Page 1 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 13

th

July, 2012. It will be appropriate to

reproduce the said order at this stage itself:-

1

Page 2 “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 3

rd

July, 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 2

nd

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

2

Page 3 reported to have occurred between 25

th

June,

2012 to 2

nd

July, 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

29

th

June, 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 28

th

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 27

th

June, 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

3

Page 4 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 29

th

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 1

st

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

4

Page 5 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 6

th

July, 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 8

th

July, 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 18

th

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

5

Page 6 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 21

st

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

6

Page 7 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

7

Page 8 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.?

8

Page 9 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,

9

Page 10 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.

10

Page 11 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 20

th

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

11

Page 12 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

12

Page 13 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 23

rd

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 6

th

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,

13

Page 14 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

14

Page 15 of force and one way passage at the Shrine during the next

yatra.

7.Vide his letter dated 4

th

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 3

rd

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

15

Page 16 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.

16

Page 17 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.

17

Page 18 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,

18

Page 19 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

19

Page 20 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

20

Page 21 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

21

Page 22 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

22

Page 23 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.

23

Page 24 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.

24

Page 25 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 6

th

September, 2012.

Under Chapter IX of this report, the SHPC has submitted

the summary of recommendations. These

recommendations read as under :

25

Page 26 “ SUMMARY OF RECOMMENDATIONS

9.1Through 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.

9.2HEATH 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-a vis 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.

26

Page 27 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,

27

Page 28 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.

28

Page 29 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

29

Page 30 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

30

Page 31 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:

31

Page 32 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

32

Page 33 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.

33

Page 34 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

34

Page 35 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

35

Page 36 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

36

Page 37 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

37

Page 38 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

38

Page 39 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

39

Page 40 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

40

Page 41 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

41

Page 42 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

42

Page 43 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

43

Page 44 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

44

Page 45 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

45

Page 46 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

46

Page 47 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

47

Page 48 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 6

th

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 :

48

Page 49 “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

49

Page 50 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

50

Page 51 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

51

Page 52 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

52

Page 53 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

53

Page 54 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

54

Page 55 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

55

Page 56 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

56

Page 57 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 :

57

Page 58 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,

58

Page 59 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

59

Page 60 by 30

th

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 30

th

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

60

Page 61 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

61

Page 62 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.

62

Page 63 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

63

Page 64 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

64

Page 65 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

65

Page 66 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

66

Page 67 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

67