Lathika Subhash v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 26TH DAY OF JUNE 2020 / 5TH ASHADHA, 1942** ## **WP(C).No.11248 OF 2020(E)** ## **PETITIONER:** **LATHIKA SUBHASH AGED 56 YEARS W/O. K.R SUBHASH, RESIDING AT LAKSHMI NIVAS, KUMARANELLOOR P O, KOTTAYAM-686016.** **BY ADV. SRI.GEORGE POONTHOTTAM (SR.)** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001** **2 THE DEPARTMENT OF SOCIAL JUSTICE, WOMEN AND CHILD DEVELOPMENT, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **3 THE KERALA STATE COMMISSION FOR WOMEN REPRESENTED BY THE CHIEF EXECUTIVE OFFICER, NEAR LOURDES CHURCH, P.M.G. PATTOM P O, THIRUVANANTHAPURAM-695004.** - **4 SMT. M.C. JOSEPHNE** **CHAIRPERSON, KERALA STATE COMMISSION FOR WOMEN, NEAR LOURDES CHURCH, P.M.G. , PATTOM P O, THIRUVANANTHAPURAM-695004.** **R3-4 BY SMT.PARVATHI MENON.A., SC.,KWC** ## **OTHER PRESENT:** ## **P. NARAYANAN SPL GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 0906-2020, THE COURT ON 26-06-2020 DELIVERED THE FOLLOWING:** W.P.(C).No.11248/20 2 ## **JUDGMENT** ## **Dated this the 26[th] day of June 2020** - 1.The writ petition is filed seeking the issue of a writ of quo warranto directing the 4[th] respondent to show cause as to how she is qualified to occupy the post of Chairperson of the Kerala State Women's Commission. A further prayer is also sought for declaring that the 4[th] respondent is not fit to occupy the post of Chairperson of the Kerala State Women's Commission. - 2.Heard the learned Senior Counsel for the petitioner and the learned Government Pleader. - 3.The petitioner, who is a social and political activist contends that by her reactions and declarations in the print and electronic media as to the right of a woman who complained of sexual harassment to take recourse to legal remedies including by approaching the Women's Commission, the 4[th] respondent has acted in a manner unbecoming of the post of Chairperson of the Kerala State Women's Commission. It is W.P.(C).No.11248/20 3 contended that a Chairperson or member of the Women's Commission is expected to be a person of sensitivity to women's issues and a person of absolute integrity. It is stated that on several occasions, the 4[th] respondent has expressed her lack of faith in the Commission which she chairs and in the legal system. It is contended that by declaring that the political party to which she owes allegiance is capable of providing adequate remedies even in cases of sexual misconduct alleged against its members, she has made her lack of confidence in the Commission and the legal system clear. It is contended that these statements render her incapable of functioning as a member of the Women's Commission. It is contended that Section 5(1)(a) and 5(3) of the Kerala Women's Commissions Act, 1991 provides the minimum required qualifications for appointment of a person as Chairperson or member of the Commission. It is contended that the 4[th] respondent, who has acted against the interest of women in general has proved that she does not have the qualifications so required. W.P.(C).No.11248/20 4 ## 4.Section 5 of the Kerala Women's Commission Act reads as follows:- ## “ **5. Constitution of the Commission** (1)For the purpose of this Act, the Government shall, by notification in the Gazette, constitute a commission to be known as the Kerala Women's Commission which shall consist of a Chairperson and not more than two other members to be appointed by the Government. Provided that the members appointed to the Commission shall be women. (2) The Chairperson shall be an eminent woman committed to the cause of women with sufficient knowledge and experience in dealing with women's problems. (3)The members of the Commission shall be persons of ability, integrity, intelligence and standing and having adequate knowledge or experience or have shown ability in dealing with problems relating to safeguarding and promoting the interests of women and protecting their rights.” 5.Section 5(3) specifically provides that members of the Commission shall be persons of ability, integrity, intelligence and standing having adequate knowledge or experience or have shown ability in dealing with problems related to safeguarding and promoting interests of women and protecting their rights. W.P.(C).No.11248/20 5 6.The learned Senior Counsel appearing for the petitioner submits that the functions and powers of the Commission are provided under Section 16 and 17 of the Act. It is stated that the Commission is empowered not only to enquire into unfair practices on complaints made by women, but also to initiate enquiries on its own knowledge or information or on request from the Government. It is stated that where a clear instance of unfair practice is brought to the notice of the Commission, the Commission is duty bound to act in terms of Section 17. The Commission also has the laudable object of protecting women's rights and advising the Government on all matters pertaining to such issues. It is, therefore, contended that the action of the 4[th] respondent in belittling the rule of law by stating that the political party to which she owes allegiance is itself capable of considering complaints made by women against its members is no longer fit to hold the office of Chairperson. - 7.The contention with regard to the comments made by the 4[th] W.P.(C).No.11248/20 6 ## respondent is available at paragraph 8 of the writ petition. The pleadings are extracted hereunder:- “8. In the year 2020, an incident of gang rape of a woman in front of her children occurred In Kadinamkulam, Thiruvananthapuram. The accused were taken into Police custody. When the 4‘“ respondent came to Kadinamkulam to visit the victim and her family, and was interacting with the press, a question was raised from a journalist as to why the 4‘“ respondent vociferously reacts in all incidents of sexual assaults except that involving CPIM members. The incident involving Mr.P.K.Sasl as described in the above paragraph was quoted by the journalist. This infuriated the 4‘“ respondent to the extent that she lashed out against the journalist stating that in the above incident she had visited the victim's family and it Is on their decision that the CPIM will internally investigate the same, that she decided not to enquire into the matter. The 4[th] respondent thereafter went on to praise the CPIM stating that her party ls both a Police Station and Court rolled into one and that the party will take its own decision in the matter. She said that she might be Chairperson of Women's Commission now, but she owed her rise to-the CPIM. The exact transcript of the 4‘” respondent’s reaction is extracted below: "My party, the Communist Party of India Marxist, I may be Women's Commission now, but I grew through the party. No other party in Kerala takes a strict stance on such issues like my party. You know? I know the incident you are referring to. What happened there? The W.P.(C).No.11248/20 7 family there told me that they wanted only party action. They are believers of the party. Our party is also a Court. It is a Police Station also. Do you understand? We do not excuse any leader in such issues. No need for doubt there. Do not ask questions for the sake of asking them.” It is submitted that the above statement of the 4[th] respondent sent shockwaves through the State as a person occupying one of the most respectable Statutory body, one which, poor and helpless women look up for protection, acknowledged and praised a parallel law enforcement mechanism run by a political party which recommended her appointment in the first place. True copy of the news published in page 7 of the Kochi Edition of the Malayala Manorama newspaper, dated 06.05.2020, is produced hererth and marked as **Exhibit P2** . 8.A parallel is drawn to the case of Smt.Nirmala Venketesh, a National Women's Commission Member who made a public comment with regard to the conduct of women involved in a pub attack in Mangalore who had been removed from office by the Central Government. It is stated that in the instant case also, a person who made comments in the nature that have been attributed to the 4[th] respondent would be incapable of continuing in office. It is further stated that on the comments made by the 4[th] respondent coming to light, the State W.P.(C).No.11248/20 8 Government should have invoked Section 11(1)(d) and Section 11(1)(f) of the Kerala Women's Commission Act to remove the 4[th] respondent from her position. It is contended that the conduct of the 4[th] respondent disqualifies from her holding and continuing as Chairperson of the Kerala State Women's Commission thereby necessitating the issuance of writ of quo warranto as against her continuance in office. 9.The learned Government Pleader appearing for the respondents would submit that the petitioner has no case that the 4[th] respondent was not qualified for appointment to the post of Chairperson of the Kerala State Women's Commission. It is stated that the appointment of the 4[th] respondent had not been challenged on any grounds by the petitioner or by anyone else and that a supervening disqualification, even if admitted, would not give rise to the issuance of writ of quo warranto. Relying on a decision of a Division Bench of this Court in Alleppey Asharaf v. Chief Minister [2017 (5) KHC 875], it is contended that the legal remedy available to the petitioner, even if the contentions of the writ petition are W.P.(C).No.11248/20 9 admitted, is to approach the Government seeking removal of the 4[th] respondent from the post and the writs as sought for cannot be issued in the facts of the case. 10.I have considered the contentions advanced. A writ of quo warranto is a writ which is issued to enquire into the legality of a person to claim public office. The word meaning of quo warranto is 'by what warrant'. It is a means of restraint for a person or authority to act in a public office which he or she is not entitled to and thus intends to prevent usurpation of public office by unqualified or incompetent persons. The writ of quo warranto was one of the most ancient writs exercised by the crown in England. Though the high prerogative writs available to the crown in India have undergone changes in accordance with the changing times and the writs exercised by the writ courts in India are writs in the nature of the high prerogative writs issued by authority of the British Crown, the basic requirementf governing the issuance of a writ of quo warranto as sought for, cannot be eschewed by this Court. It is, therefore, only where a person usurps a public office without W.P.(C).No.11248/20 10 authority, that a writ of quo warranto would be issued under Article 226 of the Constitution of India. In the instant case, the allegations of the petitioner, even if accepted in toto, do not extend to stating that the 4[th] respondent is a usurper to the office of the Chairperson of the Kerala Women's Commission. The contention essentially is that her conduct which tends to be against the interest of women, whom she is duty bound to protect, amounts to acting in derogation of the Act under which she has been appointed. Even if all the contentions are accepted, I am of the opinion that the situation for issuance of a writ of quo warranto would not be available in the instant case. 11.With regard to the further prayer seeking declaration that the respondent is not fit to occupy the post of Chairperson, I notice that the writ petition contains no allegation that any complaint had been preferred by the aggrieved woman in the alleged incident involving a member of the political party to which the 4[th] respondent belongs. The contention is that the commission did not take suo motu action in the said instance, W.P.(C).No.11248/20 11 while such action had been initiated in other cases. I am of the opinion that the pleadings in the writ petition would not justify the issuance of a declaration that the 4[th] respondent is not fit to occupy the post of Chairperson of the Commission. In case the petitioner has any complaint with regard to the functioning of the 4[th] respondent as Chairperson of the Women's Commission, it is for the petitioner to take up the issue before the competent authority in accordance with law. I, therefore, find that the prayers sought for in the writ petition cannot be granted. The writ petition fails and the same is accordingly dismissed. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.11248/20 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE STATEMENT OF THE 4TH RESPONDENT AS REPORTED IN NDTV DATED 08.09.2018.** **EXHIBIT P2** **TRUE COPY OF THE NEWS PUBLISHED IN PAGE 7 OF THE KOCHI EDITION OF THE MALAYALA MANORAMA NEWS PAPER, DATED 06.05.2020.** True copy PS to Judge