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Juridical Patriot

When K. Narayana Kurup, the soft spoken, unassuming, highly successful senior lawyer with several years standing as Senior Counsel for both Central and State Governments and as part-time Lecturer in the Government Law College, Ernakulam was appointed as a Judge of the Kerala High Court on 21 st October, 1992, it was the beginning of an illustrious judicial career in the life of a 'Judge made for the people' and the dawn of a new era injudicial activism in Kerala, the most literate State in the Country.

Endowed with a brilliant insight into the crux of contemporary social issues, Justice Kurup actually set the tone for judicial activism in the State addressing himself to the cause of the people, at the same time careful not to break the revered judicial traditions and remaining within the confines of the laws during the decade long span of his judicial career. During this era as a Judge of the State's Apex Court, Justice Kurup has earned the acclaim of distinguished jurists from India and abroad as well as the public at large including the Fourth Estate for his landmark orders and judgments in many a public interest litigation and cases relating to burning public issues like environment, human rights, independence of judiciary etc.

It was indeed a glowing tribute to Justice Kurup's bold initiative that none other than British Law Lord Templeman while complimenting the Indian judiciary for its decisive interventions for public causes made specific mention about a major decision by justice Kurup relating to public conveyance in the State capital of Thiruvananthapuram. Lord Templeman wrote: "Justice Kurup's successful intervention in the transportation service shows how necessary and beneficial judicial action can be". By allowing private operators to ply buses to ease the commuting difficulties of the people in Thiruvananthapuram, Justice Kurup was actually wrecking the monopoly of the State owned Kerala State Road Transport Corporation which was in the dock for years together for its inefficiency. The widely commended part of Justice Kurup's sensible intervention in the issue was his unconventional but bold step of ordering surveys by leading newspapers on the issue before reaching a decision. Perhaps, it was for the first time in recent years The Fourth Estate was taken into confidence by the Court for judging a most pressing public issue. 'The Indian Express', commenting on the issue in a special article wrote, "Justice Kurup perhaps received more bouquets from people than brickbats from the ruling class for passing an order which sought to end the KSRTC's inefficient monopoly over Thiruvananthapuram city routes". The media all over the State widely acclaimed Justice Kurup's decision, especially his decision to involve the media before arriving at the judgment. In fact, the usual practice was that of appointing a commission of advocate to ascertain the facts. But Justice Kurup has justified his action considering the wider issue of public interest involved. On this widely acclaimed judgment Justice Kurup said: "I have always felt that any law or its interpretation is meaningless unless it fulfils the needs of the people".

On yet another commuters issue, viz, the right of ordinary passengers and season ticket holders to travel in long distance trains passing through Kerala, Justice Kurup was bold enough to order the Railways to alleviate the suffering of the short distance travellers by relaxing the stipulation which prohibits travel by such passengers in sleeper compartments even if there are vacant seats. It was a decision hailed by a large section of the travelling public, since the Judge in clear terms held that transportation is the lifeline of the people and Railway is a public utility service having monopoly in the field and as such it could not act solely on the basis of profit motive disregarding public interest.

Justice Kurup added yet another dimension to judicial activism by resorting to an unprecedented but widely hailed move of taking up the task of embarking upon a mosquito eradication programme in the emerging metropolis of Kochi. Acting on a public interest litigation filed by an association of lawyers, Justice Kurup found that the city Corporation had failed to take effective steps to control the menace which had been making the life of the people miserable, of late. Justice Kurup even devised a scheme of raising funds involving the public and major business establishments and industries to embark upon a massive mosquito eradication scheme under the auspices of the High Court. In his elaborate justification of the decision Justice Kurup in his order said 'I am quite aware of the fact that I will be exposing myself to the charge that the court has assumed the role of a garbage supervisor, but the brunt of that cross is worth bearing having regard to the ultimate benefit it may bring to the people'. Justice Kurup's intervention in the mosquito issue earned him appreciation from eminent jurists like former Judge of the Supreme Court Mr. V.R. Krishna Iyer who wrote in a well published Article, ".............So it was right that Justice Kurup initiated action on the issue. The right to life includes right to health. Justice Kurup's alacrity in using his powers to make Cochin mosquito free is appropriate. Indeed the media, service organisations and the public generally sighed relief and the court's stock went up". It is refreshing to note that the scheme though shelved for a time has now been revived by the High Court with full vigour.

Justice Kurup's remarkable insight and vision in interfering in public issues with the interests of the society at large in mind was again evident from his crucial order on a Christian cemetery issue at Vaikkom which was about to snowball into a violent confrontation between two communities with state-wide ramifications. Just the day before a major demonstration was planned throughout the State by one of the communities by staging Dharna etc. in front of the Collectorates and Taluk Offices, the Judge issued the clarion call to all parties concerned to refrain from resorting to any form of agitation including dharna and demonstration on the cemetery issue since the matter was sub-judice. His appeal seeking the co-operation of political parties and religious leaders and public in the matter had its desired effect and the agitation was suspended right in time avoiding a possible violent confrontation.

A similar appeal by the Judge paid equally rewarding dividents in Kerala's communal scene when Justice Kurup made a "Judicial Appeal" to Swami Prakasananda of the Sivagiri Mutt in Kerala's Kollam District to end his ongoing fast to press certain sensitive demands relating to the Mutt. In fact Swami ended the fast respecting the appeal much to the relief of the authorities and paving the way for bringing the two warring groups who were already whipped up by internecine feud and frenzy to the negotiating table.

One of the latest of Justice Kurup's bold initiatives in a tense situation was in relation to the issue of eviction of over 600 agricultural families of Vadakkekkalam Village in Kerala's Kannur District. The situation was so tense with the political parties and ecclesiastical authorities joining issue objecting to the eviction. In his judicial wisdom and realisation of the social and communal implications of the problem, Justice Kurup issued a timely order directing the Government not to forcefully evict the families taking note of the " extra-ordinary facts and circumstances" brought to his notice. A situation which would have in all possibilities snowballed into a bloody confrontation was diffused of its tension by the order much to the relief of all concerned.

A Judge who always prefers to identify himself with the day- to -day issues of the common man, Justice Kurup has recently issued an order banning display of carcass of slaughtered animals causing offence to sight which has been widely acclaimed by the people of Kerala.

Justice Kurup was hailed for yet another important decision in which he made a detailed analysis of the provision relating to tax exemption claimed by philanthropic institutions like hospitals. His exposition of the concept of'philanthropy' in the context of 'charity' was perhaps a landmark observation later ratified by the Apex Court. Justice Kurup while explaining the concept 'philanthropy' observed, "given the general principles of interpretation of statutes, the legislature must be presumed to have used that expression with an altogether different intention qua charity, as otherwise there is no need to bring about an amendment incorporating the word 'philanthropy' in Sec. 10 (22 A) of the Income Tax Act".

Justice Kurup had always proved his capacity to understand "the felt necessities of the public at large" as evident from the series of decisions he had handed down during his tenure on the Bench. This capacity could be viewed as an integral part of his judicial competence rather than mere judicial experience. Justice Kurup is also an excellent example of the doctrine that the social philosophy of a judge is an ingredient in Judicial decision making.
Justice Kurup, an LL.M. in Constitutional, Administrative and International Law had his career moulded under the affectionate guidance of the late Panampilly Govinda Menon, an astute and far-sighted politician and eminent lawyer who later became the Law Minister of India piloting major legislations of far-reaching consequences. It is an enviable legacy which has its influence all through Justice Kurup's legal and judicial career.

The recent Judgment of the Kerala High Court holding smoking of tobacco in any form in public places as a 'public nuisance' punishable under the Indian Penal Code, besides being violative of the right to life guaranteed under Article 21 of the Constitution of India is, perhaps the most significant and latest example of Justice Kurup's bold judicial initiative to serve public interest. This 50 page judgment delivered by Justice Kurup for the Bench has been hailed as a landmark initiative by the Indian Judiciary against tobacco smoking, a menace which has a horrifying impact on public health at large. In fact, the observations made by the Court after a thorough study of the hazards of smoking is indeed an revelation to the law-makers who were turning Nelson's eye to anti-smoking legislation despite the fact that it is medically established that passive smoking is a major cause for lung cancer and regular exposure to second hand smoke has a 91% higher risk of myocardial infarction than others who are not exposed to passive smoking. The Judgment which reviewed the voluminous scientific studies conducted so far by reputed medical and social bodies world-wide on the negative impact of smoking, both active and passive on public health has come out with a series of alarming revelations which was more than enough to justify the landmark initiative taken by the Court in the matter.

The Judgment has highlighted the fact that every year one million tobacco related deaths take place in India and concluded that dangers of passive smoking are real, broader than once believed and parallel those of direct smoking. The landmark ruling had also resorted to a threadbare analysis of the provisions of the Indian Penal Code (IPC) and the Criminal Procedure Code (CRPC) before categorising public smoking as 'public nuisance' punishable under sec. 278 of the IPC and Schedule I of CRPC. The Judgment is an excellent example of the cautious approach towards judicial initiative in not usurping the power of the legislature but opening up the eyes of the executive to the inherent powers it has within the existing contours of law to put an end to public nuisance like public smoking. It was certainly one of the most commendable initiatives by the Court after a thorough homework to direct the executive authorities to issue notifications banning public smoking and take steps to implement the notification. The response in Kerala to the judgment was tremendous as evident from the relief being expressed by the nonsmoking majority at large and the explicit resolve of the smoking community to refrain from public smoking as far as possible. Districts after districts implemented the Court order bringing immense relief to victims of passive smoking. Enquiries started pouring in from other States as well regarding the positive impact of the verdict. Justice Kurup who took enormous pains to make a thorough study of the issue which made the classic judgment a reality has once again proved his grit and boldness in fighting social evils uncompromisingly to the end so that life will be better for the public at large in the present millennium.

The judgment is a classic treatise on Law and Medicine. It touches on all aspects of smoking - active and passive: its effects on the Cardiovascular System, Hypertension, Coronary Artery Disease (CAD), Cancer, so on and so forth. Judgment has been hailed by the international community and notably by the W.H.O as a trend-setter for the rest of the world and a unique contribution by the Indian judiciary to protect human rights to health. It is the first ever judicial initiative in the whole worldwhich has the uniqueness of addressing the dangers of passive smoking coupled with a ban on smoking in public places. This landmark verdict has served as an eye-opener and trend-setter not only for India but also for the entire humanity. Imbibing the spirit of this verdict the Govt, of India has enacted a Law (2003) banning smoking in public places followed by various other States in their own right. Taking cue from the judgement, the FIFA at the behest of WHO has banned smoking in all the stadiums where the World Cup Football, 2002 was played. Various other nations, the latest in the series being Qatar, Greece, Kingdom of Saudi Arabia, Italy, Bhutan, UK etc have also followed suit strictly banning smoking in public places. Recently, in Geneva (May 2003) in tune with the judgment, the World Health Organisation's decision-making Assembly viz; The World Health Assembly Committee consisting of 181 nations has unanimously adopted a Convention on Tobacco Control which among other things seeks to ban second-hand smoke which is a major achievement in the fight against tobacco. The bold and dynamic initiative of the Bench has paid rich dividends to public health. The result is, smoking in public is now looked down with contempt and overall smoking among all sections of the population especially among teenagers has come down drastically. This is no mean achievement.

In a significant judgment that can have a major impact on show business and the nation's attitude towards animals Justice Kurup presiding over the Division Bench ruled that animals have inherent rights of dignified existence akin to the basic rights of humans. According to "Frontline" issue dated 18-8-2000, the judgment while upholding a law against the training of and display by animals in circuses seeks to correct a constitutional anachronism and has 'pushed Indian jurisprudence to a new level'. In urging basic rights for animals, Justice Kurup has shown once more that the Court is prepared 'to go beyond the letter of the law to reinterpret - even extend-it, in the light of evolving public consciousness'.

Justice Kurup's interests are not confined to law alone. He is a man of varied tastes. He is a good speaker, an avid reader, connoisseur of fine arts and music, a good player and a sports enthusiast. His flair for medicine is recognised by the medical fraternity themselves which is evident from the fact that he has been a favourite speaker in many medical conferences regional, national and international. He is a champion of human rights, crusader for protection of the environment and defender of the downtrodden. To quote Justice Krishna Iyer, "Not indeed is he confined to his great lethal leaf banishment for which he has now become a cult figure in India and abroad. He touched none while on the Bench, which he did not adorn". For this eminent Judge of transnational repute, the word retirement does not find a place in his dictionary and he goes on with his ceaseless social activities as a juridical patriot for the well being of We, the People of India.

Adv. P.K. Girijavallabhan
President, Bar Association
March 2006

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