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2017 DIGILAW 177 (UTT)

Kalika Prasad Kala v. State of Uttarakhand

2017-03-10

RAJIV SHARMA, SUDHANSHU DHULIA

body2017
JUDGMENT : Rajiv Sharma, J. 1. A question of great public importance has been raised in this Public Interest Litigation. The Kedarnath area received an unprecedented heavy rainfall between 14.06.2013 to 17.06.2013. The Chorabari Lake collapsed due to cloudburst. Millions of tons of debris and boulders were carried by flashflood downstream. It caused massive damage to the infrastructure and human life. As per the material placed on record, 132 children lost their father/ parents in the tragedy. Petitioner has prayed for the rehabilitation of these children by the State Government, by admitting them either in Rajiv Gandhi Navodaya Vidyalaya or Shyama Prasad Mukherjee Navodaya Vidyalaya. 2. It is the duty cast upon the State Government to provide necessary monetary help to the children and also to ensure that they are imparted education in the government run institutions. Ours is a welfare State. The welfare State and socialism are the basic features of the Constitution. The welfare State should always adopt humanitarian approach to help the persons in distress on each and every count i.e. death case, injury case, destruction of houses, loss to crops, cattle etc. 3. Their Lordships of Hon. Apex Court in the case of ‘Swaraj Abhiyan v. Union of India & others’ (2016) 7 SCC 498 , have held that public interest litigation is necessary in certain circumstances, particularly in a welfare State such as ours. The directive principles enjoin the State to take all protective measures to which a social welfare State is committed. How else can a welfare State function effectively if it cannot even hear let alone listen to what the underprivileged and needy people have to say? Although, Article 47 is not enforceable being a directive principle, there is considerable moral force and authority in this provision to persuade the State Governments and the Government of India to attempt at ensuring that the people, particularly those in drought-affected areas, are provided adequate foodgrains and a cooking medium for the preparation of their meals. Their Lordships, in paragraph nos.20, 21 and 22, have held as under: - “20. Public interest litigation is necessary in certain circumstances particularly in a welfare State such as ours. In Gaurav Kumar Bansal v. Union of India (2015) 2 SCC 130 it was held that the Directive Principles enjoin the State to take all protective measures to which a social welfare State is committed. Public interest litigation is necessary in certain circumstances particularly in a welfare State such as ours. In Gaurav Kumar Bansal v. Union of India (2015) 2 SCC 130 it was held that the Directive Principles enjoin the State to take all protective measures to which a social welfare State is committed. It is said in paragraph 8 of the Report: There is no manner of doubt that a welfare State is the protector of life and liberty of its citizens not only within which a social welfare State is committed. Interestingly, this doctrine has been recognised in India even before the country but also outside the country in certain situations. The concept of parens patriae recognises the State as protector of its citizens as parent particularly when citizens are not in a position to protect themselves. The Preamble to the Constitution, read with directive principles, under Articles 38, 39 and 39-A enjoins the State to take all protective measures to the Constitution came into force. 21. There are occasions when people in disadvantaged situations are unable to have access to courts and therefore access to justice and need someone to speak up for them. How else can a welfare State function effectively if it cannot even hear let alone listen to what the underprivileged and needy people have to say? In Sheela Barse v. Union of India : (1988) 4 SCC 226 this Court held that public interest litigation is intended to prevent the violation of rights of those segments of society that cannot assert their rights owing to poverty, ignorance or other disadvantages. It was said in paragraph 11 of the Report: 11………The compulsion for the judicial innovation of the technique of a public interest action is the constitutional promise of a social and economic transformation to usher in an egalitarian social order and a welfare State. Effective solutions to the problems peculiar to this transformation are not available in the traditional judicial system. The proceedings in a public interest litigation are, therefore, intended to vindicate and effectuate the public interest by prevention of violation of the rights, constitutional or statutory, of sizeable segments of the society, which owing to poverty, ignorance, social and economic disadvantages cannot themselves assert -- and quite often not even aware of -- those rights. 22. The proceedings in a public interest litigation are, therefore, intended to vindicate and effectuate the public interest by prevention of violation of the rights, constitutional or statutory, of sizeable segments of the society, which owing to poverty, ignorance, social and economic disadvantages cannot themselves assert -- and quite often not even aware of -- those rights. 22. Public interest litigation presents the Court with an issue based problem concerning society and solutions need to be found to that problem within the legal framework. Sometimes, the cause of the problem is bureaucratic inactivity and apathy; sometimes executive excesses that cause the problem and sometimes the problem is caused by the ostrich-like reaction of the executive. These situations represent the broad contours of public interest issues brought to the notice of the Court, and these are the kind of issues for which we need to search for solutions. The successful pursuit of appropriate solutions and consequent conclusions and directions are often pejoratively and unfortunately described as judicial activism. In this context, it is worth quoting Justice Michael Kirby a former judge of the High Court of Australia who says in his Hamlyn Lecture "Judicial Activism - Authority, Principle and Policy in the Judicial Method" with reference to our country as follows: The acute needs of the developing countries of the Commonwealth have sometimes produced an approach to constitutional interpretation that is unashamedly described as "activist", including by judges themselves. Thus in India, at least in most legal circles, the phrase "judicial activism" is not viewed as one of condemnation. So urgent and numerous are the needs of that society that anything else would be regarded by many-- including many judges and lawyers--as an abdication of the final court's essential constitutional role. One instance may be cited from Indian experience: the expansion of the traditional notion of standing to sue in public interest litigation. The Indian Supreme Court has upheld the right of prisoners, the poor and other vulnerable groups to enlist its constitutional jurisdiction by simply sending a letter to the Court. This might not seem appropriate in a developed country. Yet it appears perfectly adapted to the nation to which the Indian Constitution speaks. Lord Chief Justice Woolf recently confessed to having been astounded at first by the proactive approach of the Indian Supreme Court in this and other respects. However, he went on: ... This might not seem appropriate in a developed country. Yet it appears perfectly adapted to the nation to which the Indian Constitution speaks. Lord Chief Justice Woolf recently confessed to having been astounded at first by the proactive approach of the Indian Supreme Court in this and other respects. However, he went on: ... I soon realised that if that Court was to perform its essential role in Indian society, it had no option but to adopt the course it did and I congratulate it for the courage it has shown. Much later, Justice Kirby goes on to say: “It is beyond contest that some of the accretions of power to the judiciary over the last century have come about as a result of failures and inadequacies in lawmaking by the other branches and departments of government. Constitutional power hates a vacuum. Where it exists, in the form of silence, confusion or uncertainty about the law, it is natural that those affected, despairing of solutions from the other law-making organs of government, will sometimes approach the judicial branch for what is in effect a new rule. They will seek a new law that responds quickly to their particular problem. When this happens judges, if they have jurisdiction in the case, are not normally at liberty to just send the parties away. How do they decide whether the fulfilment of their judicial role permits, or requires, the giving of an answer or obliges them to decline and force the parties to return to the politicians or bureaucrats? To what extent must judges defer to Parliament, when they know full well, from many like cases, that nothing will be done because the problem is too particular, divisive, technical or boring to merit political attention and parliamentary time? What, in other words, is the judicial role in the particular case?” To be sure, judicial activism is not an uncomplimentary or uncharitable epithet to describe the end result of public interest litigation. Those who benefit from judicial activism shower praise and those who are at the receiving end criticize it. C'est la vie!” 4. What, in other words, is the judicial role in the particular case?” To be sure, judicial activism is not an uncomplimentary or uncharitable epithet to describe the end result of public interest litigation. Those who benefit from judicial activism shower praise and those who are at the receiving end criticize it. C'est la vie!” 4. Their Lordships of Hon. Apex Court in (1996) 4 SCC Page 37 in the case of ‘Paschim Banga Khet Mazdoor Society & others v. State of W.B. & another’, have held that the Constitution envisages the establishment of a welfare State at the federal level as well as at the State level. In a welfare State, the primary duty of the Government is to secure the welfare of the people. 5. This Court, in Writ Petition (PIL) No. 05 of 2016, Jai Prakash Bisht & others v. Union of India & others, issued the following directions to the State Government qua the children who have lost their parents :- “The State Government is further directed to trace and find out the children who were rendered Orphans due to Kedarnath Tragedy and to take all necessary steps for their rehabilitation including their boarding and lodging, free education up to post-graduation. The State Government is also directed to provide stipend of Rs.7,500/- per month to the Orphans, till they attain the age of majority, to be deposited in their bank accounts through District Welfare Officers of the concerned district. The Chief Secretary of the State shall be personally responsible to execute the order in letter and spirit.” 6. Accordingly, the petition is allowed. The Court, exercising parens patriae jurisdiction, in addition to the directions already issued by this Court in WPPIL No. 5 of 2016 on 19.11.2016, orders the State Government to admit 132 students, who have lost their parents/father, in Rajiv Gandhi Navodaya Vidyalaya or Shyama Prasad Mukherjee Navodaya Vidyalaya, which is situated nearby the residence of these children in the academic session 2017-2018. All the expenses towards their boarding, lodging, books, copies, stationery etc., shall be borne by the State Government. No fees shall be charged from these special children who are to be admitted in the academic session 2017-2018. 7. The Court records its appreciation for the assistance rendered by learned advocates on behalf of the parties.