PETITIONER:
BANDHUA MUKTI MORCHA
Vs.
RESPONDENT:
UNION OF INDIA & OTHERS
DATE OF JUDGMENT16/12/1983
BENCH:
BHAGWATI, P.N.
BENCH:
BHAGWATI, P.N.
PATHAK, R.S.
SEN, AMARENDRA NATH (J)
CITATION:
1984 AIR 802 1984 SCR (2) 67
1984 SCC (3) 161 1983 SCALE (2)1151
CITATOR INFO :
R 1984 SC1099 (3)
RF 1986 SC 847 (30)
RF 1987 SC 990 (16)
R 1987 SC1086 (3,4,5,6,7)
R 1988 SC1863 (3,9,10)
F 1989 SC 549 (15)
RF 1989 SC 653 (12)
F 1990 SC2060 (3)
F 1991 SC 101 (35)
RF 1991 SC 420 (7)
RF 1991 SC1117 (7)
RF 1991 SC1420 (25)
RF 1992 SC 38 (4)
RF 1992 SC1858 (11)
ACT:
Constitution of India.-Article 32(1)-Mode of
interpreting Article 32-”Appropriate proceedings”, meaning
of-Letter addressed by a party on behalf of persons
belonging to socially and economically weaker sections
complaining violation of their rights under various social
welfare legislations-Whether can be treated as a writ
petition-Maintainability of-Public Interest Litigation-
Nature and scope of.
Constitution of India, Article 32 (2)-Appointment of
commissions by the Supreme Court to enquire into the
complaint made in the writ petition and relying upon the
commissioners’ report-Propriety of-Adversarial Procedure-How
far binding on the Court-Supreme Court Rules, 1966, O, XXXV,
XLVI and XLVII, Rule 6-Code of Civil Procedure, O.XXVI.
Mines Act, 1952-Sections 2 (j), (jj), (kk), 3 (1) (b)
proviso 18 Chapters V, VI & VII-Meaning of the word “mine”-
Whether stone quarries are mines-Whether workers of the
stone quarries and crushers entitled to the benefits
accruing under the Act-Responsibility of the mine lessees,
mine owners, Central Government and the State Governments
for ensuring the benefits accruing under the Act, explained-
Mines Rules 1955, Rules, Rules 30-32-Punjab Minor Mineral
Concession Rules, 1964.
Inter-State Migrant Workmen (Regulation of Employment
and Conditions of Service) Act, 1979-ss.2 (1) (e), (b), (g),
4,8,12 and Chapter V-Inter-State Migrant Workmen (Regulation
of Employment and Conditions of Service) Central Rules,
1980-Rules 23, 25-45-Definition of inter-state migrant
workmen-Rights and benefits of inter-state migrant workmen
explained-Thekedars or Jamadars recruiting workers for mine
lessees/owners from outside the State are “contractors”-
Contract Labour (Regulation and Abolition) Act, 1970-ss. 2
(1) (a), (b), (c) (g), 16 to 21.
Bonded Labour System (Abolition) Act, 1976-ss.2 (f),
(g), 4, 5, 10-15-Existence of Forced Labour-Whether bonded
labour-Burden of proof lies upon the employer that the
labourer is not a bonded labourer-Court will be justified in
presuming that the labourer is a bonded labourer unless the
presumption is rebutted by producing satisfactory material.
Minimum Wages Act, Workmen’s Compensation Act, 1983,
Payment of Wages Act, Employees State Insurance Act,
Employees Provident fund and Miscellaneous Provisions Act,
Maternity Benefits Act, 1957-Benefits accruing under these
Acts-Whether available to mine workers.
HEADNOTE:
The petitioner, an organisation dedicated to the cause
of release of bonded labourers in the country, addressed a
letter to Hon’ble Bhagwati, J. alleging: (1) that there were
a large number of labourers from different parts of the
country who were working in some of the stone quarries
situate in district Faridabad, State of
68
Haryana under “inhuman and intolerable conditions; (2) that
a large number of them were bonded labourers; (3) that the
provisions of the Constitution and various social welfare
laws passed for the benefit of the said workmen were not
being implemented in regard to these labourers. The
petitioner also mentioned in the letter the names of the
stone quarries and particulars of labourers who were working
as bonded labourers and prayed that a writ be issued for
proper implementation of the various provisions of the
social welfare legislations, such as, Mines Act, 1952 Inter-
State Migrant Workmen (Regulation of Employment and
Conditions of Service) Act, 1979, Contract Labour
(Regulation and Abolition) Act, 1970, Bonded Labour System
(Abolition) Act, 1976, Minimum Wages Act, Workmen’s
Compensation Act, Payment of Wages Act, Employees State
Insurance Act, Maternity Benefits Act etc. applicable to
these labourers working in the said stone quarries with a
view to ending the misery, suffering and helplessness of
“these victims of the most inhuman exploitation.”
The Court treated the letter as a writ petition and
appointed a commission to inquire into the allegations made
by the petitioner. The commission while confirming he
allegations of the petitioner, pointed out in its report
that (i) the whole atmosphere in the alleged stone quarries
was full of dust and it was difficult for any one to
breathe; (ii) some of the workmen were not allowed to leave
the stone quarries and were providing forced labour; (iii)
there was no facility of providing pure water to drink and
the labourers were compelled to drink dirty water from a
nullah; (iv) the labourers were not having proper shelter
but were living in jhuggies with stones piled one upon the
other as walls and straw covering the top which was too low
to stand and which did not afford any protection against sun
and rain; (v) some of the labourers were suffering from
chronic diseases; (vi) no compensation was being paid to
labourers who were injured due to accidents arising in the
course of employment; (vii) there were no facilities for
medical treatment or schooling. At the direction of the
Court, a socio-legal investigation was also carried out and
it suggested measures for improving the conditions of the
mine workers.
The respondents contended: (1) Article 32 of the
Constitution is not attracted to the instant case as no
fundamental right of the petitioner or of the workmen
referred to in the petition is infringed; (2) A letter
addressed by a party to this Court cannot be treated as a
writ petition; (3) In a proceeding under Art. 32, this Court
is not empowered to appoint any commission or an
investigating body to enquire into the allegations made in
the writ petition; (4) Reports made by such commissions are
based only on ex-parte statements which have not been tested
by cross-examination and therefore they have no evidentiary
value; and (5) there might be forced labourers in the stone
quarries and stone crushers in the State of Haryana but they
were not bonded labourers within the meaning of that
expression as used in the Bonded Labour System (Abolition)
Act, 1976.
Rejecting all the contentions and allowing the writ
petition on merits, the Court
^
HELD: The State Government’s objection as to the
maintainability of the writ petition under Article 32 of the
Constitution by the petitioners is reprehensible. If any
citizen brings before the Court a complaint that a large
number of peasants or workers are bonded serfs or are being
subjected to exploitation by a few mine lessees or
contractors or employers or are being denied the benefits of
69
social welfare laws, the State Government, which is, under
our constitutional scheme, charged with the mission of
bringing about a new socioeconomic order where there will be
social and economic justice for every one equality of status
and opportunity for all, would welcome an inquiry by the
court, so that if it is found that there are in fact bonded
labourers or even if the workers are not bonded in the
strict sense of the term as defined in the Bonded Labour
System (Abolition) Act 1976 but they are made to provide
forced labour or are consigned to a life of utter
deprivation and degradation, such a situation can be set
right by the State Government. Even if the State Government
is on its own inquiry satisfied that the workmen are not
bonded and are not compelled to provide forced labour and
are living and working in decent conditions with all the
basic necessities of life provided to them, the State
Government should not baulk an inquiry by the court when a
complaint is brought by a citizen, but it should be anxious
to satisfy the court and through the court, the people of
the country, that it is discharging its constitutional
obligation fairly and adequately and the workmen are being
ensured social and economic justice. [102A-D]
2. Moreover, when a complaint is made on behalf of
workmen that they are held in bondage and are working 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, it is
difficult how such a complaint can be thrown out on the
ground that it is not violative of the fundamental right of
the workmen. It is the fundamental right of every one in
this country, assured under the interpretation given to
Article 21 by this Court in Francis Mullen’s Case, to live
with human dignity, free from exploitation. This right to
live with human dignity enshrined in Article 21 derives its
life breath from the Directive Principles of State Policy
and particularly clauses (e) and (f) of Article 39 and
Articles 41 and 42 and at the least, therefore, it must
include protection of the health and strength of workers,
men and women, and of the tender age of children against
abuse, opportunities and facilities for children to develop
in a healthy manner and in conditions of freedom and
dignity, educational facilities, just and humane conditions
of work and maternity relief. These are the minimum
requirements which must exist in order to enable a person to
live with human dignity and no State neither the Central
Government nor any State Government-has the right to take
any action which will deprive a person of the enjoyment of
these basic essentials. Since the Directive Principles of
State Policy contained in clauses (e) and (f) of Article 39,
Article 41 and 42 are not enforceable in a court of law, it
may not be possible to compel the State through the judicial
process to make provision by statutory enactment or
executive fiat for ensuring these basic essentials which go
to make up a life of human dignity but where legislation is
already enacted by the State providing these basic
requirements to the workmen and thus investing their right
to live with basic human dignity, with concrete reality and
content, the State can certainly be obligated to ensure
observance of such legislation for inaction on the part of
the State in securing implementation of such legislation
would amount to denial of the right to live with human
dignity enshrined in Article 21, more so in the context of
Article 256 which provides that the executive power of every
State shall be so exercised as to ensure compliance with the
laws made by Parliament and any existing laws which apply in
that State. [103B-H 104A]
3. The State is under a constitutional obligation to
see that there is no violation of the fundamental right of
any person, particularly when he belongs to the
70
weaker sections of the community and is unable to wage a
legal battle against a strong and powerful opponent who is
exploiting him. The Central Government is therefore bound to
ensure observance of various social welfare and labour laws
enacted by Parliament for the purpose of securing to the
workmen a life of basic human dignity in compliance with the
Directive Principles of State Policy. It must also follow as
a necessary corollary that the State of Haryana in which the
stone quarries are vested by reason of Haryana Minerals
(Vesting of Rights) Act 1973 and which is therefore the
owner of the mines cannot while giving its mines for stone
quarrying operations, permit workmen to be denied the
benefit of various social welfare and labour laws enacted
with a view to enabling them to live a life of human
dignity. The State of Haryana must therefore ensure that the
minelessees or contractors, to whom it is giving its mines
for stone quarrying operations, observe various social
welfare and labour laws enacted for the benefit of the
workmen. This is a constitutional obligation which can be
enforced against the Central Government and the State of
Haryana by a writ petition under Article 32 of the
Constitution. [104 A-D]
4. While interpreting Article 32, it must be borne in
mind that our approach must be guided not by any verbal or
formalistic canons of construction but by the paramount
object and purpose for which this Article has been enacted
as a Fundamental Right in the Constitution and its
interpretation must receive illumination from the Trinity of
provisions which permeate and energies the entire
Constitution namely, the Preamble, the Fundamental Rights
and the Directive Principles of State Policy. Clause (1) of
Article 32 confers the right to move the Supreme Court for
enforcement of any of the fundamental rights, but it does
not say as to who shall have this right to move the Supreme
Court nor does it say by what proceedings the Supreme Court
may be so moved. There is no limitation in the words of
Clause (1) of Article 32 that the fundamental right which is
sought to be enforced by moving the Supreme Court should be
one belonging to the person who moves the Supreme Court nor
does it say that the Supreme Court should be moved only by a
particular kind of proceeding. It is clear on the plain
language of clause (1) of Article 32 that whenever there is
a violation of a fundamental right, any one can move the
Supreme Court for enforcement of such fundamental right. Of
course, the court would not, in exercise of its discretion,
intervene at the instance of a meddlesome interloper or busy
body and would ordinarily insist that only a person whose
fundamental right is violative should be allowed to activise
the court, but there is no fetter upon the power of the
court to entertain a proceeding initiated by any person
other than the one whose fundamental right is violated,
though the court would not ordinarily entertain such a
proceeding, since the person whose fundamental right is
violated can always approach the court and if he does not
wish to seek judicial redress by moving the court, why
should some one else be allowed to do so on his behalf. This
reasoning however breaks down in the case of a person or
class of persons whose fundamental right is violated but who
cannot have resort to the court on account of their poverty
or disability or socially or economically disadvantaged
position and in such a case, therefore, the court can and
must allow any member of the public acting bona fide to
espouse the cause of such person or class of persons. This
does not violate, in the slightest measure the language of
the constitutional provision enacted in clause (1) of
Article 32. [106 B-H-107A]
5. Clause (1) of Article 32 says that the Supreme Court
can be moved for enforcement of a fundamental right by any
‘appropriate’ proceeding. There
71
is no limitation in regard to the kind of proceeding
envisaged in clause (1) of Article 32 except that the
proceeding must be “appropriate” and this requirement of
appropriateness must be judged in the light of the purpose
for which the proceeding is to be taken, namely, enforcement
of a fundamental right. The Constitution makers deliberately
did not lay down any particular form of proceeding for
enforcement of a fundamental right nor did they stipulate
that such proceeding should conform to any rigid pattern or
straight jacket formula as, for example, in England, because
they knew that in a country like India, where there is so
much of poverty, ignorance, illiteracy, deprivation and
exploitation, any insistence on a rigid formula of
proceeding for enforcement of a fundamental right would
become self defeating because it would place enforcement of
fundamental rights beyond the reach of the common man and
the entire remedy for enforcement of fundamental rights
which the Constitution makers regarded as so precious and
invaluable that they elevated it to the status of a
fundamental right, would become a mere rope of sand so far
as the large masses of the people in this country are
concerned. The Constitution makers therefore advisedly
provided in clause (1) of Article 32 that the Supreme Court
may be moved by any ‘appropriate’ proceeding, ‘appropriate’
not in terms of any particular form but ‘appropriate’ with
reference to the purpose of the proceeding. [107 A-F]
Therefore where a member of the public acting bona fide
moves the Court for enforcement of a fundamental right on
behalf of a person or class of persons who on account of
poverty or disability or socially or economically
disadvantaged position cannot approach the court for relief,
such member of the public may move the court even by just
writing a letter, because it would not be right or fair to
expect a person acting pro bono publico to incur expenses
out of his own pocket for going to a lawyer and preparing a
regular writ petition for being filed in court for
enforcement of the fundamental right of the poor and
deprived sections of the community and in such a case, a
letter addressed by him can legitimately be regarded as an
“appropriate” proceeding. [107 F-H]
6. Public Interest litigation is not in the nature of
adversary litigation but it is a challenge and an
opportunity to the government and its officers to make basic
human rights meaningful to the deprived and vulnerable
sections of the community and to assure them social and
economic justice which is the signature tune of our
Constitution. When the Court entertains public interest,
litigation, it does not do so in a cavilling spirit or in a
confrontational mood or with a view to tilting at executive
authority or seeking to unsurp it, but its attempt is only
to ensure observance of social and economic rescue
programmes, legislative as well as executive, framed for the
benefit of the have-nots and the handicapped and to protect
them against violation of their basic human rights, which is
also the constitutional obligation of the executive. The
Court is thus merely assisting in the realisation of the
constitutional objectives. [102 D-E, G-H, 103 A-B]
7. Clause (2) of Article 32 conferring power on the
Supreme Court “to issue directions, or orders, or writs,
including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari” which ever may be
appropriate, for enforcement of any of the fundamental
rights, is in the widest terms. It is not confined to
issuing the high prerogative writs of habeas corpus,
mandamus, prohibition, certiorari, and quo warranto, which
are hedged in by strict conditions differing from one writ
to another. But it is much wider and includes within its
matrix, power to issue any directions, orders or writs which
may be appropriate
72
for enforcement of the fundamental right in question and
this is made amply clear by the inclusive clause which
refers to in the nature of habeas corpus, mandamus,
prohibition, qua warranto and certiorari. Therefore even if
the conditions for issue of any of these high prerogative
writs are not fulfilled, the Supreme Court would have power
to issue any direction, order or writ including a writ in
the nature of any high prerogative writ. This provision
conferring on the Supreme Court power to enforce the
fundamental rights in the widest possible terms shows the
anxiety of the Constitution makers not to allow any
procedural technicalities to stand in the way of enforcement
of fundamental rights. The Constitution makers clearly
intended that the Supreme Court should have the amplest
power to issue whatever direction, order or writ may be
appropriate in a given case for enforcement of a fundamental
right. That is why the Constitution is silent as to what
procedure shall be followed by the Supreme Court in
exercising the power to issue such direction or order or
writ as in Article 32 and advisedly so, because the
Constitution makers never intended to fetter the discretion
of the Supreme Court to evolve a procedure appropriate in
the circumstances of a given case for the purpose of
enabling it to exercise its power of enforcing a fundamental
right. Neither clause (2) of Article 32 nor any other
provision of the Constitution requires that any particular
procedure shall be followed by the Supreme Court in
exercising its power to issue an appropriate direction,
order or writ. The purpose for which the power to issue an
appropriate direction, order or writ is conferred on the
Supreme Court is to secure enforcement of a fundamental
right and obviously therefore, whatever procedure is
necessary for fulfillment of that purpose must be
permissible to the Supreme Court. [108 B-H, 109 A-B]
8. It is not at all obligatory that an adversarial
procedure, where each party produces his own evidence tested
by cross examination by the other side and the judge sits
like an umpire and decides the case only on the basis of
such material as may be produced before him by both parties,
must be followed in a proceeding under Article 32 for
enforcement of a fundamental right. In fact, there is no
such constitutional compulsion enacted in clause (2) of
Article 32 or in any other part of the Constitution. There
is nothing sacrosanct about the adversarial procedure with
evidence led by either party and tested by cross-exmaination
by the other party and the judge playing a positive role has
become a part of our legal system because it is embodied in
the Code of Civil procedure and the Indian Evidence Act. But
these statutes obviously have no application where a new
jurisdiction is created in the Supreme Court for enforcement
of a fundamental right. Therefore it is not justified to
impose any restriction on the power of the Supreme Court
adopt such procedure as it thinks fit in exercise of its new
jurisdiction, by engrafting adversarial procedure on it,
when the constitution makers have deliberately chosen not to
insist on any such requirement and instead left it open to
the Supreme Court to follow such procedure as it thinks
appropriate for the purpose of securing the end for which
the power is conferred namely, enforcement of a fundamental
right.[109 B-G]
9. The strict adherence to the adversarial procedure
can some times lead to injustice, particularly when the
parties are not evenly balanced in social or economic
strength. Where one of the parties to a litigation belongs
to a poor and deprived section of the community and does not
possess adequate social and material resources, he is bound
to be at a disadvantage as against a strong and powerful
opponent under the adversary system of justice, because of
his difficulty in getting competent legal representation and
more than anything else, his inability to produce relevant-
73
evidence before the court. Therefore, when the poor come
before the court, particularly for enforcement of their
fundamental rights, it is necessary to depart from the
adversarial procedure and to evolve a new procedure which
will make it possible for the poor and the weak to bring the
necessary material before the court for the purpose of
securing enforcement of their fundamental rights. If the
adversarial procedure is truly followed in their case, they
would never be able to enforce their fundamental rights and
the result would be nothing but a mockery of the
Constitution. Therefore the Courts should abandon the
laissez faire approach in the judicial process particularly
where it involves a question of enforcement of fundamental
rights and forge new tools, devise new methods and adopt new
strategies for the purpose of making fundamental rights
meaningful for the large masses of people. And this is
clearly permissible on the language of clause (2) of Article
32 because the Constitution makers while enacting that
clause have deliberately and advisedly not used and words
restricting the power of the court to adopt any procedure
which it considers appropriate in the circumstances of a
given case for enforcing a fundamental right. [110 B-F]
10. It is obvious that the poor and the disadvantaged
cannot possibly produce relevant material before the Court
in support of their case and equally where an action is
brought on their behalf by a citizen acting pro bono
publico, it would be almost impossible for him to gather the
relevant material and place it before the Court. In such a
case the Supreme Court would be failing in discharge of its
contiotnal duties of enforcing a fundamental right if it
refuses to intervene because the stitupetitioner belonging
to the underprivileged segment of society or a public
spirited citizen espousing his cause is unable to produce
the relevant material before the court. If the Supreme Court
were to adopt a passive approach and decline to intervene in
such a case because relevant material has not been produced
before it by the party seeking its intervention, the
fundamental rights would remain merely a teasing illusion so
far as the poor and disadvantaged sections of the community
are concerned. Therefore the Supreme Court has evolved the
practice of appointing commissions for the purpose of
gathering facts and data in regard to a complaint of breach
of a fundamental right made on behalf of the weaker sections
of the society. The Report of the commissioner would furnish
prima facie evidence of the facts and data gathered by the
commissioner and that is why the Supreme Court is careful to
appoint a responsible person as commissioner to make an
inquiry or investigation into the facts relating to the
complaint. Even in the past the Supreme Court has appointed
sometimes a district magistrate, sometimes a district Judge,
sometime a professor of law, sometimes a journalist,
sometimes an officer of the court and sometimes an advocate
practising in the court, for the purpose of carrying out an
enquiry or investigation and making report to the court
because the commissioner appointed by the Court must be a
responsible person who enjoys the confidence of the court
and who is expected to carry out his assignment objectively
and impartially without any predilection or prejudice. Once
the report of the commissioner is received, copies of it
would be supplied to the parties so that either party, if it
wants to dispute any of the facts or date stated in the
Report, may do so by filing an affidavit and the court then
consider the report of the commissioner and the affidavits
which may have been filed and proceed to adjudicate upon the
issue arising in the writ petition. It would be entirely for
the Court to consider what weight to attach to the facts and
data stated in the report of the commissioner and to what
extent to act upon such facts and data. But it would not be
correct to say that the report of the commissioner has no
evidentiary value at all, since the statements
74
made in it are not tested by cross-examination. To accept
this contention would be to introduce the adversarial
procedure in a proceeding where in the given situation, it
is totally inapposite. [111 B-H, 112, A-B]
11. It is true that Order XLVI of the Supreme Court
Rules 1966 makes the provisions of Order XXVI of the Code of
Civil Procedure, except rules 13, 14, 19 20, 21 and 22
applicable to the Supreme Court and lays down the procedure
for an application for issue of a Commission, but Order XXVI
is not exhaustive and does not detract from the inherent
power of the Supreme Court to appoint a commission, if the
appointment of such commission is found necessary for the
purpose of securing enforcement of a fundamental right in
exercise of its constitutional jurisdiction under Article
32. Order XLVI of the Supreme Court Rules 1966 cannot in any
way militate against the power of the Supreme Court under
Article 32 and in fact rule 6 of Order XLVII of the Supreme
Court Rules 1966 provides that nothing in these Rules “shall
be deemed to limit or otherwise affect the inherent powers
of the court to make such orders as may be necessary for the
ends of justice. [112 C-F]
In the instant case, therefore, the court did not act
beyond its power in appointing the commissions for the
purpose of making an inquiry into the conditions of workmen
employed in the stone quarries. The petitioner in the writ
petition specifically alleged violation of the fundamental
rights of the workmen employed in the stone quarries under
Articles 21 and 23 and it was therefore necessary for the
court to appoint these commissioners for the purpose of
inquiring into the facts related to this complaint. The
Reports of the Commissions were clearly documents having
evidentiary value and they furnished prima facie evidence of
the facts and data stated in those Reports. Of course, it is
for the court to consider what weight it should attach to
the facts and data contained in these Reports in the light
of the various affidavits filed in the proceedings.[112 F-H,
113 A-B]
12. The position pointed out as the power of the
Supreme Court to appoint commissioners in the exercise of
its jurisdiction under Article 32 must apply equally in
relation to the exercise of jurisdiction by the High Courts
under Article 226 for the latter jurisdiction is also a new
constitutional jurisdiction and it is conferred in the same
wide terms as the jurisdiction under Article 32 and the same
powers can and must therefore be exercised by the High Court
while exercising jurisdiction under Article 226. In fact,
the jurisdiction of the High Courts under Article 226 is
much wider, because the High Courts are required to exercise
this jurisdiction not only for enforcement of a fundamental
right but also for enforcement of any legal right and there
are many rights conferred on the poor and the disadvantaged
which are the creation of statute and they need to be
enforced as urgently and vigorously as fundamental rights.
[113 B-D]
3: 1. The Stone quarries in the instant case are
“mines” within the meaning of the Section 2 (j) of the Mines
Act, 1952 since they are excavations where operations for
the purpose of searching for or obtaining stone by quarrying
are being carried on but they are not open cast working’
since admittedly excavations in the case of these stone
quarries extend below superjacent ground. Since the workings
in these stone quarries extend below superjacent ground and
they are not ‘open east workings’ and moreover explosives
are admittedly used in connection with
75
the excavation, the conditions set out in the proviso to see
3 (i) (i) are not fulfilled and hence the exclusion of the
provisions of the Mines Act 1952 (other than the excepted
sections) is not attracted and all the provisions of the
Mines Act 1952 apply to these stone quarries. The provisions
contained in chapters V, VI & VII of the Mines Act confer
certain rights and benefits on the workmen employed in the
stone quarries and stone crushers and these rights and
benefits intended to secure to the workman just and human
conditions of work ensuring a decent standard of life with
basic human dignity. Since the stone quarries are not being
exploited by the State of Haryana though it is the owner of
the stone quarries, but are being given out on lease by
auction, the mine-lessees who are not only lessees but also
occupiers of the stone quarries are the owners of the stone
quarries within the meaning of that expression as used in
section 2 (1) and so also are the owners of stone crushers
in relation to their establishment. The mine-lessees and
owners of stone crushers are, therefore, liable under
section 18 of the Mines Act, 1952 to carry out their
operations in accordance with the provisions of the Mines
Act, 1952 and the Mines Rules, 1955 and other Rules and
Regulations made under that Act and to ensure that the
rights and benefits conferred by these provisions are
actually and concretely made available to the workmen. The
Central Government is entrusted under the Mines Act 1952
with the responsibility of securing compliance with the
provisions of that Act and of the Mines Rules 1953 and other
Rules and Regulations made under that Act and it is the
primary obligation of the Central Government to ensure that
these provisions are complied with by the mine-lessees and
stone crusher owners. The State of Haryana is also under an
obligation to take all necessary steps for the purpose of
securing compliance with these provisions by the mine-
lessees and owners of stone crushers. The State of Haryana
is therefore, in any event, bound to take action to enforce
the provisions of the Mines Act 1952 and the Mines Rules
1955 and other Rules and Regulations made under that Act for
the benefit of the workmen. [113 G-H, 114 A, 115 A, E, G,
116 B-F, 117 C-D]
13. The Inter-state Migrant Workmen (Regulation of
Employment and conditions of Service) Act, by sub-section
(4) of section (1) applies to every establishment in which
five or more inter-State Migrant workmen are employed or
were employed on any day of the preceding twelve months and
so also it applies to every contractor who employs or
employed five or more inter-State migrant workmen on any day
of the preceding twelve months. Section (2) sub-section (1)
Clause (b) of the Act defines contractor, in relation to an
establishment, to mean “a person who undertakes (whether as
an independent contractor, agent, employee or otherwise) to
produce a given result for the establishment, other than a
mere supply of goods and articles of manufacture to such
establishment, by the employment of workmen or to supply
workmen to the establishment, and includes a subcontractor,
khatedar, sardar, agent or any other person, by whatever
name called, who recruits or employs workman.” Clause (e) of
sub-section (1) of section (2) defines “interstate Migrant
Workmen” to mean “any person who is recruited by or through
a contractor in one State under an agreement or other
arrangement for employment in an establishment in another
State, whether with or with-out the knowledge of the
principal employer in relation to such establishment.” The
expression “principal employer” is defined by clause (g) of
sub-section (1) of section 2 to mean “in relation to a mine,
the owner or agent of the mine and where a person has been
named as the manager of the mine, the person so named.”
Obviously, therefore, the mine-lessees and owners of stone
crushers in the present case would be principal employers
within the meaning of that expression as used in the Inter-
76
State Workmen Act. Section 16 lays a duty on every
contractor employing inter State migrant workmen in
connection with the work of an establishment to provide
various other facilities particulars of which are to be
found in Rules 36 to 45 of the Inter-State Migrant Workmen
Rules. (These facilities include medical facilities
protective clothing, drinking water, latrines, urinals and
washing facilities, rest rooms, canteens, creche and
residential accommodation). The obligation to provide these
facilities is in relation to the inter-State migrant workmen
employed in an establishment to which the Act applies. But
this liability is not confined only to the contractor,
because Section 18 provides in so many terms that if any
allowance required to be paid under-section 14 or 15 to an
inter-State migrant workman is not paid by the contractor or
if any facility specified in Section 16 is not provided for
the benefit of such workman, such allowance shall be paid or
as the case may be, the facility shall be provided by the
principal employer within such time as may be prescribed by
the Rules and all the allowances paid by the principal
employer or all the expenses incurred by him in this
connection may be recovered by him from the contractor
either by deduction from the amount payable to the
contractor or as a debt payable by the contractor. [117 F-H,
119 E-A-120 A]
14. The thekedar or jamadar who is engaged by the mine
lessees or the stone crusher owners to recruit workmen or
employ them on behalf of the mine lessees or stone crusher
owners would clearly be a ‘contractor’ within the meaning of
that term as defined in Section 2 sub-section (1) clause (b)
and the workmen recruited by or through him from other
States for employment in the stone quarries and stone
crushers in the State of Haryana would undoubtedly be inter-
State migrant workman . Even when the thekedar or jamadar
recruits or employs workmen for the stone quarries and stone
crushers by sending word through the “old hands”, the
workmen so recruited or employed would be inter-State
migrant workmen, because the “old hands” would be really
acting as agents of the thekedar or jamadar for the purpose
of recruiting or employing workmen crushers in the State of
Haryana. [121-E]
15. In addition to the rights and benefits conferred
upon him under the Inter-State Migrant workmen Act and the
inter-State Migrant Workmen Rules, an inter-State migrant
workman is also, by reason of Section 21, entitled to the
benefit of the provisions contained in the Workmen’s
Compensation Act 1923, The Payment of Wages Act 1936, The
Employees’ State Insurance Act 1948, The Employees’
Provident Funds and Misc. Provisions Act, 1952, and the
Maternity Benefit Act 1961. [122 B-C]
The obligation to give effect to the provisions
contained in these various laws is not only that of the
jamadar or thekedar and the minelessees and stone crushers
owners (provided of course there are 5 or more inter-State
Migrant Workmen employed in the establishment) but also that
of the Central Government because the Central Government
being the “appropriate Government” within the meaning of
Section 2(1)(a) is under an obligation to take necessary
steps for the purpose of securing compliance with these
provisions by the thekedar or jamadar and mine-lessees and
owners of stone crushers. The State of Haryana is also bound
to ensure that these provisions are observed by the thekedar
or jamadar and minelessees and owners of stone crushers.
[122 D-F]
16. If the Jamadar or thekadar in a stone quarry or
stone crusher is a contractor’ within the meaning of the
definition of the term in the Inter-State Migrant
77
Workmen Act, he would a fortiorari be ‘contractor’ also for
the purpose of Contract Labour Act and any workmen hired in
or in connection with the work of stone quarry or stone
crusher by or through the jamadar or thekedar would be
workmen entitled to the benefit of the provisions of the
Contract Labour Act. Where therefore the thekedar for
Jamadar is a Contractor, and the workmen are employed as
‘contract labour’ within the meaning of these expressions as
used in the Contract Labour Act the Contractor as well as
the principal employer would be liable to comply with the
provisions of the Contract Labour Act and the Contract
Labour Rules and to provide to the contract labour rights
and benefits conferred by these provisions. The Central
Government being the “appropriate government” within the
meaning of section 2 sub-section (1) clause (a) would be
responsible for ensuring compliance with the provisions of
the Contract Labour Act and the Contract Labour Rules by the
mine-lessees and stone crushers owners and the thekedar or
jamadar. So also, for reasons discussed while dealing with
the applicability of the Mines Act 1952 and the Inter State
Migrant Workmen Act, the State of Haryana. would be under an
obligation to enforce the provisions of the Contract Labour
Act and the Contract Labour Rules for the benefit of the
workmen. [123 E-F, H, 124 A-C]
17. There can be no doubt and indeed this was not
disputed on behalf of the respondents, that the Minimum
Wages Act 1948 is applicable to workmen employed in the
stone quarries and stone crushers. Therefore whatever be the
mode of payment followed by the mine lessees and stone
crusher owners, the workmen must get nothing less than the
minimum wage for the job which is being carried out by them
and if they are required to carry out additionally any of
the functions pertaining to another job or occupation for
which a separate minimum wage is prescribed, they must be
paid a proportionate part of such minimum wage in addition
to the minimum wage payable to them for the work primarily
carried out by them. The system of payment which is being
followed in the stone quarries and stone crushers, under
which the expenses of the explosives and of drilling holes
are to be borne by the workmen out of their own wages,
should be changed and the explosives required for carrying
out blasting should be supplied by the mine lessees or the
jamadar or thekedar without any deduction being made out of
the wages of the workmen and the work of drilling holes and
shot firing should be entrusted only to those who have
received the requisite training under the Mines Vocational
Training Rules 1966. So far as the complaint of the
petitioner that the workmen employed in the stone quarries
and stone crushers are not being paid the minimum wage due
and payable for the work carried out by them is concerned,
it is a matter which would have to be investigated and
determined. [124C, 125 A-E]
The Bonded Labour system is intended to strike against
the system of bonded labour which has been a shameful scar
on the Indian Social Scene for decades and which has
continued to disfigure the life of the nation even after
independence. The Act was brought into force through out the
length and breadth of the country with effect from 25th
October 1975, which means that the Act has been in force now
for almost 8 years and if properly implemented, it should
have by this time brought about complete identification,
freeing and rehabilitation of bonded labour. But as
official, semi-official and non-official reports show, we
have yet to go a long way in wiping out this outrage against
humanity. [126 A-C]
18. It is clear bonded labour is a form of forced
labour and Section 12 of the Bonded Labour System
(Abolition) Act 1976 recognises this self-evident
proposition by laying a duty on every District Magistrate
and every officer specified
78
by him to inquire whether any bonded labour system or any
other form of forced labour is being enforced by or on
behalf of any person and, if so, to take such action as may
be necessary to eradicate the enforcement of such forced
labour. The thrust of the Act is against the continuance of
any form of forced labour. It is of course true that,
strictly speaking, a bonded labourer means a labourer who
incurs or has or is presumed to have incurred a bonded debt
and a bonded debt means an advance obtained or presumed to
have been obtained by a bonded labourer under or in
pursuance of the bonded labour system and it would therefore
appear that before a labourer can be regarded as a bonded
labourer, he must not only be forced to provide labour to
the employer but he must have also received an advance or
other economic consideration from the employer unless he is
made to provide forced labour in pursuance of any custom or
social obligation or by reason of his birth in any
particular caste or community. [130 A-D]
19. The contention of the State of Haryana that the
burden of proof under the bonded labour System (Abolition)
Act, 1976 is upon the bonded labourers is misconceived. To
insist that the bonded labourers must first prove that they
are providing forced labour in consideration of an advance
or other economic consideration received by them and then
only they would be eligible for the benefits provided under
the Act, is nothing but asking them to do a task which is
extremely difficult, if not impossible. The labourers would
have no evidence at all to prove so and since employment of
bonded labour is a penal offence under the Act, the employer
would immediately without any hesitation disown having given
any advance or economic consideration to the bonded
labourers. The insistence of proof from two labourers by the
State Government which is constitutionally mandated to bring
about change in the life conditions of the poor and
downtrodden and to ensure social justice to them is
reprehensible. [130 F-H, 131 A]
It would be cruel to insist that a bonded labour in
order to derive the benefits of this social welfare
legislation, should have to go through a formal process of
trial with the normal procedure for recording of evidence.
That would be a totally futile process because it is obvious
that a bonded labourers can never stand up to the regidity
and formalism of the legal process due to his poverty,
illiteracy and social and economic backwardness and if such
a procedure were required to be followed, the State
Government might as well obliterate this Act from the
statute book. It is now statistically established that most
of bonded labourers are members of Scheduled Castes and
Scheduled Tribes or other backward classes and ordinary
course of human affairs would show, indeed judicial notice
can be taken of it, that there would be no occasion for a
labourer to be placed in a situation where he is required to
supply forced labour for no wage or for nominal wage, unless
he has received some advance of other economic consideration
from the employer and under the consideration from the
employer and under the pretext of not having returned such
advance or other economic consideration, he is required to
render service to the employer or is deprived of his freedom
of employment or of the right to move freely wherever he
wants. Therefore, whenever it is shown that a labourers is
made to provide forced labour, the Court would raise a
presumption that he is required to do so in consideration of
an advance or other economic consideration received by him
and he is therefore a bonded labourer. This presumption may
be rebutted by the employer and also by the State Government
if it so chooses but unless and until satisfactory material
is produced for reubutting this presumption, the Court must
proceed on the basis that the labourer is a bonded labourer
entitled to the benefit of the provisions of the Act. The
State Government cannot
79
be permitted to repudiate its obligation to identify,
release and rehabilitate the bonded labourers on the plea
that though the concerned labourers may be providing forced
labour, the State Government does not owe any obligation to
them unless and until they show in an appropriate legal
proceeding conducted according to the rules of adversary
system of justice, that they are bonded labourers. [131 C-H,
132 A]
20. Though section 13 provides for constitution of a
Vigilance Committee in each District and each sub-division
of a District, the Government of Haryana, for some reason or
the other, did not constitute any Vigilance Committee until
its attention was drawn to this requirement of the law by
this Court. It may be that according to the Government of
Haryana there were not at any time any bonded labourers
within its territories, but even so Vigilance Committees are
required by Section 13 to be constituted because the
function of the Vigilance Committee is to identify bonded
labourers, if there are any, and to free and rehabilitate
them and it would not be right for the State Government not
to constitute vigilance Committees on the assumption that
there are no bonded labourers at all. In constituting
Vigilance Committee in each District and sub-division, the
Haryana Government would do well to include representatives
of non-political social action groups operating at the grass
root level, for it is only through such social action groups
and voluntary agencies that the problems of identification
of bonded labour can be effectively solved. [128 E-H, 129 A-
B]
The magistrates and judicial officers take a very
lenient view of violations of labour laws enacted for the
benefits of the workmen and let off the defaulting employers
with small fines. There have also been occasions where the
magistrate and judicial officers have scotched prosecutions
and acquitted or discharged the defaulting employers on
hyper technicalities. This happens largely because the
magistrates and judicial officers are not sufficiently
sensitised to the importance of the observance of labour
laws with the result that the labour laws are allowed to be
ignored and breached with utter callousness and indifference
and the workmen begin to feel that the defaulting employers
can, by paying a fine which hardly touches their pocket,
escape from the arm of law and the labour laws supposdely
enacted for their benefit are not meant to be observed but
are merely decorative appendages intended to assuage the
conscience of the workmen. The Magistrates and Judicial
Officers should take a strict view of violation of labour
laws and to impose adequate punishment on the erring
employers so that they may realise that it does not pay to
commit a breach of such laws and to deny the benefit of such
laws to the workmen. [145 A-D]
21. The Court issued several directions to the Central
Government and the State Government and the various
authorities for implementing the provisions enacted in
various social welfare laws for the benefit of the workmen
employed in the stone quarries and stone crushers in the
state of Haryana. So that the poor workmen who lead a
miserable existence may one day be able to realise that
freedom is not only the monopoly of a few but belongs to
them all and that they are also equally entitled along with
others to participate in the fruits of freedom and
development. [132 D, 145 D-F]
PER PATHAK, J CONCURRING
(1) Public Interest Litigation in its present form
constitutes a new chapter in our judicial system. It has
acquired a significant degree of importance in the
jurisprudence practised by our courts and has evoked a
lively, if somewhat con-
80
troversial, response in legal circles, in the media and
among the general public. In our country, this new class of
litigation is justified by its protagonists on the basis
generally of vast areas in our population of illiteracy and
poverty, of social and economic backwardness, and of an
insufficient awareness and appreciation of individual and
collective rights. These handicaps have denied millions of
our countrymen access to justice. Public interest litigation
is said to possess the potential or providing such access in
the milieu of a new ethos, in which participating sectors in
the administration of justice cooperate in the creation of a
system which promises legal relief without cumbersome
formality and heavy expenditure. In the result, the legal
organisation has taken on a radically new dimension, and
correspondingly new perspectives are opening up before
judges and lawyers and State Law agencies in the tasks
before them. A crusading zeal is abroad, viewing the present
as an opportunity to awaken the political and legal order to
the objectives of social justice projected in our
constitutional system. New slogans fill the air, and new
phrases have entered the legal dictionary, and one hears of
the “justicing system” being galvanised into supplying
justice to the socioeconomic disadvantages. These urges are
responsible for the birth of new judicial concepts. and the
expanding horizon calpower. They claim to represent an
increasing emphasis on social welfare and a progressive
humanitarianism, To the mind trained in the certainty of the
law, of defined principles, of binding precedent, and the
common law doctrine of stare decisis, the future is fraught
with confusion and disorder in the legal world and severe
strains in the constitutional system. At the lowest, there
is an uneasy doubt about where we are going. If public
interest litigation is to command broad acceptance attention
must be paid to certain relevant considerations. The history
of human experience shows that when a revolution in ideas
and in action enters the life of a nation, the nascent power
so released possesses the potential of throwing the
prevailing social order into disarray. In a changing
society, wisdom dictates that reform should emerge in the
existing polity as an ordered change produce through its
institution. Moreover, the pace of change needs to be
handled with care lest the institutions themselves be
endangered. [152 F-H; 153 A-C; 153 G; 154 A-B]
1:2 Like the Warren Court’s affirmative action
programmes for the benefit of minorities and other socially
or economically disadvantaged interests through the avenues
of Public Law, the courts in India, are beginning to apply a
similar concept of constitutional duty. The doctrine of
standing has been enlarged in India to provide, where
reasonably possible, access to justice to large sectors of
people for whom so far it had been a matter of despair. It
is time indeed for the law to do so. In large measure, the
traditional conception of adjudication represented the
socioeconomic vision prevailing at the turn of the century.
In India, as the consciousness of social justice spread
though our multi-layered social order, the constitution
began to come under increasing pressure from social action
groups petitioning on behalf of the under privileged and
deprived sections of society for the fulfillment of their
aspirations. Despite the varying fortunes of the number of
cases of public interest litigation which have entered the
Supreme Court, Public Interest Litigation constitutes today
a significant segment of the court’s docket. [154 D: 156 A-
C]
2:1. The provisions of Article 32 do not specifically
indicate who can move the Court. In the absence of a
confining provision in that respect, it is plain that a
petitioner may be anyone in whom the Law recognises a
standing to maintain an action of such nature. [156 E]
81
2:2. As regards the form of proceeding and its
character, Article 32 speaks generally of ”appropriate
proceedings.” It should be a proceeding which can
appropriately lead to an adjudication of the claim made for
the enforcement of a fundamental right and can result in the
grant of effective relief. Article 32 speaks of the Court’s
power “to issue direction or orders of writs, and the
specific reference to “writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari” is by
way of illustration only. They do not exhaust the content of
the Court’s power under Article 32. [156 F-G]
3:1. A practice has grown in the public of invoking the
jurisdiction of this Court by a simple letter complaining of
a legal injury to the author or to some other person or
group of persons, and the Court has treated such letter as a
petition under Article 32 and entertained the proceeding
without anything more. It is only comparatively recently
that the Court has begun to call for the filing of a regular
petition on the letter. There is grave danger inherent in a
practice where a mere letter is entertained as a petition
from a person whose antecedents and status are unknown or so
uncertain that no sense of responsibility can, without
anything more, be attributed to the communication. There is
good reason for the insistence on a document being set out
in a form, or accompanied by evidence, indicating that the
allegations made in it are made with a sense of
responsibility by a person who has taken due care and
caution to verify those allegations before making them. A
plaint instituting a suit is required by the Code of Civil
Procedure to conclude with a clause verifying the pleadings
contained in it. A petition or application filed in court is
required to be supported on affidavit. These safeguards are
necessary because the document, a plaint or petition or
application, commences a course of litigation involving the
expenditure of public time and public money, besides in
appropriate cases involving the issue of summons or notice
to the defendant or respondent to appear and contest the
proceeding. Men are busy conducting the affairs of their
daily lives, and no one occupied with the responsibilities
and pressures of present day existence welcomes being
summoned to a law court and involved in a litigation. A
document making allegations without any proof whatever of
responsibility can conceivably constitute an abuse of the
process of law. Therefore, in special circumstances the
document petitioning the court for relief should be
supported by satisfactory verification. This requirement is
all the greater where petitions are received by the Court
through the post. It is never beyond the bound of
possibility that an unverified communication received
through the post by the court may in fact have been employed
mala fide, as an instrument of coercion or blackmail or
other oblique motive against a person named therein who
holds a position of honour and respect in society. The Court
must be ever vigilant against the abuse of its process. It
cannot do that better in this matter than insisting at the
earliest stage, and before issuing notice to the respondent,
that an appropriate verification of the allegations be
supplied. The requirement is imperative in private law
litigation. Having regard to its nature and purpose, it is
equally attracted to public interest litigation. While this
Court has readily acted upon letters and telegrams in the
past, there is need to insist now on an appropriate
verification of the petitioner other communication before
acting on it. It will always be a matter for the court to
decide. on what petition will it require verification and
when will it waive the rule. [157 B-H; 158 A-C]
3:2. All communications and petitions invoking the
jurisdiction of the Court must be addressed to the entire
Court, that is to say, the Chief Justice and his companion
judges, No such communication or petition can properly be
addressed
82
to a particular judge. When the jurisdiction of the Court is
invoked, it the jurisdiction of the entire court. Which
Judge or Judges will hear the case is exclusively a matter
concerning the internal regulation of the business of the
Court, interference with which by a litigant or member of
the public constitutes the grossest impropriety. It is well
established that when a division of the Court house and
decides cases it is in law regarded as a hearing and a
decision by the Court itself. The judgment pronounced and
the decree or order made are acts of the Court, and
accordingly they are respected, obeyed and enforced
throughout the land. It is only right and proper that this
should be known clearly to the lay public. Communications
and petitions addressed to a particular Judge are improper
and violate the institutional personality of the Court. They
also embarrass the judge to whom they are personally
addressed. The fundamental conception of the Court must be
respected, that is a single indivisible institution of
united purpose and existing solely for the high
constitutional functions for which it has been created. The
conception of the Court as a loose aggregate of individual
Judges, to one or more of whom judicial access may be
particularly had, undermines its very existence and
endangers its proper and effective functioning. [158 E-H;
159 A]
4:1. In public interest litigation, the role held by
the Court is more assertive than in traditional actions.
Viewed from the Warren Court’s experience the role of the
Court is creative rather than passive, and it assumes a more
positive attitude in determining facts. Not infrequently
public interest litigation affects the rights of persons not
before the Court, and in shaping the relief the court must
invariably take into account its impact on those interests.
Moreover, when its jurisdiction is invoked on behalf of a
group, it is as well to remember that differences may exist
in content and emphasis between the claims of different
sections of the group. For all these reasons the court must
exercise the greatest caution and adopt procedures ensuring
sufficient notice to all interests likely to be affected.
Moreover, the nature of the litigation sometimes involves
the continued intervention of the Court over a period of
time, and the organising of the litigation to a satisfactory
conclusion calls for judicial statemanship, a close
understanding of constitutional and legal values in the
context of contemporary social forces, and a judicious mix
of restraint and activism determined by the dictates of
existing realities. Importantly, at the same time, the Court
must never forget that its jurisdiction extends no farther
than the legitimate limits of its constitutional powers, and
avoid trespassing into political territory which under the
Constitution has been appropriated to other organs of the
State. [159 B; D-G]
4;2. The procedures adopted by the Court in cases of
public interest litigation must of course be procedures
designed and shaped by the Court with a view to resolving
the problem presented before it on determining the nature
and extent of relief accessible in the circumstances.
Whatever the procedure adopted by the court it must be
procedure known to judicial tenets and characteristic of a
judicial proceeding. There are methods and avenues of
procuring material available to executive and legislative
agencies and often employed by them for the efficient and
effective discharge of the tasks before them. Not all those
methods and avenues are available to the Court. the Court
must ever remind itself that one of the indicia identifying
it as a Court is the nature and character of the procedure
adopted by it in determining a controversy. It is in that
sense limited in the evolution of procedures pursued by it
in the process of an adjudication, and in the grant and
execution of the relief. Legal jurisprudence has in its
historical
83
development identified certain fundamental principles which
form the essential constituents of judicial procedure. They
are employed in every judicial proceeding, and constitute
the basic infrastructure along whose chamacts flows the
power of the Court in the process of adjudication. [159 H;
160 A-D]
4:3. What should be the conceivable frame work of
procedure in public interest litigation does not admit of a
clear cut answer. It is not possible to envisage a defined
pattern of procedure applicable to all cases. Of necessity
the pattern which the Court adopts will vary with the
circumstances of each case. But, if there is a statute
prescribing a judicial procedure governing the particular
case the Court must follow such procedure. It is not open to
the Court to bypass the statute and evolve a different
procedure at variance with it. Where, however, the procedure
prescribed by statute is incomplete or insufficient, it will
be open to the Court to supplement it by evolving its own
rules. Nonetheless, the supplementary procedure must conform
at all stages to the principles of natural justice. There
can be no deviation from the principles of natural justice
and other well accepted procedural norms characteristic of a
judicial proceeding. They constitute an entire code of
general principles of procedure, tried and proven and
hallowed by the sanctity of common and consistent acceptance
during long years of the historical development of the law.
The general principles of law, to which reference is made
here, command the confidence, not merely of the judge and
the lawyer and the parties to the litigation, but supply
that basic credible to the judicial proceeding which
strengthens public faith in the Rule of Law. They are rules
rooted in reason and fairplay and their governance
guarantees a just disposition of the case. The Court should
be wary of suggestions favouring novel procedures in cases
where accepted procedural rules will suffice. [160 E-H; 161
A]
5:1. Article 32 confers the widest amplitude of power
of this Court in the matter of granting relief. It has power
to issue “directions or orders of writs”, and there is no
specific indication, no express language, limiting or
circumscribing that power. Yet, the power is limited by the
very nature, that its judicial power. It is power which
pertains to the judicial organ of the State, identified by
the very nature of the judicial institution. There are
certain fundamental constitutional concepts which, although
elementary, need to be recalled at times. The constitution
envisages a broad division of the power of the State between
the legislature, the executive and the judiciary. Although
the division is not precisely demarcated, there is general
acknowledgement of its limits. The limits can be gathered
from the written text of the Constitution, from conventions
and constitutional practice, and from an entire array of
judicial decisions. The constitutional lawyer concedes a
certain measure of overlapping in functional action among
the three organs of the State. But there is no warrant for
assuming geometrical congruence. It is common place that
while the legislature enacts the law the executive
implements it and the court interprets it and, in doing so,
adjudicates on the validity of executive action and under
our Constitution, even judges the validity of the
legislation itself. And yet it is well recognised that in a
certain sphere the legislature is possessed of judicial
power, the executive possesses a measure of both legislative
and judicial functions, and the court, in its duty of
interpreting the law, accomplished in its perfected action a
marginal degree of legislative exercise. Nonetheless, a fine
and delicate balance is envisaged under our Constitution
between these primary institutions of the State. In every
case the Court should determine the true limits of its
jurisdiction and, having done so, it should take care to
remain within the restraints of its jurisdiction. [161 B-H;
162 A]
84
5:2. This aspect of Court action assumes especial
significance in public interest litigation. It bears upon
the legitimacy of the judicial institution, and that
legitimacy is affected as much by the solution presented by
the Court in resolving a controversy as by the manner in
which the solution is reached. In an area of judicial
functioning where judicial activism finds room for play,
where constitutional adjudication can become an instrument
of social policy forged by the personal political philosphy
of the judge, this is an important consideration to keep in
mind. [162 B-C]
5:3. Where the Court embarks upon affirmative action in
the attempt to remedy a constitutional imbalance within the
social order, few critics will find fault with it so long as
it confines itself to the scope of its legitimate authority.
But there is always the possibility, in public interest
litigation, of succumbing to the temptation of crossing into
territory which properly pertains to the Legislature or to
the Executive Government. For in most cases the jurisdiction
of the Court is invoked when a default occurs in executive
administration, and sometimes where a void in community life
remains unfilled by legislative action. The resulting public
grievance finds expression through social action groups,
which consider the Court an appropriate forum for removing
the deficiencies. Indeed, the citizen seems to find it more
convenient to apply to the Court for the vindication of
constitutional rights than appeal to the executive or
legislative organs of the State. In the process of
correcting executive error or removing legislative omission
the Court can so easily find itself involved in policy
making of a quality and to a degree characteristic of
political authority, and indeed run the risk of being
mistaken for one. An excessively political role identifiable
with political governance betrays the Court into functions
alien to its fundamental character, and tends to destroy the
delicate balance envisaged in our constitutional system
between its three basic institutions. The Judge, conceived
in the true classical mould, is an impartial arbiter, beyond
and above political bias and prejudice, functioning silently
in accordance with the Constitution and his judicial
conscience. Thus does he maintain the legitimacy of the
institution he serves and honour the trust which his office
has reposed in him. [162 D-H]
The affirmative schemes framed in public interest
litigation by the Court sometimes require detailed
administration under constant judicial supervision over
protected periods. The lives of large sections of people
some of whom have had no voice in the decisions, are shaped
and ordered by mandatory Court action extending into the
future. In that context it is as well to remember that
public approval and public consent assume material
importance in its successful implementation. In contrast
with policy making by legislation, where a large body of
legislators debate on a proposed legislative enactment, no
such visual impact can be perceived when judicial decrees
are forged and fashioned by a few judicial personages in the
confines of a Court. The mystique of the robe, at the stage
of decision-making, is associated traditionally with
cloistered secrecy and confidentiality and the end-result
commonly issues as a final definitive act of the Court. It
is a serious question whether in every case the same awesome
respect and reverence will endure during different stages of
affirmative action seeking to regulate the lives of large
numbers of people, some of whom never participated in the
judicial process. [163 A-D]
5:4. Treating with public interest litigation requires
more than legal scholar ship and a knowledge of text book
law. It is of the utmost importance in such
85
cases that when formulating a scheme of action, the Court
must have due regard to the particular circumstances of the
case, to surrounding realities including the potential for
successful implementation, and the likelihood and degree of
response from the agencies on whom the implementation will
depend. In most cases of public interest litigation, there
will be neither precedent nor settled practice to add weight
and force to the validity of the Court’s action. The example
of similar cases in other countries can afford little
support. The successful implementation of the orders of the
Court will depend upon the particular social forces in the
backdrop of local history, the prevailing economic
pressures, the duration of the stages involved in the
implementation, the momentum of success from stage to stage,
and the acceptability of the Court’s action at all times by
those involved in or affected by it. [163 E-G]
5:5. An activist Court spearheading the movement for
the development and extension of the citizen’s
constitutional rights, for the protection of individual
liberty and for the strengthening of the socioeconomic
fabric in compliance with declared constitutional
objectives, will need to move with a degree of judicial
circumspection. In the centre of a social order changing
with dynamic pace, the Court needs to balance the authority
of the past with the urges of the future. In that task the
court must ever be conscious of the constitutional truism
that it possesses the sanction of neither the sword nor the
pursue and that its strength lies basically in public
confidence and support, and that consequently the legitimacy
of its acts and decisions must remain beyond all doubt.
Therefore, whatever the case before it, whatever the context
of facts and legal rights, whatever the social and economic
pressures of the times, whatever the personal philosophy of
the Judge, let it not be forgotten that the essential
identity of the institution, that it is a Court, must remain
preserved so that every action of the Court is informed by
the fundamental norms of law, and by the principles embodied
in the Constitution and other sources of law. If its
contribution to the Jurisprudential ethos of society is to
advance our constitutional objectives, it must function in
accord with only those principles which enter into the
composition of judicial action and give to its essential
quality. [163 H; 164 A-D]
5:6. There is a great merit in the Court proceeding to
decide an issue on the basis of strict legal principle and
avoiding carefully the influence of purely emotional appeal.
For that alone gives the decision of the Court a direction
which is certain, and unfaltering, and that especial
permanence in legal jurisprudence which makes it a base for
the next step forward in the further progress of the law.
Indeed, both certainty of substance and certainty of
direction are indispensable requirements in the development
of the law, and invest it with the credibility which
commands public confidence in its legitimacy. [165 A-B]
This warning is of especial significance in these
times, during a phase of judicial history when a few social
action groups tend to show evidence of presuming that in
every case the court must bend and mould its decision to
popular notions of which way a case should be decided. [165
C]
As new areas open before the Court with modern
developments in jurisprudence, in a world more sensitive to
human rights as well as the impact of technological
progress, the Court will become increasingly consious of its
expanding jurisdiction. That is inevitable. But its
responsibilities are correspondingly great, and perhaps
never greater than now. [165 D]
86
It must be remembered that there is no higher Court to
correct over the Supreme Court its errors, and that its
Judge wear the mantle of infallibility only because their
decisions are final. That the Judges sit at the apex of the
judicial administration and their word, by constitutional
mandate, is the law of the land can induce an unusual sense
of power. It is a feeling Judges must guard against by
constantly reminding themselves that every decision must be
guided by reason and by judicial principles. [65 E-F]
6:1. Persons in this country obliged to serve as bonded
labour are entitled to invoke Article 23 of the
Constitution. The provisions embodied in that clause form a
vital constituent of the Fundamental Rights set forth in
Part III of the Constitution, and their violation attracts
properly the scope of Article 32 of the Constitution. [165
G]
6:2. It is true that the reports of the court appointed
commissions have not been tested by cross examination, but
then the record does not show whether any attempt was made
by the respondents to call them for cross examination.
Further, whether the appointment of the commissioners falls
within the term of order XLVI of the Supreme Court Rules,
1966 is of technical significance only because there was
inherent power in the court, in the particular circumstances
of this case to take that action, However, the court would
do well to issue notice to the respondents, before
appointing any Commissioner, in those cases where there is
little apprehension of the disappearance of evidence. [166
B-C]
6:3. The present case is one of considerable importance
to a section of our people, who pressed by the twin
misfortunes of poverty and illiteracy, are compelled to a
condition of life which long since should have passed into
history. The continued existence of such pockets of
oppression and misery do no justice to the promises and
assurances extended by our Constitution to its citizens.
[166 B-E]
PER AMARENDRA NATH SEN, J: (Concurring with Pathak, J.)
1: 1. Article 32 of the Constitution is clearly
attracted to the facts of the case, as in the present case
the violation of the fundamental right of liberty of the
workmen who are said to be kept in wrongful and illegal
detention, employed in forced labour, is alleged. Forced
labour is constitutionally forbidden by Article 23 of the,
Constitution. [168 D-E]
1:2. Any person who is wrongfully and illegally
employed as a labourer in violation of the provisions of the
Bonded Labour System (Abolition) Act, 1976 is in essence
deprived of his liberty. A bonded labourer truly becomes a
slave and the freedom of a bonded labourer in the matter of
his employment and movement is more or less completely taken
away and forced labour is thrust upon him. When any bonded
labourer approached this Court the real grievance that he
makes is that he should be freed from this bondage and he
prays for being set at liberty and liberty is no doubt a
fundamental right guaranteed to every person under the
Constitution. There cannot be any manner of doubt that any
person who is wrongfully and illegally detained and is
deprived of his liberty can approach this Court under
Article 32 of the Constitution for his freedom and wrongful
and illegal detention, and for being set at liberty.
Whenever any person is wrongfully and illegally deprived of
his liberty, it is open to anybody who is interested in the
person to move this Court under Article 32 of the
Constitution for his release. It may not very often be
possible for the person who is deprived of his liberty to
87
approach this Court, as by virtue of such illegal and
wrongful detention, he may not be free and in a position to
move the Supreme Court. [167 E-H]
1:3. The Bonded labourers working in the far away
places are generally poor and belong to the very weak
section of the people. They are also not very literate and
they may not be conscious of their own rights. Further, as
they are kept in bondage their freedom is also restricted
and they may not be in a position to approach this Court.
Though no fundamental right of the petitioner may be said to
be infringed, yet the petitioner who complains of the
violation of the fundamental right of the workmen who have
been wrongfully and illegally denied their freedom and
deprived of their constitutional right must be held to be
entitled to approach this Court on behalf of the bonded
labourers for removing them from illegal bondage and
deprivation of liberty. [168 B-C]
S.P. Gupta v. Union of India & Another, [1981] Suppl.
S.C.C. 87, referred to
2:1. Article 32 or for that matter any other article
does not lay down any procedure which has to be followed to
move this Court for relief against the violation of any
fundamental right. Article 32 (1) only lays down that the
right to move this court by appropriate proceedings for
enforcement of fundamental rights is guaranteed. The
Constitution very appropriately leaves the question as to
what will constitute an appropriate proceeding for the
purpose of enforcement of fundamental rights to be
determined by the Court. This Court when sought to be moved
under Article 32 by any party for redressing his grievance
against the violation of-fundamental rights has to consider
whether the procedure followed by the party is appropriate
enough to entitle the court to proceed to act on the same.
No doubt this Court has framed rules which are contained in
part IV, Order XXXV of the Supreme Court Rules under the
Caption “application for enforcement of fundamental rights”
(“Article 32 of the Constitution”) Generally speaking, any
party who seeks to move this Court under Article 32 of the
Constitution should conform to the rules prescribed. The
rules lay down the procedure which is normally to be
followed in the matter of any application under Article 32
of the Constitution. These rules are rules relating to the
procedure to be adopted and the rules are intended to serve
as maids to the Deity of Justice. Procedural law which also
forms a part of the law and has to be observed, is, however,
subservient to substantive law and the laws of procedure are
prescribed for promoting and furthering the ends of justice.
There cannot be any doubt that this Court should usually
follow the procedure laid down in O.XXXV of the Rules of
this Court and should normally insist on a petition properly
verified by an affidavit to be filed to enable the Court to
take necessary action on the same. Though this Court should
normally insist on the rules of procedure being followed, it
cannot be said, taking into consideration the nature of
right conferred under Article 32 to move this Court by an
appropriate proceeding and the very wide powers conferred on
this Court for granting relief in the case of violation of
fundamental rights, that this Court will have no
jurisdiction to entertain any proceeding which may not be in
conformity with procedure prescribed by the Rules of this
Court. The Rules undoubtedly lay down the procedure which is
normally to be followed for making an application under
Article 32 of the Constitution. They, however, do not and
cannot have the effect of limiting the jurisdiction of this
Court of entertaining a proceeding under Article 32 of the
Constitution, if made, only in the manner prescribed by the
rules. [169 F-H; 170 A-D]
88
2:2. For effectively safeguarding the fundamental
rights guaranteed by the Constitution, the Court in
appropriate cases in the interests of justice will certainly
be competent to treat a proceeding, though not in conformity
with the procedure prescribed by the Rules of this Court, as
an appropriate proceeding under Article 32 of the
Constitution and to entertain the same. Fundamental rights
guaranteed under the Constitution are indeed too sacred to
be ignored or trifled with merely on the ground of
technicality or any rule of procedure. The rules framed by
this Court do not also lay down that this Court can be moved
under Article 32 of the Constitution only in accordance with
the procedure prescribed by the Rules and not otherwise. A
mere technicality in the matter of form or procedure which
may not in any way affect the substance of any proceeding
should not stand in the way of the exercise of the very wide
Jurisdiction and powers conferred on this Court under
Article 32 of the Constitution for enforcement of
fundamental rights guaranteed under the Constitution. Taking
into consideration the substance of the matter and the
nature of allegations made, it will essentially be a matter
for the court to decide whether the procedure adopted can be
considered to be an appropriate proceeding within the ambit
of Article 32 of the Constitution. The Court if satisfied on
the materials placed in the form of a letter or other
communication addressed to this Court, may take notice of
the same in appropriate cases. Experience shows that in many
cases it may not be possible for the party concerned to file
a regular writ petition in conformity with procedure laid
down in the Rules of this Court. The Supreme Court for quite
some years now has in many cases proceeded to act on the
basis of the letters addressed to it. A long standing
practice of the Court in the matter of procedure also
acquired sanctity. Further in various cases the Court has
refused to take any notice of letters or other kind of
communications addressed to Court and in many cases also the
Court on being moved by a letter has directed a formal writ
petition to be filed before it has decided to proceed
further in the matter. [170 F-H; 171 A-D]
2:3. It is however eminently desirable that normally
the procedure prescribed in the rules of this Court should
be followed while entertaining a petition under Article 32
of the Constitution, though in exceptional cases and
particularly in the matter of general public interest, this
Court may, taking into consideration the peculiar facts and
circumstances of case, proceed to exercise its jurisdiction
under Article 32 of the Constitution for enforcement of
fundamental rights treating the letter or the communication
in any other form as an appropriate proceeding under Art. 32
of the Constitution. Further any party who addresses a
letter or any other communication to this Court seeking
intervention of this Court on the basis of the said letter
and communication should address this letter or
communication to this Court and not to any individual Judge
by name. Such communication should be addressed to the Chief
Justice of the Court and his companion Justices. A private
communication by a party to any Learned Judge over any
matter is not proper and may create embarrassment for the
Court and the Judge concerned. [171 G-H; 172 A]
In the present case, the unfortunate workers who are
employed and bonded labourers at a distant place, could not
possibly in view of their bondage, move this Court,
following the procedure laid down-in the Rules of this
Court. The Petitioner which claims to be a social welfare
Organization interested in restoring liberty and dignity to
these unfortunate bonded labourers should be considered
competent to move this Court by a letter or like
communication addressed to
89
this Court, to avoid trouble and expenses, as the petitioner
is not moving this Court for any personal or private
benefit.
3:1. Whenever, however, there is an allegation of
violation of fundamental rights, it becomes the
responsibility and also the sacred duty of this Court to
protect such fundamental rights guaranteed under the
Constitution provided that this Court is satisfied that a
case for interference by this Court appears prima facie to
have been made out. Very often the violation of fundamental
rights is not admitted or accepted. On a proper
consideration of the materials the Court has to come to a
conclusion whether there has been any violation of
fundamental rights to enable the court to grant appropriate
reliefs in the matter. In various cases, because of the
peculiar facts and circumstances of the case the party
approaching this Court for enforcement of fundamental rights
may not be in a position to furnish all relevant materials
and necessary particulars. If, however, on a consideration
of the materials placed, the Court is satisfied that a
proper probe into the matter is necessary in the larger
interest of administration of justice and for enforcement of
fundamental rights guaranteed, the Court, in view of the
obligations and duty cast upon it of preserving and
protecting fundamental rights, may require better and
further materials to enable the Court to take appropriate
action; and there cannot be anything improper in the proper
exercise of Court’s jurisdiction under Article 32 of the
Constitution to try to secure the necessary materials
through appropriate agency. The commission that the Court
may appoint or the investigation that the court may direct
is essentially for the Court’s satisfaction as to the
correctness or otherwise of the allegation of violation of
fundamental rights to enable the Court to decide the Course
to be adopted for doing proper justice to the parties in the
matter of protection of their fundamental rights. It has to
be borne in mind that in this land of ours, there are
persons without education, without means and without
opportunities and they also are entitled to full protection
of their rights or privileges which the Constitutions
affords. Living in chilled penury without necessary
resources and very often not fully conscious of their rights
guaranteed under the Constitution, a very large section of
the people commonly termed as the weaker section live in
this land. When this Court is approached on behalf of this
class of people for enforcement of fundamental rights of
which they have been deprived and which they are equally
entitled to enjoy, it becomes the special responsibility of
the Court to see that justice is not denied to them and the
disadvantageous position in which they are placed, do not
stand in the way of their getting justice from this Court.
[172 D-H; 173 A-B]
3:3. The power to appoint a commission or an
investigation body for making enquiries in terms of
directions given by the Court must be considered to be
implied and inherent in the power that the Court has under
Article 32 for enforcement, of the fundamental rights
guaranteed under the Constitution. This is a power which is
indeed incidental or ancillary to the power which the Court
is called upon to exercise in a proceeding under Article 32
of the Constitution. It is entirely in the discretion of the
Court, depending on the facts and circumstances of any case,
to consider whether any such power regarding investigation
has to be exercised or not. The Commission that the Court
appoints or the investigation that the Court directs while
dealing with a proceeding under Article 32 of the
Constitution is not a commission or enquiry under the Code
of Civil Procedure. Such power must necessarily be held to
be implied within the very wide powers conferred on this
Court under Article 32 for enforcement of fundamental
rights.
90
For proper exercise of its powers under Article 32 of the
Constitution and for due discharge of the obligation and
duty cast upon this Court in the matter of protection and
enforcement of fundamental rights which the Constitution
guarantees, this Court has an inherent power to act in such
a manner as will enable this Court to discharge its duties
and obligations under Article 32 of the Constitution
properly and effectively in the larger interest of
administration of justice, and for proper protection of
Constitution safeguards. [173 C-G]
4. The litigation of this type particularly in relation
to bonded labourers is really not in nature an adversary
litigation and it becomes the duty of the State and also of
the appropriate authorities to offer its best cooperation to
see that this evil practice which has been declared illegal
is ended at the earliest. The existence of bonded labour in
the Court is an unfortunate fact. Whenever there is an
allegation of the existence of bonded labour in any
particular State, the State instead of seeking to come out
with a case of denial of such existence on the basis of a
feeling that the existence of bonded labour in the State may
cast a slur or stigma on its administrative machinery,
should cause effective enquiries to be made into the matter
and if the matter is pending in this Court, should cooperate
with this Court to see that death-knell is sounded on this
illegal system which constitutes a veritable social menace
and stands in the way of healthy development of the nation.
[174 A-C]
PER CONTRA :
5. The grievance of denial of other just rights to the
workmen and the reliefs claimed for giving the workmen the
benefits to which they may be entitled under various
legislations enacted for their welfare are more or less in
the nature of consequential reliefs incidental to the main
relief of freedom from bonded and forced labour to which the
workmen are rejected. In the facts and circumstances of the
case, it appears that the provisions of inter-State Migrant
Workmen (Regulation of Employment and Conditions of Service)
Act, 1979 are not applicable and therefore do not fall for
any adjudication. [174 F-G]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 2135 of 1982.
Under Article 32 of the Constitution.
Govind Mukhoty, S.K. Bhattacharya and N.R. Chaudhary
for the Petitioner.
M.N. Phadke, K.B. Rohtagi and S.K. Dhingra for the
Respondent Nos. 4,5,7, 8 & 9.
K.B. Rohtagi and S.I. Dhingra for the Respondent No. 13
S.K. Verma for the Respondent No. 6.
Abdul Khadar Sr. Advocate and Miss. A. Subhashni for
the respondent.
91
The following Judgments were delivered-
BHAGWATI, J. The petitioner is an organisation
dedicated to the cause of release of bonded labourers in the
country. The system of bonded labour has been prevalent in
various parts of the country since long prior to the
attainment of political freedom and it constitutes an ugly
and shameful feature of our national life. This system based
on exploitation by a few socially and economically powerful
persons trading on the misery and suffering of large numbers
of men and holding them in bondage is a relic of a feudal
hierarchical society which hypocritically proclaims the
divinity of men but treats large masses of people belonging
to the lower rungs of the social ladder or economically
impoverished segments of society as dirt and chattel. This
system under which one person can be bonded to provide
labour to another for years and years until an alleged debt
is supposed to be wiped out which never seems to happen
during the life time of the bonded labourer, is totally
incompatible with the new egalitarian socioeconomic order
which we have promised to build and it is not only an
affront to basic human dignity but also constitutes gross
and revolting violation of constitutional values. The
appalling conditions in which bonded labourers live, not as
humans but as serfs, recall to the mind the following lines
from “Man with the Hoe” which almost seem to have been
written with reference to this neglected and forlorn species
of Indian humanity:
“Bowed by the weight of centuries he leans
Upon his hoe and gazes on the ground
The emptiness of ages on his face,
And on his back the burden of the world,
They are non-beings, exiles of civilization, living a
life worst than that of animals, for the animals are at
least free to roam about as they like and they can plunder
or grab food whenever they are hungry but these out castes
of society are held in bondage, robbed of their freedom and
they are consigned to an existence where they have to live
either in hovels or under the open sky and be satisfied with
whatever little unwholesome food they can manage to get
inadequate though it be to fill their hungry stomachs. Not
having any choice, they are driven by poverty and hunger
into a life of bondage a dark bottomless pit from which, in
a cruel exploitative society, they cannot hope to be
rescued.
This pernicious practice of bonded labour existed in
many
92
States and obviously with the ushering in of independence it
could not be allowed to continue to blight the national life
any longer and hence, when we framed our Constitution, we
enacted Article 23 of the Constitution which prohibits
“traffic in human beings and beggar and other similar forms
of forced labour” practised by any one. The system of bonded
labour therefore stood prohibited by Article 23 and there
could have been no more solemn and effective prohibition
than the one enacted in the Constitution in Article 23. But,
it appears that though the Constitution was enacted as far
back as 26th January, 1950 and many years passed since then,
no serious effort was made to give effect to Article 23 and
to stamp out the shocking practice of to bonded labour. It
was only in 1976 that Parliament enacted the Bonded Labour
System (Abolition) Act, 1976 providing for the abolition of
bonded labour system with a view to preventing the economic
and physical exploitation of the weaker sections of the
people. But, unfortunately, as subsequent events have shown
and that is borne out also by the Report made by the Centre
for Rural Development Administration, Indian Institute of
Public Administration to the Ministry of Labour Government
of India on “Rehabilitation of Bonded Labour in Monghyr
District, Bihar”, the Report made by the Public Policy and
Planning Division of the Indian Institute of Public
Administration to the Ministry of Labour, Government of
India on “Evaluation Study of Bonded Labour Rehabilitation
Scheme In Tehri Garhwal, U.P.”, the Report of Laxmi Dhar
Misra, the Director-General (Labour Welfare) of the
Government of India based on On the Spot Studies Regarding
Identification, Release of Bonded Labourers and
Rehabilitation of Freed Labourers in Uttar Pradesh, Madhya
Pradesh, Madhya Pradesh, Karnataka, Orissa, Bihar,
Rajasthan, Tamilnadu and Kerala and the Report of the
National Seminar on “Indentification and Rehabilitation of
Bonded Labour” held from 7th to 9th February, 1983 that the
pernicious practice of bonded labour has not yet been
totally eradicated from the national scene and that it
continues to disfigure the social and economic life of the
country at certain places. There are still a number of
bonded labourers in various parts of the country and
significantly, as pointed out in the Report of the National
Seminar on “Identification and Rehabilitation of Bonded
Labour” a large number of them belong to Scheduled Castes
and Scheduled Tribes account for the next largest number
while the few who are not from Scheduled Castes or Scheduled
Tribes are generally landless agricultural labourers. It is
absolutely essential we would unhesitatingly declare that it
is a constitutional imperative-that the bonded labourers
must be identified and released from the shackles of bondage
so that they can assimilate
93
themselves in the main stream of civilised human society and
realise the dignity, beauty and worth of human existence.
The process of identification and release of bonded
labourers is a process of discovery and transformation of
non-beings into human-beings and what it involves is
eloquently described in the beautiful lines of Rabindra Nath
Tagore in “Kadi and Komal”
Into the mouths of these
Dumb, pale and meak
We have to infuse the language of the soul.
Into the hearts of these
Weary and worn, dry and forlorn
We have to minstrel the language of humanity.’
This Process of discovery and transformation poses a
serious problem since the social and economic milieu in
which it has to be accomplished is dominated by elements
hositle to it. But this problem has to be solved if we want
to emancipate those who are living in bondage and serfdom
and make them equal participants in the fruits of freedom
and liberty. It is a problem which needs urgent attention of
the Government of India and the State Governments and when
the Directive Principles of State Policy have obligated the
Central and the State Governments to take steps and adopt
measures for the purpose of ensuring social justice to the
have-notes and the handicapped, it is not right on the part
of the concerned governments to shut their eyes to the
inhuman exploitation to which the bonded labourers are
subjected. It is not uncommon to find that the
administration in some States is not willing to admit the
existence of bonded labour, even though it exists in their
territory and there is incontrovertible evidence that it
does so exist. We fail to see why the administration should
feel shy in admitting the existence of bonded labour,
because it is not the existence of bonded labour that is a
slur on the administration but its failure to take note of
it and to take all necessary steps for the purpose of
putting an end to the bonded labour system by quickly
identifying, releasing and permanently rehabilitating bonded
labourers. What is needed is determination, dynamism and a
sense of social commitment of the part of the administration
to free bonded labourers and rehabilitate them and wipe out
this ugly inhuman practice which is a blot on our national
life. What happened recently in the Ranga Reddy District of
Andrha Pradesh as a result of the initiative taken by this
Court in Writ Petitions Nos. 1574 of 1982 and 54 of 1983
shows clearly that if the political and administrative
apparatus has a sense of commitment to the constitutional
values
94
and is determined to take action for identifying, releasing
and rehabilitating bonded labourers despite pressures and
pulls from different quarters, much can be done for securing
emancipation and rehabilitation of bonded labourers. The
District Administration of Ranga Reddy District could in
less than six months release over 3000 bonded labourers from
the clutches of contractors in stone quarries in Ranga Reddy
District and send them back to their homes with tickets and
pocket expenses. It is therefore essential that whichever be
the State Government it should, where there is bonded
labour, admit the existence of such bonded labour and make
all possible efforts to eradicate it. By doing so, it will
not only be performing a humanitarian function but also
discharging a constitutional obligation and strengthening
the foundations of participatory democracy in the country.
We also find that in some cases the State Governments
in order to shirk their obligation, take shelter under the
plea that there may be some forced labour in their State but
that is not bonded labour. We shall have occasion to deal
with this plea a little later when we refer to the
definition of ‘bonded labour’ given in the Bonded Labour
System (Abolition) Act, 1976 which at first blush appears to
be a narrow definition limited only to a situation where a
debtor is forced to provide labour to a creditor. The State
of Haryana has in the present case tried to quibble with
this definition of ‘bonded labour’ and its argument has been
that these labourers may be providing forced labour but they
are not bonded labourers within the meaning of the Bonded
Labour System (Abolition) Act, 1976 and they may therefore
be freed by the Court if it so pleases but the State of
Haryana cannot be compelled to rehabilitate them. We are
constrained to observe that this argument, quite apart from
its invalidity, ill-behoves a State Government which is
committed to the cause of socialism and claims to be
striving to ensure social justice to the vulnerable sections
of the community. But we do not wish to anitcipate the
discussion in regard to this argument and at the present
stage we content ourselves by merely observing that it is
unfortunate that any State Government should take up the
plea that persons who are forced to provided labour may be
forced labourers but unless it is shown by them by proper
evidence tested by cross-examination that they are forced to
provide labour against a bonded debt, they cannot be said to
be bonded labourers and the State Government cannot be held
to be under any obligation to rehabilitate them.
The petitioner made a survey of some of the stone
quarries in
95
Faridabad district near the city of Delhi and found that
there were a large number of labourers from Maharashtra,
Madhya Pradesh, Uttar Pradesh and Rajasthan who were working
in these stone quarries under “inhuman and intolerable
conditions” and many of whom were bonded labourers. The
petitioner therefore addressed a letter to one of us on 25th
February, 1982 pointing out that in the mines of Shri S.L.
Sharma, Gurukula Indra Prastha, Post Amar Nagar, Faridabad,
District, a large number of labourers were languishing under
abject conditions of bondage for last about ten years, and
the petitioner gave the names of 11 bonded labourers who
were from village Asarha, Barmer district of Rajasthan, 7
bonded labourers who were from village Bharol, district
Jhansi of Madhya Pradesh and 23 bonded labourers who were
from village Barodia, Bhanger, Tehsil Khurai, district
Sagar, M.P. The petitioner pointed out that there were “yet
another 14 bonded labourers from Lalitpur in U.P.”. The
petitioner also annexed to its letter, statements in
original bearing the thumb marks or signatures as the case
may be of these bonded labourers referred to in the letter.
The petitioner pointed out in the letter that the labourers
working in these stone quarries were living under the most
inhuman conditions and their pitiable lot was described by
the petitioner in the following words:
“Besides these cases of bonded labour, there are
innumerable cases of fatal and serious injuries caused
due to accidents’ while working in the mines, while
dynamiting the rocks or while crushing the stones. The
stone-dust pollution near the stone crushers is so
various that many a valuable lives are lost due to
tuberculosis while others are reduced to mere skeletons
because of T.B. and other diseases. The workers are not
provided with any medical care, what to speak of
compensating the poor worker for injury or for death.
No cases are registered against the mine owners or the
lessees for violation of safety rules under Mines Act.
We are enclosing herewith the statements of about 75
workers who have suffered or are suffering continuously
due to non-implementation of the rules by the Central
Government or by Haryana Government or by the
employers.
Almost 99% of the workers are migrant from drought
prone areas of Rajasthan, Madhya Pradesh, Andhra
Pradesh, Orissa, Maharashtra and Bihar. But if there is
any one place where the Central legislation of Inter
State Migrant Workmens Act 1979 is being most
flagrantly violated it is
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here in these mines, without any residential
accommodation, with the name-not even a thatched roof
to fend against the icy winds and winter rain or
against the scorching heat in midsummer, with scanty
clothing, with very impure and polluted drinking water
accumulated during rainy season in the clitches, with
absolutely no facilities for schooling or childcare,
braving all the hazards of nature and pollution and
ill-treatment, these thousands of sons and daughters of
Mother India epitomise the “Wretched of the Earth”.
On top of all these forms of exploitation is the
totally illegal system of “Thekedars”, middlemen who
extract 30% of the poor miner’s wages as their ill
gotten commission (Rs. 20 out of Rs. 60, wages for per
truck load of stone ballast). The trucks are invariably
oversigned in some cases they doubt the prescribed size
of 150 Sq. feet but payment remains the same. The hills
are dotted with liquor vends-legal and illegal. Murders
and molestation of women is very common.”
The petitioner also set out the various provisions of
the Constitution and the statutes which were not being
implemented or observed in regard to the labourers working
in these stone quarries. The petitioner in the end prayed
that a writ be issued for proper implementation of these
provisions of the Constitution and statutes with a view to
ending the misery, suffering and helplessness of “these
victims of most inhuman exploitation”.
The letter dated 25th February 1982 addressed by the
petitioner was treated as a writ petition and by an order
dated 26th February 1982 this Court issued notice on the
writ petition and appointed two advocates, namely, M/s.
Ashok Srivastava and Ashok Panda as commissioners to visit
the stone quarries of Shri S.L. Sharma in Godhokhor
(Anangpur) and Lakkarpur in Faridabad district and to
interview each of the persons whose names were mentioned in
the letter of the petitioner as also a cross section of the
other workers with a view to finding out whether they are
willingly working in these stone quarries and also to
inquire about the conditions in which they are working. M/s.
Ashok Srivastava and Ashok Panda were directed to visit
these stone, quarries on 27th and 28th February 1982 and to
make a report to this Court on or before 2nd March 1982.
Pursuant to this order made by us, M/s. Ashok Srivastava and
Ashok Panda visited the stone quarries of S.L. Sharma in
Godhokhor and Lakkarpur and carried out the assignment
entrusted to them and submitted a
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report to this Court on 2nd March 1982. The Report pointed
out inter alia that in the stone quarries of S.L. Sharma at
Godhakhpur, “many stone crushing machines were operating
with the result that the whole atmosphere was full of dust
and it was difficult even to breathe”. The report then
referred to the statements of various workers interviewed by
M/s. Ashok Srivastava and Ashok Panda and according to the
statements given by some of them, namely, Lalu Ram, Dalla
Ram, Thakur Lal, Budh Ram, Harda, Mahadev, Smt. Shibban,
Hardev, Anam, Punnu, Ghanshyam, Randhir and Mute, they were
not allowed to leave the stone quarries and were providing
forced labour and they did not have even pure water to drink
but were compelled in most cases to drink dirty water from a
nallah and were living in Jhuggies with stones piled one
upon the other as walls and straw covering at the top, which
did not afford any protection against sun and rain and which
were so low that a person could hardly stand inside them.
The statements of these workers showed that a few of them
were suffering from tuberculosis and even when injuries were
caused due to accidents arising in the course of employment,
no compensation was being paid to them and there were no
facilities for medical treatment or schooling for children.
The Report proceeded to state that M/s. Ashok Srivastava and
Ashok Panda then visited mine no. 8 in Godhokhor stone
quarries and here they found that the condition of the
jhuggies was much worse in such as the jhuggies were made
only of straw and most of the people living in jhuggies had
no clothes to wear and were shivering from cold and even the
small children were moving about without any proper
clothing. M/s. Ashok Srivastava and Ashok Panda found that
none of the inmates of the jhuggies had any blanket or
woolen clothes and they did not even have any mat on which
they could sleep. The statements of Phool Chand, Babu Lal,
Bhoolu, Karaya, Ram Bahadur and Sallu also showed that all
these workers were bonded labourers who were not allowed to
leave the stone quarries and one of them, namely Sallu was
seriously injured on his left leg only a day before the
visit of M/s. Ashok Srivastava and Ashok Panda but be did
not hope to get any compensation “because here no one gets
any compensation for any injury”. Most of the workers
interviewed by M/s. Ashok Srivastava and Ashok Panda stated
that they got very little by way of wages from the mine
lessees or owners of stone crushers since they had to
purchase explosives with their own moneys and they had to
incur other expenses which, according to Dr. Patwardhan’s
report to which we shall refer hereafter, included 50 per
cent of the expenses of drilling holes. M/s. Ashok
Srivastava and Ashok Panda also pointed out in the Report
that the following persons working
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in the Godhokhor stone quarries claimed that they were
bonded labourers:
(1) Chand Bahadur son of Hastbir (2) Lal Bahadur son of
Umbar Bahadur (3) Chhotey Lal son of Jarau (4) Harak Bahadur
son of Jeet Bahadur (5) Gopal Bahadur son of Jhabu Singh (6)
Roop Singh son of Govinda (7) Medh Bahadur son of Aspteir
(8) Jiddey Bahadur son of Nunbahadur (9) Phool Bahadur son
of Ram Bahadur (10) Heera Bahadur son of Balbahadur (11)
Veer Bahadur son of Chhalvir (12) Nain Singh son of Lal
Bahadur (13) Lal Bahadur son of Gang Bahadur (14) Ganesh son
of Gang Bahadur (15) Amber Bahadur son of Sadhu Bahadur (16)
Hira Lal son of Atbahadur (17) Kamar Bahadur (18) Jagadh
Bahadur son of Top Bahadur (19) Gajender Bahadur son of
Shyam Lal (20) Ganga Ram son of Lal Bahadur (21) Nar Bahadur
and (22) Sant Bahadur son of Bhag Bahadur.
So far as the workers working in Lakkarpur stone
quarries were concerned, the report of M/s. Ashok Srivastava
and Ashok Panda stated that out of about 250 persons living
in straw jhuggies 100 persons hailed from Bilaspur while 150
persons belonged to Allahabad and according to the report,
100 persons coming from Bilaspur stated that they were
forcibly kept by the contractor and they were not allowed to
move out of their place and they were bonded labourers. M/s.
Ashok Srivastava and Ashok Panda described in the Report the
pitiable condition in which these workers were living in
straw jhuggies without any protection against sun and rain
and with drinking water available only from the barsati
nallah. The Report pointed out that wile M/s. Ashok
Srivastava and Ashok Panda were interviewing the workers in
the Lakkarpur stone quarry it started raining heavily and
thereupon they took shelter in one of the jhuggies ”but
inside the jhuggi it was not safe, as water was pouring
inside” and they were completely drenched inside the jhuggi.
The Report also stated that, according to these workers,
there were no medical facilities available and even where
workers were injured they did not get any medical aid. The
Report ended by cbserving that these workmen “presented a
picture of helplessness, poverty and extreme exploitation at
the hands of moneyed people” and they were found “leading a
most miserable life and perhaps beast and animal could be
leading more comfortable life than these helpless
labourers”.
Thereafter, the writ petition came up for hearing on
5th March 1982 along with another writ petition filed by the
present petitioner
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for release of some other bonded labourers and on this day
the Court made an order directing that the copies of the
Report of M/s. Ashok Srivastava and Ashok Panda should be
supplied to all the minelesses and stone crushers who are
respondents to the writ petitions so that they may have an
opportunity to file their reply to the facts found in the
Report. The Court also appointed Dr. Patwardhan of Indian
Institute of Technology to carry out a socio-legal
investigation in the following terms:
“It is necessary that a socio-legal investigation
should be carried out for the purpose of determining
what are the conditions prevailing in the various
quarries in Faridabad District and whether there are
any workmen in those quarries against their will or
without their consent and what are the conditions in
which they are living and whether any of the provisions
of the Bonded Labour System (Abolition) Act and Inter-
State Migrant Workmen (Regulation of Employment &
Conditions of Service) Act is being violated. We may
make it clear that when we are directing a socio-legal
investigation of these matters it is not in a spirit to
criticise the State Government or any of its officers
but with a view to find out the correctness of the
state of affairs so that the State Government and its
officers could take necessary steps for remedying the
situation if a state of affairs exists which is
contrary to the provisions of law and the basic human
norms. The Court can take action only after the socio-
legal investigation is carried out by some responsible
person and a copy of the report of the socio-legal
investigation is made available to the parties. We
would, therefore, request Dr. Patwardhan of I.I.T. to
be good enough to carry out a socio-legal investigation
into the aforesaid matters in the quarries in Faridabad
District a list of which will be supplied by Mr.
Mukhoty on behalf of the petitioners to Dr. Patwardhan
within’ ten days from today after giving a copy to Mr.
K.G. Bhagat, learned Counsel appearing for the State
of Haryana. Dr. Patwardhan is requested to carry out
socio-legal investigation with a view to putting
forward a scheme for improving the living conditions
for the workers working in the stone quarries and after
the scheme is submitted to us we propose to hear the
parties on the scheme with a view to evolving a final
scheme with the assistance of the State of Haryana for
the purpose of economic regeneration of these workmen.
The Court permitted Dr. Patwardhan to take the
assistance of
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any person other than the parties to the writ petition in
order to help him in his task and at the suggestion of the
Court, the State of Haryana agreed to deposit a sum of Rs.
1500 to meet the expenses of Dr. Patwardhan in carrying out
the socio-legal investigation. The Court also recorded in
its order that when it was pointed out in the Report of M/s.
Ashok Srivastava and Ashok Panda that the workers in the
stone quarries did not have any pure drinking water but were
using dirty water from the nallah for drinking purposes, Mr.
K.G. Bhagat learned Additional Solicitor General appearing
on behalf of the State of Haryana fairly stated that “though
it may not be strictly the obligation of the State
Government, the State Government will take necessary
measures for providing drinking facilities to the workmen in
the stone quarries”. The Court also directed that the
workmen whose names were set out in the writ petition and in
the Report of M/s. Ashok Srivastava and Ashok Panda and
particularly in regard to whom a separate statement had been
filed in Court on behalf of the petitioner, would be free to
go wherever they liked and they should not be restrained
from doing so by any one and “if they go to their respective
villages, the district magistrates having jurisdiction over
those villages” shall “take steps or measures to the extent
possible for rehabilitating them.”
Pursuant to this order made by the Court, the State of
Haryana deposited a sum of Rs. 1500 in Court to meet the
expenses of the socio-legal investigation and Dr. Patwardhan
embarked upon his task with the assistance of Mr. Krishan
Mahajan, the legal correspondent of the Hindustan Times. It
took some time for Dr. Patwardhan to complete his assignment
and prepare his report but having regard to the immensity of
the task, the time within which Dr. Patwardan finished the
inquiry and submitted his report was remarkably short. We
shall have occasion to refer to this Report a little latter
when we deal with the arguments advanced on behalf of the
parties, but we may point out at this stage that the report
of Dr. Patwardhan a comprehensive, well documented socio-
legal study of the conditions in which the workmen engaged
in stone quarries and stone crushers live and work and it
has made various constructive suggestions and
recommendations for the purpose of improving the living
conditions of these workmen. We are indeed grateful to Dr.
Patwardhan for carrying out this massive assignment so
efficiently and in such a short time. Dr. Patwardhan has
submitted a statement of the expenses incurred by him in
carrying out this socio-legal investigation and this
statement shows that he has incurred a total expense of Rs.
2078 which after withdrawal of the amount of Rs.
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1500 deposited by the State of Haryana, leaves a balance of
Rs. 578 to be reimbursed to Dr. Patwardhan. We are of the
view that Dr. Patwardhan should also be paid a small
honorarium of Rs. 1000. We would therefore direct the State
of Haryana to deposit a sum of Rs. 1578 with the Registry of
this Court within 4 weeks from today with liberty to Dr.
Patwardhan to withdraw the same.
Though it was stated by Shri K.G. Bhagat on behalf of
the State of Haryana that the State Government will take
necessary measures for providing drinking facilities to the
workmen in the stone quarries referred to in the writ
petition and in the report of M/s. Ashok Srivastava and
Ashok Panda, it appears that either no such measures were
taken on behalf of the State Government or even if they were
taken, they were short lived. The result was that the
workmen working in most of these stone quarries had to
remain without pure drinking water and they had to continue
“to quench their thirst by drinking dirty and filthy water”.
Whether it is the obligation of the State Government to
provide pure drinking water and if so what measures should
be directed to be taken by the State Government in that
behalf are matters which we shall presently consider. These
are matters of some importance because there can be no doubt
that pure drinking water is absolutely essential to the
health and well-being of the workmen and some authority has
to be responsible for providing it.
Before we proceed to consider the merits of the
controversy between the parties in all its various aspects
it will be convenient at this stage to dispose of a few
preliminary objections urged on behalf of the respondents.
The learned Additional Solicitor General appearing on behalf
of the State of Harynana as also Mr. Phadke on behalf of one
of the mine lessees contended that even if what is alleged
by the petitioner in his letter which has been treated as a
writ petition, is true, it cannot support a writ petition
under Article 32 of the Constitution, because no fundamental
right of the petitioner or of the workmen on whose behalf
the writ petition has been filed, can be said to have been
infringed. This contention is, in our opinion, futile and it
is indeed surprising that the State Government should have
raised it in answer to the writ petition. We can appreciate
the anxiety of the mine lessees to resist the writ petition
on any ground available to them, be it hyper-technical or
even frivolous, but we find it incomprehensible that the
State Government should urge such a preliminary objection
with a view to stifling at the thresh-hold an inquiry by the
Court as to whether the workmen are living in bondage
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and under inhuman conditions. We should have thought that if
any citizen brings before the Court a complaint that a large
number of peasants or workers are bonded serfs or are being
subjected to exploitation by a few mine lessees or
contractors or employers or are being denied the benefits of
social welfare laws, the State Government, which is, under
our constitutional scheme, charged with the mission of
bringing about a new socioeconomic order where there will be
social and economic justice for every one and equality of
status and opportunity for all, would welcome an inquiry by
the court, so that if it is found that there are in fact
bonded labourers or even if the workers are not bonded in
the strict sense of the term as defined in the Bonded Labour
System (Abolition) Act 1976 but they are made to provide
forced labour or are consigned to a life of utter
deprivation and degradation such a situation can be set
right by the State Government. Even if the State Government
is on its own inquiry satisfied that the workmen are not
bonded and are not compelled to provide forced labour and
are living and working in decent conditions with all the
basic necessities of life provided to them, the State
Government should not baulk an inquiry by the court when a
complaint is brought by a citizen, but it should be anxious
to satisfy the court and through the court the people of the
country, that it is discharging its constitutional
obligation fairly and adequately and the workmen are being
ensured social and economic justice. We have on more
occasions than one said that public interest litigation is
not in the nature of adversary litigation but it is a
challenge and an opportunity to the government and its
officers to make basic human rights meaningful to the
deprived and vulnerable sections of the community and to
assure them social and economic justice which is the
signature tune of our Constitution. The Government and its
officers must welcome public interest litigation, because it
would provide them an occasion to examine whether the poor
and the down-trodden are getting their social and economic
entitlements or whether they are continuing to ermine
victims of deception and exploitation at the hands of strong
and powerful sections of the community and whether social
and economic justice has become a meaningful reality for
them or it has remained merely a teasing illusion and a
promise of unreality, so that in case a the complaint in the
public interest litigation is found to be true, they can in
discharge of their constitutional obligation root out
exploitation and injustice and ensure to the weaker sections
their rights and entitlements. When the Court entertains
public interest litigation, it does not do so in a cavilling
spirit or in a confrontational mood or with a view to
tilting at executive authority or seeking to usurp it but
its attempt is only to ensure observance of social and
economic
103
rescue programmes, legislative as well as executive, framed
for the benefit of the have-nots and the handicapped and to
protect them against violation of their basic human rights,
which is also the constitutional obligation of the
executive. The Court is thus merely assisting in the
realisation of the constitutional objectives.
Moreover, when a complaint is made on behalf of workmen
that they are held in bondage and are working 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, it is difficult to appreciate
how such a complaint can be thrown out on the ground that it
is not violative of the fundamental right of the workmen. It
is the fundamental right of every one in this Country,
assured under the interpretation given to Article 21 by this
Court in Francis Mullen’s case, to live with human dignity,
free from exploitation. This right to live with human
dignity, enshrined in Article 21 derives its life breath
from the Directive Principles of State Policy and
particularly clauses (e) and (f) of Article 39 and Article
41 and 42 and at the least, therefore, it must include
protection of the health and strength of workers men and
women, and of the tender age of children against abuse,
opportunities and facilities for children to develop in
healthy manner and in conditions of freedom and dignity,
educational facilities, just and humane conditions of work
and maternity relief. These are the minimum requirements
which must exist in order to enable a person to live with
human dignity and no State neither the Central Government
nor any State Government-has the right to take any action
which will deprive a person of the enjoyment of these basic
essentials. Since the Directive Principles of State Policy
contained in clauses (e) and (f) of Article 39, Article 41
and 42 are not enforceable in a court of law, it may not be
possible to compel the State through the judicial process to
make provision by statutory enactment or executive fiat for
ensuring these basic essentials which go to make up a life
of human dignity but where legislation is already enacted by
the State providing these basic requirements to the workmen
and thus investing their right to live with basic human
dignity, with concrete reality and content, the State can
certainly be obligated to ensure observance of such
legislation for inaction on the part of the State in
securing implementation of such legislation would amount to
denial of the right to live with human dignity enshrined in
Article 21, more so in the context of Article 256 which
provides that, the executive power of every State shall be
so exercised as to ensure compliance with the laws made by
Parliament
104
and any existing laws which apply in that State. We have
already pointed out in Asiad Construction Worker(1) case
that the State is under a constitutional obligation to see
that there is no violation of the fundamental right of any
person, particularly when he belongs to the weaker sections
of the community and is unable to wage a legal battle
against a strong and powerful opponent who is exploiting
him. The Central Government is therefore bound to ensure
observance of various social welfare and labour laws enacted
by Parliament for the purpose of securing to the workmen a
life of basic human dignity in compliance with the Directive
Principles of State Policy. It must also follow as a
necessary corollary that the State of Haryana in which the
stone quarries are vested by reason of Haryana Minerals
(Vesting of Rights) Act 1973 and which is therefore the
owner of the mines cannot while giving its mines for stone
quarrying operations, permit workmen to be denied the
benefit of various social welfare and labour laws enacted
with a view to enabling them to live a life of human
dignity. The State of Haryana must therefore ensure that the
mine-lessees or contractors, to whom it is giving its mines
for stone quarrying operations, observe various social
welfare and labour laws enacted for the benefit of the
workmen. This is a constitutional obligation which can be
enforced against the Central Government and the State of
Haryana by a writ petition under Article 32 of the
Constitution.
The next preliminary objection urged by the learned
Additional Solicitor General on behalf of the State of
Haryana and Mr. Phadke on behalf of one of the mine-lessees
was that the court had no power to appoint either Mr. Ashok
Srivastava and Mr. Ashok Panda or Mr. Patwardhan as
commissioners and the Reports made by them had no
evidentiary value since what was stated in the Reports was
based only on ex-parte statements which had not been tested
by cross-examination. The learned Additional Solicitor
General as also Mr. Phadke relied on Order XLVI of the
Supreme Court Rules 1966 which, as its heading shows, deals
with commissions and contended that since the commissions
issued by the court in the present case did not fall within
the terms of any of the provisions of Order XLVI, they were
outside the scope of the power of the court and the court
was not entitled to place any reliance on their reports for
the purpose of adjudicating the issues arising in the writ
petition. This argument, plausible though it may seem at
first sight, is in our opinion not well founded and must be
rejected. It is based upon a total misconception of the
105
true nature of a proceeding under Article 32 of the
Constitution. Article 32 is so frequently used by lawyers
and Judges for enforcement of fundamental rights without any
preliminary objection against its invocation being raised on
behalf of the State, that we have rarely any occasion to
examine its language and consider how large is the width and
amplitude of its dimension and range. We are so much
accustomed to the concepts of Anglo-Saxon jurisprudence
which require every legal proceeding including a proceeding
for a high prerogative writ to be cast in a rigid or
definitive mould and insist on observance of certain well
settled rules of procedure, that we implicitly assume that
the same sophisticated procedural rules must also govern a
proceeding under Article 32 and the Supreme Court cannot
permit itself to be freed from the shackles of these rules
even if that be necessary for enforcement of a fundamental
right. It was on the basis of this impression fostered by
long association which the Anglo-Saxon system of
administration of justice that for a number of years this
court had taken the view that it is only a person whose
fundamental right is violated who can approach the Supreme
Court for relief under Article 32 or in other words, he must
have a cause of action for enforcement of his fundamental
right. It was only in the years 1981 in the Judges
Appointment and Transfer Case(1) that this Court for the
first time took the view that where a person or class of
persons to whom legal injury is caused by reason of
violation of a fundamental right is unable to approach the
court for judicial redress on account of poverty or
disability or socially or economically disadvantaged
position, any member of the public acting bona fide can move
the court for relief under Article 32 and a fortiorari, also
under Article 226, so that the fundamental rights may become
meaningful not only for the rich and the well-to-do who have
the means to approach the court but also for the large
masses of people who are living a life of want and
destitution and who are by reason of lack of awareness,
assertiveness and resources unable to seek judicial redress.
This view which we took in the Judges Appointment and
Transfer Case is clearly within the terms of Article 32 if
only we look at the language of this Article uninfluenced
and uninhibited by any pre-conceptions and prejudices or any
pre-conceived notions. Article 32 in so far it is material
is in the following terms:
“Art. 32 (1): The right to move the Supreme Court
by appropriate proceedings for the
enforcement of the rights conferred
by this Part is guaranteed.
106
(2): The Supreme Court shall have power
to issue directions or orders or
writs including writ in the nature
of habeas corpus, mandamus,
prohibition, quo warranto and
certiorari, whichever may be
appropriate, for the enforcement of
any of the rights conferred by this
Part.
While interpreting Article 32, it must be borne in mind
that our approach must be guided not by any verbal or
formalistic canons of construction but by the paramount
object and purpose for which this Article has been enacted
as a Fundamental Right in the Constitution and its
interpretation must receive illumination from the trinity of
provisions which permeate and energies the entire
Constitution namely, the Preamble, the Fundamental Rights
and the Directive Principles of State Policy. Clause (1) of
Article 32 confers the right to move the Supreme Court foe
enforcement of any of the fundamental rights, but it does
not say as to who shall have this right to move the Supreme
Court nor does it say by what proceedings the Supreme Court
may be so moved. There is no limitation in the words of
Clause (1) of Article 32 that the fundamental right which is
sought to be enforced by moving the Supreme Court should be
one belonging to the person who moves the Supreme Court nor
does it say that the Supreme Court should be moved only by a
particular kind of proceeding. It is clear on the plain
language of clause (1) of Article 32 that whenever there is
a violation of a fundamental right any one can move the
Supreme Court for enforcement of such fundamental right. Of
course, the Court would not, in exercise of its discretion,
intervene at the instance of a meddlesome interloper or busy
body and would ordinarily insist that only a person whose
fundamental right is violated should be allowed to activise
the court, but there is no fetter upon the power of the
court to entertain a proceeding initiated by any person
other than the one whose fundamental right is violated,
though the court would not ordinarily entertain such a
proceeding, since the person whose fundamental right is
violated can always approach the court and if he does not
wish to seek judicial redress by moving the court, why
should some one else be allowed to do so on his behalf. This
reasoning however breaks down when we have the case of a
person or class of persons whose fundamental right is
violated but who cannot have resort to the court on account
of their poverty or disability or socially or economically
disadvantaged position and in such a case, therefore, the
court can and must allow any member of the public acting
bona fide to espouse the cause of such
107
person or class of persons and move the court for judicial
enforcement of the fundamental right of such person or class
of persons. This does not violate, in the slightest measure,
the language of the constitutional provision enacted in
clause (1) of Article 32.
Then again clause (1) of Article 32 says that the
Supreme Court can be moved for enforcement of a fundamental
right by any ‘appropriate’ proceeding. There is no
limitation in regard to the kind of proceeding envisaged in
clause (1) of Article 32 except that the proceeding must be
“appropriate” and this requirement of appropriateness must
be judged in the light of the purpose for which the
proceeding is to be taken, namely, enforcement of a
fundamental right. The Constitution makers deliberately did
not lay down any particular form of proceeding for
enforcement of a fundamental right nor did they stipulate
that such proceeding should conform to any rigid pattern or
straight jacket formula as, for example, in England, because
they knew that in a country like India where there is so
much of poverty, ignorance, illiteracy, deprivation and
exploitation, any insistence on a rigid formula of
proceeding for enforcement of a fundamental right would
become self-defeating because it would place enforcement of
fundamental rights beyond the reach of the common man and
the entire remedy for enforcement of fundamental rights
which the Constitution makers regarded as so precious and
invaluable that they elevated it to the status of a
fundamental right, would become a mere rope of sand so far
as the large masses of the people in this country are
concerned. The Constitution makers therefore advisedly
provided in clause (1) of Article 32 that the Supreme Court
may be moved by any ‘appropriate’ proceeding, ‘appropriate’
not in terms of any particular form but ‘appropriate’ with
reference to the purpose of the proceeding. That is the
reason why it was held by this Court in the Judges
Appointment and Transfer Case (supra) that where a member of
the public acting bona fide moves the Court for enforcement
of a fundamental right on behalf of a person or class of
persons who on account of poverty or disability or socially
or economically disadvantaged position cannot approach the
court for relief, such member of the public may move the
court even by just writing a letter, because it would not be
right or fair to expect a person acting pro bono publico to
incur expenses out of his own pocket for going to a lawyer
and preparing a regular writ petition for being filed in
court for enforcement of the fundamental right of the poor
and deprived sections of the community and in such a case, a
letter addressed by him can legitimately be regarded as an
“appropriate” proceeding.
108
But the question then arises as to what is the power
which may be exercised by the Supreme Court when it is moved
by an “appropriate” proceeding for enforcement of a
fundamental right. The only provision made by the
Constitution makers in this behalf is to be found in clause
(2) of Article 32 which confers power on the Supreme Court
“to issue directions or orders or writs including writs in
the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, which-ever may be appropriate, for
enforcement of any of the fundamental rights. It will be
seen that the power conferred by clause (2) of Article 32 is
in the widest terms. It is not confined to issuing the high
prerogative writs of habeas corpus, mandamus, prohibition,
certiorari and quo quarranto, which are hedged in by strict
conditions differing from one writ to another and which to
quote the words spoken by Lord Atkin in United Australia
Limited v. Barclays Bank Ltd. in another context often
“stand in the path of justice Clanking their mediavel
chains”. But it is much wider and includes within its
matrix, power to issue any directions, orders or writs which
may be appropriate for enforcement of the fundamental right
in question and this is made amply clear by the inclusive
clause which refers to in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari. It is
not only the high prerogative writs of mandamus, habeas
corpus, prohibition, quo warranto and certiorari which can
be issued by the Supreme Court but also writs in the nature
of these high prerogative writs and therefore even if the
conditions for issue of any of these high prerogative writs
are not fulfilled, the Supreme Court would not be
constrained to fold its hands in despair and plead its
inability to help the citizen who has come before it for
judicial redress, but would have power to issue any
direction, order or writ including a writ in the nature of
any high prerogative writ. This provision conferring on the
Supreme Court power to enforce the fundamental rights in the
widest possible terms shows the anxiety of the Constitution
makers not to allow any procedural technicalities to stand
in the way of enforcement of fundamental rights. The
Constitution makers clearly intended that the Supreme Court
should have the amplest power to issue whatever direction,
order or writ may be appropriate in a given case for
enforcement of a fundamental right. But what procedure shall
be followed by the Supreme Court in exercising the power to
issue such direction, order or writ ? That is a matter on
which the Constitution is silent and advisedly so, because
the Constitution makers never intended to fetter the
discretion of the Supreme Court to evolve a procedure
appropriate in the circums-
109
tances of a given case for the purpose of enabling it to
exercise its power of enforcing a fundamental right. Neither
clause (2) of Article 32 nor any other provision of the
Constitution requires that any particular procedure shall be
followed by the Supreme Court in exercising its power to
issue an appropriate direction, order or writ. The purpose
for which the power to issue an appropriate direction, order
or writ is conferred on the Supreme Court is to secure
enforcement of a fundamental right and obviously therefore,
whatever procedure is necessary for fulfillment of the
purpose must be permissible to the Supreme Court. It is not
at all obligatory that an adversarial procedure, where each
party produces his own evidence tested by cross examination
by the other side and the judge sits like an umpire and
decides the case only on the basis of such material as may
be produced before him by both parties, must be followed in
a proceeding under Article 32 for enforcement of a
fundamental right. In fact, there is no such constitutional
compulsion enacted in clause (2) of Article 32 or in any
other part of the Constitution. It is only because we have
been following the adversarial procedure for over a century
owing to the introduction of the Anglo-Saxon system of
jurisprudence under the British Rule that it has become a
part of our conscious as well as sub-conscious thinking that
every judicial proceeding must be cast in the mould of
adversarial procedure and that justice cannot be done unless
the adversarial procedure is adopted. But it may be noted
that there is nothing sacrosanct about the adversarial
procedure and in fact it is not followed in many other
countries where the civil system of law prevails. The
adversarial procedure with evidence led either party and
tested by cross-examination by the other party and the judge
playing a passive role has become a part of our legal system
because it is embodied in the Code of Civil Procedure and
the Indian Evidence Act. But these statutes obviously have
no application where a new jurisdiction is created in the
Supreme Court for enforcement of a fundamental right. We do
not think we would be justified in imposing any restriction
on the power of the Supreme Court to adopt such procedure as
it thinks fit in exercise of its new jurisdiction, by
engrafting adversarial procedure on it. when the
Constitution makers have deliberately chosen not to insist
on any such requirement and instead, left it open to the
Supreme Court to follow such procedure as it thinks
appropriate for the purpose of securing the end for which
the power is conferred, namely, enforcement of a fundamental
right. The adversarial procedure has, in fact, come in for a
lot of criticism even in the country of its origin and there
is an increasing tendency even in that country to depart
from its strict norms. Lord De lin speaking of the English
judicial system said: “If our methods were
110
as antiquated as our legal methods, we should be a bankrupt
country”. And Foster Q.C. observed : ”I think the whole
English system is non-sense. I would go to the root of it-
the civil case between two private parties is a mimic
battle……..conducted according to rules of evidence.”
There is a considerable body of juristic opinion in our
country also which believes that strict adherence to the
adversarial procedure can some times lead to injustice,
particularly where the parties are not evenly balanced in
social or economic strength. Where one of the parties to a
litigation belongs to a poor and deprived section of the
community and does not possess adequate social and material
resources, he is bound to be at a disadvantage as against a
strong and powerful opponent under the adversary system of
justice, because of his difficulty in getting competent
legal representation and more than anything els, his
inability to produce relevant evidence before the court.
Therefore, when the poor come before the court, particularly
for enforcement of their fundamental rights, it is necessary
to depart from the adversarial procedure and to evolve a new
procedure which will make it possible for the poor and the
weak to bring the necessary material before the court for
the purpose of securing enforcement of their fundamental
rights. It must be remembered that the problems of the poor
which are now coming before the court are qualitatively
different from those which have hither to occupied the
attention of the court and they need a different kind of
lawyering skill and a different kind of judicial approach.
If we blindly follow the adversarial procedure in their
case, they would never be able to enforce their fundamental
rights and the result would be nothing but a mockery of the
Constitution. We have therefore to abandon the laissez faire
approach in the judicial process particularly where it
involves a question of enforcement of fundamental rights and
forge new tools, devise new methods and adopt new strategies
for the purpose of making fundamental rights meaningful for
the large masses of people. And this is clearly permissible
on the language of clause (2) of Article 32 because the
Constitution makers while enacting that clause have
deliberately and advisedly not used any words restricting
the power of the court to adopt any procedure which it
considers appropriate in the circumstances of a given case
for enforcing a fundamental right. It is true that the
adoption of this non-traditional approach is not likely to
find easy acceptance from the generality of lawyers because
their minds are conditioned by constant association with the
existing system of administration of justice which has
become ingrained in them as a result of long years of
familiarity and experience and become part of their mental
make up and habit and they would therefore always have an
unconscious predilection for the prevailing system
111
of administration of justice. But if we want the fundamental
rights to become a living reality and the Supreme Court to
become a real sentinel on the quivive, we must free
ourselves from the shackles of outdated and outmoded
assumptions and bring to bear on the subject fresh outlook
and original unconventional thinking.
Now it is obvious that the poor and the disadvantaged
cannot possibly produce relevant material before the court
in support of their case and equally where an action is
brought on their behalf by a citizen acting pro bono
publico, it would be almost impossible for him to gather the
relevant material and place it before the court. What is the
Supreme Court to do in such a case ? Would the Supreme Court
not be failing in discharge of its constitutional duty of
enforcing a fundamental right if it refuses to intervene
because the petitioner belonging to the underprivileged
segment of society or a public spirited citizen espousing
his cause is unable to produce the relevant material before
the court. If the Supreme Court were to adopt a passive
approach and decline to intervene in such a case because
relevant material has not been produced before it by the
party seeking its intervention, the fundamental rights would
remain merely a teasing illusion so far as the poor and
disadvantaged sections of the community are concerned. It is
for this reason that the Supreme Court has evolved the
practice of appointing commissions for the purpose of
gathering facts and data in regard to a complaint of breach
of fundamental right made on behalf of the weaker sections
of the society. The Report of the commissioner would furnish
prima facie evidence of the facts and data gathered by the
commissioner and that is why the Supreme Court is careful to
appoint a responsible person as commissioner to make an
inquiry or investigation into the facts relating to the
complaint. It is interesting to note that in the past the
Supreme Court has appointed sometimes a district magistrate,
sometimes a district Judge, sometimes a professor of law,
sometimes a journalist, sometimes an officer of the court
and sometimes an advocate practising in the court, for the
purpose of carrying out an inquiry or investigation and
making report to the court because the commissioner
appointed by the Court must be a responsible person who
enjoys the confidence, of the court and who is expected to
carry out his assignment objectively and impartially without
any predilection or prejudice. Once the report of the
Commissioner is received, copies of it would be supplied to
the parties so that either party, if it wants to dispute any
of the facts or data stated in the Report, may do so by
filing an affidavit and the court then consider the report
of the commissioner and the affidavits which may have been
filed and proceed to adjudicate upon
112
the issue arising in the writ petition. It would be entirely
for the Court to consider what weight to attach to the facts
and data stated in the report of the commissioner and to
what extent to act upon such facts and data. But it would
not be correct to say that the report of the commissioner
has no evidentiary value at all, since the statements made
in it are not tested by cross-examination. To accept this
contention would be to introduce the adversarial procedure
in a proceeding where in the given situation, it is totally
inapposite. The learned Additional Solicitor General and Mr.
Phadke relied on Order XXVI of the Code of Civil Procedure
and Order XLVI of the Supreme Court Rules 1966 for the
purpose of contending that a commission can be appointed by
the Supreme Court only for the purpose of examining
witnesses, making legal investigations and examining
accounts and the Supreme Court has no power to appoint a
commission for making an inquiry or investigation into facts
relating to a complaint of violation of a fundamental right
in a proceeding under Article 32. Now it is true that Order
XLVI of the Supreme Court Rules 1966 makes the provisions of
Order XXVI of the Code of Civil Procedure, except rules 13,
14, 19, 20, 21 and 22 applicable to the Supreme Court and
days down the procedure for an application for issue of a
commission, but Order XXVI is not exhaustive and does not
detract from the inherent power of the Supreme Court to
appoint a commission, if the appointment of such commission
is found necessary for the purpose of securing enforcement
of a fundamental right in exercise of its constitutional
jurisdiction under Article 32. Order XLVI of the Supreme
Court Rules 1966 cannot in any way militate against the
power of the Supreme Court under Article 32 and in fact rule
6 of Order XLVII of the Supreme Court Rules 1966 provides
that nothing in those Rules “shall be deemed to limit or
otherwise affect the inherent powers of the court to make
such orders as may be necessary for the ends of justice.” We
cannot therefore accept the contention of the learned Addl.
Solicitor General and Mr. Phadke that the court acted beyond
its power in appointing M/s. Ashok Srivastava and Ashok
Panda as commissioners in the first instance and Dr.
Patwardhan as commissioner at a subsequent stage for the
purpose of making an inquiry into the conditions of workmen
employed in the stone quarries. The petitioner in the writ
petition specifically alleged violation of the fundamental
rights of the workmen employed in the stone quarried under
Articles 21 and 23 and it was therefore necessary for the
court to appoint these commissioners for the purpose of
inquiring into the facts related to this complaint. The
Report of M/s. Ashok Srivastava and Ashok Panda as also the
Report of Dr. Patwardhan were clearly documents having
eviden-
113
tiary value and they furnished prima facie evidence of the
facts and data stated in those Reports. Of course, as we
have stated above, it will be for us to consider what weight
we should attach to the facts and data contained in these
Reports in the light of the various affidavits filed in the
proceedings.
We may point out that what we have said above in regard
to the exercise of jurisdiction by the Supreme Court under
Article 32 must apply equally in relation to the exercise of
jurisdiction by the High Courts under Article 226, for the
latter jurisdiction is also a new constitutional
jurisdiction and it is conferred in the same wide terms as
the jurisdiction under Article 32 and the same powers can
and must therefore be exercised by the High Courts while
exercising jurisdiction under Article 226. In fact, the
jurisdiction of the High Courts under Article 226 is much
wider, because the High Courts are required to exercise this
jurisdiction not only for enforcement of a fundamental right
but also for enforcement of any legal right and there are
many rights conferred on the poor and the disadvantaged
which are the creation of statute and they need to be
enforced as urgently and vigorously as fundamental rights.
Having disposed of these preliminary objections, we
shall now proceed to consider the writ petition on merits.
But, before we turn to examine the facts of this case, we
may first consider which are the laws governing the living
and working conditions of workmen employed in the stone
quarries. The first statute to which we must refer in this
connection is the Mines Act, 1952. This Act extends to the
whole of India and therefore applies a fortiorari in the
State of Haryana. Section 2(j) defines “mine” to mean “any
excavation where any operation for the purpose of searching
for or obtaining minerals has been or is being carried on
and includes in clause (iv) “all open cast working”. The
word “minerals” has been given a very broad meaning under
section 2(jj) and it means ”all substances which can
obtained from the earth by mining, digging, drilling,
dredging, hydraulicing, quarrying or by any other
operation”. Section 2(kk) gives the definition of “open cast
working” and according to this definition, it means “a
quarry, that is to say, an excavation where any operation
for the purpose of searching for or obtaining minerals has
been or is being carried on, not being a shaft or an
excavation which extends below superjacent ground”. There
can be no doubt that according to these definitions, the
stone quarries with which we are concerned in this writ
petition constitute “mines” within the meaning of the
definition of that term in section 2(j). since they are
114
excavations where operations for the purpose of searching
for of obtaining stone by quarrying are being carried on but
they are not `open cast working’ since admittedly
excavations in the case of these stone quarries extend below
superjacent ground. But the question still remains whether
the provisions of the Mines Act 1952 apply to these stone
quarries even if they are “mines”. Section 3(1) (b) enacts
that the provisions of the Mines Act, 1952 except those
contained in sections 7, 8, 9, 44, 45 and 46 shall not apply
to any mine engaged in the extraction inter alia of kankar,
murrum, laterite boulders, gravel, shingle, building stone,
road metal and earth and therefore, if this statutory
provision stood alone without any qualification, it would
appear that barring the excepted sections, the provisions of
Mines Act 1952 would not apply to these stone quarries. But
there is a proviso to section. 3(1)(b) which is very
material and it runs as follows :
“3(1) The provisions of this Act, except those
contained in sections 7, 8, 9, 44, 45 and 46, shall not
apply to-
(b) any mine engaged in the extraction of kankar,
murrum, laterite, boulder, gravel, shingle, ordinary
sand (excluding moulding sand, glass sand and other
mineral sands), ordinary clay (excluding kaolin, china
clay, white clay or fire clay), building stone, road
metal earth, fullers earth and lime stone :
Provided that-
(i) the workings do not extend below superjacent
ground; or
(ii) where it is an open cast working-
(a) the depth of the excavation measured
from its highest to its lowest point
nowhere exceeds six metres;
(b) the number of persons employed on any
one day does not exceed fifty; and
(c) explosives are not used in connection
with the excavation.”
Since the workings in these stone quarries extend below
superjacent ground and they are not `open cast workings’ and
moreover explosives are admittedly used in connection with
the excavation,
115
the conditions set out in the proviso are not fulfilled and
hence the exclusion of the provisions of the Mines Act 1952
(other than the excepted sections) is not attracted and all
the provisions of the Mines Act 1952 apply to these stone
quarries. It may also be noted that the definition of `mine’
in section 2(j) includes in Clause (x) any premises or part
thereof in or adjacent and belonging to a mine on which any
process ancillary to the getting, dressing or preparation
for sale of minerals………..is being carried on.” Now
obviously stone crushing is a process ancillary to the
getting, dressing or preparation for sale of stone quarried
from the stone quarries and therefore if the stone crushing
activity is carried on in premises in or adjacent to a stone
quarry and it belongs to the same owner as the stone quarry,
it would be subject to the discipline of the provisions of
the Mines Act 1952 and all workmen employed in connection
with such stone crushers would be entitled to the benefit of
the provisions of that Act. It will, thus, be seen that all
the provisions of the Mines Act, 1952 are applicable to the
workmen employed in the stone quarries as also to the
workmen employed in connection with stone crushers, where
the stone crusher is situate in or adjoining to a stone
quarry and belongs to the same owner as the stone quarry.
Now the provisions of the Mines Act, 1952 which are material
are those set out in Chapters V, VI and VII, Chapter V
dealing with provisions as to health and safety, Chapter VI,
with hours and limitation of employment and Chapter VII,
with leave with wages. The provisions contained in these
three Chapters confer certain rights and benefits on the
workmen employed in the stone quarries and stone crushers
and these rights and benefits are intended to secure to the
workmen just and humane conditions of work ensuring a decent
standard of life with basic human dignity. We shall have
occasion to consider some of these rights and benefits when
we deal with the specific complaints made on behalf of the
petitioner, but we may point out at this stage that the most
important rights and benefits conferred on the workmen are
those relating to their health and safety which include
provisions as to drinking water, conservancy and injuries
arising out of accidents, in regard to which detailed
requirements are laid down in Chapters V, VI and IX of the
Mines Rules; 1955. We may also point out that the obligation
of complying with these provisions of the Mines Act, 1952
and the Mines Rules, 1955 rests on the owner, agent and
manager of every stone quarry and stone crusher, because
section 18 declares that the owner, agent and manager of
every mine shall be responsible that all operations carried
on in connection therewith are conducted in accordance with
the provisions of the Act and of the regulations, rules and
by-laws
116
and of any orders made under the Act. The `owner’ is defined
in section 2(1) of the Mines Act, 1952 to mean “any person
who is the immediate proprietor or lessee or occupier of the
mine or any part thereof………but does not include a
person who merely receives a royalty, rent or fine from the
mine or is merely the proprietor of the mine, subject to any
lease, grant or licence for the working thereof.” Since the
stone quarries in the present case are not being exploited
by the State of Haryana though it is the owner of the stone
quarries, but are being given out on lease by auction, the
mine-lessees who are not only lessees but also occupiers of
the stone quarries are the owners of the stone quarries
within the meaning of that expression as used in section
2(1) and so also are the owners of stone crushers in
relation to their establishment. The mine-lessees and owners
of stone crushers are, therefore liable under section 18 of
the Mines Act, 1952 to carry out their operations in
accordance with the provisions of the Mines Act, 1952 and
the Mines Rules, 1955 and other Rules and Regulations made
under that Act and to ensure that the rights and benefits
conferred by these provisions are actually and concretely
made available to the workmen. The Central Government is
entrusted under the Mines Act 1952 with the responsibility
of securing compliance with the provisions of that Act and
of the Mines Rules 1955 and other Rules and Regulations made
under that Act and it is the primary obligation of the
Central Government to ensure that these provisions are
complied with by the mine-lessees and stone crusher owners.
The State of Haryana is also, for reasons which we have
already discussed, under an obligation to take all necessary
steps for the purpose of securing compliance with these
provisions by the mine-lessees and owners of stone crushers.
The State of Haryana has in fact amended the Punjab Minor
Mineral Concession Rules 1964 in their application to the
State of Haryana by issuing the Punjab Minor Mineral
Concession (Haryana First Amendment) Rules 1982 on 6th
December 1982 and substituted a new clause 16 in Form F, a
new clause 13 in Form L and a new clause 10 in Form N
providing that the lessee/lessees or the
contractor/contractors, as the case may be,
“shall abide by the provisions of Mines Act, 1952
Inter State Migrant Workmen (Regulation of Employment
and Conditions of Service) Act, 1979 and the rules and
regulations framed thereunder and also the provisions
of other labour laws both Central and State as are
applicable to the workmen engaged in the mines, and
quarries relating to the provisions of drinking water,
rest shelters, dwelling houses, latrnesi
117
and first aid and medical facilities in particular and
other safety and welfare provisions in general, to the
satisfaction of the competent authorities under the
aforesaid Acts, rules and regulations and also to the
satisfaction of the District Magistrate concerned. In
the case of non-compliance of any of the provisions of
the enactments as aforesaid, the State Government or
any officer authorised by it in this behalf may
terminate the contract by giving one month’s notice
with forfeiture of security deposited or in the
alternative the State Labour Department may remedy the
breach/breaches by providing the welfare and safety
measures as provided in the aforesaid enactments at the
expense and cost of the contractor/contractors. The
amount thus spent shall be recovered from the
contractor/contractors by the Industries Department and
reimbursed to Labour Department.”
The State of Haryana is therefore, in any event, bound
to take action to enforce the provisions of the Mines Act
1952 and the Mines Rules 1955 and other Rules and
Regulations made under that Act for the benefit of the
workmen.
We may then turn to the provisions of Inter-State
Migrant Workmen (Regulation of Employment and Conditions of
Service) Act, 1979 (hereinafter referred to as the Inter-
State Migrant Workmen Act). This Act was brought into force
in the State of Haryana with effect from 2nd October 1980
and the authorities and this Act were notified on 21st July
1982. We may, therefore, proceed on the basis that the
provisions of this Act became enforceable, if not from 2nd
October 1980 at least from 21st July 1982. Now this Act by
subsection (4) of Section (1) applies to every establishment
in which five or more inter-State migrant workmen are
employed or were employed on any day of the preceding twelve
months and so also it applies to every contractor who
employs or employed five or more inter-State migrant workmen
on any day of the preceding twelve months. Section (2) sub-
section (1) Clause (b) of the Act defines contractor, in
relation to an establishment, to mean “a person who
undertakes (whether as an independent contractor, agent,
employee or otherwise) to produce a given result for the
establishment, other than a mere supply of goods and
articles of manufacture of such establishment, by the
employment of workmen or to supply workmen to the
establishment, and includes a sub-contractor, khatedar,
sardar, agent or any other person, by whatever name called,
who recruits
118
or employs workmen.” Clause (e) of sub-section (1) of
Section (2) defines “inter-State migrant workmen” to means
“any person who is recruited by or through a contractor in
one State under an agreement or other arrangement for
employment in an establishment in another State, whether
with or without the knowledge of the principal employer in
relation to such establishment.” The expression “principal-
employer” is defined by clause (g) of sub-section (1) of
Section 2 to mean “in relation to a mine, the owner or agent
of the mine and where a person has been named as the manager
of the mine, the person so named.” Obviously, therefore, the
mine-lessees and owners of stone crushers in the present
case would be principal employers within the meaning of that
expression as used in the Inter-State Migrant Workmen Act.
Section 4 provides for registration of every principal
employer of an establishment to which the Act applies and
Section 6 enacts that no principal employer of an
establishment to which this Act applies, shall employ inter-
State migrant workmen in the establishment unless a
certificate of registration in respect of such establishment
is issued under the Act in force. Similarly, Section 8 sub-
section (1) provides that with effect from such date as the
appropriate Government may be Notification in the Official
Gazette appoint no contractor to whom the Act applies shall
recruit any person in a State for the purpose of employing
him in any establishment situated in another State, except
under and in accordance with a licence issued in that behalf
by the licensing officer appointed by the Central Government
who has jurisdiction in relation to the area wherein the
recruitment is made, nor shall be employ as workmen for the
execution of any work in any establishment in any State,
persons from another State excent under and in accordance
with a licence issued in that behalf by the licensing
officer appointed by the appropriate Government having
jurisdiction in relation to the area wherein the
establishment is situated. Sub-section (2) of Section 8
declares that a licence under sub-section (1) may contain
such conditions including, in particular, the terms and
conditions of the agreement or other arrangement under which
the workmen will be recruited, the remuneration payable,
hours of work, fixation of wages and other essential
amenities in respect of the inter-State migrant workmen, as
the appropriate Government may deem fit to impose in
accordance with the Rules, if any, made under Section 35.
Section 12 imposes certain duties and obligations on
contractors which include inter alia the duty to issue to
every inter-State migrant workman a pass-book containing
various particulars regarding recruitment and employment of
the workman as also to pay to the workman the return fare
from the place of employment to the place of residence
119
in the home State when he ceases to be employed. Rule 23 of
the Inter-State Migrant Workmen (Regulation of Employment
and Conditions of Service) Central Rules 1980 (hereinafter
referred to as Inter-State Migrant Workmen Rules) sets out
certain additional particulars which must be included in the
pass-book to be issued to every inter-State migrant workmen.
Section 13 then proceeds to lay down the wage rates,
holidays, hours of work and other conditions of service of
an inter-State migrant workman and provides inter alia that
in no case shall a inter-State migrant workman be paid less
than the wages fixed under the Minimum Wages Act 1948, and
the wages shall be paid to an inter-State migrant workman in
cash. The detailed particulars in regard to wages payable to
an inter-State migrant workman are laid down in Rules 25 to
35 of the Inter-State Migrant Workmen Rules. Then follows
Section 14 which provides that there shall be paid by the
contractor to every inter-State migrant workman at the time
of recruitment, a displacement allowance and the amount of
displacement allowance shall not be refundable but shall be
in addition to the wages or other amounts payable to him.
There is also a provision made in Section 15 for payment to
an inter-State migrant workman of a journey allowance of a
sum not less than the fare from the place of residence in
his State to the place of work in the other State, both for
outward and return journeys and this Section also enacts
that the workman shall be entitled to payment of wages
during the period of such journeys as if he was on duty.
Section 16 days a duty on every contractor employing inter-
State migrant workmen in connection with the work of an
establishment to provide various other facilities
particulars of which are to be found in Rules 36 to 45 of
the Inter-State Migrant Workmen Rules. These facilities
include medical facilities, protective clothing, drinking
water, latrines, urinals and washing facilities, rest rooms,
canteens, creche and residential accommodation. The
obligation to provide these facilities is in relation to the
inter-State Migrant Workmen employed in an establishment to
which the Act applies. But this liability is not confined
only to the contractor, because Section 18 provides in so
many terms that if any allowance required to be paid under-
section 14 or 15 to an inter-State migrant Workman is not
paid by the contractor or if any facility specified in
section 16 is not provided for the benefit of such workman,
such allowance shall be paid or as the case may be, the
facility shall be provided by the principal employer within
such time as may be prescribed by the Rules and all the
allowances paid by the principal employer or all the
expenses incurred by him in this connection may be recovered
by him from the contractor either by deduction from the
amount payable to the
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contractor or as debt payable by the contractor. Section 25
& 26 make it an offence for any one to contravene any of the
provisions of the Inter-Stage Migrant Workmen Act or Inter-
State Migrant Workmen Rules and Section 30 gives over-riding
effect to the provisions of the Inter-State Migrant Workmen
Act over any other law or any agreement or contract of
service or any standing orders. These are broadly the
relevant provisions of the Inter-State Migrant Workmen Act
and the Inter-State Migrant Workmen Rules which may call for
consideration.
But the question arises whether the Inter-State Migrant
Workmen Act applies to the workmen employed in the stone
quarries and the stone crushers. Now it was not disputed on
behalf of the State of Haryana and indeed it was clear from
the Report of Dr. Patwardhan that most of the workmen
employed in the stone quarries and stone crushers come from
Uttar Pradesh, Madhya Pradesh, Rajasthan, Tamilnadu and
Andhra Pradesh and there are only a few workmen from
Haryana. It is only if 5 or more out of these workmen coming
from States other than Haryana are inter-State migrant
workmen within the meaning of that expression as defined in
Section 2 sub-section (1) clause (e) of the Inter-State
Migrant Workmen Act that the establishment in which they are
employed would be covered by the Inter-State Migrant Workmen
Act. It would therefore have to be determined in case of
each stone quarry and each stone crusher whether there are 5
or more inter-State Migrant workmen employed in the
establishment and if there are, the provisions of the inter-
State Migrant Workmen Act and the Inter-State Migrant
Workmen Rules would become applicable to such establishment.
The Union of India in a submission filed on its behalf by
Miss Subhasini has taken up the stand that the workmen
employed in the one quarries and stone crushers “are coming
to join the service in the stone quarries of their own
volition and they are not recruited by any agent for being
migrated from any State” and “as such they do not come under
the definition of the term” inter-State migrant workman. We
would have ordinarily been inclined to accept this statement
made on behalf of the Union of India, but we find that,
according to the Report of Dr. Patwardhan, the modus
operandi that is followed for the purpose of recruitment of
workmen is “that the stone crusher owners or the lessees
holders ask the thekedar or jamadar of the mine to fetch
people from various States to work in the mines” and some
times “the jamadar or thekedar communicates the need for
workers to old hands at the quarries so that they could
bring in people on their return from their villages or their
respective States”. Now
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if what has been reported by Dr. Patwardhan is true, there
can be no doubt that the workmen employed in the stone
quarries and stone crushers would be inter-State migrant
workmen. The thekedar or jamadar who is engaged by the mine
lessees or the stone-crusher owners to recruit workmen or
employ them on behalf of the mine lessees or stone crusher
owners would clearly be a ‘contractor’ within the meaning of
that term as defined in Section 2 sub-section (1) clause (b)
and the workmen recruited by or through him from other
States for employment in the stone quarries and stone
crushers in the State of Haryana would undoubtedly be inter-
State migrant workmen. Even when the thekedar or jamadar
recruits or employs workmen for the stone quarries and stone
crushers by sending word through the “old hands”, the
workmen so recruited or employed would be inter-State
migrant workmen, because the “old hands” would be really
acting as agents of the thekedar or jamadar for the purpose
of recruiting or employing workmen. The Inter-State Migrant
Workmen Act being a piece of social welfare legislation
intended to effectuate the Directive Principles of State
Policy and ensure decent living and working conditions for
the workmen when they come from other States and are in a
totally strange environment where by reason of their
poverty, ignorance and illiteracy, they would be totally
unorganised and helpless and would become easy victims of
exploitation, it must be given a broad and expansive
interpretation so as to prevent the mischief and advance
they remedy and therefore, even when the workmen are
recruited or employed by the jamadar or thekedar by
operating through the “old hands”, they must be regarded as
inter-State migrant workmen entitled to the benefit of the
provisions of the Inter-State Migrant Workmen Act and the
Inter-State Migrant Workmen Rules. The Report of Dr.
Patwardhan also points out one other aspect of the matter:
according to him, there is invariably “an understanding
between the jamadar or thekedar and the owners of stone
crushers holding leases of stone quarries as to the rate of
output of stone to be fed through the crushers” and thus the
jamadar or thekedar is clearly a ‘contractor’ of the stone
crusher owners and the workmen recruited or employed by him
on behalf of the owners of stone crushers are inter-State
migrant workmen. We entirely agree with this view put
forward by Dr. Patwardhan in his Report and we have no doubt
that if there is any agreement or understanding between the
jamadar or thekedar on the one hand and the owners of stone
crushers on the other, that the jamadar or thekedar will
ensure a certain rate of output of stone to be fed to the
stone crushers, the jamadar or thekedar would be a
‘contractor’ and the workmen recruited or employed by him on
behalf of the stone
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crusher owners would be inter-State migrant workmen. But
whether in any particular stone quarry or stone crusher the
workmen employed are inter-State migrant workmen on the
application of this test laid down by us and if so, how many
of them are such inter-State migrant workmen, is a matter
which would have to be investigated and determined and that
is what must be done if we are to make the provisions of the
Inter-State Migrant Workmen Act and the Inter-State Migrant
Workmen Rules meaningful for these workmen who are recruited
from other States and who come to the stone quarries and
stone crushers in the State of Haryana. We may point out
that in addition to the rights and benefits conferred upon
him under the Inter-State Migrant Workmen Act and the Inter-
State Migrant Workmen Rules, an inter-State migrant workman
is also, by reason of Section 21, entitled to the benefit of
the provisions contained in the Workman’s Compensation Act
1923. The Payment of Wages Act 1936, The Employees’ State
Insurance Act 1948, The Employees’ Provident Funds and Misc.
Provisions Act, 1952, and the Maternity Benefit Act 1961.
The obligation to give effect to the provisions contained in
these various laws is not only that of the jamadar or
thekedar and the mine-lessees and stone crusher owners
(provided of course there are 5 or more inter-State migrant
workmen employed in the establishment) but also that of the
Central Government because the Central Government being the
appropriate Government” within the meaning of Section
2(1)(a) is under an obligation to take necessary steps for
the purpose of securing compliance with these provisions by
the thekedar or jamadar and mine-lessees and owners of stone
crushers. The State of Haryana is also for reasons already
discussed above bound to ensure that these provisions are
observed by the thekedar or jamadar and mine-lessees and
owners of stone crushers.
We then turn to consider the provisions of the Contract
Labour (Regulation and Abolition) Act 1970 (hereinafter
referred to as the Contract Labour Act). This Act applies to
every establishment in which 20 or more workmen are employed
or were employed on any day of the preceding twelve months
as contract labour and to every contractor who employs or
who employed on any day of the preceding twelve months 20 or
more workmen. The expression “appropriate government” is
defined in Section 2 sub-section (1) clause (a) and so far
as the stone quarries and stone crushers are concerned, the
Central Government is the ‘appropriate Government’. Section
2 sub-section (1) clause (b) states that a workman shall be
deemed to be employed as “contract labour” in or in
connection with the work of an establishment when he is
hired in or in connection with the work of an establishment
when he is hired in or in connection
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with such work by or through a contractor and “contractor”
is defined in clause (c) of that sub-section to mean, in
relation to an establishment, ”a person who undertakes to
produce a given result for the establishment, other than a
mere supply of goods or articles of manufacture to such
establishment, through contract labour or who supplies
contract labour for any work of the establishment and
includes a sub-contractor”. The expression “principal
employer” is defined in clause (g) of sub-section (i) of
section 2 and for the purpose of a mine, it means the owner
or agent of the mine and therefore, so far as the stone
quarries and stone crushers are concerned, the mine lessees
and owners of stone crushers would be the principal
employers. Then there are provisions in the Contract Labour
Act for registration of establishment by every principal
employer and for licensing of every contractor to whom the
Act applies. But more importantly, Sections 16 to 19 impose
a duty on every contractor to provide canteens, rest rooms,
first aid facilities and other facilities and Section 20
enacts that if any amenity required to be provided under
section 16, 17, 18 or 19 for the benefit of the contract
labour employed in an establishment is not provided by the
contractor, such amenity shall be provided by the principal
employer and all expenses incurred by the principal employer
in providing such amenity may be recovered by the principal
employer from the contractor. Every contractor is made
responsible under-section 21 for payment of wages to each
worker employed by him as contract labour and such wages are
to be disbursed in the presence of a representative duly
authorised by the principal employer. Now if the jamadar or
thekedar in a stone quarry or stone crusher is a
‘contractor’ within the meaning of the definition of that
term in the Inter-State Migrant Workmen Act, he would a
fortiorari be a ‘contractor’ also for the purpose of
Contract Labour Act and any workmen hired in or in
connection with the work of a stone quarry or stone crusher
by or through the jamadar or thekedar would be workmen
entitled to the benefit of the provisions of the Contract
Labour Act. There are elaborate Rules made under the
Contract Labour Act called the Contract Labour (Regulation
and Abolition) Central Rules 1971 (hereinafter referred to
as the Contract Labour Rules) and these Rules not only deal
with the procedure for application and grant of registration
to a principal employer and licence to a contractor, but
also particularise the details of the various welfare and
other facilities directed to be provided to the contract
labour by Section 16, 17, 18 and 19 of the Contract Labour
Act. Where therefore the thekedar or jamadar is a
‘contractor’ and the workmen are employed as contract
labour’ within the meaning of these expres-
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sions as used in the Contract Labour Act, the contractor as
well as the principal employer would be liable to comply
with the provisions of contract Labour Act and the Contract
Labour Rules and to provide to the contract labour rights
and benefits conferred by these provisions. The Central
Government being the “appropriate government” within the
meaning of Section 12 sub-section (1) clause (a) would be
responsible for ensuring compliance with the provisions of
the Contract Labour Act and the Contract Labour Rules by the
mine-lessees and stone crusher owners and the thekedar or
jamadar. So also, for reasons which we have already
discussed while dealing with the applicability of the Mines
Act 1952 and the Inter-State Migrant Workmen Act, the State
of Haryana would be under an obligation to enforce the
provisions of the Contract Labour Act and the Contract
Labour Rules for the benefit of the workmen.
Turning to the provisions of the Minimum Wages Act
1948, there can be no doubt and indeed this was not disputed
on behalf of the respondents, that the Minimum Wages Act
1948 is applicable to workmen employed in the stone quarries
and stone crushers. The minimum wage fixed for miners by the
Notification of the Central Government dated 2nd December
1981 is Rs. 9.75 per day for those working, above the ground
and Rs. 11.25 per day for those working below the ground.
Moreover the Notification prescribes a separate minimum wage
for the occupation of a shot firer, stone breaker, stone
carrier, mud remover and water carrier. There is a minimum
wage prescribed in the Notification for each of these
occupations. The question is whether the workmen employed in
the stone quarries and stone crushers are paid minimum wage
for the work done by them. The Report of Dr. Patwardhan
alleges that the mode of payment to the workmen employed in
stone quarrying operations is such that after deduction of
the amounts spent on explosives and drilling of holes, which
amount has to be borne by the workmen out of their wages,
what is left to the workmen is less than the minimum wage.
It is also stated in the Report of Dr. Patwardhan that the
workmen employed in the stone quarries not only quarry the
stone but also carry out the work of a shot firer and a
stone breaker, though the work of a shot firer cannot be
done by them without proper training as provided in the
Mines Vocational Training Rules 1966 and for this work of a
shot firer and a stone breaker carried cut by them, they do
not get the minimum wage stipulated for the occupation of a
shot firer or a stone breaker and moreover since they are
piece-rated workers, their output falls because of the other
jobs they are required to carry out with the result that
they are deprived of the
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minimum wage which they should otherwise receive. We are not
in a position at the present stage to give a definite
finding that what is stated in the Report of Dr. Patwardhan
is true, but there can be no doubt that whatever be the mode
of payment followed by the mine lessees and stone crusher
owners, the workmen must get nothing less than the minimum
wage for the job which is being carried out by them and if
they are required to carry out additionally any of the
functions pertaining to another job or occupation for which
a separate minimum wage is prescribed, they must be paid a
proportionate part of such minimum wage in addition to the
minimum wage payable to them for the work primarily carried
out by them. We would also suggest that the system of
payment which is being followed in the stone quarries and
stone crushers, under which the expenses of the explosives
and of drilling holes are to be borne by the workmen out of
their own wages, should be changed and the explosives
required for carrying out blasting should be supplied by the
mine lessees or the jamadar or thekedar without any
deduction being made out of the wages of the workmen and the
work of drilling holes and shot firing should be entrusted
only to those who have received the requisite training under
the Mines Vocational Training Rules 1966. We would direct
the Central Government and the State of Haryana to take
necessary steps in this behalf. So far as the complaint of
the petitioner that the workmen employed in the stone
quarries and stone crushers are not being paid the minimum
was due and payable for the work carried out by them is
concerned, it is a matter which would have to be
investigated and determined in the light of the law laid
down by us.
Lastly, we must consider the provisions of the Bonded
Labour System (Abolition) Act 1976. We have already pointed
out that many of the States are not prepared to admit the
existence of bonded labour in their territories and the
State of Haryana is no exception. But in order to determine
whether there is any bonded labour in the stone quarries and
stone crushers in the Faridabad area of the State of
Haryana, it is necessary to examine some of the relevant
provisions of the Bonded Labour System (Abolition) Act 1976.
This Act was enacted with a view to giving effect to Article
23 of the Constitution which prohibits traffic in human
beings and beggar and other similar forms of forced labour.
We have had occasion to consider the true scope and
dimension of this Article of the Constitution in People’s
Union for Democratic Rights v. Union of India(1) commonly
known as
126
the Asiad workers’ case and it is not necessary for us to
say anything more about it in the present judgment. Suffice
it to state that this Act is intended to strike against the
system of bonded labour which has been a shameful scar on
the Indian social scene for decades and which has continued
to disfigure the life of the nation even after independence.
The Act was brought into force through out the length and
breadth of the country with effect from 25th October 1975,
which means that the Act has been in force now for almost 8
years and if properly implemented, it should have by this
time brought about complete identification, freeing and
rehabilitation of bonded labour. But as official, semi-
official and non-official reports show, we have yet to go a
long way in wiping out this outrage, against humanity.
Clause (d) of Section 2 defines “bonded debt” to mean an
advance obtained or presumed to have been obtained, by a
bonded labourer, under or in pursuance of, the bonded labour
system. The expression ‘bonded labourer’ is defined in
clause (f) to mean “a labourer who incurs, or has, or is
presumed to have incurred a bonded debt”. Clause (g) defines
“bonded labour system” to mean:
“the system of forced, or partly forced, labour
under which a debtor enters, or has, or is presumed to
have, entered, into an agreement with the creditor to
the effect that,-
(i) in consideration of an advance obtained by him
or by any of his lineal ascendants or descendants
(whether or not such advance is evidenced by any
document) and in consideration of the interest, if any,
due on such advance, or
(ii) in pursuance of any customary or social
obligation, or
(iii) for any economic consideration received by
him or by any of his lineal ascendants or descendants,
or he would-
(1) render, by himself or through any member of
his family, or any person dependent on him, labour or
service to the creditor, or for the benefit of the
creditor, for a specified period or for an unspecified
period, either without wages or for nominal wages, or
(2) forfeit the freedom of employment or other
means of livelihood for a specified period or for an
unspecified period,
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(3) forfeit the right to move freely throughout
the territory of India, or
(4) forfeit the right to appropriate or sell at
market value any of his property or product of his
labour or the labour of a member of his family or any
person dependent on him.”
The expression “nominal wages” is defined in clause (i)
of Section 2 to mean, in relation to any labour, a wage
which is less than-
(a) the minimum wages fixed by the Government, in
relation to the same or similar labour, under any law
for the time being in force, and
(b) where no such wage has been fixed in relation to
any form of labour, the wages that are normally paid,
for the same or similar labour to the labourers working
in the same locality.”
Section 4 is the material section which provides for
abolition of bonded labour system and it runs as follows:
“4(1) On the commencement of this Act, the bonded
labour system shall stand abolished and every bonded
labourer shall, on such commencement, stand freed and
discharged from any obligation to render any bonded
labour.
(2) after the commencement of this Act, no person
shall-
(a) make any advance under, or in pursuance of,
the bonded labour system, or
(b) compel any person to render any bonded labour
or other form of forced labour.
Section 5 invalidates any custom or tradition or any
contract agreement or other instrument by virtue of which
any person or any member of the family or dependent of such
person is required to do any work or render any service as a
bonded labourer. Section 6 provides inter alia that on the
commencement of the Act, every obligation of a bonded
labourer to repay and bonded debt or such part of any bonded
debt as remains unsatisfied immediately before such
commencement, shall be deemed to have been extinguished.
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There are certain other consequential provisions in Section
7 to 9 but it is not necessary to refer to them. Sections 10
to 12 impose a duty on every District Magistrate and every
officer to whom power may be delegated by him, to inquire
whether, after the commencement of the Act, any bonded
labour system or any other form of forced labour is being
enforced by or on behalf of, any person resident within the
local limits of his jurisdiction and if, as a result of such
inquiry, any person is found to be enforcing the bonded
labour system or any other system of forced labour, he is
required forthwith to take the necessary action to eradicate
the enforcement of such forced labour. Section 15 provides
for Constitution of a Vigilance Committee in each District
and each sub-division of a District and sets out what shall
be the composition of each Vigilance Committee. The
functions of the Vigilance Committee are set out in Section
14 and among other things, that Section provinces that the
Vigilance Committee shall be responsible inter alia to
advise the District Magistrate as to the efforts made and
action taken, to ensure that the provisions of the Act or
any Rule made thereunder are properly implemented, to
provide for the economic and social rehabilitation of the
freed bonded labourers and to keep an eye on the number of
offences of which cognizance has been taken under the Act.
Then comes Section 15 which lays down that whenever any debt
is claimed by any labourer or a Vigilance Committee to be a
bonded debt, the burden of proof that such debt is not a
bonded debt shall lie on the creditor. These are some of the
material provisions of the Bonded Labour System (Abolition)
Act 1976 which need to be considered.
It is a matter of regret that though Section 13
provides for constitution of a Vigilance Committee in each
District and each subdivision of a District, the Government
of Haryana, for some reason or the other, did not constitute
any Vigilance Committee until its attention was drawn to
this requirement of the law by this Court. It may be that
according to the Government of Haryana there were not at any
time any bonded labourers within its territories, but even
so Vigilance Committees are required by Section 13 to be
constituted because the function of the Vigilance Committee
is to identify bonded labourers, if there are any, and to
free and rehabilitate them and it would not be right for the
State Government not to constitute Vigilance Committees on
the assumption that there are no bonded labourers at all.
But we are glad to find that the Government of Haryana has
now constituted a Vigilance Committee in each District. It
does not appear from the record whether a Vigilance
Committee has been constituted also in each sub-division of
a District but we
129
have no doubt that the Government of Haryana will without
any delay and at any rate within six weeks from today
constitute a Vigilance Committee in each sub-division and
thus comply with the requirement of Section 13 of the Act.
We may point out that in constituting Vigilance Committee in
each-District and sub-division, the Haryana Government would
do well to include representatives of non-political social
action groups operating at the grass root level, for it is
only through such social action groups and voluntary
agencies that the problem of identification of bonded labour
can be effectively solved.
It was contended by the learned Additional Solicitor
General on behalf of the State of Haryana that in the stone
quarries and stone crushers there might be forced labourers
but they were not bonded labourers within the meaning of
that expression as used in the Act, since a labourer would
be a bonded labourer only if he has or is presumed to have
incurred a bonded debt and there was nothing in the present
case to show that the workmen employed in the stone quarries
and stone crushers had incurred or could be presumed to have
incurred any bonded debt. It was not enough, contended the
learned Additional Solicitor General the petitioner merely
to show that the workmen were providing forced labour in
that they were not allowed to leave the premises of the
establishment, but it was further necessary to show that
they were working under the bonded labour system. The
learned Additional Solicitor General also submitted that in
any event, even if the workmen filed affidavits to the
effect that they had taken advances from thekedar or jamadar
and or mine lessees and/or stone crusher owners and they
were not allowed to leave the premises of the establishment
until the advances were paid of, that would not be enough
evidence for the Court to hold that they were bonded
labourers, because the mine-lessees and stone crusher owners
had no opportunity to cross-examine the workmen making such
affidavits. This contention was seriously pressed by the
learned Additional Solicitor General on behalf of the State
of Haryana, but as we shall presently show, there is no
substance in this contention. We may point out that in the
course of the arguments we did suggest to the learned
Additional Solicitor General that even if the workmen were
not bonded labourers in the strict sense of the term but
were merely forced to provide labour, should the State
Government not accept liability for freeing and
rehabilitating them, particularly in view of the Directive
Principles of State Policy. The State of Haryana was however
not prepared to come forward with any proposal in this
behalf.
130
Now it is clear that bonded labour is a form of forced
labour and Section 12 of the Bonded Labour System
(Abolition) Act 1976 recognises this self-evident
proposition by laying a duty on every District Magistrate
and every officer specified by him to inquire whether any
bonded labour system or any other form of forced labour is
being enforced by or on behalf of any person and, if so, to
take such action as may be necessary to eradicate the
enforcement of such forced labour. The thrust of the Act is
against the continuance of any form of forced labour. It is
of course true that, strictly speaking, a bonded labourer
means a labourer who incurs or has or is presumed to have
incurred a bonded debt and a bonded debt means an advance
obtained or presumed to have been obtained by a bonded
labourer under or in pursuance of the bonded labour system
and it would therefore appear that before a labourer can be
regarded as a bonded labourer, he must not only be forced to
provide labour to the employer but he must have also
received an advance or other economic consideration from the
employer unless he is made to provide forced labour in
pursuance of any custom or social obligation or by reason of
his birth in any particular caste or community. It was on
the basis of this definitional requirement that the learned
Additional Solicitor General on behalf of the State of
Haryana put forward the argument that even if the workmen
employed in the stone quarries and stone crushers were being
compelled to provide forced labour, they were not bonded
labourers, since it as not shown by them or by the
petitioner that they were doing so in consideration of an
advance or other economic consideration received from the
mine-lessees and owners of stone crushers. Now if this
contention of the learned Additional Solicitor General were
well-founded, it would become almost impossible to enforce
the provisions of the Bonded Labour System (Abolition) Act
1976 because in every case where bonded labourers are sought
to be identified for the purpose of release and
rehabilitation under the provisions of the Act, the State
Authorities as also the employer would be entitled to insist
that the bonded labourers must first prove that they are
providing forced labour in consideration of an advance or
other economic consideration received by them and then only
they would be eligible of the benefits provided under the
Act and this would make it extremely difficult, if not
impossible, for the labourers to establish that they are
bonded labourers because they would have no evidence at all
to prove that any advance or economic consideration was
provided to them by the employer and since employment of
bonded labourers is a penal offence under the Act the
employer would immediately, without any hesitation, disown
having given any advance or economic
131
consideration to the bonded labourers. It is indeed
difficult to understand how the State Government which is
constitutionally mandated to bring about change in the life
conditions of the poor and the down-trodden and to ensure
social justice to them, could possibly take up the stand
that the labourers must prove that they are made to provide
forced labour in consideration of an advance or other
economic consideration received from the employer and are
therefore bonded labourers. It is indeed a matter of regret
that the State Government should have insisted on a formal,
rigid and legalistic approach in the matter of a statute
which is one of the most important measures for ensuring
human dignity to these unfortunate specimens of humanity who
are exiles of civilization and who are leading a life of
abject misery and destitution. It would be cruel to insist
that a bonded labourer in order to derive the benefits of
this social welfare legislation, should have to go through a
formal process of trial with the normal procedure for
recording of evidence. That would be a totally futile
process because it is obvious that a bonded labourer can
never stand up to the rigidity and formalism of the legal
process due to his poverty, illiteracy and social and
economic backwardness and if such a procedure were required
to be followed, the State Government might as well
obliterate this Act from the statute book. It is now
statistically established that most of bonded labourers are
members of Scheduled Castes and Scheduled Tribes or other
backward classes and ordinary course of human affairs would
show, indeed judicial notice can be taken of it, that there
would be no occasion for a labourer to be placed in a
situation where he is required to supply forced labour for
no wage or for nominal wage, unless he has received some
advance or other economic consideration from the employer
and under the pretext of not having returned such advance or
other economic consideration, he is required to render
service to the employer or is deprived of his freedom of
employment or of the right to move freely wherever he wants.
Therefore, whenever it is shown that a labourer is made to
provide forced labour, the Court would raise a presumption
that he is required to do so in consideration of an advance
or other economic consideration received by him and he is
therefore a bonded labourer. This presumption may be
rebutted by the employer and also by the State Government if
it so chooses but unless and until satisfactory material is
produced for rebutting this presumption, the Court must
proceed on the basis that the labourer is a bonded labourer
entitled to the benefit of the provisions of the Act. The
State Government cannot be permitted to repudiate its
obligation to identify, release and rehabilitate the bonded
labourers on the plea that though the
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concerned labourers may be providing forced labour, the
State Government does not owe any obligation to them unless
and until they show in an appropriate legal proceeding
conducted according to the rules of adversary system of
justice, that they are bonded labourers.
The first question that arises in regard to the
implementation of the Bonded Labour System (Abolition) Act
1976 is that of identification of bonded labour. One major
handicap which impedes the identification of bonded labour,
is the reluctance of the administration to admit the
existence of bonded labour, even where it is prevalent. It
is therefore necessary to impress upon the administration
that it does not help to ostrich-like bury its head in the
sand and ignore the prevalence of bonded labour, for it is
not the existence of bonded labour that is a slur on the
administration but its failure to eradicate it and moreover
not taking the necessary steps for the purpose of wiping out
this blot on the fair name of the State is a breach of its
constitutional obligation. We would therefore direct the
Government of Haryana and also suggest to the other State
Governments, to take steps to sensitise the officers
concerned with the implementation of the Act to this acute
human problems and its socioeconomic parameters. Moreover it
may be noted that the District Magistrates have a central
role to play under the provisions of the Act and the State
Governments would therefore do well to instruct the District
Magistrates to take up the work of identification of bonded
labour as one of their top priority tasks. There are certain
areas of concentration of bonded labour which can be easily
identified on the basis of various studies and reports made
by governmental authorities, social action groups and social
scientists from time to time. These areas of concentration
of bonded labour are mostly to be found in stone quarries,
brick kilns and amongst agricultural landless labourers and
such areas must be mapped out by each State Government and
task forces should be assigned for identification and
release of bonded labour. Labour camps should be held
periodically in these areas with a view to educating the
labourers and for this purpose, the assistance of the
National Labour Institute may be taken, because the National
Labour Institute has the requisite expertise and experience
of holding such camps and it should be associated with the
organisation and conduct of such camps and in each such
camp, individuals with organisational capability or
potential should be identified and given training in the
work of identification and release of bonded labour. More
importantly non-political social action groups and voluntary
agencies and particularly those with a record of honest and
competent service for Scheduled Castes and Scheduled
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Tribes, agricultural labourers and other unorganised workmen
should be involved in the task of identification and release
of bonded labourers, for it is primarily through such social
action groups and voluntary agencies alone that it will be
possible to eradicate the bonded labour system, because
social action groups and voluntary agencies comprising men
and women dedicated to the cause of emancipation of bonded
labour will be able to penetrate through the secrecy under
which very often bonded labourers are required to work and
discover the existence of bonded labour and help to identify
and release bonded labourers. We would therefore direct the
Vigilance Committees as also the District Magistrates to
take the assistance of non-political social action groups
and voluntary agencies for the purpose of ensuring
implementation of the provisions of the Bonded Labour System
(Abolition) Act 1976.
The other question arising out of the implementation of
the Bonded Labour System (Abolition) Act 1976 is that of
rehabilitation of the released bonded labourers and that is
also a question of the greatest importance, because if the
bonded labourers who are identified and freed, are not
rehabilitated, their condition would be much worse than what
it was before during the period of their serfdom and they
would become more exposed to exploitation and slide back
once again into serfdom even in the absence of any coercion.
The bonded labourer who is released would prefer slavery to
hunger, a world of ‘bondage and (illusory) security’ as
against a world of freedom and starvation. The State
Governments must therefore concentrate on rehabilitation of
bonded labour and evolve effective programmes for this
purpose. Indeed they are under an obligation to do so under
the provisions of the Bonded Labour System (Abolition) Act
1976. It may be pointed out that the concept of
rehabilitation has the following four main features as
admirably set out in the letter dated 2nd September 1982
addressed by the Secretary. Ministry of Labour, Government
of India to the various States Governments:
(i) Psychological rehabilitation must go side by side
with physical and economic rehabilitation;
(ii) The physical and economic rehabilitation has 15
major components namely allotment of house-sites
and agricultural land, land development, provision
of low cost dwelling units, agriculture, provision
of credit, horticulture, animal husbandry,
training for acquiring
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new skills and developing existing skills,
promoting traditional arts and crafts, provision
of wage employment and enforcement of minimum
wages, collection and processing of minor forest
produce, health medical care and sanitation supply
of essential commodities, education of children of
bonded labourers and protection civil rights;
(iii) There is scope for bringing about an integration
among the various central and centrally sponsored
schemes and the on-going schemes of the State
Governments for a more qualitative rehabilitation.
The essence of such integration is to avoid
duplication i.e. pooling resources from different
sources for the same purpose. It should be ensured
that while funds are not drawn from different
sources for the same purpose drawn from different
sectors for different components of the
rehabilitation scheme are integrated skillfully;
and
(iv) While drawing up any scheme/programme of
rehabilitation of freed bonded labour, the latter
must necessarily be given the choice between the
various alternatives for their rehabilitation and
such programme should be finally selected for
execution as would need the total requirements of
the families of freed bonded labourers to enable
them to cross the poverty line on the one hand and
to prevent them from sliding back to debt bondage
on the other.
We would therefore direct the Government of
Haryana to draw up a scheme on programme for “a better and
more meaningful rehabilitation of the freed bonded
labourers” in the light of the above guidelines set out by
the Secretary to the Government of India, Ministry of Labour
in his letter dated 2nd September 1982. The other State
Governments are not parties before us and hence we cannot
give any direction to them, but we hope and trust that they
will also take suitable steps for the purpose of securing
identification, release and rehabilitation of bonded
labourers on the lines indicated by us in this Judgment.
We are not at all satisfied that the stand taken on
behalf of the State of Haryana that there is no bonded
labour at all in the stone
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quarries and stone crushers is correct. The Report of M/s
Ashok Srivastava and Ashok Panda shows that, according to
the statements given by some of the workers, they were not
allowed to leave the stone quarries and were providing
forced labour and this Report also stated that several
persons working in the Ghodhokor and Lakarpur stone quarries
were forcibly kept by the contractors and they were not
allowed to move out of their places and were bonded
labourers. The petitioner also filed the affidavits of a
large number of workers on 24th August 1982, each of them
stating that he is under heavy debt of the thekedar who does
not allow him to leave the premises without settling the
account. We cannot ignore this material which has been
placed before us and unquestioningly accept the statement
made on behalf of the State of Haryana that there is no
bonded labour in the stone quarries and stone crushers. But
at the same time, we do not think that it would be right for
us on the basis of this material to come to a definite
finding that these workers whose names are given in the
Report of M/s Ashok Srivastava and Ashok Panda or who have
filed affidavits are providing forced labour or are bonded
labourers. It is necessary to direct a further inquiry for
the purpose of ascertaining whether any of the labourers
working in the stone quarries and stone crushers in
Faridabad District are bonded labourers in the light of the
law laid down by us in this judgment. We would therefore
direct Shri Laxmi Dhar Misra, Joint Secretary in the
Ministry of Labour, Government of India, who has
considerable experience of the work of identification,
release and rehabilitation of bonded labourers, to visit the
stone quarries and stone crushers in Faridabad District and
ascertain by enquiring from the labourers in each stone
quarry or stone crusher whether any of them are being forced
to provide labour and are bonded laboureres. While making
this inquiry, Shri Laxmi Dhar Misra will take care to see
that when he interviews the labourers either individually or
collectively, neither the mine-lessees or owners of stone
crushers nor the thekedar of jamadar nor any one else is
present. Shri Laxmi Dhar Misra will prepare in respect of
each stone quarry or stone crusher a statement showing the
names and particulars of those who, according to the inquiry
made by him, are bonded labourers and he will also ascertain
from them whether they want to continue to work in the stone
quarry or stone crusher or they want to go back to their
homes and if they want to go back, the District Magistrate
of Faridabad will on receipt of the statement from Shri
Laxmi Dhar Misra, make necessary arrangements for releasing
them and provide for their transportation back to their
hromes and for this purpose the State Government shall make
the requisite funds
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available to the District Magistrate. Shri Laxmi Dhar Misra
will also enquire from the mine-lessees and owners of stone
crushers as also from the thekedar or jamadar whether there
are any advances made by them to the labourers working in
the stone quarry or stone crusher and if so, whether there
is any documentary evidence in support of the same and he
will also ascertain what, according to the mine-lessees and
owners of stone crushers or the jamadar or thekedar, are the
amounts of loans still remaining outstanding against such
labourers. Shri Laxmi Dhar Misra will submit his report to
this Court on or before 28th February 1984. We may make it
clear that the object and purpose of this inquiry by Shri
Laxmi Dhar Misra is not to fasten any liability on the
minelessees and owners of stone crushers and the jamadar or
thekedar on the basis of the Report of Shri Laxmi Dhar Misra
but to secure the release and repatriation of those
labourers who claim to be bonded labourers and who want to
leave the employment and go some where else. We may point
out that the problem of bonded labourers is a difficult
problem because unless, on being freed from bondage, they
are provided proper and adequate rehabilitation, it would
not help to merely secure their release. Rather in such
cases it would be more in their interest to ensure proper
working conditions with full enjoyment of the benefits of
social welfare and labour laws so that they can live a
healthy decent life. But of course this would only be the
next best substitute for release and rehabilitation which
must receive the highest priority.
So far as implementation of the provisions of the
Minimum Wages Act 1948 is concerned we would direct the
Central Government and State of Haryana to take necessary
steps for the purpose of ensuring that minimum wages are
paid to the workmen employed in the stone quarries and stone
crushers in accordance with the principles laid down by us
in this judgment. It may not be a matter of any consequence
as to which mode of payment is followed, whether the workmen
are paid on truck basis or on any other basis, but what is
essential is and that is what the Minimum Wages Act 1948
requires that the workmen must not receive any wage less
than the minimum wage. Even if payment of wages is made to
the workmen on truck basis, a formula would have to be
evolved by the Central Government and the State of Haryana
to ensure that the workmen receive no less than the minimum
wage and to facilitate this formula it would have to be
provided that the expenses on explosives and drilling holes
shall be borne by the mine-lessees and or the jamadar or
thekedar and the work of drilling holes and shot firing
shall be entrusted only
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to those who have received requisite training under the
Mines Vocational Training Rules 1966. We would direct the
Central Government and the State of Haryana to take the
necessary steps in this behalf so that within the shortest
possible time and as far as possible within six weeks from
today the workmen start actually receiving in their hands a
wage not less than the minimum wage. If payment of wages is
continued to be made on truck basis, it is necessary that
the appropriate officer of the Central Enforcement Machinery
must determine the measurement of each truck as to how many
cubic feet of stone it can contain and print or inscribe
such measurement on the truck, so that appropriate and
adequate wage is received by the workmen for the work done
by them and they are not cheated out of their legitimate
wage. We would also direct the inspecting officers of
Central Enforcement Machinery to carry out surprise checks
for the purpose of ensuring that the trucks are not loaded
beyond their true measurement capacity. Such surprise checks
shall be carried out by the inspecting officers of the
Central Enforcement Machinery at least once in a week and if
it is found that the trucks are loaded in excess of their
true measurement capacity and the workmen are thereby
deprived of their legitimate wages, the inspecting officers
carrying out such checks will immediately bring this fact to
the notice of the appropriate authorities for initiation of
necessary action against the defaulting mine owners and/or
thekedar or jamadar. We would also direct the Central
Government and the State of Haryana to ensure that payment
of wage is made directly to the workmen by the mine-lessees
and stone-crusher owners or at any rate in the presence of a
representative of the mine-lessees and stone crushers owners
and the inspecting officers of the Central Government as
also of the State of Haryana shall carry out periodic checks
in order to ensure that payment of the stipulated wage is
made to the workmen. Shri Laxmi Dhar Misra will also, while
holding an inquiry pursuant to this order, ascertain, by
carrying out sample check, whether the workmen employed in
any particular stone quarry or stone crusher are actually in
receipt of wage not less than the minimum wage and whether
the directions given by us in this order are being
implemented by the authorities.
There are also two other matters in respect of which it
is necessary for us to give directions. The first is that,
apart from poverty and helplessness, one additional reason
why the workmen employed in stone quarries and stone
crushers are deprived of the rights and benefits conferred
upon them under various social welfare laws enacted for
their benefit and are subjected to deception and
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exploitation, in that they are totally ignorant of their
rights and entitlements. It is this ignorance which is to
some extent responsible for the total denial of the rights
and benefits conferred upon them. It is therefore necessary
to educate the workmen employed in stone quarries and stone
crushers so that they become aware as to what are the rights
and benefits to which they are entitled under the various
social welfare laws. The knowledge of their rights and
entitlements will give them the strength to fight against
their employers for securing their legitimate dues and it
will go a long way towards reducing, if not eliminating,
their exploitation. We have fortunately in our country the
Central Board of Workers Education which is entrusted with
the function of educating workers in their rights and
entitlements and we would therefore direct the Central Board
of Workers Education to organise periodic camps near the
sites of stone quarries and stone crushers in Faridabad
District for the purpose of creating awareness amongst the
workmen about the rights and benefits conferred upon them by
social welfare laws. This educational campaign shall be
taken up by the Central Board of Workers Education as early
as possible and the progress made shall be reported to this
Court by the Central Board of Workers Education from time to
time, at least once in three months.
The other matter in regard to which we find it
necessary to give directions relates to the tremendous
pollution of air by dust thrown out as a result of operation
of the stone crushers. When the stone crushers are being
operated, they continually throw out large quantities of
dust which not only pollute the air, but also affect the
visibility and constitute a serious health hazard to the
workmen. The entire air in the area where stone crushers are
being operated is heavily laden with dust and it is this air
which the workmen breathe day in and day out and it is no
wonder that many of them contract tuberculosis. We would
therefore direct the Central Government and the State of
Haryana to immediately take steps for the purpose of
ensuring that the stone crushers owners do not continue to
foul the air and they adopt either of two devices, namely,
keeping a drum of water above the stone crushing machine
with arrangement for continues spraying of water upon it or
installation of dust sucking machine. This direction shall
be carried out by the Central Government and the State of
Haryana in respect of each stone crusher in the Faridabad
District and a compliance report shall be made to this Court
on or before 28th February, 1984.
So far as the provisions of the Contract Labour Act and
the
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Inter-State Migrant Workmen Act are concerned, we have
already discussed those provisions and pointed out in what
circumstances those provisions would be applicable in
relation to workmen employed in the stone quarries and stone
crushers. It is not possible for us on the material on
record to come to a definite finding whether the provisions
of the Contract Labour Act and the Inter-State Migrant
Workmen Act are applicable in the case of any particular
stone quarry or stone crusher, because it would be a matter
for investigation and determination, particularly since it
has been disputed by the Central Government that there are
any inter-State migrant workmen at all in any of the stone
quarries or stone crushers. We would therefore direct Shri
Laxmi Dhar Misra to conduct an inquiry in each of the stone
quarries and stone crushers in Faridabad District for the
purpose of ascertaining whether there are any contract
labourers or inter-State migrant workmen in any of these
stone quarries or stone crushers, in the light of the
interpretation laid down by us in this judgment, and, if so,
what is the number of such contract labourers or inter-State
migrant workmen in each stone quarry or stone crusher. If
Shri Laxmi Dhar Misra finds as a result of his inquiry that
the Contract Labour Act and/or the Inter-State Migrant
Workmen Act is applicable, he will make a report to that
effect to the Court on or before 15th February 1984. We may
make it clear that this inquiry by Shri Laxmi Dhar Misra is
not directed for the purpose of fastening any liability on
the mine-lessees and stone crusher owners or the jamadars
and thekedars proprio vigore on the basis of such report,
but merely for the purpose of considering whether a prima
facie case exists on the basis of which action can be
initiated by the Central Government, in which the mine-
lessees and stone crusher owners and/or the jamadars or
thekedars would have an opportunity of contesting the
allegation that the Contract Labour Act and/or the Inter-
State Migrant Workmen Act applies to their stone quarry or
stone crusher and defending such action.
We may now take up a few specific complaints urged on
behalf of the workmen. The first complaint relates to the
failure to provide pure drinking water to the workmen in
most of the stone quarries and stone crushers. The Report of
M/s Ashok Srivastava and Ashok Panda as also the Report made
by Dr. Patwardhan shows that pure drinking water is not made
available to the workmen. In Lakarpur mines the workmen are
obliged to take water ”from a shallow rivulet covered with
thick algae” and that too, “after a walk over a dangerously
steep incline”. The same situation also prevails in the mine
in the Gurukul area as also in the Anangpur mines and in
these mines
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“quite often the upstream and the further down-stream of the
rivulet get blocked due to mining of stone and the water
becomes stagnant” and the workmen have no other option but
to use this water for drink king purposes. It is true that
in the lower reaches of Lakarpur near the road there is a
tube-well from which the workmen get water but that is only
when they are permitted to do so by the persons operating
it. The Report of Dr. Patwardhan also points out that it is
the children or women of the workmen who are usually engaged
in the work of transporting water from distant places like
the tubewell but they are not paid anything for this work
which is being done by them. Neither any mine-lessee or
stone crusher owner nor any jamadar or thekedar regards it
as his duty to make provision for drinking water for the
workmen nor does any officer of the Central Government or of
the State Government bother to enforce the provisions of law
in regard to supply of drinking water. It is clear that,
quite apart from the provisions of the Contract Labour Act
and the Inter-State Migrant Workmen Act, there is a specific
prescription in section 19 of the Mines Act 1952 and Rules
30 to 32 of the Mines Rules 1955 that the mine-lessees and
stone crusher owners shall make effective arrangements for
providing and maintaining at suitable points conveniently
situated a sufficient supply of cool and wholesome drinking
water for all workmen employed in the stone quarries and
stone crushers. The quality of drinking water to be provided
by them has to be on a scale of at least 2 litres for every
person employed at any one time and such drinking water has
to be readily available at conveniently accessible points
during the whole of the working time. Rule 31 requires that
if drinking water is not provided from taps connected with
constant water supply system, it should be kept cool in
suitable vessels sheltered from weather and such vessels
must be emptied, cleaned and refilled every day and steps
have to be taken to preserve the water, the storage vessels
and the vessels used for drinking water in clean and
hygienic condition. The inspectors may also by order in
writing require the mine-lessees and stone crusher owners to
submit with the least possible delay a certificate from a
competent health officer or analyst as to the fitness of the
water for human consumption. This obligation has to be
carried out by the mine-lessees and stone crusher owners and
it is the responsibility of the Central Government as also
of the State of Haryana to ensure that this obligation is
immediately carried out by the mine-lessees and stone
crusher owners. We would therefore direct the Central
Government and the State of Haryana to ensure immediately
that the mine-lessees and stone crusher owners start
supplying pure drinking water to the workmen on a scale of
at least 2 litres for every
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workman by keeping suitable vessels in a shaded place at
conveniently accessible points and appointing some one,
preferably, amongst the women and/or children of the workmen
to look after these vessels. The Central Government and the
State of Haryana will also take steps for ensuring that the
vessels in which drinking water is kept by the mine-lessees
and stone crusher owners are kept in clea and hygienic
condition and are emptied, cleaned and refilled every day
and they shall also ensure that minimum wage is paid to the
women and/or children who look after the vessels. The Chief
Labour Commissioner, the Deputy Chief Labour Commissioner,
the Assistant Labour Commissioner and the Labour Enforcement
Officers of the Government of India as also the appropriate
inspecting officers of the Government of Haryana shall
supervise strictly the enforcement of this obligation and
initiate necessary action if there is any default. The
Central Government as also the State of Haryana will also
immediately direct the mine-lessees and stone-crusher owners
to start obtaining drinking water from any unpolluted source
or sources of supply and to transport it by tankers to the
works site with sufficient frequency so as to be able to
keep the vessels filled up for supply of clean drinking
water to the workmen. The Chief Administrator, Faridabad
Complex is directed to set up the points from where the
mine-lessees and stone crusher owners can, if necessary,
obtain supply of potable water for being carried by tankers.
These directions given by us shall be promptly and
immediately carried out by the appropriate authorities and
Shri Laxmi Dhar Misra will, while conducting his inquiry,
also ascertain whether these directions have been carried
out and pure drinking water has been made available to the
workmen in accordance with these directions and submit a
report in that behalf to the Court on or before 28th
February 1984.
The second complaint related to the failure to provide
conservancy facilities to the workmen in the stone quarries
and stone crushers. Section 20 of the Mines Act 1952
requires that there shall be provided separately for males
and females a sufficient number of latrines and urinals of
prescribed types so situated as to be convenient and
accessible to persons employed in the stone quarries and
stone crushers and all such latrines and urinals shall be
adequately lighted, ventilated and at all times maintained
in a clean and sanitary condition. What should be the number
of latrines and urinals to be provided in each stone quarry
or stone crusher and what should be the standard of
construction to be complied with in erecting the latrines
are provided in Rules 33 to 35 of the Mines Rules 1955 and
Rule 36 provides that a sufficient number of water
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taps conveniently accessible shall be provided in or near
such latrines and if piped water supply is not available,
then a sufficient quantity of water shall be hept stored in
suitable receptacles near such latrines. The Report of Dr.
Patwardhan shows that there is not a trace of such
conservancy facilities in any of the stone quarries and the
“vast open mountain dug-up without a thought as to
environment is used by men and women and children as one
huge open latrine” where the only privacy is that provided
by the ”curtain drawn by the turned down eyes of women and
the turned away eyes of men”. This statement made in the
Report of Dr. Patwardhan has not been denied in any of the
affidavits in reply filed on behalf of the respondents. We
would therefore direct the Central Government as also the
State Government to ensure that conservancy facilities in
the shape of latrines and urinals in accordance with the
provisions contained in Section 20 of the Mines Act 1950 and
Rules 33 to 36 of the Mines Rules 1955 are provided
immediately by mine lessees and owners of stone crushers.
This direction shall be carried out at the earliest without
any delay and Shri Laxmi Dhar Misra will, while making his
inquiry, ascertain whether the mine-lessees and owners of
stone crushers in each of the stone quarries and stone
crushers visited by him have complied with this direction
and a Report in that behalf shall be submitted by Shri Laxmi
Dhar Misra on or before 28th February, 1984.
There was also one other complaint made on behalf of
the workmen and that related to the absence of any medical
or first aid facilities. The Report of Dr. Patwardhan shows
that no such facilities are provided to the workmen employed
in the stone quarries and stone crushers and this finding
was not seriously disputed on behalf of the respondents. It
is indeed regrettable that despite there being a mandatory
provision for medical and first aid facilities in Section 21
of the Mines Act 1952 and Rules 40 to 45A of the Mines Rules
1955, no medical or first aid facilities seem to be provided
in the stone quarries and stone crushers. We would therefore
direct the Central Government as also the State Government
to take steps to immediately ensure that proper and adequate
medical and first aid facilities as required by Section 21
of the Mines Act 1952 and Rules 40 to 45A of the Mines Rules
1955 are provided by the mine-lessees and owners of stone
quarries to the workmen. Rule 45 provides that every shot
firer and blaster in a mine shall hold first aid
qualification specified in Rule 41 and shall carry, while on
duty, a first aid outfit consisting of one large sterilized
dressing and an amul of tincture of iodine or other suitable
antiseptic. But we find that this requirement is also
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not observed by the mine-lessees and stone crusher owners
and the workmen are required to carry on blasting with
explosives without any first aid qualification or first aid
outfit. We would therefore direct the Central Government as
also the State of Haryana to ensure that every workman who
is required to carry out blasting with explosives should not
only be trained under the Mines Vocational Training Rules
1966 but should also hold first aid qualification and he
should carry a first aid outfit, while on duty, as required
by Rule 45. The Central Government and the State Government
will also take steps to secure that proper and adequate
medical treatment is provided by the mine-lessees and owners
of stone crushers to the workmen employed by them as also to
the members of their families and such medical assistance
should be made available to them without any cost of
transportation or otherwise and the cost of medicines
prescribed by the doctors must be reimbursed to them. Where
the workmen or the members of their families meet with any
serious accident involving fracture or possibility of
disability or suffer from any serious illness, the mine-
lessees and owners of stone crushers should be required by
the Central Government as also the State Government to make
arrangements for hospitalisation of such workmen or members
of their families at the cost of the mine-lessees and/or
owners of stone crushers. We would also direct the Central
Government and the State of Haryana to ensure that the
provisions of the Maternity Benefit Act, 1961, the Maternity
Benefit (Mines and Circus) Rules 1963 and the Mines Creche
Rules, 1966, where applicable in any particular stone
quarries or stone crushers,, are given effect to by the
mine-lessees and owners of stone crushers. These directions
given by us shall also be carried out at the earliest
without any undue delay and Shri Laxmi Dhar Misra, while
conducting his inquiry, will ascertain whether these
directions have been complied with and the necessary medical
and first aid facilities including hospitalization have been
provided to the workmen and the members of their families.
We may point out that the above directions in regard to
provision of health and welfare facilities have been given
by us only with reference to the provisions of the Mines Act
1952 and the Mines Rules 1955 which are admittedly
applicable in the case of stone quarries and stone crushers.
We have not given any directions for enforcement of the
provisions of the Contract Labour Act and the Inter-State
Migrant Workmen Act because it has yet to be determined
whether these two statutes are applicable in any particular
stone quarry or stone crusher. It is also necessary to point
out that whenever any
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workman suffers any injury or contracts any disease in the
course of employment, he is entitled to compensation under
the Workmens’ Compensation Act 1923, but unfortunately he is
very often not in a position to approach the appropriate
court or authority for enforcing his claim to compensation
and even if he files such a claim, it takes a long time
before such claim is disposed of by the court or authority.
We would therefore direct that as soon as any workman
employed in a stone quarry or stone crusher receives injury
or contracts disease in the course of his employment, the
concerned mine-lessee or stone crusher owner shall
immediately report this fact to the Chief Inspector or
Inspecting Officers of the Central Government and/or the
State Government and such Inspecting Officers shall
immediately provide legal assistance to the workman with a
view to enabling him to file a claim for compensation before
the appropriate court or authority and they shall also
ensure that such claim is pursued vigorously and the amount
of compensation awarded to the workman is secured to him. We
would like to impress upon the Court or Authority before
which a claim for compensation is filed by or on behalf of
the workman to dispose of such claim without any undue
delay, since delay in the awarding of compensation to the
workman would only and to his misery and helplessness and
would be nothing sort of gross denial of justice to him. The
Inspecting Officers of the Central Government as also of the
State Government will visit each stone quarry or stone
crusher at least once in a fortnight and ascertain whether
there is any workman who is injured or who is suffering from
any disease or illness, and if so, they will immediately
take the necessary steps for the purpose of providing
medical and legal assistance and if they fail to do so, the
Central Government and the State Government, as the case may
be, shall take unnecessary action against the defaulting
Inspecting Officer or Officers.
We have given these directions to the Central
Government and the State of Haryana and we expect the
Central Government and the State of Haryana to strictly
comply with these directions. We need not state that if any
of these directions is not properly carried out by the
Central Government or the State of Haryana, we shall take a
very serious view of the matter, because we firmly believe
that it is no use having social welfare laws on the statue
book if they are not going to be implemented. We must not be
content with the law in books but we must have law in
action. If we want our democracy to be a participatory
democracy, it is necessary that law must not only speak
justice but must also deliver justice.
Before parting with this case, we may point out, and
this has
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come to our notice not only through the Report of Dr.
Patwardhan but also otherwise, that the magistrates and
judicial officers take a very lenient view of violations of
labour laws enacted for the benefits of the workmen and let
off the defaulting employers with small fines. There have
also been occasions where the magistrate and judicial
officers have scotched prosecutions and acquitted or
discharged the defaulting employers on hyper technicalities.
This happens largely because the magistrates and judicial
officers are not sufficiently sensitised to the importance
of observance of labour laws with the result that the labour
laws are allowed to be ignored and breached with utter
callousness and indifference and the workmen begin to feel
that the defaulting employers can, by paying a fine which
hardly touches their pocket, escape from the arm of law and
the labour laws supposedly enacted for their benefit are not
meant to be observed but are merely decorative appendages
intended to assuage the conscience of the workmen. We would
therefore strongly impress upon the magistrates and judicial
officers to take a strict view of violation of labour laws
and to impose adequate punishment on the erring employers so
that they may realise that it does not pay to commit a
breach of such laws and to deny the benefit of such laws to
the workmen.
We accordingly allow this writ petition and issue the
above directions to the Central Government and the State of
Haryana and the various authorities mentioned in the
preceding paragraphs of this judgment so that these poor
unfortunate workmen who lead a miserable existence in small
hovels, exposed to the vagaries of weather, drinking foul
water, breathing heavily dust-laden polluted air and
breaking and blasting stone all their life, may one day be
able to realise that freedom is not only the monopoly of a
few but belongs to them all and that they are also equally
entitled along with others to participate in the fruits of
freedom and development. These directions may be summarized
as follows
(1) The Government of Haryana will, without any delay
and at any rate within six weeks from today,
constitute Vigilance Committee in each sub-
division of a district in compliance with the
requirements of section 13 of the Bonded Labour
System (Abolition) Act 1976 keeping in view the
guidelines given by us in this judgment.
(2) The Government of Haryana will instruct the
district magistrates to take up the work of
identification of bonded
146
labour as one of their top priority tasks and to
map out areas of concentration of bonded labour
which are mostly to be found in stone quarries and
brick kilns and assign task forces for
identification and release of bonded labour and
periodically hold labour camps in these areas with
a view to educating the labourers inter alia with
the assistance of the National Labour Institute.
(3) The State Government as also the Vigilance
Committees and the district magistrates will take
the assistance of non-political social action
groups and voluntary agencies for the purpose of
ensuring implementation of the provisions of the
Bonded Labour System (Abolition) Act, 1976.
(4) The Government of Haryana will draw up within a
period of three months from today a scheme or
programme for rehabilitation of the freed bonded
labourers in the light of the guidelines set out
by the Secretary to the Government of India,
Ministry of Labour in his letter dated 2nd
September 1982 and implement such scheme or
programme to the extent found necessary.
(5) The Central Government and the Government of
Haryana will take all necessary steps for the
purpose of ensuring that minimum wages are paid to
the workmen employed in the stone quarries and
stone crushers in accordance with the principles
laid down in this judgment and this direction
shall be carried out within the shortest possible
time so that within six weeks from today, the
workmen start actually receiving in their hands a
wage not less than the minimum wage.
(6) If payment of wages is made on truck basis, the
Central Government will direct the appropriate
officer of the Central Enforcement Machinery or
any other appropriate authority or officer to
determine the measurement of each truck as to how
many cubic ft. of stone it can contain and print
or inscribe such measurement on the truck so that
appropriate and adequate wage is received by the
workmen for the work done by them and they are not
cheated out of their legitimate wage.
(7) The Central Government will direct the inspecting
officers
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of the Central Enforcement Machinery or any other
appropriate inspecting officers to carry out
surprise checks at least once in a week for the
purpose of ensuring that the trucks are not loaded
beyond their true measurement capacity and if it
is found that the trucks are loaded in excess of
the true measurement capacity, the inspecting
officers carrying out such checks will immediately
bring this fact to the notice of the appropriate
authorities and necessary action shall be
initiated against the defaulting mine owners
and/or thekedars or jamadars.
(8) The Central Government and the Government of
Haryana will ensure that payment of wages is made
directly to the workmen by the mine lessees and
stone crusher owners or at any rate in the
presence of a representative of the mine lesseses
or stone crusher owners and the inspecting
officers of the Central Government as also of the
Government of Haryana shall carry out periodic
checks in order to ensure that the payment of the
stipulated wage is made to the workmen.
(9) The Central Board of Workers Education will
organise periodic camps near the sites of stone
quarries and stone crushers in Faridabad district
for the purpose of educating the workmen in the
rights and benefits conferred upon them by social
welfare and labour laws and the progress made
shall be reported to this Court by the Central
Board of Workers Education at least once in three
months.
(10) The Central Government and the Government of
Haryana will immediately take steps for the
purpose of ensuring that the stone crusher owners
do not continue to foul the air and they adopt
either of two devices, namely,, keeping a drum of
water above the stone crushing machine with
arrangement for continuous spraying of water upon
it or installation of dust sucking machine and a
compliance report in regard to this direction
shall be made to this Court on or before 28th
February, 1984.
(11) The Central Government and the Government of
Haryana will immediately ensure that the mine
lessees and stone crusher owners start supplying
pure drinking water to the workmen on a scale of
at least 2 litres for every work
148
man by keeping suitable vessels in a shaded place
at conveniently accessible points and such vessels
shall be kept in clean and hygienic condition and
shall be emptied, cleaned and refilled every day
and the appropriate authorities of the Central
Government and the Government of Haryana will
supervise strictly the enforcement of this
direction and initiate necessary action if there
is any default.
(12) The Central Government and the Government of
Haryana will ensure that minimum wage is paid to
the women and/or children who look after the
vessels in which pure drinking water is kept for
the workmen.
(13) The Central Government and the Government of
Haryana will immediately direct the mine lessees
and stone crusher owners to start obtaining
drinking water from any unpolluted source or
sources of supply and to transport it by tankers
to the work site with sufficient frequency so as
to be able to keep the vessels filled up for
supply of clean drinking water to the workmen and
the Chief Administrator, Faridabad Complex will
set up the points from where the mine lessees and
stone crusher owners can, if necessary, obtain
supply of potable water for being carried by
tankers.
(14) The Central Government and the State Government
will ensure that conservancy facilities in the
shape of latrines and urinals in accordance with
the provisions contained in section 20 of the
Mines Act, 1950 and Rules 33 to 36 of the Mines
Rules 1955 are provided at the latest by 15th
February 1984.
(15) The Central Government and the State Government
will take steps to immediately ensure that
appropriate and adequate medical and first aid
facilities as required by section 21 of the Mines
Act 1952 and Rules 40 to 45A of the Mines Rules
1955 are provided to the workmen not later than
31st January 1984.
(16) The Central Government and the Government of
Haryana will ensure that every workmen who is
required to carry out blasting with explosives is
not only trained under the
149
Mines Vocational Training Rules 1966 but also
holds first aid qualification and carries a first
aid outfit while on duty as required by Rule 45 of
the Mines Rules 1955.
(17) The Central Government and the State Government
will immediately take steps to ensure that proper
and adequate medical treatment is provided by the
mine lessees and owners of stone crushers to the
workmen employed by them as also to the members of
their families free of cost and such medical
assistance shall be made available to them without
any cost of transportation or otherwise and the
doctor’s fees as also the cost of medicines
prescribed by the doctors including
hospitalisation charges, if any, shall also be
reimbursed to them.
(18) The Central Government and the State Government
will ensure that the provisions of the Maternity
Benefit Act 1961, the Maternity Benefit (Mines and
Circus) Rules 1963 and the Mines Creche Rules 1966
where applicable in any particular stone quarry or
stone crusher are given effect to by the mine
lessees and stone crusher owners.
(19) As soon as any workman employed in a stone quarry
or stone crusher receives injury or contracts
disease in the course of his employment, the
concerned mine lessee or stone crusher owner shall
immediately report this fact to the Chief
Inspector or Inspecting Officers of the Central
Government and/or the State Government and such
Inspecting Officers shall immediately provide
legal assistance. to the workman with a view to
enabling him to file a claim for compensation
before the appropriate court or authority and they
shall also ensure that such claim is pursued
vigorously and the amount of compensation awarded
to the workman is secured to him.
(20) The Inspecting Officers of the Central Government
as also of the State Government will visit each
stone quarry or stone crusher at least once in a
fortnight and ascertain whether there is any
workman who is injured or who is suffering from
any disease or illness, and if so, they will
immediately take the necessary steps for the
purpose of providing medical and legal assistance.
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(21) If the Central Government and the Government of
Haryana fail to ensure performance of any of the
obligations set out in clauses 11, 13, 14 and 15
by the mine lessees and stone crusher owners
within the period specified in those respective
clauses, such obligation or obligations to the
extent to which they are not performed shall be
carried out by the Central Government and the
Government of Haryana.
We also appoint Shri Laxmi Dhar Misra, Joint Secretary
in the Ministry of Labour, Government of India as a
Commissioner for the purpose of carrying out the following
assignment.
(a) He will visit the stone quarries and stone
crushers in Faridabad district and ascertain by
enquiring from the labourers in each stone quarry
or stone crusher in the manner set out by us
whether any of them are being forced to provide
labour and are bonded labourers and he will
prepare in respect of each stone quarry or stone
crusher a statement showing the names and
particulars of those who, according to the inquiry
made by him, are bonded labourers and he will also
ascertain from them whether they want to continue
to work in the stone quarry or stone crusher or
they want to go away and if he finds that they
want to go away, he will furnish particulars in
regard to them to the District Magistrate,
Faridabad and the District Magistrate will, on
receipt of the particulars from Shri Laxmi Dhar
Misra, make necessary arrangements for releasing
them and provide for their transporation back to
their homes and for this purpose the State
Government will make the requisite funds available
to the District Magistrate.
(b) He will also enquire from the mine lessees and
owners of stone crushers as also from the
thekedars and jamadars whether there are any
advances made by them to the labourers working in
the stone quarries or stone crushers and if so,
whether there is any documentary evidence in
support of the same and he will also ascertain
what, according to the mine lessees and owners of
stone crushers or the Jamadar or Thekedar, are the
amounts of loans still remaining outstanding
against such labourers.
(c) He will also ascertain by carrying out sample
check whether the workmen employed in any
particular stone quarry
151
or stone crusher are actually in receipt of wage
not less than the minimum wage and whether the
directions given in this order in regard to
computation and payment of minimum wage are being
implemented by the authorities.
(d) He will conduct an inquiry in each of the stone
quarries and stone crushers in Faridabad District
for the purpose of ascertaining whether there are
any contract labourers or inter-State migrant
workmen in any of these stone. quarries or stone
crushers and if he finds as a result of his
inquiry that the Contract Labour Act and/or the
Inter State Migrant Workmen Act is applicable, he
will make a report to that effect to the Court.
(e) He will ascertain whether the directions given by
us in this judgment regarding effective
arrangement for supply of pure drinking water have
been carried out by the mine lessees and stone
crusher owners and pure drinking water has been
made available to the workmen in accordance with
those directions.
(f) He will also ascertain whether the mine lessees
and owners of stone crushers in each of the stone
quarries and stone crushers visited by him have
complied with the directions given by us in this
judgment regarding provision of conservancy
facilities.
(g) He will also ascertain whether the directions
given by us in this judgment in regard to
provision of first aid facilities and proper and
adequate medical treatment including
hospitalisation to the workmen and the members of
their families are being carried out by the mine
lessees and stone crusher owners and the necessary
first aid facilities and proper and adequate
medical services including hospitalisation are
provided to the workmen and the members of their
families.
(h) He will also enquire whether the various other
directions given by us in this judgment have been
and are being carried out by the mine lessees and
stone crusher owners.
Shri Laxmi Dhar Misra will carry out this assignment
entrusted to him and make his report to the Court on or
before 28th February
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1984. It will be open to Shri Laxmi Dhar Misra to take the
assistance of such other person or persons as he thinks fit
including officers or employees in the Ministry of Labour or
in the Ministry of Mines, who may be made available by the
higher authorities. If Shri Laxmi Dhar Misra finds it
necessary, he may request the Court to extend the time for
submitting his report by addressing a letter to the Registry
of the Court. The State of Haryana will deposit a sum of Rs.
5000 within two weeks from today for the purpose of meeting
the costs and out of pocket expenses of Shri Laxmi Dhar
Misra.
We have no doubt that if these directions given by us
are honestly and sincerely carried out, it will be possible
to improve the life conditions of these workmen and ensure
social justice to them so that they may be able to breathe
the fresh air of social and economic freedom. The Central
Government and the State of Haryana will pay to the
petitioner’s advocate a sum of Rs. 5000 by way of costs. We
are grateful to Mr. Govind Mukhoty for rendering valuable
assistance to us in this case.
PATHAK, J. I have read the judgments prepared by my
brothers Bhagwati and A.N. Sen, and while I agree with the
directions proposed by my brother Bhagwati I think it
proper, because of the importance of the questions which
arise in such matters, to set forth my own views.
Public interest litigation in its present form
constitutes a new chapter in our judicial system. It has
acquired a significant degree of importance in the
jurisprudence practised by our courts and has evoked a
lively, if somewhat controversial, response in legal
circles, in the media and among the general public. In the
United States, it is the name “given to efforts to provide
legal representation to groups and interests that have been
unrepresented or under-represented in the legal process.
These include not only the poor and the disadvantaged but
ordinary citizens who, because they cannot afford lawyers to
represent them, have lacked access to courts, administrative
agencies and other legal forums in which basic policy
decisions affecting their interests are made”.(1) In our own
country, this new class of litigation is justified by its
protagonists on the basis generally of vast areas in our
population of illiteracy and poverty, of social and economic
backwardness, and of an insufficient awareness and apprecia-
153
tion of individual and collective rights. These handicaps
have denied millions of our countrymen access to justice.
Public interest litigation is said to possess the potential
of providing such access in the milieu of a new ethos, in
which participating sectors in the administration of justice
co-operate in the creation of a system which promises legal
relief without cumbersome formality and heavy expenditure.
In the result, the legal organisation has taken on a
radically new dimension and correspondingly new perspectives
are opening up before judges and lawyers and State Law
agencies in the tasks before them. A crusading zeal is
abroad, viewing the present as an opportunity to awaken the
political and legal order to the objectives of social
justice projected in our constitutional system. New slogans
fill the air, and new phrases have entered the legal
dictionary, and we hear of the “justicing system” being
galvanised into supplying justice to the socioeconomic
disadvantaged. These urges are responsible for the birth of
new judicial concepts and the expanding horizon of juridical
power. They claim to represent an increasing emphasis on
social welfare and a progressive humanitarianism.
On the other side, the attempts of the judge and the
lawyer are watched with skeptical concern by those who see
interference by the courts in public interest litigation as
a series of quixotic forays in a world of unyielding and
harsh reality, whose success in the face of opposition
bolstered by the inertia and apathy of centuries is bound to
be limited in impact and brief in duration. They see
judicial endeavour frustrated by the immobility of public
concern and a traditional resistance to change, and believe
that the temporary success gained is doomed to waste away as
a mere ripple in the vastness of a giant slow-moving
society. Even the optimistic sense danger to the credibility
and legitimacy of the existing judicial system, a feeling
contributed no doubt by the apprehension that the region
into which the judiciary has ventured appears barren,
uncharted and unpredictable, with few guiding posts and
direction finding principles, and they fear that a
traditionally proven legal structure may yield to the
anarchy of purely emotional impulse. To the mind trained in
the certainty of the law, of defined principles, of binding
precedent, and the common law doctrine of Stare decisis the
future is fraught with confusion and disorder in the legal
world and severe strains in the constitutional system. At
the lowest, there is an uneasy doubt about where we are
going.
Amidst this welter of agitated controversy, I think it
appropriate to set down a few considerations which seem to
me relevant if public
154
interest litigation is to command broad acceptance. The
history of human experience shows that when a revolution in
ideas and in action enters the life of a nation, the nascent
power so released possesses the potential of throwing the
prevailing social order into disarray. In a changing
society, wisdom dictates that reform should emerge in the
existing polity as an ordered change produced through its
institutions. Moreover, the pace of change needs to be
handled with care lest the institutions themselves be
endangered.
In his Law in the Modern State, Leon Duguit observed:
“Any system of public law can be vital only so far as it is
bused on a given sanction to the following rules: First, the
holders of power cannot do certain things; second, there are
certain things they must do.” (1) Traditional legal remedies
have been preoccupied largely with the first rule. It is
recently that the second has begun substantially to engage
the functional attention of the judicial administration. In
the United States, the Warren Court achieved a remarkable
degree of success in decreeing affirmative action programmes
for the benefit of minorities and other socially or
economically disadvantaged interests through the avenues of
public law. In India, we are now beginning to apply a
similar concept of constitutional duty.
Until the arrival of public interest litigation,’ civil
litigation was patterned exclusively on the traditional
model. The traditional conception of adjudication believes a
suit to be a means for settling disputes between private
parties concerning their private rights. In the usual form,
the suit is an organised proceeding between two individual
contestants. It deals with a definite framework of facts
requiring identification through principles codified by
statute and on the basis of which the right-obligation
relations between the parties are determined, culminating in
the grant or denial of relief by the Court, It is a
proceeding confined to the parties, on whose volition
depends the fact material brought on the record, with the
judge sitting over the contest as a mere passive neutral
umpire. Judicial initiative has no significant role.
The rigid character of civil litigation conceived as a
contests between two individual parties representing their
personal interests has been allowed to expand into a
representative proceeding where a person can, with the
permission of the Court, represent others also having the
same interest although not named in the
155
suit. And the disability, temporary or permanent, of a
person whose legal right is violated, enables another to
represent his interest in a judicial proceeding. They are
cases where next friends are permitted by the Court to act
for minors and persons. of unsound mind, where a person may
petition for the release of an illegally detained
individual, and where a minority shareholder, complaining of
an ultra vires transaction by the management of a company,
can sue in the name of the company. Interveners are allowed
to participate in a proceeding involving the decision of
legal questions affecting their interests. A rate payer of a
local authority has been held entitled to challenge its
illegal action. A person conferred by statute the right to
participate in the decision-making process of a statutory
authority is entitled to seek relief against such decision.
In S.P. Gupta v. Union of India,(1) this Court has laid down
that its jurisdiction can be invoked by a third party in the
case of violation of the constitutional rights of another
person or determinate class of persons who, by reason of
poverty, helplessness, disability or social or economic
disadvantage is unable to move the Court personally for
relief. The Court observed further that where the public
injury was suffered by an indeterminate class of persons
from the breach of a public duty or from the violation of a
constitutional provision of the law, any member of the
public having sufficient interest can maintain an action for
judicial redress for such public injury. The principle was
qualified by the reservation that such petitioner should act
bona fide and not for personal gain or private profit, nor
be moved by political or other oblique motivation. The
doctrine of standing has thus been enlarged in this country
to provide, where reasonably possible, access to justice to
large sections of people for whom so far it had been a
matter of despair.
It is time indeed for the law to do so. In large
measure, the traditional conception of adjudication
represented the socioeconomic vision prevailing at the turn
of the century. The expansion of governmental activity into
the life of individuals through programmes of social welfare
and development had not yet been foreshadowed. An
environment permeated by the doctrine of laissez faire
shaped the development of legal jurisprudence. But soon,
progressive social and economic forces began to grow
stronger and influence the minds of people, and governments,
in response to the pressures of egalitarian and socialist-
oriented urges, began to enter increasingly upon
socioeconomic programmes in which legislation and the courts
156
constituted the principal instruments of change. The
movements accelerated with the close of the Second World
War, and a character of human rights was written into the
political constitutions adopted by most nations emerging
from colonial rule even as, on another plane, it altered our
basic conception of international law. In India, as the
consciousness of social justice spread though our multi-
layered social order, the courts began to come under
increasing pressure from social action groups petitioning on
behalf of the underprivileged and deprived sections of
society for the fulfillment of their aspirations. It is not
necessary to detail the number of cases of public interest
litigation which have entered this Court. It is sufficient
to point out that, despite the varying fortune of those
cases, public interest litigation constitutes today a
significant segment of the Court’s docket.
In the debate before us, questions of substantial
importance have been raised by learned counsel, questions
which go to the procedure adopted by the Court and the
manner of the exercise of its constitutional powers.
This petition invokes the jurisdiction of the Court
under Article 32 of the Constitution, which confers the
guaranteed right to move this Court by appropriate
proceedings for the enforcement of fundamental rights. The
right exercised is a right to a constitutional remedy and
the jurisdiction invoked is a constitutional jurisdiction.
Bearing this in mind, we must also take into account that
the provisions of Article 32 do not specifically indicate
who can move the Court. In the absence of a confining
provision in that respect. It is plain that a petitioner may
be anyone in whom the law recognises a standing to maintain
an action of such nature.
As regards the form of the proceeding and its
character, Article 32 speaks generally of a ”appropriate
proceedings”. It should be a proceeding which can
appropriately lead to an adjudication of the claim made for
the enforcement of a fundamental right and can result in the
grant of effective relief. Article 32 speaks of the Court’s
power “to issue directions or orders or writs”, and the
specific reference to “writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari” is by
way of illustration only. They do not exhaus the content of
the Court’s power under Article 32.
Entering not into a more controversial area, it is
appropriate to consider the nature of the procedure which
the court may adopt under Article 32 of the Constitution. So
far as the traditional private
157
law is concerned, the procedure follows the accepted pattern
and traditional forms associated with it. There can be
little dispute there. Does public interest litigation call
for somewhat different considerations ? Before dealing with
this aspect, however, it is necessary to touch on two
fundamental matters.
First, as to the petition, A practice has grown in the
public of invoking the jurisdiction of this Court by a
simple letter complaining of a legal injury to the author or
to some other person or group of persons, and the Court has
treated such letter as a petition under Article 32 and
entertained the proceeding without anything more. It is only
comparatively recently that the Court has begun to call for
the filing of a regular petition on the letter. I see grave
danger inherent in a practice where a mere letter is
entertained as a petition from a person whose antecedents
and status are unknown or so uncertain that no sense of
responsibility can, without anything more, be attributed to
the communication. There is good reason for the insistence
on a document being set out in a form, or accompanied by
evidence; indicating that the allegations made in it are
made with a sense of responsibility by a person who has
taken due care and caution to verify those allegations
before making them. A plaint instituting a suit is required
by the Code of Civil Procedure to conclude with a clause
verifying the pleadings contained in it. A petition or
application filed in court is required to be supported on
affidavit. These safeguards are necessary because the
document, a plaint or petition or application, commences a
course of litigation involving the expenditure of public
time and public money, besides in appropriate cases
involving the issue of summons or notice to the defendant or
respondent to appear and contest the proceeding. Men are
busy conducting the affairs of their daily lives, and no one
occupied with the responsibilities and pressures of present
day existence welcomes being summoned to a law court and
involved in a litigation. A document making allegations
without any proof whatever of responsibility can conceivably
constitute an abuse of the process of law. There is good
reason, I think, for maintaining the rule that, except in
special circumstances, the document petitioning the court
for relief should be supported by satisfactory verification.
This requirement is all the greater where petitions are
received by the Court through the post. It is never beyond
the bound of possibility that an unverified communication
received through the post by the court may in fact have been
employed mala fide, as an instrument of coercion or
blackmail or other oblique motive against a person named
therein who holds a position of honour and respect in
society.
158
The Court must be ever vigilant against the abuse of
its process It cannot do that better in this matter than
insisting at the earliest stage, and before issuing notice
to the respondent, that an appropriate verification of the
allegations be supplied. The requirement is imperative in
private law litigation. Having regard to its nature and
purpose, it is equally attract to public interest
litigation. While this Court has readily acted upon letters
and telegrams in the past, there is need to insist now on an
appropriate verification of the petition or other
communication before acting on it. As I have observed
earlier, there may be exceptional circumstances which may
justify a waiver of the rule. For example, when the habeas
corpus jurisdiction of the Court is invoked. For in all
cases of illegal detention there is no doubt that the Court
must act with speed and readiness. Or when the authorship of
the communication is so impeccable and unquestionable that
the authority of its contents may reasonably be accepted
prima facie until rebutted. It will always be a matter for
the Court to decide, on what petition will it require
verification and when will it waive the rule.
Besides this, there is another matter which, although
on the surface appears to be of merely technical
significance, merits more than passing attention. I think
the time has come to state clearly that all communications
and petitions invoking the jurisdiction of the Court must be
addressed to the entire Court, that is to say, the Chief
Justice and his companion Judges. No such communication of
petition can properly be addressed to a particular Judge.
When the jurisdiction of the Court is invoked, it is the
jurisdiction of the entire court. Which Judge or Judges will
hear the case is exclusively a matter concerning the
internal regulation of the business of the Court,
interference with which by a litigant or member of the
public constitutes the grossest impropriety. It is well
established that when a division of the Court hears and
decides cases it is in law regarded as a hearing and a
decision by the Court itself. The judgment pronounced and
the decree or order made are acts of the Court, and
accordingly they are respected, obeyed and enforced
throughout the land. It is only right and proper that this
should be known clearly to the lay public. Communications
and petitions addressed to a particular Judge are improper
and violate the institutional personality of the Court. They
also embarrass the judge to whom they are personally
addressed. The fundamental conception of the Court must be
respected, that it is a single indivisible institution, of
united purpose and existing solely for the high
constitutional functions for which it has been created. The
conception of the Court as a loose
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aggregate of individual Judges, to one or more of whom
judicial access may be particularly had, undermines its very
existence and endangers its proper and effective
functioning.
I shall now turn to the character and incidents of the
procedure open to the Court in public interest litigation
and the nature of the power exercised by it during the
proceeding. In public interest litigation, the role held by
the Court is more assertive than in traditional actions.
During the regime of the Warran Court in the United States,
it proceeded to the point where affirmative programmes were
envisaged, and the relationship between right and remedy was
freed from the rigid intimacy which constitutes a
fundamental feature of private law litigation. While
remedial procedure was fashioned according to the demands of
the case and varied from stage to stage, in the shaping of
relief the court treated with the future and devised a code
of regulatory action. Viewed in that context, the role of
the Court is creative rather than passive and it assumes a
more positive attitude in determining facts.
Not infrequently public interest litigation affects the
rights of persons not before the court, and in shaping the
relief the court must invariably take into account its
impact on those interests. Moreover, when its jurisdiction
is invoked on behalf of a group, it is as well to remember
that differences may exist in content and emphasis between
the claims of different sections of the group. For all these
reasons the court must exercise the greatest caution and
adopt procedures ensuring sufficient notice to all interests
likely to be affected. Moreover, the nature of the
litigation sometimes involves the continued intervention of
the court over a period of time, and the organising of the
litigation to a satisfactory conclusion calls for judicial
statesmanship, a close understanding of constitutional and
legal values in the context of contemporary social forces,
and a judicious mix of restraint and activism determined by
the dictates of existing realities. Importantly, at the same
time, the Court must never forget that its jurisdiction
extends no farther than the legitimate limits of its
constitutional powers, and avoid trespassing into political
territory which under the Constitution has been appropriated
to other organs of the State. This last aspect of the matter
calls for more detailed consideration, which will be
attempted later.
The procedures adopted by the Court in cases of public
interest litigation must of course be procedures designed
and shaped by the Court with a view to resolving the problem
presented before it and
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determining the nature and extent of relief accessible in
the circumstances. On the considerations to which I have
adverted earlier, the Court enjoys a degree of flexibility
unknown to the trial of traditional private law litigation.
But I think it necessary to emphasis that whatever the
procedure adopted by the court it must be procedure known to
judicial tenets and characteristic of a judicial proceeding.
There are methods and avenues of procuring material
available to executive and legislative agencies, and often
employed by them for the efficient and effective discharge
of the tasks before them. Not all those methods and avenues
are available to the Court. The Court must ever remind
itself that one of the indicia identifying it as a Court is
the nature and character of the procedure adopted by it in
determining a controversy. It is in that sense limited in
the evolution of procedures pursued by it in the process of
an adjudication and in the grant and execution of the
relief. Legal jurisprudence has in its historical
development identified certain fundamental principles which
form the essential constituents of judicial procedure. They
are employed in every judicial proceeding, and constitute
the basic infrastructure along whose channels flows the
power of the Court in the process of adjudication
What should be the conceivable framework of procedure
in public interest litigation ? This question does not admit
of a clear cut answer. As I have observed earlier, it is not
possible to envisage a defined pattern of procedure
applicable to all cases. Of necessity the pattern which the
Court adopts will vary with the circumstances of each case.
But it seems to me that one principle is clear. If there is
a statute prescribing a judicial procedure governing the
particular case the Court must follow such procedure. It is
not open to the Court to bypass the statute and evolve a
different procedure at variance with it. Where, however, the
procedure prescribed by statute is incomplete or
insufficient, it will be open to the Court to supplement it
by evolving its own rules, Nonetheless, the supplementary
procedure must conform at all stages to the principles of
natural justice. There can be no deviation from the
principles of natural justice and other well accepted
procedural norms characteristic of a judicial proceeding.
They constitute an entire code of general principles of
procedure, tried and proven and hallowed by the sanctity of
common and consistent acceptance during long years of the
historical development of the law. The general principles of
law, to which reference is made here, command the
confidence, not merely of the Judge and the lawyer and the
parties to the litigation, but supply that basic credibility
to the judicial proceeding which strengthens public faith
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in the Rule of Law. They are rules rooted in reason and
fairplay, and their governance guarantees a just disposition
of the case. The court should be wary of suggestions
favouring novel procedures in cases where accepted
procedural rules will suffice.
Turning now to the nature and extent of the relief
which can be contemplated in public interest litigation, we
enter into an area at once delicate and sensitive and
fraught with grave implications. Article 32 confers the
widest amplitude of power on this Court in the matter of
granting relief. It has power to issue “directions or orders
or writs”, and there is no specific indication, no express
language, limiting or circumscribing that power. Yet, the
power is limited by its very nature, that it is judicial
power. It is power which pertains to the judicial organ of
the State, identified by the very nature of the judicial
institution. There are certain fundamental constitutional
concepts which, although elementary, need to be recalled at
times. The Constitution envisages a broad division of the
power of the State between the legislature, the executive
and the judiciary. Although the division is not precisely
demarcated, there is general acknowledgment of its limits.
The limits can be gathered from the written text of the
Constitution, from conventions and constitutional practice,
and from an entire array of judicial decisions. The
constitutional lawyer concedes a certain measure of
overlapping in functional action among the three organs of
the State. But there is no warrant for assuming a
geometrical congruence. It is common place that while the
legislature enacts the law, the executive implements it and
the court interprets it and, in doing so, adjudicates on the
validity of executive action and, under our Constitution,
even judges the validity of the legislation itself. And yet
it is well recognised that in a certain sphere the
legislature is possessed of judicial power, the executive
possesses a measure of both legislative an judicial
functions, and the court, in its duty of interpreting the
law, accomplishes in its perfected action a marginal degree
of legislative exercise. Nonetheless, a fine and delicate
balance is envisaged under our Constitution between these
primary institutions of the State. In similar Constitutions
elsewhere the courts have been anxious to maintain and
preserve that balance. An example is provided by Marbury v.
Madisan(1) I do not mean to say that the Court should
hesitate or falter or withdraw from the exercise of its
jurisdiction. On the contrary, it must plainly do its duty
under the Constitution. But I do say that in every case the
Court should determine
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the true limits of its jurisdiction and, having done so, it
should take care to remain within the restraints of its
jurisdiction.
This aspect of Court action assumes especial
significance in public interest litigation. It bears upon
the legitimacy of the judicial institution, and that
legitimacy is affected as much by the solution presented by
the Court in resolving a controversy as by the manner in
which the solution is reached. In an area of judicial
functioning where judicial activism finds room for play,
where constitutional adjudication can become an instrument
of social policy forged by the personal political philosophy
of the judge, this is an important consideration to keep in
mind.
Where the Court embarks upon affirmative action in the
attempt to remedy a constitutional imbalance within the
social order, few critics will find fault with it so long as
it confines itself to the scope of its legitimate authority.
But there is always the possibility, in public interest
litigation, of succumbing to the temptation of crossing into
territory which properly pertains to the Legislature or to
the Executive Government. For in most cases the jurisdiction
of the Court is invoked when a default occurs in executive
administration, and sometimes where a void in community life
remains unfilled by legislative action. The resulting public
grievance finds expression through social action groups,
which consider the Court an appropriate forum for removing
the deficiencies. Indeed, the citizen seems to find it more
convenient to apply to the Court for the vindication of
constitutional rights than appeal to the executive or
legislative organs of the State.
In the process of correcting executive error or
removing legislative omission the Court can so easily find
itself involved in policy making of a quality and to a
degree characteristic of political authority and indeed run
the risk of being mistaken for one. An excessively political
role identifiable with political governance betrays the
Court into functions alien to its fundamental character, and
tends to destroy the delicate balance envisaged in our
constitutional system between its three basic institutions.
The Judge, conceived in the true classical mould, is an
impartial arbiter, beyond and above political bias and
prejudice, functioning silently in accordance with the
Constitution and his judicial conscience. Thus does he
maintain the legitimacy of the institution he serves and
honour the trust which his office has reposed in him.
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The affirmative schemes framed in public interest
litigation by. the Court sometimes require detailed
administration under constant judicial supervision over
protracted periods. The lives of large sections of people,
some of whom have had no voice in the decision, are shaped
and ordered by mandatory Court action extending into the
future. In that context, it is as well to remember that
public approval and public consent assume material
importance in its successful implementation. In contrast
with policy making by legislation, where a large body of
legislators debate on a proposed legislative enactment, no
such visual impact can be perceived when judicial decrees
are forged and fashioned by a few judicial personages in the
confines of a Court. The mystique of the robe, at the stage
of decision-making, is associated traditionally with
cloistered secrecy and confidentiality and the end-result
commonly issues as a final definitive act of the Court. It
is a serious question whether in every case the same awesome
respect and reverence will endure during different stages of
affirmative action seeking to regulate the lives of large
numbers of people, some of whom never participated in the
judicial process.
There is good reason to suppose that treating with
public interest litigation requires more than legal
scholarship and a knowledge of textbook law. It is of the
utmost importance in such cases that when formulating a
scheme of action, the Court must have due regard to the
particular circumstances of the case, to surrounding
realities including the potential for successful
implementation, and the likelihood and degree of response
from the agencies on whom the implementation will depend. In
most cases of public interest litigation, there will be
neither precedent nor settled practice to add weight and
force to the vitality of the Court’s action. The example of
similar cases in other countries can afford little support.
The successful implementation of the orders of the Court
will depend upon the particular social forces in the
backdrop of local history, the prevailing economic
pressures, the duration of the stages involved in the
implementation, the momentum of success from stage to stage,
and acceptance of the Court’s action at all times by those
involved in or affected by it.
An activist Court, spearheading the movement for the
development and extension of the citizen’s constitutional
rights, for the protection of individual liberty and for the
strengthening of the socioeconomic fabric in compliance with
declared constitutional objectives, will need to move with a
degree of judicial circumspection. In the
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centre of a social order changing with dynamic pace, the
Court needs to balance the authority of the past with the
urges of the future, As far back as 1939, Judge Learned
Hand(1) observed that a Judge “must preserve his authority
by cloaking himself in the majesty of an over-shadowing
past; but he must discover some composition with the
dominant needs of his times”. In that task the Court must
ever be. conscious of the constitutional truism that it
possesses the sanction of neither the sword nor the purse
and that its strength lies basically in public confidence
and support, and that consequently the legitimacy of its
acts and decisions must remain beyond all doubt. Therefore,
whatever the case before it, whatever the context of facts
and legal rights, whatever the social and economic pressures
of the times, whatever the personal philosophy of the Judge,
let it not be forgotten that the essential identity of the
institution, that it is a Court, must remain preserved so
that every action of the Court is informed by the
fundamental norms of law, and by the principles embodied in
the Constitution and other sources of law. If its
contribution to the jurisprudential ethos of society is to
advance our constitutional objectives, it must function in
accord with only those principles which enter into the
composition of judicial action and give to it its essential
quality. In his perceptive Lectures entitled ”The Warren
Court: Constitutional Decision as an Instrument of
Reform”(2). Professor Archicald Cox pointedly observes:
“Ability to rationalise a constitutional judgment
in terms of principles referable to accepted sources of
law is an essential, major element of constitutional
adjudication. It is one of the ultimate sources of the
power of the Court- including the power to gain
acceptance for the occasional great leaps forward which
lack such justification. Constitutional government must
operate by consent of the governed. Court decrees draw
no authority from the participation of the. people.
Their power to command consent depends upon more than
habit or even the deserved prestige of the justices. It
comes, to an important degree, from the continuing
force of the rule of law-from the belief that the major
influence in judicial decisions is not fiat but
principles which bind the judges as well as the
litigants and which apply consistently among all men
today, and also yesterday and tomorrow”.
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There is great merit in the Court proceeding to decide
an issue on the basis of strict legal principle and avoiding
carefully the influence of purely emotional appeal. For that
alone gives the decision of the Court a direction which is
certain, and unfaltering, and that particular permanence in
legal jurisprudence which makes it a base for the next step
forward in the further progress of the law. Indeed, both
certainty of substance and certainty of direction are
indispensable requirements in the development of the law,
and invest it with the credibility which commands public
confidence in its legitimacy.
This warning is of especial significance in these
times, during a phase of judicial history when a few social
action groups tend to show evidence of presuming that in
every case the court must bend and mould its decision to
popular notions of which way a case should be decided.
I have endeavoured by these observations to indicate
some of the areas in which the Court should move with
caution and circumspection when addressing itself to public
interest litigation. As new areas open before the Court with
modern developments in jurisprudence, in a world more
sensitive to human rights as well as the impact of
technological progress, the Court will become increasingly
conscious of its expanding jurisdiction. That is inevitable.
But its responsibilities are correspondingly great, and
perhaps never greater than now. And we must remember that
there is no higher Court to correct our errors, and that we
wear the mantle of infallibility only because our decisions
are final. That we sit at the apex of the judicial
administration and our word, by constitutional mandate, is
the law of the land can induce an unusual sense of power. It
is a feeling we must guard against by constantly reminding
ourselves that every decision must be guided by reason and
by judicial principles.
My brothers have dealt with the preliminary objections
raised by the respondents to the maintainability of this
proceeding. On the considerations to which I have adverted
earlier I have no hesitation in agreeing with them that the
preliminary objections must be rejected. I have no doubt in
my mind that persons in this country obliged to serve as
bonded labour are entitled to invoke Article 23 of the
Constitution. The provisions embodied in that clause form a
vital constituent of the Fundamental Rights set forth in
Part III of the Constitution, and their violation attracts
properly the scope of Article 32 of the Constitution. I also
find difficulty in upholding the objection by the
respondents to the admissibility and relevance
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of the material consisting of the report of the two
advocates and of Dr. Patwardhan appointed as Commissioners.
It is true that the reports of the said Commissioners have
not been tested by cross-examination, but then the record
does not show whether any attempt was made by the
respondents to call them for cross-examination. The further
question whether the appointment of the Commissioners falls
within the terms of order XLVI of the Supreme Court Rules
1966 is of technical significance only, because there was
inherent power in the Court, in the particular
circumstances of this case, to take that action. I have
already set forth earlier my views in respect of the nature
and forms of procedure open to the Court in public interest
litigation and I need not elaborate them here. I may add,
however, that the Court would do well to issue notice to the
respondents, before appointing any Commissioner, in those
cases where there is little apprehension of the
disappearance of evidence.
On the merits of the case I find myself in agreement
with my brother Bhagwati, both in regard to the operation of
the various statutes as well as the directions proposed by
him. The case is one of considerable importance to a section
of our people, who pressed by the twin misfortunes of
poverty and illiteracy, are compelled to a condition of life
which long since should have passed into history. The
continued existence of such pockets of oppression and misery
do no justice to the promises and assurances extended by our
Constitution to its citizens.
AMARENDRA NATH SEN, J. The relevant facts have been
fully set out in the judgment of my learned brother
Bhagwati, J. My learned brother has also recorded in his
judgment the various contentions which were urged before us
in this writ petition.
A preliminary objection was raised by Shri K. L.
Bhagat. Additional Solicitor General of India and also by
Shri Phadke, learned counsel appearing on behalf of the
respondents, as to the maintainability of the present
petition. The objection to the maintainability of the
present petition is taken mainly on the following three
grounds:-
1 Art. 32 of the Constitution is not attracted to
the instant case as no fundamental right of the
petitioners or of the workmen referred to in the
petition are infringed.
2 A letter addressed by a party to this Court cannot
be treated as a writ petition and in the absence
of any
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verified petition this Court cannot be moved to
exercise its writ jurisdiction.
3 In a proceeding under Art. 32 of the Constitution
this Court is not empowered to appoint any
commission or an investigating body to enquire
into the allegations made and make a report to
this Court on the basis of the enquiry to enable
this Court to exercise its power and jurisdiction
under Art. 32 of the Constitution.
I propose to consider the objections in the order noted
above. I shall first deal with the first objection, namely,
that Art. 32 of the Constitution is not attracted as there
is no violation of any fundamental right of the petitioner
or of the workmen referred to in the petition.
The substance of the grievance of the petitioners in
this petition is that the workmen referred to in the
communication addressed to this Court are bonded labourers.
In 1976, the Parliament enacted the Bonded Labour System
(Abolition) Act, 1976 and by virtue of the provisions of the
said Act, the bonded labour system has been declared to be
illegal in this country. Any person who is wrongfully and
illegally employed as a labourer in violation of the
provisions of the Act, is in essence deprived of his
liberty. A bonded labourer truly becomes a slave and the
freedom of a bonded labourer in the matter of his employment
and movement is more or less completely taken away and
forced labour is thrust upon him. When any bonded labourer
approaches this Court, the real grievance that he makes is
that he should be freed from this bondage and he prays for
being set at liberty and liberty is no doubt a fundamental
right guaranteed to every person under the Constitution.
There cannot be any manner of doubt that any person who is
wrongfully and illegally detained and is deprived of his
liberty can approach this Court under Art. 32 of the
Constitution for his freedom from wrongful and illegal
detention, and for being set at liberty. In my opinion,
whenever any person is wrongfully and illegally deprived of
his liberty, it is open to anybody who is interested in the
person to move this Court under Art. 32 of the Constitution
for his release. It may not very often be possible for the
person who is deprived of his liberty to approach this
Court, as by virtue of such illegal and wrongful detention,
he may not be free and in a position to move this Court. The
Petitioner in the instant case claims to be an association
interested in the welfare of society and particularly of the
weaker section. The Petitioner further
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states that the petitioner seeks to promote the welfare of
the labourers and for promoting the welfare of labour, the
petitioner seeks to move this Court for releasing the bonded
labourers from their bondage and for restoring to them their
freedom and other legitimate rights. The bonded labourers
working in the far away places are generally poor and belong
to the very weak section of the people. They are also not
very literate and they may not be conscious of their own
rights. Further, as they are kept in bondage their freedom
is also restricted and they may not be in a position to
approach this Court. Though no fundamental right of the
petitioner may be said to be infringed, yet the petitioner
who complains of the violation of the fundamental right of
the workmen who have been wrongfully and illegally denied
their freedom and deprived of their constitutional right
must be held to be entitled to approach this Court on behalf
of the bonded labourers for removing them from illegal
bondage and deprivation of liberty. The locus standi of the
petitioner to move this Court appear to be conclusively
established by the decision of this Court in the case of
S.P. Gupta v. Union of India & Anr.(1) Forced labour is
constitutionally forbidden by Art. 23 of the Constitution.
As in the present case the violation of the fundamental
right of liberty of the workmen who are said to be kept in
wrongful and illegal detention, employed in forced labour,
is alleged, Art. 32 of the Constitution to my mind, is
clearly attracted. The first ground raised on behalf of the
respondents cannot, therefore, be sustained.
Before I proceed to deal with the second ground urged
on behalf of the respondents, it will be convenient to set
out the provisions of Art. 32 of the Constitution. Art. 32
read as follows:-
“(1) The right to move the Supreme Court by appropriate
proceedings for the enforcement of the rights conferred
by this Part is guaranteed.
(2) The Supreme Court shall have power to issue
directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo
warrants and certiorari, whichever may be appropriate,
for the enforcement of any of the rights conferred by
this part.
(3) Without prejudice to the powers conferred on the
Supreme Court by clauses (1) and (2), Parliament may by
law empower
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any other Court to exercise within the local limits of
its jurisdiction all or any of the powers exercisable
by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be
suspended except as otherwise provided for by this
Constitution.”
Art. 32(1) confers the right to move this Court by
appropriate proceedings for enforcement of the fundamental
rights guaranteed under the Constitution. Art. 32(2) makes
provision for the powers of this Court in the matter of
granting relief in any proceeding in this Court for
enforcement of the fundamental rights guaranteed by the
Constitution. Art. 32(3) and 32(4) which I have also set out
for the purpose of complete understanding of the provisions
of Art. 32 for proper appreciation of its scope and effect,
do not have any material bearing on the question involved in
the present proceeding.
The second ground which raises the question whether the
letter addressed by a party to this Court can be treated as
a writ petition and in the absence of any verified petition
this court can be moved to exercise its writ jurisdiction,
is essentially an objection to the procedure to be adopted
by this Court in the matter of entertaining a proceeding
under Art. 32 for enforcement of fundamental rights of the
parties. Art. 32(1) of the Constitution which has been
earlier set out guarantees the right to move this Court by
an appropriate proceeding for the enforcement of the
fundamental rights. Art. 32(2) confers wide powers on this
Court in the matter of granting relief against any violation
of the fundamental rights. Art. 32 or for that matter any
other article does not lay down any procedure which has to
be followed to move this Court for relief against the
violation of any fundamental right. Art. 32(1) only lays
down that the right to move this Court by appropriate
proceedings for enforcement of fundamental rights is
guaranteed. The Constitution very appropriately leaves the
question as to what will constitute an appropriate
proceeding for the purpose of enforcement of fundamental
rights to be determined by the Court. This Court, when
sought to be moved under Art. 32 by any party for redressing
his grievance against the violation of fundamental rights
has to consider whether the procedure followed by the party
is appropriate enough to entitle the court to proceed to act
on the same. No doubt this Court has framed rules which are
contained in part IV, Order XXXV of the Supreme Court Rules
under the Caption “application for enforcement of
fundamental
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rights (“Art. 32 of the Constitution”). Generally speaking,
any party who seeks to move this Court under Act. 32 of the
Constitution should conform to the rules prescribed. The
rules lay down the procedure which is normally to be
followed in the matter of any application under Art. 32 of
the Constitution. These rules are rules relating to the
procedure to be adopted and the rules are intended to serve
as maids to the Deity of Justice. Procedural law which also
forms a part of the law and has to be observed, is, however,
subservient to substantive law and the laws of procedure are
prescribed for promoting and furthering the ends of justice.
There cannot be any doubt that this Court should usually
follow the procedure laid down in O.XXXV of the Rules of
this Court and should normally insist on a petition properly
verified by an affidavit to be filed to enable the Court to
take necessary action on the same. Though this Court should
normally insist on the rules of procedure being followed, it
cannot be said, taking into consideration the nature of
right conferred under Art. 32 to move this Court by an
appropriate proceeding and the very wide powers conferred on
this Court for granting relief in the case of violation of
fundamental rights that this Court will have no jurisdiction
to entertain any proceeding which may not be in conformity
with procedure prescribed by the Rules of this Court. The
Rules undoubtedly lay down the procedure which is normally
to be followed for making an application under Art. 32 of
the Constitution. They, however, do not and cannot have the
effect of limiting the jurisdiction of this Court of
entertaining a proceeding under Art. 32 of the Constitution,
if made, only in the manner prescribed by the rules. For
effectively safeguarding the fundamental rights guaranteed
by the Constitution, the Court in appropriate cases in the
interests of justice will certainly be competent to treat a
proceeding, though not in conformity with the procedure
prescribed by the Rules of this Court, as an appropriate
proceeding under Art. 32 of the Constitution and to
entertain, the same. Fundamental rights guaranteed under the
Constitution are indeed too sacred to be ignored or trifled
with merely on the ground of technicality or any rule of
procedure. It may further be noticed that the rules framed
by this Court do not also lay down that this Court can be
moved under Art. 32 of the Constitution only in accordance
with the procedure prescribed by the Rules and not
otherwise. A mere technicality in the matter of form or
procedure which may not in any way affect the substance of
any proceeding should not stand in the way of the exercise
of the very wide jurisdiction and powers conferred on this
Court under Art. 32 of the Constitution for enforcement of
fundamental rights guaranteed under the Constitution. Taking
into
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consideration the substance of the matter and the nature of
allegations made, it will essentially be a matter for the
Court to decide whether the procedure adopted can be
considered to be an appropriate proceeding within the ambit
of Art. 32 of the Constitution. The Court, if satisfied on
the materials placed in the form of a letter or other
communication addressed to this court, may take notice of
the same in appropriate cases. Experience shows that in many
cases it may not be possible for the party concerned to file
a regular writ petition in conformity with procedure laid
down in the Rules of this Court. It further appears that
this Court for quite some years now has in many cases
proceeded to act on the basis of the letters addressed to
it. A long standing practice of the Court in the matter of
procedure also acquires sanctity. It may also be pointed out
that in various cases the Court has refused to take any
notice of letters or other kind of communications addressed
to Court and in many cases also the court on being moved by
a letter has directed a formal writ petition to be filed
before it has decided to proceed further in the matter. It
is, however, eminently desirable, in my opinion, that
normally the procedure prescribed in the rules of this Court
should be followed while entertaining a petition under Art.
32 of the Constitution, though in exceptional cases and
particularly in matter of general public interest, this
Court may, taking into consideration the peculiar facts and
circumstances of the case, proceed to exercise its
jurisdiction under Art. 32 of the constitution for
enforcement of fundamental rights treating the letter or the
communication in any other form as an appropriate preceding
under Art. 32 of the Constitution. It is, however, eminently
desirable that any party who addresses a letter or any other
communication to this Court seeking intervention of this
Court on the basis of the said letter and communication
should address this letter or communication to this Court
and not to any individual Judge by name. Such communication
should be addressed to the Chief Justice of the Court and
his companion Justices. A private communication by a party
to any Learned Judge over any matter is not proper and may
create embarrassment for the Court and the Judge concerned.
In the present case, the unfortunate workers who are
emploced as bonded labourers at as distant place, could not
possibly in view of their bondage, move this Court,
following the procedure laid down in the Rules of this
Court. The Petitioner which claims to be a Social Welfare
Organisation interested in restoring liberty and dignity to
these unfortunate bonded labourers should be considered
competent to move this Court by a letter or like
communication addressed to
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this Court, to avoid trouble and expenses, as the petitioner
is not moving this Court for any personal or private
benefit.
I shall now consider the third and the last objection
which relates to the powers of this Court to direct an
enquiry into the allegations made and to call for a report
in a proceeding under Art. 32 of the Constitution to enable
this Court to exercise its power and jurisdiction under Art.
32 of the Constitution.
We have earlier noted that the fundamental rights are
guaranteed by the Constitution and for the enforcement of
the fundamental rights very wide powers have been conferred
on this Court. Before this Court proceeds to exercise its
owers under Art. 32 of the Constitution for enforcing the
fundamental rights guaranteed, this Court has to be
satisfied that there has been a violation of the fundamental
rights. The fundamental rights may be alleged to have been
violated under various circumstances. The facts and
circumstances differ from case to case. Whenever, however,
there is an allegation of violation of fundamental rights,
it becomes the responsibility and also the sacred duty of
this Court to protect such fundamental rights guaranteed
under the Constitution provided that this Court is satisfied
that a case for interference by this Court appears prima
facie to have been made out. very often the violation of
fundamental rights is not admitted or accepted. On a proper
consideration of the materials the Court has to come to a
conclusion whether there has been any violation of
fundamental rights to enable the Court to grant appropriate
reliefs in the matter. In various cases, because of the
peculiar facts and circumstances of the case the party
approaching this Court for enforcement of fundamental rights
may not be in a position to furnish all relevant materials
and necessary particulars. If, however, on a consideration
of the materials placed, the Court is satisfied that a
proper probe into the matter is necessary in the larger
interest of administration of justice and for enforcement of
fundamental rights guaranteed, the Court, in view of the
obligations and duty cast upon it of preserving and
protecting fundamental rights, may require better and
further materials to enable the Court to take appropriate
action; and there cannot be anything improper in the proper
exercise of Court’s jurisdiction under Art. 32 of the
Constitution to try to secure the necessary materials
through appropriate agency. The Commission that the Court
may appoint or the investigation that the court may direct
is essentially for the Court’s satisfaction as to the
correctness or otherwise of the allegation of violation of
fundamental rights to enable the Court to decide the course
to be adopted for
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doing proper justice to the parties in the matter of
protection of their fundamental rights. We have to bear in
mind that in this land of ours, there are persons without
education, without means and without opportunities and they
also are entitled to full protection of their rights or
privileges which the Constitution affords. Living in chilled
penury without necessary resources and very often not fully
conscious of their rights guaranteed under the Constitution,
a very large section of the people commonly termed as the
weaker section live in this land. When this Court is
approached on behalf of this class of people for enforcement
of fundamental rights of which they have been deprived and
which they are equally entitled to enjoy, it becomes the
special responsibility of this Court to see that justice is
not denied to them and the disadvantageous position in which
they are placed, do not stand in the way of their getting
justice from this Court. The power to appoint a commission
or an investigating body for making enquiries in terms of
directions given by the Court must be considered to be
implied and inherent in the power that the Court has under
Art. 32 for enforcement of the fundamental rights guaranteed
under the Constitution. This is a power which is indeed
incidental or ancillary to the power which the Court is
called upon to exercise in a proceeding under Art. 32 of the
Constitution. It is entirely in the discretion of the Court,
depending on the facts and circumstances of any case, to
consider whether any such power regarding investigation has
to be exercised or not. The Commission that the Court
appoints or the investigation that the Court directs while
dealing with a proceeding under Art. 32 of the Constitution
is not a commission or enquiry under the Code of Civil
Procedure. Such power must necessarily be held to be implied
within the very wide powers conferred on this Court under
Art. 32 for enforcement of fundamental rights. I am, further
of the opinion that for proper exercise of its powers under
Art. 32 of the Constitution and for due discharge of the
obligation and duty cast upon this Court in the matter of
protection and enforcement of fundamental rights which the
Constitution guarantees, it must be held that this Court has
an inherent power to act in such a manner as will enable
this Court to discharge its duties and obligations under
Art. 32 of the Constitution properly and effectively in the
larger interest of administration of justice, and for proper
protection of constitutional safeguards. I am, therefore, of
the opinion that this objection is devoid of any merit.
I may incidentally observe that as a result of such
action on the part of the Court attention of the appropriate
authorities concerned has in a number of cases been
pointedly drawn to the existence of
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bonded labourers in various parts of the country and to
their miserable plight and a large number of bonded
labourers have been freed from their bondage. To my mind,
the litigation of this type particularly in relation to
bonded labourers is really not in nature in adversary
litigation and it becomes the duty of the State and also of
the appropriate authorities to offer its best co-operation
to see that this evil practice which has been declared
illegal is ended at the earliest. The existence of bonded
labour in the country is an unfortunate fact. Whenever there
is any allegation of the existence of bonded labour in any
particular State, the State instead of seeking to come out
with a case of denial of such existence on the basis of a
feeling that the existence of bonded labour in the State may
cast a slur or stigma on its administrative machinery,
should cause effective enquiries to be made into the matter
and if the matter is pending in this Court, should co-
operate with this Court to see that death-knell is sounded
on this illegal system which constitutes a veritable social
menace and stands in the way of healthy development of the
nation.
For reasons aforesaid, I do not find any merit in the
preliminary objections raised and I agree with my learned
brother that the preliminary objections must be over-ruled.
On the merits of the case my learned brother Bhagwati,
J. has in his judgment carefully and elaborately discussed
all the aspects. Apart from the principal grievance made
that the workmen in the instant case are bonded labourers,
various grievances on behalf of the workmen have been voiced
and denial to the workmen of various other just rights has
been alleged. The grievance of denial of other just rights
to the workmen and the reliefs claimed for giving the
workmen the benefits to which they may be entitled under
various legislations enacted for their welfare are more or
less in the nature of consequential reliefs incidental to
the main relief of freedom from bonded and forced labour to
which the workmen are subjected. I must frankly confess that
in the facts and circumstances of this case I have some
doubts as to the applicability of the provisions of Inter
State Migrant Workmen (Regulation of Employment and
Conditions of Service) Act, 1979. The views expressed by my
learned brother Bhagwati, J. in his judgment, to my mind, do
not amount to any adjudication on the question of
applicability of the Inter State Migrant Workmen (Regulation
of Employment and Conditions of Service) Act, 1979. The
observations made by my learned brother Bhagwati, J. and the
directions given by him on the various aspects with regard
to the merits of the case after carefully considering the
provisions of
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all the relevant labour legislations enacted tor the benefit
of labourers and for improvement and betterment of their
lot, are for furthering the interests of the workmen and for
proper protection and preservation of their just rights and
to enable the appropriate authorities to take necessary
action in the matter. As I am in agreement with the views
expressed by my learned Brother Bhagwati, J. I do not
propose to deal with these aspects at any length and I
content myself by expressing my agreement with the judgment
of my learned brother Bhagwati, J. on these matters.
S. R. Petitions allowed and
preliminary grounds
rejected.
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