Kerala High Court
Suo Motu vs Travancore Devaswom Board - Tdb on 22 April, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 22ND DAY OF APRIL 2022 / 2ND VAISAKHA, 1944
DBP NO. 13 OF 2021
IN THE MATTER OF TRAVANCORE DEVASWOM BOARD - SABARIMALA SM REPORT
NO.3/2021 - UNDER UTILIZATION OF PERMITTED NUMBER OF PILGRIMS PER
DAY - MANAGEMENT OF VIRTUAL QUEUE SYSTEM TO BE ENTRUSTED TO TDB OR
POLICE - SUO MOTU PROCEEDINGS INITIATED - REGARDING.
------------
PETITIONER:
SUO MOTU
RESPONDENTS:
1 TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KAWDIAR POST,
THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY- 695
003
2 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY,
THIRUVANANTHAPURAM - 695 001
3 STATE POLICE CHIEF OF KERALA, POLICE HEAD QUARTERS,
VELLAYAMBALAM, THIRUVANANTHAPURAM - 695 010
XXX
*ADDL.R4 S.JAYA RAJ KUMAR, AGED 64 YEARS, S/O.LATE K.SRIDHARAN
PILLAI, RESIDING AT PARK VILLAI, K.V.62, PANAMPILLY
NAGAR, COCHIN- 682 036
IS IMPLEADED AS ADDL.R4 VIDE ORDER DATED 08/10/2021 IN
I.A.NO.1 OF 2021
**ADDL.R5 TATA CONSULTANCY SERVICES LIMITED
REPRESENTED BY PROGRAM MANAGER, D.S.V. SURYAN,
KOHINOOR PARK, PLOT NO.1, HITECH CITY ROAD, CYBERABAD,
LAND MARK RESIDENCY, JUBILEE GARDENS, HYDERABAD,
TELENGANA - 500084
IS SUO MOTU IMPLEADED AS ADDL.5TH RESPONDENT VIDE
ORDER DATED 21/10/2021
***ADDL.R6 HINDU SEVAKENDRAM, REG.NO.563/IV/2019 68/991, 2ND
FLOOR, THARAKANS COMPLEX, K.K. PADMANABHAN ROAD,
ERNAKULAM NORTH P.O., KOCHI-682018, REPRESENTED BY ITS
TREASURER, SREEKUMAR MANKUZHY
IS IMPLEADED AS ADDL.6TH RESPONDENT VIDE ORDER DATED
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
21812 of 2021 2
01/11/2021 IN I.A.NO.2 OF 2021
****ADDL.R7 VISWA HINDU PARISHAD, KERALA
REPRESENTED BY ITS GENERAL SECRETARY
V.R.RAJASEKHARAN, VHP KENDRA KARYALAYA,
PAVAKKULAM TEMPLE COMPLEX, KALOOR, KOCHI- 682017
IS IMPLEADED AS ADDL.7TH RESPONDENT VIDE ORDER
DATED 01/11/2021 IN I.A.NO.3 OF 2021
R1 BY ADVS.SRI.G.BIJU,SC,TRAVANCORE DEVASWOM
BOARD
R2 & R3 BY SRI.N.MANOJ KUMAR, STATE ATTORNEY
R4 BY ADVS.SRI.SAJITH KUMAR V.
SRI.VIVEK A.V.
SMT.APARNA CHANDRAN
SMT.REMYA VARMA N.K
R5 BY ADVS.SRI.P.BENNY THOMAS
SRI.D.PREM KAMATH
SRI.ABEL TOM BENNY
SRI.JYOTHISH KRISHNA
SRI.KURIAN OOMMEN THERAKATH
SMT.SRUTHY J. MAMPILLY
SRI.JAIKRISHNAN.M.PISHARODI
SRI.TOM THOMAS (KAKKUZHIYIL)
R6 BY ADVS.SRI.R.KRISHNA RAJ
SMT.E.S.SONI
KUMARI SANGEETHA S.NAIR
SMT.RESMI A.
SRI.S.NIDHEESH
R7 BY ADVS.SRI.C.S.MANILAL
SRI.S.NIDEESH
SRI.N.RAGHURAJ(K/114/1986) (AMICUS CURIAE)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
25.01.2022, ALONG WITH WP(C).21609/2021, 21812/2021, THE COURT
ON 22.04.2022 DELIVERED THE FOLLOWING:
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
21812 of 2021 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 22ND DAY OF APRIL 2022 / 2ND VAISAKHA, 1944
WP(C) NO. 21609 OF 2021
PETITIONER:
K.S.R.MENON, AGED 68 YEARS
S/O.LATE G.KUMARAN NAIR, A1 A7 PERIYAR HERMITAGE,
COMPANYPADY, ALUVA, KERALA-683 106.
BY ADVS.SRI.ABIR PHUKAN
SRI.MATHEW A KUZHALANADAN
SRI.KURIAKOSE VARGHESE
SRI.V.SHYAMOHAN
SRI.SUDEEP ARAVIND PANICKER
SRI.SRADHAXNA MUDRIKA
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY, HOME
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, KERALA-695 001.
2 STATE POLICE CHIEF AND THE DIRECTOR GENERAL OF
POLICE, KERALA STATE POLICE HEADQUARTERS,
VAZHUTHACAD, THIRUVANANTHAPURAM, KERALA-695 010.
3 TRAVANCORE DEVASWOM BOARD,
REPRESENTED BY ITS SECRETARY, NATHANCODE, KAWDIAR
POST, THIRUVANANTHAPURAM, KERALA-695 003.
R1 & R2 BY SRI.N.MANOJ KUMAR, STATE ATTORNEY
R3 BY SRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
25.01.2022, ALONG WITH DBP.13/2021 AND CONNECTED CASES, THE
COURT ON 22.04.2022 DELIVERED THE FOLLOWING:
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
21812 of 2021 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 22ND DAY OF APRIL 2022 / 2ND VAISAKHA, 1944
WP(C) NO. 21812 OF 2021
IN THE MATTER OF TRAVANCORE DEVASWOM BOARD - TDB PROCEEDINGS
INITIATED - REG.
PETITIONER/S:
TRAVANCORE DEVASWOM BOARD EMPLOYEES FRONT
HEAD OFFICE, NANTHANCODE, THIRUVANANTHAPURAM -
695003, REPRESENTED BY ITS GENERAL SECRETARY. N.
PREMKUMAR, S/O.K.N.NARAYANAN NAIR, AGED 52.
BY ADVS.SRI.K.R.SUNIL
SRI.AISWARYA VENUGOPAL
SRI.KRISHNA SURESH
SRI.EASHWARY.V
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY TO THE
GOVERNMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695001.
2 THE STATE POLIE CHIEF,
POLICE HEAD QUARTERS, THIRUVANANTHAPURAM - 695001.
3 THE DEPARTMENT OF HEALTH AND FAMILY AFFAIR.
REPRESENTED BY THE SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM.
4 THE DEPARTMENT OF REVENUE
(DEVASWOM), REPRESENTED BY THE SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM.
5 THE TRAVANCORE DEVASWOM BOARD.
NANTHANCODE, THIRUVANANTHAPURAM, REPRESENTED BY ITS
SECRETARY - 695003.
6 THE DISTRICT COLLECTOR.
PATHANAMTHITTA DISTRICT, PATHANAMTHITTA.
*ADDL.R7 TRAVANCORE DEVASWOM SERVICE PENSIONERS ASSOCIATION
THIRUVANANTHAPURAM, REG.NO.169/09, HAVING REGISTERED
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
21812 of 2021 5
OFFICE AT NALLOOR PUTHEN MADOM, HARIPAD, HARIPAD
P.O, ALAPPUZHA, PIN-690514, REPRESENTED BY ITS
GENERAL SECRETARY, MR.R.B.SREEKANDAN NAIR
*ADDL R7 IS IMPLEADED AS PER ORDER DATED 21-10-2021
IN IA 1/2021 IN WP(C)21812/2021
R1 TO R4 & R6 BY BY STATE ATTORNEY SRI.N.MANOJ KUMAR
R5 BY SRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD
R7 BY ADVS.SRI.BIJU BALAKRISHNAN
SMT.V.S.RAKHEE
SMT.K.J.GISHA
SRI.AJMAL P.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
25.01.2022, ALONG WITH DBP.13/2021 AND CONNECTED CASES, THE
COURT ON 22.04.2022 DELIVERED THE FOLLOWING:
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
21812 of 2021 6
"C.R"
ORDER/JUDGMENT
Anil K. Narendran, J.
The common issue involved in D.B.P.No.13 of 2021 and
also W.P.(C)Nos.21609 and 21812 of 2021 relates to Virtual-Q
system at Sabarimala Temple.
2. D.B.P.No.13 of 2021 has been registered suo motu
based on the direction issued on 01.07.2021 by the Division
Bench dealing with Devaswom matters. The Division Bench
noticed that, based on S.M.Report No.3 of 2021 of the Special
Commissioner, Sabarimala, regarding underutilisation of the
permitted number of 5,000 pilgrims per day under Virtual-Q
system, causing loss of opportunity to devotees desirous to
undertake pilgrimage, this Court registered SSCR No.3 of
2021. On 05.03.2021, an order was passed in SSCR No.3 of
2021. Taking note of the report that Virtual-Q slots are being
put through the website sabarimalaonline.org, which is an
initiative of the Kerala Police, and the fact that despite the
booking of all Virtual-Q slots within hours of opening of the
site, almost all days, when the shrine remains open, only less
than 50% of devotees thus registered are turning up for
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
darshan, this Court suo motu impleaded the State Police Chief
as additional 3rd respondent, who was directed by the order
dated 05.03.2021, to file an affidavit as to whether such
situations occur due to any deceitful action from the part of
anyone. Thereafter, an affidavit was filed by an officer
authorised by the State Police Chief, wherein it is stated that
the aforesaid initiative of the Kerala Police is a successful tool
to identify the pilgrims and to manage the crowd at
Sabarimala during Mandala Makaravilakku Festival season. It
was also stated that the restriction regarding the number of
pilgrims is due to Covid-19 pandemic and that necessary
probe will be done to find out whether there is any illegal
activity by anyone for the shortage in the number of pilgrims
turning up for darshan. Later, as per the order dated
12.03.2021 in SSCR No.3 of 2021, the number of pilgrims was
enhanced from 5,000 to 10,000. The issue whether such
shortage in the number of pilgrims occur due to any deceitful
action on the part of anyone was not looked into while passing
the said order. But, despite the increase of the number of
pilgrims as above, there was considerable decrease in the
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
number of pilgrims turning up for darshan, going by the
information passed on by the Special Commissioner,
Sabarimala. As per the order dated 12.03.2021, this Court
permitted to insist for production of Covid-19 negative
certificate after RT-PCR test taken within 48 hours of reaching
Nilakkal, from NABL accredited ICMR approved laboratories
and such other laboratories approved by the Government. This
Court noticed that, each day, when the shrine remains open,
about 10 hours are available for darshan. Taking note of the
available space and the available facilities for crowd
management there can be no difficulty at all for facilitating
darshan for the devotees, even if the entire permitted number
of pilgrims are turning up for darshan, in terms of the time
slot allotted to each of them. Since Sabarimala pilgrimage is
now permissible only with Covid-19 negative certificate
obtained in the aforesaid manner, the risk matter is very
minimal. Unlike the other temples in Kerala, Sabarimala shrine
opens only for Mandala Makaravilakku Festival, masa poojas
and on specific festive days.
2.1. In the direction issued on 01.07.2021, the Division
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
Bench noticed that, in other temples in Kerala where darshan
is permitted only after registration in Virtual-Q system, such
systems are managed by the Devaswoms concerned. In the
statement filed in SSCR No.3 of 2021 by the State Police Chief,
though it was stated that necessary probe would be done to
find out any illegal activity being done resulting in shortage in
the number of pilgrims turning up for darshan, so far nothing
by way of a report is forthcoming. Taking into account all such
circumstances, the Division Bench noticed that, the question is
whether the computer managed Virtual-Q system for
Sabarimala pilgrimage be entrusted to the Travancore
Devaswom Board (for brevity, 'the TDB'), as has been done in
other Devaswoms, for regulating the number of pilgrims
turning up for darshan and at the same time to ensure the
maximum number of pilgrims, within the permissible number.
No doubt that, even in case of such an arrangement, taking
note of the fact that Sabarimala is a security vulnerable
temple and that effective crowd management is required, the
act of regulating the devotees turning up for darshan and the
security aspects are to be retained with Police, as usual.
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
2.2. By the order dated 02.09.2021 in D.B.P.No.13 of
2021, we have directed the Special Commissioner, Sabarimala,
to submit a comprehensive report on the functioning of
Virtual-Q system at Sabarimala, along with his suggestions.
Pursuant to the said order, a report dated 04.10.2021 of the
Special Commissioner, Sabarimala, is placed on record. As per
that report, in the home page of the web portal, i.e.,
sabarimalaonline.org, the emblem of the Kerala Police is
exhibited on the top and the emblem of the TDB is exhibited
below on the left-hand corner. When bookings are open,
certain advertisements of ambulance services, 'punyam
poongavanam' and a ghee company are seen published by the
Kerala Police. The web application is hosted in the Amazon
Web Services Cloud Server owned by Kerala Police. The
advertisements in the web page are displayed as per the
request of the Kerala Police. There is a discretionary quota of
coupons which is managed by Kerala Police by communicating
with the Tata Consultancy Services Ltd (for brevity, 'the TCS
Ltd.'). The Kerala Police has separate URL and login for the
discretionary quota of coupons, which are used for
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
Government guests, guests of TDB and VIPs. The Special
Commissioner pointed out that the domain name, i.e.,
sabarimalaonline.org, which provides Virtual-Q booking facility
to millions of devotees and the online web portal where
advertisements are displayed are all intellectual properties of
the minor deity, which are controlled by the Kerala Police and
the TDB has no control over the same. The Kerala Police is
rendering yeoman service to millions of devotees of lord
Ayyappa by crowd control management and providing secure
and orderly darshan to the devotees. However, the crowd
control management functions discharged by the Kerala Police,
as part of its duty as a Department of the State, will not
confer it the right to own or exercise control over the property
of the minor deity. Even without having control over the web
portal, the Kerala Police can discharge crowd control functions
by verifying the Virtual-Q coupons produced by the devotees
at Nilakkal and Pamba, by getting the requisite data from the
TCS Ltd. or the TDB. At Sabarimala, constant surveillance by
police personnel and by using CCTV cameras in access points
and routes is being done in the police control rooms, in order
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
to eliminate security threats. The security threat at Sabarimala
is not a valid reason for the Kerala Police to exercise control
over the system, which is the intellectual property of the minor
deity. The discretionary quota of Virtual-Q system has to be
brought under the direct control of the TDB. The TDB may be
directed to purchase online cloud storage server facility to host
the online web portal/web application and the TCS Ltd. may be
directed to operate the web portal/application for online
booking of Virtual-Q system for Sabarimala darshan, as per
the directions of the TDB. The TCS Ltd. and the TDB may be
directed to share the requisite data of pilgrims, as required by
the Kerala Police for effective crowd management and
verification of Virtual-Q coupons. The TDB may be directed to
take steps to register the trademark/obtain patent of the
intellectual properties of the deity and Devaswom and to
prevent its misuse and usurpation of revenue by third parties.
Therefore, in the report, the Special Commissioner has prayed
that the TDB may be entrusted with Virtual-Q System and the
software developed by the TCS Ltd. and also the domain
name, sabarimalaonline.org.
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
2.3. An affidavit dated 10.08.2021 has been filed on
behalf of the 2nd respondent State and the Additional Director
General of Police (Crime Branch) and the Chief Police Co-
ordinator, Sabarimala, has sworn to an affidavit dated
17.07.2021 on behalf of the 3rd respondent State Police Chief,
wherein it is stated that, for avoiding unexpected pilgrim
inflow surges during festival seasons, which may lead to
situations like stamped, Kerala Police had started Virtual-Q
system during the year 2011, as per the directions of the
State Government, using an in-house application developed by
Kerala Police. In the next year, the application was refurbished
with the help of the Kerala State Electronics Development
Corporation (KELTRON) and shifted to Amazon Cloud
Environment for improving performance and to ensure 100%
application availability during maximum number of concurrent
users. That system continued during 2012-13 to 2016-17. The
Virtual-Q system provided by the Kerala Police as part of
crowd management saved precious time of the pilgrims. This
facility is provided absolutely free of cost to the pilgrims as it
was funded by the revenue generated from advertisements, as
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
permitted by the State Government. The Kerala Police has also
launched a mobile application on 18.11.2016 for Virtual-Q
booking, for knowing the status of the queue at Sannidhanam,
availability of vehicle parking slots at various parking
locations, weather at Pampa and Sannidhanam, etc. In the
year 2019, with the help of the TCS Ltd., Hyderabad,
Sabarimala Pilgrim Management System (for brevity "SPMS")
was introduced, with Devaswom functionalities like
Appam/Aravana booking, Manjal, Kunkumam and Vibhoothi
booking, as a separate module. Virtual-Q system is a
successful tool to identify the pilgrims and to manage the
crowd at Sabarimala during Mandala-Makaravilakku Festival
season and monthly poojas. Till 2019-20 festival season,
pilgrims could have their pilgrimage either through Virtual-Q
system or through conventional queue without online booking.
On account of Covid-19 pandemic situation, the number of
pilgrims was restricted during 2020-21 festival season and
monthly poojas. Entry to the temple was allowed only through
Virtual-Q booking and that was approved by this Court as an
effective way to regulate the number of pilgrims per day,
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
according to the norms fixed. The booking requires Aadhaar
card or election ID card number, photo and other details.
Hence, no bogus bookings could be made. The Kerala Police
operates Virtual-Q verification counters at Pamba and verifies
online the genuinity of Virtual-Q coupons presented by the
pilgrims and allows entry. Depending upon the crowd situation
at Sannidhanam, pilgrim entry at Pamaba is regulated. A
regulated entry with details of pilgrims is imperative for crowd
management and for dealing with specific situations like the
threat of Covid-19 and also for ensuring security for
Sabarimala. Unlike other temples in Kerala, the Kerala Police is
responsible for crowd management and maintenance of law
and order in Sabarimala during pilgrimage season and monthly
poojas. In temples like Guruvayur, where queue regulation is
managed by the temple authorities, the online system can also
be managed by them. However, in Sabarimala, crowd
management during pilgrim seasons is a challenging task and
regulated by the Kerala Police. Since Sabarimala is situated in
a difficult forest terrain prone to natural disasters, it is
imperative that the ownership of the Virtual-Q system is
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
vested with the Kerala Police for better co-ordination on the
field and for efficiency. For effecting crowd control during
festival seasons, it is imperative to know the number of
pilgrims expected to arrive and regulate their approximate
distribution, so that, appropriate crowd control measures can
be instituted. In SPMS, Virtual-Q system and the Devaswom
functionalities like Appam/Aravana booking, etc. are separate
modules, which are independently controlled by the TDB and
payment for prasadham bookings, etc., are credited to the
TDB account. In addition to the present stakeholders, viz., the
Kerala Police and the TDB, the software architecture is capable
of accommodating more stakeholders like the KSRTC and the
Forest Department. New services like e-kanikka, e-sewa, e-
annadhanam, etc., can also be incorporated on demand from
the TDB. The Kerala Police distributes booking slots in SPMS
with the help of TCS Ltd., after getting confirmation from the
Executive Officer, Sabarimala, regarding the temple opening
and closing schedule. At present, the stakeholders, namely,
the Kerala Police and the TDB jointly own SPMS and the TDB
directly communicates with TCS Ltd. for making changes in
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
the Devaswom functionalities like Appam/Aravana booking,
etc. in SPMS. In Sabarimala, where the crowd management
during festival season is a challenging task and regulated by
the Kerala Police and the temple being situated in difficult
forest terrain prone to natural disasters, it is imperative that
the ownership of Virtual-Q system is vested with the Kerala
Police for better co-ordination on the field and efficiency.
Managing such huge crowd without access to the database
and the ability to regulate the pilgrim flow would seriously
hamper the efficiency of the Kerala Police in managing the
crowd. When specific threat inputs have been received on
Sabarimala Temple, preventive actions were initiated from the
side of the Kerala Police. In case of any such threat inputs, the
database has to be screened and verified and the Kerala Police
has to take urgent preventive actions. This is possible only if
the Kerala Police has the access and ownership of Virtual-Q
booking system to act immediately to avert any adverse
situation. The database of criminal records is available only
with the Kerala Police in case any immediate verification has to
be made or action to be taken. In cases of a high alert
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
situation, if the situation warrants, Virtual-Q tickets can be
issued after verifying the antecedents with the criminal
database. This is possible only if the ownership of Virtual-Q is
with the Kerala Police as the data base for criminal
antecedents is available only with the Kerala Police and not
with the TDB or other agencies. Taking away the ownership of
Virtual-Q system from the Kerala Police would jeopardize the
security of Sabarimala Temple. The Kerala Police is able to
streamline the crowd at Sabarimala using Virtual-Q system.
The database of pilgrims can be used for analytical purposes
and for investigation/ evidence collection in cases of untoward
incidents reported, the latter being more important
considering the sensitivity of a pilgrim place like Sabarimala.
In the future using Artificial Intelligence, offenders and
extremist elements can be identified and culled out for the
safety and security of pilgrims. Pursuant to the observations
made by this Court, an enquiry was conducted by the Deputy
Inspector General of Police, Police Headquarters, to find the
reasons for the default by pilgrims for darshan after reserving
Virtual-Q slots. In the enquiry, it was revealed that, Covid and
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
Covid related factors were major reasons for the pilgrims not
arriving for darshan after booking. The subsequent change in
travel plans after booking was another reason. On enquiry it is
revealed that many of them have visited Sabarimala at a later
date. However, they have not cancelled the slot which they
have booked for darshan, despite the option being available.
This has led to a large number of booked slots (26.6%)
remaining unutilised. Annexure R2(a) is a copy of the report
dated 05.08.2021 of the Deputy Inspector General of Police,
Police Headquarters. For the last ten Sabarimala Festival
seasons, Kerala Police has effectively used Virtual-Q system
for crowd management and for maintaining law and order and
security at Sabarimala. The existing SPMS, which is in the
combined ownership of the Kerala Police and the TDB, may be
permitted to be maintained, as it is a time-tested system that
worked well during normal times as well as during difficult
times like that prevailing on account of Covid-19 pandemic. It
is possible to incorporate any required additional provision to
the system to increase the number of devotees based on the
allowed quota in consultation with the TDB. Since there is
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
effective coordination between the Kerala Police and the TDB,
the existing SPMS may be permitted to be maintained as such.
2.4. The Additional Director General of Police (Crime
Branch) and Chief Police Co-ordinator, Sabarimala has sworn
to another affidavit dated 27.09.2021, producing therewith
Annexure I statement dated 06.08.2012 filed by the then
State Police Chief in D.B.P.No.42 of 2009. In paragraph 4 of
Annexure I statement, it is stated that a new facility for the
pilgrims, namely, Virtual-Q system, was designed and
introduced at Sabarimala with the approval of this Court.
2.5. On 20.10.2021, an objection dated 04.10.2021 has
been filed on behalf of the 3rd respondent State Police Chief, to
the report of the Special Commissioner, Sabarimala, wherein it
is stated that Virtual-Q system was introduced in the year
2011, with an intention to avoid rush in Sabarimala, by
distributing the crowd over the day, and to avoid the devotees'
rushing at the peak hours. The year-wise booking of pilgrims
through Virtual-Q system for the year 2011-12 to 2020-21 is
furnished in the objection. In view of Covid-19 pandemic,
Virtual-Q booking is made mandatory since 2020-21 Mandala-
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
Makaravilakku Festival season. For facilitating the pilgrims
coming without advance Virtual-Q booking, spot booking
facilities were provided by the Kerala Police with spot
registration counters at Erumeli, Kumali, Pathanamthitta Bus
Stand and Vadasserrikkara, during the festival season 2019-
20. The domain name sabarimalaonline.org is registered in
GoDaddy Domain Name Service Provider and Virtual-Q
application is hosted in Amazon Web Service in Mumbai. The
domain name is renewed yearly by the Kerala Police. As per
order dated 24.07.2021, sanction was accorded by the State
to accept advertisements in Virtual-Q system, in order to meet
the expenditure towards its maintenance. The monthly usage
bills are being paid to Amazon Web Service by the Kerala
Police using the income generated from advertisements. At
present, Rs.10,16,187.42 is pending payment due to lack of
revenue received through advertisements. The Kerala Police is
actively involved in the administration of Virtual-Q system. All
the activities in the portal were conceptualized by the Kerala
Police. Technical persons from the Kerala Police are giving
detailed instructions to TCS Ltd. for controlling the activities in
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
Virtual-Q system. Sufficient infrastructure including laptops,
domain account, Amazon Web Service, application software
and connectivity at Pamba are provided by the Kerala Police.
The TCS Ltd. has developed the software application and they
are maintaining the same. Facility for special booking was
enabled as per the request of the TDB and discretionary quota
of coupons are being issued to the guests of the State
Government and the TDB. The ownership and control of SPMS
are done jointly by the Kerala Police and the TDB. The
devotees who have been regularly booking Virtual-Q tickets
have not made any complaints against the management or
administration of Virtual-Q system. During festival season, the
Kerala Police operates a 24x7 helpline service to attend any
issues in Virtual-Q booking. SPMS is a single online platform to
provide all Sabarimala related services at one place to the
devotees. Virtual-Q system is only a small part of that
platform, which is being managed by the Kerala Police. The
other modules like Appam/Aravana booking, e-kanikka, pooja
services, etc., are exclusive Devaswom functionalities, where
the total control is with the TDB, for which the Board has to
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
directly interact with the TCS Ltd. Many of those functionalities
are still not operational due to lack of support from the TDB to
TCS Ltd. The Virtual-Q system is presently managed by the
Kerala Police with the co-operation of the TDB and it has been
operational without any glitches. Therefore, rather than an
abrupt transfer of a well operational Virtual-Q system to the
TDB, first Devaswom functionalities in SPMS like
Appam/Aravana booking, etc., may be made operational.
2.6. The Deputy Secretary to Government Home (SSA)
Department, Government of Kerala, has filed an objection
dated 25.10.2021 on behalf of the 2nd respondent State,
raising similar objections to the report of the Special
Commissioner, Sabarimala, wherein it is stated that, on
14.01.2011 there occurred stampede at Pulmedu near
Sabarimala which took the life of 52 pilgrims. In the wake of
that tragic incident, this Court directed the Government as
well as the State Police Chief to effectively regulate the
pilgrims. Therefore, Virtual-Q system was introduced by the
State and the Kerala Police with the approval of this Court. It
was found to be very effective in regulating the crowd at
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
Sannidhanam and also helpful to pilgrims all over the world, as
they could select the time and date for joining the
conventional queue at Sannidhanam, subject to availability of
accommodation on first come first serve basis. In long queue
formed in front of Pathinettampadi, the pilgrims will have to
stand for 14 to 16 hours. There were also instances of aged
pilgrims returning from Sabaripeedam without having darshan,
as they could not take the ordeal of standing in the queue for
such long hours. In order to mitigate the above sufferings,
Virtual-Q system was introduced. The existing SPMS in the
combined ownership of the Kerala Police and the TDB may be
permitted to be maintained, as it is a time-tested system,
which has worked well during normal times as well as during
difficult times like Covid-19 pandemic. As there is effective co-
ordination between the Kerala Police and the TDB, it would be
appropriate to maintain status quo in the matter. The
Government is of the view that Virtual-Q system has to be
operated by the Kerala Police with active support of the TDB,
as being done for the past so many years. Sabarimala, being a
pilgrim destination of national importance, crowd control
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
management and all sorts of security threats have to be taken
care of by the Kerala Police and the police will be able to
discharge the above duty, in a most effective manner, only if
they have control over the Virtual-Q system.
2.7. On behalf of the TDB, the learned Standing Counsel
has filed a statement dated 11.11.2021, wherein it is stated
that, a nominal fee has to be charged for Virtual-Q booking to
avoid bogus bookings. In W.P.(C)No.21609 of 2021, the
Secretary of the TDB has sworn to a counter affidavit dated
20.10.2021, wherein it is stated that, Virtual-Q booking for
Sabarimala darshan was introduced in the year 2011 as a
project of the Kerala Police, which is looking after crowd
management in Sabarimala and as such, the TDB does not
have ownership or control over Virtual-Q system managed by
the Kerala Police. Till the year 2020 Virtual-Q system was
optional. Due to Covid-19 restrictions enforced in Sabarimala
in the year 2020, it was made mandatory for all the devotees.
The TDB has its own devotee portal for online booking of
Vazhipadu/accommodation and also counter billing system at
Sabarimala. Sabarimala being a pilgrim destination of national
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
importance, crowd control management and all sorts of
security threats have to be taken care of by the Kerala Police.
2.8. One S. Jayaraj Kumar has filed I.A.No.1 of 2021,
seeking an order to get himself impleaded as additional 4 th
respondent. That application was allowed by the order dated
08.10.2021. In the affidavit filed in support of I.A.No.1 of
2021, it is stated that, there has been a huge decline in the
number of pilgrims visiting Sabarimala Temple after the
introduction of compulsory Virtual-Q system. Virtual-Q system
in other major temples like Guruvayur is managed efficiently
by the Devaswom Board. However, in Sabarimala, Virtual-Q
system is managed by the Kerala Police. Over the past more
than eight years, out of 14,95,718 Virtual-Q bookings in
SPMS, only 8,32,391 materialised, i.e., only 55.66% of the
devotees availed that facility after registration. The
management of Virtual-Q system by the Kerala Police is not
conducive to proper utilisation of the permitted number of
pilgrims per day, especially because of strict adherence to the
time slots, which is a difficult task to accomplish in view of the
location of the temple and the ascent through the rocky
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
pathway. Secondly, most of the pilgrims are from distant
places and the mandatory requirement to report at the
specified time also makes it difficult for the pilgrims to utilise
their Virtual-Q booking slots. Since pooja and ceremonies
during festival days are not properly reflected in Virtual-Q
system managed by the Kerala Police, the pilgrims are put to
much difficulty. Therefore, it is better to entrust the
management of Virtual-Q system to the TDB to ensure proper
utilisation of the permitted number of pilgrims per day.
2.9. By the order dated 21.10.2021, the TCS Ltd. was
impleaded as additional 5th respondent, which has filed an
affidavit dated 14.12.2021, on SPMS, data privacy, manpower
deployment, etc. As per the said affidavit, the Kerala Police
had expressed interest in creating Digital Pilgrim Management
System for Sabarimala pilgrimage and the Company in the
meetings held on 22.07.2019 and 23.07.2019 agreed to
deliver a next generation online service system with darshan
service for devotees to book advance darshan tokens at
Sabarimala along with Pilgrim Verification System for
verification of booking details. Based on the same, the State
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
Police Chief issued work order dated 16.08.2019 to the
Company to develop Digital Pilgrim Management System for
Sabarimala, subject to the terms and conditions. On data
privacy, it is stated that various data privacy and security
measures, as stated in paragraph 4.2 of the statement, have
been consistently implemented across all three modules of
SPMS, i.e., online service platform, online spot booking and
online verification system. The data collected at the time of
Virtual-Q booking is used strictly for verification purpose by
the operator kiosks set up by the Kerala Police and manned by
them. Operators can only retrieve pilgrim information using
front-end screen, that too, they can only see the last four
digits of the ID card in the plain text format. No police staff
has access to the database directly to query or retrieve
information in any form. The Company does not share any
personal information or sensitive personal information or data
with the Kerala Police or with any other agency. Kerala Police
has front-end access to refer to high level summary reports
(day wise, month wise bookings, cancellations, arrivals, etc.)
as part of their logistics and manpower deployment planning
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
in advance to serve the pilgrims visiting in the season. Even in
the summary reports, no personal information or sensitive
personal information or data is accessible. The project has
been completed and delivered free of cost. The complete IT
and operational infrastructure is provided by the Kerala Police,
viz, Amazon Web Services Cloud Server for storage, two apple
Mac-books for designs, SMS service provider API account to
send alerts to pilgrims, Dhanalakshmi Bank Payment Gateway
provider API to integrate with online system so that, pilgrims
can place orders for 'prasadham' by paying money directly to
the Devaswom account digitally along with booking Virtual-Q
coupons. The Company developed SPMS in accordance with
the requirements provided by the Kerala Police. Post-
completion of the project, for ongoing maintenance and
support, the Company is providing 12 full-time employees
based on skill set up, during peak season when the temple
opens for pilgrimage, as detailed in paragraph 7 of the
statement. In the statement, the 5th respondent has stated
that, data security and data privacy measures have been
implemented bearing in mind the requirements under the
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
Information Technology Act, 2008 and the Information
Technology (Reasonable Security Practices and Procedures and
Sensitive Personal Data and Information) Rules, 2011.
2.10. By the order dated 01.11.2021 in I.A.No.2 of 2021,
the Hindu Seva Kendram, Ernakulam, represented by its
Treasurer, was impleaded as additional 6 th respondent. The
affidavit filed in support of I.A.No.2 of 2021 contains various
allegations, which have absolutely relevance to the issue
raised in this DBP, concerning Virtual-Q system in Sabarimala
Temple. In paragraph 12 of the affidavit, it is stated that
crowd management in all temples in India, except Sabarimala,
is being done by the employees of the Devaswom or
professionals engaged by the Devaswom. This is the case in
Guruvayur, Tirupathi and other temples in the country. The
Police cannot enter the temple premises, except in the case of
commission of an offence or at the request of the trustee of
the temple. In the case of Sabarimala, it is the TDB. The
management of devotees in a temple is within the domain of
the Devaswom Board, which cannot be usurped by the State
Government using the Police, in the name of security. The
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
security threat at Sabarimala is the same as in the case of
Guruvayur, Tirupathi and other major temples. Therefore, it is
highly necessary to direct the TDB to take over crowd
management in Sabarimala Temple.
2.11. By the order dated 01.11.2021 in I.A.No.3 of 2021,
Vishwa Hindu Parishad, Kerala, represented by its General
Secretary, was impleaded as additional 7 th respondent. The
additional 7th respondent has filed an affidavit dated
17.11.2021, wherein it is stated that, sufficient land is
available at Sannidhanam, Pamba and Nilakkal for the festival
activities at Sabarimala. In order to avoid unnecessary
gatherings at Nilakkal, spot booking facilities can be provided
at Sabarimala Edathavalams enumerated in Annexure R7(b)
list.
2.12. The Special Commissioner, Sabarimala has filed
various reports. Various orders have been passed by this Court
for opening spot booking counters at Nilakkal, Erumeli,
Kumali, etc., in order to ensure that the maximum number of
devotees, within the permissible limit, have Sabarimala
darshan on each day. The 2nd respondent State has also
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
relaxed various restrictions imposed in connection with Covid-
19 pandemic and by the Government order dated 20.12.2021,
the number of pilgrims permitted to have Sabarimala darshan
was enhanced to 60,000 per day, and the conventional route
was also opened to pilgrims.
3. W.P.(C)No.21609 of 2021 is one filed by the
petitioner, who is a devotee of Lord Ayyappa, under Article 226
of the Constitution of India, seeking a declaration that the 2 nd
respondent State Police Chief has no authority or right to issue
Virtual-Q booking coupon or any other such pass or ticket to
the pilgrims, who seek to visit and have darshan at the holy
shrine of Sabarimala. The petitioner has also sought for a
declaration that Virtual-Q booking coupons issued by the
respondents under SPMS as illegal, arbitrary, and unauthorised
by law; a writ of certiorari to quash the orders pertaining to
the issuance of Virtual-Q booking coupons by the 2 nd
respondent State Police Chief, as being violative of Articles 14,
19 and 21 of the Constitution of India; and a declaration that
the 3rd respondent TDB had failed in honoring its statutory
duties prescribed under the Travancore-Cochin Hindu Religious
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
Institutions Act, 1950, including that under Section 31 by
permitting the 2nd respondent State Police Chief to arrange for
the conduct of worship by the devotee of Lord Ayyappa by the
issuance of Virtual-Q booking coupon.
3.1. The 1st respondent State has filed a counter
affidavit dated 25.10.2021. An affidavit on behalf of the 2 nd
respondent State Police Chief has been filed on 20.10.2021,
which is one dated 18.10.2021. The 3rd respondent TDB has
filed a counter affidavit dated 20.10.2021, wherein it is stated
that the Virtual-Q booking for Sabarimala Darshan was
introduced in the year 2011 as a project of the Kerala Police.
Kerala Police is looking after crowd management in Sabarimala
and as such, the TDB does not have ownership or control over
the Virtual-Q system managed by the Kerala Police. Till the
year 2020 Virtual-Q system was optional. Due to Covid
restrictions enforced in Sabarimala in the year 2020, it was
made mandatory for all the devotees. The TDB has its own
devotee portal for online booking of Vazhipadu/
accommodation and also counter billing system at Sabarimala.
Sabarimala being a pilgrim destination of national importance
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
crowd control management and all sorts of security threats
have to be taken care of by the Kerala Police.
4. W.P.(C)No.21812 of 2021 is one filed by Travancore
Devaswom Board Employees Front, represented by its General
Secretary, seeking a writ of mandamus commanding the 1 st
respondent State to consider Exts.P2 and P3 representations
dated 17.09.2021, within a time limit to be fixed by this Court.
The grievance of the petitioner in Exts.P2 and P3
representations is that the State Police is imposing severe
restrictions in the matter of Sabarimala pilgrimage. The
petitioner submitted Exts.P2 and P3 representations before the
State with a request to stop Virtual-Q booking by
implementing other suitable and comfortable restrictions by
permitting nearly 1,00,000 pilgrims per day, holding a valid
certificate of complete vaccination or RT-PCR certificate taken
within 48 hours, to be produced at the base station at Pampa.
4.1. In this writ petition, by the order dated 21.10.2021
in I.A.No.1 of 2021, the Travancore Devaswom Service
Pensioners' Association, represented by its General Secretary,
was impleaded as additional 7th respondent.
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
4.2. The 1st respondent State has filed a counter
affidavit dated 23.10.2021, producing therewith Ext.R1(b)
reply dated 21.10.2021 to Ext.P2 representation made by the
petitioner Employees Front, wherein it is stated that Virtual-Q
system is beneficial for security purposes and also to get the
details of the number of devotees coming for darshan each
day. Therefore, it was decided that Virtual-Q system need not
be stopped. The additional 7th respondent has also filed a
counter affidavit.
5. Heard the learned counsel for the petitioner in the
respective writ petitions, the learned State Attorney for the
official respondents, the learned Standing Counsel for TDB and
also the learned counsel for the party respondents in the DBP
and the writ petitions.
6. The learned counsel for the petitioner in W.P.
(C)No.21609 of 2021 contended that the 2nd respondent State
Police Chief has absolutely no authority or right to manage
Virtual-Q booking platform for Sabarimala pilgrims. In view of
the provisions under the Travancore-Cochin Hindu Religious
Institutions Act, 1950 and that under the Kerala Hindu Places
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
of Public Worship (Authorisation of Entry) Act, 1965, the
management of Virtual-Q system can only be by the
Travancore Devaswom Board. The 1st respondent State and
the 2nd respondent State Police Chief have absolutely no right
to interfere with such activities at Sabarimala. Morover,
Virtual-Q booking for Sabarimala darshan can only be made
optional, considering the ability of pilgrims among the
marginalised population to avail such online facilities. The
learned counsel addressed arguments on the protection of
data and personal information of the pilgrims in the Virtual-Q
platform, relying on the provisions under the Information
Technology Act, 2008 and the Information Technology
(Reasonable Security Practices and Procedures and Sensitive
Personal Data and Information) Rules, 2011.
7. The learned counsel for the petitioner in W.P.
(C)No.21812 of 2021, the learned counsel for the additional 7 th
respondent in W.P.(C)No.21812 of 2021, the learned counsel
for the additional 4th respondent, the additional 6th respondent
and the additional 7th respondent in D.B.P.No.13 of 2021
contended that, in view of the provisions under the
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
Travancore-Cochin Hindu Religious Institutions Act and the
Kerala Hindu Places of Public Worship (Authorisation of Entry)
Act, neither the State of Kerala nor the State Police Chief has
any authority to control the entry of devotees to Sabarimala
through Virtual-Q online system. The online booking through
Virtual-Q system can only be optional and at any rate, any
such system for online booking has to be managed by the TDB
and not by the State of Kerala or the State Police Chief.
8. Per contra, the learned State Attorney for the 2nd
respondent State and also the 3rd respondent State Police
Chief contended that, the management of Virtual-Q system by
the 3rd respondent State Police Chief will in no manner violate
the provisions under the Travancore-Cochin Hindu Religious
Institutions Act or the Kerala Hindu Places of Public Worship
(Authorisation of Entry) Act. Sabarimala is a high security
zone and Kerala Police is having a statutory duty to maintain
law and order at Sabarimala. The online booking facility
provided at Sabarimala, originally with the support of the
KELTRON, was approved by the Division Bench of this Court.
Thereafter, the 3rd respondent State Police Chief entrusted the
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
same to the additional 5th respondent TCS Ltd. Virtual-Q
system has to be operated by the Kerala Police with the active
support of the TDB, as being done for the past so many years.
Sabarimala, being a pilgrim destination of national importance,
crowd control management and all sorts of security threats
have to be taken care of by the Kerala Police. The police will
be able to discharge the above duty, in a most effective
manner, only if they have control over the Virtual-Q system.
On the data privacy issues, the learned State Attorney
submitted that, sufficient safeguards have already been taken.
9. The learned Standing Counsel for the TDB argued
that the Kerala Police is looking after crowd management in
Sabarimala and as such, the TDB does not have ownership or
control over the Virtual-Q system managed by the Kerala
Police. Till the year 2020 Virtual-Q system was optional. Due
to Covid restrictions enforced in Sabarimala in the year 2020,
it was made mandatory for all the devotees. The TDB has its
own devotee portal for online booking of Vazhipadu/
accommodation and also counter billing system at Sabarimala.
Sabarimala being a pilgrim destination of national importance
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
crowd control management and all sorts of security threats
have to be taken care of by the Kerala Police. The TDB has no
objection to take over Virtual-Q system, based on the orders
of this Court.
10. The learned counsel for the additional 5th
respondent TCS Ltd. argued that, as stated in the affidavit
filed by the additional 5th respondent, the concern raised on
the protection of data and personal information of the pilgrims
in the Virtual-Q platform, relying on the provisions under the
Information Technology Act, 2008 and the Information
Technology (Reasonable Security Practices and Procedures and
Sensitive Personal Data and Information) Rules, 2011, is
absolutely without any basis. The TCS Ltd. is prepared to
extend technical support to Virtual-Q system at Sabarimala, in
case it is taken over by the TDB based on any orders of this
Court.
11. Travancore-Cochin Hindu Religious Institutions Act,
1950 (for brevity 'the Act') enacted by the State Legislature
makes provision for the administration, supervision and
control of incorporated and unincorporated Devaswoms and of
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
other Hindu Religious Endowments and Funds. As per sub-
section (3) of Section 1 of the Act, substituted by the Kerala
Adaptation of Laws Order, 1956, Part I of the Act shall extend
to Travancore, Part II of the Act shall extend to Cochin and
Part III of the Act shall extend to the whole of the State of
Kerala, excluding the Malabar District.
12. Clause (a) of Section 2 of the Act defines the term
'Board' to mean the TDB constituted under Chapter II of the
Act in accordance with the covenant. Clause (c) of Section 2
defines the term 'incorporated Devaswoms' to mean the
Devaswoms mentioned in Schedule I, and 'unincorporated
Devaswoms' to mean those Devaswoms including Hindu
Religious Endowments whether in or outside Travancore which
were under the management of the Ruler of Travancore and
which have separate accounts of income and expenditure and
are separately dealt with. Sabarimala Devaswom is an
incorporated Devaswom mentioned in Schedule I of the Act,
under Chengannur Group, Pathanamthitta Taluk. As per sub-
clause (i) of clause (d) of Section 2, 'person interested'
includes, in the case of temple, a person who is entitled to
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
attend at or is in the habit of attending the performance of
worship or service in the temple or who is entitled to partake
or is in the habit of partaking in the benefit of the distribution
of gifts thereat.
13. Chapter II of the Act deals with the Travancore
Devaswom. Section 3 of the Act deals with vesting of
administration in Board. As per Section 3, the administration
of incorporated and unincorporated Devaswoms and of Hindu
Religious Endowments and all their properties and funds as
well as the fund constituted under the Devaswom
Proclamation, 1097 M.E. and the surplus fund constituted
under the Devaswom (Amendment) Proclamation, 1122 M.E.
which were under the management of the Ruler of Travancore
prior to the first day of July, 1949, except the Sree
Padmanabhaswamy Temple, Sree Pandaravaka properties and
all other properties and funds of the said temple, and the
management of all institutions which were under the
Devaswom Department shall vest in the TDB.
14. Section 4 of the Act deals with constitution of the
Travancore Devaswom Board. As per sub-section (2) of
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
Section 4, the Board shall be a body corporate having
perpetual succession and a common seal with power to hold
and acquire properties for and on behalf of the incorporated
and unincorporated Devaswoms and Hindu Religious
Institutions and Endowments under the management of the
Board.
15. Section 15 of the Act deals with vesting of
jurisdiction in the Board. As per sub-section (1) of Section 15,
subject to the provisions of Chapter III of Part I, all rights,
authority and jurisdiction belonging to or exercised by the
Ruler of Travancore prior to the first day of July, 1949, in
respect of Devaswoms and Hindu Religious Endowments shall
vest in and be exercised by the Board in accordance with the
provisions of this Act. As per sub-section (2) of Section 15, the
Board shall exercise all powers of direction, control and
supervision over the incorporated and unincorporated
Devaswoms and Hindu Religious Endowments under their
jurisdiction.
16. Section 15A of the Act, inserted by Act 5 of 2007,
with effect from 12.04.2007, deals with duties of the Board. As
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
per Section 15A, it shall be the duty of the Board to perform
the following functions, namely, (i) to see that the regular
traditional rites and ceremonies according to the practice
prevalent in the religious institutions are performed promptly;
(ii) to monitor whether the administrative officials and
employees and also the employees connected with religious
rites are functioning properly; (iii) to ensure proper
maintenance and upliftment of the Hindu religious institutions;
(iv) to establish and maintain proper facilities in the temples
for the devotees. Section 16 of the Act deals with supervision
and control by the Board. As per Section 16, the Board shall,
subject to the provisions of Part I of the Act, exercise
supervision and control over the acts and proceedings of all
officers and servants of the Board and of the Devaswom
Department.
17. Section 24 of the Act deals with maintenance of
Devaswoms, etc., out of Devaswom Fund. As per Section 24,
the Board shall, out of the Devaswom Fund constituted under
Section 25, maintain the Devaswoms mentioned in Schedule I
[i.e. incorporated Devaswoms], keep in a state of good repair
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
the temples, buildings, and other appurtenances thereto,
administer the said Devaswoms in accordance with recognised
usages, make contributions to other Devaswoms in or outside
the State and meet the expenditure for the customary
religious ceremonies and may provide for the educational
upliftment, social and cultural advancement and economic
betterment of the Hindu community.
18. Section 27 of the Act deals with Devaswom
properties. As per Section 27, immovable properties entered
or classed in the revenue records as Devaswom Vaga or
Devaswom Poramboke and such other Pandaravaga lands as
are in the possession or enjoyment of the Devaswoms
mentioned in Schedule I after the 30 th Meenam, 1097
corresponding to the 12th April, 1922, shall be dealt with as
Devaswom properties. The provisions of the Land Conservancy
Act of 1091 (IV of 1091) shall be applicable to Devaswom
lands as in the case of Government lands.
19. Section 31 of the Act deals with management of
Devaswoms. As per Section 31, subject to the provisions of
Part I and the rules made thereunder, the Board shall manage
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
the properties and affairs of the Devaswoms, both
incorporated and unincorporated as heretofore, and arrange
for the conduct of the daily worship and ceremonies and of the
festivals in every temple according to its usage.
20. In view of the provisions under the Travancore-
Cochin Hindu Religious Institutions Act referred to
hereinbefore, conclusion is irresistible that, the administration
of Sabarimala Devaswom, which is an incorporated Devaswom
mentioned in Schedule I of the Act, and all its properties and
funds shall vest in the TDB. The Board shall hold and acquire
properties for and on behalf of Sabarimala Devaswom, under
the management of the Board. Subject to the provisions of
Chapter III of Part I, all rights, authority and jurisdiction
belonging to or exercised by the Ruler of Travancore prior to
the first day of July, 1949, in respect of the Sabarimala
Devaswom shall vest in and be exercised by the Board in
accordance with the provisions of this Act and the Board shall
exercise all powers of direction, control and supervision over
the Devaswom.
21. Under the provisions of the Act, the Board is duty
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
bound to see that the regular traditional rites and ceremonies
according to the practice prevalent in Sabarimala are
performed promptly; to monitor whether the administrative
officials and the employees, and also the employees connected
with religious rites are functioning properly; and to establish
and maintain proper facilities in Sabarimala for the devotees.
The Board shall, out of the Devaswom Fund, maintain and
administer Sabarimala Devaswom in accordance with
recognised usages and meet the expenditure for the
customary religious ceremonies. Subject to the provisions of
Part I of the Act and the Rules made thereunder, the Board
shall manage the properties and affairs of Sabarimala
Devaswom and arrange for the conduct of the daily worship
and ceremonies and of the festivals in Sabarimala according to
the usage.
22. The Kerala Hindu Places of Public Worship
(Authorisation of Entry) Act, 1965 enacted by State
Legislature provides for better provisions for the entry of all
classes and sections of Hindus into places of public worship.
Clause (b) of Section 2 of the Act defines 'place of public
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
worship' to mean a place, by whatever name known or to
whomsoever belonging, which is dedicated to, or for the
benefit of, or is used generally by, Hindus or any section or
class thereof, for the performance of any religious service or
for offering prayers therein, and includes all lands and
subsidiary shrines, mutts, devasthanams, namaskara
mandapams and nalambalams, appurtenant or attached to
any such place, and also any sacred tanks, wells, springs and
water courses the waters of which are worshipped or are used
for bathing or for worship, but does not include a 'sreekoil'.
23. Section 3 of the Act provides that places of worship
to be open to all sections and classes of Hindus. As per Section
3, notwithstanding anything to the contrary contained in any
other law for the time being in force or any custom or usage
or any instrument having effect by virtue of any such law or
any decree or order of court, every place of public worship
which is open to Hindus generally or to any section or class
thereof, shall be open to all sections and classes of Hindus;
and no Hindu of whatsoever section or class shall, in any
manner, be prevented, obstructed or discouraged from
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
entering such place of public worship, or from worshipping or
offering prayers thereat, or performing any religious service
therein, in the like manner and to the like extent as any other
Hindu of whatsoever section or class may so enter, worship,
pray or perform. As per the proviso to Section 3, in the case of
a place of public worship which is a temple founded for the
benefit of any religious denomination or section thereof, the
provisions of this Section shall be subject to the right of that
religious denomination or section, as the case may be, to
manage its own affairs in matters of religion.
24. Section 4 of the Act deals with power to make
regulations for the maintenance of order and decorum and the
due performance of rites and ceremonies in places of public
worship. As per sub-section (1) of Section 4, the trustee or
any other person in charge of any place of public worship shall
have power, subject to the control of the competent authority
and any rules which may be made by that authority, to make
regulations for the maintenance of order and decorum in the
place of public worship and the due observance of the religious
rites and ceremonies performed therein. As per the proviso to
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
sub-section (1) of Section 4, no regulation made under this
sub-section shall discriminate in any manner whatsoever,
against any Hindu on the ground that he belongs to a
particular section or class. As per sub-section (2) of Section 4,
the competent authority referred to in sub-section (1) shall be,
(i) in relation to a place of public worship situated in any area
to which Part I of the Travancore-Cochin Hindu Religious
Institutions Act, 1950, extends, the Travancore Devaswom
Board; (ii) in relation to a place of public worship situated in
any area to which Part II of the said Act extends, the Cochin
Devaswom Board; and (iii) in relation to a place of public
worship situated in any other area in the State of Kerala, the
Government.
25. In view of the provisions under Section 4 of the
Kerala Hindu Places of Public Worship (Authorisation of Entry)
Act referred to hereinbefore, conclusion is irresistible that, the
competent authority to make regulations for the maintenance
of order and decorum and the due observance of the religious
rites and ceremonies performed in a place of public worship
situated in any area to which Part I of the Act of 1950 extends
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
is the Travancore Devaswom Board. The competent authority
in the case of a place of public worship situated in any area to
which Part II of the Act of 1950 extends is the Cochin
Devaswom Board. State Government is the competent
authority in the case of a place of public worship situated in
any other area in the State, i.e., an area to which Part I or
Part II of the Act of 1950 has no application. Since Sabarimala
is a place of public worship situated in an area to which Part I
of the Act of 1950 extends, the competent authority to make
regulations for the maintenance of order and decorum and the
due observance of the religious rites and ceremonies
performed in Sabarimala is the TDB and not the State
Government.
26. In Commissioner, Hindu Religious
Endowments, Madras v. Lakshmindra Thirtha Swamiar
of Shirur Mutt [AIR 1954 SC 282], a decision relied on by
the learned counsel for the additional 7th respondent in
D.B.P.No.13 of 2021, on the constitutionality of Section 21 of
the Madras Hindu Religious and Charitable Endowments Act,
1951, a Seven-Judge Bench of the Apex Court noticed that,
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
the object of the legislation, as indicated in the preamble, is to
amend and consolidate the law relating to the administration
and governance of Hindu religious and charitable institutions
and endowments in the State of Madras. As compared to the
earlier Act, its scope is wider and it can be made applicable to
purely charitable endowments by proper notification under
Section 3 of the Act. The powers of the Commissioner and of
the other authorities under him, have been enumerated in
Chapter II of the Act. Section 21 gives the Commissioner, the
Deputy and Assistant Commissioners and such other officers
as may be authorised in this behalf, the power to enter the
premises of any religious institution or any place of worship for
the purpose of exercising any power conferred, or discharging
any duty imposed, by or under the Act. The only restriction is,
that the officer exercising the power must be a Hindu. The
High Court has taken the view that the respondent as
Mathadhipati has certain well defined rights in the institution
and its endowments which could be regarded as rights to
property within the meaning of Article 19(1)(f) of the
Constitution. The provisions of the Act to the extent that they
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
take away or unduly restrict the power to exercise these rights
are not reasonable restrictions within the meaning of Article
19(5) and must consequently be held invalid.
27. In Lakshmindra Thirtha Swamiar of Shirur
Mutt the Apex Court noticed that our Constitution makers
have embodied the limitations which have been evolved by
judicial pronouncements in America or Australia in the
Constitution itself and the language of Articles 25 and 26 is
sufficiently clear to enable us to determine without the aid of
foreign authorities as to what matters come within the purview
of religion and what do not. Freedom of religion in our
Constitution is not confined to religious beliefs only; it extends
to religious practices as well subject to the restrictions which
the Constitution itself has laid down. Under Article 26(b),
therefore, a religious denomination or organization enjoys
complete autonomy in the matter of deciding as to what rites
and ceremonies are essential according to the tenets of the
religion they hold and no outside authority has any jurisdiction
to interfere with their decision in such matters. The Apex
Court agreed with the High Court in the view taken by it about
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
Section 21 of the Act. Section 21 empowers the Commissioner
and his subordinate officers and also persons authorised by
them to enter the premises of any religious institution or place
of worship for the purpose of exercising any power conferred
or any duty imposed by or under the Act. It is well known that
there could be no such thing as an unregulated and
unrestricted right of entry in a public temple or other religious
institutions, for persons who are not connected with the
spiritual functions thereof. It is a traditional custom universally
observed not to allow access to any outsider to the particularly
sacred parts of a temple as for example, the place where the
deity is located. There are also fixed hours of worship and rest
for the idol when no disturbance by any member of the public
is allowed. The Apex Court found that, as Section 21 stands, it
interferes with the fundamental rights of the Mathadhipati and
the denomination of which he is head guaranteed under
Articles 25 and 26 of the Constitution. It was contended that
Section 91 of the Act provides for sufficient safeguard against
any abuse of power under Section 21. The Apex Court did not
agree with that contention and concluded that Section 21 of
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
the Act has been rightly held to be invalid by the High Court.
28. In Ram Mohan Das v. Travancore Devaswom
Board and others [1975 KLT 55], another decision relied
on by the learned counsel for the additional 7th respondent in
D.B.P.No.13 of 2021, the petitioner moved this Court in an
original petition under Article 226 of the Constitution of India
seeking a writ of certiorari to quash the decision of the
Travancore Devaswom Board to permit one Jesudas, who gave
a declaration that he is a follower of Hindu faith also, to enter
Mullakkal Temple. The petitioner contended that the action of
the Devaswom Board results in allowing a non-Hindu to enter
a Hindu temple and that action is without any authority of law.
Before the learned Single Judge, the learned Standing Counsel
for Travancore Devaswom Board raised a preliminary objection
that the petitioner, who is the Secretary of Mullakkal Temple
Advisory Committee is not an aggrieved person, and hence he
is not entitled to move the original petition. The learned Single
Judge overruled that objection, holding that, the petitioner is a
Hindu entitled to worship in the temple concerned. The
administration of incorporated and unincorporated Devaswoms
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
and of Hindu Religious Endowments and all their properties
and funds which were under the management of the Ruler of
Travancore prior to 1st day of July 1949 except the Sree
Padmanabha Swamy Temple, Sree Pandaravaka properties and
all other properties and funds of the said temple have vested
in the Travancore Devaswom Board under Section 3 of
Travancore-Cochin Hindu Religious Institutions Act. Under
Section 31 of the said Act, the Board shall manage the
properties and affairs of the Devaswoms both incorporated
and unincorporated as heretofore and arrange for the conduct
of the daily worship and ceremonies and of the festivals in
every temple according to its usage. The position of the Board
in regard to the Devaswoms - incorporated and unincorporated
- is analogous to that of trustees. Any improper act of the
Trustees could be questioned by a worshipper. Under clause
(d) of Section 2 of Act, in the case of a temple, a 'person
interested' is defined to include a person who is entitled to
attend at or is in the habit of attending the performance of
worship or service in the temple or who is entitled to partake
or is in the habit of partaking in the benefit of the distribution
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
of gifts thereat. Though the Board has the duty to arrange for
the conduct of the daily worship and ceremonies and of the
festivals, it will amount to breach of trust if under the guise of
such making arrangement they interfere with the mode or
alter in any manner the mode or rules of such worship. That
will certainly amount to interference with an essential part of
Hindu Religion. As observed by the Apex Court in
Lakshmindra Thirtha Swamiar of Shirur Mutt [AIR 1954
SC 282], matters of religion embrace not merely matters of
doctrine but also the practice of it, or to put in terms of Hindu
theology, not merely its Gnana but also its Bhakthi and Karma
Kandas. In Venkataramana Devam v. State of Mysore
[AIR 1958 SC 255], it had been unequivocally held by a
Constitution Bench of the Apex Court that under the
ceremonial law pertaining to temples, who are entitled to
enter into for worship and where they are entitled to stand
and worship and how the worship is to be conducted are all
matters of religion which conclusion their Lordships say is
implicit in Article 25 which after declaring that all persons are
entitled freely to profess, practise and propagate religion
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
enacts that this should not affect the operation of any law
throwing open Hindu religious institutions of a public character
to all classes and sections of Hindus. In E.R.J. Swamy v.
State of Tamil Nadu [AIR 1972 SC 1586], it is stated that
protection of Articles 25 and 26 is not limited to the matters of
doctrine or belief but extends also to acts done in the
performance of religion and therefore, contain a guarantee for
rituals and observances, ceremonies and modes of worship
which are integral parts of religion. If any action of the Board
amounts to intrusion into any matter of religion as such, then
certainly a worshipper could seek this court's jurisdiction
under Article 226 of the Constitution of India.
29. In S. Mahendran v. Secretary, Travancore
Devaswom Board and others [AIR 1993 Kerala 42], a
decision relied on by the learned counsel for additional 7th
respondent in W.P.(C)No.21812 of 2021, a Division Bench of
this Court noticed that the management of the Devaswoms,
both incorporated and unincorporated, in the erstwhile area of
Travancore vests in the Travancore Devaswom Board under the
Travancore-Cochin Hindu Religious Institutions Act. All the
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
Hindu religious endowments and properties and funds except
the Sree Padmanabha Swami Temple, Sree Pandaravaka
properties and all other properties and funds of the said
temple had vested in that Devaswoms in the area of
Travancore. Section 31 of the Act enjoins a duty on the Board
to arrange for the conduct of the daily worship and ceremonies
and of the festivals in every temple according to its usage. The
temples in Travancore were thrown open to all Hindus without
any restriction being imposed on any Hindu either due to birth,
caste or community. That historical proclamation was made by
the Maharaja of Travancore on 27th Thulam 1112
corresponding 12th of November, 1936. Twelve days thereafter,
the Maharaja issued another Proclamation by which conditions
were imposed in the matter of entry in temples. Rule 6(c) of
the Proclamation provides that women at such times during
which they are not by custom and usage allowed to enter
temples, shall not enter within the compound walls of a temple
or its premises in case there is no compound wall. Rule 14
stipulates that no one shall do any act which would tend to
derogate the purity and cleanliness of the temple and its
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
premises. After the integration of the Princely States of
Travancore and Cochin, an ordinance was promulgated by the
Rajapramukh as Ordinance 4/1124 in respect of the
administration of the Padmanabhaswami temple and the
Devaswoms, both incorporated and unincorporated. The
Ordinance provides that the management of the Devaswom
shall continue to be carried on as heretobefore. Another
ordinance was promulgated by the Rajapramukh on the 1 st day
of August, 1949, which is called "The Hindu Religious
Institutions Ordinance, 1124". Section 31 of that Ordinance
also directs the Devaswom Board to arrange for the conduct of
the daily worship and ceremonies and festivals in every temple
according to its usage. A duty is therefore cast on the
Travancore Devaswom Board to arrange for the conduct of the
daily worship and ceremonies in accordance with its usage. In
other words, the Board has a statutory duty to enforce the
usage prevalent in the temple. The Board has no right to alter
or modify the same. The Travancore-Cochin Religious
Endowments Act and its precursors had consistently enjoined
this duty on the Travancore Devaswom Board. The
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
Government of Kerala is aware of this position. The counter
affidavit filed by the Chief Secretary on behalf of the 3 rd
respondent states that it is the Board which shall manage and
arrange for the conduct of daily worship and ceremonies and
festivals in every temple according to its usages. It is further
averred that the scheme of the Act has made it clear that the
Board is entrusted with the administration as well as the
making of rules. It is therefore clear that Government have no
power or authority to issue any order or direction in this
matter and the management is within the prerogative of the
Devaswom Board subject to the provisions of the Travancore-
Cochin Hindu Religious Endowments Act. The Division Bench
made special mention of the above fact in view of the stand
taken by the learned Government Pleader that the State can
take remedial measures including amendment of relevant
rules to see that the Board does not deviate from the powers
conferred on it.
30. In S. Mahendran, before the Division Bench it was
contended that State can take a plea against the stand of the
Devaswom Board. The Division Bench observed that the stand
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
of the Government Pleader is against the authoritative
pronouncement of the Apex Court. The Apex Court had in
unmistakable terms held in Ratilal Panachand Gandhi and
others v. State of Bombay and others [AIR 1954 SC
388] that in regard to affairs in matters of religion the right of
management given to a religious body is a guaranteed
fundamental right which no legislature can take away. The
Division Bench doubted whether the State can impose
restrictions on the powers of the Travancore Devaswom Board
in the matter of regulating its affairs. The Division Bench found
that this contention of the Government Pleader is contrary to
the averment in the counter affidavit of the 3 rd respondent
wherein, after referring to Section 31 of the Travancore-Cochin
Religious Endowments Act, it is stated that the Devaswom
Board shall manage and arrange for the conduct of daily
worship and ceremonies and festivals in every temple
according to its usages. There is a further averment that it is
the Board which is entrusted with the administration as well as
the making of rules. There is a statutory duty cast on the
Board under Section 31 of the Act to arrange worship in the
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
temples in accordance with the usage. That statutory duty had
been cast on the Board even earlier. In other words, the
Travancore Devaswom Board can arrange worship in the
temples under their control only in accordance with the
prevailing usages.
31. As already noticed hereinbefore, under the
provisions of the Travancore-Cochin Hindu Religious
Institutions Act, the TDB is duty bound to see that the regular
traditional rites and ceremonies according to the practice
prevalent in Sabarimala are performed promptly; and to
establish and maintain proper facilities in Sabarimala for the
devotees. Subject to the provisions of Part I of the Act and the
Rules made thereunder, the Board shall manage the properties
and affairs of Sabarimala Devaswom and arrange for the
conduct of the daily worship and ceremonies and of the
festivals in Sabarimala according to the usage. Similarly, in
view of the provisions under the Kerala Hindu Places of Public
Worship (Authorisation of Entry) Act, since Sabarimala is a
place of public worship situated in an area to which Part I of
the said Act extends, the competent authority to make
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
regulations for the maintenance of order and decorum and the
due observance of the religious rites and ceremonies
performed in Sabarimala is the TDB and not the State
Government.
32. Sabarimala is situated in a difficult forest terrain
prone to natural disasters. Unlike other temples in Kerala, the
Kerala Police is responsible for crowd management and
maintenance of law and order in Sabarimala during festival
seasons and monthly poojas. In temples like Guruvayur, where
queue regulation is managed by the temple authorities, the
online system can also be managed by them. However, in
Sabarimala, crowd management during festival seasons is a
challenging task, which is regulated by the Kerala Police. Their
presence is even necessary at Pathinettampadi to render
necessary assistance to the devotees, especially children,
senior citizens and also persons with disabilities. Crowd
Management at Sabarimala during festival seasons and
monthly poojas cannot be handled with the limited number of
employees of the TDB, who are deputed on special duty. The
crowd management by the Kerala Police at Sabarimala
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
Sannidhanam and even at Pathinettampadi will not in any
manner infringe the fundamental right guaranteed under
Articles 25 and 26 of the Constitution. The contentions to that
effect raised by the learned counsel for the party respondents
in D.B.P.No.13 of 2021 and also by the learned counsel for the
additional 7th respondent in W.P.(C)No.21812 of 2021, relying
on the decisions referred to hereinbefore, are absolutely
untenable.
33. In the direction issued on 01.07.2021, the Division
Bench noticed that, in other temples in Kerala where darshan
is permitted after registration in Virtual-Q system, such
systems are managed by the Devaswoms concerned.
Therefore, the question that has to be considered is as to
whether Virtual-Q system for Sabarimala pilgrimage be
entrusted to the TDB, as has been done in other Devaswoms.
In the direction issued on 01.07.2021, the Division Bench
observed that, even in case of such an arrangement, taking
note of the fact that Sabarimala is a security vulnerable
temple, where effective crowd management is required, the
act of regulating the devotees turning up for darshan and the
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
security aspects are to be retained with the Kerala Police, as
usual.
34. In the affidavit filed on behalf of the 2 nd respondent
State and also that filed on behalf of the 3 rd respondent State
Police Chief, it is stated that, SPMS is in the combined
ownership of Kerala Police and the TDB. However, in the
counter affidavit filed on behalf of the TDB in W.P.(C)No.21609
of 2021, it is stated that, Virtual-Q system for Sabarimala
darshan was introduced in the year 2011 as a project of the
Kerala Police, which is looking after crowd management in
Sabarimala. The TDB does not have ownership or control over
Virtual-Q system managed by the Kerala Police. Though, in the
affidavit filed on behalf of the 2 nd respondent State and that
filed on behalf of the 3rd respondent State Police Chief, it is
stated that, in SPMS booking for Prasadams, etc. are
independently controlled by the TDB, the specific stand taken
by the TDB in the counter affidavit filed in W.P.(C)No.21609 of
2021 is that, the Board is having its own devotee portal for
online booking of Vazhipadu/accommodation.
35. Pursuant to the order of this Court dated
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
02.09.2021, the Special Commissioner, Sabarimala, has filed a
report dated 04.10.2021, wherein it is stated that, in the
home page of the web portal sabarimalaonline.org the emblem
of the Kerala Police is exhibited on the top and the emblem of
the TDB is exhibited below on the left hand corner. When
bookings are open certain advertisements are seen published
by the Kerala Police relating to ambulance services, 'punyam
poongavanam' and an advertisement of a ghee company. The
web application is hosted in Amazon Web Services Cloud
Server owned by the Kerala Police and the advertisements in
the web page are displayed as per the request of the Kerala
Police. In the objection filed on behalf of the 3 rd respondent
State Police Chief to the report of the Special Commissioner,
Sabarimala, it is stated that, the domain name
sabarimalaonline.org is renewed yearly by the Kerala Police.
As per the order dated 24.07.2021, the Government accorded
sanction to the Kerala Police to accept advertisements in
Virtual-Q system, to meet the expenditure towards its
maintenance.
36. The Kerala Police cannot own the domain name
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
sabarimalaonline.org or display any advertisements on that
web portal and earn revenue. That web portal should be
owned and managed by the TDB. Similarly, the State
Government has absolutely no authority to accord sanction to
the Kerala Police to accept advertisements in Virtual-Q system,
to meet the expenditure towards its maintenance. As in the
case of other temples like Guruvayur, Virtual-Q system for
Sabarimala darshan should be owned and managed by the
TDB. During the course of arguments, the learned counsel for
the 5th respondent TCS Ltd. submitted that, the TCS Ltd. is
prepared to extend technical support to Virtual-Q system for
Sabarimala darshan, in case it is taken over by the TDB based
on the orders of this Court.
37. Therefore, the TDB is directed to take over Virtual-
Q system for Sabarimala darshan, presently owned and
managed by the Kerala Police, with the technical support of
the 5th respondent the TCS Ltd. Once Virtual-Q system is taken
over by the TDB, TCS Ltd. shall render necessary technical
support to the TDB. The TDB, the State Police Chief and the
TCS Ltd. are directed to take necessary steps in this regard,
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
after completing the technical formalities and complying with
the statutory requirements, and the entire exercise in this
regard shall be completed, as expeditiously as possible, at any
rate, within a period of three months from the date of receipt
of a copy of this order.
38. On 14.01.2011 there occurred a stampede at
Pulmedu near Sabarimala, which took the life of 52 pilgrims.
In the wake of that tragic incident, Virtual-Q system was
introduced for the first time in the year 2011, though it was
optional till the year 2020-21. During the festival season
2020-21 the number of pilgrims was restricted and the entry
to Sabarimala was allowed only through Virtual-Q booking.
That was approved by this Court as an effective measure to
regulate the number of pilgrims per day, as per the norms
fixed on account of the restrictions imposed in connection with
the spread of Covid-19 pandemic in the State. A regulated
entry with details of pilgrims is imperative for crowd
management at Sabarimala, when restrictions have been
imposed on the number of pilgrims permitted to have darshan
per day, on account of the spread of Covid-19 pandemic.
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
39. Verification of Virtual-Q tickets and other related
matters are the responsibilities of the Kerala Police, as part of
crowd management. For effective crowd management during
festival seasons and also monthly poojas the Kerala Police
should have access to the database in Virtual-Q system. When
specific threat inputs have been received in respect of
Sabarimala Temple, the Kerala Police will have to take
preventive action after screening and verifying the database.
40. The Parliament enacted the Information Technology
Act, 2000 to provide legal recognition for transactions carried
out by means of electronic data interchange and other means
of electronic communication, commonly referred to as
'electronic commerce', which involve the use of alternatives to
paper-based methods of communication and storage of
information, to facilitate electronic filing of documents with the
Government agencies and further to amend the Indian Penal
Code, 1860; the Indian Evidence Act, 1872; the Bankers'
Books Evidence Act, 1891 and the Reserve Bank of India Act,
1934 and for matters connected therewith or incidental
thereto.
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
41. Clause (o) of Section 2 of the Act defines 'data' to
mean a representation of information, knowledge, facts,
concepts or instructions which are being prepared or have
been prepared in a formalised manner, and is intended to be
processed, is being processed or has been processed in a
computer system or computer network, and may be in any
form (including computer printouts magnetic or optical storage
media, punched cards, punched tapes) or stored internally in
the memory of the computer.
42. Section 43A of the Act, inserted by Act 10 of 2009,
with effect from 27.10.2009, deals with compensation for
failure to protect personal data. As per Section 43A, where a
body corporate possessing, dealing or handling any sensitive
personal data or information in a computer resource which it
owns, controls or operates, is negligent in implementing and
maintaining reasonable security practices and procedures and
thereby causes wrongful loss or wrongful gain to any person,
such body corporate shall be liable to pay damages by way of
compensation to the person so affected. As per Explanation to
Section 43A, for the purpose of this Section, (i) 'body
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
corporate' means any company and includes a firm, sole
proprietorship or other association of individuals engaged in
commercial or professional activities; (ii) 'reasonable security
practices and procedures' means security practices and
procedures designed to protect such information from
unauthorised access, damage, use, modification, disclosure or
impairment, as may be specified in an agreement between the
parties or as may be specified in any law for the time being in
force and in the absence of such agreement or any law, such
reasonable security practices and procedures, as may be
prescribed by the Central Government in consultation with
such professional bodies or associations as it may deem fit;
(iii) 'sensitive personal data or information' means such
personal information as may be prescribed by the Central
Government in consultation with such professional bodies or
associations as it may deem fit.
43. Section 87 of the Act deals with power of Central
Government to make rules. As per sub-section (1) of Section
87, the Central Government may, by notification in the Official
Gazette and in the Electronic Gazette, make rules to carry out
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
the provisions of this Act. As per sub-section (2) of Section 87,
in particular, and without prejudice to the generality of the
foregoing power, such rules may provide for all or any of the
matters enumerated in clauses (a) to (zh). As per clause (ob)
to sub-section (2) of Section 87, such rules may provide for
the reasonable security practices and procedures and sensitive
personal data or information under Section 43A of the Act.
44. In K.S. Puttaswamy v. Union of India [(2017)
10 SCC 1], a decision relied on by the learned counsel for the
petitioner in W.P.(C)No.21609 of 2021, the following two
questions came up for consideration before a Nine-Judges
Bench of the Apex Court;
(i) Whether there is any fundamental right of privacy
under the Constitution of India and if so, where is it
located and what are its contours?
(ii) What is the ratio decidendi in M.P. Sharma v.
Satish Chandra [AIR 1954 SC 300] and Kharak
Singh v. State of U.P. [AIR 1963 SC 1295] and
whether those cases are rightly decided?
45. In K.S. Puttaswamy the Nine-Judges Bench
answered the reference as follows;
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(i) The decision in M.P. Sharma which holds that the
right to privacy is not protected by the Constitution
stands overruled;
(ii) The decision in Kharak Singh to the extent that it
holds that the right to privacy is not protected by the
Constitution stands overruled;
(iii) The right to privacy is protected as an intrinsic part
of the right to life and personal liberty under Article 21
and as a part of the freedoms guaranteed by Part III of
the Constitution.
(iv) Decisions subsequent to Kharak Singh which have
enunciated the position in (iii) above lay down the
correct position in law. (underline supplied)
46. The conclusions in K.S. Puttaswamy, at Paras.316
to 328 of the main judgment authored by D.Y. Chandrachud,
J., read thus;
"316. The judgment in M.P. Sharma holds essentially
that in the absence of a provision similar to the Fourth
Amendment to the US Constitution, the right to privacy
cannot be read into the provisions of Article 20(3) of
the Indian Constitution. The judgment does not
specifically adjudicate on whether a right to privacy
would arise from any of the other provisions of the
rights guaranteed by Part III including Article 21 and
Article 19. The observation that privacy is not a right
guaranteed by the Indian Constitution is not reflective
DBP No.13 of 2021 &
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of the correct position. M.P. Sharma is overruled to the
extent to which it indicates to the contrary.
317. Kharak Singh has correctly held that the content
of the expression 'life' under Article 21 means not
merely the right to a person's "animal existence" and
that the expression "personal liberty" is a guarantee
against invasion into the sanctity of a person's home or
an intrusion into personal security. Kharak Singh also
correctly laid down that the dignity of the individual
must lend content to the meaning of "personal liberty".
The first part of the decision in Kharak Singh which
invalidated domiciliary visits at night on the ground that
they violated ordered liberty is an implicit recognition of
the right to privacy. The second part of the decision,
however, which holds that the right to privacy is not a
guaranteed right under our Constitution, is not
reflective of the correct position. Similarly, Kharak
Singh's reliance upon the decision of the majority in
A.K. Gopalan v. State of Madras [AIR 1950 SC 27]
is not reflective of the correct position in view of the
decisions in Rustom Cavasjee Cooper v. Union of
India [(1970) 1 SCC 248] and in Maneka Gandhi v.
Union of India [(1978) 1 SCC 248]. Kharak Singh
to the extent that it holds that the right to privacy is not
protected under the Indian Constitution is overruled.
318. Life and personal liberty are inalienable rights.
These are rights which are inseparable from a dignified
human existence. The dignity of the individual, equality
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between human beings and the quest for liberty are the
foundational pillars of the Indian Constitution.
319. Life and personal liberty are not creations of the
Constitution. These rights are recognised by the
Constitution as inhering in each individual as an intrinsic
and inseparable part of the human element which
dwells within.
320. Privacy is a constitutionally protected right which
emerges primarily from the guarantee of life and
personal liberty in Article 21 of the Constitution.
Elements of privacy also arise in varying contexts from
the other facets of freedom and dignity recognised and
guaranteed by the fundamental rights contained in Part
III.
321. Judicial recognition of the existence of a
constitutional right of privacy is not an exercise in the
nature of amending the Constitution nor is the court
embarking on a constitutional function of that nature
which is entrusted to Parliament.
322. Privacy is the constitutional core of human dignity.
Privacy has both a normative and descriptive function.
At a normative level privacy sub-serves those eternal
values upon which the guarantees of life, liberty and
freedom are founded. At a descriptive level, privacy
postulates a bundle of entitlements and interests which
lie at the foundation of ordered liberty.
323. Privacy includes at its core the preservation of
personal intimacies, the sanctity of family life,
marriage, procreation, the home and sexual orientation.
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Privacy also connotes a right to be let alone. Privacy
safeguards individual autonomy and recognises the
ability of the individual to control vital aspects of his or
her life. Personal choices governing a way of life are
intrinsic to privacy. Privacy protects heterogeneity and
recognises the plurality and diversity of our culture.
While the legitimate expectation of privacy may vary
from the intimate zone to the private zone and from the
private to the public arenas, it is important to
underscore that privacy is not lost or surrendered
merely because the individual is in a public place.
Privacy attaches to the person since it is an essential
facet of the dignity of the human being.
324. This Court has not embarked upon an exhaustive
enumeration or a catalogue of entitlements or interests
comprised in the right to privacy. The Constitution must
evolve with the felt necessities of time to meet the
challenges thrown up in a democratic order governed
by the rule of law. The meaning of the Constitution
cannot be frozen on the perspectives present when it
was adopted. Technological change has given rise to
concerns which were not present seven decades ago
and the rapid growth of technology may render
obsolescent many notions of the present. Hence the
interpretation of the Constitution must be resilient and
flexible to allow future generations to adapt its content
bearing in mind its basic or essential features.
325. Like other rights which form part of the
fundamental freedoms protected by Part III, including
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the right to life and personal liberty under Article 21,
privacy is not an absolute right. A law which encroaches
upon privacy will have to withstand the touchstone of
permissible restrictions on fundamental rights. In the
context of Article 21 an invasion of privacy must be
justified on the basis of a law which stipulates a
procedure which is fair, just and reasonable. The law
must also be valid with reference to the encroachment
on life and personal liberty under Article 21. An invasion
of life or personal liberty must meet the threefold
requirement of (i) legality, which postulates the
existence of law; (ii) need, defined in terms of a
legitimate State aim; and (iii) proportionality which
ensures a rational nexus between the objects and the
means adopted to achieve them.
326. Privacy has both positive and negative content.
The negative content restrains the State from
committing an intrusion upon the life and personal
liberty of a citizen. Its positive content imposes an
obligation on the State to take all necessary measures
to protect the privacy of the individual.
327. Decisions rendered by this Court subsequent to
Kharak Singh, upholding the right to privacy would be
read subject to the above principles.
328. Informational privacy is a facet of the right to
privacy. The dangers to privacy in an age of information
can originate not only from the State but from non-
State actors as well. We commend to the Union
Government the need to examine and put into place a
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robust regime for data protection. The creation of such
a regime requires a careful and sensitive balance
between individual interests and legitimate concerns of
the state. The legitimate aims of the State would
include for instance protecting national security,
preventing and investigating crime, encouraging
innovation and the spread of knowledge, and
preventing the dissipation of social welfare benefits.
These are matters of policy to be considered by the
Union Government while designing a carefully
structured regime for the protection of the data. Since
the Union Government has informed the Court that it
has constituted a Committee chaired by Hon'ble Shri
Justice B.N. Srikrishna, former Judge of this Court, for
that purpose, the matter shall be dealt with
appropriately by the Union Government having due
regard to what has been set out in this judgment."
(underline supplied)
47. In K.S. Puttaswamy, at Paras.297 and 298 of the
main judgment authored by D.Y. Chandrachud, J., the Apex
Court noticed that, privacy postulates the reservation of a
private space for the individual, described as the right to be let
alone. The concept is founded on the autonomy of the
individual. The autonomy of the individual is associated over
matters which can be kept private. These are concerns over
which there is a legitimate expectation of privacy. Privacy is a
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postulate of human dignity itself. Privacy protects the
individual from the searching glare of publicity in matters
which are personal to his or her life. Privacy constitutes the
foundation of all liberty because it is in privacy that the
individual can decide how liberty is best exercised. Privacy of
the individual is an essential aspect of dignity. Dignity has both
an intrinsic and instrumental value. As an intrinsic value,
human dignity is an entitlement or a constitutionally protected
interest in itself. In its instrumental facet, dignity and freedom
are inseparably intertwined, each being a facilitative tool to
achieve the other. The ability of the individual to protect a
zone of privacy enables the realisation of the full value of life
and liberty. Privacy lies across the spectrum of protected
freedoms. The family, marriage, procreation and sexual
orientation are all integral to the dignity of the individual.
Above all, the privacy of the individual recognises an inviolable
right to determine how freedom shall be exercised. An
individual may perceive that the best form of expression is to
remain silent. Silence postulates a realm of privacy. Paras.297
and 298 of the said judgment read thus;
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"297. What, then, does privacy postulate? Privacy
postulates the reservation of a private space for the
individual, described as the right to be let alone. The
concept is founded on the autonomy of the individual.
The ability of an individual to make choices lies at the
core of the human personality. The notion of privacy
enables the individual to assert and control the human
element which is inseparable from the personality of the
individual. The inviolable nature of the human personality
is manifested in the ability to make decisions on matters
intimate to human life. The autonomy of the individual is
associated over matters which can be kept private. These
are concerns over which there is a legitimate expectation
of privacy. The body and the mind are inseparable
elements of the human personality. The integrity of the
body and the sanctity of the mind can exist on the
foundation that each individual possesses an inalienable
ability and right to preserve a private space in which the
human personality can develop. Without the ability to
make choices, the inviolability of the personality would be
in doubt. Recognising a zone of privacy is but an
acknowledgment that each individual must be entitled to
chart and pursue the course of development of
personality. Hence privacy is a postulate of human dignity
itself. Thoughts and behavioural patterns which are
intimate to an individual are entitled to a zone of privacy
where one is free of social expectations. In that zone of
privacy, an individual is not judged by others. Privacy
enables each individual to take crucial decisions which
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find expression in the human personality. It enables
individuals to preserve their beliefs, thoughts,
expressions, ideas, ideologies, preferences and choices
against societal demands of homogeneity. Privacy is an
intrinsic recognition of heterogeneity, of the right of the
individual to be different and to stand against the tide of
conformity in creating a zone of solitude. Privacy protects
the individual from the searching glare of publicity in
matters which are personal to his or her life. Privacy
attaches to the person and not to the place where it is
associated. Privacy constitutes the foundation of all
liberty because it is in privacy that the individual can
decide how liberty is best exercised. Individual dignity
and privacy are inextricably linked in a pattern woven out
of a thread of diversity into the fabric of a plural culture.
298. Privacy of the individual is an essential aspect of
dignity. Dignity has both an intrinsic and instrumental
value. As an intrinsic value, human dignity is an
entitlement or a constitutionally protected interest in
itself. In its instrumental facet, dignity and freedom are
inseparably intertwined, each being a facilitative tool to
achieve the other. The ability of the individual to protect a
zone of privacy enables the realisation of the full value of
life and liberty. Liberty has a broader meaning of which
privacy is a subset. All liberties may not be exercised in
privacy. Yet others can be fulfilled only within a private
space. Privacy enables the individual to retain the
autonomy of the body and mind. The autonomy of the
individual is the ability to make decisions on vital matters
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of concern to life. Privacy has not been couched as an
independent fundamental right. But that does not detract
from the constitutional protection afforded to it, once the
true nature of privacy and its relationship with those
fundamental rights which are expressly protected is
understood. Privacy lies across the spectrum of protected
freedoms. The guarantee of equality is a guarantee
against arbitrary State action. It prevents the State from
discriminating between individuals. The destruction by
the State of a sanctified personal space whether of the
body or of the mind is violative of the guarantee against
arbitrary State action. Privacy of the body entitles an
individual to the integrity of the physical aspects of
personhood. The intersection between one's mental
integrity and privacy entitles the individual to freedom of
thought, the freedom to believe in what is right, and the
freedom of self-determination. When these guarantees
intersect with gender, they create a private space which
protects all those elements which are crucial to gender
identity. The family, marriage, procreation and sexual
orientation are all integral to the dignity of the individual.
Above all, the privacy of the individual recognises an
inviolable right to determine how freedom shall be
exercised. An individual may perceive that the best form
of expression is to remain silent. Silence postulates a
realm of privacy. An artist finds reflection of the soul in a
creative endeavour. A writer expresses the outcome of a
process of thought. A musician contemplates upon notes
which musically lead to silence. The silence, which lies
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within, reflects on the ability to choose how to convey
thoughts and ideas or interact with others. These are
crucial aspects of personhood. The freedoms under Article
19 can be fulfilled where the individual is entitled to
decide upon his or her preferences. Read in conjunction
with Article 21, liberty enables the individual to have a
choice of preferences on various facets of life including
what and how one will eat, the way one will dress, the
faith one will espouse and a myriad other matters on
which autonomy and self-determination require a choice
to be made within the privacy of the mind. The
constitutional right to the freedom of religion under
Article 25 has implicit within it the ability to choose a
faith and the freedom to express or not express those
choices to the world. These are some illustrations of the
manner in which privacy facilitates freedom and is
intrinsic to the exercise of liberty. The Constitution does
not contain a separate article telling us that privacy has
been declared to be a fundamental right. Nor have we
tagged the provisions of Part III with an alpha-suffixed
right to privacy: this is not an act of judicial redrafting.
Dignity cannot exist without privacy. Both reside within
the inalienable values of life, liberty and freedom which
the Constitution has recognised. Privacy is the ultimate
expression of the sanctity of the individual. It is a
constitutional value which straddles across the spectrum
of fundamental rights and protects for the individual a
zone of choice and self-determination."
48. In K.S. Puttaswamy, at Para.315 of the judgment,
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the Apex Court noticed the constitution of a committee chaired
by Justice B.N. Srikrishna, former Judge of the Supreme Court
of India to review, inter alia, data protection norms in the
country and to make its recommendations. Para.315 of the
said judgment reads thus;
"315. During the course of the hearing of these
proceedings, the Union Government has placed on the
record an Office Memorandum dated 31.07.2017 by
which it has constituted a committee chaired by Justice
B.N. Srikrishna, former Judge of the Supreme Court of
India to review inter alia data protection norms in the
country and to make its recommendations. The terms of
reference of the Committee are:
a) To study various issues relating to data
protection in India;
b) To make specific suggestions for
consideration of the Central Government on
principles to be considered for data
protection in India and suggest a draft data
protection bill.
Since the Government has initiated the process of
reviewing the entire area of data protection, it would be
appropriate to leave the matter for expert
determination so that a robust regime for the protection
of data is put into place. We expect that the Union
Government shall follow up on its decision by taking all
necessary and proper steps." (underline supplied)
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49. In K.S. Puttaswamy, at Para.61 of the main
judgment authored by D.Y. Chandrachud, J., the Apex Court
noticed that, in R. Rajagopal v. State of T.N. [(1994) 6
SCC 632] a Bench of two Judges recognised that the right to
privacy has two aspects: the first affording an action in tort for
damages resulting from an unlawful invasion of privacy, while
the second is a constitutional right. Paras.61 to 63 of the said
decision read thus;
'61. The decision which has assumed some significance
is R. Rajagopal v. State of T.N. [(1994) 6 SCC
632]. In that case, in a proceeding under Article 32 of
the Constitution, a writ was sought for restraining the
State and Prison Authorities from interfering with the
publication of an autobiography of a condemned
prisoner in a magazine. The Prison Authorities, in a
communication to the publisher, denied the claim that
the autobiography had been authored by the prisoner
while he was confined to jail and opined that a
publication in the name of a convict was against Prison
Rules. The prisoner in question had been found guilty of
six murders and was sentenced to death. Among the
questions which were posed by this Court for decision
was whether a citizen could prevent another from
writing about the life story of the former and whether
an unauthorised publication infringes the citizen's right
to privacy. Jeevan Reddy, J. speaking for a Bench of two
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Judges recognised that the right to privacy has two
aspects: the first affording an action in tort for damages
resulting from an unlawful invasion of privacy, while the
second is a constitutional right. The judgment traces the
constitutional protection of privacy to the decisions in
Kharak Singh v. State of U.P. [AIR 1963 SC 1295]
and Gobind v. State of M.P. [(1975) 2 SCC 148].
This appears from the following observations: [R.
Rajagopal, SCC pp. 639-40, para.9]
"9. ... The first decision of this Court dealing with
this aspect is Kharak Singh v. State of U.P.
[AIR 1963 SC 1295]. A more elaborate
appraisal of this right took place in a later
decision in Gobind v. State of M.P. [(1975) 2
SCC 148] wherein Mathew, J. speaking for
himself, Krishna Iyer and Goswami, JJ. traced the
origins of this right and also pointed out how the
said right has been dealt with by the United
States Supreme Court in two of its well-known
decisions in Griswold v. Connecticut [14 L Ed
2d 510] and Roe v. Wade [35 L Ed 2d 147]."
The decision in Rajagopal considers the decisions
in Kharak Singh and Gobind thus: [SCC p. 643,
para.13]
"13. ... Kharak Singh was a case where the
petitioner was put under surveillance as defined
in Regulation 236 of the U.P. Police Regulations.
... Though right to privacy was referred to, the
decision turned on the meaning and content of
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"personal liberty" and "life" in Article 21. Gobind
was also a case of surveillance under M.P. Police
Regulations. Kharak Singh was followed even
while at the same time elaborating the right to
privacy...."
62. The Court in Rajagopal held that neither the State
nor can its officials impose prior restrictions on the
publication of an autobiography of a convict. In the
course of its summary of the decision, the Court held:
(SCC pp. 649-50, para.26)
"(1) The right to privacy is implicit in the right to
life and liberty guaranteed to the citizens of this
country by Article 21. It is a "right to be let
alone". A citizen has a right to safeguard the
privacy of his own, his family, marriage,
procreation, motherhood, child-bearing and
education among other matters. None can
publish anything concerning the above matters
without his consent - whether truthful or
otherwise and whether laudatory or critical. If he
does so, he would be violating the right to
privacy of the person concerned and would be
liable in an action for damages. Position may,
however, be different, if a person voluntarily
thrusts himself into controversy or voluntarily
invites or raises a controversy.
(2) The rule aforesaid is subject to the exception,
that any publication concerning the aforesaid
aspects becomes unobjectionable if such
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publication is based upon public records including
court records. This is for the reason that once a
matter becomes a matter of public record, the
right to privacy no longer subsists and it
becomes a legitimate subject for comment by
press and media among others. We are, however,
of the opinion that in the interests of decency
[Article 19(2)] an exception must be carved out
to this rule, viz., a female who is the victim of a
sexual assault, kidnap, abduction or a like
offence should not further be subjected to the
indignity of her name and the incident being
publicised in press/media.
(3) There is yet another exception to the rule in
(1) above - indeed, this is not an exception but
an independent rule. In the case of public
officials, it is obvious, right to privacy, or for that
matter, the remedy of action for damages is
simply not available with respect to their acts
and conduct relevant to the discharge of their
official duties. This is so even where the
publication is based upon facts and statements
which are not true, unless the official establishes
that the publication was made (by the
defendant) with reckless disregard for truth. In
such a case, it would be enough for the
defendant (member of the press or media) to
prove that he acted after a reasonable
verification of the facts; it is not necessary for
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him to prove that what he has written is true. Of
course, where the publication is proved to be
false and actuated by malice or personal
animosity, the defendant would have no defence
and would be liable for damages. It is equally
obvious that in matters not relevant to the
discharge of his duties, the public official enjoys
the same protection as any other citizen, as
explained in (1) and (2) above. It needs no
reiteration that judiciary, which is protected by
the power to punish for contempt of court and
Parliament and legislatures protected as their
privileges are by Articles 105 and 104
respectively of the Constitution of India,
represent exceptions to this rule."
63. The judgment of Jeevan Reddy, J. regards privacy
as implicit in the right to life and personal liberty under
Article 21. In coming to the conclusion, the judgment
in Rajagopal notes that while Kharak Singh had
referred to the right to privacy, the decision turned on
the content of life and personal liberty in Article 21. The
decision recognises privacy as a protected constitutional
right, while tracing it to Article 21.'
50. In K.S. Puttaswamy, at Para.511 of the concurring
judgment authored by Rohinton Fali Nariman, J., the Apex
Court noticed that in R. Rajagopal v. State of Tamil Nadu
[(1994) 6 SCC 632] the Apex Court decided on the rights of
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privacy vis-a-vis the freedom of the press, and in doing so,
referred to a large number of decisions and arrived at the
conclusions summerised in Para.26 of the said decision [SCC
pp.649-51]. The conclusion in Para.536 of the concurring
judgment is that, the inalienable fundamental right to privacy
resides in Article 21 and other fundamental freedoms
contained in Part III of the Constitution of India. M.P. Sharma
and the majority in Kharak Singh, to the extent that they
indicate to the contrary, stand overruled. The later judgments
of the Apex Court recognising privacy as a fundamental right
need not be revisited.
51. In K.S. Puttaswamy, at Para.622 of the concurring
judgment authored by Sanjay Kishan Kaul, J., the Apex Court
noticed that, Samuel Warren and Louis Brandeis in 1890
expressed the belief that an individual should control the
degree and type of private-personal information that is made
public. This formulation of the right to privacy has particular
relevance in today's information and digital age. Paras.623 to
626 of the said judgment read thus;
"623. An individual has a right to protect his reputation
from being unfairly harmed and such protection of
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reputation needs to exist not only against falsehood but
also certain truths. It cannot be said that a more
accurate judgment about people can be facilitated by
knowing private details about their lives - people judge
us badly, they judge us in haste, they judge out of
context, they judge without hearing the whole story and
they judge with hypocrisy. Privacy lets people protect
themselves from these troublesome judgments.
624. There is no justification for making all truthful
information available to the public. The public does not
have an interest in knowing all information that is true.
Which celebrity has had sexual relationships with whom
might be of interest to the public but has no element of
public interest and may therefore be a breach of
privacy. Thus, truthful information that breaches privacy
may also require protection.
625. Every individual should have a right to be able to
exercise control over his/her own life and image as
portrayed to the world and to control commercial use of
his/her identity. This also means that an individual may
be permitted to prevent others from using his image,
name and other aspects of his/her personal life and
identity for commercial purposes without his/ her
consent.
626. Aside from the economic justifications for such a
right, it is also justified as protecting individual
autonomy and personal dignity. The right protects an
individual's free, personal conception of the 'self.' The
right of publicity implicates a person's interest in
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autonomous self-definition, which prevents others from
interfering with the meanings and values that the public
associates with her." (underline supplied)
52. In K.S. Puttaswamy, at Para.629 of the concurring
judgment authored by Sanjay Kishan Kaul, J., the Apex Court
noticed that, the right of an individual to exercise control over
his personal data and to be able to control his/her own life
would also encompass his right to control his existence on the
internet. Whereas, the right to control dissemination of
personal information in the physical and virtual space should
not amount to a right of total eraser of history, this right, as a
part of the larger right of privacy, has to be balanced against
other fundamental rights like the freedom of expression, or
freedom of media, fundamental to a democratic society. Thus,
the European Union Regulation of 2016 has recognised what
has been termed as 'the right to be forgotten'. This does not
mean that all aspects of earlier existence are to be obliterated,
as some may have a social ramification. If we were to
recognise a similar right, it would only mean that an individual
who is no longer desirous of his personal data to be processed
or stored, should be able to remove it from the system where
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the personal data/information is no longer necessary, relevant,
or is incorrect and serves no legitimate interest. Paras.629 to
636 of the said judgment read thus;
"629. The right of an individual to exercise control over
his personal data and to be able to control his/her own
life would also encompass his right to control his
existence on the internet. Needless to say that this
would not be an absolute right. The existence of such a
right does not imply that a criminal can obliterate his
past, but that there are variant degrees of mistakes,
small and big, and it cannot be said that a person
should be profiled to the nth extent for all and sundry to
know.
630. A high school teacher was fired after posting on
her Facebook page that she was "so not looking forward
to another school year" since the school district's
residents were "arrogant and snobby". A flight
attendant was fired for posting suggestive photos of
herself in the company's uniform In the pre-digital era,
such incidents would have never occurred. People could
then make mistakes and embarrass themselves, with
the comfort that the information will be typically
forgotten over time.
631. The impact of the digital age results in information
on the internet being permanent. Humans forget, but
the internet does not forget and does not let humans
forget. Any endeavour to remove information from the
internet does not result in its absolute obliteration. The
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foot prints remain. It is thus, said that in the digital
world preservation is the norm and forgetting a
struggle.
632. The technology results almost in a sort of a
permanent storage in some way or the other making it
difficult to begin life again giving up past mistakes.
People are not static, they change and grow through
their lives. They evolve. They make mistakes. But they
are entitled to re-invent themselves and reform and
correct their mistakes. It is privacy which nurtures this
ability and removes the shackles of unadvisable things
which may have been done in the past.
633. Children around the world create perpetual digital
footprints on social network websites on a 24/7 basis as
they learn their 'ABCs': Apple, Bluetooth, and chat
followed by download, e-mail, Facebook, Google,
Hotmail, and Instagram They should not be subjected
to the consequences of their childish mistakes and
naivety, their entire life. Privacy of children will require
special protection not just in the context of the virtual
world, but also the real world.
634. People change and an individual should be able to
determine the path of his life and not be stuck only on a
path of which he/she treaded initially. An individual
should have the capacity to change his/her beliefs and
evolve as a person. Individuals should not live in fear
that the views they expressed will forever be associated
with them and thus refrain from expressing themselves.
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
635. Whereas this right to control dissemination of
personal information in the physical and virtual space
should not amount to a right of total eraser of history,
this right, as a part of the larger right of privacy, has to
be balanced against other fundamental rights like the
freedom of expression, or freedom of media,
fundamental to a democratic society.
636. Thus, the European Union Regulation of 2016 has
recognised what has been termed as 'the right to be
forgotten'. This does not mean that all aspects of earlier
existence are to be obliterated, as some may have a
social ramification. If we were to recognise a similar
right, it would only mean that an individual who is no
longer desirous of his personal data to be processed or
stored, should be able to remove it from the system
where the personal data/information is no longer
necessary, relevant, or is incorrect and serves no
legitimate interest. Such a right cannot be exercised
where the information /data is necessary, for exercising
the right of freedom of expression and information, for
compliance with legal obligations, for the performance
of a task carried out in public interest, on the grounds
of public interest in the area of public health, for
archiving purposes in the public interest, scientific or
historical research purposes or statistical purposes, or
for the establishment, exercise or defence of legal
claims. Such justifications would be valid in all cases of
breach of privacy, including breaches of data privacy."
(underline supplied)
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
53. In Thalappalam Service Co-operative Bank Ltd.
v. State of Kerala [(2013) 16 SCC 82] the Apex Court held
that, right to be let alone, as propounded in Olmstead v. The
United States [(1927) 277 US 438] is the most
comprehensive of the rights and most valued by civilised man.
Recognising the fact that the right to privacy is a sacrosanct
facet of Article 21 of the Constitution, the legislation has put
lot of safeguards to protect the rights under Section 8(1)(j) of
the Right to Information Act, 2005. If the information sought
for is personal and has no relationship with any public activity
or interest or it will not sub-serve larger public interest, the
public authority or the officer concerned is not legally obliged
to provide those information. If the authority finds that
information sought for can be made available in the larger
public interest, then the officer should record his reasons in
writing before providing the information, because the person
from whom information is sought for, has also a right to
privacy guaranteed under Article 21 of the Constitution.
Paras.63 and 64 of the said judgment read thus;
"63. Section 8 begins with a non obstante clause, which
gives that Section an overriding effect, in case of
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
conflict, over the other provisions of the Act. Even if,
there is any indication to the contrary, still there is no
obligation on the public authority to give information to
any citizen of what has been mentioned in clauses (a)
to (j). Public authority, as already indicated, cannot
access all the information from a private individual, but
only those information which he is legally obliged to
pass on to a public authority by law, and also only
those information to which the public authority can
have access in accordance with law. Even those
information, if personal in nature, can be made
available only subject to the limitations provided in
Section 8(1)(j) of the Right to information Act. Right to
be let alone, as propounded in Olmstead v. The
United States reported in [(1927) 277 US 438] is
the most comprehensive of the rights and most valued
by civilised man.
64. Recognising the fact that the right to privacy is a
sacrosanct facet of Article 21 of the Constitution, the
legislation has put a lot of safeguards to protect the
rights under Section 8(1)(j), as already indicated. If the
information sought for is personal and has no
relationship with any public activity or interest or it will
not sub-serve larger public interest, the public authority
or the officer concerned is not legally obliged to provide
those information. Reference may be made to a recent
judgment of this Court in Girish Ramchandra
Deshpande v. Central Information Commissioner
and others [(2013) 1 SCC 212] wherein this Court
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
held that since there is no bona fide public interest in
seeking information, the disclosure of said information
would cause unwarranted invasion of privacy of the
individual under Section 8(1)(j) of the Act. Further, if
the authority finds that information sought for can be
made available in the larger public interest, then the
officer should record his reasons in writing before
providing the information, because the person from
whom information is sought for, has also a right to
privacy guaranteed under Article 21 of the
Constitution." (underline supplied)
54. In Navtej Singh Johar v. Union of India
[(2018) 10 SCC 1] a Five-Judges Bench of the Apex Court
noticed that, in R. Rajagopal v. State of T.N. [(1994) 6
SCC 632], while discussing the concept of right to privacy, it
has been observed that the right to privacy is implicit in the
right to life and liberty guaranteed to the citizens of this
country by Article 21 and it is a 'right to be let alone', for a
citizen has a right to safeguard the privacy of his/her own,
his/her family, marriage, procreation, motherhood, child-
bearing and education, among other matters.
55. In Central Public Information Officer, Supreme
Court of India v. Subhash Chandra Agarwal [(2020) 5
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
SCC 481] a Five-Judges Bench of the Apex Court noticed that,
a claim to protect privacy is, in a sense, a claim for the
preservation of confidentiality of personal information. With
progression of the right to privacy, the underlying values of
the law that protects personal information came to be seen
differently as the courts recognised that unlike law of
confidentiality that is based upon duty of good faith, right to
privacy focuses on the protection of human autonomy and
dignity by granting the right to control the dissemination of
information about one's private life and the right to the
esteem and respect of other people. [See: Sedley LJ in
Douglas v. Hello Ltd. (2001) QB 967]. In PJS v. News Group
Newspapers Ltd. [(2016) UKSC 26], the Supreme Court of
the United Kingdom had drawn a distinction between the right
to respect private and family life or privacy and claims based
upon confidentiality by observing that the law extends greater
protection to privacy rights than rights in relation to
confidential matters. In the former case, the claim for misuse
of private information can survive even when information is in
the public domain as its repetitive use itself leads to violation
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
of the said right. The right to privacy gets the benefit of both
the quantitative and the qualitative protection. The former
refers to the disclosure already made and what is yet
undisclosed, whereas the latter refers to the privateness of the
material, invasion of which is an illegal intrusion into the right
to privacy. Claim for confidentiality would generally fail when
the information is in public domain. The law of privacy is,
therefore, not solely concerned with the information, but more
concerned with the intrusion and violation of private rights.
Citing an instance of how publishing of defamatory material
can be remedied by a trial establishing the falsity of such
material and award of damages, whereas invasion of privacy
cannot be similarly redressed, the court had highlighted the
reason why truth or falsity of an allegation or information may
be irrelevant when it comes to invasion of privacy. Therefore,
claims for protection against invasion of private and family life
do not depend upon confidentiality alone.
56. In Subhash Chandra Agarwal the Apex Court
noticed that, the right to privacy though not expressly
guaranteed in the Constitution of India is now recognised as a
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
basic fundamental right vide decision of the Constitutional
Bench in K.S. Puttaswamy holding that it is an intrinsic part
of the right to life and liberty guaranteed under Article 21 of
the Constitution and recognised under several international
treaties, chief among them being Article 12 of the Universal
Declaration of Human Rights, 1948 which states that no one
shall be subjected to arbitrary interference with his privacy,
family, home or correspondence, nor to attacks upon his
honour and reputation. The judgment recognises that
everyone has a right to the protection of laws against such
interference or attack. In K.S. Puttaswamy (main judgment
authored by D.Y. Chandrachud, J.) has referred to the
provisions of Section 8(1)(j) of the Right to Information Act,
2005 to highlight that the right to privacy is entrenched with
constitutional status in Part III of the Constitution, thus
providing a touchstone on which validity of executive decisions
can be assessed and validity of laws can be determined vide
judicial review exercised by the courts. This observation
highlights the status and importance of the right to privacy as
a constitutional right. The ratio as recorded in the two
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
concurring judgments of the learned Judges (R.F. Nariman and
Sanjay Kishan Kaul, JJ.) are similar. It is observed that privacy
involves a person's right to his physical body; right to
informational privacy which deals with a person's mind; and
the right to privacy of choice which protects an individual's
autonomy over personal choices. While physical privacy enjoys
constitutional recognition in Article 19(1)(d) and (e) read with
Article 21, personal informational privacy is relatable to Article
21 and right to privacy of choice is enshrined in Article 19(1)
(a) to (c), 20(3), 21 and 25 of the Constitution.
57. In Subhash Chandra Agarwal the Apex Court
noticed that, privacy, it is uniformly observed in K.S.
Puttaswamy, is essential for liberty and dignity. Therefore,
individuals have the need to preserve an intrusion-free zone
for their personality and family. This facilitates individual
freedom. Privacy and confidentiality encompass a bundle of
rights including the right to protect identity and anonymity.
Anonymity is where an individual seeks freedom from
identification, even when and despite being in a public space.
After referring to various judicial precedents, the Five-Judges
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
Bench opined that, personal records, including name, address,
physical, mental and psychological status, marks obtained,
grades and answer sheets, are all treated as personal
information. Similarly, professional records, including
qualification, performance, evaluation reports, ACRs,
disciplinary proceedings, etc., are all personal information.
Medical records, treatment, choice of medicine, list of hospitals
and doctors visited, findings recorded, including that of the
family members, information relating to assets, liabilities,
income tax returns, details of investments, lending and
borrowing, etc., are personal information. Such personal
information is entitled to protection from unwarranted invasion
of privacy and conditional access is available when stipulation
of larger public interest is satisfied.
58. As already noticed hereinbefore, Sabarimala is
situated in a difficult forest terrain prone to natural disasters.
Virtual-Q system was introduced at Sabarimala for the first
time in the year 2011, when there occurred a stampede at
Pulmedu near Sabarimala, on 14.01.2011, which took the life
of 52 pilgrims. A regulated entry with details of pilgrims is
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
imperative for crowd management at Sabarimala, when
restrictions have been imposed on the number of pilgrims
permitted to have darshan per day. Verification of Virtual-Q
tickets and other related matters are the responsibilities of the
Kerala Police, as part of crowd management. For effective
crowd management during festival seasons and also monthly
poojas the Kerala Police should have access to the database in
Virtual-Q system. When specific threat inputs have been
received in respect of Sabarimala Temple, the Kerala Police will
have to take preventive action after screening and verifying
the database. Any access to the database in Vitrual-Q platform
by the Kerala Police, for crowd control during festival seasons
and also monthly poojas, in order to avoid a stampede or an
untoward, or for taking any preventive action in case any
specific threat or security input, would not amount to an
unwarranted invasion of the privacy of pilgrims. The
contentions to the conta raised by the learned counsel for the
petitioner in W.P.(C)No.21609 of 2021 are untenable.
59. In exercise of the powers conferred by clause (ob)
of sub-section (2) of Section 87 read with Section 43A of the
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
Act, the Central Government made the Information Technology
(Reasonable Security Practices and Procedures and Sensitive
Personal Data or Information) Rules, 2011, which came into
force on 11.04.2011. Clause (b) of Rule 2 defines 'biometrics'
to mean the technologies that measure and analyse human
body characteristics, such as 'fingerprints', 'eye retinas and
irises', 'voice patterns', 'facial patterns', 'hand measurements'
and 'DNA' for authentication purposes.
60. Clause (d) of Rule 2 of the Rules defines 'cyber
incidents' to mean any real or suspected adverse event in
relation to cyber security that violates an explicitly or implicitly
applicable security policy resulting in unauthorised access,
denial of service or disruption, unauthorised use of a computer
resource for processing or storage of information or changes
to data, information without authorisation. Clause (e) of Rule 2
defines 'data' to mean data as defined in clause (o) of sub-
section (1) of Section 2 of the Act. Clause (f) of Rule 2 defines
'information' to mean information as defined in clause (v) of
sub-section (1) of Section 2 of the Act.
61. Clause (g) of Rule 2 of the Rules defines
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
'intermediary' to mean an intermediary as defined in clause
(w) of sub-section (1) of Section 2 of the Act. Clause (h) of
Rule 2 defines 'password' to mean a secret word or phrase or
code or passphrase or secret key, or encryption or decryption
keys that one uses to gain admittance or access to
information. Clause (i) of Rule 2 defines 'personal information'
to mean any information that relates to a natural person,
which, either directly or indirectly, in combination with other
information available or likely to be available with a body
corporate, is capable of identifying such person.
62. Rule 3 of the Rules defines 'sensitive personal data
or information'. As per Rule 3, sensitive personal data or
information of a person means such personal information
which consists of information relating to (i) password; (ii)
financial information such as Bank Account or Credit Card or
Debit Card or other payment instrument details; (iii) physical,
physiological and mental health condition; (iv) sexual
orientation; (v) medical records and history; (vi) biometric
information; (vii) any detail relating to the above clauses as
provided to body corporate for providing service; and (viii) any
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
of the information received under above clauses by body
corporate for processing, stored or processed under lawful
contract or otherwise. As per the proviso to Section 3, any
information that is freely available or accessible in public
domain or furnished under the Right to Information Act, 2005
or any other law for the time being in force shall not be
regarded as sensitive personal data or information for the
purposes of these rules.
63. As per Rule 4 of the Rules, body corporate to
provide policy for privacy and disclosure of information. As per
sub-rule (1) of Rule 4, the body corporate or any person who
on behalf of body corporate collects, receives, possess, stores,
deals or handle information of provider of information, shall
provide a privacy policy for handling of or dealing in personal
information including sensitive personal data or information
and ensure that the same are available for view by such
providers of information who has provided such information
under lawful contract. Such policy shall be published on
website of body corporate or any person on its behalf and shall
provide for (i) clear and easily accessible statements of its
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
practices and policies; (ii) type of personal or sensitive
personal data or information collected under Rule 3; (iii)
purpose of collection and usage of such information; (iv)
disclosure of information including sensitive personal data or
information as provided in Rule 6; (v) reasonable security
practices and procedures as provided under Rule 8.
64. Rule 5 of the Rules deals with collection of
information. Rule 6 deals with disclosure of information. Rule 7
of deals with transfer of information. Rule 8 deals with
Reasonable Security Practices and Procedures. As per sub-rule
(1) of Rule 8, a body corporate or a person on its behalf shall
be considered to have complied with reasonable security
practices and procedures, if they have implemented such
security practices and standards and have a comprehensive
documented information security programme and information
security policies that contain managerial, technical, operational
and physical security control measures that are commensurate
with the information assets being protected with the nature of
business. In the event of an information security breach, the
body corporate or a person on its behalf shall be required to
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
demonstrate, as and when called upon to do so by the agency
mandated under the law, that they have implemented security
control measures as per their documented information security
programme and information security policies. As per sub-rule
(2) of Rule 8, the international Standard IS/ISO/IEC 27001 on
'Information Technology − Security Techniques − Information
Security Management System − Requirements' is one such
standard referred to in sub-rule (1).
65. As per sub-rule (3) of Rule 8, any industry
association or an entity formed by such an association, whose
members are self-regulating by following other than
IS/ISO/IEC codes of best practices for data protection as per
sub-rule (1), shall get its codes of best practices duly
approved and notified by the Central Government for effective
implementation. As per sub-rule (4) of Rule 8, the body
corporate or a person on its behalf who have implemented
either IS/ISO/IEC 27001 standard or the codes of best
practices for data protection as approved and notified under
sub-rule (3) shall be deemed to have complied with
reasonable security practices and procedures provided that
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
such standard or the codes of best practices have been
certified or audited on a regular basis by entities through
independent auditor, duly approved by the Central
Government. The audit of reasonable security practices and
procedures shall be carried out by an auditor at least once a
year or as and when the body corporate or a person on its
behalf undertake significant upgradation of its process and
computer resource.
66. In view of the provisions under Rule 4 of the
Information Technology (Reasonable Security Practices and
Procedures and Sensitive Personal Data or Information) Rules,
the body corporate or any person who on behalf of body
corporate collects, receives, possess, stores, deals or handle
information of provider of information, shall provide a privacy
policy for handling of or dealing in personal information
including sensitive personal data or information and ensure
that the same are available for view by such providers of
information who has provided such information under lawful
contract. Such policy shall be published on website of body
corporate or any person on its behalf and shall provide for the
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
matters enumerated in clauses (i) to (v) of sub-rule (1) of
Rule 4 of the said Rules.
67. Since Virtual-Q system for Sabarimala darshan is
ordered to be taken over by the TDB, we deem it appropriate
to direct the TDB to scrupulously follow the requirements of
the Information Technology (Reasonable Security Practices and
Procedures and Sensitive Data or Information) Rules, 2011,
once the ownership and management of Virtual-Q system is
transferred to the Board.
68. In Distribution of Essential Supplies and
Services during Pandemic, In re, [(2021) 7 SCC 772], a
decision relied on by the learned counsel for the petitioner in
W.P.(C)No.21609 of 2021, a Three-Judge Bench of the Apex
Court noticed its earlier order dated 30.04.2021-Distribution
of Essential Supplies and Services During Pandemic, In
re, [(2021) 18 SCC 201], wherein the Court had highlighted
the concerns relating to the ability of the marginalised
members of society to avail of vaccination, exclusively through
a digital portal in the face of a digital divide. A survey on
'Household Social Consumption: Education" was conducted by
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
National Statistics Office (July 2017-June 2018), in which it
was revealed that, around 4% of the rural households and
23% of the urban households possessed a computer. In the
age group of 15-29 years, around 24% in rural households
and 56% in urban areas were able to operate a computer.
Nearly 24% of the households in the country had internet
access during the survey year 2017-18. The proportion was
15% in rural households and 42% in urban households.
Around 35% of persons in the age group of 15-29 years
reported use of internet during the 30 days prior to the date of
survey. The proportions were 25% in rural areas and 58% in
urban areas. The Telecom Regulatory Authority of India in its
report titled 'Wireless Data Services in India' noted that, out of
the total population of 1.3 billion, only 578 million people in
India (less than 50%) have subscription to wireless data
services. The wireless teledensity in rural areas is 57.13% as
compared to 155.49% in urban areas as on 31.03.2019. In
the report, it is stated that, this reflects the rural-urban divide
in terms of telecom services' penetration. Since the number of
wireless data subscribers are less than 50% of the total
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
wireless access subscribers, the number of wireless data
subscribers in rural areas would be much lower. The report
also noted that in a few Indian States like Bihar, Uttar Pradesh
and Assam the teledensity is less than 75%. The monthly
income of persons living below the poverty line in urban areas
and rural areas is Rs.1,316/- and Rs.896/-, respectively.
However, to access internet data services, a minimum tariff
plan would cost around Rs.49/-, which includes 1 GB of data
every 28 days. This would constitute 4-5% of the month's
income of such persons accessing data. As such, the report
notes that this would bear a considerable cost for persons
living below the poverty line. The Apex Court noticed that,
according to the Annual Report of Common Services Centres
(CSC) for 2019-20, published by the Ministry of Electronics
and Information Technology, while there are 2,53,134 Gram
Panchayats in India, as on 31.03.2020 only 2,40,792 Gram
Panchayats are covered with at least one registered CSC.
Hence, approximately 13,000 Gram Panchayats in India do not
have a CSC. It is clear from the above statistics that there
exists a digital divide in India, particularly between the rural
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
and urban areas. The extent of the advances made in
improving digital literacy and digital access falls short of
penetrating the majority of the population in the country.
Serious issues of the availability of bandwidth and connectivity
pose further challenges to digital penetration. The Apex Court
found that a vaccination policy exclusively relying on a digital
portal for vaccinating a significant population of this country
between the ages of 18-44 years would be unable to meet its
target of universal immunisation owing to such a digital divide.
It is the marginalised sections of the society who would bear
the brunt of this accessibility barrier. This could have serious
implications on the fundamental right to equality and the right
to health of persons within the above age group.
69. In this DBP and connected writ petitions, this Court
passed various orders, whereby spot booking facilities were
opened at various places, in order to ensure that the devotees,
who do not have the facility for online booking in Virtual-Q
system, are given an opportunity to book for Sabarimala
darshan at the spot booking centres. Moreover, online booking
in Virtual-Q system can be made through Akshaya Centres all
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
over the State. During the course of arguments, the learned
counsel for the petitioner in W.P.(C)No.21609 of 2021
submitted that, the pilgrims including those among the
marginalised population availed the spot booking facilities
opened at various places, based on the orders of this Court,
for Sabarimala darshan through Virtual-Q system.
70. As already noticed hereinbefore, Virtual-Q system
was introduced at Sabarimala for the first time in the year
2011, when there occurred a stampede at Pulmedu near
Sabarimala, on 14.01.2011, which took the life of 52 pilgrims.
Till the year 2020, Virtual-Q system was optional. In the year
2020, in connection with the spread of Covid-19 pandemic, it
was made mandatory for all pilgrims. During Covid-19
pandemic, the State Disaster Management Authority will have
the power to impose restrictions regarding entry of pilgrims to
Sabarimala, by prescribing the number of devotees permitted
to have darshan per day. Any such restriction imposed by the
State Disaster Management Authority has to be complied with
by the Travancore Devaswom Board. Once such restrictions
are lifted, it would be open to the Travancore Devaswom Board
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
to take an appropriate decision as to whether Virtual-Q system
has to be made optional, by permitting the pilgrims to opt for
the conventional queue system without online booking.
71. After detailed consideration of the pleadings and
materials on record and also the submissions made by the
learned counsel on both sides, our conclusions are as follows;
(i) In view of the provisions under the Travancore-
Cochin Hindu Religious Institutions Act, 1950 the
administration of Sabarimala Devaswom, which is an
incorporated Devaswom mentioned in Schedule I of
the Act, and its properties and funds shall vest in the
Travancore Devaswom Board. The Board is duty
bound to see that the regular traditional rites and
ceremonies according to the practice prevalent in
Sabarimala are performed properly; and to establish
and maintain proper facilities in Sabarimala for the
devotees. Subject to the provisions of Part I of the
Act and the Rules made thereunder, the Board shall
manage the properties and affairs of Sabarimala
Devaswom and arrange for the conduct of daily
worship and ceremonies and festivals in Sabarimala
according to the usage.
(ii) In view of the provisions under the Kerala Hindu
Places of Public Worship (Authorisation of Entry) Act,
1965 in the case of a place of public worship situated
in any area to which Part I of the Travancore-Cochin
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
Hindu Religious Institutions Act extends, the
Travancore Devaswom Board is the competent
authority under sub-section (1) of Section 4 of the
said Act. Since Sabarimala is a place of public
worship situated in an area to which Part I of the said
Act extends, the competent authority to make
regulations for the maintenance of order and
decorum and the due observance of the religious
rites and ceremonies performed in Sabarimala is the
Travancore Devaswom Board and not the State
Government.
(iii) Unlike other temples in Kerala, the Kerala Police is
responsible for crowd management and maintenance
of law and order in Sabarimala during festival
seasons and monthly poojas, since Sabarimala is
situated in a difficult forest terrain prone to natural
disasters. In Sabarimala, crowd management during
festival seasons is a challenging task, which is
regulated by the Kerala Police. Their presence is even
necessary at Pathinettampadi to render necessary
assistance to the devotees, especially children, senior
citizens and also persons with disabilities. Crowd
Management at Sabarimala during festival seasons
and monthly poojas cannot be handled with the
limited number of employees of the Travancore
Devaswom Board, who are deputed on special duty.
The crowd management by the Kerala Police at
Sabarimala Sannidhanam and even at
Pathinettampadi will not in any manner infringe the
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
fundamental right guaranteed under Articles 25 and
26 of the Constitution of India.
(iv) Virtual-Q system was introduced at Sabarimala for
the first time in the year 2011, when there occurred
a stampede at Pulmedu near Sabarimala, on
14.01.2011, which took the life of 52 pilgrims. A
regulated entry with details of pilgrims is imperative
for crowd management at Sabarimala, when
restrictions have been imposed on the number of
pilgrims permitted to have darshan per day.
Verification of Virtual-Q tickets and other related
matters are the responsibilities of the Kerala Police,
as part of crowd management. For effective crowd
management during festival seasons and also
monthly poojas the Kerala Police should have access
to the database in Virtual-Q system. When specific
threat inputs have been received in respect of
Sabarimala Temple, the Kerala Police will have to
take preventive action after screening and verifying
the database. Any access to the database in Vitrual-Q
platform by the Kerala Police, for crowd control
during festival seasons and also monthly poojas, in
order to avoid a stampede or untoward incidents, or
for taking any preventive action in case any specific
threat or security input, would not amount to an
unwarranted invasion of the privacy of pilgrims.
(v) Though the stand taken by the 2nd respondent State
and the 3rd respondent State Police Chief is that,
Sabarimala Pilgrim Management System (SPMS) is in
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
the combined ownership of the Kerala Police and the
Travancore Devaswom Board, the specific stand
taken by the Travancore Devaswom Board is that,
Virtual-Q system for Sabarimala darshan introduced
in the year 2011 is a project of Kerala Police, which is
looking after crowd management in Sabarimala, and
the Board does not have ownership or control over
Virtual-Q system. The Kerala Police cannot own the
domain name sabarimalaonline.org or display any
advertisements on that web portal and earn revenue.
That web portal should be owned and managed by
the Travancore Devaswom Board. Similarly, the
State Government has absolutely no authority to
accord sanction to the Kerala Police to accept
advertisements in Virtual-Q system, to meet the
expenditure towards its maintenance. As in the case
of other temples like Guruvayur, Virtual-Q system for
Sabarimala darshan should be owned and managed
by the Travancore Devaswom Board. Therefore,
the Travancore Devaswom Board is directed to
take over Virtual-Q system for Sabarimala darshan,
presently owned and managed by the Kerala Police,
with the technical support of the 5 th respondent the
Tata Consultancy Services Ltd. Once Virtual-Q
system is taken over by the Travancore Devaswom
Board, Tata Consultancy Services Ltd. shall render
necessary technical support to the Travancore
Devaswom Board. The Travancore Devaswom
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
Board, the State Police Chief and the Tata
Consultancy Services Ltd. are directed to take
necessary steps in this regard, after completing the
technical formalities and complying with the statutory
requirements, and the entire exercise in this regard
shall be completed, as expeditiously as possible, at
any rate, within a period of three months from the
date of receipt of a copy of this order.
(vi) In view of the provisions under Rule 4 of the
Information Technology (Reasonable Security
Practices and Procedures and Sensitive Personal Data
or Information) Rules, 2011 the body corporate or
any person who on behalf of body corporate collects,
receives, possess, stores, deals or handle information
of provider of information, shall provide a privacy
policy for handling of or dealing in personal
information including sensitive personal data or
information and ensure that the same are available
for view by such providers of information who has
provided such information under lawful contract.
Such policy shall be published on website of body
corporate or any person on its behalf and shall
provide for the matters enumerated in clauses (i) to
(v) of sub-rule (1) of Rule 4 of the said Rules. Since
Virtual-Q system for Sabarimala darshan is ordered
to be taken over by the Travancore Devaswom
Board, the Travancore Devaswom Board is
directed to scrupulously follow the requirements of
the Information Technology (Reasonable Security
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
Practices and Procedures and Sensitive Data or
Information) Rules, once the ownership and
management of Virtual-Q system is transferred to the
Board.
(vii) During Covid-19 pandemic, the State Disaster
Management Authority will have the power to impose
restrictions regarding entry of pilgrims to Sabarimala,
by prescribing the number of devotees permitted to
have darshan per day. Any such restriction imposed
by the State Disaster Management Authority has to
be complied with by the Travancore Devaswom
Board. Once such restrictions are lifted, it would be
open to the Travancore Devaswom Board to take
an appropriate decision as to whether Virtual-Q
system has to be made optional, by permitting the
pilgrims to opt for the conventional queue system
without online booking.
In the result, this DBP and the writ petitions are disposed
of in terms of the directions contained as above.
sd/-
ANIL K. NARENDRAN
JUDGE
sd/-
P.G. AJITHKUMAR
JUDGE
YD/AV
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
APPENDIX IN DBP.NO.13 of 2021
ANNEXURE R2(a): TRUE COPY OF THE REPORT DATED
05.08.2021 OF THE DEPUTY INSPECTOR
GENERAL OF POLICE HEADQUARTERS.
ANNEXURE I: TRUE COPY OF THE STATEMENT FILED BY
SHRI.P.CHANDRASEKHARAN IPS ON
06.08.2012.
ANNEXURE R7(a): TRUE COPY OF THE LIST OF LANDS
AVAILABLE FOR TRAVANCORE DEVASWOM
BOARD AT SANNIDHANAM, PAMPA AND
NILAKKAL.
ANNEXURE R7(b): TRUE COPY OF THE LIST OF EDATHAVALAMS
PUBLISHED BY THE TRAVANCORE DEVASWOM
BOARD.
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
APPENDIX OF WP(C) 21609/2021
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE SCREENSHOT OF THE
WEBSITE OF THE KERALA POLICE
DEPARTMENT REGARDING SABARIMALA
PILGIRM MANAGEMENT SYSTEM.
Exhibit P2 A TRUE COPY OF VIRTUAL Q BOOKING
COUPON DATED 09.09.2021 ISSUED BY
KERALA POLICE DEPARTMENT.
Exhibit P3 A TRUE COPY OF THE ONLINE NEWS ARTICLE
TITLED LORD AYYAPPA TEMPLE IN
SABARIMALA OPENS TO DEVOTEES CARRYING
COVID NEGATIVE CERTIFICATES PUBLISHED
IN THE WEBSITE OF THE ECONOMIC TIMES
DATED 19.10.2020.
Exhibit P4 A TRUE COPY OF ONLINE NEWS ARTICLE
TILED NEW VIRTUAL QUEUE SYSTEM IN
SABARIMALA TO END FOUL PLAY PUBLISHED
IN THE WEBSITE OF THE NEW INDIAN
EXPRESS DATED 24.03.2021.
Exhibit P5 A TRUE COPY OF THE ONLINE NEWS ARTICLE
TITLED FULFIL VOW KERALA HC GIVES 9
YEARS OLD GIRL NOD TO VISIT SABARIMALA
PUBLISHED IN THE WEBSITE OF THE NEW
INDIAN EXPRESS DATED 18.04.2021.
Exhibit P6 A TRUE COPY OF THE ONLINE NEWS ARTICLE
TITLED GLITCHES IN SABARIMALA VIRTUAL
QUEUE SYSTEM DISSAUDING PILGRIMS SAYS
TRAVANCORE DEVASWOM BOARD PUBLISHED IN
THE WEBSITE OF THE NEW INDIAN EXPRESS
DATED 25.08.2021.
Exhibit P7 A TRUE COPY OF ONLINE NEWS ARTICLE
TITLED DEVASWOM BOARD MULLS CHARGING
FEE FOR VIRTUAL QUEUE BOOKING IN
SABARIMALA PUBLISHED IN THE WEBSITE OF
MATHRUBHUMIE DATED 10.09.2021.
RESPONDENTS' EXHIBITS: NIL
DBP No.13 of 2021 &
W.P.(C)Nos.21609 &
APPENDIX OF WP(C) 21812/2021
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE JUDGMENT DATED
18.12.2020 OF THE HON'BLE COURT IN
WP(C) NO.23183 OF 2020.
Exhibit P2 THE TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONER ON
17.09.2021 BEFORE THE CHIEF SECRETARY.
Exhibit P3 THE TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONER ON
17.09.2021 BEFORE THE PRINCIPAL
SECRETARY, HEALTH DEPARTMENT OF
KERALA.
RESPONDENTS' EXHIBITS:
EXHIBIT R1(a) A TRUE COPY OF THE LETTER DATED
07.08.2021 OF THE STATE POLICE CHIEF
TO THE CHIEF SECRETARY ALONG WITH THE
REPORT.
EXHIBIT R1(b) TRUE COPY OF LETTER NO.HOME-
SSA4/280/2021-HOME DATED 21.10.2021.
EXHIBIT R7(a) TRUE COPY OF THE PUBLICATION FOR
REGISTRATION OF SABARIMALA VIRTUAL
QUEUE 2019-2020 IN THE WEBSITE.
EXHIBIT R7(b) TRUE COPY OF THE REPRESENTATIONS DTD.
14.10.2021 SUBMITTED BY THIS
RESPONDENT BEFORE THE CHIEF SECRETARY.
