Kerala High Court Comes Down On Relaxations Allowed Ahead Of CPI(M) District Meet Amid COVID Surge; Bans Gathering Above 50 Persons In Kasargod

The Kerala High Court on Friday barred all public gatherings exceeding 50 individuals in the Kasargod district for a week citing the increasing number of Covid-19 cases, posing a major setback to the ongoing District Meet of the ruling Communist Party of India (Marxist)

The Court passed the order in a writ petition which alleged that the District Collector had revoked an earlier order that limited attendance in public meetings to facilitate the CPI(M)'s Kasargod District meet.

A Division Bench of Justice Vinod Chandran and Justice C. Jayachandran issued an interim order that reads as follows:

"we issue an interim order directing the District Collector, the 4th respondent who is also the Chairperson of the District Disaster Management Authority to ensure that no meetings are conducted within the district allowing participation of more than 50 persons. This interim order shall remain in force for a period of one week, with any more stringent conditions being at the discretion of the District Collector."

The Court also noted that such a step was imperative when the State was at the brink of the third wave of the pandemic:

"The spike in infection is what concerns the entire world and admittedly the hospitalizations continue unabated; though not to the extent of the first and second waves. The infection rate, however, is much more than the earlier times. We are on the cusp of the third wave is the general perception."

The Division Bench also pointed out that the infection was rising day by day and that news reports indicate that it is scheduled to be highest by the 15th of February, 2022.

In such circumstances, the Court noted that it was not appropriate for the State to keep oscillating the parameters to decide the gravity of the pandemic in each district: 

"Suffice it to say that the Government cannot blow hot and cold by saying that they are not looking at the TPR are more concerned with the hospitalization; which is very minimal, as propounded by the State and again fall back upon the TPR to convince us of the minimal severity. Having negated TPR, the Government cannot again fall back upon the TPR statistics to say that there could be public meetings conducted without any restrictions."

Additionally, the Court noted that even for the Republic Day Celebrations scheduled on January 26th, the stipulation was that there should be only a gathering of 50 persons. 

The Court noted that on January 20, the Government has issued an order imposing new restrictions amid COVID surge. As such, it ruled that the District Collector should ensure that no meetings are conducted within Kasargod allowing participation of more than 50 persons.

The interim order was issued in a Public Interest Litigation moved by an advocate clerk challenging the revocation of the Collector's order imposing restrictions to mitigate the resurgence of COVID-19 cases in the Kasargod district.

Earlier, the Collector had issued an order only allowing 50 persons in any public gathering, including political gatherings to mitigate COVID -19 cases.

The petitioner contends that this order was to be strictly complied with as per the Disaster Management Act, 2005.

However, in a revised order issued on Thursday, it was stated that the restriction should not be based on the test positivity rate (TPR) but on hospitalization and the number of beds available in hospitals. According, it permitted a gathering of 150 persons.

Meanwhile, this decision of the Collector to lift restrictions came to the advantage of the Communist Party of India (Marxist), which had scheduled its district meet to be conducted over a span of three days, starting today. This was subsequently reduced to two days considering the prevailing pandemic situation. 

The PIL moved through Advocates Ayyappadas, Vykhari K.U and Jayaprakash Narayanan contended that such withdrawal of COVID-19 curbs can potentially affect the health conditions of the people in the State.

The Court noted that the revised order was ambiguous and offered no clarity behind the withdrawal of restrictions in the district when Covid-19 cases were on a hike. 

The petitioner had alleged that the COVID-19 restrictions were compromised possibly to facilitate CPI(M) district meetings.

It has been argued by the petitioner that the Collector can only amend his orders on certain new circumstances for the purpose of prevention of disasters or their mitigation.

On the contrary, the order withdrawing restrictions was not issued for the purpose of prevention of COVID-19 and Omicron cases in the district, it was argued.

As such, it was prayed that the Court direct the Collector to ensure strict compliance to the initial order imposing Covid-19 curbs without any dilutions thereof and to prohibit CPI(M) from conducting their District Conference in violation of all protocols.

However, the State Attorney submitted before the Court that the said order was no longer in force since the District Collector had issued another order dated 20.01.2022 with more stringent restrictions. 

He added that subsequently, the Government has revisited the restrictions and the earlier Government Orders have been cancelled, and that the restrictions now in place are those brought out by Government Order dated 20.01.2022.

It was further pointed out that the Government is not looking at the Test Positivity Rate (TPR) and has classified the districts for containment and restrictions, based on the hospital admissions in each of the districts.

The classification as per the order dated 20.01.2022 is A, B and C and Kasargid falls in none of such categories, he argued.

To justify the same, it was stated that in Kasaragod 250 beds are kept exclusively for COVID 19 patients, of which only 89 beds are now occupied, which is only 36%. More statistics were provided regarding the preparedness of the district

The State Attorney further added that since the TPR in the different wards of the District is only around 5, there was no reason to entertain the writ petition.

However, the Court observed:

"We cannot but notice that even in Kasaragod District,  there is 36% admissions in the available ordinary COVID beds and 18% in ICU beds and fortunately no ventilator having been put to use for now....Going by the statistics put forth by the learned State Attorney and by reading the order dated 20.01.2022 and the classifications made therein, we cannot understand that there are relaxations made to the restrictions. Admittedly there are hospital admissions in the Kasaragod District and we are not apprised of the number of tests conducted which alone would enable consideration of whether the TPR is a reliable index to project the rate of infections"

The matter will be taken up again on January 24.

As per local media reports, the CPI(M) event which commenced today witnessed an attendance of more than 185 people. 

Case Title: Arun Raj P.N. v. State of Kerala & Ors

Citation: 2022 LiveLaw (Ker) 36

Click Here To Read/Download The Interim Order