Hon'ble Supreme Court of India observed as - 13.12.12 - Amarnath cave case - 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.
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.
Showing posts with label art 32. Show all posts
Showing posts with label art 32. Show all posts
Jan 27, 2013
University of Kerala Vs Council of Principals of Colleges, Kerala & Ors (2010) 1 SCC 353
Hon'ble Supreme Court of India observed as
“32. It may be noted that this Court has on several occasions issued directions, directives in respect of those situations which are not covered by any law. The decision in Vishaka Vs 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”.
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 Vs 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.”
“32. It may be noted that this Court has on several occasions issued directions, directives in respect of those situations which are not covered by any law. The decision in Vishaka Vs 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”.
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 Vs 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.”
Oct 7, 2010
Indian Council for Enviro-Legal Action Vs UOI, AIR 1996 SC 1446
Hon'ble Supreme Court of India observed, “In M C Mehta case, no compensation was awarded as this Court could not reach the conclusion that Shriram company came within the meaning of ‘State’ in Article 12 so as to be liable to the discipline of Article 21 and to be subjected to a proceeding under Article 32 of the Constitution….
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….”
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….”
M C Mehta Vs UOI, AIR 1987 SC 1086
Hon'ble Supreme Court of India observed as under, " applications for compensation are for enforcement of the fundamental right to life enshrined in Art. 21 of the Constitution and while dealing with such applications we cannot adopt a hyper-technical approach which would defeat the ends of justice….
If this Court is prepared to accept a letter complaining of violation of the fundamental right of an individual or a class of individuals who cannot approach the Court for justice, there is no reason why these applications for compensation which have been made for enforcement of the fundamental right of the persons affected by the oleum gas leak under Art. 21 should not be entertained….
It may now be taken as well settled that Art. 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….
If the Court were powerless to issue any direction, order or writ in cases where a fundamental right has already been violated, Art. 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 injunct such violation but if the violator is quick enough to take action infringing the fundamental right, he would escape from the net of Art. 32….
The power of the Court to grant such remedial relief may include the power to award compensation in appropriate cases….
Whether Article 21 is available against Shriram which is owned by Delhi Cloth Mills Limited, a public company limited by shares and which is engaged in an industry vital to public interest….
Once an authority is deemed to be ‘other authority’ within the meaning of Article 12, it is State for the purpose of all its activities and functions and the American functional dichotomy by which some functions of an authority….
it is immaterial for the purpose of determining whether a corporation is an instrumentality or agency of the State or not whether it is created by a Statute or under a statute, “the inquiry has to be not as to how the juristic person is born but why it has been brought into existence….
It is true that Control is not exercised by the Government in relation to the internal management policies of the Company. However, the control is exercised on all such activities of Shriram which can jeopardize public interest….
we find that Shriram also receives sizeable assistance in the shape of loans and overdrafts running into several crores of rupees from the Government….
Why should a private corporation under the functional control of the State engaged in an activity which is hazardous to the health and safety of the community and is imbued with public interest and which the State ultimately proposes to exclusively run under its industrial policy, not be subject to the same limitations….
rule in Rylands Vs Fletcher was evolved in the year 1866 and it provides that a person who for his own purpose brings on to his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril and, if he fails to do so, is prima facie liable for the damage which is the natural consequence of its escape. The liability under this rule is strict and it is no defence that the thing escaped without that person’s wilful act, default or neglect or even that he had no knowledge of its existence….
rule applies only to non-natural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory authority….
We need not feel inhibited by this rule which was evolved in this context of a totally different kind of economy. Law has to grow in order to satisfy the needs of the fast changing society…. Law cannot afford to remain static….
We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country….
We are certainly prepared to receive light from whatever source it comes but we have to build up our own jurisprudence…
where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity…. such liability is not subject to any of the exceptions which operate vis-à-vis the tortious principle of strict liability under the rule in Rylands Vs Fletcher.
If this Court is prepared to accept a letter complaining of violation of the fundamental right of an individual or a class of individuals who cannot approach the Court for justice, there is no reason why these applications for compensation which have been made for enforcement of the fundamental right of the persons affected by the oleum gas leak under Art. 21 should not be entertained….
It may now be taken as well settled that Art. 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….
If the Court were powerless to issue any direction, order or writ in cases where a fundamental right has already been violated, Art. 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 injunct such violation but if the violator is quick enough to take action infringing the fundamental right, he would escape from the net of Art. 32….
The power of the Court to grant such remedial relief may include the power to award compensation in appropriate cases….
Whether Article 21 is available against Shriram which is owned by Delhi Cloth Mills Limited, a public company limited by shares and which is engaged in an industry vital to public interest….
Once an authority is deemed to be ‘other authority’ within the meaning of Article 12, it is State for the purpose of all its activities and functions and the American functional dichotomy by which some functions of an authority….
it is immaterial for the purpose of determining whether a corporation is an instrumentality or agency of the State or not whether it is created by a Statute or under a statute, “the inquiry has to be not as to how the juristic person is born but why it has been brought into existence….
It is true that Control is not exercised by the Government in relation to the internal management policies of the Company. However, the control is exercised on all such activities of Shriram which can jeopardize public interest….
we find that Shriram also receives sizeable assistance in the shape of loans and overdrafts running into several crores of rupees from the Government….
Why should a private corporation under the functional control of the State engaged in an activity which is hazardous to the health and safety of the community and is imbued with public interest and which the State ultimately proposes to exclusively run under its industrial policy, not be subject to the same limitations….
rule in Rylands Vs Fletcher was evolved in the year 1866 and it provides that a person who for his own purpose brings on to his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril and, if he fails to do so, is prima facie liable for the damage which is the natural consequence of its escape. The liability under this rule is strict and it is no defence that the thing escaped without that person’s wilful act, default or neglect or even that he had no knowledge of its existence….
rule applies only to non-natural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory authority….
We need not feel inhibited by this rule which was evolved in this context of a totally different kind of economy. Law has to grow in order to satisfy the needs of the fast changing society…. Law cannot afford to remain static….
We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country….
We are certainly prepared to receive light from whatever source it comes but we have to build up our own jurisprudence…
where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity…. such liability is not subject to any of the exceptions which operate vis-à-vis the tortious principle of strict liability under the rule in Rylands Vs Fletcher.
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