In a notable order, the High Court of Kerala on Wednesday directed the Union Government to remove the border blockade imposed by Karnataka to allow entry for patients from Kerala to access emergency medical care in hospitals in Karnataka.
The Court held that Karnataka's road blockade resulted in the denial of access to health services, which amounted to infringement of right to life under Article 21. It also affected right to freedom of movement under Article 19(1)(d) of the Constitution.
The arterial roads that connect Mangalore in Karnataka to Kasaragod in Kerala are part of the National Highway network and it is therefore the duty of the Central Government to ensure that the said roads are kept free of blockades, observed the Court.
"We, therefore, direct the Central Government to forthwith intervene in the matter and ensure that the blockades erected by the State of Karnataka, on the National Highways connecting the said State to the State of Kerala, are removed forthwith, and without any further delay, so as to facilitate the free movement of vehicles carrying persons for urgent medical treatment, across the border between the two States.
We may re-iterate that we expect the Central Government to act expeditiously in this matter, taking note of the human lives that are at stake", the Court ordered.
The Court said that it had "no option but to pass the order" with a view to protect the fundamental rights of the people during the "grim period in our country's history". Any further delay in resolving the stalemate could be catastrophic for the residents of Kasargod District in Kerala, said the HC. It said that it felt "compelled" to issue directions to the Central Government today because any further delay in issuing directions could entail loss of precious lives of citizens.
The Court observed :
"The right of a citizen to move freely throughout the territory of India, subject to reasonable restrictions that may be imposed in the interests of the sovereignty and integrity of India, the security of the State, public order etc. is recognised under Art.19 (1)(d) of our Constitution. A citizen also has a fundamental right to life and personal liberty guaranteed to him by the State under Art.21 of our Constitution.
Both these rights are simultaneously infringed in the case of a resident of the State of Kerala when he/she is denied entry into the State of Karnataka for availing medical treatment, or is deprived of essential articles of food that are being transported into the State through blockades erected by the State of Karnataka.
We cannot forget that India is a signatory to the International Convention on Economic, Social and Cultural Rights, Art.12 of which obliges all State Parties to the Convention to recognise the right of everyone to the highest attainable standard of physical and mental health, and to take steps for the creation of conditions which would assure to all, medical service and medical attention in the event of sickness. Our Courts have since read in these obligations into the guarantee assured to our citizens under Art.21 of our Constitution.
We are also of the view that the restrictions imposed on the transportation of essential articles of food would amount to a breach of the rights protected under Arts.301-304 of our Constitution".
The Court also rejected the argument by Karnataka Government that Kerala HC has no jurisdiction over the issue.
"The fundamental rights guaranteed to each Citizen of India under our Constitution, are to be zealously protected by the State, which term refers jointly to the Centre, the States and the Union Territories that together constitute the Union of India. The said Federal principle is eloquently and succinctly expressed in Art.1 of our Constitution, which states "India, that is Bharat, shall be a Union of States".
The State Government of Karnataka cannot therefore be heard to contend that it is not obliged to respect the fundamental right of a citizen who resides outside its territorial limits. So long as it is an integral part of the Union of India, the State of Karnataka has necessarily to respect, and guarantee, the fundamental rights of a citizen of this country, irrespective of the place of his residence or domicile within the country. We sincerely hope that the State Government of Karnataka will take note of the said basic principles enshrined in our Constitution and take immediate steps to resolve the present stalemate".
The Court also observed that when a High Court of a State in the Union of India, finds and declares the actions of the executive Government of another State to be illegal and unconstitutional, the said State Government would be obliged, under the Constitution, to defer to the said declaration of law by a Constitutional Court of this Country, notwithstanding that the said Court is situated beyond the territorial limits of the said State.
A bench comprising Justices A K Jayasankaran Nambiar and Shaji P Chaly passed the interim order a Public Interest Litigation filed by the Kerala High Court Advocates Association, seeking directions for opening the road borders closed by Karnataka in the wake of COVID-19 pandemic.
The bench pointed out that "no doubt, restrictions may be imposed in times of a national emergency such as the present, but when the guidelines issued by the Central Government under the Disaster Management Act itself permit travel for urgent medical treatment, then the said guidelines have necessarily to be enforced by the Central Government through removal of the blockades that prevent such travel"
The Court passed the order in a hearing held via video-conferencing, after it was told that the mediation attempted by the Ministry of Home Affairs between the Chief Secretaries of both the states today evening did not yield any result.
Today afternoon, the Court had adjourned the hearing till 5.30 PM, to give an opportunity for the resolution of disputes through dialogue between two states at administrative levels.
The case pertains to blocking of National Highway by Karnataka, which resulted in denial of access to health services in Managaluru for Keralites residing near Karnataka border. After the 21-day national lockdown was declared on March 24, the authorities in Karnataka erected mud embankments on the arterial inter-state roads to Kerala. Seven patients have reportedly died after Karnataka police refused entry to ambulances ferrying them from places in border district of Kasargod in Kerala to Mangaluru, a preferred destination for treatment for border residents owing to proximity.
When the case was again taken up after the failed talks between the Secretaries, Mr. Prabhuling Navadgi, the Advocate General of Karnataka, raised objections regarding the maintainability of the PIL and also regarding the exercise of jurisdiction by the Kerala HC.
The AG argued that the cause of action arose entirely within the state of Karnataka and that part of it arose within Kerala. So, Kerala HC has no jurisdiction under Article 226(2) of the Constitution, the AG said. The alleged cause of action is denial of entry of patients from Kerala, which has taken place entirely within Karnataka. If at all any court has jurisdiction, it is the Karnataka HC or the Supreme Court, he said.
"If remote consequences of the alleged cause of action are taken into consideration, any HC will have jurisdiction over a matter outside its territorial jurisdiction", AG said.
He referred to the SC decision in Nawal Kishore Sharma v Union of India (2014) to buttress his argument.
Karnataka AG now responding to the earlier query by Justice Nambiar if Courts can pass declaratory relief.AG says that declaratory relief is also interlinked with cause of action. If HC has no jurisdiction to entertain the plea, it cannot grant any relief, he submits.— Live Law (@LiveLawIndia) April 1, 2020
Karnataka AG now responding to the earlier query by Justice Nambiar if Courts can pass declaratory relief.AG says that declaratory relief is also interlinked with cause of action. If HC has no jurisdiction to entertain the plea, it cannot grant any relief, he submits.
He also submitted that the the issue was essentially a dispute between two State Governments, and hence the matter should go to Supreme Court under its exclusive jurisdiction under Article 131 of the Constitution of India.
"This is a classic case under Article 131. The Court has to go behind the PIL to see the real nature of the dispute. SC has exclusive jurisdiction over inter-state disputes", he said.
He further submitted that the restrictions were imposed due to the sudden spike in COVID-19 cases in Kasargod districts.
"It (Kasargod) has registered at least 106 cases. 20 kilometers away, Mangaluru has only 9 cases. If we allow transport, transmission may take place, and will lead to drastic consequences", he said.
He further submitted that the Guidelines of the Ministry of Home Affairs are 'general guidelines' without statutory binding force, and states have been given leverage to address their specific issues.
The AG also suggested that Kerala Government should take pro active steps to attend to the medical needs of Kasargod district, by setting up make-shift hospitals.
Justice Nambiar said that it was an executive decision to be taken, which cannot have any bearing on the determination of the legal issues before the Court. The judge added that the Court would not accept any submission which calls for treating the people of Kerala and Karnataka as different citizens.
"Is it an option available to any state to choose between people who are ill and to sacrifice one for another?", Justice Nambiar asks.— Live Law (@LiveLawIndia) April 1, 2020
"Is it an option available to any state to choose between people who are ill and to sacrifice one for another?", Justice Nambiar asks.
The Central Government Counsel Jaishankar Nair urged the Court to refrain from passing any directions by saying that the Union Ministry has taken note of the issue, and a resolution was possible soon.
"The HC may not interfere as it is an administrative decision to be taken by the State Governments", the CGC said.
Earlier, during the afternoon session, Ranjith Thampan, Kerala AAG, read out an order issued by Karnataka Government, which exempted medical emergency cases from restrictions on entry from neighboring states. Karnataka blockade is against their own directions, he submitted.
P Ravindran, appearing for KHCAA, had submitted that directions are sought to Central Government to act under Article 256 to ensure that Karnataka government abides by the constitutional mandate.
"Karnataka's blockade has no support of law and is unconstitutional. National Highways are maintained by NHAI. Where is the power of State Government to block NH?", he had asked.
The Chief Minister of Kerala Pinarayi Vijayan had earlier written to the Prime Minster Narendra Modi seeking Central intervention in the matter, after talks between the Chief Secretaries of both states failed.
The Yediyurappa government stood firm on its decision citing the risk of COVID-19 infections from Kasargod district, which has the highest number of reported cases in Kerala.
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