Kerala government above Law ?

The Supreme Court on Friday pulled up the Kerala government for enacting legislation to circumvent its or High Court judgments. Kerala was the only State where it was telling citizens not to obey the law, said a Bench of Justices D.K. Jain and Anil R. Dave.

Hearing an appeal against an interim order of the Kerala High Court staying a provision of the Kerala Public Ways (Restriction of Assemblies and Processions) Act, the Bench asked State counsel Bina Madhavan: “Is it that your State has a pro-active legal department. Be it a Supreme Court order [in an apparent reference to the Mullaperiyar case judgment] or High Court order, you are bringing [in] legislation to overcome it.”

Counsel said that as the High Court had since struck down the provision, the State would file another appeal and both could be heard together.

Justice Jain told Ms. Madhavan: “The High Court must have said it in the public interest. This [Kerala] will be the only State in the country where it is telling the citizens not to obey the law. When there is a problem for the public you are bringing in an ordinance. Particularly your State is doing. When we read [the appeal], it really pains us. The courts are active and your legal department is pro-active. We felt so saddened.”

The Bench directed that both appeals be listed for hearing on April 30.

A Division Bench of the High Court had struck down as unconstitutional Section 5(1) (c) of the Kerala Public Ways (Restriction of Assemblies and Processions) Act that empowered district police chiefs to grant permission for holding public meetings and assemblies on public roads and road margins. As per the Full Court verdict, processions and demonstrations could be allowed on one side of the road, leaving out the other side for traffic and pedestrian movement and the provision was inserted to find a way around this judgment.

The High Court held that the fundamental rights under Article 19(1) (a) and (b) (freedom of speech and expression and to assemble peaceably without arms) had to be synchronised with the right under Article 19(1) (d) (to move freely throughout the territory of India). This would be possible only by prohibiting assemblies and meeting on public roads and such restriction was justified under Article 19(2). It noted that no survey was conducted to identify whether any road margin was suitable or sufficient for holding public meetings and if so, the number of people who could gather there. The road margins were encroached upon by the people and even electricity and water connections given to the encroachers. Hence there was no justification for upholding Section 5(1) (c) of the Act, it held.

The court had earlier stayed the operation of the Act and the present appeal in the Supreme Court was directed against the interim order.

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