India is entering its tenth week since the first case of the COVID-19 pandemic was reported on 30 January, 2020. Owing to the countrywide lockdown, its implementation by the tenacious police on the ground, efforts of the relentless front-line healthcare workers, the essential service providers, and numerous other invisible supplementary support systems and contributions extended by diverse players, India is putting up a backbreaking fight.
Amid the advancing pandemic and its repercussions, one such institution that is persistently living up to its expectation is the judiciary at the regional level.
Among others, the Kerala High Court has been pronouncing some of the finest, and measured judgments, most notable for its compassion, while defending diverse rights of citizens - some of these include the right to be protected from the economic fallout of the coronavirus pandemic, right to move freely throughout the territory of India, right to medical treatment, right to essential supplies, right to reproductive choice and right to rear animals. Furthermore, the court went a step ahead, to protect the rights of three Keralite cats!
Right to be protected from the economic fallout of the pandemic
The Kerala High Court was one of the first courts that directed banks, financial institutions and tax authorities to defer recovery proceedings and coercive measures. It was an obvious relief to people, who were being impacted by the economic slump manifested on account of the pandemic. However, the Supreme Court, now in the middle of a credibility crisis, stayed this judgment in an unreasoned order, without engaging with any of the concerns raised in the Kerala High Court's judgment. The Supreme Court's stay has been subjected to criticism, on account of both procedural and substantive improprieties.
Right to free movement, medical treatment, essential supplies, et al
As the positive cases progressively rise and the emblematic corona-line wended up the graph, most states have sealed their borders to quarantine themselves from any incoming non-localite, essentially the migrant workers. One such state was Karnataka. It erected blockades on some of the road routes between Karnataka and Kerala, and prevented the movement of persons seeking any form of medical relief. The Kerala High Court Advocates' Association approached the high court, requesting them to open up the road borders.
On 1 April, 2020, in the Kerala High Court Advocates' Association verus The State of Kerala and Ors., the Kerala High Court took up the aforementioned border issue through video conference.
At the video conference hearing scheduled at 1.45 pm in the Kerala High Court, when it came to its notice that the Centre and the two state governments were already in the process of resolving this issue, the court adjourned the special sitting to 5.30 pm. When the court re-convened, it was intimated that the meeting was in progress, and that the outcome of the deliberations would be known by 6 pm.
The court adjourned the video conference hearing to 6.30 pm. When the governments did not arrive at a decision by 6.30 pm, the court, observing that "any further delay in resolving the stalemate could be catastrophic for the residents" of Kerala, ruled that such restrictions and barricades were illegal. It also directed the central government to ensure that the blockades are removed forthwith.
In holding so, the Kerala High Court ruled that the fundamental right of a citizen to move freely throughout the territory of India (under Article 19(1)(d) of the Constitution), and the fundamental right to life and personal liberty (under Article 21 of the Constitution), will be infringed in the case of a resident of Kerala, when he/she is denied entry into Karnataka for availing medical treatment, or is deprived of essential articles of food that are being transported into Kerala.
Both the states eventually resolved the dispute, and Karnataka agreed to allow passage for patients across the border from Kerala, who are not infected with COVID-19.
This judgment not only preserves and enforces the fundamental rights of citizens, but does so on priority. This is in stark contradiction to the manner in which the Supreme Court has off-late, approached rights-based matters.
For instance, when the Supreme Court finally decided to hear the matter regarding the constitutionality of the internet ban in Kashmir, after several months of lockdown imposed in Kashmir under Article 370 of the Constitution, it did not provide any meaningful relief to the Kashmiris, albeit expressly declaring that the right to freedom of speech and expression, contained in Article 19(1)(a) of the Constitution, includes right to information.
Right to reproductive choice
The Kerala High Court allowed the medical termination of 24-week pregnancy of a minor rape survivor, and re-iterated that "'Y''s right to make reproductive choices is also a facet of her personal liberty as understood under Article 21 of our Constitution. The said choice would extend to deciding whether or not to carry her pregnancy to its full term."
The judgment assumes significance for treating an abortion case as critical enough to warrant immediate adjudication, in the middle of a pandemic. This is especially so, given that even during ordinary times, the requirements of judicial authorizations under the archaic abortion law, have often caused delays, and such delays have militated against a woman's reproductive rights. The Kerala High Court however, via its timely intervention, has ensured access to abortion even during these compelling times.
Cats have rights too!
In N Prakash versus State of Kerala and Anr., the petitioner requested the court that he be allowed to travel to procure "Meo-Persian" biscuits for his cats.
Holding that it is a fundamental duty of every Indian citizen under Article 51A(g) of the Constitution, to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures, and that the animals have rights and freedoms under the Prevention of Cruelty to Animals Act, 1960, the court ruled that the petitioner has the right to obtain a pass from the police authorities for procuring food for his "feline friends."
Moreover, "animal feed and fodder" were held to be "essential items" in respect of which movement is permitted during the lockdown period.
Further, in his concurring opinion, and in what can set quite a precedent, Justice Shaji P Chaly ruled that the liberty and choice of a citizen to rear an animal is traceable to his fundamental right to privacy as recognized by the Supreme Court in Puttaswamy's case, which in turn is a facet of his right to life under Article 21 of the Constitution.
He also ruled that the choice of the petitioner not to cook non-vegetarian food is also a well-protected facet under Article 21 of the Constitution and he has no choice than to procure food from outside.
In these chilling times, that too when India lacks a comprehensive and a functional rights-based framework of public health related legislations, Kerala High Court has consistently stepped up and hammered home the dictum - >rights matter.