Ker HC | “Why spouses or relatives of each MLA are required to be present in the ceremony?”; HC allows physical Swearing-in ceremony of newly elected government with certain restriction

Kerala High Court: The Division Bench of S. Manikumar CJ., and Shaji P. Chaly, J., allowed the physical Swearing-in ceremony of newly elected government. The Bench issued detailed directions to be followed for the ceremony. The Bench remarked,

“We are unable to understand as to why the spouses or relatives of each of the MLAs are required to be present in the ceremony and when they are not, indispensable, either for the performance of the ceremony or for witnessing.”

Factual Matrix of the Case

In the instant petition, the petitioner had sought directions of the Court in the matter of Swearing-in ceremony wherein the government had invited 500 participants. The petitioner submitted that the Disaster Management Authority (DMA) had declared Triple Lockdown in four districts as COVID-19 Pandemic is uncontrolled and the condition in Kerala is worsening. The petitioner contended that one of the reasons for the spread of Corona-virus was the uncontrollable gathering during Assembly Election as several meetings were held during election without adhering to the Covid-19 protocols as directed by the Election Commission.

The pandemic has infected several crores of people across the world, taken away lakhs of lives, appeared to have sub merged in India, surged back with all vigour, intensity and velocity from April, 2021, by mutations, infected people rapidly and the Test Positivity Rate is alarming.  Giving due consideration to the rise in infection, death and the measures taken for providing vaccination, shortage of vaccine, and such factors, Government had decided to impose stringent conditions and thus, resorted to Triple Lockdown in four districts including  Thiruvananthapuram.

Analysis by the Court

Observing the contention made by the State Attorney, Mr. K.V.Sohan that a swearing-in ceremony is a constitutional function and, therefore, it is required to be performed in a dignified manner by inviting constitutional authorities, Government officials and others, the Bench opined that the ceremony can be conducted, in a dignified manner, even in the absence of many, who are not part and parcel of the performance but only to witness the ceremony. The Bench stated,

“Dignity will not be lost when the swearing-in ceremony is witnessed from home.”

On the contention of the State Attorney that adequate measures have been taken to prevent the spread of COVID-19 for conducting the function, in an open stadium, by maintaining social distancing, as well as checking the invitees by conducting the required RT-PCR tests, the Bench said, “if such a contention is accepted, then even marriages can be performed with the participation of 500 people with RT-PCR test conducted 48 hours before solemnisation of the marriage in any big Marriage Hall or open place, which can accommodate people more than 500; so, the final rites and obsequies ceremonies, in the case of death.”The Bench said,

 “We do not see any difference as to whether it is a Government function or family function or ceremony, in relation to death and the contentions of the learned State Attorney as regards the nature of the function or ceremony, as the case may be, cannot be countenanced in entirely.”

Opining that the restrictions should not be diluted solely for the swearing-in-ceremony, the Bench said that Government function cannot be converted into a public or political function. Noticing that spouses and relatives of MLAs were also invited, the Bench said that considering the present COVID-19 Pandemic situation, velocity and vigour of the virus, uncontrolled rise in the death, etc., such persons ought not to have been included in the list of participants.

Consequently, though the Bench refused to quash the Government order dated 17-05-2021 in its entirety and proceeded to issue following directions.

1. All the Covid protocols/guidelines/circulars/notifications shall to be adhered to or strictly followed while conducting the Swearing-in Ceremony.
2. Political parties shall take a decision as to whether all the MLAs are required to be present in the Swearing-in Ceremony.

• The spouses and relatives of all the MLAs, except the designated Ministers are not required to participate in the Swearing-in Ceremony. The ceremony can be viewed from the residence of the respective MLAs.

1. Government officials required for the performance/ participation in the ceremony alone shall be permitted.
2. As the Government have not come out with the details of special invitees, the Chief Secretary, Government of Kerala shall consider whether the presence of all the special invitees, including the member of the State Committee of the political parties are required to be present, in view of the utmost adverse situations prevailing due to the pandemic.

[Chikithsaneethi v. State of Kerala, 2021 SCC OnLine Ker 2194, decided on 19-05-2021]

Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For the petitioner: Adv. Arul Muralidharan and Adv. Vineetha Vijayan

For the State: State Attorney K.V. Sohan