counsel for the Bar

Council of India, also argued on the afore lines; but

supplemented it by saying that though the lives of Advocates

and their Clerks are important, their professional freedom

cannot make be lost sight of. He, therefore, wanted that,

except for reasonable restrictions, the access of Advocates to

their offices and Courts be not completely prevented.

16. When we consider the afore submissions, it is without

doubt that the situation which comes out of complete "lock

down" is different from one when there are only restrictions.

17. If there is no total "lock down" but only restrictions,

as has been ordered by the Government through Ext.P1 in W.P.

(C) No.11056/2021, certainly the arrangement that we have

directed in the interim order dated 04.05.2021 in the said writ

petition will have to be maintained. However when it comes to

complete "lock down", the situation is slightly different.

18. We are, therefore, without doubt that these writ

petitions deserve to be ordered in a limited manner and that WP(C).No.11056 OF 2021(S) & con.case

the afore recorded undertaking given on behalf of the State

Police Chief would operate in future also, except in the case of

an absolute or total "lock down" or such other similar measure.

It is so ordered.

19. As far are as total "lock downs" and such similar

measures are concerned, the Advocates and the Clerks will be

permitted to travel to Courts if physical sittings are notified,

provided they carry an undertaking in the prescribed format, as

also their identity cards. The State Police Chief is directed to

instruct all the Police Officers to ensure that in such event,

lawyers are given essential access to the Courts because,

otherwise, it will be the common man who will be the sufferer,

particularly in criminal matters. Of course, in exceptional

circumstances on such days, if an Advocate or Clerk requires

access to office also, it will be up to the Police Officer to verify

credentials and take a decision, if such access be allowed.

20. As regards the request of Sri.John Mani, the learned

counsel for the petitioners in W.P.(C) No.11060/2021, that

Advocates and their Clerks be declared as "essential service",

we do not deem it appropriate that we speak on it in any

manner, since it is a matter to be decided by the Government at

the appropriate level - it being in the realm of policy decision WP(C).No.11056 OF 2021(S) & con.case

making. We, therefore, leave it open to the petitioners in the

said writ petition to move the Government, including through

Ext.P8, appositely.

These writ petitions are thus ordered.

Sd/- DEVAN RAMACHANDRAN

JUDGE

Sd/- DR. KAUSER EDAPPAGATH

JUDGE Stu WP(C).No.11056 OF 2021(S) & con.case

APPENDIX OF WP(C) 11056/2021 PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE GOVERNMENT ORDER BEARING GO(RT) NO.391/2021/DMD DATED 30.4.2021 ISSUED BY THE GOVERNMENT OF KERALA, DISASTER MANAGEMENT (A) DEPARTMENT.

WP(C).No.11056 OF 2021(S) & con.case

APPENDIX OF WP(C) 11060/2021 PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE CERTIFICATE OF REGISTRATION NO.278/2014 ISSUED IN RESPECT OF THE 1ST PETITIONER DATED 21/08/2014.

EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 23/03/2020 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P3 A TRUE COPY OF THE ORDER ISSUED NO.40-3/2020 DM-

1(A) DATED 24/03/2020 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 25/03/2020 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 25/03/2020 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P6 A TRUE COPY OF THE ORDER GO(P) NO.16/2020/HOME SRO NO.247/2020 DATED 25/03/2020 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P7 A TRUE COPY OF THE ORDER NO.GO(MS) NO.78/2020/GAD DATED 17/04/2020 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P8 A TRUE COPY OF THE GUIDELINES NO. DMU/2020/CR-

92/DIS-M-1 DATED 05/04/2021.

EXHIBIT P9 A COPY OF REPRESENTATION SUBMITTED BEFORE THE 1ST RESPONDENT DATED 27/04/2021 BY THE 2ND PETITIONER.

EXHIBIT P9(A) A TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 1ST RESPONDENT DATED 27/04/2021 BY THE 2ND PETITIONER.

EXHIBIT P10 A TRUE COPY OF THE ORDER GO(RT) NO.397/2021/DMD DATED 30/04/2021 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P11 A TRUE COPY OF ORDER GO(RT) NO. 391/2021/DMD DATED 30/04/2021.