# 13 S.C.R. 1093 COURT ON ITS OWN MOTION v. UNION OF INDIA & ORS

- **Citation:** [2012] 13 S.C.R. 1093
- **Court:** Supreme Court of India
- **Decided:** 2012-12-13
- **Bench:** Dr. B.S. Chauhan, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/13-s-c-r-1093-court-on-its-own-motion-v-union-of-india-ors-28089
- **Pages:** 57

## Headnote

Constitution of India, 1950:
A
B
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 intergenerational 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
E
F
cannot in any way be controlled by any statutory provision.
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.
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

## Text

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[2012) 13 S.C.R. 1093
COURT ON ITS OWN MOTION
v.
UNION OF INDIA & ORS.
Suo Motu Writ Petition (C) No. 284 of 2012
DECEMBER 13, 2012
[DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]
Constitution of India, 1950:
A
B
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 intergenerational 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
E
F
cannot in any way be controlled by any statutory provision.
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.
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 1 O] [1115-F-G]
F
1.6. Article 25(2) of the Universal Declaration of
G
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]
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-BD]
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 111planning. 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-CE]
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
0 on the issue that much is required to be done. The report
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; 1144A-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 short8
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
A
B
c
1102
SUPREME COURT REPORTS
[2012] 13 S.C.R.
1987(1) SCR 819
relied on
1997 (3) Suppl. SCR 404
relied on
1997 (6) Suppl. SCR 595
relied on
2009 (15) SCR 800
relied on
Para 15
Para 15
Para 15
Para 15
CIVIL ORIGINAL JURISDICTION : Suo-Motu Writ Petition
(Civil) No. 284 of 2012.
Under Article 32 of the Constitution of India.
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
A
B
c
D
E
F
G
H
1104
SUPREME COURT REPORTS
[2012] 13 S.C.R.
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
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
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
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
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),
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.
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.
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
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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
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
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
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.
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
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
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
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.
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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
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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
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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
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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
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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
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[2012] 13 S.C.R.
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.
~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
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,
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
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
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?
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.
COURT ON ITS OWN MOTION v. UNION OF INDIA & 1109
ORS. [SWATANTER KUMAR, J.]
4.
What measures are being taken and methods
being adopted for collection and disposal of the
waste including domestic and human waste
generated by the yatrisen route and around the holy
cave?
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
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
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
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
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of thousands of devotees who visit the holy cave during this
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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.
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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
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[2012) 13 S.C.R.
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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,
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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
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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
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Secretary
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3.
State of Jammu and Kashmir, through its Chief
Secretary.
4.
Chairman/President of the Amarnathji Shrine
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
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COURT ON ITS OWN MOTION v. UNION OF INDIA & 1111
ORS. [SWATANTER KUMAR, J.]
Security Force and the Border Roads Organizations etc. The
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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
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
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for pedestrians and other'for horses, carriages and palkis
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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
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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,
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.
7. Environmental Impact Assessment.
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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
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Cave from different routes.
9. Deployment of more medical teams, at regular distance
on all the passages leading to the Holy Cave.
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[2012] 13 S.C.R.
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
of the yatris, who stay there overnight.
12. Medical examination at the time of registration and
on way."
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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.
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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'.
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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
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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
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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
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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
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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
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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
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[2012] 13 S.C.R.
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."
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.