Supreme Court of India
COURT ON ITS OWN MOTIONversusUNION OF INDIA & ORS.
- Citation
- 2012 INSC 593
- Decided
- 13 December 2012
- Disposal
- Disposed off
- Bench
- B S CHAUHAN
Holding
The Court held that the State is constitutionally obligated under Articles 19(1)(d), 21 and 48A to provide safety, health care, environmental protection and adequate amenities for Amarnath pilgrims, and therefore accepted the SHPC report and issued comprehensive directions.
Summary
The Supreme Court, on its own motion, took notice of press reports of numerous deaths and inadequate facilities during the 2012 Amarnath Yatra. It issued notices to the Union of India, the State of Jammu & Kashmir and the Amarnath Shrine Board, and constituted a Special High Powered Committee (SHPC) to examine health, environmental, security and infrastructure issues. The Court found that the lack of basic amenities, medical care, and safe tracks violated the pilgrims' fundamental rights under Articles 19(1)(d), 21 and 25 of the Constitution, and that the State also has a duty under Article 48A to protect the environment. Relying on the SHPC report and extensive jurisprudence on the expanded dimensions of Article 21, the Court accepted the report and ordered its implementation in short‑term and long‑term measures. It directed specific actions on health certification, medical deployment, track widening, sanitation, waste management, and environmental safeguards, and held the responsible officials personally liable for non‑compliance. The petition was subsequently disposed of.
Issues considered
- The adequacy of health, safety and environmental facilities for pilgrims during the Amarnath Yatra.
- Whether the State has violated fundamental rights under Articles 19(1)(d), 21 and 25 of the Constitution.
- The scope of the Supreme Court's suo motu jurisdiction and its power under Article 32 to issue directions in the absence of specific legislation.
- The applicability of the doctrines of sustainable development and the precautionary principle to the Yatra.
Legislation cited
Subjects
Article 21right to liferight to moveenvironmental protectionsuo motu jurisdictionAmarnath Yatrapublic healthfundamental rightssustainable developmentprecautionary principleArticle 19Article 25Article 48Ajudicial activism
Judgment
[2012) 13 S.C.R. 1093
COURT ON ITS OWN MOTION A
v.
UNION OF INDIA & ORS.
Suo Motu Writ Petition (C) No. 284 of 2012
DECEMBER 13, 2012
B
[DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]
Constitution of India, 1950:
Arts. 19(1)(d), 21, 25, 32 and 48A - Suo motu action by c
Supreme Court - Taking note of press reports regarding poor
arrangements and number of deaths occurred during the yatra
to the holy cave of Amarnathji - Constitution of a Special High
Powered Committee (SHPC) by the Court - The report of
SHPC making recommendations on the issues of health, 0
environment, registration, access control and security, track
conditions and other public amenities - Held: It is the
obligation of the State to provide safety, health care, means
to freely move and to profess the religion in the manner within
the limitations of law - There were lack of basic amenities and E
healthcare to the yatris - Thus the rights of yatris u/Art. 21
were violated - The report of SHPC recommending various
steps, development programmes are accepted - In addition
specific directions given by the Court.
Art. 21 and 48A - Right to life - Dimensions of - Held: F
Right to life is a right to live with dignity, safety and in a clean
environment - Expression 'life' in Article 21 does not connote
mere animal existence or continued drudgery through life, but
includes right to livelihood, better standard of living, hygienic
conditions in the workplace and leisure - The expanded F
connotation of life would mean the tradition and cultural
heritage of the persons concerned - The concept of inter-
generational equity is also an integral part of Art. 21 - The
State is obliged to ensure meaningful fulfillment of such right
1093 H
1094 SUPREME COURT REPORTS [2012] 13 S.C.R.
A - State is required to draw a careful balance between
providing security, without violating fundamental human
dignity - A greater obligation is on the State to protect and
improve the environment in terms of Art. 48A - State should
ensure protection of environment on the one hand and also
B undertake necessary development with due regard to the
fundamental rights and values - Universal Declaration of
Human Rights - Article 25(2).
Art. 32 - Power under - Scope of - Held: There is clear
mandate of Jaw to Supreme Court to protect the fundamental
C rights of the citizens - The limitation of acceptability to justice
will not come in the way of the Court to extend its powers to
ensure due regard and enforcement of the fundamental rights
- The absence of law and a vacuum or lacunae in law can
a/ways be supplied by judicial dictum - In cases, where there
D is no infringement of a specific legislation or even where no
legislation is in place, but are purely cases of infringement
of fundamental rights and their violation, the directives of the
Court are needed to protect them - Constitutional powers
cannot in any way be controlled by any statutory provision.
E
Doctrines/Principles - Doctrine of sustainable
development and precautionary principle - Applicability of -
Held: The doctrine/principle are applicable to the cases where
development is necessary, but not at the cost of environment.
F Taking note of the press reports as regards poor
arrangements and number of deaths that occurred during
the yatra to the holy cave of Amarnathji in the year 2012,
the Supreme Court took suo motu action and issued
notice to the Union of India, State of Jammu and Kashmir
G and the Chairman/President of the Amarnathji Shrine
Board. After hearing the parties, noticing lack of public
amenities, facilities, health care and particularly the high
rate of mortality and the need to take immediate and
effective steps to remedy the same, the Court constituted
H a Special High Powered Committee (SHPC). The SHPC
COURT ON ITS OWN MOTION v. UNION OF INDIA & 1095
ORS.
submitted its report making recommendations on the A
issues of health, environment, registra,tion, access
control and security, track conditions and other public
amenities. The recommendations were accepted by all
the parties.
Disposing of the petition, the Court B
HELD: 1.1. Article 19(1 )(d) of the Constitution of India
gives a citizen the right to move freely throughout the
territory of India. This right, like any other fundamental
freedom is neither absolute in terms nor is free from c
restrictions. Article 19(5) subjects this right to imposition
of reasonable restrictions which the State by law may
enact. Such restriction has to be jn the interest of general
public or for the protection of interest of any Scheduled
Tribe besides being reasonable and within its legislative
0
competence. [Para 9] [1114-F-H]
1.2. Article 25 of the Constitution deals with the Right
to Freedom of religion, subject to public order, morality,
health and other provisions stated in Part Ill of the
Constitution. All persons are equally entitled to freedom E
of conscience and the right to freely profess, practice
and propagate religion. Again this right is subject to
reasonable restrictions within the ambit of Article 25{2) of
the Constitution. [Para 9] [1114-H; 1115-A-B]
1.3 .. The scheme under the Constitution F
unambiguously enshrines in itself the right of a citizen to
life under Article 21 of the Constitution. The rfght to life
is a right to live with dignity, safety and in a clean
environment. The ambit of Article 21 of the Constitution
has been expanded by judicial pronouncements G
consistently. The judgments have accepted such right
and placed a clear obligation on the part of the State to
ensure meaningful fulfillment of such right. Article 21 of
the Constitution, with the development of law has
H
1096 SUPREME COURT REPORTS [2012] 13 S.C.R.
A attained wide dimensions, which are in the larger public
interest. [Para 9] [1114-E-F]
1.4. The expression 'life' enshrined in Article 21 of the
Constitution does not connote mere animal existence or
continued drudgery through life. It has a much wider
B meaning which includes right to livelihood, better
standard of living, hygienic conditions in the workplace
and leisure. The right to life with human dignity
encompasses within its fold, some of the finer facets of
human civilization which makes life worth living. The
C expanded connotation of life would mean the tradition and
cultural heritage of the persons concerned. [Para 11]
[1116-D-F]
Consumer Education and Research Centre v. Union of
D India (1995) 3 sec 42 : 1995 (1) SCR 626; C.E.S.C. Ltd.
v. Subhash Chandra Bose (1992) 1 SCC 441 : 1991 (2)
Suppl. SCR 267 - relied on.
1.5. The socio-economic justice for people, is the very
spirit of the preamble of the Constitution. 'Interest of
E general public' is a comprehensive expression
comprising several issues which affect public welfare,
public convenience, public order, health, morality, safety
etc., all intended to achieve the socio-economic justice
for people. [Para 1O] [1115-F-G]
F 1.6. Article 25(2) of the Universal Declaration of
Human Rights ensures right to standard of adequate
living for health and well-being of an individual including
housing and medical care and the right to security in the
event of sickness, disability etc. [Para 11] [1116-D]
G
1.7. Security to citizens by the State is also a very
sensitive issue. The State has to draw a careful balance
between providing security, without violating
fundamental human dignity. The primary task of the State
H is to provide security to all citizens without violating
COURT ON ITS OWN MOTION v. UNION OF INDIA & 1097
ORS.
human dignity. Powers conferred upon the statutory A
authorities have to be, perforce, admitted. Nonetheless,
the very essence of constitutionalism is also that no
organ of the State may arrogate to itself powers beyond
what is specified in the Constitution. [Para 12] [1117-B-
D] B
In Re: Ramlila Maidan Incident (2012) 5 SCC 1:2012
/
(4) SCR 971- relied on.
1.8. The rights of yatris, to the holy shrine of
Amarnath, enshrined under Article 21 of the Constitution, c
· . are being violated. There is admittedly lack of basic
amenities and healthcare. The walking tracks are not only
deficient but are also not safe for the pedestrians. The
management and arrangements for the yatris at the
glacier and near the Holy Shrine are pathetic. Keeping in
0
mind the number of yatris who come to pay their homage
at the Holy Shrine every year, the management suffers
from basic· infirmity, discrepancies, inefficiency and 111-
planning. The Government of India, State of Jammu and
Kashmir and the Shrine Board are under a constitutional
obligation to provide free movement, protection and E
health care facilities along with basic amenities and
proper tracks to be used by the yatris. [Para 9] [1115-C-
E]
1.9. There is still a greater obligation upon the Centre, F
State and the Shrine Board in terms of Article 48A of the
Constitution, where it Is required to protect and Improve
the environment. Where It Is the bounden duty of the
State to protect the rights of the citizen In discharge of
its constitutional obligation in the larger public interest, G
there the law also casts a duty upon the State to ensure
due protection to the forests and environment of the
country. The concept of Inter-generational equity has
been treated to be an Integral part of Article 21 of the
Constitution. The Courts have applied this doctrine of
sustainable development and precautionary principle to H
1098 SUPREME COURT REPORTS (2012] 13 S.C.R.
A the cases where development is necessary, but certainly
not at the cost of environment. The Courts are expected
to drive a balance between the two. The onerous duty lies
upon the State to ensure protection of environment and
forests on the one hand as well as to undertal<e
s necessary development with due regard to the
fundamental rights and values. The appropriate balance
between different activities of the State is the very
foundation of the socio-economic security and proper
enjoyment of the right to life. [Paras 11, 14 and 15] [1116·
c C; 1117-H; 1118-A·B·D]
Bhim Singh v. Union of India (2010) 5 SCC 538:2010
(6) SCR 218 -relied on.
1.10. In the present case, all the parties are ad idem
on the issue that much is required to be done. The report
0 of the SHPC has accepted the existence of lacl< of
facilities, non-availability of proper health care, need for
proper management, providing of proper passage/
walking tracks and finally the basic amenities. The report
proceeds on· the basis that much is required to be done
E by the State and the Shrine Board. The State and the
Shrine Board under the umbrella of the Union of lndla
have to act in tandem, with great co-operation, co·
ordination and objectivity so as to ensure protection of
rights on the one hand and discharge of Its obligations
F on the other. Steps are required to be taken Including
development of the area but with due regard to the
environmental and forest Issues. [Paras 16 and 17] [1118·
E·G; 1119·B·C]
2.1. There Is a clear mandate of law for this Court to
G protect the fundamental rights of the cltlzeno.
lnfrlngemento of rights would certainly Invite the Court'o
assistance. The limitation of acceptability to justice will
not come In the way of tho Court to extend Its powero to
ensure due regard and enforcement of the fundamental
H rlghto. The aboence of statutory law occupying the field
COURT ON ITS OWN MOTION v. UNION OF INDIA & 1099
ORS.
formulating effective measures to check breach of rights A
is the true scope of proper administration of justice. It is
.the duty of the Executive to secure the vacuum, if any,
by executive orders because its field is coterminous with
that of the Legislature and where there- is inaction even
by the Executive, for whatever reason, the Judiciary must B
step in, in pursuance of its constitutional obligation to
provide solution in any case till the time the Legislature
addresses the issue. The courts have taken precaution
not to pass orders even within the ambit of Article 142 of
the Constitution that would amount to supplanting c
substantive law but at the same time these constitutional
powers cannot in any way be controlled by any statutory
provision. The absence of law and a vacuum or lacunae
in law can always be supplied by judicial dictum. In some
cases, where the jurisdiction-is invoked to protect the
0
fundamental rights and their enjoyment within the
limitation of law, the Court has even stepped in to pass
orders which may have the colour of legislation, till an
appropriate legislation Is put in place. The directions of
the Court could be relatable to a particular lls between the E
parties and even could be of a generic nature where the
facts of the case called for. There can be cases where
· there is no Infringement of a specific legislation or even
where no legislation Is in place but are ,purely cases of
infringement of fundamental rights and their violation.
The directives are needed to protect them and to ensure F
that the State discharges Its obligation of protecting the
rights of the people as well as the environment. The
deficiencies In the aforementioned fields are not
deficiencies simplicltor but have far reaching
consequences of violating the fundamental protections G
and rights of the people at large. It Is the obligation of the
State to provide safety, health care, means to freely move
and to profess the religion In the manner as they desire
Insofar as It Is within the limitations of law. [Para 29]
[1142-D·H i 1143·A·D] H
1100 SUPREME COURT REPORTS [2012] 13 S.C.R.
A M. C. Mehta v. Union of India (1987) 1 SCC
395:1987(1) SCR 819; Vishaka v. State of Rajasthan (1997)
6 SCC 241 :1997 (3) Suppl. SCR 404; Vineet Narain v.
Union of India (1998) 1 SCC 226 :1997 (6) Suppl. SCR 595;
University of Kera/a v. Council of Principals of Colleges,
B Kera/a and Ors. (2010) 1 SCC 353 : 2009 (15) SCR 800 -
relied on.
2.2. Certainly some development projects would
have to be undertaken but without infringing on the
protection to the forests or the environment. These are
C ecologically and climatically sensitive areas. It must be
ensured that development does not impinge upon the
purity of the environment beyond restricted and
permissible limits. The doctrine of sustainable
development and precautionary principle would be the
D guiding factors for the courts to pass such directions. The
Expert Committee Report recommended the various
steps, development programmes and precautions that
could be undertaken by the Government and the Shrine
Board to the advantage of all stakeholders, partlcularly
E the pilgrims. Thus, the directions, this Court contemplates
to issue under this order, are in conformity with these
legal maxims and are likely to cause no practical issues.
It Is apparently the constitutional obligation of this Court
to issue specific· directions in addition or which are to be
F read mutatis mutandis to the Report of the SHPC dated
6th September, 2012. The report shall be complementary
to the directions of the Court and not In derogation
thereof. [Paras 30, 31 and 23] [1137-D; 1143-E-H; 1144-
A-B]
G 2.3. All the recommendations contained in the report
shall be Implemented under two different heads, I.e.,
'short-term measures' and 'long-term measures'. This
categorization shall be made by the Sub-Committee
consisting of Chief Secretary of the State of Jammu and
H Kashmir; Secretary, Home, State of Jammu and Kashmir;
COURT ON ITS OWN MOTION v. UNION OF INDIA & 1101
ORS.
and CEO of the Amarnathji Shrine Board. [Para 31 - sub A
Para 3) [1144-D-F]
2.4. Steps in relation to health care, improvement of
walking tracks, providing of pre-fabricated toilets, tents,
pre-fabricated walking path/mats, construction of STPs
and providing of one way tracks shall be treated as short- 8
term measures. [Para 31 - sub Para 4) [1144-F-G]
2.5. The Sub-Committee constituted under this order
shall be at liberty to consult or obtain opinion of any
expert body, as it may deem fit and proper, in the facts C
and circums~nces. [Para 31 - sub Para 20) [1148-B-C]
6. All the directions and the recommendations m2de
in the report of the SHPC should be carried out by all
concerned without demur or protest and expeditiously.
Any officer of any State, irrespective of his position in the D.
State hierarchy shall personally be held liable and
proceeded against, in the event of default and/or violation
of the directions/ recommendations of the SHPC. [Para
31-sub Para 21) [1148-C-E]
2.7 The Sub-Committee would be personally liable for E
compliance of the order of the Court. Liberty is granted
to this Sub-Committee to seek clarification, If any, at any
time. The Sub-Committee is also given liberty to bring to
the notice of this Court if any authority/officer/the
Government falls to render the required help or take F
desired action and/or is instrumental in violating the
orders and directions of the Court. [Para 31 - sub Paras
22 and 23] [1148-F·H; 1149-A]
Case Law Reference:
G
1995 ( 1 ) SCR 626 relied on Para 5
1991 (2) Suppl. SCR 267 relied on Para 8
2012 (4) SCR 971 relled on Para 9
2010 (6) SCR 218 relied on Para 10 H
1102 SUPREME COURT REPORTS [2012] 13 S.C.R.
A 1987(1) SCR 819 relied on Para 15
1997 (3) Suppl. SCR 404 relied on Para 15
1997 (6) Suppl. SCR 595 relied on Para 15
2009 (15) SCR 800 relied on Para 15
B
CIVIL ORIGINAL JURISDICTION : Suo-Motu Writ Petition
(Civil) No. 284 of 2012.
Under Article 32 of the Constitution of India.
c By Courts Motion for Petitioner.
M.I. Qadri, AG, Siddhartha Luthra, ASG, Mukul Gupta,
Upinder K. Jalali, M.N. Krishnamani, Gaurav Pachnanda, AAG,
Ranjana Narayan, Devina Sehgal, Rajat Mathur, T.A. Khan, B.
D Krishna Prasad, S.N. Terdal, Sunil Fernandes, Vernika Tomar,
Rahul Sharma, Raghav Chadha, lnsha Mir, Mishra Saurabh,
Rani Chhabra, D. Bharat Kumar, Rajeev Singh, V. Pattabhiram,
Saqyooj Mohan Das, Kritika Sharma, Rekha Palli, AV. Palli,
Anupam Raina for the appearing parties.
E
The Judgment of the Court was delivered by
SWATANTER KUMAR, J. 1. Taking notice of the
persistent press reports dealing with the poor arrangements
and number of deaths that occurred during the yatra in the year
F 2012 to the holy cave of Amarnathji, the Court took suo motu
action and issued notice to the Union of India, State of Jammu
and Kashmir and the Chairman/President of the Amarnathji
Shrine Board vide its order dated 13th July, 2012. It will be
appropriate to reproduce the said order at this stage itself:-
G
"Today's 'The Times of India' and 'Hindustan Times' reports
67 deaths of pilgrims mostly because of the cardiac
arrests as well for other reasons. As per these reports,
this has happened in 17 days. Last year 105 persons died
H during the 45 days' yatra. Thus, this year it appears to be
COURT ON ITS OWN MOTION v. UNION OF INDIA & 1103
ORS. [SWATANTER KUMAR, J.]
on the rise. In our considered view, the pilgrims have a A
constitutional right under Articles 21 and 19(1 )(d) to move
freely throughout the territory of India, free of fear, with
dignity and safety and to ensure enforcement of such right
is the primary obligation of the State and the Central
Governments. B
.
Where it is a matter of common knowledge that the
yatra to the 'Holy Cave of Amarnath' is an occasion of
privilege and pride for a devotee, there it is also a matter
of great concern for the Government of India, the C
Government of the State of Jammu & Kashmir and the
Amarnath Shrine Board. Some of the events that have
been widely reported in the newspapers compel us to take
a judicial notice of the lack of necessary facilities, essential
amenities and the risk to the lives of the yatris, en route
and around the "Holy Cave of Amarnath". D
On 3rdJuly, 2012, it was reported in the Hindustan
Times, Delhi Edition, that two more pilgrims died of
cardiac arrest on Sunday, taking the toll to 22. Both the
pilgrims were stated to be in their mid-thirties. One pilgrim E
was on her way to the holy shrine while the other was
returning to Pahalgam Base Camp (Names : Ms. Anita
Chourasia and Sadhu Ram). The same daily on 2nd of
July, 2012 had reported that there were deaths of five more
devotees as a result of cardiac arrest at the Pahalgam and F
Balta! Base Camps. These were the deaths reported to
have occurred between 25thJune, 2012 to 2ndJuly, 2012
on the twin tracks of Balta! in Ganderbal and Pahalgam in
Amarnath. This daily also reported that nearly 1.20 lakh
pilgrims had so far paid obeisance to the shivalingam at G
the holy cave. This newspaper also showed the path and
the weather conditions to which the yatris to the Holy Cave .
were exposed and the amenities that were available at the
glacier.
The Times of India, New Delhi Edition on 29thJune, H
1104 SUPREME COURT REPORTS [2012] 13 S.C.R.
A 2012 had reported that there was an unidentified body of
55-year old pilgrim which was recovered along the
Pehalgam cave route in Anantnag district.
Similarly, on 28th June, 2012, the Hindustan Times,
while referring that the Management had directed increase
B
of security at the yatri base camps to maintain proper
schedule, had reported that the death toll within the first
three days of the commencement of the yatra was six. The
same newspaper dated 27thJune, 2012 had shown a
photograph of the passage that more than 18000 pilgrims
c had visited the holy cave, which is at the height of 3,880
metres, in three days. It showed one of the passages
leading to the holy cave. From this picture itself, it is clear
and even otherwise it is a matter of common knowledge
that the path leading to the holy cave is not only very small
D but is even unprotected. The photographs also show that
hardly any amenities are available for the yatris in and
around the holy cave, though thousands of people who
throng the holy cave have to wait for hours and days for
having the darshan. It has also been published in other
E papers that in the initial days of the yatra, one person had
died because of the fall from the height as there was no
support or protection on the path leading to the holy cave.
The path somewhere is stated to be even less than six feet
and does not have any grill or protection (like pagdandi),
F which could prevent the people walking on these
constricted paths/passages from falling. All the palkis,
horses and even the yatris walking on foot, travel on the
same path at the same time, thus causing complete jams
on the already tapered paths leading to the holy cave.
G
With the passage of time, the things have hardly
improved. We may refer to what was the situation was in
the year 2011, as per the newspaper reports of the
relevanUconcerned year.
H The Indian Express while reporting the
COURT ON ITS OWN MOTION v. UNION OF INDIA & 1105
ORS. [SWATANTER KUMAR, J.]
commencement of the yatra in its newspaper dated 29th A
June, 2011 reported that nearly 2.5 lakh pilgrims had
registered themselves for the annual pilgrimage with the
Amarnath Shrine Board till the aforesaid date and 2000
pilgrims had already left the State of Jammu for the yatra.
It also reported a very unfortunate incident where a person B
named Rajinder Singh, aged 55 years, resident of Jaipur
had died due to cardiac arrest at Baltal base camp in
Ganderbal district of Kashmir.
Again on 1st July, 2011, the same paper reported C
that a group of men and women, young, elderly and
children with their backpacks walked up the winding steep
gradient of the road to the cave shrine. In this report
reference was made to the statement of the public that
there were no vehicles and it was very difficult for the
pilgrims to travel and walk such long distances. From D
Baltal route, 13,000 pilgrims left while 9000 pilgrims left
from Chandanwari for darshan to the holy cave.
With the increase in the number of pilgrims coupled
with the poor management, it appears that there was a E
sharp increase in the casualty rate. In the Indian Express
dated 6thJuly, 2011, it was reported that 18 yatris had died '
within a week of the commencement of the journey. This
included elderly people as well as young victims. One Mr.
Vikram Rathore, who died, was only aged 25 years. It F
appeared from this report that constraints on the availability
of medical aid and medical examination is writ large.
The same newspaper on 8thJuly, 2011 reported that
three more pilgrims died during the yatra raising the toll
to 27. Even a constable namely lnderjeet Singh posted G
with 28 Battalion, Central Reserve Police Force (for short
'CRPF'), Srinagar, died of heart attack while returning from
the cave. Another person aged about 54 years hailing from
Gujarat also died of cardiac arrest at Sangam top much
ahead of the shrine. Still another detailed article appeared
1106 SUPREME COURT REPORTS (2012] 13 S.C.R.
A in the Times of India dated 18th July, 2011 detailing the
lack of facilities, referring to the rush of the pilgrims at the
base points as well as at the holy cave. A pilgrim from
Guwahati stated: "Half-an-hour after starting out for the
shrine from Panchtarni, which is a place 6 km from the
B holy cave, we were trapped in a jam for close to two hours.
There was not an inch of space on the path. There was
pushing and shoving as yatris got restless. A sudden
movement or a horse or commotion in a section of the
crowd could have caused a big stampede". Referring to
c the statement of an officer, the report stated that the
pilgrims had to be regulated from the base camps and
there was very little that the members of the Forces could
do at the narrow pathways or the holy cave to control the
situation. Nearly 22,000 pilgrims visited the shrine daily
while the limit, as per the administration itself, was reported
D
to be 3,400 per day only. It is again a matter of great
regret that obviously because of lack of proper aid and
amenities, the death toll had gone upto 85 on 21st July,
2011, as was reported in "The Hindu" of the even date.
E All these reports clearly showed disregard to the
human life. Lack of facilities at the shrine and on the paths
' leading to the shrine is evident from all the aforestated
articles and the photographs published therein. This Court
has repeatedly held that in terms of Article 21 of the
F Constitution of India, a person has a right to live with
dignity and not be subjected to inhuman treatment,
particularly in such places where large number of people
are bound to visit because of their faith. It can also be
hardly disputed that huge revenue is generated as a result
G of visit of large number of pilgrims to the Holy Cave. The
Amarnath Shrine Board receives huge amount of money
not only by way of offerings but also from the charges/fee
it takes from the pony-owners, palkiwallahs as we!! as the
helicopter services available between Balta! and
H Panchtarni.
COURT ON ITS OWN MOTION v. UNION OF INDIA & 1107
ORS. [SWATANTER KUMAR, J.]
It is also evident that there is a complete lack of A
adequate essential amenities and facilities for the yatris
who come to pay their tribute at the 'Holy Cave at
Amarnath'. Lack of medical facilities and limitations of the
officers/officials of the Forces are some other facets which
need to be considered by the concerned authorities. s
It also appears to be a very sensitive place from the
environmental point of view and in terms of the provisions
of the Environment Act, 1986 and the constitutional
obligation placed upon the concerned authorities, it is C
expected that proper measures be taken to prevent such
high death rate, controlling pollution and providing the
requisite facilities and improving the services required for
successful completion of such yatras.
It is expected of a Government and the concerned D
authorities to devote more attention and provide
appropriate amenities and facilities to protect the life of ·
the individuals, the environment as well as ensure to make
the yatra effective and successful, preferably without any
human casualty. The authorities cannot shirk from their E
responsibility of providing minimum essential facilities
including medical assistance, roads and other necessary
. infrastructure. Visit of lacks of people to the State of
Jammu & Kashmir generates revenue for the State, in fact,
for the residents of that State and add to the need for F
better tourism facilities. The authorities are also expected
to better equip the Forces posted at the holy cave, base
points and en route to the holy cave.
It is a settled canon of constitutional law that the
doctrine of sustainable development also forms part of G
Article 21 of the Constitution. The 'precautionary principle'
and the 'pollutor-pays principle' flow from the core value in
Article 21. The Supreme Court in its judicial dictum in the
case of Gfanrock Estate Pvt. Ltd. vs. State of Tamil Nadu
(2010) 10 SCC 96 has held "forests in India are an H
1108 SUPREME COURT REPORTS [2012] 13 S.C.R.
A important part of the environment. They constitute a
national asset and intergenerational equity is also part of
the Article 21 of the Constitution and cautioned that if
deforestation takes place rampantly, then intergenerational
equity would stand violated.
B
~ight to life is enshrined under Article 21 of the
Constitution which embodies in itself the right to live with
dignity. The State is not only expected but is under a
constitutional command to treat every citizen with human
dignity and ensure equal treatment to all. In our considered
c view and as demonstrated by these newspaper reports,
inhuman, unsafe and undesirable conditions are prevailing
at the base camps and en route to the holy cave. The
yatris do have a right and the State is under constitutional
obligation to provide safe passages, proper medic.al aid,
D appropriate arrangement and at least some shelter to the
thousands of yatris visiting the holy cave every day. They
are also expected to equip the forces deployed with
appropriate equipments facilities and the authorities
should ensure that no untoward incident occurs at the holy
E places. In our view, the following questions arise for
consideration of the Court: -
1. Whether there exists proper medical facilities ·to
prevent human casualties. Further to provide
F emergency medical aid in the event of these yatris
falling sick because of cardiac and other related
problems.?
2. What steps are being taken and have been taken
to protect the environment in that area?
G
3. What essential amenities have been provided at the
base camps and en route to the holy c.ave keeping
in view that lakhs of people are visiting the shrine
every day.
H
COURT ON ITS OWN MOTION v. UNION OF INDIA & 1109
ORS. [SWATANTER KUMAR, J.]
4. What measures are being taken and methods A
being adopted for collection and disposal of the
waste including domestic and human waste
generated by the yatrisen route and around the holy
cave?
B
5. What are the facilities and equipments available,
particularly for protecting or treating conditions such
as dyspnoea, cardiac arrest and other heart related
problems.
6. What is the cause for such high casualty rate and c
whether there exists the required medical
equipments to ensure that in future such casualties
can be avoided?
7. What measures and means are available with the D
authorities on ground for handling such huge crowd
and why seven times the requisite number of people
coming to visit the cave per day are being
permitted and if so, whether there is requisite
infrastructure at the site for handling such huge 'E
crowd?
The time intervening the previous and the current year
clearly demonstrates that the authorities have not taken any
effective and appropriate measures for protecting the life
of thousands of devotees who visit the holy cave during this F
limited period, despite the print media repeatedly bringing
this to the notice of all concerned. Thus, within the
constitutional mandate of Article 21, this Court would have
no option but to pass appropriate directions.
G
All these aspects need to be taken care of by the
concerned authorities certainly with greater emphasis and
they cannot escape their obligation to provide minimum
essential facilities including roads as an approach to the
holy cave. They are expected to equip their Forces posted H
1110 SUPREME COURT REPORTS [2012) 13 S.C.R.
A in an around the cave so as to have complete human
dignity for the persons working there as well as for the
pilgrims coming to the holy cave. They are also expected
to make appropriate arrangements for darshans at the
holy cave so as to avoid health hazards and injuries,
B provide proper paths and one-way system passages to the
pilgrims to the Holy Cave. Therefore, taking suo motu
notice of the articles which are placed below and to
appropriately deal with this serious subject, answer the
above questions and evolve solutions within the framework
c of law, we require the following to appear and answer
before this Court:
1. Union of India, through its Secretary.
2. Ministry of linvironment and Forests, through its
D Secretary
3. State of Jammu and Kashmir, through its Chief
Secretary.
4. Chairman/President of the Amarnathji Shrine
E Board.
Issue notice, returnable within a week. Dasti."
2. The notice was served upon the concerned respondents.
F The respondents filed their respective replies by way of
affidavits on record. Vide order dated 20th July, 2012, when
the petition was called on for hearing, the Court, after hearing
the counsel appearing for the parties at some length, while
noticing the lack of public amenities, facilities, health care and
particularly the high rate of mortality and the need to take
G immediate and effective steps to remedy the same, constituted
a Special High Powered Committee (for short 'SHPC'). This
SHPC consisted of representatives from different Ministries of
the Union of India, Chief Secretary and other officers of the
State of Jammu and Kashmir, Director Generals of the Border
H
COURT ON ITS OWN MOTION v. UNION OF INDIA & 1111
ORS. [SWATANTER KUMAR, J.]
Security Force and the Border Roads Organizations etc. The A
SHPC was expected to visit the site and make its
recommendations in the form of a Report to the Court inter alia,
on the following points: -
"1. Construction of proper passages, wide enough and
B
with due support on both sides, for the traffic of pedestrian
yatris, or horses and by palkis from Panchtarni to the Holy
Cave.
2. Providing one-way passage with separate tracks, one
for pedestrians and other'for horses, carriages and palkis C
near the Shrine.
3. Providing of health check-up facilities on both the
passages from baltal and Panchtarni to the Holy Cave.
4. Providing of proper public amenities and facilities on D
way and at the lower end of the glaciers near the Holy
Cave.
5. All such other steps which are required to be taken for
preventing unfortunate deaths of the yatris, going on yatra, E
to the Holy Cave.
6. Deployment of more forces and to provide better
conditions of service for the members of the forces, posted
on way and at the Holy Cave.
F
7. Environmental Impact Assessment.
8. The manner and methods to be adopted to attain the
above, with least damage or interference with the
environment of the entire zone right from Baltal to the Holy G
Cave from different routes.
9. Deployment of more medical teams, at regular distance
on all the passages leading to the Holy Cave.
H
1112 SUPREME COURT REPORTS [2012] 13 S.C.R.
A 10. Registration of yatris at Jammu, Srinagar, Baltal and
Panchtarni.
11. It should also consider the possibility of limited number
of yatris being released from Srinagar to Baltal to ensure
better management, hygiene, healthcare and betterment
B
of the yatris, who stay there overnight.
12. Medical examination at the time of registration and
on way."
c 3. Thereafter, in the order dated 23rd July, 2012, the Court
also noticed that within three days the mortality rate had gone
up from 84 to 97 which was a matter of great worry for all
concerned.
4. The report of the SHPC was submitted along with the
D affidavit dated 6th September, 2012, sworn by Sh. Madhav Lal,
Chief Secretary to the Government of Jammu and Kashmir.
This report made its recommendations under eight different
heads.
E 5. Besides dealing with the issues of health, environment,
registration, access control & security, track conditions and
other public amenities, the Report stated its recommendations
under the head 'Summary of Recommendations'.
F 6. The counsel appearing for the parties, including for the
State of Jammu and Kashmir and the Shrine Board, submitted
before the Court that by and large, the recommendations of the
SHPC were acceptable. In fact, they even assured the
compliance of the recommendations, subject to statutory
clearance from the different authorities. The Court noticed that
G the recommendations of the SHPC could be divided into two
different classes: Short-term perspective and Long-term
perspective. Short-time perspective involved the steps which
the Government and the Shrine Board were to proceed to take
forthwith and which required immediate attention of all the
H stakeholders. Long-term perspective included steps where the
. COURT ON ITS OWN MOTION v. UNION OF INDIA & 1113
ORS. [SWATANTER KUMAR, J.]
larger element of planning was involved and their compliance A
was likely to take some time. In that very order, the Court had
directed immediate compliance of certain works at Baltal and
surrounding areas. They related to sewage system (STP) at
Balta! and widening of passage from Balta! to the holy shrine.
The Chief Secretary of the State of Jammu and Kashmir and B
the Shrine Board were directed to take appropriate steps for
planning of matters relating to medical facilities, registration and
other ancillary works including deployment of force and one way
passage at the Shrine during the next yatra.
7. Vide his letter dated 4th December, 2012, the Ministry C
of Environment and Forests, Government of India, informed the
Additional Solicitor General that the affidavit of the State of
Jammu and Kashmir had been perused in compliance with the
orders of this Court and that the environmental issues had been
correctly reflected therein, in accordance with the final report D
prepared by the SHPC and the Ministry was in agreement with
the contents of the affidavit. Similarly, the Ministry of Health and
Family Welfare, Government of India, vide its letter dated 3rd
December, 2012 had also informed the Additional Solicitor
General that a meeting was held by the Union Health Secretary E
with the Government of Jammu and Kashmir and the Chief
Executive Officer of the Shrine Board to decide the further
course of action on health issues in terms of the report of the
SHPC. The issues also related to the States and the Union
Territories, identifying the institutions for medical certification F
and augmenting manpower to. support the efforts of the State
Government. Inter alia, the points for attention were stated as
follows:
"(i) Identify Chief Medical Officer/Medical Superintendent/ G
Block Medical Officer/other Government doctors
authorized by the State Government for issuance of
compulsory health certificate.
(ii) Provide list of private medical institutions authorized
H
1114 SUPREME COURT REPORTS [2012] 13 S.C.R.
A by the State Governments to issue compulsory health
certificate and
(iii) Make available services of Specialists and General
Duty Medical Officers to supplement the efforts of the Govt.
of Jammu & Kashmir."
B
8. From the above narration it is clear that the Union of
India, its various Ministries, the State of Jammu and Kashmir
and the Amarnathji Shrine Board were ad idem in regard to
the contents and implementation of the report submitted by the
C SHPC. During the course of hearing of the petition,
applications for intervention were filed, which have also been
considered. The interveners and all other stake holders were
heard at great length. During the course of hearing, certain
further suggestions were made, which were found to be useful
D and in general public interest.
9. The scheme under the Indian Constitution unambiguously
enshrines in itself the right of a citizen to life under Article 21
of the Constitution. The right to life is a right to live with dignity,
E safety and in a clean environment. The ambit of Article 21 of
the Constitution has been expanded by judicial
pronouncements consistently. The judgments have accepted
such right and placed a clear obligation on the part of the State
to ensure meaningful fulfillment of such right. Article 21 of the
F Constitution, with the development of law has attained wide
. dimensions, which are in the larger public interest.
Furthermore, Article 19(1)(d) gives a citizen the right to move
freely throughout the territory of India. This right, of course, like
any other right is not absolute in terms or free of restrictions.
This right, of course, like any other fundamental freedom is
G neither absolute in terms nor is free from restrictions. Article
19(5) subjects this right to imposition of reasonable restrictions
which the State by law may enact. Such restriction has to be in
the interest of general public or for the protection of interest of
any Scheduled Tribe besides being reasonable and within its
H legislative competence. Article 25 deals with the Right to
COURT ON ITS OWN MOTION v. UNION OF INDIA & 1115
ORS. [SWATANTER KUMAR, J.]
Freedom of Religion, subject to public order, morality, health A
and other provisions stated in Part Ill. All persons are equally
entitled to freedom of conscience and the right to freely profess,
practice and propagate religion. Of course, again this right is
subject to reasonable restrictions within the ambit of Article
25(2) of the Constitution: In light of these three Articles, now B
we have to examine which rights of the citizens are being
violated and what is the scope of the present proceedings
before the court and what directions, if any, the court can issue
within the four corners of law. It has undoubtedly and
indisputably come on record that the rights of yatris to the holy c
shrine enshrined under Article 21 of the Constitution of India,
are being violated. There is admittedly lack of basic amenities
and healthcare. The walking tracks are not only deficient but •
are also not safe for the pedestrians. The management and
arrangements for the yatris at the glacier and near the Holy 0
Shrine are, to say the least, pathetic. Keeping in mind the
number of yatris who come to pay their homage at the Holy
Shrine every year, the management suffers from basic infirmity,
discrepancies, inefficiency and ill-planning. The Government
of India, State of Jammu and Kashmir and the Shrine Board
are under a constitutional obligation to provide free movement, E
protection and health care facilities along with basic amenities
and proper tracks to be used by the yatris.
10. Now, we may examine. the dimensions of the rights
protected under Article 21 of the Constitution of India. The F
socio-economic justice for people is the very spirit of the
preamble of our Constitution. 'Interest of general public' is a
comprehensive expression comprising several issues which
affect public welfare, public convenience, public order, health,
• morality, safety etc., all intended to achieve the socio-economic G
justice for people. In the case of Consumer Education and
Research Centre v. Union of India (1995) 3 SCC 42, this Court
while noticing Article 1 of the Universal Declaration of Human
Rights, 1948 (for short 'UDHR') asserted that human sensitivity
and moral responsibility of every State is that "all human beings H
1116 SUPREME COURT REPORTS [2012] 13 S.C.R.
A are born free and equal in dignity and rights. They are endowed
with reason :md conscience and should act towards one
another in a spirit of brotherhood." The Court also observed
"the jurisprudence of personhood or philosophy of the right to
life envisaged under Article 21, enlarges its sweep to
B encompass human personality in its full blossom with
invigorated health which is a wealth to the workman to earn his
livelihood, to sustain the dignity of person and to live a life with
dignity and equality."
C 11. Not only this, there is still a greater obligation upon the
Centre, State and the Shrine Board in terms of Article 48A of
the Constitution where it is required to protect and improve the
environment. Article 25(2) of the UDHR ensures right to
standard of adequate living for health and well-being of an
individual including housing and medical care and the right to
D security in the event of sickness, disability etc. The expression
'life' enshrined in Article 21 of the Constitution does not connote
mere animal existence or continued drudgery through life. It has
a much wider meaning which includes right to livelihood, better
standard of living, hygienic conditions in the workplace and
E leisure. The right to life with human dignity encompasses within
its fold, some of the finer facets of human civilization which
makes life worth living. The expanded connotation of life would
mean the tradition and cultural heritage of the persons
concerned. In the case of Consumer Education & Research
F Centre (supra), the Court discussing the case of C.E.S.C. Ltd.
v. Subhash Chandra Bose [(1992) 1 SCC 441) stated with
approval that in that case the Court had considered the gamut
of operational efficacy of human rights and constitutional rights,
the right to medical aid and health and held the right to social
G justice as a fundamental right. The Court further stated that the
facilities for medical care and health to prevent sickness,
ensure stable manpower for economic development and
generate devotion to duty and dedication to give the workers'
best performance, physically as well as mentally. The Court
H particularly, while referring to the workmen made reference to
/ i
)
COURT ON ITS OWN MOTION v. UNION OF INDIA & 1117 \
ORS. [SWATANTER KUMAR, J.] \
Articles 21, 39(e), 41, 43 and 48-A of the Constitution of India A
to substantiate that social security, just and humane conditions
of work and leisure to workmen are part of his meaningful right
to life.
12. Security to citizens by the State is also a very sensitive 8
issue. The State has to draw a careful balance between
providing security, without violating fundamental human dignity.
In the case of In Re: Ramlila Maidan Incident (2012) 5 SCC 1,
the Court observed "the primary task of the State is to provide
security to all citizens without violating human dignity. Powers C
conferred upon the statutory authorities have to be, perforce,
admitted. Nonetheless, the very essence of constitutionalism
is also that no organ of the State may arrogate to itself powers
beyond what is specified in the Constitution."
13. In Bhim Singh v.. Union of India (2010) 5 SCC 538, D
while referring to the obligations of the State and its functions,
the Court held:
"53 .... it is also settled by this Court that in interpreting the
Constitution, due regard has to be given to the Directive E
Principles which has been recorded as the soul of the
Constitution in the context of India being the welfare State.
It is the function of the State to secure to its citizens "social,
economic and political justice", to preserve "liberty of
thought, expression, belief, faith and worship" and to F
ensure "equality of status and of opportunity" and "the
dignity of the individuals" and the "unity of the nation". This
is what the Preamble of our Constitution says and that is
what which is elaborated in the two vital chapters of the
Constitution on Fundamental Rights and Directive
Principles of the State Policy." G
14. Where it is the bounden duty of the State to protect
the above rights of the citizen in discharge of its constitutional
obligation in the larger public interest, there the law also casts
a duty upon the State to ensure due protection to the forests H
\
1118 SUPREME COURT REPORTS [2012) 13 S.C.R.
A and environment of the country. Forests in India are an
important part of the environment. They constitute a national
asset. We may, at this stage, refer to the concept of inter-
generational equity, which has been treated to be an integral
part of Article 21 of the Constitution of India. The Courts have
B applied this doctrine of sustainable development and
precautionary principle to the cases where development ·is
necessary, but certainly not at the cost of environment. The
Courts are expected to drive a balance between the two. In
other words, the onerous duty lies upon the State to ensure
c protection of environment and forests on the one hand as well
as to undertake necessary development with due regard to the
· fundamental rights and values.
15. From the analysis of the above, it is clear that the
appropriate balance between different activities of the State is
D the very foundation of the socio-economic security and proper
enjoyment of the right to life.
16. In the present case, as already noticed, there is hardly
any dispute. In fact, all the parties are ad idem on the issue
E that much is required to be done before the State can claim
that it has discharged its constitutional obligation in the larger
public interest. In fact, the report of the SHPC has accepted
the existence of lack of facilities, non-availability of proper health
care, need for proper management, providing of proper
F passage/walking tracks and finally the basic amenities. The
report proceeds on the basis that much is required to be done
by the State and the Shrine Board. The State and the Shrine
Board under the umbrella of the Union of India has to act in
tandem, with great cooperation, coordination and objectivity so
G as to ensure protection of rights on the one hand and discharge
of its obligations on the other.?
17. With the passage of time and passing of each yearly
yatra, the pilgrims' mortality rate has increased. Greater
difficulties are faced by the pilgrims in relation to health care,
H public amenities and sanitation arrangements. Besides this,
COURT ON ITS OWN MOTION v. UNION OF INDIA & 1119
ORS. [SWATANTER KUMAR, J.]
dire need exists for improvement of the walking tracks to the A
Shrine and proper management of separate one-way routes for
horses and palkis as one unit and pedestrians as the other unit.
With the passage of time, the number of yatris has increased.
In the recent yatra held in the year 2012, nearly 18,000 pilgrims
have paid their homage at the Shrine. It is a very complex issue B
comprising various facets. Steps are required to be taken
including development of the area but with due regard to the
environmental and forest issues. The SHPC had held various
meetings, deliberated on various aspects and problems and
after considerable deliberation and efforts, have submitted the c
report dated 6thSeptember, 2012. Under Chapter IX of this
report, the SHPC has submitted the summary of
recommendations. These recommendations read as under :
"SUMMARY OF RECOMMENDATIONS
D
9.1 Through its various Orders, the Hon'ble Supreme Court
has referred to several issues connected with· the
Amarnathji Yatra and directed the SHPC to make
recommendations in regard thereto. While the SHPC's
recommendations, issue-wise, are summarized in the E
paragraphs below, these may be read in conjunction with
the context, observations and rationale discussed in detail
in Chapters 1- 8.
9.2 HEATH ISSUES
F
9.2.1 The following issues were required to be examined
by the SHPC:
a) Providing of health check-up facilities on both
the passages from Baltal and Panchtarni to the G
Holy Cave.
b) All such other steps which are required to be
taken for preventing unfortunate deaths of the yatris,
going on yatra to the Holy Cave.
H
1120 SUPREME COURT REPORTS (2012] 13 S.C.R.
A c) Deployment of more medical teams, at regular
distance on all the passages leading to the Holy
Cave.
9.2.2 The SHPC has made the following recommendations
vis-avis the issues listed above:
B
9.2.3 The SHPC endorses the requirement of every Yatri
furnishing a Health Certificate while seeking Registration
for the pilgrimage. It also considers it necessary that the
format of the Compulsory Health Fitness Certificate should
c be revised to specifically reflect the existing ailments from
which applicant-Yatri may be suffering.
9.2.4 An Expert Medical Committee (three Medical
Specialists to be nominated by Union Health Ministry and
D one Medical Specialist to be nominated by the Government
of Jammu and Kashmir) should review the format of the
existing Compulsory Health Certificate and suggest
suitable modifications therein, as required. State Health
Secretary shall serve as the Convener of this Committee
which will also prescribe a check-list for issue of the
E
Certificate and its standard format.
9.2.5 There is need to reconsider the authority competent
to issue the Compulsory Heath Certificate, which is
currently being done by any Registered Medical
F Practitioner. The same should now be issued by the Chief
Medical Officer/ Medical Superintendent I Block Medical
Officer/ Government Doctors authorized by the concerned
State Government Health authorities. State Governments
and Union Health Ministry will also provide lists of reputed
G Private Medical Institutions, located in areas within their
respective jurisdictions, which may be authorised to issue
Health Fitness Certificates. CEO, SASS, shall compile
State-wise lists of such authorized institutions and arrange
to provide the widest possible publicity to such lists through
H all possible means.
COURT ON ITS OWN MOTION v. UNION OF INDIA & 1121
ORS. [SWATANTER KUMAR, J.]
9.2.6 The medical facilities should be rationally dispersed A
and relocated on the basis of critical assessments. A
Committee comprising the State Secretary Health, CEO
SASB, Director Health Services (Kashmir) and one senior
officer each from Army, BSF, CRPF and ITBP should
review the existing locations of all Medical Aid Centres B
(MACs) and rationalize the location of MACs and, wherever
necessary, increasing the number of MACs to ensure that
these are located at regular intervals/ distances from each
other and not in a cluster. Well equipped and staffed MACs
should be set up at Sangam and in Holy Camp Lower c
Camp area. ITBP (which has considerable experience of
organizing medical aid for Mansrovar Yatra) should be
asked to set up at least two MACs in the lower Holy Cave
and Sheshnag areas. They could perhaps set up more
MACs in subsequent years. D
9.2.7 There is need for establishing a well organised MAC,
along with adequate number of Rescue Volunteers, in the
Lower Cave and Sangam Top areas and also at other
locations like Kalimata Top, Railpathri, Nagakoti, Wavbal
~. E
9.2.8 Keeping in view that a fair percentage of pilgrims
prefer Indian Systems of Medicine (ISM), an increased
number of ISM medical camps could be provided at
suitable locations along both the routes. F
9.2.9 The Union Health Ministry and the States (particularly
those from where a relatively larger number of pilgrims
arrive) should be moved to provide the services of
Specialist doctors, as well as GDMOs, to supplement the
efforts of the State Government. G
9.2.10 The Union Health Ministry should facilitate timely
arrangements for appropriate training in High Altitude
Sickness Management being provided to doctors aFid
H
1122 SUPREME COURT REPORTS [2012] 13 S.C.R.
A paramedics of the J&K Health Department who are to be
deployed on Yatra duty.
9.2.11 The Union Health Ministry should enable
experienced Specialists to advise the State Health
authorities regarding the medicines, medical equipments
B
etc. which should be provided in MACs located in the high
altitude areas. The Union Health Ministry should also
supplement the efforts of the State to provide the required
equipments/medicines, particularly in regard to the
provision of portable Hyperbaric Chambers for on-the-spot
c decompression of sick Yatris at identified Medical camps.
9.2.12 The possibility of providing special insulated tents
or Prefabricated Huts or completing the pucca structures
to house medical facilities therein should be timely
D explored and the needful done by the State Health
Department with the required support, as needed, from the
Union Health Ministry.
9.2.13 The MACs at Holy Cave, Sangam, Panjtarni,
Sheshnag and Poshpathri should be housed in larger tents/
E
structures in which temperatures at 25-26 degrees can be
maintained for effective patient care. The State Health
Department should procure suitable tents/ prefabricated
huts for this purpose.
F 9.2.14 A Committee comprising CEO, SASB (Convenor),
one High Altitude Medicine Specialist (to be nominated by
the Union Health Ministry) and one Medical Specialist (to
be nominated by the State Health Department) will
prepare an appropriate food menu which shall be adhered
G to by the Langar Organizations. All other food items/ junk
food should be banned and not allowed to be served on
the Yatra route.
9.2.15 The SASB should make the Yatris better aware of
the challenges and the medical problems they are likely
H
COURT ON ITS OWN MOTION v. UNION OF INDIA &1123
ORS. [SWATANTER KUMAR, J.]
to face when they embark on an arduous trek and devise A
a suitable communication strategy in this regard. The
support of the Union Information and Broadcasting Ministry
should be sought for creating enhanced awareness among
the pilgrims through airing and screening of
Documentaries, Public Interest Messages (of both short B
and long duration) on AIR and Doordarshan National and
Regional Channels and besides, thrpugh private radio/TV
channels.
9.2.16 The SASB should publish pamphlets in other
regional languages, in addition to Hindi and English, since C
a good number of pilgrims hail from States which have
different languages. It would be useful for the SASB to also
arrange broadcast of public interest messages in regional
languages through television, radio and print media.
D
9.2.17 More Mountain Rescue Teams (MRTs) should be
deployed at identified points along both the Yatra routes,
in future pilgrimages. J&K Police should deploy about 6
MRTs in the Yatra area in the next three years and Union
Ministry of Home Affairs should provide the necessary E
resources/ support for arranging specialised training and
the latest equipments for the MRTs.
9.2.18 Principal Secretary, Home, J&K, will convene a
meeting of all Security Forces, at least two months before F
the Yatra, to prepare a detailed SoP for the immediate
evacuation of ill/injured pilgrims, with the help of the
resources available with State Disaster Management
Authority, Air Force and SASS. This meeting should also
explore the possibility of providing the facility of air
ambulance to evacuate critically ill/injured persons who G
need to be shifted most immediately.
9.2.19 CEO SASB could explore involving identified NGOs
I private players to provide the required assistance to
unattended sick I injured pilgrims, at both the Base Camps. H
1124 SUPREME COURT REPORTS [2012] 13 S.C.R.
A This would relieve the personnel at the MACs who can then
devote better attention to the other sick patients.
9.2.20 The SASB should examine the possibility of the
Indian Red Cross Society'being involved in enlarging
awareness and sensitization of pilgrims. Some of their
B
volunteers could also be engaged for rendering useful
health related services.
9.3 ENVIRONMENTAL ISSUES
c 9.3.1 The following issues were required to be examined
by the SHPC
(a) Providing of proper public amenities and
facilities on way and at the lower end of the glaciers
near the Holy Cave.
D
(b) Environmental Impact Assessment
(c) The manner and methods to be adopted to
attain the above, with least damage or interference
E with the environment of entire zone right from Baltal
to the Holy Cave from different routes.
9.3.2 The SHPC makes the following recommendations
vis-a-vis the issues listed above:
F 9.3.3 While recognising that the SASB has been cognizant
of-the vital need to protect the integrity of the environment
and has undertaken several measures in this regard, the
SHPC notes that it is essential to strengthen these
measures through environmental impact assessments and
G studies being undertaken at regular intervals, on different
aspects of the Yatra, to examine, inter-alia, the impact of
the flow of several lakh pilgrims, sanitation and solid waste
management, quality and availability of water etc. The
SHPC also reiterates that statutory Environmental Impact
H Assessment shall be conducted whenever so mandated.
COURT ON ITS OWN MOTION v. UNION OF INDIA & 1125
ORS. [SWATANTER KUMAR, J.]
9.3.4 Keeping in view the low temperature which prevails A
in the Yatra area and the need to maintain adequate
distances from the nearest water bodies, to avoid any
contamination of the waters, CEO, SASB, would need to
consult experts to identify the most appropriate
technological designs and solutions for the functioning of B
an optimal number of toilets in the Holy Cave area. CEO,
SASB may also explore the possibility of using bio-
digester based toilets developed by DRDO for Army
camps in the high altitude areas. As tourist arrivals have
also been increasing progressively, it would be profitable c
if Secretary Tourism, Secretary PHE and CEO, SASB
coordinate efforts to identify the best available technology
options. Such a collective approach would also contribute
towards the required investments being cost effective.
9.3.5 The SHPC is of the opinion that the STPs at the D
Baltal and Nunwan Base Camps need to be technically
evaluated and, upgraded as required. In this context, the
SHPC was informed about the implementation of the
"Recommendations of the Study on the Technical
Evaluation of the STPs" which was conducted (in August E
2012) by scientists from Centre for Science and
Environment (CSE), New Delhi, at the instance of SASB.
This study recommends, interalia, that the existing capacity
of the STPs should be enhanced to improve the retention
time of the waste disposal system and to ensure effective F
treatment of waste.
9.3.6 The SHPC also recommends the need to find an
urgent appropriate solution for the treatment of the Langar
waste, which is high on grease and biological material.
G
9.3.7 The SHPC recommends that the State Public Health
Engineering Department should provide the infrastructure
to ensure regular water supply at suitable identified
locations, wherever feasible, on the route of the Yatra
Camps to enable SASB to set up toilet facilities for the H
1126 SUPREME COURT REPORTS [2012] 13 S.C.R.
A convenience of Yatris. CEO SASB would need to ensure
that all toilets have waste disposal systems and are duly
covered under SASB's Sanitation Contract, so that the
facilities are maintained in a hygienic and environmentally
safe manner. It would be useful to increase the number of
8 toilet facilities which service the Langars located along the
Yatra route.
9.3.8 To counter the ever increasing use of plastic in the
Yatra area, the SHPC recommends the following:
c a) The State Government should direct the
concerned law enforcement agency(ies) to take all
required steps, on a time bound basis, to enforce
the current statutory ban on the use of plastic.
b) SASB should progressively arrange facilities for
D
drinking water filters being set up at Camps and
Langar sites to discourage the use of water bottles
in the Yatra area. The aim should be to provide a
viable alternative to plastic water bottles in due
course. The SASB could also consider introducing
E
a "deposit amount" scheme under which the deposit
is returnable when the beverage bottle is brought
back to the disposal site.
c) Pictorial signage (in place of the existing signage
F in Hindi and English) should be used at all prominent
places. This would be helpful in also educating the
Yatris about the need to keep the Yatra area free
from plastic materials.
d) The SASB should suitably revise the existing
G
Terms and Conditions of the permissions given to
LangarOrganisations to ensure that that no plastic
material is used for serving food and beverages to
the Yatris. There should be adequate monitoring of
the implementation of these conditions and all
H
COURT ON ITS OWN MOTION v. UNION OF INDIA & 1127
ORS. [SWATANTER KUMAR, J.]
cases of non-adherence must be penalised A
severely.
9.3.9 All biological waste should be disposed off in
compost pits, which should be built in the Langar areas.
The LangarOrganisations must be made fully responsible
B
for ensuring the segregation and safe disposal of wastes.
Further, no Langar site should be cleared without the
availability of mandatory facilities for waste segregation
and disposal. SASB should establish a sui,table monitoring
mechanism in this regard. The Terms and Conditions of
the permission given to tlielangarOrganisations must be c
revised to include the aforesaid conditions as also a
provision for the imposition of stringent penalties in the
case of any default.
9.3.10 The SHPC suggests that an increased number of D
garbage bins, with pictorial signage for segregating bio-
degradable waste from non bio-degradable ones, would
further reduce littering in the Yatra area.
9.3.11 The concerned District Administrations must identify
E
the sites and create this infrastructure expeditiously as per
the Municipal Solid Waste Rules, in consultation with the
SPCB. This infrastructure is vital, not only for the Yatra, but
also for the growing number of tourists and other business
visitors in the larger area.
F
9.3.12 It must be ensured that after the dismantling ofYatra
Camps and Langers, consequent to the conclusion of the
Yatra, all solid waste is collected and properly disposed
off by the relevant authorities. CEO, SASB, should in
consultation with SPCB, put in place an appropriate G
monitoring mechanism in this regard.
9.3.13 The State R&B Department shOJJld urgently
upgrade the road from RangaMorh to Domail so that it is
able to withstand the very heavy traffic during the Yatra
H
•
1128 SUPREME COURT REPORTS (2012) 13 S.C.R.
A period and the problem of dust and mud is controlled.
9.3.14 The SPCB should conduct analytical studies every
year to monitor the quality of water in Lidder and Sindh
rivers and share the findings, along with actionable
suggestions, with SASB and the State Government. The
B SPCB also needs to early upgrade its own testing
facilities.
9.4 REGISTRATION, ACCESS CONTROL &
SECURITY
c 9.4.1 The following issues were required to be examined
by the SHPC
a) Registration of yatris at Jammu, Srinagar, Baltal
and Panchtarni.
D
b) It should also consider the possibility of limited
number of yatris being released 'from Srinagar to
Baltal to ensure better management, hygiene,
healthcare and betterment of the yatris, who stay
E their overnight.
c) Medical examination at the time of registration
and on way.
d) It should be examined by SHPC in its meeting if
F a transparent device made of glass, fiber or any
other material, which is scientifically permissible, be
placed at the Cave where iron grills have been fixed
as of now. The iron grills serve no required
purpose. Firstly, - it obstructs the view of the yatris
G during darshan and secondly, they are not safe and
even pass the human heat which results in early
melting of the Shivalingam.
9.4.2 The SHPC makes the following recommendations
vis-a-vis the issues listed above:
H
COURT ON ITS OWN MOTION v. UNION OF INDIA & 1129
ORS. [SWATANTER KUMAR, J.]
9.4.3. The SASB will continue to determine, from year to A
year, the maximum number of pilgrims to be allowed to
embark on the tracks, after taking into consideration the
weather condition and forecasts, track conditions,
infrastructure available in the enroute Camps and at the
Holy Cave (which would include the handling capacity at B
the Shrine), other required facilities etc. Once the required
decisions have been communicated by the CEO, SASB,
the Police shall ensure that the number of pilgrims who are
allowed to cross over the Access Control Gates possess
valid Yatra Permits for that date and route. c
9.4.4 CEO, SASS, should arrange the widest possible
publicity of all registration related matters, particularly in
the States from where larger numbers of pilgrims arrive.
Further, Public Interest Messages would also need to be
broadcast through radio, television and print media, D
particularly in the regional languages.
9.4.5 On-Spot registration of pilgrims at Srinagar and Base
Camps of Baltal and Nunwan should be discouraged. A
pilgrim seeking advance registration, in his home State, E
provides a useful opportunity to educate him about the
difficulties involved in the journey, health related
precautions, Do's and Don'ts, basic minimum clothing I
accessories required etc. Further, the period after
registration and before commencement of the Yatra would F
enable the pilgrim to prepare himself suitably to proceed
on a difficult pilgrimage.
9.4.6 As in the case of advance registrations, On-Spot
registrations should also specify a specific date and route
for the applicant to commence his journey. The pilgrim may G
be allowed to commence his Yatra on the same day only
if the number of pilgrims registered for that particular date
is below the registration ceiling prescribed by the SASB.
9.4.7 There should be strict compliance of allowing only H
1130 SUPREME COURT REPORTS [2012] 13 S.C.R.
A those pilgrims who possess valid Yatra Permits for that
date and route to cross the Control Gates. To facilitate the
Police personnel deployed at the Access Control Gates
in determining whether the Yatri possesses a valid Yatra
Permit for the given date and route the SASB may adopt
B colour coding of Yatra permits i.e. the Yatra Permit would
be of a given colour for each day of the week.
9.4.8 Effective enforcement at the Access Control Gates
would be crucial for securing satisfactory Yatra
management. The District Magistrate and the District
c Police will be responsible for enforcing effective Access
Control.
9.4.9 The pilgrims should be released in batches,
reasonably spread out over a specified period in the day,
D to avoid any congestion on the tracks. The SHPC also
suggests that SASB may consider indicating the "reporting
time" on the Yatra Permits, along with the date and route
of the pilgrimage.
9.4.10 The SHPC recommends that the J&K Police and
E
Central Armed Police Forces should enlarge the provision
of basic requirements like tents, bedding, toilets etc. to
their personnel deployed on Yatra duty, in order to provide
them better working conditions.
F 9.4.11 Regarding the matter related to provision of a
transparent device made of glass, fiber etc, the SHPC is
of the considered opinion that the SASB is the right forum
to decide any issue related to the preservation of the Ice
Lingam in the Shrine and taking all required steps for
G providing satisfactory Darshans.
9.5 TRACK CONDITIONS
9.5.1 The following issues were required to be examined
by the SHPC
H
COURT ON ITS OWN MOTION v. UNION OF INDIA & 1131
ORS. [SWATANTER KUMAR, J.]
a) Construction of proper passages, wide A
enough and with due support on both sides, for the
traffic of pedestrian yatris, on horses and by palkis
from Panchtarni to the Holy Cave.
b) Providing of one-way passage with separate
8
tracks, one for pedestrians and other for horses,
carriages and palkis near the Shrine.
c) The manner and methods to be adopted to
attain the, above, with least damage or interference
with the environment of entire zone right from Baltal C
to the Holy Cave from different routes.
9.5.2 The SHPC makes the following recommendations
vis-a-vis the issues listed above:
9.5.3 Keeping in view the need to provide safe and smooth D
passage to the Yatris, particularly during the peak Yatra
period, when there is acute congestion on the tracks due
to simultaneous movement of pedestrian Yatris and those
on ponies/ palkis in the limited space that is available, and
also keeping in view the environmental concerns, the E
Committee recommends that the following works should
be approved and taken up for implementation on a fast
track basis:
• Improvement of critical stretches of the existing track F
from Baltal to Holy Cave as per the preliminary
details presented in Annex. - 4, to be implemented
by the State PWD, with the assistance, as may be
required, from other organizations such as Border
Roads Organisation (which can mobilise in the area G
quickly).
• Provision of one-way passage with separate tracks,
one for the pedestrians and other for the horses/
palkis, near the shrine to be implemented by the
Pahalgam Development Authority. H
1132 SUPREME COURT REPORTS [2012] 13 S.C.R.
A • Improvement of existing track from Panjtarni to Holy
Cave as per the preliminary details presented in
Annex. - 4 to be implemented by the Pahalgam
Development Authority.
• Proposal of Pahalgam Development Authority to
B improve the track from Chandanwari Base Camp
to Panjtarni.
9.5.4 While it would have been an ideal situation if it were
possible to complete the upgradation works before the
c commencement of the Yatra 2013, the SHPC is conscious
of the fact that a two month working period would be
available in the current year, after which the entire area
would be snow bound/inaccessible. Furthermore, in 2013
also, very little time would be available for carrying out
D works after the snows melt around mid to end June, and
till the time the Yatra commences. It is also to be kept in
view that, at some places, areas under forests, wildlife
sanctuaries or eco-sensitive zones may be involved, and
clearances under relevant protection/conservation laws
E may be required, which may also take time. The SHPC,
therefore, recommends early implementation of these
works with as much as possible progress during the current
working season and before the commencement of next
Yatra (2013) and ensuring that these are completed before
the working season of 2013 is over. The State Government
F
should provide the required funds for the above listed four
works. Wherever clearances are required under the related
Environment laws, the matter should be processed on a
time bound basis by all concerned authorities, to ensure
the completion of all the aforesaid works before the end
G of October, 2013.
9.6 OTHER PUBLIC AMENITIES
9.6.1 For Yatra 2012, Temporary Transit Camps had been
H set up for the overnight stay of Yatris at Qazigund and Mir
COURT ON ITS OWN MOTION v. UNION OF INDIA &1133
ORS. [SWATANTER KUMAR, J.]
Bazar (Anantnag District) and at Manigam and Yangoora A
(Ganderbal District). If these facilities are placed on a firm
footing and suitably upgraded, they can be profitably
utilised to meet the growing demands of tourism, and for
other suitable purposes, before and after the annual Yatra.
The SHPC recommends that all required facilities, viz. B
shelter, toilets, water, power supply, etc should be provided
at the aforesaid and other Transit Camps before
commencement of Yatra 2013.
9.6.2 The Department of Telecommunications should be
moved to take all necessary steps for providing inter- C
connectivity in the Yatra area so that the Yatris having non-
BSNL mobile connections do not face any difficulty during
Yatra 2013.
9.6.3 For Yatra 2013, the number of Automatic Weather D
Stations should be augmented to cover Chandanwari,
Pahalgam and Baltal and a Doppler Radar should be set
up at IMO Campus, Srinagar, on urgent basis as this
facility will be able to provide accurate weather forecasts
round the year in the entire Valley. E
9.6.4 The State Government has provided funds to the
State Public Health Engineering Department for laying
underground water supply lines at Baltal Base Camp. This
work should be completed before the commencement of F
Yatra 2013.
9.6.5 The State Animal Husbandry Department should
register only an, assessed number of ponies to ensure
against overcrowding on the tracks. Likewise, the Labour
Department should assess the number of Palkis/Dandis G
to be allowed to operate on the tracks, route-wise, every
year.
9.6.6 While noting the useful arrangements which are
being assisted/ provided by the various concerned State H
1134 SUPREME COURT REPORTS [2012] 13 S.C.R.
A Government Departments for the smooth conduct of the
annual Yatra, the SHPC is of the view that the Yatra
requirements require to be reviewed from time to time. In
this context, the SHPC notes that the High Level
Committee (HLC), which is convened by CEO, SASB, and
B chaired by State Principal Secretary Home, has served a
useful purpose in 2012 and recommends that the HLC
should continue to function, to overview the problems of
future Yatras, with similar or modified terms of reference,
as may be necessary. The HLC should prepare an Annual
c Action Plan, immediately after the Yatra is over, which
clearly indicates the gap to be filled, the implementing
agency, requirement of funds and the time frame for
implementation. The SHPC also recommends that all the
recommendations made by this HLC in 2011 be fully
implemented before the commencement of Yatra 2013.
D
9.6.7 A Committee to be chaired by the concerned District
Magistrate should be set up to grant permissions for the
setting up of tents and shops at each Camp location,
taking into account the overall availability of space, the
E number of tents/shops which are required to be set up,
ensuring that the tents, beddings etc are of the specified
quality/standard."
18. The learned counsel appearing for the parties have
F made submissions and suggestions, while taking the above
report to be the very foundation of their submissions. In other
words, attempts were made before the Court to improve upon
the recommendations in order to make them more effective.
One of the points, on which submissions were made before the
G Court related to improvement of medical facilities. Firstly, it was
suggested that each State in the country should identify the
medical institutions/hospitals, run by or under the control of the
State Governments, to issue 'health certificates' upon examining
the persons who are desirous of going for yatra to the Holy
H Cave in the future. Secondly, it was suggested that specified
COURT ON ITS OWN MOTION v. UNION OF INDIA & 1135
ORS. [SWATANTER KUMAR, J.]
medical officers of these hospitals should be required to give A
the said health certificates. Lastly, the States, particularly the
neighbouring States like, Haryana, Punjab, Himachal Pradesh,
Rajasthan and Uttar Pradesh, should be requested to send
teams of doctors on temporary duty to the State of Jammu &
Kashmir to be posted at Srinagar, Balta! or en route to the Holy B
Shrine. It will be desirable that such team of doctors be
acclimatized before being deputed to the higher altitudes. It
is suggested that they ought not to be posted at very high
altitudes. Deployment of the medical teams at Panchatarni,
Balta! and Srinagar and enroute to the Shrine shall serve the c
interest of health care and public interest. We make it clear
that deployment of medical teams en route should be at regular
distances, with a gap not exceeding two kilometres. There shall
be greater number of doctors from the State of Jammu and
Kashmir that should be deployed at and around the holy Shrine
0
and they shall be provided with complete equipment, medicines
and all other infrastructure to ensure rendering of proper medical
assistance to the people who suffer from any health issue at
that point. These issues, to some extent, have been discussed
in the report of the SHPC. However, we are only clarifying their E
final aspects.
19. The passages or the walking tracks, besides being
widened require rough surface so as to prevent slipping and
falling of the pilgrims. It is conceded before us that presently
the width of the track is very less to accommodate palkis, F
horses and pilgrims moving at the same time. More often than
not, jams are noticed which spread over furlongs. The
uncertainty of weather, exposes the pilgrims, particularly, the
pedestrians, to rain, chilly winds and sudden fluctuations in
temperature and thus they fall ill. Due to high altitude, many of G
them also suffer from hypoxia. Thus, there has to be a regular
width of the track which in any case should not be less than 12
feet and may be wider than that if so recommended by the
Committee concerned. These tracks should duly provide
protection or any other supportJowards the open sides. It may H
1136 SUPREME COURT REPORTS [2012] 13 S.C.R.
A by iron grills, supporting walls etc. as may be considered
appropriate by the Committee. This may include realignment
of the passage, construction of retaining wall/railing. We must
not be understood to have ordered directly or indirectly,
construction of any motorable mettled road in place of walking
B tracks. However, we hasten to clarify that it is not only
improvement of the road at critical portions but the entire track
needs to be improved, particularly from Panchtarni to the Holy
Cave.
20. STPs are intended to be constructed at various places,
C particularly at Baltal. We were informed that the clearance from
various departments is awaited. However, the learned
Advocate-General appearing for the State of Jammu Kashmir
had informed us that the matter is pending in the High Court of
Jammu and Kashmir and they will be able to get permission
D for raising construction shortly. We make it clear that all
Government departments shall fully coordinate and grant such
permissions as are required in accordance with law and
expeditiously. We further make it clear that pendency of any
proceedings before the High Court would not come in the way
E of construction of STPs in any manner whatsoever. It is for the
reason that this is absolutely essential for maintaining proper
sewage system and cleanliness in the areas where large
number of persons come and stay overnight or even for a
longer period. It was commonly conceded before us that the
F Shrine Board would provide fabricated toilets and if necessary
even the pre-fabricated pathway at and around the Holy Shrine.
21. In its report, the SHPC at para 7.18 has noticed that
quality of tents existing at various camps and sites needs
improvement. The existing tents were found deficient in all
G respects. One of the applicants before this Court, M/s. Piramal
Healthcare Pvt. Ltd. (In I.A. No. 4 of 2012), had volunteered to
provide any help at a large scale that may be required by the
State of Jammu and Kashmir and the Board to facilitate the
travel, living and darshan of the pilgrims. It was offered that they
H could provide even pre-fabricated tents and toilets which will
COURT ON ITS OWN MOTION v. UNION OF INDIA&1137
ORS. [SWATANTER KUMAR, J.]
help and provide convenience not only to the pilgrims but even A
to all the persons, including the officials on duty. We find this
request to be reasonable and, therefore, give liberty to them
to approach the Shrine Board with a request to provide such
pre-fabricated material at large scale. We are hopeful that the
Board would consider the request sympathetically and B
objectively.
22. All these matters require greater attention of all the
stakeholders and they need to make their plans well in advance
and to fully equip themselves to meet any challenge. Thus, we
are of the opinion that the process afore-indicated and as stated C
in the report, be completed in a timely and expeditious manner.
23. We, therefore, have no hesitation in accepting the
report of the SHPC dated 6th September, 2012 in its entirety
but with additions as afore-indicated. The report shall be D
complementary to the directions of the Court and not in
derogation thereof.
24. The next question that arises is as to what directions
generally and particularly in the cases of the present kind, the E
Court is competent to issue.
25. In the case of MC. Mehta v. Union of India [(1987) 1
sec 395], the Court, while discussing the ambit and scope of
Article 32 of the Constitution, held as under:
F
"We have already had occasion to consider the ambit and
coverage of Article 32 in the Bandhua Mukti Morcha v.
Union of India and we wholly endorse what has been stated
by one of us namely, Bhagwati, J. as he then was in his
judgment in that case in regard to the true scope and ambit G
of that article. It may now be taken as well settled that
Article 32 does not merely confer power on this Court to
issue a direction, order or writ for enforcement of the
fundamental rights but it also lays a constitutional
obligation on this Court to protect the fundamental rights
H,
I
1138 SUPREME COURT REPORTS [2012) 13 S.C.R.
A of the people and for that purpose this Court has all
incidental and ancillary powers including the power to forge
new remedies and fashion new strategies designed to
enforce the fundamental rights. It is in realisation of this
constitutional obligation that this Court has in the past
B innovated new methods and strategies for the purpose of
securing enforcement of the fundamental rights, particularly
in the case of the poor and the disadvantaged who are
denied their basic human rights and to whom freedom and
liberty have no meaning.
c We are also of the view that this Court under Article 32(1)
is free to devise any procedure appropriate for the
particular purpose of the proceeding, namely, enforcement
of a fundamental right and under Article 32(2) the court has
the implicit power to issue whatever direction, order or writ
D is necessary in a given case, including all incidental or
ancillary power necessary to secure enforcement of the
fundamental right. The power of the court is not only
injunctive in ambit, that is, preventing the infringement of
a fundamental right, but it is also remedial in scope and
E provides relief against a breach of the fundamental right
already committed vide Bandhua Mukti Morcha case. If the
court were powerless to issue any direction, order or writ
in cases where a fundamental right has already been
violated, Article 32 would be robbed of all its efficacy,
F because then the situation would be that if a fundamental
right is threatened to be violated, the court can inject such
violation but if the violator is quick enough to take action
infringing the fundamental right, he would escape from the
net of Article 32. That would, to a large extent, emasculate
G the fundamental right guaranteed under Article 32 and
render it impotent and futile. We must, therefore, hold that
Article 32 is not powerless to assist a person when he
finds that his fundamental right has been violated. He can
in that event seek remedial assistance under Article 32.
H The power of the court to grant such remedial relief may
COURT ON ITS OWN MOTION v. UNION OF INDIA & 1139
ORS. [SWATANTER KUMAR, J.]
include the power to award compensation in appropriate A
cases. We are deliberately using the words "in appropriate
cases" because we must make it clear that it is not in
every case where there is a breach of a fundamental right
committed by the violator that compensation would be
awarded by the court in a petition under Article 32." 8
26. In the case of Vishaka v. State of Rajasthan [(1997)
6 SCC 241, this Court held as under :
"Each such incident results in violation of the fundamental
rights of "Gender Equality" and the "Right to Life and C
Liberty". It is a clear violation of the rights under Articles
14, 15 and 21 of the Constitution. One of the logical
consequences of such an incident is also the violation of
the victim's fundamental right under Article 19(1 )(g) "to
practise any profession or to carry out any occupation, D
trade or business". Such violations, therefore, attract the
remedy under Article 32 for the enforcement of these
fundamental rights of women. This class action under
Article 32 of the Constitution is for this reason. A writ of
mandamus in such a situation, if it is to be effective, needs E
to be accompanied by directions for prevention, as the
violation of fundamental rights of this kind is a recurring
phenomenon. The fundamental right to carry on any
occupation, trade or profession depends on the availability
of a "safe" working environment. Right to life means life
F
with dignity. The primary responsibility for ensuring such
safety and dignity through suitable legislation, and the
creation of a mechanism for its enforcement, is of the
legislature and the executive. When, however, instances
of sexual harassment resulting in violation of fundamental G
rights of women workers under Articles 14, 19 and 21 are
brought before us for redress under Article 32, an effective
redressal requires that some guidelines should be laid
down for the protection of these rights to fill the legislative
vacuum.
H
1140 SUPREME COURT REPORTS [2012] 13 S.C.R.
A 15. In Nilabati Behera v. State of Orissa a provision in the
ICCPR was referred to support the view taken that "an
enforceable right to compensation is not alien to the
concept of enforcement of a guaranteed right", as a public
law remedy under Article 32, distinct from the private law
B remedy in torts. There is no reason why these international
conventions and norms cannot, therefore, be used for
construing the fundamental rights expressly guaranteed in
the Constitution of India which embody the basic concept
of gender equality in all spheres of human activity.
c 16. In view of the above, and the absence of enacted law
to provide for the effective enforcement of the basic human
right of gender equality and guarantee against sexual
harassment and abuse, more particularly against sexual
harassment at workplaces, we lay down the guidelines and
D norms specified hereinafter for due observance at all
workplaces or other institutions, until a legislation is
enacted for the purpose. This is done in exercise of the
power available under Article 32 of the Constitution for
enforcement of the fundamental rights and it is further
E emphasised that this would be treated as the law declared
by this Court under Article 141 of the Constitution."
27. In the case of Vineet Narain v. Union of India [(1998)
1 SCC 226], the Court held as under:-
F "There are ample powers conferred by Article 32 read with
Article 142 to make orders which have the effect of law
by virtue of Article 141 and there is mandate to all
authorities to act in aid of the orders of this Court as
provided in Article 144 of the Constitution. In a catena of
G decisions of this Court, this power has been recognised
and exercised, if need be, by issuing necessary directions
to fill the vacuum till such time the legislature steps in to
cover the gap or the executive discharges its role. It is in
the discharge of this duty that the IRC was constituted by
H the Government of India with a view to obtain its
_ COURT ON ITS OWN MOTION v. UNION OF INDIA & 1141
ORS. [SWATANTER KUMAR, J.]
recommendations after an in-depth study of the problem A
in order to implement them by suitable executive directions
till proper legislation is enacted. The report of the IRC has
been given to the Government of India but because of
certain difficulties in the present context, no further action
by the executive has been possible. The study having been B
made by a Committee considered by the Government of
India itself as an expert body, it is safe to act on the
recommendations of the IRC to formulate the directions of
this Court, to the extent they are of assistance. In the
remaining area, on the basis of the study of the IRC and c
its recommendations, suitable directions can be
formulated to fill the entire vacuum. This is the exercise we
propose to perform in the present case since this exercise
can no longer be delayed. It is essential and indeed the
constitutional obligation of this Court under the aforesaid
0
provisions to issue the necessary directions in this behalf.
We now consider formulation of the needed directions in
the performance of this obligation. The directions issued
herein for strict compliance are to operate till such time as
they are replaced by suitable legislation in this behalf."
E
28. In the case of University of Kera/a v. Council of
Principals of Colleges, Kera/a & Ors. [(2010) 1 SCC 353], this
Court held as under :
"32. It may be noted th.at this Court has on several F
occasions issued directions, directives in respect of those
situations which are not covered by any law. The decision
in Vishaka v. State of Rajasthan is one such instance
wherein a three-Judge Bench of this Court gave several
directions to prevent sexual harassment of women at the G
. workplace. Taking into account the "absence of enacted
law" to provide for effective enforcement of the right of
gender equality and guarantee against sexual harassment,
Verma, C.J. held that guidelines and norms given by the
Court will hold the field until legislation was enacted for the H
1142 SUPREME COURT REPORTS [2012] 13 S.C.R.
A purpose. It was clarified that this Court was acting under
Article 32 of the Constitution and the directions "would be
treated as the law declared by the Court under Article 141
of the Constitution". (para 16)
· 33. Similarly, the Supreme Court issued directions
B
regarding the procedure and the necessary precautions to
be followed in the adoption of Indian children by foreign
adoptive parents. While there was no law to regulate inter-
country adoptions, Bhagwati, J., (as His Lordship then
was) in Laxmi Kant Pandey v. Union of India, formulated
c an entire scheme for regulating inter-country and intra-
country adoptions. This is an example of the judiciary filling
up the void by giving directions which are still holding the
field."
D 29. The above stated principles exhibit the scope and width
of the power of this Court under Article 32 of the Constitution.
There is a clear mandate of law for this Court to protect the
fundamental rights of the citizens. Infringements of rights would
certainly invite the Court's assistance. The limitation of
E acceptability to justice will not come in the way of the Court to
extend its powers to ensure due regard and enforcement of the
fundamental rights. The absence of statutory law occupying the
field formulating effective measures to check breach of rights
is the true scope of proper administration of justice. It is the
F duty of the Executive to secure the vacuum, if any, by executive
orders because its field is coterminous with that of the
Legislature and where there is inaction even by the Executive,
for whatever reason, the Judiciary must step in, in pursuance
of its constitutional obligation to provide solution in any case
G till the time the Legislature addresses the issue. The courts
have taken precaution not to pass orders even within the ambit
of Article 142 of the Constitution that would amount to
supplanting substantive law but at the same time these
constitutional powers cannot in any way be controlled by any
statutory provision. The absence of law and a vacuum or
H lacunae in law can always be supplied by judicial dictum. In
COURT ON ITS OWN MOTION v. UNION OF INDIA & 1143
ORS. [SWATANTER KUMAR, J.]
some cases, where the jurisdiction is invoked to protect the A
fundamental rights and their enjoyment within the limitation of
law, the Court has even stepped in to pass orders which may
have the colour of legislation, till an appropriate legislation is
put in place. The directions of the Court could be relatable to
a particular lis between the parties and even could be of a B
generic nature where the facts of the case called for. There
can be cases like the one in hand where there is no
infringement of a specific legislation or even where no
legislation is in place but are purely cases of infringement of
fundamental rights and their violation. The directives are c
needed to protect them and to ensure that the State discharges
its obligation of protecting the rights of the people as 'well as
the environment. The deficiencies in the aforementioned fields
are not deficiencies simplicitor but have far reaching
consequences of violating the fundamental protections and
0
rights of the people at large. It is the obligation of the State to
provide safety, health care, means to freely move and to
profess the religion in the manner as they desire insofar as it
is within the limitations of law.
30. Certainly some development projects would have to be E
undertaken but without infringing on the protection to the forests
or the environment. These are ecologically and climatically
sensitive areas. It must be ensured that development does not
impinge upon the purity of the environ.ment beyond restricted
and permissible limits. The doctrine of sustainable F
development and precautionary principle would be the guiding
factors for the courts to pass such directions. We had the
advantage of having an Expert Committee Report before us,
which ·recommends the various steps, development
programmes and precautions that can be undertaken by the G
Government and the Shrine Board to the advantage of all
stakeholders, particularly the pilgrims. Thus, the directions we
contemplate to issue under this order are in conformity with
these legal maxims and are likely to cause no practical issues.
H
1144 SUPREME COURT REPORTS {2012] 13 S.C.R.
A 31. Applying these principles to the facts of the present
case, it is apparently the constitutional obligation of this Court
to issue specific directions in addition or which are to be read
mutatis mutandis to the Report of the SHPC. In the above
background, it is axiomatic for us to issue the following
8 directions :
1) The report of the SHPC is hereby accepted in
terms of this judgment.
2) The recommendations contained in the report shall
c be read, construed and applied in aid to the
directions of this Court and not in derogation
thereto.
3) All the recommendations contained in the report
D shall be implemented under two different heads,
i.e., 'short-term measures' and 'long-term
measures'. This categorization shall be made by
the Sub-Committee consisting of the following :
a. Chief Secretary of the State of Jammu and
E Kashmir;
b. Secretary, Home, State of Jammu and
Kashmir; and
c. CEO of the Amarnathji Shrine Board.
F
4) Steps in relation to health care, improvement of
walking tracks, providing of pre-fabricated toilets,
tents, pre-fabricated walking path/mats,
construction of STPs and providing of one way
G tracks shall be treated as short-term measures.
5) We hereby direct the Chief Secretary of every State
to notify the hospitals and medical officers in those
hospitals who shall issue health certificates to all the
H persons who are desirous of going for yatra
-COURT ON ITS OWN MOTION v. UNION OF INDIA &1145
ORS. [SWATANTER KUMAR, J.]
henceforth. The authorities shall place such A
notification in the public domain and give it due
publicity. These certificates shall be issued free of
cost.
6) We direct the Chief Secretary and Secretary, Health B
of each respective State, particularly, the State of
Uttar Pradesh, Haryana, Punjab, Rajasthan,
Himachal Pradesh and Union Territory of
Chandigarh to depute such number of doctors
during the relevant period to the State of Jammu
and Kashmir for ensuring due health care of the
c
pilgrims, as may be necessary.
7) The State of Jammu and Kashmir shall write to the
ChiefSecretaries/Secretaries, Health of each State
by 30th of April of every year, making requisition for D
the number of doctors and the area of specialization
from which such doctors are required. The
concerned State shall inform the Chief Secretary/
Secretary, Health and the Director General of
Health Services of the State of Jam mu and Kashmir E
by 30.th May of the year, t.he names with
spf?cialization of the doctors who have been
deputed for the yatra period at the State of Jammu
and Kashmir and actually direct and inform the
concerned doctors of their 'temporary duty', in F
public interest, with the State of Jammu and
Kashmir.
8) The medical teams .shall be deployed en route to
the Holy Cave at a regular distance not exceecUng
two .kilometers. G
9) The State of Jammu of Kashmir and the Shrine
Board shall provide infrastructure, equipment,
medicines and all other ancillary items thereto to the
medical teams to ensure that the pilgrims can be H
1146 SUPREME COURT REPORTS [2012] 13 S.C.R.
A provided adequate treatment without any loss of
time. Largest number of medical teams shall be
deputed at the glacier and the passage near the
Holy Shrine.
10) The State of Jammu and Kashmir shall make due
B
provision for providing lodging and boarding to
doctors on 'temporary duty' and ensure that they are
not put to any inconvenience, in any respect,
whatsoever.
c 11) The State of Jammu and Kashmir and the Shrine
Board shall make due provision for registration of
the yatris as proposed in the report and preferably
at Srinagar, Baltal, Chandanvadi, Panchtarni, etc.
D 12) The STPs shall be constructed at all places,
particularly at Baltal. Clearance for that purpose
shall be granted by all the concerned departments
expeditiously and in accordance with law. This
direction of the Court shall be complied with
notwithstanding the pendency of any litigation
E
before any Court, including the High Court of
Jammu and Kashmir.
13) The request of the applicant Mis. Piramal
Healthcare Pvt. Ltd. (In I.A. No. 4 of 2012) for
F providing pre-fabricated tents or toilets or such
other material which they may chose to offer or
desired by the authorities, shall be considered by
the Shrine Board in its discretion. However, we
observe that the request of the applicant should be
G considered sympathetically and objectively.
14) The walking track/passages should be widened and
railing and retaining walls be provided. The extent
of width of the passage and manner of providing
the railing (thick iron cables supported by wooden
H
COURT ON ITS OWN MOTION v. UNION OF INDIA & 1147
ORS. [SWATANTER KUMAR, J.]
blocks or cement and stone) shall be in the A
discretion of the Sub-Committee afore-constituted.
But, we make it clear that width of no passage shall
be less than 12 feet, particularly, that of the track
leading from Panchtarni to the Holy Shrine.
B
15) Neither have we directed nor should we be
understood to have implicitly directed that there
should be mettled motorable road in place of the
walking tracks/passages.
16) ·There shall be provided separate one way passage c
for palkis and. horses as one unit and the
pedestrians as the other, near to and at the
passages leading to the Holy Shrine. Preferably on
this passage pre-fabricated walking path/matting
should be provided. D
17) All other walking tracks from various other points,
like Baltal, Panchtarni and Chandanvadi may be
covered either by pre-fabricated rough cement tiles
or such other material, which in the opinion of the
E
SHPC, would be most appropriate for the benefit
of the pilgrims.
18) Attempt should be made to construct shelters on
the passage/walking paths at regular intervals.
Temporary/pre-fabricated shelters should certainly F
be provided near the Holy Shrine where large
numb~r of persons collect and have to wait for long
hours for darshan.
19) At the Holy Cave, the existing grill should be G
replaced by 100 per cent transparent fiber or any
other material to ensure that the darshan to the
shivlingam is not visually obstructed. In the
alternative, the iron grillS, as installed can be
permitted, but the gaps between the parallel bars,
H
1148 SUPREME COURT REPORTS [2012] 13 S.C.R:
A which are perpendicular to the earth, should not be
less than 12 inches, as they would help in giving a
clear visual darshan of the shivlingam and the shiv
parivar.
The implementation of the above suggestion should
B
be left to the wisdom of the Sub-Committee.
20) The Sub-Committee constituted under this order
shall be at liberty to consult or obtain opinion of any
expert body, as it may deem fit and proper, in the
c facts and circumstances.
21) All the above directions and the recommendations
made in the report of the SHPC should be carried
out by all concerned without demur or protest and
D expeditiously. We make it clear that any officer of
any State irrespective of his position in the State
hierarchy shall personally be held liable and
proceeded against in the event of default and/or
violation of the above directions/ recommendations
of the SHPC.
E
22) The Chief Secretary, Secretary, Health of the State
of Jammu and Kashmir and the CEO of the Shrine
Board shall personally be responsible and
answerable for strict compliance of the
F recommendations of the report of SHPC and/or
directions as contained in this judgment. Since we
are holding the Sub-Committee personally liable for
compliance of the order of the Court, we grant
liberty to this Sub-Committee to seek clarification,
G if any, at any time.
23) The Sub-Committee is also given liberty to bring to
the notice of this Court if any authority/officer/the
Government fails to render the required help or take
H
- -COURT ON ITS OWN MOTION v. UNION OF INDIA &1149
ORS. [SWATANTER KUMAR, J.]
desired action and/or is instrumental in violating the A
orders and directions of the Court.
32. We will be failing in our duty if we do not place on
record our appreciation, for the valuable assistance rendered
by various counsel appearing in the case as well as for the B
positive and progressive approach adopted by the State of
Jammu and Kashmir as well as the Shrine Board. We must
also place on record, our special commendations, for the echt
efforts made by the SHPC with utmost tenacity and verve and
also for its expeditious recommendations under the C
Chairmanship of the Governor of Jammu and Kashmir.
33. Before we part with the file, we express a pious hope
that this judgment shall serve a larger public purpose. It will
provide a fair opportunity to the pilgrims to complete their yatra
to the Holy Cave with human dignity, safety to their lives and D
with basic amenities being provided to them. We have no
doubt in our mind that the State of Jammu and Kashmir and
the Shrine Board shall endeavour their best to implement this
- judgment in its true spirit and substance in the larger interest
of public as well as to uphold the rule of law. E
34. The petition is accordingly disposed of.
K.K.T. Writ Petition disposed of.
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