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PETITIONER: DR. P. NALLA THAMBY THERA

       Vs.

RESPONDENT: UNION OF INDIA AND OTHERS

DATE OF JUDGMENT28/10/1983

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH BHAGWATI, P.N. SEN, AMARENDRA NATH (J)

CITATION:  1984 AIR   74            1984 SCR  (1) 709  1983 SCC  (4) 598        1983 SCALE  (2)686  CITATOR INFO :  RF         1986 SC 874  (31)  RF         1986 SC1999  (8)  RF         1987 SC 990  (12)  E          1990 SC1851  (36)

ACT:      Public Interest Litigation-Petitioner a commuter of the Indian Railways praying for a writ of Mandamus under Article 32 of  the Constitution  for implementation  of the  several Committee Reports,  appointing a  fact finding Commission to inquire and  report about  the railways  accidents  and  for directions to comply with every provision of the Railway Act so as not to violate Articles 19 and 21 of the Constitution- Courts cannot  give any  directions to  the Union  of India- Costs of Public Interest Litigation, payment of.

HEADNOTE:      Disposing off the petition, making certain observations and expressing its inability to issue any directions, except awarding costs, the Court. ^      HELD: 1. Giving directions in a matter like this, where availability of  resources has  a material  bearing,  policy regarding priorities  is involved, expertise is very much in issue is not prudent to issue any directions. Ordinarily the powers of  the court  to deal  with a  matter such  as this, which prima  facie appears to be wholly within the domain of the Executive must be examined. [723 H, 724 A]      The Govt.  have  limitations,  both  of  resources  and capacity. Yet,  it is  hoped that  the  Government  and  the Administration would  rise to  the necessity of the occasion and take  it as  a challenge  to improve  this great  public utility (Railways)  in an effective way and with an adequate sense of  urgency. If,  necessary, it  shall set  up a  high powered body  to quickly  handle  the  many  faced  problems standing in the way. [723 G-H]      2. As the present case is a public interest litigation, the petitioner  is entitled  to consolidated  costs  of  Rs. 5,000 recoverable  from the  Railway Ministry  of the  Union Government. [724 F-G]      3.  There  is  hardly  any  scope  to  doubt  that  the

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guarantees provided  in Part  III of  the  Constitution  are Fundamental and  it is the paramount obligation of the State to ensure  availability of  situations,  circumstances,  and environments in which every citizen can effectively exercise and enjoy  these rights. The right to life has recently been held by  the Supreme  Court to  connote  not  merely  animal existence but  to have  a much  wider meaning-to include the finer graces  of human  civilization. If these rights of the citizens are to be ensured, 710 it is  undoubtedly the  obligation of the Union of India and its instrumentalities  to improve  the established  means of communication in this country. [722 E-G]      3.2. The  Railways are  a public utility-service run on monopoly basis.  Since it  is a  public utility, there is no justification to  run it merely as a commercial venture with a view  to making  profits. It  is not  known if  a monopoly based public  utility should  ever be  a commercial  venture geared to  supply the general revenue of the State but there is no  doubt that the common man’s mode of transport closely connected with the free play of his fundamental right should not be. [722 H, 723 A]      3.3. The Union Government should be free to collect the entire operational  cost which would include the interest on the capital  outlay out  of the  national  exchequer.  Small marginal profits  cannot be ruled out. The massive operation will require a margin of adjustment and, therefore, marginal profits should be admissible. [723 B-C]      3.4. On  the other  hand, it is of paramount importance that the  services should  be prompt.  The  quality  of  the service  should  improve.  Travel  comforts,  facilities  in running trains and quality of accommodation and availability thereof should  be ensured. The Administration should remain always alive  to the  position that every bonafide passenger is a  guest of  the service. Ticketless travelling has to be totally wiped out. It is this class of passengers which is a menace to the system without any payment, these law breakers disturb the administration and genuine passengers. Stringent laws should  be made  and  strictly  enforced  to  free  the Railways from  this deep  rooted evil  Security both  of the travelling public as also to the travelling citizens must be provided and  this means  that accidents have to be avoided, attack on  the persons of the passengers and prying on their property has  to stop. Scientific improvements made in other countries and  suitable to the system in our country must be briskly adopted.  The obligations  cast by  the Railways Act and the Rules under it must be complied with. [723 C-F]      3.5. At  the same time, no purpose is served by placing the blame  at the doors of the Government of the day. All of us should  have realism  and condour  Independence has  been secured at  great cost  and sacrifice. It is every citizen’s obligation to maintain it and create an environment in which its fruits can be harvested and shared. [719 D-E]      3.6 Freedom  brings responsibility.  There  can  be  no rights   without    responsibilities.   In    our    country unfortunately    individual     rights     have     received disproportionate   emphasis   without   proper   stress   on corresponding social  obligations and responsibilities. In a welfare State like ours the citizen is for ever encountering public  officials   at  various   levels,   regulators   and dispensers of social services and managers of State operated enterprises. It  is of utmost importance that the encounters are as  just and  as free  from  arbitrariness  as  are  the familiar encounters  of the  rights. What  is, therefore, of paramount importance is that every citizen must get involved

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in  the  determined  march  to  resurrect  the  society  and subordinate his will and passion to the primordial necessity of order in 711 social life.  If is only in a country of that order that the common man will have his voice heard. The dream can become a reality if  every citizen  becomes aware  of  his  duty  and before asking  for enforcement  of his  right, volunteers to perform his obligation. [719 E-F, 720 B-C, D, 724 E]

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 8911 of 1981.       (Under article 32 of the Constitution of India)      Petitioner in Person      K.G. Bhagat,  Addl. Sol.  Gen., N.C.  Talukdar and R.N. Poddar for the Respondents.      The Judgment of the Court was delivered by      RANGANATH MISRA,  J. The  petitioner in  this  petition under Article  32 of  the  Constitution  is  a  resident  of Sultanbattery area  in the  State of  Kerala and  describing himself as  a commuter of the Indian Railways he has alleged violation of fundamental rights guaranteed under Articles 19 and 21  and claims reliefs of mandamus to the Union of India for implementing  the reports  of the  Kunzru,  Wanchoo  and Sikri Committees,  appointing a  fact finding  Commission to inquire and  report about  the numerous train accidents from 1970 onwards  and for  several other directions to the Union Government and  the  instrumentalities  connected  with  the administration of  the Railways.  As the  petition which the petitioner, an  allopathic doctor by profession, had himself drafted and  filed was  unduly long  and repetitive, written submission with  the assistance  of counsel crystalising the issues for  determination by  the Court  was filed, leave to amend the  writ petition  was granted and notice thereon was issued on  August 2,  1982. The  petitioner  alleged,  inter alia, that  the Railways  in this  country are  owned by the Central Government  and on  account of failure to fulfil the constitutional, statutory  and commercial obligations by the Railways, adequate  safety protection  to the passengers and their properties  is not available. The Indian Railways Act, 1890  (’Act’   for  short)  has  prescribed  several  safety measures; based  upon experience,  the Railway Board through which apex body the administration is run and controlled has also prescribed  rules and issued instructions which are not being  properly   implemented.  The   Union  Government  had appointed  three   high  powered  Committees  in  the  post- independence period,  namely, the  Kunzru, Wanchoo and Sikri Committees to investigate into the 712 affairs  of   the  Railways  with  particular  reference  to accidents and  though detailed  and  useful  recommendations have been  made by  these  committees,  there  has  been  no adequate implementation  thereof. Particular  reference  has been made  to the unmanned level crossings, increasing human error as  a contributing factor to accidents, non-allocation of adequate  funds for improvements, improper utilisation of the   assets    and   facilities,    inefficiency   in   the administration at  different levels, prevalence and increase of indiscipline,  frequency of thefts, robberies and murders of passengers,  ineffective checking and supervisory system, want of  replacement of  equipment and repairs to bridges as also non-provision of adequate facilities to passengers.      The  Joint   Director  (Safety)  has  filed  a  counter

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affidavit  in   answer  to   the  Rule   on  behalf  of  the respondents. It has been averred that the recommendations of the  Accidents   Enquiry  Committees   were   examined   and implemented within  the limits  of  financial  and  material resources. So  far as  manned level  crossings are concerned there were  as many  as 14471  of them  as on March 1, 1982; unmanned level crossings were provided mostly on roads where the volume  of road  and train  traffic was low. It has been further pleaded  that periodic  review is  undertaken  about manning of unmanned level crossings and opening of new level crossings   in    consultation   with    appropriate   State Governments. Initially  it used  to be the obligation of the respective State  Governments  to  provide  for  such  level crossings at  their cost  in view  of the  accepted position that at a level crossing the right of way is of the train in preference to  the traffic  on the road. As that arrangement was not  working well,  with effect  from April  1, 1966,  a Railway Safety  Work Fund  has been  set up and expenses are being  met  out  of  it.  From  1978  potentially  hazardous unmanned level  crossings with  a volume  of traffic of more than 6000  train vehicle  units or  poor approach visibility are being  manned in  a phased  manner at  the cost  of  the Railways and  control at the gate is also being improved. As on June  1, 1982, there were as many as 27233 unmanned level crossings on  the Railways  and if  all of  them are  to  be manned, a  capital expenditure  of 330 crore rupees would be necessary and  similarly an  annual recurring expenditure of Rs.44 crores  will have  to be  met. As a measure of safety, whistle boards have been fixed near unmanned level crossings requiring the  engine driver  to whistle  while  approaching such level  crossings. Most  of the States have framed rules under the Motor Vehicles Act, 1939, making it obligatory for 713 drivers of  motor vehicles  to stop  short of unmanned level crossings, observe  and then  proceed.  Speed  breakers  are usually provided  on the  road approaches  to  all  unmanned level crossings.  With a  view to educating the users of the roads wide  publicity is  given through  newspapers,  cinema slides, commercial broadcasting and the television about the hazards involved while negotiating unmanned level crossings. It has  been  alleged  that  unmanned  level  crossings  are gradually  being   replaced  by  manned  ones  and  improved technical  gadgets   are  being   provided   for   efficient operation. Relying on the Sikri Committee Report of 1978, it has been submitted that the State Governments appeared to be aware of their responsibilities in this matter and about 2/3 of the  funds of the Safety Works had been utilised by March 31,  1982.  While  admitting  that  in  the  initial  period utilisation of  funds was  poor and  finalisation of schemes for over-bridges  and under-bridges  was slow, the situation is claimed  to have  improved and  in 1982-83  as many as 15 works in  different States involving an expenditure of Rs.22 crores have been cleared.      Dealing with  manpower, the  counter-affidavit  asserts that direct  recruits are given proper training required for the respective posts and only qualified people are entrusted with assignments. Pragmatic and scientific classification of various posts has been made and suitable care is being taken in this  regard.  So  far  as  the  locomotive  drivers  are concerned, strict  vision standards  have been laid down and general physical  fitness  is  a  prescribed  pre-requisite. Drivers are  subjected  to  periodical  medical  examination until the  age  of  45  at  intervals  of  three  years  and thereafter until superannuation every year.      Every accident,  it has  been  averred,  is  thoroughly

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enquired into  to fix the responsibility for it and to visit the  delinquent  with  proper  punishment.  Ordinarily  such enquiries are  conducted by  the  administrative  machinery. Accidents  involving  loss  of  human  life  and  properties estimated  over  one  lakh  are  earmarked  for  enquiry  by Commissioners of Railway Safety who as authorities appointed under s.  4 of the Act function independently of the Railway Administration and  are under  the administrative control of the Ministry  of Civil  Aviation. Enquiries  by the  Railway officials are  stipulated to  commence within  three days of the accident  and are intended to be over within one week of their commencement,  while  enquiries  by  Commissioners  of Railway Safety  are also required to start within three days and official reports are required to be made within 60 days 714 of the  accident. Adequate disciplinary control is exercised and  on  the  findings  of  the  enquiries,  the  delinquent officials are visited with necessary punishment.      Adverting to  robberies and  dacoities in  the  running trains, it  has been  pointed out  that they are problems of law and  order, maintenance of which is an obligation of the State Governments.  Government Railway  Police, Civil Police and plain  clothed CID  officers operate  for the purpose of reducing crime and for detection. A moiety share of the cost of GRP is borne by the Railway administration. Added to this the  Railway  Protection  Force  is  maintained  to  protect consignments booked  for transport as also Railway property. The overall strength of the GRP stands at 6,740. They escort passenger trains running at night by deploying armed guards, provide beat  patrolling at stations and waiting halls, keep surveillance over  criminals and  post pickets at vulnerable points.      With reference to improvements in the rolling stock and required gadgets, it has been stated that the Sixth Plan for the Railways  has  been  termed  as  ’Rehabilitation  Plan’. Overaged gadgets  are intended  to be  withdrawn subject  to availability of  resources and manufacturing capacity within the country. The Planning Commission which is an expert body is responsible  for fixing  of the  priorities. It has again been pleaded  that there  are nearly  120000 bridges  on the Railways out  of which  195 are important bridges and nearly 9400 are  major bridges.  It is  said that  every bridge  is annually inspected  and continuous  record is  maintained in regard to every bridge in the bridge register. On an average 400 to  600 bridges are annually built. Speed restriction is imposed on old and weak bridges and at present there are 202 such bridges.  Figures of six years between 1977 and 1983 of the outlay  on bridges  have been  provided  which  indicate substantial sums having been set apart for the rebuilding of bridges. It  is said  that the  total life  of 80  years for steel work  and 100  years for  masonry part  of the bridges stipulated in  the  Railway  Code  is  for  the  purpose  of provision in  the Depreciation  Reserve Fund. The codal life does not  have any  direct relevance with the condition of a bridge and there is no necessity of rebuilding a bridge when its codal life is over. There has been no instance where the work of  bridge rebuilding  has been  postponed for  lack of funds and  no accident  has  occurred  owing  to  structural failure of any bridge or girders. 715      Colour light  signalling which  is an  improved  device less dependent on direct visibility and where signal is pre- warned by  a signal  in the  rear, is  being provided on the trunk and  main  routes  on  a  graduated  scale.  Automatic warning system  has been introduced in Gaya, Mughalsarai and

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Howrah-Burdwan chord  line sections  on the Eastern Railway. Due to  theft of aluminium track magnets the system has been found not  very satisfactory. Experiments are being made for evolving a design which would not be prone to theft.      The petitioner  has filed a rejoinder pointing out that the counter-affidavit  clearly indicated a negative approach on the  part  of  the  respondents  to  the  entire  matter. According to  the petitioner  assistance of  500  crores  of rupees was to come during the year ending March 31, 1983 and from out  of such  funds, pressing improvements like manning the unmanned  level crossings  could be undertaken. Reliance has been  placed on the observations of Sikri Committee that accidents at  unmanned level  crossings take a heavy toll of human lives  every year.  The  petitioner  has  pleaded  for abolition of  overtime employment  of safety category staff. He has  pointed out  that though he asked for directions for providing  appropriate   monitoring  of   speed  of   trains particularly at  accident prone spots in the track, no reply has  been   given  thereto  in  the  counter-affidavit.  The strength of  the GRP  has been said to be totally inadequate keeping in  view the  size of the Railways and volume of the passenger traffic  it handles. The petitioner has denied the assertion in  the counter-affidavit  that  no  accident  has taken place on account for defective bridges and has pointed out that  the accident  of June 6, 1981 on a river bridge in the Bihar  State was  attributable to  this factor only. The petitioner has  pleaded again  for the  introduction of  the automatic warning  system and  has referred to a publication of the  Directorate of  Safety, Railway  Board, entitled, "A Review of  Accidents on  Indian Railways 1979-80", where the introduction of  automatic warning system has been suggested to be introduced to avoid accidents. He has also pleaded for enhancing the  minimum compensation  in the event of loss of life of a passenger arising out of accidents to a sum of Rs. 75,000 by  appropriate amendment  of s.  82A (2) of the Act. The petitioner  has found  fault with  the counter-affidavit for being  silent in  regard to his plea for the appointment of Railway  Inspectors  to  make  periodical  inspection  of carriages, engines, tracks, etc. 716      The lis  before us  is not  of the  ordinary type where there are  two contending  parties, a claim is raised by one and denied  by the other, issues are struck, evidence is led and the  findings follow.  Though the petitioner is commuter of trains  run by  the Indian Railways, the writ petition is essentially in  the nature of public interest litigation and the petitioner  has attempted to voice the grievances of the community availing  the services  of the Indian Railways. In view of the recent pronouncements of this Court no objection has been  raised in  the counter-affidavit  and we  have not been  called  upon  to  adjudge  the  locus  standi  of  the petitioner to maintain an action like this.      Railways came  to India  in 1853 and the first track to be laid  was of  a small  length connecting the then city of Bombay with  a suburb. Through the decades that followed the expansion  was  usually  for  considerations  of  trade  and commerce, troop  movement  and  administrative  convenience. More of  expansion  came  gradually  connecting  almost  the entire country through a well woven net work of Railways and by the  time the  country became  independent  most  of  the Railways had  been nationalised and Railways constituted the most important  commercial activity  of  the  Government  of India. As  early as  1850-and three years before the opening of  the  first  Railway  track,  Lord  Dalhousie,  the  then Governor General of India had said in his minutes:

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         "I trust  they (the  East India  Company  and  the      Government of  India) will  ever  avoid  the  error  of      viewing  Railways  as  private  undertakings  and  will      regard  them   as  national   works,  over   which  the      Government may  justly exercise  and is  called upon to      exercise stringent  and salutary  control This  control      should not  be an arbitrary right of interference but a      regulated authority  defined and  declared by law which      is not  to be  needlessly or  vexatiously  exacted  but      which, in  my humble judgment, is necessary at once for      the interests  of the  State and  for the protection of      the public." (Minutes of Lord Dalhousie, July 4, 1850).      This regard  for the  public interest  during the  pre- independence period  was often  subject to  the  limitations imposed by the British Capital and Management and by British Commercial and  economic interests  until the  Railways were nationalised between 1925 and 1944. 717 At any  rate, by 1947 when the foreign domination ended, the Railways had  emerged as the main viable and stable means of transport  and   were  providing   the  lifeline   and  link throughout the  length and  breadth of  the country. By 1955 the total  length of all Indian Railways was 34705 miles and the capital sunk was more than 900 crore rupees.      The rise  in the  importance of  the  Railways  in  the national sphere  has been gradual. With the expansion of the Railways a  high powered body known as the Railway Board has come to  be placed  at the  apex of control and with the new set up  following independence  a Minister remained incharge to administer the affairs of the Railways through the Board. As early  as 1924  by a  resolution known  as the Convention Resolution of  the Legislative  Assembly the  Railway budget had  been   separated  from  the  general  budget  and  this historical practice has been continued till today.      Today the  Railways provide the most effective means of transport both  for passengers  also for  the goods traffic. The Railways  have a  great impact  in  holding  this  great country together  and in  promoting and running its economy. Their contribution  to the  community is  manifold-some seen and others  not apparently  visible. Briefly stated, it is a big force,  the  largest  employer  in  the  country  and  a monopoly transport agency.      Before we come to deal with the specific aspects raised in the  writ  petition  and  countered  by  the  respondents certain  general  observations  need  be  made.  The  Indian Railways are  a socialised public utility undertaking. There is at  present a  general agreement  among writers of repute that the  price policy  of such  a public Corporation should neither make  a loss  nor a profit after meeting all capital charges and  this is  expressed by  covering  all  costs  or breaking even;  and secondly,  the price  it charges for the services should  correspond to  relative costs.  Keeping the history of  the growth of the Railways and their functioning in view,  the commendable  view to  accept may  be that  the rates and fares should cover the total cost of service which would  be   equal  to   operational  expenses,  interest  on investment, depreciation  and payment of public obligations, if any. We need not, however, express any opinion about it.      After independence,  keeping to the ideologies that had been nurtured  during the  period of struggle an attempt has been made 718 for the  simplification of  the  classes  in  the  Railways. Instead of  first class, second class, inter class and third class, two  classes only  have been  maintained, namely, the

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first class and the second class besides the air-conditioned class. In  developed countries usually the classification is higher and lower; sleeping or sitting and the like. In India 90% of  the earnings  in respect  of passenger  traffic come from the lower class commuters.      Also after  independence expansion  projects have  been undertaken and  many  areas  which  have  hitherto  remained unlinked and  unconnected have been joined up as part of the national lifeline.  Pandit Jawahar  Lal Nehru,  first  Prime Minister of India had once said:           "Our final  aim can  only be  a classless  society      with equal  economic justice  and opportunity to all, a      society organised on a planned basis for the raising of      mankind to  higher  material  and  cultural  level.....      Every thing  that comes  in the  way will  have  to  be      removed; gently  if possible,  forcibly, if  necessary.      And there  seems to  be little doubt that coercion will      often be necessary."      This approach on principle does not appear to have been abandoned. It  is proper that this is worked out also in the Railways  and,   as  quickly   as  possible,  classification conforming to  this is  introduced. It  is manifest that the Indian   Constitution    has   definitely    rejected    the authoritarian form  of Government  and directed the State to bring about  an egalitarian social order through the rule of law. In  keeping with  this mandate several guiding policies are being  indicated but  implementation is  not being made. What Tolstoy remarked can relevantly be quoted as apt:           "The abolition  of slavery  has gone on for a very      long time. Rome abolished slavery; America abolished it      and we  did, but only the words were abolished, not the      thing."      The implementing  machinery has  become non-functional. This is  so not  only in  our country.  Wilfred Jenks in his address in  April 1972 to the International Law Organisation had summed up the position thus: 719           "Throughout the  world there is an acute crisis of      confidence in  integrity and  fairness. This  crisis of      confidence lies  at the heart of political instability,      economic disorder,  industrial disturbance,  racial and      religious conflict,  cultural anarchy, youth unrest and      continuous international  tension.  Disruptive  in  all      these  fields,   it  paralyses  action  to  remove  its      causes." Burger, C.J. of the United States has said:           "We are  approaching the  status of  an  imperfect      society  where  capability  of  maintaining  elementary      security in  the streets,  in the  schools and  for the      homes of  our people is in doubt. At every stage of the      criminal process, the system cries out for change."      What has  been extracted above appropriately summarises the current  situation all  the world  over. No  purpose  is served by  placing the  blame at the doors of the Government of the  day. We  must have realism and candour. Independence has been  secured at  great cost  and sacrifice.  It is  our obligation to maintain it and create an environment in which its fruits can be harvested and shared.      Freedom brings  responsibility. There  can be no rights without  responsibilities.  In  our  country,  unfortunately individual rights  seem to  have  received  disproportionate emphasis  without  proper  stress  on  corresponding  social obligations and  responsibilities. In  a welfare  State like ours the  citizen is  for ever encountering public officials at various  levels,  regulators  and  dispensers  of  social

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services and  managers of  State operated enterprises. It is of the utmost importance that the encounters are as just and as free from arbitrariness as are the familiar encounters of the rights.      Edmund Burke spoke thus:           "All persons  possessing a  portion of power ought      to be  strongly and awfully impressed with an idea that      they act  in trust,  and they  are to account for their      conduct, in  that trust to the one great master, author      and founder of society." 720      Equally apt are the observations of Lord Denning in his address to  the National  Conference of  the Law  Society in 1980:           "When you look upon these scientific achievements,      then look back for a moment on our world today, what do      you  see,   Crime,  increasing   every   where;   sins,      disgraceful  sins,   corroding  corruption,  increasing      everywhere. When  we see  this, surely  we  recall  the      words of 2000 years ago-what doth it profit a man if he      gains the whole world and loses his own soul."      What is,  therefore, of  paramount importance  is  that every citizen  must get  involved in the determined march to resurrect the  society and  subordinate his will and passion to the primordial necessity of order in social life.      Abraham Lincoln once told his Congress:           "This country,  with its  institutions, belongs to      the people who inhabit it."      Such also  is the  position in our country. Everyone in the country  must realise  this and  be told the great truth said by Lord Wright:           "The safeguard  of British  liberty is in the good      sense of the people."      Liver sidge v. Anderson (1942) A.C. 206      It is  useful to  conclude our  general observations by quoting from Robert Ingersoll:           "A Government  founded on  anything except liberty      and justice cannot stand. All the wrecks on either side      of the  stream of  time, all  the wrecks  of the  great      cities and  all the  nations that  have passed away-all      are a warning that no nation founded upon injustice can      stand. From  the sand enshrouded Egypt, from the marble      wilderness of  Athens, and  from every fallen crumbling      stone of the once mighty Rome, comes a wail-as it were-      the  cry  that  no  nation  founded  on  injustice  can      permanently stand." 721      Having thus cleared the way by indicating the approach, ordinarily the  powers of  the Court  to deal  with a matter such as  this which  prima facie appears to be wholly within the domain of the Executive, should have been examined. Lord Simond  in   Shaw  v.   Director,  Public  Prosecution,  has observed:           "I entertain  no doubt there remains in the Courts      of Law  a residual  power to  enforce the  supreme  and      fundamental purpose  of the  law, to  conserve not only      the safety and order, but also the moral welfare of the      State and  that it  is  their  duty  to  guard  against      attacks which  may be  more insiduous  because they are      novel and unprepared for."      Mathew, J.  in Murlidhar  Aggarwal v.  State  of  U.P., indicated:           "Public policy does not remain static in any given      community. It  may vary  from generation  to generation      and even in the same generation. Public policy would be

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    almost useless if it were to remain in fixed moulds for      all time.           If it is variable, if it depends on the welfare of      the community  at any given time, how are the courts to      ascertain it  ! The  Judges are  more to  be trusted as      interpreters of  the law  than as  expounders of public      policy. However,  there is  no  alternative  under  our      system  but   to  vest  this  power  with  Judges.  The      difficulty of  discovering what public policy is at any      given moment certainly does not absolve the Judges from      the duty  of doing  so. In  conducting an  enquiry,  as      already stated,  Judges are not hidebound by precedent.      The Judges  must look  beyond the  narrow field of past      precedents, though  this still leaves open the question      in which direction they must cast their gaze." The learned  Judge then  quoted  with  approval  the  famous statement of Cardozo (The Nature of Judicial Process): 722           "No doubt  there is  no assurance that Judges will      interpret the  mores of their day more wisely and truly      than other men. But this is beside the point. The point      is rather  that this power must be lodged somewhere and      under our  Constitution and laws, it has been lodged in      the Judges and if they have to fulfil their function as      Judges, it would hardly be lodged elsewhere."      The petitioner has grounded his petition on Articles 19 and  21   of  the  Constitution.  Article  19,  inter  alia, guarantees freedom  of movement  throughout the territory of India and  to practice  any  profession,  to  carry  on  any occupation, trade  or business,  and Article  21  guarantees that no  person shall  be deprived  of his life and personal liberty except according to procedure prescribed by law. The petitioner has maintained that he, may every citizen of this country for  the matter  of that, is entitled to demand that the State  shall provide  adequate facilities and create and maintain an  environment in  which the  right to move freely and carry  on any  business  or  profession  would  both  be practicable and  feasible. Since  the  State  maintains  the Railways which provide the link and make working out of both these rights  possible, it  is  contended,  such  facilities should  be  in  good  shape,  adequate,  prompt,  efficient, economic and  within the  reach of the common man, free from danger or apprehension of life. Similarly, this service must operate efficiently  for transport  of goods  to  facilitate business and  practice of  profession and trade by citizens. There is  hardly any  scope to  doubt  that  the  guarantees provided in Part III of the Constitution are fundamental and it is  the paramount  obligation  of  the  State  to  ensure availability of  situations, circumstances  and environments in which  every citizen  can effectively  exercise and enjoy those rights.  The right  to life  has recently been held by this Court  to connote  not merely  animal existence  but to have a  much wider  meaning-to include  the finer  graces of human civilization.  If these  rights of the citizens are to be ensured, it is undoubtedly the obligation of the Union of India and  its instrumentalities  to improve the established means of communication in this country. Here again, however, we need not express any opinion as we do not propose to give any directions to the opposite parties. No dispute regarding maintainability having  been raised,  that question also did not arise for consideration.      We have  said earlier  that the  Railways are  a public utility service  run on monopoly basis. Since it is a public utility, there is 723

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no justification  to run  it merely  as a commercial venture with a view to making profits. We do not know-at any rate it does not  fall for  consideration here-if  a monopoly  based public utility should ever be a commercial venture geared to support the general revenue of the State but there is not an iota of  hesitation in  us to say that the common man’s mode of transport  closely connected  with the  free play of this fundamental right  should not  be. We  agree that  the Union Government should  be free to collect the entire operational cost which  would include the interest on the capital outlay out of the national exchequer. Small marginal profits cannot be ruled out. The massive operation will require a margin of adjustment  and,   therefore,  marginal  profits  should  be admissible.      It is  of paramount importance that the services should be prompt,  efficient and  dignified.  The  quality  of  the service should  improve. Travel  comforts should be ensured. Facilities in  running trains  should be ensured. Quality of accommodation and  availability thereof  should be  ensured. The  administration   should  remain  always  alive  to  the position that  every bona  fide passenger  is a guest of the service. Ticketless  travelling has to be totally wiped out. We are of the view that it is this class of passengers which is a  menace to  the system.  Without any  payment these law breakers disturb  the administration and genuine passengers. Stringent laws  should be made and strictly enforced to free the Railways  from this  deep rooted  evil. Security both to the travelling public as also to the non-travelling citizens must be  provided and  this means  that accidents have to be avoided, attack  on the persons of the passengers and prying on their  property has to stop. Scientific improvements made in other countries and suitable to the system in our country must  be  briskly  adopted.  The  obligations  cast  by  the Railways Act  and the  Rules under it must be complied with. It is  relevant to  point out  here  that  in  the  counter- affidavit the respondents have denied some of the assertions of the  petitioner, yet no dispute has been generally raised to the stand taken in the writ petition. We are alive to the fact that Government have limitations, both of resources and capacity,  yet   we  hope   that  the   Government  and  the Administration would  rise to  the necessity of the occasion and take  it as  a challenge  to improve  this great  public utility in  an effective  way and  with an adequate sense of urgency. If  necessary, it  shall set up a high powered body to quickly  handle the  many faced  problems standing in the way.  Giving   directions  in   a  matter  like  this  where availability of  resources has  a material  bearing,  policy regarding 724 priorities is  involved, expertise is very much in issue, is not prudent  and we  do not,  therefore,  propose  to  issue directions. We,  however, do  hope and  believe  that  early steps shall  be taken  to implement  in a  phased manner the improvements referred to in the counter-affidavit and in our decision.      We  think   it  proper  to  conclude  our  decision  by remembering the  famous saying  of Henry Peter Broughan with certain adaptations:           "It was  the boast  of Augustus that he found Rome      of bricks  and left it of marble. But how noble will be      the boast  of the  citizens of free India of today when      they shall  have it to say that they found law dear and      left it  cheaper; found  it a sealed book and left it a      living letter;  found it  the patrimony of the rich and      left it  the inheritance  of the poor; found it the two

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    edged sword  of craft  and oppression  and left  it the      staff of honesty and the shield of innocence."      It is  only in  a country of that order that the common man will have his voice heard.      The dream can become a reality if every citizen becomes aware of  his duty  and before asking for enforcement of his right, volunteers to perform his obligation.      And before  we part, we must record our appreciation of the performance  of the petitioner. He has taken great pains to highlight  his stand-collected a lot of relevant material and argued  his  case  quite  well-a  doctor  by  profession though. As  this was a public interest litigation, we direct that he  shall be entitled to consolidated cost of Rs. 5,000 recoverable  from   the  Railway   Ministry  of   the  Union Government unless paid within two months hence. S R. 725