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Gujarat High Court
Judgename :D.M.Dharmadhikari, P.B.MAJMUDAR
BIPINCHANDRA J.DIVAN - Appellant
Versus
STATE - Respondent
S.C.A. 844 of 2001
Decided On : 02/17/2001
(b) Words & Phrases - Doctrine of parens patriae - Explained to mean `the father of the country and is used to designate the State referring to its sovereign power of guardianship for persons under disability.
Whatever may be the precise content of - social justice, it is held to include recognition of the needs of weaker section of the community as - human beings. This need is more urgent where a large section of people have been seriously affected by natural calamity like earthquake and their homes and life is totally shattered. Court have, therefore, support from host of case law of the Supreme Court for taking a view that to humans affected by calamity the State is obliged to provide help, assistance and support so that they may be able to save their lives. This right of assistance in calamity has to be treated as an enforceable rights. Such affected persons, as a result of the calamity, are rendered helpless and handicapped. Help and corrective action sought for them through service spirited organisation or section of people cannot be thwarted, but the same deserves to be encouraged.
(c) Constitution of India, 1950 - Art. 21 - Protection of life and personal liberty - Scope of - In short repository of all important human rights - Right of assistance in calamity is an enforecable right by the victim or get it enforced by public spirited organisations - It is immaterial that duties of the Government or the Court in the regard is not statutorily regulated.
The doctrine has been explained by Supreme Court relying on several Indian and English decisions. The concept in jurisprudence of doctrine of patens patriae is that that the State has the inherent power and authority to provide protection to the person and property of persons non sui juris such as minor, insane and incompetent persons like those rendered helpless due to earthquake disaster. Parens patriae has been literally explained to mean the father of the country and is used to designate the State referring to its sovereign power of guardianship for persons under disability. Parens patriae jurisdiction, it has been explained is the right of sovereign and imposes a duty on sovereign, in public interest, to protect persons under disability who have no rightful protector. Conceptually the parens patriae is theory of obligation of the State to protect and take into custody the rights and privileges of its citizens for discharging its obligations.
(d) Constitution of India, 1950 - Art. 226 - Scope of judicial action in a mass catastrophe - Limitations - Though Court would not interfere in administrative field but it would certainly enquiry for a reason for successful endeavours on the part of particular authority.
Before formulating Court directions some comments from Court are called for as there has been serious debate between the petitioners representing the cause of earthquake victims, donors and contributors on the one hand and the Governmental agencies on the other, on the question of the jurisdiction and role of judiciary in such a mass catastrophe. Court would like to recall and associate with the observations of Sir John Donaldson M.R. in R. vs. Lancashire CC ex. p. Huddleston, 1986 (2) All ER 941 at 945:
- Notwithstanding that the Courts have for centuries exercised a limited supervisory jurisdiction by means of the prerogative writs, the wider remedy of judicial review and the evolution of what is, in effect, a specialist administrative or public law Court is a postwar development. This development has created a new relationship between the Courts and those who derive their authority from the public law, one of partnership based on a common aim, namely, the maintenance of the highest standards of public administration. With very few exceptions, all public authorities conscientiously seek to discharge their duties strictly in accordance with public law and in general they succeed. But it must be recognised that complete success by all authorities at all times is a quite unattainable goal. Errors will occur despite the best of endeavours. The Courts, for their part, must and do respect the fact that it is not for them to intervene in the administrative field, unless there is a reason to inquire whether a particular authority has been successful in its endeavours. The Courts must and do recognise that, where errors have, or are alleged to have, occurred, it by no means follows that the authority is to be criticised. Administrative law and administrative power should be friends and not enemies. The contribution that the law can and should make is creative rather than destructive.
( 1 ) ). ON the morning of 26th January 2001, an earthquake of a high magnitude, more than 7 on Richter Scale, shook whole of Gujarat and more devastatingly of its entire Kutch district, leaving thousands dead, injured, crippled, orphaned and homeless. The Government was unprepared to meet such unforeseen natural calamity and still finds it difficult through its inadequate machinery to carry out the stupendous task of rescue, relief and rehabilitation of the quake victims.
( 2 ) ). In such calamity and adversity, the entire Nation has shown compassion and co-operation by extending help and providing relief material in kind and cash to the victims. It is a divine wrath, but turned into blessing in the sense that in facing the calamity the helping hands extended by people all over the world in the shape of help and support has united the people and brought to surface the inherent virtues and qualities of human being. There has been an exemplary display of fellowship, co-operation, mutual help and love from all over the world regardless of class, caste, creed and cultural differences. Not only from within the Nation, but from all over the world from different countries, governments, social service organisations and individuals relief material in the form of tents, clothes, medicines, construction items, for erecting homes, rescue machines etc. have landed by ship, airplanes and other modes of transport. All kinds of relief material is throughout pouring in from different parts of the world.
( 3 ) ). Calamity is a leveller rich and poor, strong and weak, all are suffering alike. The fall-out of earthquake is the flow of generosity for help to the victims from the country and all over the world. So much of relief material and money has been received that its management and distribution pose an uphill task to the Government. In the past few days, after the earthquake hit Gujarat in the morning of 26-1-2001, every one in the country has witnessed the power of the people. Selfless service of several religious and social organisations have shown what benevolent effect religion can have on the lives of common man. The selfless service without desire for appreciation or publicity by religious groups and social activities have given great comfort to the victims and satisfaction to all right thinking men.
( 4 ) ). In the background of the above scenario of devastation and destruction causing tremendous loss of life and property of the people, five prominent citizens, representing different walks of life (retired Chief Justice of this Court, eminent lawyers, industrialists, artists, social activists) have brought this petition in public interest seeking intervention of this Court to ensure speedy and effective relief to quake victims. The petition is founded on newspapers and media reports that the Government has failed to meet the situation arising from the calamity and has no adequate infrastructure to satisfactorily perform the stupendous task of providing relief and rehabilitation to the quake victims.
( 5 ) ). In the petition, apprehensions have been raised and doubts expressed that the tremendous quantity of relief material and money received as contribution from different bodies, organisations and persons for the quake victims and which is likely to be received in future may not be properly utilised leaving the victims high and dry.
( 6 ) ). The main reliefs claimed are issuance of directions to Government to set up independent committee or commission manned by experts in different fields who may be found competent in quake relief management operations. It is prayed that such independent committee or commission of experts should be entrusted the relief materials and the relief fund to ensure their proper utilisation for the victims and to avoid their diversion, misappropriation and loss.
( 7 ) ). On behalf of the Central Government and the State Government learned additional Solicitor General and Advocate Gener
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