REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
SUO MOTU WRIT PETITION (CIVIL) NO. 284 OF 2012
COURT ON ITS OWN MOTION ….Petitioner
Versus
UNION OF INDIA & ORS. ....Respondents
J U D G M E N T
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 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:-
“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 during the 45 days’ yatra.
Thus, this year it appears to be on the rise. In our considered
view, the pilgrims have 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.
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 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”.
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 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
Baltal Base Camps. These were the deaths reported to have
occurred between 25thJune, 2012 to 2ndJuly, 2012 on the twin
tracks of Baltal 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 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, 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 relevant/concerned year.
The Indian Express while reporting the commencement of the
yatra in its newspaper dated 29th 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 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 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 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 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 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 Inderjeet Singh posted 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 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 well as the helicopter services
available between Baltal and Panchtarni.
It is also evident that there is a complete lack of
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.
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 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
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 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
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 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
Glanrock Estate Pvt. Ltd. vs. State of Tamil Nadu (2010) 10 SCC
96 has held “forests in India are an 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.
Right 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 medical 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 cave keeping in view that
lakhs of people are visiting the shrine every day.
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 of
thousands of devotees who visit the holy cave during this
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.
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 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,
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 of law, we require the following
to appear and answer before this Court:
1. Union of India, through its Secretary.
2. Ministry of Environment and Forests, through its Secretary
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. 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 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
Security Force and the Border Roads Organizations etc.
The 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 for
pedestrians and other for horses, carriages and palkis 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 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.
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 Cave from different
routes.
9. Deployment of more medical teams, at regular distance on all
the passages leading to the Holy Cave.
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.”
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 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.
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’.
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 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
stakeholders. Long-term perspective included steps where the larger
element of planning was involved and their compliance 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 Baltal and widening of passage from Baltal to the holy
shrine. The Chief Secretary of the State of Jammu and Kashmir and 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 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
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 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 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/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 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 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 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, 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 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
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 legislative competence. Article 25
deals with the Right to Freedom of Religion, subject to public order,
morality, health and other provisions stated in Part III. 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 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 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 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, 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 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 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 are born free and equal in dignity and rights. They are
endowed with reason and 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 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.”
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 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 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 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 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 particularly, while referring to the workmen made
reference to Articles 21, 39(e), 41, 43 and 48-A of the Constitution of
India 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 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 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, 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
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 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.”
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 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 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 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 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 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 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 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, public amenities and sanitation
arrangements. Besides this, dire need exists for improvement of the
walking tracks to the 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 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 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
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 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
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 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.
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:
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 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 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
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 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
Private Medical Institutions, located in areas within their
respective jurisdictions, which may be authorised to issue
Health Fitness Certificates. CEO, SASB, shall compile State-wise
lists of such authorized institutions and arrange to provide the
widest possible publicity to such lists through all possible
means.
9.2.6 The medical facilities should be rationally dispersed 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 (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 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.
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 etc.
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.
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.
9.2.10 The Union Health Ministry should facilitate timely
arrangements for appropriate training in High Altitude Sickness
Management being provided to doctors and 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 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 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 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/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.
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 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 to face when
they embark on an arduous trek and devise 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 and long duration) on AIR and Doordarshan National
and Regional Channels and besides, through private radio/TV
channels.
9.2.16 The SASB should publish pamphlets in other regional
languages, in addition to Hindi and English, since 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.
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 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 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 SASB.
This meeting should also explore the possibility of providing
the facility of air ambulance to evacuate critically ill/injured
persons who 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. 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 volunteers could
also be engaged for rendering useful health related services.
9.3 ENVIRONMENTAL ISSUES
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.
b) Environmental Impact Assessment
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 to the Holy Cave from
different routes.
9.3.2 The SHPC makes the following recommendations vis-a-
vis the issues listed above:
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 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 Assessment shall be conducted
whenever so mandated.
9.3.4 Keeping in view the low temperature which prevails
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 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 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
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 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 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.
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 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 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:
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
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 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 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 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 cases of
non-adherence must be penalised 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 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 suitable monitoring mechanism in this regard. The
Terms and Conditions of the permission given to
theLangarOrganisations must be 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
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
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.
9.3.12 It must be ensured that after the dismantling of
Yatra 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 monitoring mechanism in this
regard.
9.3.13 The State R&B Department should urgently upgrade the
road from RangaMorh to Domail so that it is able to withstand
the very heavy traffic during the Yatra 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 SPCB also needs to early
upgrade its own testing facilities.
9.4 REGISTRATION, ACCESS CONTROL & SECURITY
9.4.1 The following issues were required to be examined by the
SHPC
a) Registration of yatris at Jammu, Srinagar, Baltal and
Panchtarni.
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 their overnight.
c) Medical examination at the time of registration and
on way.
d) It should be examined by SHPC in its meeting if 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 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:
9.4.3. The SASB will continue to determine, from year to
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 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.
9.4.4 CEO, SASB, 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,
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, 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 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 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
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 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 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, 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 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.
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 providing satisfactory
Darshans.
9.5 TRACK CONDITIONS
9.5.1 The following issues were required to be examined by the
SHPC
a) Construction of proper passages, wide 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 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 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
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 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 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
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.
• 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 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
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 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 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 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
of October, 2013.
9.6 OTHER PUBLIC AMENITIES
9.6.1 For Yatra 2012, Temporary Transit Camps had been set
up for the overnight stay of Yatris at Qazigund and Mir Bazar
(Anantnag District) and at Manigam and Yangoora (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. 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-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
Stations should be augmented to cover Chandanwari, Pahalgam and
Baltal and a Doppler Radar should be set up at IMD Campus,
Srinagar, on urgent basis as this facility will be able to
provide accurate weather forecasts round the year in the entire
Valley.
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 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 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 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 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 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.
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 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 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 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 Cave in the future. Secondly, it was suggested that
specified medical officers of these hospitals should be required to give
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, Baltal or en
route to the Holy 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, Baltal and Srinagar and
enroute to the Shrine shall serve the 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 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 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, 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 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 support towards the open sides. It may 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 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, 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 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
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 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 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 could provide
even pre-fabricated tents and toilets which will help and provide
convenience not only to the pilgrims but even 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 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 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 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 Court is competent to
issue.
25. In the case of M.C. Mehta v. Union of India [(1987) 1 SCC 395], the
Court, while discussing the ambit and scope of Article 32 of the
Constitution, held as under :
“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 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 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
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.
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 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 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,
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 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. The power of the court to
grant such remedial relief may include the power to award
compensation in appropriate 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.”
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 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, 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 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 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 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.
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 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.
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 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 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:-
“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 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 the Government of India with a view
to obtain its recommendations after an in-depth study of the
problem 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 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 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 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.”
28. In the case of University of Kerala v. Council of Principals of
Colleges, Kerala & Ors. [(2010) 1 SCC 353], this Court held as under :
“32. It may be noted that this Court has on several 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 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 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 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 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.”
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 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
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 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 lacunae in law can always be supplied by judicial dictum. In
some cases, where the jurisdiction is invoked to protect the 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
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 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 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 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
environment beyond restricted and permissible limits. The doctrine of
sustainable 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
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.
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 directions :
1) The report of the SHPC is hereby accepted in terms of this
judgment.
2) The recommendations contained in the report shall 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 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 Kashmir;
b. Secretary, Home, State of Jammu and Kashmir; and
c. CEO of the Amarnathji Shrine Board.
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-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 persons who are desirous of going
for yatra henceforth. The authorities shall place such
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 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 pilgrims, as may be necessary.
7) The State of Jammu and Kashmir shall write to the Chief
Secretaries/Secretaries, Health of each State by 30th of April of
every year, making requisition for 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 Jammu
and Kashmir by 30th May of the year, the names with specialization
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 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 exceeding two kilometers.
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
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 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.
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.
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 before any Court, including the High
Court of Jammu and Kashmir.
13) The request of the applicant M/s. Piramal Healthcare Pvt. Ltd. (In
I.A. No. 4 of 2012) for 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 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 blocks or cement and stone) shall be in the 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.
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 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.
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 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 be provided near the Holy Shrine where large
number of persons collect and have to wait for long hours for
darshan.
19) At the Holy Cave, the existing grill should be 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, 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 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 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 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.
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
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, 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 desired action and/or is instrumental in
violating the 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 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 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 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.
34. The petition is accordingly disposed of.
………………………………...J.
(Dr. B.S. Chauhan)
..……...….………….................J.
(Swatanter Kumar)
New Delhi,
December 13, 2012
