ROLE OF JUDICIARY IN PROTECTION OF BASIC NEEDS IN INDIA: A CRITICAL EVALUATION

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1 ROLE OF JUDICIARY IN PROTECTION OF BASIC NEEDS IN INDIA: A CRITICAL EVALUATION Varun Kumar 1 ABSTRACT This article critical evaluates the judicial response to basic needs in India. Basic needs refer to those things that are necessary to sustain life. It is the minimum requirements of a community for a decent standard of life. Basic needs consist of adequate food, shelter, and clothing. They also include essential services provided by and for the community-at-large such as safe drinking water, sanitation, health and education. Though this article also discuss the need to protect and ensure the basic needs to all the citizen of the nation irrespective of any race, Colour, religion, sex, caste, etc. The judiciary response to protect the basic needs is well recognized and appreciated. Moreover, we have to understand there are certain basic needs which somewhat shape the organization of the society and ensure the smooth functioning of the administration of the justice in the country. Keywords: Judiciary; Constitution of India; Basic needs; Administration; Justice. 1 Assistant Professor, B.S.A. Institute of Law, Faridabad 1 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

2 INTRODUCTION The basic needs are that bare minimum needs of a Human Being which are utmost essential for survival in day to day life. The basic needs of Food, Clothing and Shelter (Roti, Kapara, Aur Makan) for human beings are well known from time immemorial. Even during the very ancient time when there was no knowledge of fire or agriculture to human beings, there was some form of food and shelter to protect human beings from vagaries of nature. The noted American Psychologist, Abraham Harold Maslow, propounded A Theory of Human Motivation in 1943 where he explained hierarchy of needs. But basic human needs can be traced back to B.C. (Before Christ) period in the arsenals of history. Wherever there was human existence there was basic needs of food, clothing and shelter and some kind of provision was there to meet the same basic needs of food, clothing and shelter. In todays industrialized and technologically advanced society the basic human needs has changed its nature and content, though its basic character remains same as mentioned above. We can say that the food encompasses in its ambit livelihood whereas clothing and shelter can be considered one as requirement of shelter to protect body from hot, cold and other unfavorable conditions of nature. In addition to these two needs health and education is also essential for basic survival of an individual. The individual body should be in healthy condition to enjoy life and education is essential to live meaningful life in today s highly advanced environment. To protect health pollution free environment is a must. Therefore, in other words, we can say that an individual needs livelihood, shelter, good health, pollution free environment and education for basic survival in today s society. In this study we ll try to study that how these four basic needs of Livelihood, Shelter, Health, pollution free environment and Education has been molded by judicial response. CONSTITUTIONAL PROVISION After independence on August 15, 1947 with strenuous effort our fore-fathers established the present form of the Constitution of India with effect from January 26, We know that Part III of the Constitution of India contain provision in respect of Fundamental Rights of individual citizen whereas Part IV contains provisions in respect of Directive Principles of State Policy 2 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

3 which are principles to be observed for governance of the country. Though there is no direct provision in respect of basic needs of an individual but the basic needs can be traced in Part III and Part IV of the Constitution of India. JUDICIAL INTERVENTION FOR BASIC NEEDS OF AN INDIVIDUAL As mentioned above there is no direct provision for fulfillment of basic needs in the Constitution of India but through interpretative process the same has been evolved by judicial intervention in various cases raised before Hon ble Supreme Court of India. The right to life enshrined in Article 21 of the Constitution of India has been liberally interpreted so as to mean something more than mere survival and mere existence or animal existence. It therefore includes all those aspects of life which go to make a man s life meaningful, complete and worth living. The Supreme Court has asserted that Article 21 is the heart of the Fundamental Rights. It has enough positive content and is not merely negative in its reach even though Ar. 21 is worded in negative terms. The Hon ble Supreme Court has taken the view that in order to treat a right a fundament right, it is not necessary that it should be expressly stated as fundamental right. Accordingly, the Supreme Court has implied a whole bundle of human rights out of Art. 21 by reading the same along with some Directive Principles. The Hon ble Court has observed that Art. 21 is to be read not only with directive principles but also fundamental duties and hence it does not include any right to procreate as many children as one pleases. The Art. 21 is couched in negative phraseology. But by its creative interpretation of Art. 21 in various cases, the Supreme Court has come to impose positive obligation upon the state to take steps for ensuring to the individual a better enjoyment of his life and dignity. A grand step was taken by the Supreme Court in expanding the scope of Art. 21 when it argued that life in At. 21 does not mean merely animal existence but living with human dignity. The Court has thus given very extensive parameters to Art.21. As the Supreme Court has observed in Francis Coralie, 2 2 Francis Coralie v. Administrator, Union Territory of Delhi, AIR, 1981 SC P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

4 But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes right to live with human dignity and all that goes along with it, viz. the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human being s. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the mater, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self. Another broad formulation of the theme of life with dignity is to be found in Bandhua Mukti Morcha 3. Characterizing Ar. 21 as the heart of Fundamental Rights, the Court gave it an expanded interpretation- to live with human dignity, free from exploitation. It includes protection of health and strength of workers, men and women, and of the tender age of the 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 human conditions of work and maternity relief. These are the minimum conditions which must exist in order to enable a person to live with human dignity No government can take any action to deprive a person of the enjoyment of these basic rights. In this case a complaint was made on the behalf of workmen that they are held in bondage and are working in and living in miserable conditions without any proper or adequate shelter over their heads, without any protection against sun and rain, without two square meals per day and with only dirty water from a nullah to drink. The Court said that it is difficult to appreciate that how such a complaint can be thrown out on the ground that it is not violative of the fundamental right of the workmen. In Chameli Singh v. State of Uttar Pradesh, 4 the Supreme Court while dealing with Art. 21 has held that the need for decent and civilized life includes the right to food, water and decent environment. The Court has observed in this connection: In any organized society, right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed form restrictions which inhibit 3 Bandhua Mukti Morcha v. Union of India, AIR 1984 SC AIR 1996 SC P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

5 his growth. All human rights are designed to achieve this object. Right to live guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilized society The judicial approach has led to two very spectacular results within the last two decades, viz: 1) Many Directive Principles which, as such, are not enforceable have been activated and have become enforceable. 2) The Supreme Court has implied a number of Fundamental Rights from Art. 2. The Supreme Court does not follow the principle that unless a right is expressly stated as a Fundamental Right, it cannot be treated as one. The Supreme Court has asserted that in order to treat a right as a Fundamental Right, it is not necessary that it should be expressly stated as a Fundamental Right in the Constitution. Political, social and economic changes occurring in the country entail the recognition of new rights and the law in its eternal youth grows to meet the demands of society. In course of time, Art. 21 has come to be regarded as the heart of Fundamental Right. Art. 21 has enough of positive content in it and it is not merely negative in its reach. Over the period of time, since decision in the case of Maneka Gandhiv. Union of India, 5 the Supreme Court has been able to imply, by its creative interpretation, several Fundamental Rights out of Art. 21. This has been possible by reading Art. 21 alongwith some Directive Principles. Art.21 has thus emerged into multi-dimensional Fundamental Right. 6 In the light of foregoing discussion about judgements delivered by Hon ble Apex Court of India, we see that due to judicial intervention basic needs got major boost in its process of fulfillment which might have been delayed or would have remain unfulfilled in left totally in the domain of executive organ of the State. 5 AIR 1978 SC M.P. Jain, Indian Constitutional Law, (LexisNexis Butterworths Wadhwa, Nagpur, 6 th Edn. Reprint 2011). 5 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

6 THE BASIC NEED OF FOOD OR LIVELIHOOD The basic need of livelihood encompasses under its ambit the right to food and work, the first word of often quoted three basic needs as Food, clothing and shelter. To begin with, the Supreme Court took the view that the right to life in Art. 21 would not include livelihood. In re Sant Ram 7, a case which arose before Maneka Gandhi case 8, the Supreme Court ruled that the right to livelihood would not fall within the expression life in Art.21. The Court said curtly: The argument that the word life in Art. 21 of the Constitution includes livelihood has only to be stated to be rejected. The question of livelihood has not in terms been dealt with by Art.21. The right to lively hood would be included in the freedoms enumerated in Art. 19, or even in Art. 16, in a limited sense. But the language of Art. 21 cannot be pressed into aid of argument that the word life in Art.212 includes livelihood also. The Supreme Court reiterated this proposition in several cases even in the post Maneka Gandhi era. The Court adopted the Sant Ram view in Nachane 9 and Bapi Raju 10. But the view of Supreme Court underwent a change in Olga Tellis, 11 a case which was brought by pavement dweller to resist eviction form their habitat by the Bombay Municipal Corporation that the right to livelihood is born out of the right to life, as no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part and parcel of the constitutional right to life, the easiest way of depriving a person of his right would be to deprive him of his means of livelihood to the point of abrogation. Emphasizing upon the close relationship between life and livelihood, the Court stated: That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of this right to livelihood and you shall have deprived him of his life. Referring to the Directive Principles of State Policy, e.g., Art. 39(a), 37,41, the Court has pointed out that if these Directive Principles obligate the State to secure to the citizen an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. Thus it ll be seen that form the 7 Sant Ram, In re, AIR 1960 SC 932(935). 8 Maneka Gandhi v. Union of India, AIR 1978 SC Nachane, Ashwini Shivram v. State of Maharashtra, AIR 1998 Bom Begulla Bapi Rajuv. State of Andhra Pradesh, AIR 1983 SC Olga Tellis v. Bombay Municipal Corp., AIR 1986 SC P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

7 traditional concept of right to life, the Court has developed a very significant economic right for the people. In the case of Delhi Development Horticulture Employees Union v. Delhi Administration, 12 the Supreme Court has stated: There is no doubt that broadly interpreted and as necessary logical corollary, right to life would include the right to livelihood and, therefore, right to work. But this is in the context of Art. 21 which seeks to protect persons against deprivation of their life except according to procedure established by law. A regulation conferring power on the authority to terminate the services of a permanent and confirmed employee by issuing a notice without assigning any reason and without giving a hearing has been held to be wholly arbitrary and violative of Art.21 in D.T.C. v. DTC Mazdoor Congress 13 : The right of life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival beat their mercy. Income is the foundation of many Fundamental Rights and when work is the sole source of income, the right to work becomes much fundamental. Fundamental Rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them. The right to work has not yet been recognized as a Fundamental Right. In Umadevi(3) 14 the argument of infringement of Article 21 relying on an expansive interpretation of Art.21 i.e. the right of employment was not accepted by the Supreme Court and the reason for that was amongst others, that the employees accepted the employment on their own volition and with eyes open as to the nature their employment. The Court also rejected the argument that the right to life under Art.21 would include the right of employment at the present point of time. 15 Thus we find here that first basic need among food, clothing and shelter has been adequately addressed by judicial intervention of Hon ble Apex Court of India. The mid-day meal scheme in across the nation is also has impact of judicial intervention. 12 AIR 1992 SC AIR 1991 SC Secretary, State of Karnataka v. Umadevi (3), AIR 2006 SC M.P. Jain, Indian Constitutional Law, (LexisNexis Butterworths Wadhwa, Nagpur, 6 th Edn. Reprint 2011). 7 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

8 While going through the website of Ministry of Human Resource Development, we find that along with other tall claims it is mentioned that a Mid-Day Meal Programme was introduced for disadvantaged children in Madras Municipal Corporation way back in 1925.But it received impetus only due judicial intervention. 16 BASIC NEED OF SHELTER The basic need of shelter encompasses within its ambit clothing and house of famous slogan of Roti, Kapara Aur Makan (Food, Clothing and Shelter/House) as discussed in the introduction of our study. Now we ll discuss landmark cases involved in giving impetus to this basic need. In P.G. Gupta v. State of Gujarat, 17 a Bench of three judges of the Supreme Court considering the mandate of the human right to shelter read it into Art. 19(1)(e) and Art.21 of the Constitution of India to guarantee right to residence and settlement. Protection of life guaranteed by Art.21 encompasses within it ambit the right to shelter to enjoy the meaningful right to life. The preamble to the Constitution assures to every citizen social and economic justice and equity of status and of opportunity and dignity of person so as to fasten fraternity among all sections of society in an integrated Bharat. Art. 39 (b) enjoins the State that ownership and control of the material resources of the community are so distributed as to promote welfare of the people by securing social and economic justice to the weaker sections of society to minimize inequality in income and endeavor to eliminate inequality in status. Art. 46 enjoins the State to promote with special care social, economic and educational interests of the weaker sections of society, in particular Scheduled Castes and Scheduled Tribes. Right to social and economic justice conjointly commingles with right to shelter as an inseparable component for meaningful right to life. It was, therefore, held that right to residence and settlement is a fundamental right under Art. 19 (1) (e) of the Constitution and it is a facet of inseparable meaningful right to life, under Art.1 of the Constitution. Food, shelter and clothing are minimal human rights About Mid-Day Meal Scheme, available at: 17 (1995) Supp 2 SCC Dr. L. M. Singhvi, Jagadish Swarup - Constitution of India, Volume-1, 1093 (Modern Law Publications, New Delhi, 2 nd Edn. Reprint 2007). 8 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

9 In Shantistar Builders v. Narayan Khimlal Totame 19 the Supreme Court has ruled that 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 an 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. The Urban Land Ceiling Act in Ss. 20 and 21 exempts urban land to the condition of constructing houses for weaker sections by builders. The Supreme Court has recognized the right to shelter as an inbuilt right to life under S.21 and has upheld the validity of exemption and give direction to effectively implement the scheme. Again, in Chameli Singh v. State of Uttar Pradesh 20 the Supreme Court emphasized upon the right to shelter and has expounded its own concept of a shelter. The Court observed: Shelter for a human being, therefore, is not mere protection of his life and limb. It is house 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 a Fundamental Right. Right to shelter is a Fundamental Right, which springs from the right to residence assured in Art.19 (e) and right to life under Art.21 of the Constitution. 21 In State of Karnataka v. Narasimhamurthy, 22 the Supreme Court held that right to shelter is a fundamental right under Article 19 (1) of the Constitution. To make right meaningful the poor, the State has to provide facilities and opportunity to build houses. Acquisition of the land to provide house sites to the 19 AIR 1990 SC AIR 1996 SC M.P. Jain, Indian Constitutional Law, (LexisNexis Butterworths Wadhwa, Nagpur, 6 th Edn. Reprint 2011). 22 AIR 1996 SC P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

10 poor houseless is a public purpose as it is the constitutional duty of the State to provide house sites to the poor. In Kurra Subba Rao v. Distt. Collector, 23 the Andhra Pradesh High Court considering the obligation of the State to provide shelter to the weaker sections of the society by acquiring lands for public purpose and distribution thereof had held that in all stages of social development a man must have some property or capacity for acquiring property. There could be no individual liberty without a minimum of property. 24 BASIC NEED OF HEALTH Though the famous slogan of Roti, Kapara Aur Makan does not take note of health as basic need but we know that without sound health of the body there is no use any other basic need. Only a healthy body can enjoy all other basic need of food, shelter and education. Judicial intervention has played a catalyst role for human health as discussed in below mentioned judicial pronouncements. In Parmanand Katara v. Union of India, 25 the Supreme Court considered a very serious problem existing at present. In medico-legal case (such as an accident) the doctors usually refuse to give immediate medical aid to the victim till legal formalities are completed. In some cases, the injured die for want of medical aid pending the completion of legal formalities. The Supreme Court has not very specifically clarified that preservation of life is of paramount importance. Art.21 casts on the state an obligation to preserve life. Once life is lost, status quo ante cannot be restored. It is duty of the doctors to preserve life whether the concerned person be a criminal or an innocent person. The matter was taken one step forward in Paschim Banga Khet Mazdoor Samity v. State of West Bengal 26. A mazdoor fell from a running train and was seriously injured. He was sent from one government hospital to another and finally he was admitted to private hospital where he had to incur expenditure from his own pocket. He filed a writ petition under Art.32 to the Supreme 23 (1984) 3 APLJ Dr. L. M. Singhvi, Jagadish Swarup - Constitution of India, Volume-1, 1094 (Modern Law Publications, New Delhi, 2 nd Edn. Reprint 2007). 25 AIR 1989 SC 2039: (1989) 4 SCC AIR 1996 SC 246: (1995) 6 SCC P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

11 Court feeling aggrieved due to callous attitude of various government hospitals. The court has ruled that the Constitution envisages establishment of a welfare state, and in a welfare state, the primary duty of the government is to provide adequate medical facilities for the people. The Government discharges this obligation by running hospitals and health centers to provide medical care to those who need them. Art.21 imposes and obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The court has insisted that government hospitals and the medical officers employed therein are duty bound to extend medical assistance for preserving human life. Failure by a government hospital to provide timely medical treatment to a needy person violates his right to life guaranteed by Art.21. In the instant case, petitioner s right under Art.21 has been violated when he was denied treatment when he was in a critical state and needed immediate medical attention. Since his right under Ar.21 was denied by government servants, the State is liable to pay him compensation for breach of his right guaranteed under Art.21. Moreover, the Court issued several directions for avoidance of any such incident in future and to ensure immediate medical attention and treatment to persons in real need. The Court also said that other States, though not parties to the present case, should also take necessary steps to implement the directions given here. The Court also expected that the Government of India would render necessary assistance in the improvement of medical services in the country. But in State of Punjab v. Ram Lubhaya Bagga 27, the Supreme Court has recognized that provision of health facilities cannot by unlimited. It has to be to the extent finance permit. No country has unlimited resources to spend on any of its projects. And, right to get free and full medical aid or facilities has been held to be not a fundamental right of ex-servicemen. The policy decision in formulating contributory scheme for ex-servicemen and asking them to pay one-time contribution does not violate Art.21 nor is it inconsistent with Part IV of the Constitution. In Common Cause v. Union of India, 28 the Apex Court highlighted the serious deficiencies and shortcomings in the matter of collection, storage and supply of blood through the various blood centers operating in the country, especially in the context of incidence of HIV infected cases. 27 AIR 1998 SC AIR 1996 SC P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

12 The Court directed the government to establish a National Council of Blood Transfusion as a registered society. The Court also directed to States to establish similar bodies. The Court suggested that the blood banks ought to be licensed under the Drugs Control Act. Occupational accidents and diseases remain the most appalling human tragedy of modern industry. Health hazards faced by the workers in the Asbestos factories were brought to the attention of the Supreme Court in CERC v. Union of India 29. After taking note of the cases in which it has been held that right to life in Art.21 includes right to human dignity, the Court now held that right to health, medical aid to protect the health and vigor of worker while in service of post-retirement is a Fundamental Right under Art.21, read with the Directive Principles in Articles 39(1), 41, 43,48A and all related Articles and fundamental human rights to make the life of workmen meaningful and purposeful with dignity of persons. The Court has rules further that in an appropriate case, the Court would give appropriate directions to the employer, be it the State or its undertaking of private employer to make the right to life meaningful, to prevent pollutions of work place, protection of environment, protection of the health of the workman or to preserve free and unpolluted water for the safety and health of people. The authorities or even private persons or industry are bound by the directions issued by the Supreme Court under Art.32 and Art. 142 of the Constitution of India. 30 The Supreme Court has emphasized in Vincent Panikur Iangarav. Union of India 31 that a healthy body is the very foundation of all human activities. Art. 47 a Directive Principle, lays stress on improvement of public health and prohibition of drugs injurious to health as one of the primary duties of the State. In the instant case, the petitioner had sought directions to ban import, manufacture and sale of such drugs as were banned by the Drugs Consultative Committee. The Court emphasized that injurious drugs should be totally eliminated from the market and made several suggestions for achieving this object. Keeping in view the technical aspects, such a matter could not be handled effectively by the Court. It was a matter to be handled by the Central Government keeping in view the best interests of the citizens. 29 Consumer Education& Research Centre v. Union of India, AIR 1995 SC M.P. Jain, Indian Constitutional Law, (LexisNexis Butterworths Wadhwa, Nagpur, 6 th Edn. Reprint 2011). 31 AIR 1987 SC P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

13 In the case of P.R. Subhash Chandran v. Govt. of A.P., 32 it was held that plethora of companies of Corporate and Super Specialty Hospitals fleecing the patients and too much of commercialization at the expense of hapless patients, are pouring in. The improvement of public health being one of the directive Principles and the evolution of proper medicare system under which the people can have the medical treatment free from exploitation will be in furtherance of the fundamental right to life enshrined in Article 21 of the Constitution. There is paramount need for the State to focus its attention to these aspects and find remedial measures. The existing laws are either inadequate or deficient. It is time that the State should take stock of the situation, if not already done, and initiate necessary measures such as setting up a grievance redressal machinery and devising a regulatory mechanism to cover vulnerable areas where unfair and unprofessional practices are rampant. If necessary, the State should not hesitate to enact comprehensive legislation after wide-ranging consultations with the experts in the field, managements of hospitals and the cross-sections of the public. In Rajesh Kumar Srivastava v. A.P. Verma, 33 it was held that no person has a right to make claim of curing the ailments and to improve health on the basis of his right to freedom of religion. Every form and method of curing and healing must have established procedures, which must be proved by known and accepted methods, and verified and approved by experts in the field of medicines. It is only when a particular form, method or path is accepted by the experts in the field of medicines that it can be permitted to be practiced in public. The right to health included in Article21 does not come in conflict or overlap with the right with the right to propagate and profess religion. These two are separate and distinct rights. Where the right to health is regulated by validly enacted legislation, the right to cure the ailment through religious practices including Faith Healing cannot be claimed as a fundamental right. The propagation, practice and profession of Faith Healing in public on charging consideration is in violation to the Constitution and Legislative scheme, and such Faith Healing based on persons faith in the religious practices, in public for consideration is not permitted ad is violative of Article 21 of the Constitution AIR 2000 AP AIR 2005 All Dr. L. M. Singhvi, Jagadish Swarup - Constitution of India, Volume-1, 1101 (Modern Law Publications, New Delhi, 2 nd Edn. Reprint 2007). 13 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

14 BASIC NEED OF EDUCATION The right to education was initially not included as a fundamental right in the Constitution of India and was included as a directive principle under article 45 which required the State to endeavor to provide, within a period of 10 years from the commencement of the Constitution, for free and compulsory education for all children until they complete the age of 14 years. The directive in Art.45 was not confined merely to primary education; it extended to providing free education up to the age of 14 years, whatever the stage of education it came to. Therefore, education for children of this age group should have been free, ideally speaking, at the latest by However, only fitful effort were made by some States to pass laws according to Article 45. More than 43 years passed in this fashion. The Supreme Court has implied the Right to Education as a fundamental right from Art.21. The word life has been held to include education because education promotes good and dignified life. The question arose for the first time before two judge bench of the Supreme Court of India in Mohini Jain v. State of Karnataka 35. Here the issue was charging of capitation fee for admitting students in educational institutions. Quashing the notification issued by Karnataka Government under Art.14, the Court accepted that the Constitution does not expressly guarantee the right to education, as such, as a Fundamental Right. But reading cumulatively Art.21 along with the Directive Principles contained in Arts. 38, 39 (a), 41 and 45, the Court opined that it becomes clear that the framers of the Constitution made it obligatory for the State to provide education for its citizens. The Court argues that without making the right to education under Art.41 a reality, the Fundamental Right would remain beyond the reach of large majority which is illiterate; the Fundamental Rights including the freedom of speech and expression and other rights guaranteed under Art.19, cannot be fully appreciated and fully enjoyed unless a citizen is educated and is conscious of his individualistic dignity. Further, life in Art.21 means right to live human dignity. Right to life is the compendious expression for all those rights which are basic to the dignified enjoyment of life. Thus, ruled the Court, the right to education flows directly from the 35 AIR 1992 SC P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

15 right to life, and that the right to education being concomitant to the fundamental rights, the State is under a constitutional mandate to provide educational provide educational institutions at all levels for the benefit of the citizens. The main question before the Bench was whether it would be permissible for private but government recognized educational institutions to charge capitation fee for admission of the students. The Bench declared that charging of capitation fee amounts to discrimination on a class basis and is thus denial of Art. 14 because a poor meritorious student is denied admission to these institutions because he has no money whereas the rich can purchase the education. Such a treatment is patently unreasonable, unfair and unjust. The Court took an extremely expansive view of State obligation to provide education to everyone at all levels. The State should provide adequate number of institutions of higher and professional education as there may be need for. From a practical point of view, such an approach was hardly viable, feasible and tenable in the present day economic situation of the country, for no State has financial capacity to meet public demand for professional colleges. The matter whether the State could permit private professional educational institutions to charge capitation fee for admission of students came to be reconsidered in the case of Unni Krishnan J. P.v. State of Andhra Pradesh 36 by a larger Bench of five judges. The Court reiterated the proposition that having regard to the fundamental significance of education to the life of an individual and the nation, the right to education is implicit in, and flows from, the right to life guaranteed by Art.21. But, said the Court, the parameters of this right, which is not absolute, have to be determined in the light of the Directive Principles contained in Arts.41, 45 and 46. The Court limited the State obligation to provide educational facilities as follows: i. Every citizen has a right to free education until he completes the age of 14 years. ii. Beyond that stage, the State obligation to provide education is subject to the limits of the economic capacity and development of the State. Subsequent to the decision in Unnikrishanan case, the Constitution (Eighty-Sixth Amendment) Act, 2002 introduced Article 21A which makes the right to education a fundamental right. The 36 AIR 1993 SC P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

16 Article requires the State to provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. Compulsoriness is sought to be ensured in the amendment of Article 51A in the Chapter on Fundamental Duties by adding clause (k) and making it incumbent on a parent or guardian to provide opportunities for education of his child or, as the case may be, ward between age of six and fourteen years. At the same time a new article was substituted in place of article 45 which directs the State to endeavor to provide early childhood care and education for all children until they complete the age of six years. In , the Government launched Sarva Shiksha Abhiyan to make elementary education free. Ultimately, The Right to Children to Free and Compulsory Education Act, 2009 has been enacted by the Parliament. The Act provides among other things for the right of every child who has attained the age of 6 years to be admitted in a neighborhood school and o be provided free and compulsory education in such school. 37 The mid-day meal scheme introduced also has some positive effect on fulfillment of basic need of education but due rampant corruption in first place this scheme is not properly implemented in schools. Secondly the parents of families don t send their kids to school where child income is also a vital part of total family income. The Union Government has announced its antipoverty program the Direct Benefit Transfer or DBT in which all types of subsidies will be transferred to beneficiaries directly to their bank account. If attendance of a child in school is linked with this scheme and the money being expanded in the name of mid-day meal is directly transferred to parents or kids account then it ll may have a great positive impact on attendance of kids in schools as well as eliminate corruption involved in implementation of mid-day meal scheme. BASIC NEED OF POLLUTION FREE ENVIRONMENT Various judgements of Hon ble Supreme Court of India in respect of disposal of industrial waste, noise pollution forest and hills preservation has played major role in this regard. Few names to 37 M.P. Jain, Indian Constitutional Law, (LexisNexis Butterworths Wadhwa, Nagpur, 6 th Edn. Reprint 2011). 16 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

17 mention are Bichhari Village case, Sariska case, Kanpur Tanneries case, Municipalities case, Taj Trapezium case, CNG vehicles case, Shrimp Culture case, Closure of industries in Delhi case. These are all landmark judgements from Hon ble Apex Court of India which have a great bearing on environment in India. It ll not be wrong to say that environment in India is safe only due to intervention of the Supreme Court of India. CONCLUSION Going through the above discussion and through various judgements of Hon ble Court, we see that judicial response has played a major positive role in fulfillment of basic needs in India. The action of Government was not enough and in case where some action was taken by executive the implementation was tardy and ineffective. All this judicial activism was shown by Hon ble Supreme Court of India after end of emergency period in 1977 and severe criticism for judgement in case ADM Jabalpur v. Shivkant Shukla 38. The first judgement, exhibiting stand against Government, by the Court was Maneka Gandhi v. Union of India 39. After this many public interest litigations were disposed by Hon ble Court taking very bold stand against executive which paved the way for fulfillment of basic needs in our country. 38 AIR 1976 SC AIR 1978 SC P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

18 BIBLIOGRAPHY: 1. M.P. Jain, Indian Constitutional Law, (LexisNexis Butterworths Wadhwa, Nagpur, 6 th Edn. Reprint 2011). 2. Dr. L. M. Singhvi, Jagadish Swarup - Constitution of India, Volume-1, (Modern Law Publications, New Delhi, 2 nd Edn. Reprint 2007). 3. Mahendra P. Singh, V. N. Shukla s Constitution of India, (Eastern Book Company, Lucknow, 11 th Edn. 2008). 4. Acharya Dr. Durga Das Basu, Shorter Constitution of India,(LexisNexis Butterworths Wadhwa, Nagpur, 14 th Edn. 2009). 5. Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press, New Delhi, 18 th Impression 2012). 6. Granville Austin,Working of Democratic Constitution: A History of Indian Experience (Oxford University Press, New Delhi, 9 th Impression 2012). 18 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]