Kerala High Court
Recently In Indian Young Lawyers ... vs . The on 27 November, 2018
Author: P.R. Ramachandra Menon
Bench: P.R. Ramachandra Menon
P.R. RAMACHANDRA MENON
&
N. ANIL KUMAR, JJ
..............................................................................
SSCR 22 & 23 OF 2018 AND W.P.
(C)Nos.35061, 35385, 35477,
35718, 35753, 36264, 36738,
37578, 37766, 38111, 38128 &
38413 of 2018
.........................................................................
Dated this the 27th November, 2018
ORDER
P.R. Ramachandra Menon, J.
The extreme hardships felt by the genuine pilgrims to have 'darsan' at Sabarimala, because of the alleged unreasonable restrictions imposed by the police curtailing the entry, the right of movement, the right to proceed in groups, the right to chant 'Sararanmanthras'/prayers, the right to remain at Sannidhanam, the right to offer various 'vazhipads' etc; in violation of their fundamental rights; under the guise of preparatory measures for setting the field to give effect to the verdict passed by the Apex Court recently in Indian Young Lawyers Association and others vs. the SSCR 22 OF 2018 & CONNECTED CASES 2 State of Kerala and others] [2018(4) KLT 373], striking down Rule 3(b) of the Kerala Hindu Places of Public Worship (Auhorisation of Entry)Rules, 1965, facilitating entry of women of all age groups form the basic challenge in these writ petitions filed by different petitioners. Reports of the Special Commissioner, Sabarimala appointed by this Court on the relevant aspects are separately numbered as SSCRs. In some of the cases, there is a challenge with reference to the order issued by the District Magistrate, Pathanamthitta, under Section 144 of the Cr.PC. In almost all the cases, the course pursued by the Government officials, particularly the 'Police excess' is sought to be deprecated. It is contended that the Devaswom Board is simply dancing to the tune of the Government and the Government has virtually taken over the Sabarimala pilgrimage, for which they do not have any power, authority or control in any manner under any law,including the Travancore Hindu Religious Institutions Act (TCHRI ACT).
2. Sabarimala is a Unique shrine, deep in the SSCR 22 OF 2018 & CONNECTED CASES 3 forest, surrounded by Periyar Tiger reserve, at an average height of 490 MSL. The Temple opens only for limited number of days every year, attracting a crowd/pilgrims of nearly 3.6 crores from different parts of the country and it involves trekking of about '5' Kms up the hill; same route/distance to reach back at Pampa, down the hill. Most of the pilgrims come after performing various rituals/'vratha' and the pilgrims are always reminded as an embodiment of the Deity himself [TATAWAMASI-Tad Thwam-Asi]. This Temple is supposed to be the most unique symbol of Secularism, as almost all the pilgrims going there via Erumeli, worship in a Mosque situated there and many seek the blessings of 'Vavar'-a close aide/friend of the Deity-positioned at Sannidhanam.
3. On pronouncing the declaratory judgment of the Apex Court (supra) there was an attempt to proceed to Sabarimala by some alleged activists, who were given full support by the Government/Police, which was sought to be resisted from different corners. Because of the tense situation, they had to retreat. The State beefed up the Security and deployed an unprecedented number of SSCR 22 OF 2018 & CONNECTED CASES 4 policemen/officers and imposed several curtail measures. Conveyance from Nilakkal to Pampa (solely by public transport-KSRTC) was restricted, Hotels/Annadana Mandapam were ordered to be closed down and the time to complete the trekking and 'darsan' was allegedly reduced. There was restriction in chanting 'Saranamanthra'/prayers as well; all of which triggered the panic button. Considering the protest from different corners, based on the report of the police, Sec.144 Cr.P.C. was declared by the Executive Magistrate/District Collector, Pathanamthitta.
4. The crux of the contentions raised in various writ petitions are to the following effect:
i) The petitioners point out that the entire area at Sannidhanam is cordoned off by the police, placing barriers and hence the free entry to pilgrims and their movement is much restricted. It is stated that the presence of innumerable number of policemen at Sannidhanam, absolutely for no reason, is causing anxiety in the minds of the pilgrims,besides causing various hurdles. The SSCR 22 OF 2018 & CONNECTED CASES 5 said restrictions are stated as introduced by the police under the cover that the area has been declared as a 'high security zone' under Section 83(1) of the Kerala Police Act. It is contended that, if at all any restriction is to be imposed, it can be done only by the Government and not by the police, as discernible from sub section 2 of section 83 of the Kerala Police Act [WP(C)38128/18].
ii) It is alleged that the police is
preventing the pilgrims on the way at
different places and interrogates, as if they
were criminals. 'Namajapam', chanting of
'saranamanthra' and other prayers are
forcefully prohibited, referring to Section
144 order issued by the District Magistrate, for which neither the police nor the Government does have any power at all, in view of the law declared by the Supreme Court in Gulam Abbas vs. State of U.P. [AIR 1981 SC 2198] (paragraph 30). Reference is made to the 'Covenant' entered into by the Rulers of SSCR 22 OF 2018 & CONNECTED CASES 6 'Travancore & Cochin for the formation of United State of 'Travancore & Cochin', with the concurrence and guarantee of the Govt. of India, to give effect to all provisions, which include the affairs of Travancore Devaswom as well; particularly under 'Article 8'. TCHRI Act itself has been enacted invoking the power under the Covenent [Article 8(h)], by virtue of which, the 'Act' has to be read as part of the Covenant, whereby, the rights and liberties of the pilgrims have to be protected. There is no role for the State to play and the duties in this regard are to be satisfied by the Devaswom Board and if the same is not done, it is for the Central Government to intervene and not for the State Government. Despite this, the State has crossed the borders and has taken over the management and affairs of the temple which is liable to be interdicted [WP(C) 38413/18].
iii) There is no rationale in restricting the movement of KSRTC buses, which is the only SSCR 22 OF 2018 & CONNECTED CASES 7 means of transport between Nilakkal and Pampa(22 Kms) as entry for private vehicles beyond Nilakkal is prohibited. At Pampa,there are no hotels, no toilet facilities and no resting places are available. Everything already in existence has been washed off in the recent floods and the plight of the pilgrims is made pitiable. The stand of Government/Devaswom/Police that there is some security threat, is not correct or sustainable. According to the petitioners 99% of the pilgrims are genuine devotees and if at all anybody intrudes, it is for the police to identify and get them out, with regard to which there is no dispute. But this shall not be a green card for the police to turn against the genuine pilgrims and curtail their rights in offering their prayers and worshipping the Deity. It is also pointed out that Section 144 of the Cr.P.C. is not at all attracted, nor could be imposed en route Pampa and at Sannidhanam. The pilgrims are taken into SSCR 22 OF 2018 & CONNECTED CASES 8 custody at Sannidhanam for chanting 'Saranamanthra' in groups and they are driven back to Pampa, then and there at night. Reference is also made to some circular issued by the police to get a 'pass' for the vehicles in which the pilgrims are coming to Sabarimala, virtually to the effect that after fixing the 'Irumudikkettu', as per rituals, the pilgrims have to go to police station first, to get a 'pass' and there after to visit Lord Ayyappa, which cannot but be deprecated. In the said circumstance, monitoring by this Court or by appointing a Committee is sought for[WP(C) 38111/18].
iv) Grievance of the petitioners [in WP(C)35061/18] is mainly with regard to the alleged atrocities made by the police. Some photographs have been produced as Ext.P5, which shows the police force charging against the vehicles which are parked on the side of the road without any provocation, causing serious damage. Pilgrims are being arrested, SSCR 22 OF 2018 & CONNECTED CASES 9 for having participated in 'Namajapam', which can never be an offence at all. Right to worship is forcefully prohibited and the Rule of Law is thrown to wind.
(v) In W.P(C)35718 of 2018, besides
challenging the time restrictions imposed by
the police, the petitioner seeks to prevent entry of any Non-Hindu in Sabarimala temple by virtue of the mandate under Rule 3(a) of the Kerala Hindu Places of Public Worship (Authorization of Entry)Rules. The petitioner contends that there is unreasonable restriction in chanting 'saranamanthra' and that pilgrims are virtually scared because of the pressure exerted by the police in this regard even by taking them to custody, virtually trying to make the pilgrimage to Sabarimala to be a funeral procession. Chanting of 'saranamanthra' is an integral part of prayers and worship. Reliance is sought to be placed on the verdict passed by the Apex Curt in Adi Saiva Sivachariyargal SSCR 22 OF 2018 & CONNECTED CASES 10 Nala Sangam and others vs. Government of Tamil Nadu and another [(2016) 2 SCC 725] (paragraph
42), where the relevant portion of the larger Bench verdict of the Apex court in Commissioner, Hindu Religious Endowments vs. Sri Lakshmindra Thirtha Swamiar of Shri Shirur Mutt (AIR 1954 SC 282) case has been extracted. Time restrictions and 'Police excess' causing serious hardships to the pilgrims are the subject matter of challenge in WP(C) 36738/18 as well.
(vi) W.P(C)35385 OF 2018 mainly deals with the time restriction imposed by the police, besides challenging the Government interference. It is contended that, in so far as the Government and Devaswom concede that chanting of 'saranamanthra' is not objectionable, how can a "protest" be inferred while chanting 'saranamanthra'? It is pointed out that the unlawful restrictions imposed by the police, preventing many of the pilgrims and restricting time of darsan, SSCR 22 OF 2018 & CONNECTED CASES 11 simply stating that they had participated in some Dharna/protests or were involved in some crimes is absolutely without any basis. It is stated that even the convicts are having a right to pray in Temples and their entry cannot be prevented. There is no law in the country which prevents any such right of a convict. It is also pointed out that action is being taken by the police only on 'pick and choose' basis and even the pilgrims who were sleeping after reaching the Sannidhanam were woken up and sent back to Pampa during odd hours. This is contrary to the law declared by the Apex Court in Ramlila Maidan Incident vs. Home Secretary, Union of India and others [(2012)5 SCC 1]), where it was held that disturbing the sleep would amount to violation of human rights and if this be so, the offending police officers will have to be proceeded against by registering cases against them.
(vii) W.P(C)35753 of 2018 is filed
SSCR 22 OF 2018 & CONNECTED CASES
12
challenging the alleged atrocities of the
police and seek for legal action against them. Direction is sought, to restrain the police from creating an unruly atmosphere in the name of mob control. Government/Police interference in the affairs of Sabarimala Temple is sought to be interdicted in WP(C) 37578/18, besides seeking for providing basic amenities, while somewhat similar reliefs are prayed for in WP(C) 36738/18.
(viii) In W.P(C) 37766 of 2018, it is contended that no basic amenities have been provided at Sannidhanam. Section 144 order has been passed only to oppress the political opponents and that the Government cannot use it for implementing their political agenda. It is stated that members of various Hindu organisations are being prevented from pilgrimage forcefully. The said organisations are not banned and as such, the action on the part of the police is high-handed. It is also pointed out that checking or filtering or SSCR 22 OF 2018 & CONNECTED CASES 13 such other exercise, if at all any, might be completed before Pampa, by virtue of the facilities/infrastructure available at different points as above and once the pilgrims proceed from Pampa, they may not be disturbed till the 'darsan' is completed. There is also a prayer to have the matter be monitored by a retired Judge of this Court and also by a suitable retired police officer of the choice of this Court; to ensure normalcy and smooth 'darsan'.
(ix) Although various prayers have been raised in W.P(C) 36264 of 2018, when the matter came up for consideration earlier, prayers at 'c', 'd', 'e', 'f' and 'h' alone were ordered to be considered. It was conceded that the prayers under 'a' and 'b' were being taken out separately. It is stated that, as on date, there is no problem with regard to the aspect raised in prayer 'c', which is stated as not pressed, for the time being. The right of any SSCR 22 OF 2018 & CONNECTED CASES 14 pilgrim to offer the prayers and even to protest(whether it be in the temple or elsewhere) is sought to be asserted. The alleged lapse on the part of the Devaswom, particularly in conducting the 'Annadanam', the delay and the outsourcing of the duty in providing Annadanam to some other organization from Andhara Pradesh are also brought on record by filing a separate I.A. It is contended that the police can intervene to remove the 'protest', only if it leads to violence and there is no right to prevent any member of any organisation from undertaking the pilgrimage.
5. Arguments were advanced on behalf of the petitioners, mainly by Sri.K.Ramakumar, Sri.Govind K Bharathan, Sri.G.Sreekumar (Senior Advocates), Sri.D. Somasundaram, Shri. M.P.Asokkumar,Sri.S.Subhash Chand, Sri.P.Sreekumar, Sri. R.Krishna Raj, Sri. Sajithkumar V., Sri P. Vijayakumar, Shri Jairam V. Menon and Shri Benoj C. Augustine. We heard Sri. SudhakarPrasad, the Learned Advocate General on behalf of the State and SSCR 22 OF 2018 & CONNECTED CASES 15 other Departments including the Police. Sri. K. Sasikumar and Sri. S Rajmohan made the submissions on behalf of the Travancore Devaswom Board.
6. Pursuant to the order dated 19.11.2018 passed by this Court, an affidavit dated 22.11.2018 has been filed by the State Police Chief, referring to the sequence of events. It is stated that the police has to be more vigilant in view of the particular turn of events, after declaration of the law by the Apex Court vide decision reported in Indian Young Lawyers Association vs. State of Kerala] [2018(4) KLT 373] whereby the right of entry to women between the age group of 10 to 50 has been settled. It being the law of the land under Article 141 of the Constitution of India, there is a duty on every civil and judicial institution to act in aid of the Supreme Court as envisaged under Article 144 and it is more so on the part of the State to take appropriate measures to see that the judgment is given effect to. It is in the said circumstance, that various steps/schemes were designed and implemented with regard to pilgrimage to Sabarimala this year, SSCR 22 OF 2018 & CONNECTED CASES 16 particulars of which have been explained in the affidavit. Justification in having issued an order under Section 144 of the Cr.P.C by the District Magistrate is explained with reference to the law declared by the Apex Court in State of Karnataka and another vs. Dr. Praveen Bhai Thogadia[(2004)4 SCC 684] (paragraph 6,7 and 8). It has been held in paragraph 6 of the said verdict that the courts shall not normally interfere with the law and order. Paragraph 7 says that communal harmony should not be made to suffer. The Bench has observed in paragraph 8 that the High Court shall not act as an appellate authority; unless the order is patently illegal and without jurisdiction or with ulterior motives and on extraneous consideration or political victimization. Reliance is sought to be placed on the mandate of Article 144 of the Constitution of India by making a reference to 1999 KHC 1223 [Bharat Builder Pvt. Ltd & others vs. Parijat Flat Owners Coop.Housing Society](paragraph 7 and 8). Further reliance is sought to be placed on Tripati Balaji Developers (P) Ltd. vs. State of Bihar [2004 KHC 832 ](paragraph 8) asserting that the State is acting SSCR 22 OF 2018 & CONNECTED CASES 17 to aid the Apex Court and as such, there is no capricious act on the part of the State.
7. The learned Advocate General proceeded to explain the version given by the State Police Chief in various paragraphs of the affidavit filed before this Court. There is a brief description with regard to the aftermath of the recent flood occurred in Kerala. It is pointed out that a Joint Meeting was convened on 29.08.2018 in the Government Secretariat, presided by the Hon'ble Chief Minister in presence of the Hon'ble Ministers for Co-operation, Devaswom, Public Works Department and the Revenue, where a decision was taken to change the base camp from Pampa to Nilakkal; the entire infrastructure available at Pampa having been washed off in the recent floods. It is stated that necessary 'bandobust' arrangements have been made (general as well as law and order). Reference is also made to the various crimes involving the mob attack on journalists and such other persons on different dates by 'protesters' who wanted to agitate against the verdict passed by the Apex Court granting entry to women between the age group of 10 to 50. So as to SSCR 22 OF 2018 & CONNECTED CASES 18 maintain law and order situation, appropriate steps were taken by the police and several persons had to be taken to custody. There is a mention with regard to the declaration of an order under Section 144 Cr.P.C. The proceedings in respect of 'Masa pooja' (Thulam) from 16.10.2018 to 22.10.2018 and the incidents occurred have been described in paragraphs 6 to 25. So also, there is a description with regard to the incident which occurred on the eve of 5th November, 2018(Chithira Aatta Vishesha pooja). There is a further description with regard to the ongoing acts and events from opening of the Temple on the evening on 16.11.2018. It is stated that, as per the intelligence report, different segments/organisations/ outfits are planning to create law and order situation, which has to be tackled effectively.
8. It is asserted in the affidavit that Section 144 Cr.PC order will not be applicable to genuine pilgrims and there is no prevention or prohibition with regard to chanting of prayers either in individual capacity or in group. 'Paragraph 30' of the said affidavit deals with arrangments made to ensure SSCR 22 OF 2018 & CONNECTED CASES 19 continuous flow of pilgrims from Nilkkal to Pampa and back in KSRTC Buses, so as to de-congest Nilakkal, Pampa and Sannidanam. There is a further assertion in this regard elsewhere as well. If this is the intent, why restriction was imposed upon the KSRTC from plying the buses, breaking the trips during day time and also at night is not satisfactorily answered. This is more so, since regulating the crowd could be thought about only as part of the crowd management scheme, i.e. to avoid congestion. When the crowd was very lean, why such restriction was made, causing undue hardships to the pilgrims, who were made to wait at different places, without facilities for food, water or resting places is not known. The issue gathers momentum, because, the right to operate conveyance between Nilakkal and Pampa covering a distance of nearly 22 Kms is exclusively vested upon the KSRTC as per the orders passed by this Court and no private vehicle is permitted to take anybody from Nilakkal to Pampa or back.
9. As mentioned already, the reason for tight security is sought to be explained in paragraph 31 of SSCR 22 OF 2018 & CONNECTED CASES 20 the affidavit, pointing out that there is threat from the fundamentalist elements, terrorists and other anti socialists. The matter was brought to the notice of the Government by the State Police Chief, vide a report; based on which, Ext.R6(i) Notification was issued on 16.10.2018 declaring the places and routes concerned as 'Special Security Zone' under Section 83(1) of the Kerala Police Act, 2011. It will be worthwhile to extract 'paragraph 35' dealing with the order under Section 144 Cr PC and the further steps taken in this regard.
35. No restriction have been put on devotees by the Police. On the basis of the report of the District Police Chief Pathanamthitta and the District Police Chief, Kottayam, orders under Section 144 Cr.PC have been issued at various places like Vadasserikkara, Nilakkal, Pampa, Sannidhanam, Erumely etc. By virtue of this order, directions have been issued to the protestors not to take Processions, Jathas, not to hold Dharnas/cause Road Blocks, blocking of pilgrims etc. The Order in terms of 144, Cr.PC prohibits only marches, SSCR 22 OF 2018 & CONNECTED CASES 21 unlawful assemblies and group prayers in the form of protests. 144 Cr.PC is not applicable to the devotees coming to the Sabarimala Temple for darshan, even if they come in groups. The same does not in any way prohibit or prevent in any manner the darshan of the devotees, either individually or in groups, or the movement of their vehicles. The order does not prohibit chanting of Sarana Mantras by devotees, either individually or in groups. The same only intends to prohibit protests by way of chanting Sarana Mantras by persons who assemble with purposeful intention to create a law and order situation in the Shrine. The police have neither taken nor will take any action against mere chanting of Sarana Mantra by the devotees, either individually or in groups. The police have taken recourse to action only in the case of unlawful assemblies which tend to create obstruction or annoyance or injury to any genuine devotees or the law implementing agency and also chant Sarana mantra in the form of protests. Upto 20.11.2018, as many as 1,62,000 number of pilgrims have visited Sabarimala this Manadala season. Many number of them came in SSCR 22 OF 2018 & CONNECTED CASES 22 groups in various vehicles (4576 Light Motor Vehicles, 3310 Medium Vehicles/Tempo Travellers and 989 Heavy vehicles/buses). The 144 Cr.PC order will not affect in any way the true devotees or pilgrims. This is mainly for keeping the order and maintaining peace in the area which will facilitate darshan by all true devotees.
It is stated that there is no prohibition to 'Namajapam', either as individual or in groups and that the order u/s 144 Cr. P.C will not be applicable in such cases, but for any act or deed involving 'protest' or unlawful assembly. It is conceded during the course of hearing as well, that Sec.144 order is not attracted or applicable in respect of genuine pilgrims.
10. The particulars of the climbing arrangements have been explained in paragraph 37, while the steps with regard to 'Neyyabhishekam' are given in paragraph
38. It is stated that the pilgrims on reaching at Sabarimala Sannidhanam could stay there in the booked accommodation or utilising 'viri' and that the KSRTC is running 'full time' chain services. It is stated SSCR 22 OF 2018 & CONNECTED CASES 23 that no restrictions are imposed by police, but for regulating the measures to avoid congestion.
11. Paragraph 40 of the affidavit deals with an incident which occurred in the 'Nadappanthal'(resting place) on 19.11.2018. Particulars of various persons taken to custody, who are allegedly having some involvement in various crimes are mentioned therein. It is stated in the next paragraph, that aged persons/children/women/differently abled persons are being allowed to take rest in the 'Nadappanthal', which according to the police is declared as a sterile zone. Here, we find it difficult to approve the climbing time/arrangements as illustrated. Pilgrims consists of little children, women, aged and ailing persons as well as physically challenged or differently abled persons, who cannot undertake the uphill climb of nearly 4.5 Kms at a stretch. Even healthy pilgrims/youth may develop heart problems, loss of breath etc, unless the climb is done slowly and taking rest at different points, which is being advised by the Medical team deployed there. Several casualties are being reported every year. Once the pilgrims reach the top, they cannot be forcefully SSCR 22 OF 2018 & CONNECTED CASES 24 sent back on the same day, unless they so choose to do. The so-called security arrangements shall never place any hurdle in this regard.
12. When the matter came up for consideration, before this Court earlier, an instance of 'water spraying' in the Nadappanthal was brought to the notice of this Court and clarification was sought for. This has been explained in 'paragraph 42' of the affidavit stating that no such act was done by the police and that washing of Nadappanthal was made by the Fire and Rescue Department; adding that the same is part of regular exercise, when quite a lot of mud and dust get collected there. We accept the said explanation given by the State Police Chief, as put forth by the learned Advocate General.
13. Coming to 'paragraph 43', it is stated that no restriction has been imposed by the police with regard to the opening of hotels or 'Annadana counter' which function 24 hours; nor is there any instance with regard to 'locking of rooms' for accommodation provided by the Devaswom; adding that there is no restriction or intent to bring down the number of pilgrims in any SSCR 22 OF 2018 & CONNECTED CASES 25 manner. But then, this Court required to clarify the position with reference to some notices dated 16.11.2018 issued by the 'Police Controller' at Sannidanam, which came to the hands of this Court. Copies of the said proceedings were handed over to the learned Advocate General. The first notice reads as follows:
" Sub: Security check up - Time
schedule for closing the Aravana
counter - requested - Reg.
In the wake of Crowd management
scheme at Sannidhanam, you are
requested to initiate necessary
arrangement to close the Aravana
Counter at 10 PM every day.".
(emphasis is supplied).
The second notice reads as follows:
" Sub: Security check up -
Time schedule for closing the
Aravana counter - requested - Reg.
In the wake of Crowd Management
scheme at Sannidhanam, you are
requested to initiate necessary
arrangement to close the Annadhana
SSCR 22 OF 2018 & CONNECTED CASES
26
Counter at 11 PM and Prasadam
Counter at 10 PM every day."
(emphasis is supplied).
The third notice reads as follows:
" Sub: Security check up -
Handing over of keys of all
buildings intended for the
accommodation of pilgrims -
Sannidhanam - requested - Reg.
In the wake of the opening of
Sabarimala temple for Mandala Pooja on 17.11.2018, it is decided to conduct a thorough combing operation at all accommodation facilities available at Sannidhanam. Hence it is requested to hand over keys of all buildings intended for accommodation of pilgrims to the Station House Officer, Sannidhanam, on 16.11.2018 itself.
(emphasis is supplied).
This Court asked an explanation, under what circumstance did the police issue such notice to close down all the accommodation of the pilgrims on SSCR 22 OF 2018 & CONNECTED CASES 27 16.11.2018 when the 'Nada' was to be opened, which was sure to affect very much adversely, the persons who had booked accommodation and were reaching Sannidhanam with ladies, children, aged and ailing members. This Court also asked the learned Advocate General to clarify as to why notice was issued on 16.11.2018 to close down the 'Annadana counter' at 11.00 p.m. and Prasada counter at 10.00 p.m. everyday. This is more so, because the Temple will be closed only by 11.00 p.m. after 'Harivarasanam' and mostly, the pilgrims will be coming down for taking food only after closing the Temple. By that time, if the source of food is to be closed, coupled with locking out of the accommodation booked, because of the notice issued by the police, the consequences/suffering of such pilgrims will be beyond comprehension. In view of the admitted fact that no such facility is available in Pampa, the pilgrims cannot expect it there as well. Even if they trek down the same day at night, no conveyance will be available to reach Nilakkal (22 Kms away from Pampa) since KSRTC services have been interdicted during such time, allegedly as directed by the police. How the children, SSCR 22 OF 2018 & CONNECTED CASES 28 aged and ailing persons were to manage themselves without food or accommodation, would have definitely triggered the panic button in the minds of pilgrims and this worried this Court as well and hence the question.
14. The learned Advocate General, after taking time and getting instructions, submitted that he was never told of issuance of any such notice earlier, till this point of time. The learned Advocate General however adds that these notices were withdrawn on the same day, by the very same authority, i.e. the Police Controller at Sannidhanam. A copy of the notice dated 16.11.2018 with regard to withdrawal of the notices in respect of closing of 'Annadana' and 'Aravana counter' is placed for consideration; but no such withdrawal notice with regard to closing down of accommodation facilities is placed before this Court; but for stating that it was also withdrawn on the very same date.
15. Factum of withdrawal may be true. But the question is something else. Withdrawal of notice by itself is a pointer to the fact that its issuance was not correct or sustainable and that the wisdom came to SSCR 22 OF 2018 & CONNECTED CASES 29 the officer only much later. Why such notice was issued ordering to close down the Annadana counter at 11.00 p.m. every day and whether the pilgrims, including the children and aged people, as mentioned above, who may be having various ailments were made to suffer is not answered at all; which cannot but be deprecated in the strongest possible words. Whether it was an act of prudent management or otherwise, is a question for 'self- introspection'. We leave it there.
16. The State Police Chief explains the particulars of officers deployed at Sabarimala in 'paragraph 47' of the affidavit. Normally, we are not interested as to the details of officers and it is for the State Police Chief or such other authority to identify the officers to be posted. A question was mooted in this regard earlier, because way back in August, 2018 itself, the necessity to constitute a proper 'Crowd Management Team', with proper and sufficiently experienced persons at Sabarimala, was brought to the notice of this Court by the Special Commissioner as per his report, SM.No.19/2018 dated 30.08.2018, which forms the subject matter of SSCR 13 SSCR 22 OF 2018 & CONNECTED CASES 30 of 2018. The Special Commissioner suggested that the team might be headed by Mr.A. Hemachandran, IPS,DGP- presently working as Director of Fire and Rescue Services with such other officers/Members as given below:
Chairman of the Core Committee:
Shri.A. Hemachandran,IPS, (DGP, now working as Director of Fire and Rescue Services ).
Members:-
1. Shri Anantha Krishnan IPS (ADGP, now functiong as Chief Police Co-ordinator Sabarimala (in charge)
2. Shri Manoj Abraham IPS, Inspector General of Police Thiruvananthapuram Range
3. Shri T.Narayanan IPS, District Police Chief Pathanamthitta -
4. Shri Debesh Kumar Behra IPS
5. Shri Harishankar IPS
6. Dr. Arul R.B. Krishna IPS
7. Shri G. Vijayan, Deputy Commandant NDRF.
17. Time was sought for, from the part of the Government, to get instructions. Later, when the matter came up for consideration on 01.10.2018, this Court observed that a Lady IPS officer, preferably in SSCR 22 OF 2018 & CONNECTED CASES 31 the cadre of I.G or atleast in the rank of Superintendent of Police also be included as a Member of the Crowd Management Team. This was more so, because large number of women and children pilgrims, may come to Sabarimala. Time was sought for to get instructions and several adjournments were given.
Still, no affidavit or statement has been filed from the part of the Government so far, as to why the team suggested by the Special Commissioner is not proper or feasible or not liable to be accepted. It was in the said circumstance, that the particulars of the officers now deployed were sought for, to ascertain whether it would be enough to meet the need of the hour. Paragraph 47 of the affidavit states that the officers now deployed are having Sabarimala experience by way of different spells. We do not find it necessary to go into the minute aspects any further.
18. In 'paragraph 49' of the affidavit, reference is made to Ext.R6(m) Circular dated 17.11.2018 issued by the General Secretary of a political party, giving instructions to the persons concerned to assemble at Sannidanam, which according to the police, is a plan to SSCR 22 OF 2018 & CONNECTED CASES 32 disturb the pilgrims, in promotion of their unlawful designs. It is with reference to the above instance, that the State Police Chief seeks to pass some orders, in paragraph 52, so as to enable the Police to maintain the law and order situation.
19. The petitioners assert that the Police does not have any power to impose restrictions according their whims and fancies, merely with reference to Section 144 Cr.P.C or with reference to the mandate of Section 83 of the Kerala Police Act. The contention is that, though power is vested with the Government under Section 83(1) to issue notification, declaring a particular area as a 'Special Security Zone', power to order restrictions, if at all any to be imposed as envisaged under sub section (2) of Section 83 of the Kerala Police Act, is still vested with the Government and not upon the Police. If the Government issues any such restriction under sub section (2) of section 83, based on the notification issued under sub section (1), it becomes open for the Police to issue appropriate directions to all concerned, so as to give effect to "such restrictions" (restrictions given by the SSCR 22 OF 2018 & CONNECTED CASES 33 Government). The learned Advocate General concedes that no such restriction has ever been issued by the Government in terms of sub section (2) of section 83 of the Kerala Police Act. It is stated that the restrictions, including the declaration of various places as sterile zones ( Nadappanthal, Thirumuttam etc) have been issued by the Police and that the same is sustainable to give effect to the order issued under Section 144 of the Cr.P.C. No such power is demonstrated as flowing from Section 144 Cr.P.C or any other provisions of law or any binding precedents in this regard; conferring power and authority on the Police to pass or implement any such orders of their own.
20. Despite our best efforts, we could not persuade ourselves to agree to the proposition made by the learned Advocate General, that Section 144 of the Cr.P.C. gives any power to the Police, to contribute, add or delete or modify something more to Section 144 order passed by the Executive Magistrate/District Magistrate, to have it implemented. In so far as it is conceded that the Government has not issued any SSCR 22 OF 2018 & CONNECTED CASES 34 restriction in terms of sub section (2) of Section 83 of the Kerala Police Act, all unilateral restrictions imposed by the Police except to the minimum required extent to meet the law and order situation shall stand deleted, particularly with regard to the right of the pilgrims to conduct 'Namajapam' and chanting 'Saranamanthra'. So far as it does not amount to any 'protest' or demonstration or design to indulge in any unlawful act or instigating others to indulge in any such unlawful act; affecting the law and order situation, there shall be no intervention from the part of the police adversely affecting the rights of the pilgrims or as part of the "Crowd Management Scheme" on the request of the Travancore Devaswom Board. This Court finds it appropriate to cause reasonable restrictions to the limited extent of managing the crowd to an appropriate extent, both at the Thirumuttam, Nadapanthal and such other key places.
21. Coming to Nadappanthal, we find it appropriate to have it reserved for children, women, ailing persons, physically challenged persons and also senior citizens. This filtering can be done by the Police at SSCR 22 OF 2018 & CONNECTED CASES 35 the entry points of 'Nadapanthal' on the southern side as well as on the northern end near the stage or such other appropriate place. In view of the apprehension expressed by the State Police Chief that if at all ladies within the age group of 10 to 50 reach Sannidhanam, there may be a chance for convergence of crowd in the 'Nadappanthal' raising protests, the above 'filtering exercise' will facilitate the management of crowd to appropriate extent. That apart, it is also possible for the Police to segregate the incoming crowd and also the persons who are permitted to take rest or place 'viri in the 'Nadappanthal' by appropriate measures. The identified/filtered pilgrims as above shall be permitted to take rest, place 'viri' and to have night halt to the said extent, in the Nadapanthal.
22. It is brought to the notice of this Court that because of the recent floods, reptiles have changed their habitat and enormous presence is noted at many places near Sannidhanam. This Court is given to understand that two days ago, a 'Viper' was caught by snake catchers of the Forest Department from the 'Nadappanthal' and that altogether, nearly 60 snakes SSCR 22 OF 2018 & CONNECTED CASES 36 have been caught by the experts/staff of the Forest Department and have been released in the forest. It is also brought to the notice of this Court that the menace because of the 'Wild Boars' near Nadappanthal, Thirumuttam and such other premises near Sannidhanam is quite high; particularly to the children and the ailing and aged devotees. Appropriate steps shall be taken by the Forest Department to curb the menace. A permanent solution can be thought about in due course.
23. The Annadanam at Sannidhanam, Pampa and Nilakkal shall continue round the clock, catering to the needs of the pilgrims. Sufficient arrangements shall be made by the Devaswom Board in this regard. Functioning of Hotels/food stalls by the other segments shall be subject to the terms and conditions of the tender. Supply of food, from whatever source, might be monitored by the authorities of the Food Safety Department, to ensure the quality and quantity in all respects.
24. As asserted by the State Police Chief in 'paragraph 38' of the affidavit, there has to be continuous running of the chain services by the KSRTC, SSCR 22 OF 2018 & CONNECTED CASES 37 as permitted by this Court, carrying passengers from Nilakkal to Pampa and back. This has to be done as assured and undertaken by them by the KSRTC as taken note of by this Court in the common judgment dated 01.11.2018 in W.P(C)Nos.30281,30719 and 31939 of 2018. There shall not be any interruption, whether it be during day time or night, except for reasonable regulation to be imposed by the Police as part of proper Crowd Management. When crowd or congestion is felt beyond the optimum limits, it is open for the Police to regulate the crowd to an appropriate extent.
25. It shall be the duty of the Devaswom Board to provide the basic facilities, particularly in the matter of toilets at Sannidhanam, Pampa and Nilakkal. It is brought to the notice of this Court that many toilets have no proper doors or latches and there is scarcity of water as well. If it is true, the same has to be rectified on war footing by the Devaswom Board, providing necessary remedial measures. So also, it shall be the duty of the Devaswom Board as well as Kerala Water Authority to ensure that sufficient drinking water facility is arranged for the pilgrims SSCR 22 OF 2018 & CONNECTED CASES 38 and all concerned at Sannidhanam, Pampa, Nilakkal and along the trekking routes.
26. In SSCR 23 of 2018, the Special Commissioner has brought to the notice of this Court that because of the course pursued by the police imposing restrictions, access to the 'Mahakanikka' is virtually denied to the pilgrims and necessary orders are to be issued in this regard as well. In view of the discussion made above and the orders/directions/declaration already passed, it shall be ensured by the police that there is proper access for the pilgrims to the "Mahakanikka" placed at the lower Thirumuttam, enabling the devotees to deposit their offerings in the 'Mahakanikka'/Hundi.
27. With reference to the contents of 'paragraph 33' of the affidavit, the learned Advocate General submits that details of 'Bandobust' arrangements, particularly in respect of the 'Scheme for management of Women crowd' are ready to be placed before this Court in a 'sealed cover'. We do not find it necessary to go into those aspects, since the same is exclusively within the domain of the Police. In the said circumstance, the 'sealed cover' is returned to the SSCR 22 OF 2018 & CONNECTED CASES 39 Advocate General; unopened.
28. Incidentally, we would like to make it clear that the interference made by this Court to the above extent, removing the restrictions, to the extent found as unreasonable, at the same time sustaining reasonable restrictions, it shall not be misused by the pilgrims or anybody proclaiming themselves as pilgrims, causing the area as a place for protest. 'Peaceful darsan' for all concerned is of paramount importance and that any attempt to thwart this from any corner is liable to be checked and interfered by the Police, who is duty bound to enforce the law and order situation. Reasonable extent of search, interrogation and such other process to streamline the situation and to provide peaceful darsan, which is larger interest, could be made by the Police and all stake holders are required to co-operate with such efforts taken by the Police in all respects.
29. It is made clear that we are not examining the merit of Section 144 Cr PC order issued by the District Magistrate, Pathanamthitta, correctness of which is under challenge in a batch of Writ petitions (i.e. W.P(C)No.37645 of 2018 and connected cases) listed for SSCR 22 OF 2018 & CONNECTED CASES 40 consideration on 06.12.2018. As such, the said order remains, as it is, for the time being.
30. Shri K.Sasikumar, the learned Standing Counsel for the Travancore Devaswom Board submits that the Special Commissioner appointed by this Court is having pivotal role in ensuring proper and smooth pilgrimage, co-ordinating all the departments and officers concerned. Reference is made to the specific observations and directions given by a Division Bench of this court 2½ decades ago, as per the judgment dated 05.12.1992 in O.P.No.15667 of 1992. It will be worthwhile to have the relevant paragraph extracted to alert all concerned, as to the role and authority of the Special Commissioner appointed by this Court, which was done with the involvement of all the departments concerned, including the Chief Secretary of the State.
"A perusal of the various
statements filed before us and the
submissions made by counsel would
go to show that though each one of
them is claiming that they are
doing their best, there is no
rapport and co-ordination and
SSCR 22 OF 2018 & CONNECTED CASES
41
effective control, by taking on the
spot decision in many of the major
matters. We are of the view that
in order to make many of the
directions which we have given
above workable in an effective or
meaningful manner, a special
commissioner should be appointed by this court, who will be in over-all charge of the entire situation. We accordingly appoint Shri N. Krishnan Nair, Dist. Judge, Alappuzha as Special Commissioner to function under the directions and supervision of this Court, to have an over-all charge of the entire mandalam and makaravilakku festival, from today onwards. Shri N. Krishnan Nair, District Judge, Alappuzha will forthwith enter on his job as Special Commissioner appointed by this Court. We hereby authorise him to over-see and monitor the entire structural and organisational set up in that regard and vouchsafe that the various hardships and inconvenience focussed, are remedied and meaningful and effective ways are SSCR 22 OF 2018 & CONNECTED CASES 42 devised to gear up the tone and temper of all concerned functionaries involved in the matter. Shri N. Krishnan Nair, District Judge, Alappuzha, who is appointed as Special Commissioner, shall be provided with all facilities like conveyance, lodging facilities, admissible TA and DA etc. consistant with his status by the Devaswom Board. WE further direct that all parties before us shall carry out the directions and orders pased by him from time to time in all matters. He shall submit reports to this Court and seek directions in case he feels that any direction or clarification is necessary. The existing machinery and apparatus regarding Sabarimala administration will continue, under the overall supervision of the Special Commissioner.
31. As on date, Mr. M.Manoj( Addl.Dist. Judge VI & Addl.MACT Kollam) is functioning as the Special Commissioner. In the present scenario, the workload is SSCR 22 OF 2018 & CONNECTED CASES 43 beyond limits. In order to ensure that the police is provided with a free hand to maintain law and order, of course, without crossing the borders and within the four walls of law and also to see that there is no unlawful/objectionable activity from the part of the pilgrims or such other persons coming in disguise as pilgrims, and to give effect to the rule of law in all respects with proper co-ordination of all concerned with necessity to take on the spot decisions to facilitate smooth darsan to all concerned, we find it appropriate to appoint a Team of Observers, till the present season is concluded.
32. In the said circumstance, we appoint
1. Hon'ble Mr. Justice P.R. Raman, a former Judge of this court and presently the Ombudsman for the Travancore and Cochin Devaswom Boards;
2. Hon'ble Mr. Justice S. Siri Jagan , another former Judge of this Court, and presently the Chairman of the High Power Committee appointed by this Court,(assigned with the task of implementation of the Master Plan at Sabarimala) and SSCR 22 OF 2018 & CONNECTED CASES 44
3. Shri A.Hemachandran IPS, DGP-
presently the Director General, Kerala
Fire and Rescue Services,
Thiruvanathapuram).
33. The Team of Observers shall have overall
supervision and powers to take on the spot decisions or to give proper instructions to all concerned to give effect to this order and to ensure that smooth pilgrimage is facilitated and there occurs 'no excess' from any corner(whether from the part of the Police/Devaswom/Forest/PWD/KWA/Such other bodies/organizations or the Pilgrims/other stakeholders,if any. If there occurs any difficulty in implementing the same or if further clarification is required, it is open for the Team of Observers or the stakeholders,as the case may be to bring it to the notice of this Court for appropriate orders on the judicial side.
34. The Special Commissioner appointed by this Court at Sabarimala shall co-ordinate things and bring all the relevant facts to the notice of the Team of Observers as above, who could submit periodical SSCR 22 OF 2018 & CONNECTED CASES 45 reports before this Court as to the course and events; either directly or despatched through the Special Commissioner. It shall be for the Devaswom Board to make appropriate arrangements with regard to the conveyance, stay and food for the Team of Observers.
35. All stake holders are required to extend maximum co-operation in all respects, to see that everything goes on in a smooth and well arranged manner, so that there will be no room for complaint from any corner in any manner and that the 'Rule of Law' is protected and preserved in letter and spirit.
Post for further consideration on 12.12.2018 Sd/- P.R. RAMACHANDRA MENON, JUDGE Sd/- N. ANIL KUMAR, JUDGE lk SSCR 22 OF 2018 & CONNECTED CASES 46