Economic Rights and the

Indian Supreme Court

Colin Gonsalves

Human Rights Law Network 576, Masjid Road, Jangpura, New Delhi – 110014.

Ph.: +91-11-24379854, 24379855, 24379856, 24379857Fax : +91-11-24374502, Email : colin.gonsalves@hrln.org

Two India’sPopulation – 1.1 billion

Middle Class & Rich - 250 m.

Parliament

‘Free’ press

Independent Judiciary

Poor - 760 m. Everyday struggle for food,

shelter, healthcare, education and employment. Treated with indignity & violence on a daily basis. Left with no choice, the poor migrate towards armed struggle groups.

Will the largest democracy in the

world move towards…

Increased equality ?

or

Increased poverty and anarchy ?

Statistical Jugglery

Artificially Lowered

Poverty Line…• According to the

Government of India and the Planning Commission the poverty line stands at € 8 per person per month. On this basis the government recently declared that globalisation was successful in India and that poverty had reduced from 36% to 24%.

The Real Poverty Line…

• 74.5% of the population of India does not consume the stipulated 2400 calories per person per day.

(Utsa Patnaik, Economist and Professor , JNU using NSS 2004 data)

Poverty in India- 53% of children under four- years-old are

moderately or severely malnourished. (60 million)- 30% of newborns are significantly underweight. - 87% of pregnant women and 60% of young

children are anaemic. (http://www.unicef.org/nutrition.html)

- Studies show lower consumption patterns, stunted growth, small brains and increasing disability.

The UNDP Human Development Index Report 2004, covering 177 countries ranks India at 127.

Expanding the Meaning of the Right to Life

Francis Coralie Mullin Vs. The Administrator [(1981) 2 SCR 516]

• Now obviously, the right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival…(it includes) the right to live with human dignity and all that goes with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. 

Broadening Of Locus Standi

S.P. Gupta Vs. Union of India [(1981) Supp. SCC 87]

• Where a legal wrong…is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right…and any such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court and, in case of breach of any fundamental right, in this Court under Article 32 seeking judicial redress.

Contd.

• Where the affected persons are really helpless the Supreme Court will not insist on a regular writ petition to be filed…the Court will readily respond even to a letter addressed by such individual acting pro bono publico, despite the fact that formal rules exist with regard to filing of petitions…the Court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning….

Contd. • But, the individual who moves the court for judicial redress

in cases of this kind must be acting bona fide with a view of vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or some other oblique consideration, the court should not allow itself to be activised at the instance of such person and must reject his application at the threshold.

• The strict rule of standing which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busybody or a meddlesome inter-loper but one who has sufficient interest in the proceeding.

Contd.

• It is only by liberalising the rule of locus standi that it is possible to effectively police the corridor of power and prevent violations of law. The oppression might be financial, commercial, corporate or governmental.

• Members of the Bar have a vital stake in the functioning of the judiciary. Members of the Bar and even litigants whose cases have remained undisposed for a long number of years on account of the Government not appointing sufficient number of Judges can therefore file a petition demanding appointment of sufficient number of permanent Judges in High Courts.

PILs and the Gathering of Evidence

Bandhua Mukti Morcha Vs. Union of India [(1984) 3 SCC 161]

• We have no more occasions than one said that public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community…The Government and its officers must welcome public interest litigation…This right to live with human dignity enshrined in Article 21…include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief….

Contd. • The provision conferring on the Supreme Court power to enforce the

fundamental rights in the widest possible terms shows the anxiety of the Constitution makers not to allow any procedural technicalities to stand in the way of enforcement of fundamental rights…But what procedure shall be followed by the Supreme Court in exercising the power to issue such direction, order or writ? That is a matter on which the Constitution is silent…It is only because we have been following the adversarial procedure for over a century owing to the introduction of the Anglo-Saxon system of jurisprudence under the British Rule that it has become a part of our conscious as well as sub-conscious thinking that even judicial proceeding must be cast in the mould of adversarial procedure and that justice cannot be done unless the adversarial procedure is adapted. But it may be noted that there is nothing sacrosanct about the adversarial procedure and in fact it is not followed in many other countries where the civil system of law prevails….

Contd.

• There is a considerable body of juristic opinion in our country also which believes that strict adherence to the adversarial procedure can sometimes lead to injustice, particularly where the parties are not evenly balanced in social or economic strength. Where one of the parties to a litigation belongs to a poor and deprived section of the community and does not possess adequate social and material resources, he is bound to be at a disadvantage as against a strong and powerful opponent under the adversary system of justice, because of his difficulty in getting competent legal representation and more than anything else, his inability to produce relevant evidence before the Court. Therefore, when the poor come before the Court, particularly for enforcement of their fundamental rights, it is necessary to depart from the adversarial procedure and to evolve a new procedure which will make it possible for the poor and the weak to bring the necessary material before the court ….

Contd.

• Now it is obvious that the poor and the disadvantaged cannot possibly produce relevant material before the Court in support of their case and equally where an action is brought on their behalf by a citizen acting pro bono publico, it would be almost impossible for him to gather the relevant material and place it before the Court. What is the Supreme Court to do in such a case? Would the Supreme Court not be failing in discharge of its constitutional duty of enforcing a fundamental right if it refuses to intervene because the petitioner belonging to the underprivileged segment of society or a public spirited citizen espousing his cause is unable to produce the relevant material before the Court….

Contd.

• If the Supreme Court were to adopt a passive approach and decline to intervene…fundamental rights would remain merely a teasing illusion…. It is for this reason that the Supreme Court has evolved the practice of appointing commissions for the purpose of gathering facts and data in regard to a complaint of breach of a fundamental right made on behalf of the weaker sections of the society…. The report of the commissioner would furnish prima facie evidence of the facts and data gathered by the commissioner and that is why the Supreme Court is careful to appoint a responsible person as commissioner to make an enquiry or investigation into the facts relating to the complaint. It is interesting to note that in the past the Supreme Court has appointed sometimes a district magistrate, sometimes a district judge, sometimes a professor of law, sometimes a journalist, sometimes an officer of the Court and sometimes an advocate practising in the Court, for the purpose of carrying out an enquiry or investigation and making report to the Court because the commissioner appointed by the Court must be a responsible person who enjoys the confidence of the Court….

Financial Resources MUNICIPAL COUNCIL, RATLAM Vs.

VARDICHAND [(1980) 4 SCC 162]

• The truth is that a few profound issues of processual jurisprudence of great strategic significance to our legal system face us and we must zero in on them as they involve problems of access to justice for the people beyond the blinkered rules of ‘standing’ of British-Indian vintage. If the centre of gravity of justice is to shift, as the Preamble to the Constitution mandates, from the traditional individualism of locus standi to the community orientation of public interest litigation, these issues must be considered. In that sense, the case before us between the Ratlam Municipality and the citizens of a ward, is a pathfinder in the field of people’s involvement.

Contd.

• The key question we have to answer is whether by affirmative action a court can compel a statutory body to carry out its duty to the community by constructing sanitation facilities at great cost and on a time-bound basis. At issue is the coming of age of that branch of public law bearing on community actions and the court’s power to force public bodies under public duties to implement specific plans in response to public grievances.

• The statutory setting being thus plain, the municipality cannot extricate itself from its responsibility. Its plea is not that the facts are wrong but that the law is not right because the municipal funds being insufficient it cannot carry out the duties under Section 123 of the Act.

Contd.

• The plea of the municipality that notwithstanding the public nuisance, financial inability validly exonerates it from statutory liability has no juridical basis. The criminal procedure code operates against statutory bodies and others regardless of the cash in their coffers, even as human rights under Part III of the Constitution have to be respected by the state regardless of budgetary provision. Likewise, Section 123 of the Act has no saving clause when the municipal council is penniless. Otherwise, a profligate statutory body or pachydermic governmental agency may legally defy duties under the law by urging in self-defense a self-created bankruptcy or perverted expenditure budget. That cannot be.

Contd.

• A responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability. Decency and dignity are non-negotiable facets of human rights and are a first charge on local self-governing bodies…. The nature of the judicial process is not purely adjudicatory nor is it functionally that of an umpire only. Affirmative action to make the remedy effective is of the essence of the right which otherwise becomes sterile…. The law will relentlessly be enforced and the plea of poor finance will be poor alibi when people in misery cry for justice.

International Instruments and their Enforcement in Indian Courts

Maganbhai Ishwarbhai Vs. Union of India [(1970) 3 SCC 400]

• The argument raised at the Bar that power to make treaty or to implement a treaty, agreement or convention with a foreign State can only be exercised under authority of law, proceeds upon a misreading of Article 253….The effect of Article 253 is that if a treaty, agreement or convention with a foreign State deals with a subject within the competence of the State Legislature, the Parliament alone has, notwithstanding Article 246(3), the power to make laws to implement the treaty, agreement or convention or any decision made at any international conference, association or other body….

Contd.

• In terms, the Article deals with legislative power : thereby power is conferred upon the Parliament which it may not otherwise possess. But it does not seek to circumscribe the extent of the power conferred by Article 73. If, in consequence of the exercise of executive power, rights of the citizens or others are restricted or infringed, or laws are modified, the exercise of power must be supported by legislation : where there is no such restriction, infringement of the right or modification of the laws, the Executive is competent to exercise the power.

Gramophone Company of India Vs. Birendra Pandey [(1984 (SC) AIR 677)]

• There can be no question that nations must march with the international community and the municipal law must respect rules of international law even as nations respect international opinion. The comity of nations requires that the rules of international law may be accommodated in the municipal law even without express legislative sanction provided they do not run into conflict with Acts of Parliament…. But the courts are under an obligation within legitimate limits, to so interpret the municipal statute as to avoid confrontation with the comity of nations or the well established principles of international law.

Vishaka Vs. State of Rajasthan [(1997) 6 SCC 241]

• In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all workplaces, the contents of international conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee….

Contd. • This is implicit from Article 51(c) and the enabling power of

Parliament to enact laws for implementing the international conventions and norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. Article 73 also is relevant. It provides that the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws. The executive power of the Union is, therefore, available till Parliament enacts legislation to expressly provide measures needed to curb the evil. Thus, the power of this Court under Article 32 for enforcement of the fundamental rights and the executive power of the Union have to meet the challenge to protect the working women from sexual harassment and to make their fundamental rights meaningful. Governance of the society by the rule of law mandates this requirement as a logical concomitant of the constitutional scheme….

Contd.

• The exercise performed by the Court in this matter is with this common perception shared with the learned Solicitor General and other members of the bar who rendered valuable assistance in the performance of this difficult task in public interest.

• Some provisions in the “Convention on the Elimination of All Forms of Discrimination against Women”, of significance in the present context are :

Article 11 : “1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights…..”

Contd.

Article 24 : “States Parties undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognised in the present Convention.”

• The Government of India has ratified the above Resolution on 25.6.1993…. We have, therefore, no hesitation in placing reliance on the above for the purpose of construing the nature and ambit of constitutional guarantee of gender equality in our Constitution…. The international conventions and norms are to be read into them in the absence of enacted domestic law occupying the field when there is no inconsistency.

Apparel Export Promotion Council Vs. A.K.Chopra

[(1999) 1 (SC) 759]• These international instruments cast an obligation on the

Indian State to gender-sensitise its laws and the courts are under an obligation to see that the message of the international instruments is not allowed to be drowned. This Court has in numerous cases emphasised that while discussing constitutional requirements, court and counsel must never forget the core principle embodied in the international conventions and instruments and as far as possible, give effect to the principles contained in those international instruments. The courts are under an obligation to give due regard to international conventions and norms for construing domestic laws, more so, when there is no inconsistency between them and there is a void in domestic law.

Contd.

• In cases involving violation of human rights, the courts must forever remain alive to the international instruments and conventions and apply the same to a given case when there is no inconsistency between the international norms and the domestic law occupying the field.

Labour Rights

• Article 41 of the Constitution provides that “the State shall within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.”

National Textile Workers Union Vs. P. R. Ramakrishnan

[(1983) 1 SCC 228]

• The concept of a company has undergone radical transformation in the last few decades…. The traditional view that the company is the property of the shareholders is now an exploded myth…. The ownership of the concern was identified with those who brought in capital. That was the outcome of the property-minded capitalistic society in which the concept of company originated. But this view can no longer be regarded as valid in the light of the changing social-economic concepts and values…There is another equally, if not more, important factor of production and that is labour….

Contd.

• In fact, the owners of capital bear only limited financial risk and otherwise contribute nothing to production while labour contributes a major share of the product. While the former invest only a part of their moneys, the latter invest their sweat and toil, in fact their life itself. The workers therefore have a special place in a socialist pattern of society. They are no more vendors of toil; they are not a marketable commodity to be purchased by the owners of capital. They are producers of wealth as much as capital…. Our Constitution has shown profound concern for the workers and given them a pride of place in the new socio-economic order envisaged in the Preamble and the Directive Principles of State Policy. The Preamble contains the profound declaration pregnant with meaning and hope for millions of peasants and workers that India shall be a socialist democratic republic where social and economic justice will inform all institutions of national life and there will be equality of status and opportunity for all and every endeavour shall be made to promote fraternity ensuring the dignity of the individual.

Shantistar Builders Vs. Narayan K. Totame [(1990)1 SCC 520]

• Basic needs of man have traditionally been accepted to be three--food, clothing and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body; for a human being it has to be a suitable accommodation which would allow him to grow in every aspect – physical, mental and intellectual…. Millions of people today live on the pavements of different cities of India and a greater number live animal-like existence in jhuggis.

Right to Housing

Ahmedabad Municipal Corporation Vs. Nawab Khan Gulab Khan

[(1997) 11 SCC 121] • All civil, political, social and cultural rights enshrined in the

Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights. Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one’s head but right to all the infrastructure necessary to enable them to live and develop as a human being. Right to shelter when used as an essential requisite to the right to live should be deemed to have been guaranteed as fundamental right….

Contd.

• Want of decent residence, therefore, frustrates the very object of the constitutional animation of right to equality, economic justice, fundamental right to residence, dignity of person and right to live itself….

• The annual budget including for housing accommodation is being prepared and passed by Parliament…. When the State…annually [provides] housing accommodation to them within the allocation budget and effectively and sincerely implement them using the allocations for the respective schemes so that the right to residence to them would become a reality and meaningful and the budget allocation should not either be diverted or used for any other scheme meant for other weaker sections of the society. Any acts in violation thereof or diversion of allocation funds, misuse or misutilisation, would be in negation of constitutional objectives defeating and deflecting the goal envisioned in the Preamble of the Constitution….

• It would, therefore, be the duty of the Corporation to evolve the Schemes.

Right to Healthcare

• 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. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare State. The Government discharges this obligation by running hospitals and health centres…. The government hospitals run by the State and the medical officers employed therein are duty-bound to extend medical assistance for preserving human life. Failure on the part of a government hospital to provide timely medical treatment… results in violation… of…right to life guaranteed under Article 21.

Paschim Banga Khet Majdoor Samity Vs. State of West Bengal

[(1996) 4 SCC 37]

Contd.

• It is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done. In the context of the constitutional obligation to provide free legal aid to a poor accused this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. [See : Khatri (II) v. State of Bihar, SCC at p. 631.] The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional obligation of the State to provide medical aid to preserve human life. In the matter of allocation of funds for medical services the said constitutional obligation of the State has to be kept in view.

Consumer Education and Research Centre Vs. Union of India

[(1995) 3 SCC 42] • Provision for medical test and treatment invigorates the health

of the worker for higher production or efficient service. Continued treatment, while in service or after retirement is a moral, legal and constitutional concomitant duty of the employer and the State. Therefore, it must be held that the right to health and medical care is a fundamental right under Article 21 read with Article 39(e), 41 and 43 of the Constitution and make the life of the workman meaningful and purposeful with dignity of person. Right to life includes protection of the health and strength of the worker and is a minimum requirement to enable a person to live with human dignity.

Vincent Pannikulangura Vs. Union of India

[(1987) 2 SCC 165] • Maintenance and improvement of public health have to

rank high as these are indispensable to the very physical existence of the community and on the betterment of these depends the building of the society of which the Constitution makers envisaged. Attending to public health, in our opinion, therefore, is of high priority – perhaps the one at the top.

• Such drugs as are found necessary should be manufactured in abundance and availability to satisfy every demand should be ensured…. The State’s obligation to enforce production of qualitative drugs and elimination of the injurious ones from the market must take within its sweep an obligation to make useful drugs available at reasonable price so as to be within the common man’s reach. That would involve regulating the price….

Contd.

• It may be that there may be an improved quality of a particular medicine which on account of its cost of production will have to sell at a higher price but for every illness which can be cured by treatment, the patient must be in a position to get its medicine.

• There must be due emphasis on indigenous production so that in due course, what the government contemplated in 1979 in its then drug policy may be effectuated by India.

• The drug policy of the government should emphasise upon a time-bound switch over to indigenous production.

Right to Education

• Article 45 of the Directive Principles of State Policy, which corresponds to article 13(1) of the ICESCR, states, “The State shall endeavor to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.”

Unnikrishnan J.P. Vs. State of Andra Pradesh

[(1993) 1 SCC 645] • Right to education is not stated expressly as a fundamental

right in Part III. This Court has, however, not followed the rule that unless a right is expressly stated as a fundamental right, it cannot be treated as one. Freedom of Press is not expressly mentioned in Part III, yet it has been read into and inferred from the freedom of speech and expression [Express Newspapers v. Union of India, (1987) 4 SCC 463 : (1998) 1 SCR 279].

• Right to free education for all children until they complete the age of fourteen years (Art. 45). It is noteworthy that among the several articles in Part IV, only Article 45 speaks of a time-limit; no other article does. Has it no significance? Is it a mere pious wish, even after 44 years of the Constitution? Can the State flout the said direction even after 44 years…

Contd.

…on the ground that the article merely calls upon it to “endeavour to provide” the same and on the further ground that the said article is not enforceable by virtue of the declaration in Article 37. Does not the passage of 44 years – more than four times the period stipulated in Article 45 – convert the obligation created by the article into an enforceable right? In this context, we feel constrained to say that allocation of available funds to different sectors of education in India discloses an inversion of priorities indicated by the Constitution. The Constitution contemplated a crash programme being undertaken by the State to achieve the goal set out in Article 45. It is relevant to notice that Article 45 does not speak of the “limits of its economic capacity and development” as does Article 41, which inter alia speaks of right to education.

Contd.

• We must say that at least now the State should honour the command of Article 45….

• We hold that a child (citizen) has a fundamental right to free education up to the age of 14 years.

Right to Food

• Order dated 23.07.2001 : In our opinion, what is of utmost importance is to see that food is provided to the aged, infirm, disabled, destitute women, destitute men who are in danger of starvation, pregnant and lactating women and destitute children, especially in cases where they or members of their family do not have sufficient funds to provide food for them. In case of famine, there may be shortage of food, but here the situation is that amongst plenty there is scarcity. Plenty of food is available, but distribution of the same amongst the very poor and the destitute is scarce and non-existent leading to mal-nourishment, starvation and other related problems.

PUCL vs. Union of IndiaWrit Petition (Civil) No. 196 of 2001

Contd.

• Mid Day Meal Scheme (MDMS)

We direct the State Governments/Union Territories to implement the Mid-Day Meal Scheme by providing every child in every Government and Government assisted Primary Schools with a prepared mid day meal with a minimum content of 300 calories and 8 – 12 grams of protein each day of school for a minimum of 200 days. Those Governments providing dry rations instead of cooked meals must within three months start providing cooked meals in all Govt. and Govt. aided Primary Schools in all half the Districts of the State (in order of poverty) and must within a further period of three months extend the provision of cooked meals to the remaining parts of the State.

Contd.

• Integrated Child Development Scheme (ICDS)

(i) We direct the State Govts./Union Territories to implement the Integrated Child Development Scheme (ICDS) in full and to ensure that every ICDS disbursing centre in the country shall provide as under :

(a) Each child up to 6 years of age to get 300 calories and 8-10 grams of protein;

(b) Each adolescent girl to get 500 calories and 20-25 grams of protein;

(c) Each pregnant woman and each nursing mother to get 500 calories and 20-25 grams of protein;

Contd.

(d) Each malnourished child to get 600 calories and 16-20 grams of protein;

(e) Have a disbursement centre in every settlement.

• National Maternity Benefit Scheme (NMBS) :

(i) We direct the State Govts./ Union Territories to implement the National Maternity Benefit Scheme (NMBS) by paying all BPL pregnant women Rs. 500/- through the Sarpanch 8-12 weeks prior to delivery for each of the first two births.

Contd.

• National Family Benefit Scheme :

(i) We direct the State Govts./ Union Territories to implement the National Family Benefit Scheme and pay a BPL family Rs. 10,000/- within four weeks through a local Sarpanch, whenever the primary bread winner of the family dies.

• We direct that a copy of this order be translated in regional languages and in English by the respective States/ Union Territories and prominently displayed in all Gram Panchayats, Govt. School Buildings and Fair Price Shops.

Contd.

• In order to ensure to ensure transparency in selection of beneficiaries and their access to these Schemes, the Gram Panchayats will also display a list of all beneficiaries under the various Schemes. Copies of the Schemes and the list of beneficiaries shall be made available by the Gram Panchayats to members of public for inspection.

• We direct Doordarshan and AIR to adequately publicise various Scheme and this order.

Contd.

• It is the duty of each States/Union Territories to prevent deaths due to starvation or malnutrition. If the Commissioner reports and it is established to the satisfaction of the Court that starvation death has taken place, the Court may be justified in presuming that its orders have not been implemented and the Chief Secretaries/Administrators of the States/Union Territories may be held responsible for the same.

• Licensees, who : a) do not keep their shops open throughout the month during

stipulated period,

b) fail to provide grain to BPL families strictly at BPL rates and no higher,

Contd.

(c) keep the cards of BPL households with them,

(d) make false entries in the BPL cards,

(e) engage in black-marketing or siphoning away of grains to the open market and hand over such ration shops to such other person/organisations,

shall make themselves liable for cancellation of their licenses. The concerned authorities/functionaries would not show any laxity on the subject.

Contd.

• We direct the Government of India to place on AAY category the following groups of persons :-

(1) Aged, infirm, disabled, destitute men and women, pregnant and lactating women, destitute women;

(2) widows and other single women with no regular support;

(3) old persons (aged 60 or above) with no regular support and no assured means of subsistence;

Contd.

(4) households with a disabled adult and assured means of subsistence;

(5) households where due to old age, lack of physical or mental fitness, social customs, need to care for a disabled, or other reasons, no adult member is available to engage in gainful employment outside the house;

(6) primitive tribes.

Contd.

• After having heard learned counsel for the parties, we find that there is practically no monitoring over the sums allotted for the Public Distribution System (in short PDS) by the Central Government, and its utilisation. The amount involved, we are told, is in the neighborhood of Rupees Thirty Thousand Crores annually. …At the present stage, we feel it would be necessary to constitute a Central Vigilance Committee, headed by a retired Judge of this Court to be assisted by Dr. M.C. Saxena, the Commissioner earlier appointed by this Court. We request Mr. Justice .P. Wadhwa to head the Committee. The Committee shall look into the maladies which are affecting the proper functioning of the system and also suggest remedial measures.

Union of India Vs. Sushil Kumar Modi [(1997) 4 SCC 770]

• It has to be borne in mind that the purpose of these proceedings is essentially to ensure performance of the statutory duty by the CBI and the other government agencies in accordance with law for the proper implementation of the rule of law. …The duty of the Court in such proceedings is, therefore, to ensure that the CBI and other government agencies do their duty and do so strictly in conformity with law. …The nature of these proceedings may be described as that of “continuing mandamus” to require performance of its duty….

Right to a Clean and Sustainable Environment

• We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken.

M.C. Mehta Vs. Union of India[(1987) 1 SCC 395]

Indian Council for Enviro-Legal Action Vs. Union of India

[(1996) 3 SCC 212]

• The Polluter Pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution.

State of H.P. Vs. Ganesh Wood Products[(1995 6 SCC 363]

• [Digression] was necessary to put in proper perspective the obligation of the State and the significance of of the concept of “sustainable development” and “inter-generational equity” vis-a vis the legal submissions made on the basis of principles of natural justice, estoppel and so on.

• Inter-generational equity means the concern for the generations to come. The present generation has no right to imperil the safety and well-being of the next generation or the generations to come thereafter.

M.C. Mehta Vs. Kamal Nath[(1997 1 SCC 388]

• The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes.

Contd.

• Our legal system – based on English common law – includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership. …But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership, or for commercial use.

Contd.

• The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources.

THANK YOU