Kerala High Court dismisses plea challenging travel restrictions from Kerala to Karnataka

The Kerala High Court on Tuesday dismissed two petitions which sought directions to the Karnataka government to open up the border shared by the States of Karnataka and Kerala and permit entry of vaccinated persons from Kerala who wish to travel to Karnataka (AKM Ashraf v Union of India).A Division Bench of Chief Justice S Manikumar and Justice Shaji P Chaly dismissed the petitions citing territorial jurisdiction issues while highlighting that the High Court of Karnataka had issued conflicting directions on a similar matter. "We have no hesitation to hold that the petitioners have failed to establish territorial jurisdiction of this Court in interfering with the circulars issued by the State of Karnataka", the order stated..The Bench had earlier issued an interim order on August 17 directing the Government of Karnataka to ensure that the people in dire emergent situations like death in the family, medical treatment etc, are permitted to enter the State of Karnataka, without an RT-PCR test, on production of necessary documents to establish the respective case, irrespective of the nature of the vehicles used for the purpose.The Court had also urged the Karnataka government to allow persons who need to regularly go to Karnataka for jobs and studies to travel between the borders after undergoing the protocol prescribed in a circular issued by the Karnataka Government on July 31. The Court issued these interim orders on a petition filed by AKM Ashraf, MLA from Manjeeswaram, Kerala and another filed by a resident of Kazargod which is the northernmost district of Kerala and shares much of its border with Karnataka. The petitioners were represented by Advocates Harris Beeran and Anoop PV. .However, in its counter affidavit filed recently, the Karnataka government assailed the maintainability of the petitions in view of the provisions of Article 226 of the Constitution regarding the jurisdiction of High Courts.The following issues were raised in this affidavit regarding maintainability:As per the interpretation of Article 226 by the Supreme Court in Nawal Kishore Sharma v. Union of India and Ors., the power of the Court to issue writs to authorities beyond its territorial jurisdiction is circumscribed by the requirement that the cause of action, must at least partly, arise within its territorial jurisdiction.In the instant case, the petitioners have challenged the actions of the State of Karnataka and the Deputy Commissioner of Dakshina Kannada District in mandating that an RT-PCR test result is required for entry into Karnataka from Kerala. However, neither the State nor the Deputy Commissioner are functionaries who fall within the territorial limits of the Kerala High Court. Pertinently, the petitioners alleged that their legal rights have been infringed by imposing this restriction which is also an action which wholly arises outside the jurisdiction of the Kerala High Court.The Kerala high Court had previously dismissed a petition which prayed for directions to be issued to the State of Karnataka stating "we are well aware of our jurisdictional limitations".The affidavit also assailed the petitions on merits and stated that the contentions of the petitioners regarding violation of fundamental rights are entirely baseless and liable to be rejected. In this regard, the following points were raised.The Karnataka State Covid-19 Technical Advisory Committee(TAC) has observed that negative RT-PCR tests must be insisted upon, irrespective of the vaccination status of the persons arriving in Karnataka since even vaccinated persons can be infected. The test positivity rate is higher in the districts bordering Kerala than the average for the State which is assumed to be on account of the influx of persons from Kerala. No restrictions have been placed on movement of persons or vehicles as long as they possess a valid RT-PCR test and relaxations have been given to certain persons who need to travel more frequently. This cannot be said to be unreasonable or violative of fundamental rights as it protects the fundamental right to life and health of persons living in both Kerala and Karnataka as rigorous testing has been accepted as one of the most effective methods of fighting the pandemic.These measures are temporary and will be reviewed as the test positivity rates in both states continue to change..Pertinently, the Karnataka Government also pointed out that the High Court of Karnataka had issued an order on August 17 directing the State to strictly implement the circular issued by it on July 31. Therefore any order passed by the Kerala High Court on the subject would be in conflict with the judgement of the Karnataka High Court which could lead to a constitutional crisis..On these grounds, among others, the Karnataka Government had pressed for dismissal of the petitions which was granted by the Kerala High Court today..[Read Order]