COURT ON ITS OWN MOTION v. UNION OF INDIA & ORS.

A purpose. It was clarified that this Court was acting under Article 32 of the Constitution and the directions "would be treated as the law declared by the Court under Article 141 of the Constitution". (para 16)

· 33. Similarly, the Supreme Court issued directions B regarding the procedure and the necessary precautions to be followed in the adoption of Indian children by foreign adoptive parents. While there was no law to regulate inter- country adoptions, Bhagwati, J., (as His Lordship then was) in Laxmi Kant Pandey v. Union of India, formulated c an entire scheme for regulating inter-country and intra- country adoptions. This is an example of the judiciary filling up the void by giving directions which are still holding the field."

29Copy pinpoint29. 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

COURT ON ITS OWN MOTION v. UNION OF INDIA & 1143 ORS. [SWATANTER KUMAR, J.]

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 B generic nature where the facts of the case called for. There can be cases like the one in hand where there is no infringement of a specific legislation or even where no legislation is in place but are purely cases of infringement of fundamental rights and their violation. The directives are c needed to protect them and to ensure that the State discharges its obligation of protecting the rights of the people as 'well as the environment. The deficiencies in the aforementioned fields are not deficiencies simplicitor but have far reaching consequences of violating the fundamental protections and 0 rights of the people at large. It is the obligation of the State to provide safety, health care, means to freely move and to profess the religion in the manner as they desire insofar as it is within the limitations of law.

30Copy pinpoint30. 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 environ.ment 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 G Government and the Shrine Board to the advantage of all stakeholders, particularly the pilgrims. Thus, the directions we contemplate to issue under this order are in conformity with these legal maxims and are likely to cause no practical issues. H

1144 SUPREME COURT REPORTS {2012] 13 S.C.R.

31Copy pinpoint31. Applying these principles to the facts of the present case, it is apparently the constitutional obligation of this Court to issue specific directions in addition or which are to be read mutatis mutandis to the Report of the SHPC. In the above background, it is axiomatic for us to issue the following 8 directions :

1) The report of the SHPC is hereby accepted in terms of this judgment.

2) The recommendations contained in the report shall c be read, construed and applied in aid to the directions of this Court and not in derogation thereto.

3) All the recommendations contained in the report D shall be implemented under two different heads, i.e., 'short-term measures' and 'long-term measures'. This categorization shall be made by the Sub-Committee consisting of the following :

a. Chief Secretary of the State of Jammu and E Kashmir;

b. Secretary, Home, State of Jammu and Kashmir; and

c. CEO of the Amarnathji Shrine Board. F 4) Steps in relation to health care, improvement of walking tracks, providing of pre-fabricated toilets, tents, pre-fabricated walking path/mats, construction of STPs and providing of one way 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

-COURT ON ITS OWN MOTION v. UNION OF INDIA &1145 ORS. [SWATANTER KUMAR, J.]

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 B of each respective State, particularly, the State of Uttar Pradesh, Haryana, Punjab, Rajasthan, Himachal Pradesh and Union Territory of Chandigarh to depute such number of doctors during the relevant period to the State of Jammu and Kashmir for ensuring due health care of the c pilgrims, as may be necessary.

7) The State of Jammu and Kashmir shall write to the ChiefSecretaries/Secretaries, Health of each State by 30th of April of every year, making requisition for D the number of doctors and the area of specialization from which such doctors are required. The concerned State shall inform the Chief Secretary/ Secretary, Health and the Director General of Health Services of the State of Jam mu and Kashmir E by 30.th May of the year, t.he names with spf?cialization of the doctors who have been deputed for the yatra period at the State of Jammu and Kashmir and actually direct and inform the concerned doctors of their 'temporary duty', in F public interest, with the State of Jammu and Kashmir. 8) The medical teams .shall be deployed en route to the Holy Cave at a regular distance not exceecUng two .kilometers. G

9) The State of Jammu of Kashmir and the Shrine Board shall provide infrastructure, equipment, medicines and all other ancillary items thereto to the medical teams to ensure that the pilgrims can be H

1146 SUPREME COURT REPORTS [2012] 13 S.C.R.

A provided adequate treatment without any loss of time. Largest number of medical teams shall be deputed at the glacier and the passage near the Holy Shrine.

10) The State of Jammu and Kashmir shall make due B provision for providing lodging and boarding to doctors on 'temporary duty' and ensure that they are not put to any inconvenience, in any respect, whatsoever. c 11) The State of Jammu and Kashmir and the Shrine Board shall make due provision for registration of the yatris as proposed in the report and preferably at Srinagar, Baltal, Chandanvadi, Panchtarni, etc.

D 12) The STPs shall be constructed at all places, particularly at Baltal. Clearance for that purpose shall be granted by all the concerned departments expeditiously and in accordance with law. This direction of the Court shall be complied with notwithstanding the pendency of any litigation before any Court, including the High Court of Jammu and Kashmir.

13) The request of the applicant Mis. Piramal Healthcare Pvt. Ltd. (In I.A. No. 4 of 2012) for 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 H

COURT ON ITS OWN MOTION v. UNION OF INDIA & 1147 ORS. [SWATANTER KUMAR, J.]

blocks or cement and stone) shall be in the A discretion of the Sub-Committee afore-constituted. But, we make it clear that width of no passage shall be less than 12 feet, particularly, that of the track leading from Panchtarni to the Holy Shrine. B 15) Neither have we directed nor should we be understood to have implicitly directed that there should be mettled motorable road in place of the walking tracks/passages.

16) ·There shall be provided separate one way passage c for palkis and. horses as one unit and the pedestrians as the other, near to and at the passages leading to the Holy Shrine. Preferably on this passage pre-fabricated walking path/matting should be provided. D

17) All other walking tracks from various other points, like Baltal, Panchtarni and Chandanvadi may be covered either by pre-fabricated rough cement tiles or such other material, which in the opinion of the E SHPC, would be most appropriate for the benefit of the pilgrims.

18) Attempt should be made to construct shelters on the passage/walking paths at regular intervals. Temporary/pre-fabricated shelters should certainly be provided near the Holy Shrine where large numb~r of persons collect and have to wait for long hours for darshan.

19) At the Holy Cave, the existing grill should be replaced by 100 per cent transparent fiber or any other material to ensure that the darshan to the shivlingam is not visually obstructed. In the alternative, the iron grillS, as installed can be permitted, but the gaps between the parallel bars, H

1148 SUPREME COURT REPORTS [2012] 13 S.C.R:

A which are perpendicular to the earth, should not be less than 12 inches, as they would help in giving a clear visual darshan of the shivlingam and the shiv parivar. The implementation of the above suggestion should B be left to the wisdom of the Sub-Committee. 20) The Sub-Committee constituted under this order shall be at liberty to consult or obtain opinion of any expert body, as it may deem fit and proper, in the c facts and circumstances.

21) All the above directions and the recommendations made in the report of the SHPC should be carried out by all concerned without demur or protest and D expeditiously. We make it clear that any officer of any State irrespective of his position in the State hierarchy shall personally be held liable and proceeded against in the event of default and/or violation of the above directions/ recommendations of the SHPC. E 22) The Chief Secretary, Secretary, Health of the State of Jammu and Kashmir and the CEO of the Shrine Board shall personally be responsible and answerable for strict compliance of the 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 H

- -COURT ON ITS OWN MOTION v. UNION OF INDIA &1149 ORS. [SWATANTER KUMAR, J.] desired action and/or is instrumental in violating the orders and directions of the Court.

32Copy pinpoint32. 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 C Chairmanship of the Governor of Jammu and Kashmir.

33Copy pinpoint33. Before we part with the file, we express a pious hope that this judgment shall serve a larger public purpose. It will provide a fair opportunity to the pilgrims to complete their yatra to the Holy Cave with human dignity, safety to their lives and D with basic amenities being provided to them. We have no doubt in our mind that the State of Jammu and Kashmir and the Shrine Board shall endeavour their best to implement this - judgment in its true spirit and substance in the larger interest of public as well as to uphold the rule of law. E

34Copy pinpoint34. The petition is accordingly disposed of.

K.K.T. Writ Petition disposed of.