Political slugfests, questionable YouTube videos and more: The Kerala High Court in 2020

During the initial stages of the pandemic, the High Court set the standard for transparency, resolving to make its proceedings accessible to the public.
Political slugfests, questionable YouTube videos and more: The Kerala High Court in 2020
Kerala HC 2020

In a year that was marred by the COVID-19 pandemic, the Kerala High Court, like most other courts in the country, grappled with administering justice whilst maintaining safety.

During the initial stages of the pandemic, the High Court set the standard for transparency, resolving to make its proceedings accessible to the public. It did so by making links to virtual courtrooms available on its website.

After initial hiccups, such as a two-day long server crash that resulted in cases failing to get listed for two days, the Court finally adopted a combination of physical and virtual hearings.

Among the first cases to be heard through the virtual mode was the contentious border-closure dispute between Kerala and Karnataka, which ultimately reached the Supreme Court. The Court was also faced with the high-voltage challenge against the Kerala government’s contract with New York-based Sprinklr for its COVID-19 management application.

Hearing a slew of petitions seeking reliefs ranging from online delivery of alcohol to a vegetarian’s prayer for permission to venture out of his home to purchase food for his cat, the Court began functioning to almost its full strength, through a mix of physical and virtual hearings.

Politics and the Court

With the lifting of the lockdown, the influx of COVID-related public interest petitions before the Court came to a halt to some extent.

Much of the remainder of the year saw one political slugfest after another. While the Sprinklr challenge had been a political hot potato in Kerala, the gold smuggling case in its various manifestations kept the Kerala courts on their toes throughout the year, with the High Court being no exception.

What started out as an investigation into the smuggling of gold through diplomatic channels has now mushroomed into exploration of kickbacks, sharing information about confidential government projects and more, reaching right up to the Chief Minister’s office. At the centre of this whirlpool of allegations, investigations, media gossip, and of course, court cases, was Swapna Suresh, prime accused in the gold smuggling case and former employee of the UAE Consulate at Thiruvananthapuram, along with Kerala’s former Principal Secretary M Sivasankar.

Close on the heels of the gold smuggling case came the LIFE Mission case. The case has seen the Kerala government going the full mile, moving through its own legal officers against the Central Bureau of Investigation (CBI), which had launched investigations under the Foreign Currency Regulation Act for supposed irregularities in the Kerala government’s flagship project. Declaring that the case was politically-motivated, the Kerala government has got a "Delhi lawyer" in its bid to nip the CBI probe against the project "in the bud" to "serve the ends of justice".

Smaller cases with political ramifications died premature deaths. The High Court termed pleas against the lease of the Thiruvananthapuram airport to the Adani group as being devoid of merit. The challenge was led by the State of Kerala, joined by employee associations and persons from other walks of life, as the Court termed. Pleas moved by Ramesh Chennithala, Kerala's Leader of the Opposition, against collection of call detail records of COVID-19 patients as also a plea seeking the annual audit of local self-governments for the year were disposed of after the State made its submissions before Court.

The much-hyped legal challenge to Section 118A of the Kerala Police Act was also quite short-lived ,as the Court closed the proceedings after the government chose to repeal the ordinance. One of the objects for the introduction of Section 118-A was the Kerala High Court’s call for curbing social media wars online, a Kerala Cabinet release had stated.

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Social Media and the Court

The Court this year also took exception to crime investigators who took to press conferences to air their opinions on sensational crimes. Not once, but twice. The last order in that respect threatened with strictures police officers who ventured to air their opinions in the media, punishing their superiors as well. However, a Chief Justice-led Bench declined to frame guidelines to regulate the media, dismissing a PIL filed in that regard. The petitioner, a lawyer, had sought directions from the Court to regulate the media, following the frenzied media coverage of the Kerala gold smuggling case.

Controversial activist Rehana Fathima made two brushes with controversy this year, with her videos teaching sex education to her children and a recipe for a gomatha food preparation not going down well with the Kerala High Court.

On the subject of videos, the Kerala High Court provided relief to Malayalam film industry dubbing artist Bhagyalakshmi and activists Diya Sana and Sreelakshmi Arackal for their assault on YouTuber Vijay P Nair. The three filmed their assault on Nair and declared that their act was a reprisal for his misogynistic comments on them and feminists in general. The case hearing saw discussions on feminism, vigilantism, and whether people could be allowed to take law into their own hands when the system did not offer expeditious action.

The grant of bail to a man accused of rape and circulation of nude pictures on social media of a woman he had a love affair with, was made conditional on his complying with a ban on the use of social media until the completion of the investigation.

Other cases

Pleas alleging bias on the part of the trial judge in the sexual assault and abduction case in which actor Dileep is an accused were dismissed by the Court, even though the prosecution and the victim contended that the latter was being harassed in open court.

A Full Bench decision of the Kerala High Court decided the scope of Section 23 of the Maintenance and Welfare of Senior Citizens Act. The Bench declared that senior citizens who transferred property to their relatives on the express condition that they would be provided maintenance, could revoke the transfer on failure to maintain the senior citizen.

In other important pronouncements, the Court declared that the Compensation Scheme in the Code of Criminal Procedure would apply even to crimes that occurred before the scheme's commencement, as a prospective benefit given based on an antecedent fact.

Notably, a Division Bench of the Court refrained from adopting a broad interpretation of sexual harassment in proceedings under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), ruling that gender discrimination would not amount to sexual harassment. However, the Court clarified that unwelcome behaviour marked by sexual undertones would be considered 'sexual harassment'.

In a controversial statement, a Division Bench of the Court in May observed that it is not unusual for a mother in law to make her daughter in law do household and domestic work. Rejecting the woman's contention that she was being ill-treated by her mother-in-law, the Bench instead found that the woman was subjecting her husband and his family to cruelty by her allegations and allowed the man's plea for a divorce.

Troubled by the spate of child sexual assault cases coming before the Court, and the poor implementation of the Protection of Children from Sexual Offences (POCSO) Act, a Bench of Justice PB Suresh Kumar issued two sets of guidelines. The first set sought to prevent the secondary victimisation of child sexual assault survivors by the justice system, and the second was aimed at preserving the anonymity of victims of child sexual assault during court proceedings.

Additionally, the High Court issued a series of directions seeking among others, accessibility of spaces for the differently-abled, the installation of tracking devices in public service vehicles, and the conduct of a socio-economic caste study.

While hearing a PIL seeking the Court's intervention in implementing a circular issued by the Central government in March on the use of AYUSH medicines for COVID-19, the Court clarified that AYUSH practitioners could prescribe approved mixtures/ tablets only as immunity boosters, but could not advertise them as cures for COVID-19. This view was subsequently adopted by the Supreme Court as well.

The Court’s timely intervention this year led to the rescue of crewmen stranded on an abandoned vessel off the Munambam harbour since April. They were confined to their vessel without basic necessities because of a legal technicality.

In October, the Court directed the release of a young patient who was detained in hospital since July this year on account of his parents' failure to to settle bills.

In a bizarre incident, a woman who accused a Covid-19 health worker of sexually assaulting her later retracted her statements and stated that their intercourse had been consensual. Voicing its displeasure at the fact that the woman’s initial statement had resulted in the incarceration of the accused for 77 days, Justice PV Kunhikrishnan observed that the Court could not “shut its eye in such situations, going on to declare that the criminal justice delivery system cannot go like this.

Like many other High Courts this year, the Kerala High Court has also been faced with a volley of petitions from worried parents of children in CBSE schools seeking reduction in school fees on account of pandemic-induced financial constraints. At a combined hearing of the cases, the Court rapped the CBSE for washing its hands off the matter after it declared that the State government could determine how much was collected as school fees for the year. The State has been tasked with setting up officers to scrutinise income statements of schools to ensure that only actual expenses are covered by fees charged.

In some hope for the course of justice, a Thiruvanathapuram CBI Court declared its verdict in Kerala's longest-running criminal trial, the 'Abhaya case'. Putting to rest the mystery surrounding her untimely death, the Court pronounced Father Thomas Kottoor and Sister Sephy guilty of murder.

As the year drew to a close, in a rather unfortunate turn of events, a couple accidentally set themselves on fire following the High Court’s stay on a lower court order directing their eviction. The long march to the High Court saw a series of delays and loopholes all of which led to the mishap.

What lies ahead

Quite a few other petitions wait for their day in court - two challenges to the Centre's Aarogya Setu App, a petition seeking a declaration of the right to be forgotten, and pleas against the director disqualification conundrum of the Companies Act, among others.

A plea moved by a transwoman seeking parity in National Cadet Corps (NCC) enrollment between males and females has seen the most progress, and may result in a judgment soon.

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