People's Union for Democratic Rights
& Ors Vs. Union of India & Ors [1982] INSC 67 (18 September 1982)
BHAGWATI, P.N.
BHAGWATI, P.N.
ISLAM, BAHARUL (J)
CITATION: 1982 AIR 1473 1983 SCR (1) 456 1982
SCC (3) 235 1982 SCALE (1)818
CITATOR INFO:
RF 1983 SC 75 (6) R 1983 SC 328 (3) RF 1984
SC 177 (1,6,7) F 1984 SC 802 (10,21) RF 1987 SC1086 (4)
ACT:
Public Interest Litigation, scope and need
for- Violation of various labour laws in relation to workmen employed in the
construction work connected with the Asian Games like Constitution of India,
1950 Arts. 24, Minimum wages Act, 1948, Equal Remuneration Act. The employment
of Children Act, 1938 and 1970, Interstate Migrant workman (Regulation of
Employment and conditions of Service) Act, 1970 and contract Labour (Regulation
and Abolition) Act, 1970-Locus-standi-Maintainabillty of the writ and remedial
relief that could be granted-Duties of Court regarding sentencing in cases of
violation of Labour Laws-Constitution of India Articles 14, 23, 24 and 32-Scope
of Article 23 Meaning of "begar" Duty of State when violation of
Arts. 17, 23 and 24 is complained.
HEADNOTE:
Petitioner No. 1 is an organisation formed
for the purpose of protecting democratic rights. It commissioned three social
scientists for the purpose of investigating and inquiring into the conditions
under which the workmen engaged in the various Asiad Projects were working.
Based on the report made by these three social scientists after personal
investigation and study the 1st petitioner addressed a letter to Hon'ble Mr.
Justice Bhagwati complaining of violation of various labour laws by the
respondents' and/or their agents and seeking interference by the Supreme Court
to render social justice by means of appropriate directions to the affected
workmen. The Supreme Court treated the letter as a writ petition on the
judicial side and issued notice to the Union of India, Delhi Administration and
the Delhi Development Authority.
The allegations in the petition were:
(i) The various authorities to whom the
execution of the different projects was entrusted engaged contractors for the
purpose of carrying out the construction work of the projects and they were
registered as principal employers under section 7 of the Contract Labour
(Regulation and Abolition) Act. 1970. These contractors engaged workers through
"Jamadars" who brought them from different parts of India
particularly the States of Rajasthan, Uttar Pradesh and Orissa and paid to
these Jamadars the minimum wage of Rs. 9.25 per day per worker and not to the
workmen direct. The Jamadars deducted Rupee one per day per worker as their
commission with the result that there was a violation of the provisions of A
the Minimum Wages Act;
(ii) The provisions of Equal Remuneration
Act, 1976 were violated as the women workers were being paid Rs. 71/- per day,
the balance of the amount of the wage was being misappropriated by the
Jamadars:
(iii) There was violation of Article 24 of
the Constitution and of the - . provisions of the Employment of Children Acts,
1938 and 1970 in as much as children below the age of 14 years were employed by
the contractors in the construction work of the various projects, (iv) There
was violation of the provisions of the Contract Labour (Regulations and
Abolition) Act, 1970 which resulted in deprivation and exploitation of the
workers and denial of their right to proper living condition and medical and
other facilities under the Act; and (v) The provisions of the Inter-state
Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979,
though brought into force as far back as 2nd October 1980 in the Union.
Territory of Delhi was not implemented by the
Contractors.
Allowing the petition, the Court,
HELD: l:1. Public interest litigation which
is strategic arm of the legal aid movement and which is intended to bring
justice within the reach of the poor masses, who constitute the low visibility
area of humanity, is a totally different kind of litigation from the ordinary
traditional litigation which is essentially of an adversary character where there
is a dispute between two litigating parties, one making claim or seeking relief
against the other and that other opposing such claim or resisting such relief.
Public interest litigation is brought before the court not for the purpose of
enforcing the right of one individual against another as happens in the case of
ordinary litigation, but it is intended to promote and indicate public interest
which demands that violations of constitutional or legal rights of large number
of people who are poor, ignorant or in a socially or economically disadvantaged
position should not go unnoticed and un-redressed. That would be destructive of
the Rule of Law which forms one of the essential elements of public interest in
any democratic form of Government. [467 C-F] 1:2. The Rule of Law does not mean
that the protection of the law must be available only to a fortunate few or
that the law should be allowed to be prostituted by the vested interests for
protecting and upholding the status quo under the guise of enforcement of their
civil and political rights. The poor too have civil and political rights and
the Rule of law is meant for them also, though today it exists only on paper
and not in reality. If the sugar barons and the alcohol kings have the
Fundamental rights to carry on their business and to fatten their purses by
exploiting the consuming public, certainly the "chamaras" to
belonging 458 to the lowest strata of society have Fundamental Right to earn on
honest living through their sweat and toil. Large numbers of men, women and
children who constitute the bulk of an population are today living a sub human
existence in conditions of object poverty; utter grinding poverty bas broken
their back and sapped their moral fiber. They have no faith in the existing
social and economic system. Nor can these poor and deprived sections of
humanity afford to enforce their civil and political rights. (467 P-H; 468 A-D]
1:3. The only solution of making civil and political rights meaningful to these
large sections of society would be to remake the material conditions and
restructure the social and economic order so that they may be able to realise
the economic, social and cultural rights. Of course, the task of restructuring
the social and economic order so that the social and economic right become a
meaningful reality for the poor and lowly sections of the community is one
which legitimately belongs to the legislature and the executive but mere
initiation of social and economic rescue programmes by the executive and the
legislature would not be enough and it is only through multi-dimensional
strategies including public interest litigation that these social and economic
rescue programmes can be made effective. [468 G-H, 469 B-D] 1:4. Public
interest litigation is essentially a cooperative or collaborative effort on the
part of the petitioner, the State or public authority and the Court to secure
observance of the constitutional or legal rights, benefits and privileges
conferred upon the vulnerable sections of the community and to reach social
justice to them. The State or public authority against whom public interest
litigation is brought should be as much interested in ensuring basic human
rights, constitutional as well as legal, to those who are in a socially and
economically disadvantaged position, as the petitioner who brings the public
interest litigation before the court. The State or public authority which is
arrayed as a respondent in public interest litigation should, in fact, welcome
it, as it would give it an opportunity to right a wrong or to redress an
injustice done to the poor and weaker sections of the community whose welfare
is and must be the prime concern of the State or the public authority. [469
D-F] l:5. The legal aid movement and public interest litigation seek to bring
justice to these forgotten specimens of humanity who constitute the bulk of the
citizens of India and who are really and truly the "People of India who
gave to themselves this magnificent Constitution. Pendency of large arrears in
the courts cannot be any reason for denying access of justice to the poor and
weaker sections of the community. [470 E-F] 1:6. The time has now come when the
courts must become the courts for the poor and struggling masses of this
country. They must shed their character as upholders of the established order
and the status quo. They must be sensitised to the need of doing justice to the
large masses of people to whom justice has been denied by a cruel and heartless
society for generations. The realisation must come to them that social justice
is the signature tune of our Constitution and it is their solemn duty under the
Constitution to enforce the basic human rights of the poor and vulnerable
sections of the community and actively help in the 459 realisation of the
constitutional goals. This new change has to come if the judicial system is to
become an effective instrument of social justice for without it, it cannot
survive for long. Fortunately this change is gradually taking place and public
interest litigation is playing a large part in bringing about this change. It
is through public interest litigation that the problems of the poor are now
coming to the forefront and the entire theatre of the law is changing. It holds
out great possibilities for the future. This writ petition is one such instance
of public interest litigation. [470 G-H; 471 A-C]
2. It is true that construction industry does
not find a place on the schedule to the Employment of Children Act, 1938 and
the Prohibition enacted in section 3 sub-section ( 3) of that Act against the
employment of a child who has not completed his fourteenth year cannot apply to
employment in construction industry. But, apart altogether from the requirement
of Convention No. 59 of C the International Labour organisation and ratified by
India, Article 24 of the Constitution provides that no child below the age of
14 shall be employed to work in any factory or mine or engaged in any other
hazardous employment. This is a constitutional prohibition which, even if not
followed up by appropriate legislation, must operate propiro vigore and
construction work being plainly and indubitably a hazardous employment, it is
clear that by reason of this Constitutional prohibition, no child below the age
of 14 years can be allowed to be engaged in construction work. Therefore,
notwithstanding the absence of specification of construction industry in the
Schedule to the Employment of Children Act 1938, no child below the age of 14
years can be employed in construction work and the Union of India as also every
state Government must ensure that this constitutional mandate is not violated
in any part of the Country [474 A-F]
3. Magistrates and Judges in the country must
view violations of labour laws with strictness and whenever any violations of
labour laws are established before them, they should punish the errant
employers by imposing adequate punishment. The labour laws are enacted for
improving the conditions of workers and the employers cannot be allowed to buy
off immunity against violations of labour laws by paying a paltry fine which
they would not mind paying, because by violating the labour laws they would be
making profit which would far exceed the amount of the fine. If violations of
labour laws are to be punished with meagre fines, it would be impossible to
ensure observance of the labour laws and the labour laws would be reduced to
nullity. They would remain merely paper tigers without any teeth or claws. [476
E-H] 4:1. It is true that the complaint of the petitioners in the writ petition
is in regard to the violations of the provisions of various labour laws
designed for the welfare of workmen, and therefore from a strictly traditional
point of view it would be only the workmen whose legal rights are violated who
would be entitled to approach the court for judicial redress. But the
traditional rule of standing which confines access to the judicial process only
to those to whom legal injury is caused or legal wrong is done has now been
jettisoned by the Supreme Court and the narrow confines within which the rule
of standing was imprisoned for long years as a result of inheritance of the
Anglo-saxon system of jurisprudence have been broken and a new dimension has
been given to the doctrine of 460 locus standi which has revolutionised the
whole concept of access to justice in a way not known before to the Western
System of jurisprudence. [477 F-H] 4:2. Having regard to the peculiar socio
economic conditions prevailing in the country where there is considerable
poverty, illiteracy and ignorance obstructing and impeding accessibility to the
judicial process, it would result in closing the doors of justice to the poor
and deprived sections of the community if the traditional rule of standing
evolved by Anglo-Saxon jurisprudence that only a person wronged can sue for
judicial redress were to be blindly adhered to and followed, and it is
therefore Necessary to evolve a new strategy by relaxing this traditional rule
of standing in order that justice may become easily available to the lowly and
the lost. [478 A-C] 4:3. Where a person or class of persons to whom legal
injury is caused or legal wrong is done is by reason of poverty, disability or
socially or economically disadvantaged position not able to approach the Court
for judicial redress, any member of the public acting bonafide and not out of
any extraneous motivation may move the Court for judicial redress of the legal
injury or wrong suffered by such person or class of persons and the judicial
process may be set in motion by any public spirited individual or institution
even by addressing a letter to the court. Where judicial redress is sought of a
legal injury or legal wrong suffered by a person or class of persons who by
reason of poverty, disability or socially or economically disadvantaged
position are unable to approach the court and the court is moved for this
purpose by a member of a public by addressing a letter drawing the attention of
the court to such legal injury or legal wrong, court would cast aside all
technical rules of procedure and entertain the letter as a writ Petition on the
judicial side and take action upon it.
[478 C-F] Here, the workmen whose rights are
said to have been violated and to whom a life of basic human dignity has been
denied are poor, ignorant, illiterate humans who, by reason of their poverty
and social and economic disability, are unable to approach the courts for
judicial redress and hence the petitioners have, under the liberalised rule of
standing, locus standi to maintain the present writ petition espousing the
cause of the workmen. The petitioners are not acting mala fide or out of
extraneous motives since the first petitioner is admittedly an organisation
dedicated to tho protecting and enforcement of Fundamental Rights and making
Directive Principles of State Policy enforceable and justiciable.There can be
no doubt that it is out of a sense of public service that the present
Litigation has been brought by the petitioners and it is clearly maintainable.
[478 G-H; 479 A-B]
4.4 The Union of India, the Delhi
Administration and the Delhi Development Authority cannot escape their
obligation to the workmen to ensure observance of the provisions of various
labour law by its contractors and for non-compliance with the laws by the
contractors, the workmen would clearly have a cause of actions against them as
principal employers. So far as to Contract Labour (Regulation and Abolition)
Act, 1970 is concerned, section 20 is clear that if any amenity required to be
provided under sections 16 to 18 or 19 for the 461 benefit of the workmen
employed in an establishment is not provided by the contractor, the obligation
to provide such amenity rests on the principal employer. [479 C-D] Sections 17
and 18 of the Inter-state Migrant Workmen (Regulation of Employment and
Conditions of Service) Act 1979 also make principal employer liable to make
payment of the wages to the wages to the migrant workmen employed by the
contractor as also to pay the allowances provided under sections 14 and 15 and
to provide the facilities specified in section 16 of such migrant workmen. [479
F-G] Article 24 of the Constitution embodies a Fundamental Right which is
plainly and indubitably enforceable against every one and by reason of its
compulsive mandate, no one can employ a child below the age of 14 years in a
hazardous employment. Since, construction work is a hazardous employment, no
child below the age of 14 years can be employed in constructions work and
therefore, not only are the contractors under a constitutional mandate not to
employ any child below the age of 14 years, but it is also the duty of the
Union of India, the Delhi Administration and the Delhi Development Authority to
ensure that this constitutional obligation is obeyed by the contractors to whom
they have entrusted the construction work of the various Asiad Projects.
Similarly the respondents must ensure compliance with by the contractors of the
Provisions of the equal Remuneration Act, 1946 as they express the principle of
equality embodied in Article 14 of the Constitution. [479 G-H; 480 A-D] No
doubt, the contractors are liable to pay the minimum wage to the workmen
employed by them under the Minimum Wage Act 1948 but the Union of India, the
Delhi Administration and the Delhi Development Authority who have entrusted the
construction work to the contractors would equally be responsible to ensure
that the minimum wage is paid to the workmen by their contractors.
[480 G-H] 5:1. It is true that the present
writ petition cannot be maintained by the petitioners unless they can show some
violation of a Fundamental Right, for it is only for enforcement right that a
writ petition can be maintained in this Court under Article 32. But, certainly
the following complaints do legitimately form the subject matter of a writ petition
under Article 32; namely, (i) the complaint of violation of Article 24 based on
the averment that children below the age of 14 years are employed in the
construction work of the Asiad Projects, (ii) allegation of non- observance of
the provisions of the Equal Remuneration Act 1946, is in effect and substance a
complaint of breach of the principle of equality before the law enshrined in
Article 14; and (iii) the complaint of non-observance of the provisions of the Contract
Labour (Regulation and Abolition) Act 1970 and the Interstate Migrant Workmen
(Regulations of Employment and Conditions of Service) Act 1979 as it is a
complaint relating to violation of Article 21. Now the rights and benefits
conferred on the workmen employed by a contractor under the provisions of the Contract
Labour (Regulation and Abolition Act 1970 and the Inter-State Migrant Workmen
Regulation of Employment and Conditions of Service) Act 1979 which became
enforceable w.e.f. 4-6-1982 are clearly intended to ensure basic 462 human
dignity to the workmen and if the workmen are deprived of any of these rights
and benefits to which they are entitled under the provisions of these two
pieces of social welfare legislation, that would clearly be a violation of
Article 21 by the Union of India, the Delhi Administration and the Delhi
Development Authority which, as principal employers, are made statutorily
responsible for securing such rights and benefits to the workmen; and (iv) the
complaint in regard to non-payment of minimum wage to the workmen under the Minimum
Wages Act 1948, is also one relating to breach of a Fundamental Right enshrined
in Article 23 which is violated by non-payment of minimum wage to the workmen.
[481 D-H; 482 A-F] Maneka Gandhi v. Union of
India, [1978] 2 SCR 663;
Francis Coralie Mullin v. The Administrator
of Union Territory of Delhi & Others, [1981] 2 SCR 516, applied.
5:2. Many of the fundamental rights enacted
in Part III operate as limitations on the power of the State and impose
negative obligations on the State not to encroach on individual liberty and
they are enforceable only against the State. But there are certain fundamental
rights conferred by the Constitution which are enforceable against the whole
world and they are to be found inter alia in Articles 17, 23 and 24. [483 C-D]
5:3. Article 23 is clearly designed to protect the individual not only against
the State but also against other private citizens. Article 23 is not limited in
its application against the State but it prohibits "traffic in human
beings and begar and other similar forms of forced labour" practised by
anyone else. The prohibition against "traffic in human being and begar and
other similar forms of forced labour" is clearly intended to be a general
prohibition, total in its effect and all pervasive in its range and it is
enforceable not only against the State but also against any other person
indulging in any such practice. [484 G-H; 485 A] 5:4. The word
"begar" in Article 23 is not a word of common use in English
language, but a word of Indian origin which like many other words has found its
way in English vocabulary. It is a form of forced labour under which a person
is compelled to work without receiving any remuneration. Begar is thus clearly
a film of forced labour.
[485 E-G] S. Vasudevan v. S.D. Mittal AIR
1962 Bom. 53 applied.
5:5. It is not merely 'begar' which is
constitutionally prohibited by Article 23 but also all other similar forms of
forced labour. Article 23 strikes at forced labour in whatever form it may
manifest itself, because it is violative of human dignity and is contrary to basic
human values. To contend that exacting labour by passing some remuneration,
though it be inadequate will not attract the provisions of Article 23 is to
unduly restrict the amplitude of the prohibition against forced labour enacted
in Article
23. The contention is not only illfounded,
but does not accord with the principle enunciated by this Court in Maneka
Gandhi v. Union of India that when interpreting the provisions of the
Constitution conferring fundamental rights, the attempt of the Court should be
to expand the reach and ambit of the fundamental rights rather than to
attenuate 463 their meaning and content. The Constitution makers did not intend
to strike only at certain forms of forced labour leaving it open to the
socially or economically powerful sections of the community to exploit the poor
and weaker sections by resorting to other forms of forced labour. There could
be no logic or reason in enacting that if a person is forced to give labour or
service to another without receiving any remuneration at all, it should be
regarded as a pernicious practice sufficient to attract the condemnation of
Article 23, but if some remuneration is paid for it, then it should be outside
the inhibition of that Article. To interpret Article 23 as contended would be
reducing Article 23 to a mere rope of sand, for it would then be the easiest
thing in an exploitative society for a person belonging to a socially or
economically dominant class to exact labour or service from a person belonging
to the deprived and vulnerable section of the community by paying a negligible
amount of remuneration and thus escape the rigour of Art.
23. It would not be right to place on the
language of Article 23 an interpretation which would emasculate its beneficient
provisions and defeat the very purpose of enacting them. Article 23 is intended
to abolish every form of forced labour. [486 E-H; 487 A-D] 5:6. The words
"other similar forms of forced labour" are used in Article 23 not
with a view to importing the particular characteristic of 'begar' that labour
or service should be exacted without payment of any remuneration but with a
view to bringing within the scope and ambit of that Article all other forms of
forced labour and since 'begar' is one form of forced labour, the Constitution makers
used the words "other similar forms of forced labour". If the
requirement that labour or work should be exacted without any remuneration were
imported in other forms of forced labour. they would straight-away come within
the meaning of the word 'begar' and in that event there would be no need to
have the additional words "other similar forms of forced labour."
These words would be rendered futile and meaningless and it is a well
recognised rule of interpretation that the court should avoid a construction
which has the effect of rendering any words used by the legislature superfluous
redundant. [487 E-G] The object of adding these words was clearly to expand the
reach and content of Article 23 by including, in addition to 'begar', other
forms of forced labour within the prohibition of that Article. Every form of
forced labour, 'begar' or otherwise, is within the inhibition of Article 23 and
it makes no difference whether the person who is forced to give his labour or
service to another is remunerated or not. Even if remuneration is paid, labour
supplied by a person would be hit by Article 23 if it is forced labour, that
is, labour supplied not willingly but as a result of force or compulsion. For
example, where a person has entered into a contract of service with another for
a period of three years and he wishes to discontinue serving such other person
before the expiration of the period of three years, if a law were to provide
that in such a case the contract shall be specifically enforced and he shall be
compelled to serve for the full period of three years, it would clearly amount
to forced labour and such a law would be void as offending Article 23. That is
why specific performance of a contract of service cannot be enforced against an
employee 464 and the employee cannot be forced by compulsion of law to continue
to serve the employer. Of course, if there is a breach of the contract of
service, the employee would be liable to pay damages to the employer but he
cannot be forced to continue to serve the employer without breaching the
injunction of Article 23. [487 H; 488 A-D] Baily v. Aalabama, 219 US 219:55 Law
Ed. 191; quoted with approval, 5:7. Even if a person has contracted with
another to perform service and there is consideration for such service in the
shape of liquidation of debt or even remuneration, he cannot be forced by
compulsion of law or otherwise, to continue to perform such service, as that
would be forced labour within the inhibition of Article 23, which strikes at
every form of forced labour even if it has its origin in a contract voluntarily
entered into by the person obligated to provide labour or service, for the
reasons, namely; (i) it offends against human dignity to compel a person to
provide labour or service to another if he does not wish to do so, even though
it be breach of the contract entered into by him; (ii) there should be no
serfdom or involuntary servitude in a free democratic India which respects the
dignity of the individual and the worth of the human person;
(iii) in a country like India where there is
so much poverty and unemployment and there is no equality of bargaining power,
a contract of service may appear on its face voluntary but it may, in reality,
be involuntary, because while entering into the contract the employee by reason
of his economically helpless condition, may have been faced with Hobson's
choice, either to starve or to submit to the exploitative terms dictated by the
powerful employer. It would be a travesty of justice to hold the employee in
such a case to the terms of the contract and to compel him to serve the
employer even though he may not wish to do so.
That would aggravate the inequality and
injustice from which the employee even otherwise suffers on account of his
economically disadvantaged position and lend the authority of law to the
exploitation of the poor helpless employee by the economically powerful
employer. Article 23 therefore, provides that no one shall be forced to provide
labour or service against his will, even though it be under a contractor of
service. [490 C-H] Pollock v. Williams, 322 US 4:88 Lawyers Edn. 1095;
referred to.
5:8. Where a person provides labour or
services to another for remuneration which is less than the minimum wage, the
labour or service provided by him clearly falls within the scope and ambit of
the words "forced labour" under Article 23. Such a person would be
entitled to come to the court for enforcement of his fundamental right under
Article 23 by asking the court to direct payment of the minimum wage to him so
that the labour or service provided by him ceases to be 'forced labour' and the
breach of Article 23 is remedied. [492 F-G] 5:9. Ordinarily no one would
willingly supply labour or service to another for less than the minimum wage,
when he knows that under the law he is entitled to get minimum wage for the
labour or service provided by him. Therefore when a person provides labour or
service to another against receipt of remuneration which is less than the
minimum wage, he is acting under the force of 465 some compulsion which drives
him to work though he is paid less than what he is entitled under law to
receive. What Article 23 prohibits is 'forced labour' that is labour or service
which a person is forced to provide." [491 B-D] 5:10. 'Force' which would
make such labour or service 'forced labour' may arise in several ways. It may
be physical force which may compel a person to provide labour or service to
another or it may be force exerted through a legal provision such as a
provision for imprisonment or fine in case the employee fails to provide labour
or service or it may even be compulsion arising from hunger and poverty, want
and destitution. Any factor which deprives a person of a choice of alternative
and compels him to adopt one particular course of action may properly be
regarded as 'force' and if labour or service is compelled as a result of such
'force', it would be 'forced labour'. Where a person is suffering from hunger
or starvation, when he has no resources at all to fight disease or to feed his
wife and children or even to hide their nakedness, where utter grinding poverty
has broken his back and reduced him to a state of helplessness and despair and
where no other employment is available to alleviate the rigour of his poverty,
he would have no choice but to accept any work that comes his way, even if the
remuneration offered to him is less than the minimum wage. He would be in no
position to bargain with the employer; he would have to accept what is offered
to him. And in doing so he would be acting not as a free agent with a choice
between alternatives but under the compulsion of economic circumstances and the
labour of service provided by him would be clearly 'forced labour'.
The word 'forced' should not be read in a
narrow and restricted manner so as to be confined only to physical or legal
'force' particularly when the national character, its fundamental document has
promised to build a new socialist republic where there will be socio-economic
justice for all and every one shall have the right to work, to education and to
adequate means of livelihood. The constitution makers have given us one of the
most remarkable documents in history for ushering in a new socio-economic order
and the Constitution which they have forged for us has a social purpose and an
economic mission and, therefore, every word or phrase in the Constitution must
be interpreted in a manner which would advance the socio-economic objective of
the Constitution. It is a fact that in a capitalist society economic circumstances
exert much greater pressure on an individual in driging him to a particular
course of action than physical compulsion or force of legislative provision.
The word 'force' must therefore be construed
to include not only physical or legal force but force arising from the
compulsion of economic circumstances which leaves no choice of alternatives to
a person in want and compels him to provide labour or service even though the
remuneration received for it is less than the minimum wage. Of course, if a
person provides labour or service to another against receipt of the minimum
wage, it would not be possible to say that the labour or service provided by
him is 'forced labour' because he gets what he is entitled under law to
receive. No inference can reasonably be drawn in such a case that he is forced
to provide labour or service for the simple reason that would be providing
labour or service against receipt of what is lawfully payable to him just like
any other person who is not under the force of any compulsion. [491 D-H; 492
A-E]
6. Wherever any fundamental right which is
enforceable against private individuals such as, for example, a fundamental
right enacted in Article 17 or 23 466 or 24 is being violated, it is the
constitutional obligation of the State to take necessary steps for the purpose
of interdicting such violation and ensuring observance of the fundamental right
by the private individual who is transgressing the same. The fact that the
person whose fundamental right is-violated can always approach the court for
the purpose of enforcement of his fundamental right, cannot absolve the State
from its constitutional obligation to see that there is no violation of the
fundamental right of such person, particularly when he belongs to the weaker
section of humanity and is unable to wage a legal battle against a strong and
powerful opponent who is exploiting him. [493 A-D]
ORIGINAL JURISDICTION: Writ Petition No. 8143
of 1981.
(Under article 32 of the Constitution of
India) Govind Mukhoty in person and A.K. Ganguli for the petitioner.
Miss A. Subhashini for Respondent No. 1.
N.C. Talukdar and R.N. Poddar for Respondents
Nos.5 and 6.
Sardar Bahadur Saharya and Vishnu Bahadur
Saharya for Respondent No. 7.
The Judgment of the Court was delivered by
BHAGWATI, J. This is a writ petition brought by way of public interest
litigation in order to ensure observance of the provisions of various labour
laws in relation to workmen employed in the construction work of various
projects connected with the Asian Games. The matter was brought to the
attention of the Court by the 1st petitioner which is an organisation formed
for the purpose of protecting democratic rights by means of a letter addressed
to one of us (Bhagwati, J.). The letter was based on a report made by a team of
three social scientists who were commissioned by the 1st petitioner for the
purpose of investigating and inquiring into the conditions under which the
workmen engaged in the various Asiad Projects were working. Since the letter
addressed by the 1st petitioner was based on the report made by three social
scientists after personal investigation and study, it was treated as a writ
petition on the judicial side and notice was issued upon it inter alia to the
Union of India, Delhi Development Authority and Delhi Administration which 467
were arrayed as respondents to the writ petition. These respondents filed their
respective affidavits in reply to the allegations contained in the writ
petition and an affidavit was filed on behalf of the petitioner in rejoinder to
the affidavits in reply and the writ petition was argued before us on the basis
of these pleadings.
Before we proceed to deal with the facts
giving rise to this writ petition, we may repeat what we have said earlier in
various orders made by us from time to time dealing with public interest
litigation. We wish to point out with all the emphasis at our command that
public interest litigation which is a strategic arm of the legal aid movement
and which is intended to bring justice within the reach of the poor masses, who
constitute the low visibility area of humanity, is a totally different kind of
litigation from the ordinary traditional litigation which is essentially of an
adversary character where there is a dispute between two litigating parties,
one making claim or seeking relief against the other and that other opposing
such claim or resisting such relief. Public interest litigation is brought
before the court not for the purpose of enforcing the right of one individual
against another as happens in the case of ordinary litigation, but it is
intended to promote and vindicate public interest which demands that violations
of constitutional or legal rights of large numbers of people who are poor,
ignorant or in a socially or economically disadvantaged position should not go
unnoticed and unredressed. That would be destructive of the Rule of Law which
forms one of the essential elements of public interest in any democratic form
of government. The Rule of Law does not mean that the protection of the law
must be available only to a fortunate few or that the law should be allowed to
be prostituted by the vested interests for protecting and upholding the status
quo under the guise of enforcement of their civil and political rights. The
poor too have civil and political rights and the Rule of Law is meant for them
also, though today it exists only on paper and not in reality. If the sugar
barons and the alcohol kings have the Fundamental Right to carry on their
business and to fatten their purses by exploiting the consuming public, have
the 'chamars' belonging to the lowest strata of society no Fundamental Right to
earn an honest living through their sweat and toil ? The former can approach
the courts with a formidable army of distinguished lawyers paid in four or five
figures per day and if their right to exploit is upheld against the government
under the label of Fundamental Right, the courts are praised for their boldness
468 and courage and their independence and fearlessness are applauded and
acclaimed. But, if the Fundamental Right of the poor and helpless victims of
injustice is sought to be enforced by public interest litigation, the so called
champions of human rights frown upon it as waste of time of the highest court
in the land, which, according to them, should not engage itself in such small
and trifling matters.
Moreover, these self-styled human rights
activists forget that civil and political rights, priceless and invaluable as
they are for freedom and democracy, simply do not exist for the vast masses of
our people. Large numbers of men, women and children who constitute the bulk of
our population are today living a sub-human existence in conditions of abject
poverty: utter grinding poverty has broken their back and sapped their moral
fibre. They have no faith in the existing social and economic system. What
civil and political rights are these poor and deprived sections of humanity
going to enforce ? This was brought out forcibly by W. Paul Gormseley at the
Silver Jubilee Celebrations of the Universal Declaration of Human Rights at the
Banaras Hindu University:
"Since India is one of those countries
which has given a pride of place to the basic human rights and freedoms in its
Constitution in its chapter on Fundamental Rights and on the Directive
Principles of State Policy and has already completed twenty-five years of
independence, the question may be raised whether or not the Fundamental Rights
enshrined in our Constitution have any meaning to the millions of our people to
whom food, drinking water, timely medical facilities and relief from disease
and disaster, education and job opportunities still remain unavoidable. We, in
India, should on this occasion study the Human Rights declared and defined by
the United Nations and compare them with the rights available in practice and
secured by the law of our country." The only solution for making civil and
political rights meaningful to these large sections of society would be to
remake the material conditions and restructure the social and economic order so
that they may be able to realise the economic, social and cultural rights.
There is indeed close relationship between civil and political rights on the
one hand and economic, social and cultural rights on the other and this
relationship is so obvious that the International 469 Human Rights Conference
in Tehran called by the General Assembly in 1968 declared in a final
proclamation:
"Since human rights and fundamental
freedoms are indivisible, the full realisation of civil and political rights
without the enjoyment of economic, social and cultural rights is
impossible." Of course, the task of restructuring the social and economic
order so that the social and economic rights become a meaningful reality for
the poor and lowly sections of the community is one which legitimately belongs
to the legislature and the executive, but mere initiation of social and
economic rescue programmes by the executive and the legislature would not be
enough and it is only through multidimensional strategies including public
interest litigation that these social and economic rescue programmes can be
made effective. Public interest litigation, as we conceive it, is essentially a
co-operative or collaborative effort on the part of the petitioner, the State
or public authority and the court to secure observance of the constitutional or
legal rights, benefits and privileges conferred upon the vulnerable sections of
the community and to reach social justice to them. The State or public
authority against whom public interest litigation is brought should be as much
interested in ensuring basic human rights, constitutional as well as legal, to
those who are in a socially and economically disadvantaged position, as the
petitioner who brings the public interest litigation before the Court. The
state or public authority which is arrayed as a respondent in public interest
litigation should, in fact, welcome it, as it would give it an opportunity to
right a wrong or to redress an injustice done to the poor and weaker sections
of the community whose welfare is and must be the prime concern of the State or
the public authority.
There is a misconception in the minds of some
lawyers, journalists and men in public life that public interest litigation is
unnecessarily cluttering up the files of the court and adding to the already
staggering arrears of cases which are pending for long years and it should not
therefore be encouraged by the court. This is, to our mind, a totally perverse
view smacking of elitist and status quoist approach. Those who are decrying
public interest litigation do not seem to realise that courts are not meant
only for the rich and the well-to-do, for the landlord and the gentry, for the
business magnate 470 and the industrial tycoon, but they exist also for the
poor and the down-trodden the have-nots and the handicapped and the half-hungry
millions of our countrymen. So far the courts have been used only for the
purpose of vindicating the rights of the wealthy and the affluent. It is only
these privileged classes which have been able to approach the courts for
protecting their vested interests. It is only the moneyed who have so far had
the golden key to unlock the doors of justice. But, now for the first time the
portals of the court are being thrown open to the poor and the down- trodden,
the ignorant and the illiterate, and their cases are coming before the courts
through public interest litigation which has been made possible by the recent
judgment delivered by this Court in Judges Appointment and Transfer cases.
Millions of persons belonging to the deprived and vulnerable sections of
humanity are looking to the courts for improving their life conditions and
making basic human rights meaningful for them. They have been crying for
justice but their cries have so far been in the wilderness. They have been
suffering injustice silently with the patience of a rock, without the strength
even to shed any tears. Mahatma Gandhi once said to Gurudev Tagore, "I
have had the pain of watching birds, who for want of strength could not be
coaxed even into a flutter of their wings. The human bird under the Indian sky
gets up weaker than when he pretended to retire. For millions it is an eternal
trance." This is true of the 'human bird' in India even today after more
than 30 years of independence. The legal aid movement and public interest
litigation seek to bring justice to these forgotten specimens of humanity who
constitute the bulk of the citizens of India and who are really and truly the
"People of India" who gave to themselves this magnificent
Constitution. It is true that there are large arrears pending in the courts
but, that cannot be any reason for denying access to justice to the poor and
weaker sections of the community. No State has a right to tell its citizens
that because a large number of cases of the rich and the well-to-do are pending
in our courts, we will not help the poor to come to the courts for seeking
justice until the staggering load of cases of people who can afford, is
disposed of. The time has now come when the courts must become the courts for
the poor and struggling masses of this country They must shed their character
as upholders of the established order and the status quo. They must be
sensitised to the need of doing justice to the large masses of people to whom
justice has been denied by a cruel and heartless society for generations. The
realisation must come to them that 471 social justice is the signature tune of
our Constitution and it is their solemn duty under the Constitution to enforce
the basic human rights of the poor and vulnerable sections of the community and
actively help in the realisation of the constitutional goals. This new change
has to come if the judicial system is to become an effective instrument of
social justice, for without it, it cannot survive for long.
Fortunately, this change is gradually taking
place and public interest litigation is playing a large part in bringing about
this change. It is through public interest litigation that the problems of the
poor are now coming to the fore front and the entire theatre of the law is
changing. It holds out great possibilities for the future.
This writ petition is one such instance of
public interest litigation.
The Asian Games take place periodically in
different parts of Asia and this time India is hosting the Asian Games. It is a
highly prestigious undertaking and in order to accomplish it successfully
according to international standards, the Government of India had to embark
upon various construction projects which included building of fly-over’s,
stadia, swimming pool, hotels and Asian Games village complex. This
construction work was framed out by the Government of India amongst various
Authorities such as the Delhi Administration, the Delhi Development Authority
and the New Delhi Municipal Committee. It is not necessary for the purpose of
the present writ petition to set out what particular project was entrusted to
which authority because it is not the purpose of this writ petition to find
fault with any particular authority for not observing the labour laws in
relation to the workmen employed in the projects which are being executed by
it, but to ensure that in future the labour laws are implemented and the rights
of the workers under the labour laws are not violated. These various authorities
to whom the execution of the different projects was entrusted engaged
contractors for the purpose of carrying out the construction work of the
projects and they were registered as principal employers under section 7 of the
Contract Labour (Regulation and Abolition) Act, 1970.
The contractors started the construction work
of the projects and for the purpose of carrying out the construction work, they
engaged workers through jamadars.
The jamadars brought the workers from
different parts of India and particularly the States of Rajasthan, Uttar
Pradesh and Orissa and got them employed by the contractors.
The workers were entitled to a minimum wage
of Rs.
472 9.25 per day, that being the minimum wage
fixed for workers employed on the construction of roads and in building
operations but the case of the petitioners was that the workers were not paid
this minimum wage and they were exploited by the contractors and the jamadars.
The Union of India in the affidavit reply filed on its behalf by Madan Mohan;
Under Secretary, Ministry of Labour asserted that the contractors did pay the
minimum wage of Rs. 9.25 per day but frankly admitted that this minimum wage
was paid to the jamadars through whom the workers were recruited and the
jamadars deducted rupee one per day per worker as their commission and paid
only Rs. 8.25 by way of wage to the workers. The result was that in fact the
workers did not get the minimum wage of Rs. 9.25 per day. The petitioners also
alleged in the writ petition that the provisions of the Equal Remuneration Act,
1976 were violated and women workers were being paid only Rs. 7/- per day and
the balance of the amount of the wage was being misappropriated by the
jamadars. It was also pointed out by the petitioners that there was violation
of Article 24 of the Constitution and of the provisions of the Employment of
Children Act, 1938 in as much as children below the age of 14 years were
employed by the contractors in the construction work of the various projects.
The petitioners also alleged violation of the provisions of the Contract Labour
(Regulation and Abolition) Act 1970 and pointed out various breaches of those
provisions by the contractors which resulted in deprivation and exploitation of
the workers employed in the construction work of most of the projects. It was
also the case of the petitioners that the workers were denied proper living
conditions and medical and other facilities to which they were entitled under
the provisions of the Contract Labour (Regulation and Abolition) Act 1970. The
petitioners also complained that the contractors were not implementing the
provisions of the Inter State Migrant Workmen (Regulation of Employment and
Conditions of Service) Act 1979 though that Act was brought in force in the
Union Territory of Delhi as far back as 2nd October 1980. The report of the
team of three social scientists on which the writ petition was based set out
various instances of violations of the provisions of the Minimum Wages Act,
1948, the Equal Remuneration Act 1976, Article 24 of the Constitution, The
Employment of Children Act 1970, and the Inter State Migrant Workmen
(Regulation of Employment and Conditions of Service) Act 1979.
These averments made on behalf of the
petitioners were denied in the affidavits in reply filed on behalf of the Union
of India, the 473 Delhi Administration and the Delhi Development Authority. It
was asserted by these authorities that so far as the Equal Remuneration Act
1976 and the Contract Labour (Regulation and Abolition) Act 1970 were
concerned, the provisions of these labour laws were being complied with by the
contractors and whenever any violations of these labour laws were brought to
the attention of the authorities as a result of periodical inspections carried
out by them, action by way of prosecution was being taken against the
contractors. The provisions of the Minimum Wages Act 1948 were, according to
the Delhi Development Authority, being observed by the contractors and it was
pointed out by the Delhi Development Authority in its affidavit in reply that
the construction work of the projects entrusted to it was being carried out by
the contractors under a written contract entered into with them and this
written contract incorporated "Model Rules for the Protection of Health
and Sanitary Arrangements for Workers employed by Delhi Development Authority
or its Contractors" which provided for various facilities to be given to
the workers employed in the construction work and also ensured to them payment
of minimum wage The Delhi Administration was not so categorical as the Delhi
Development Authority in regard to the observance of the provisions of the Minimum
Wages Act 1948 and in its affidavit in reply it conceded that the jamadars
through whom the workers were recruited might be deducting rupee one per day
per worker from the minimum wage payable to the workers. The Union of India was
however more frank and it clearly admitted in its affidavit in reply that the
jamadars were deducting rupee one per day per worker from the wage payable to
the workers with the result that the workers did not get the minimum wage of
Rs. 9.25 per day and there was violation of the provisions of the Minimum Wages
Act, 1948.
So far as the Employment of Children Act 1938
is concerned the case of the Union of India, the Delhi Administration and the
Delhi Development Authority was that no complaint in regard to the violation of
the provisions of that Act was at any time received by them and they disputed
that there was any violation of these provisions by the contractors. It was
also contended on behalf of these Authorities that the Employment of Children
Act 1938 was not applicable in case of employment in the construction work of
these projects, since construction industry is not a process specified in the
Schedule and is therefore not within the provisions of sub- 474 section (3) of
section 3 of that Act. Now unfortunately this contention urged on behalf of the
respondents is well founded, because construction industry does not find a
place in the Schedule to the Employment of Children Act 1938 and the
prohibition enacted in section 3 sub-section (3) of that Act against the
employment of a child who has not completed his fourteenth year cannot apply to
employment in construction industry. This is a sad and deplorable omission
which, we think, must be immediately set right by every State Government by
amending the Schedule so as to include construction industry in it in exercise
of the power conferred under section 3A of the Employment of Children Act, 1938.
We hope and trust that every State Government will take the necessary steps in
this behalf without any undue delay, because construction work is clearly a
hazardous occupation and it is absolutely essential that the employment of
children under the age of 14 years must be prohibited in every type of
construction work. That would be in consonance with Convention No. 59 adopted
by the International Labour Organisation and ratified by India. But apart
altogether from the requirement of Convention No. 59, we have Article 24 of the
Constitution which provides that no child below the age of 14 shall be employed
to work in any factory or mine or engaged in any other hazardous employment.
This is a constitutional prohibition which, even if not followed up by
appropriate legislation, must operate proprio vigore and construction work
being plainly and indubitably a hazardous employment, it is clear that by
reason of this constitutional prohibition, no child below the age of 14 years
can be allowed to be engaged in construction work. There can therefore be no
doubt that notwithstanding the absence of specification of construction
industry in the Schedule to the Employment of Children Act 1938, no child below
the age of 14 years can be employed in construction work and the Union of India
as also every State Government must ensure that this constitutional mandate is
not violated in any part of the country. Here, of course, the plea of the Union
of India, the Delhi Administration and the Delhi Development Authority was that
no child below the age of 14 years was at any time employed in the construction
work of these projects and in any event no complaint in that behalf was
received by any of these Authorities and hence there was no violation of the
constitutional prohibition enacted in Article 24. So far as the complaint in
regard to non-observance of the provisions of the Inter State Migrant Workmen
(Regulation of Employment and Conditions of Service) Act 1979 was concerned,
the defence of the Union of India, the Delhi Administration and the Delhi
Development Authority that though this Act had come into force in the 475 Union
Territory of Delhi with effect from 2nd October 1980, the power to enforce the
provisions of the Act was delegated to the Administrator of the Union Territory
of Delhi only on 14th July 1981 and thereafter also the provisions of the Act
could not been enforced because the Rules to be made under the Act had not been
finalised until 4th June 1982. It is difficult to understand as to why in the
case of beneficient legislation like the Inter State Migrant Workmen
(Regulation of Employment and Conditions of Service) Act 1979 it should have
taken more than 18 months for the Government of India to delegate the power to
enforce the provisions of the Act to the Administrator of the Union Territory
of Delhi and another almost 12 months to make the Rules under the Act. It was
well known that a large number of migrant workmen coming from different States
were employed in the construction work of various Asiad projects and if the
provisions of a social welfare legislation like the Inter State Migrant Workmen
(Regulation of Employment and Conditions of Service) Act 1979 were applied and
the benefit of such provisions made available to these migrant workmen, it
would have gone a long way towards ameliorating their conditions of work and
ensuring them a decent living with basic human dignity. We very much wished
that the provisions of this Act had been made applicable earlier to the migrant
workmen employed in the construction work of these projects though we must
confess that we do not see why the enforcement of the provisions of the Act
should have been held up until the making of the Rules. It is no doubt true
that there are certain provisions in the Act which cannot be enforced unless
there are rules made under the Act but equally there are other provisions which
do not need any prescription by the Rules for their enforcement and these
latter provisions could certainly have been enforced by the Administrator of
the Union Territory of Delhi in so far as migrant workmen employed in these
projects were concerned. There can be no doubt that in any event from and after
4th June, 1982 the provisions of this beneficient legislation have become
enforceable and the migrant workmen employed in the construction work of these
projects are entitled to the rights and benefits conferred upon them under
those provisions. We need not point out that so far as the rights and benefits
conferred upon migrant workmen under the provisions of section 13 to 16 of the
Act are concerned, the responsibility for ensuring such rights and benefits
rests not only on the contractors but also on the Union of India, the Delhi
Administration or the Delhi Development Authority who is 476 the principal
employer in relation to the construction work entrusted by it to the
contractors. We must confess that we have serious doubts whether the provisions
of this Act are being implemented in relation to the migrant workmen employed
in the construction work of these projects and we have therefore by our Order
dated 11th May 1982 appointed three Ombudsmen for the purpose of making
periodic inspection and reporting to us whether the provisions of this Act are
being implemented at least from 4th June 1982.
We must in fairness point out that the Union
of India has stated in its affidavit in reply that a number of prosecution have
been launched against the contractors for violations of the provision of
various labour laws and in Annexure I to its affidavit in reply it has given
detailed particulars of such prosecutions. It is apparent from the particulars
given in this Annexure that the prosecutions launched against the contractors
were primarily for offences such as non-maintenance of relevant registers
non-provision of welfare and health facilities such as first aid box, latrines,
urinals etc. and non-issue of wage slips. We do not propose to go into the
details of these prosecutions launched against the contractors but we are
shocked to find that in cases of violations of labour laws enacted for the
benefit of workmen, the Magistrates have been imposing only small fines of Rs. 200/-
thereabouts. The Magistrates seem to view the violations of labour laws with
great indifference and unconcern as if they are trifling offences undeserving
of judicial severity. They seem to over-look the fact labour laws are enacted
for improving the conditions of workers and the employers cannot be allowed to
buy off immunity against violations of labour laws by paying a paltry fine
which they would not mind paying, because by violations the labour laws they
would be making profit which would far exceed the amount of the fine. If
violations of labour laws are going to be punished only by meagre fines, it
would be impossible to ensure observance of the labour laws and the labour laws
would be reduced to nullity. They would remain merely paper tigers without any
teeth or claws.
We would like to impress upon the Magistrates
and Judges in the country that violations of labour laws must be viewed with
strictness and whenever any violations of labour laws are established before
them, they should punish the errant employers by imposing adequate punishment.
We may conveniently at this stage, before
proceeding to examine the factual aspects of the case, deal with two
preliminary 477 objections raised on behalf of the respondents against the
maintainability of the writ petition. The first preliminary objection was that
the petitioners had no locus standi to maintain the writ petition since, even
on the averments made in the writ petition, the rights said to have been
violated were those of the workers employed in the construction work of the
various Asiad projects and not of the petitioners and the petitioners could not
therefore have any cause of action. The second preliminary objection urged on
behalf of the respondents was that in any event no writ petition could lie
against the respondents, because the workmen whose rights were said to have
been violated were employees of the contractors and not of the respondents and
the cause of action of the workmen, if any, was therefore against the
contractors and not against the respondents. It was also contended as part of
this preliminary objection that no writ petition under article 32 of the
Constitution could lie against the respondents for the alleged violations of
the rights of the workmen under the various labour laws, and the remedy, if
any, was only under the provisions of those laws.
These two preliminary objections were pressed
before us on behalf of the Union of India, the Delhi Administration and the
Delhi Development Authority with a view to shutting out an inquiry by this
Court into the violations of various labour laws alleged in the writ petition,
but we do not think there is any substance in them and they must be rejected.
Our reasons for saying so are as follows:
The first preliminary objection raises the
question of locus standi of the petitioners to maintain the writ petition. It
is true, that the complaint of the petitioners in the writ petition is in
regard to the violations of the provisions of various labour laws designed for
the welfare of workmen and therefore from a strictly traditional point of view,
it would be only the workmen whose legal rights are violated who would be
entitled to approach the court for judicial redress. But the traditional rule
of standing which confines access to the judicial process only to those to whom
legal injury is caused or legal wrong is done has now been jettisoned by this
Court and the narrow confines within which the rule of standing was imprisoned
for long years as a result of inheritance of the Anglo-Saxon System of
jurisprudence have been broken and a new dimension has been given to the
doctrine of locus standi which has revolutionised the whole concept of access
to justice in a way not known before to the Western System of jurisprudence.
This Court 478 has taken the view that,
having regard to the peculiar socioeconomic conditions prevailing in the
country where there is, considerable poverty, illiteracy and ignorance
obstructing and impeding accessibility to the judicial process, it would result
in closing the doors of justice to the poor and deprived sections of the
community if the traditional rule of standing evolved by Anglo-Saxon
jurisprudence that only a person wronged can sue for judicial redress were to
be blindly adhered to and followed, and it is therefore necessary to evolve a
new strategy by relaxing this traditional rule of standing in order that
justice may became easily available to the lowly and the lost. It has been held
by this Court in its recent judgment in the Judges Appointment and Transfer
case, in a major break-through which in the years to come is likely to impart
new significance and relevance to the judicial system and to transform it into
as instrument of socio-economic change, that where a person or class of persons
to whom legal injury is caused or legal wrong is done is by reason of poverty,
disability or socially or economically disadvantaged position not able to
approach the Court for judicial redress, any member of the public acting bona
fide and not out of any extraneous motivation may move the Court for judicial
redress of the legal injury or wrong suffered by such person or class of
persons and the judicial process may be set in motion by any public spirited
individual or institution even by addressing a letter to the court. Where
judicial redress is sought of a legal injury or legal wrong suffered by a
person or class of persons who by reason of poverty, disability or socially or
economically disadvantaged position are unable to approach the court and the
court is moved for this purpose by a member of a public by addressing a letter
drawing the attention of the court to such legal injury or legal wrong, court
would cast aside all technical rules of procedure and entertain the letter as a
writ petition on the judicial side and take action upon it.
That is what has happened in the present
case. Here the workmen whose rights are said to have been violated and to whom
a life of basic human dignity has been denied are poor, ignorant, illiterate
humans who, by reason of their poverty and social and economic disability, are
unable to approach the courts for judicial redress and hence the petitioners,
have under the liberalised rule of standing, locus standi to maintain the
present writ petition espousing the cause of the workmen. It is not the case of
the respondents that the petitioners are acting mala fide or out of extraneous
motives and in fact the respondents cannot so allege, since 479 the first
petitioner is admittedly an organisation dedicated to the protection and
enforcement of Fundamental Rights and making Directive Principles of State
Policy enforceable and justiciable. There can be no doubt that it is out of a
sense of public service that the present litigation has been brought by the
petitioners and it is clearly maintainable.
We must then proceed to consider the first
limb of the second preliminary objection. It is true that the workmen whose
cause has been championed by the petitioners are employees of the contractors
but the Union of India, the Delhi Administration and the Delhi Development
Authority which have entrusted the construction work of Asiad projects to the
contractors cannot escape their obligation for observance of the various labour
laws by the contractors. So far as the Contract Labour (Regulation and
Abolition) Act 1970 is concerned, it is clear that under section 20, if any
amenity required to be provided under sections 16, 17, 18 or 19 for the benefit
of the workmen employed in an establishment is not provided by the contractor,
the obligation to provide such amenity rests on the principal employer and
therefore if in the construction work of the Asiad projects, the contractors do
not carry out the obligations imposed upon them by any of these sections, the
Union of India, the Delhi Administration and the Delhi Development Authority as
principal employers would be liable and these obligations would be enforceable
against them. The same position obtains in regard to the Inter State Migrant
Workmen (Regulation of Employment and Conditions of Service) Act 1979. In the
case of this Act also, sections 17 and 18 make the principal employer liable to
make payment of the wages to the migrant workmen employed by the contractor as
also to pay the allowances provided under sections 14 and 15 and to provide the
facilities specified in section 16 to such migrant workmen, in case the
contractor fails to do so and these obligations are also therefore clearly
enforceable against the Union of India, the Delhi Administration and the Delhi
Development Authority as principal employers. So far as Article 24 of the
Constitution is concerned, it embodies a fundamental right which is plainly and
indubitably enforceable against every one and by reason of its compulsive
mandate, no one can employ a child below the age of 14 years in a hazardous
employment and since, as pointed out above, construction work is a hazardous
employment, no child below the age of 14 years can be employed in construction
work and there 480 fore, not only are the contractors under a constitutional
mandate not to employ any child below the age of 14 years, but it is also the
duty of the Union of India, the Delhi Administration and the Delhi Development
Authority to ensure that this constitutional obligation is obeyed by the
contractors to whom they have entrusted the construction work of the various
Asiad projects. The Union of India, the Delhi Administration and the Delhi Development
Authority cannot fold their hands in despair and become silent spectators of
the breach of a constitutional prohibition being committed by their own
contractors. So also with regard to the observance of the provisions of the
Equal Remuneration Act 1946, the Union of India, the Delhi Administration and
the Delhi Development Authority cannot avoid their obligation to ensure that
these provisions are complied with by the contractors. It is the principle of
equality embodied in Article 14 of the Constitution which finds expression in
the provisions of the Equal Remuneration Act 1946 and if the Union of India,
the Delhi Administration or the Delhi Development Authority at any time finds
that the provisions of the Equal Remuneration Act 1946 are not observed and the
principles of equality before the law enshrined in Article 14 is violated by
its own contractors, it cannot ignore such violation and sit quiet by adopting
a non-interfering attitude and taking shelter under the executive that the
violation is being committed by the contractors and not by it. If any
particular contractor is committing a breach of the provisions of the Equal
Remuneration Act 1946 and thus denying equality before the law to the workmen,
the Union of India, the Delhi Administration or the Delhi Development Authority
as the case may be, would be under an obligation to ensure that the contractor
observes the provisions of the Equal Remuneration Act 1946 and does not breach
the equality clause enacted in Article 14. The Union of India, the Delhi
Administration and the Delhi Development Authority must also ensure that the
minimum wage is paid to the workmen as provided under the Minimum Wages Act
1948. The contractors are, of course, liable to pay the minimum wage to the
workmen employed by them but the Union of India the Delhi Administration and
the Delhi Development Authority who have entrusted the construction work to the
contractors would equally be responsible to ensure that the minimum wage is
paid to the workmen by their contractors. This obligation which even otherwise
rests on the Union of India, the Delhi Administration and the Delhi Development
Authority is additionally 481 re-inforced by section 17 of the Inter State
Migrant Workmen (Regulation of Employment and Conditions of Service) Act 1979
in so far as migrant workmen are concerned. It is obvious, therefore, that the
Union of India, the Delhi Administration and the Delhi Development Authority
cannot escape their obligation to the workmen to ensure observance of these
labour laws by the contractors and if these labour laws are not complied with
by the contractors, the workmen would clearly have a cause of action against
the Union of India, the Delhi Administration and the Delhi Development
Authority.
That takes us to a consideration of the other
limb of the second preliminary objection. The argument of the respondents under
this head of preliminary objection was that a writ petition under Article 32
cannot be maintained unless it complains of a breach of some fundamental right
or the other and since what were alleged in the present writ petition were
merely violations of the labour laws enacted for the benefit of the workmen and
not breaches of any fundamental rights, the present writ petition was not
maintainable and was liable to be dismissed. Now it is true that the present
writ petition cannot be maintained by the petitioners unless they can show some
violation of a fundamental right, for it is only for enforcement of a
fundamental right that a writ petition can be maintained in this Court under
Article 32. So far we agree with the contention of the respondents but there
our agreement ends.
We cannot accept the plea of the respondents
that the present writ petition does not complain of any breach of a fundamental
right. The complaint of violation of Article 24 based on the averment that
children below the age of 14 years are employed in the construction work of the
Asiad projects is clearly a complaint of violation of a fundamental right. So
also when the petitioners allege non- observance of the provisions of the Equal
Remuneration Act 1946, it is in effect and substance a complaint of breach of
the principle of equality before the law enshrined in Article 14 and it can
hardly be disputed that such a complaint can legitimately form the subject
matter of a writ petition under Article 32. Then there is the complaint of
non-observance of the provisions of the Contract Labour (Regulation &
Abolition) Act 1970 and the Inter State Migrant Workmen (Regulation of
Employment and Conditions of Service) Act 1979 and this is also in our opinion
a complaint relating to violation of Article 21. This Article has 482 acquired
a new dimension as a result of the decision of this Court in Maneka Gandhi v.
Union of India (1) and it has received its most expansive interpretation in
Francis Coralie Mullin v. The Administrator, Union Territory of Delhi &
Ors,(2) where it has been held by this Court that the right to life guaranteed
under this Article is not confined merely to physical existence or to the use
of any faculty or limb through which life is enjoyed or the soul communicates
with outside world but it also includes within its scope and ambit the right to
live with basic human dignity and the State cannot deprive any one of this
precious and invaluable right because no procedure by which such deprivation
may be effected can ever be regarded as reasonable, fair and just. Now the
rights and benefits conferred on the workmen employed by a contractor under the
provisions of the Contract Labour (Regulation and Abolition) Act 1970 and the
Inter State Migrant Workmen (Regulation of Employment and Conditions of
Service) Act, 1979 are clearly intended to ensure basic human dignity to the
workmen and if the workmen are deprived of any of these rights and benefits to
which they are entitled under the provisions of these two pieces of social
welfare legislation, that would clearly be a violation of Article 21 by the
Union of India, the Delhi Administration and the Delhi Development Authority
which, as principal employers, are made statutorily responsible for securing
such rights and benefits to the workmen. That leaves for consideration the
complaint in regard to non- payment of minimum wage to the workmen under the Minimum
Wages Act 1948. We are of the view that this complaint is also one relating to
breach of a fundamental right and for reasons which we shall presently state,
it is the fundamental right enshrined in Article 23 which is violated by
non-payment of minimum wage to the workmen.
Article 23 enacts a very important
fundamental right in the following terms :
"Art. 23 : Prohibition of traffic in
human beings and forced labour- (1) Traffic in human beings and begar and other
similar forms of forced labour are prohibited and 483 any contravention of this
provision shall be an offence punishable in accordance with law.
(2) Nothing in this Article shall prevent the
State from imposing compulsory service for public purposes, and in imposing
such service the State shall not make any discrimination on grounds only of
religion, race, caste or class or any of them.
Now many of the fundamental rights enacted in
Part III operate as limitations on the power of the State and impose negative
obligations on the State not to encroach on individual liberty and they are
enforceable only against the State. But there are certain fundamental rights
conferred by the Constitution which are enforceable against the whole world and
they are to be found inter alia in Articles 17, 23 and 24. We have already
discussed the true scope and ambit of Article 24 in an earlier portion of this
judgment and hence we do not propose to say anything more about it. So also we
need not expatiate on the proper meaning and effect of the fundamental right
enshrined in Article 17 since we are not concerned with that Article in the
present writ petition. It is Article 23 with which we are concerned and that
Article is clearly designed to protect the individual not only against the
State but also against other private citizens. Article 23 is not limited in its
application against the State but it prohibits "traffic in human beings
and begar and other similar forms of forced labour" practised by anyone
else. The sweep of Article 23 is wide and unlimited and it strikes at traffic
in human beings and begar and other similar forms of forced labour"
wherever they are found. The reason for enacting this provision in the chapter
on fundamental rights is to be found in the socio-economic condition of the
people at the time when the Constitution came to be enacted. The Constitution
makers, when they set out to frame the Constitution, found that they had the
enormous task before them of changing the socio- economic structure of the
country and bringing about socio- economic regeneration with a view to reaching
social and economic justice to the common man. Large masses of people, bled
white by well nigh two centuries of foreign rule, were living in abject poverty
and destitution with ignorance and illiteracy accentuating their helplessness
and despair. The society had degenerated into a status-oriented hierarchical
society 484 with little respect for the dignity of individual who was in the
lower rungs of the social ladder or in an economically impoverished condition.
The political revolution was completed and it had succeeded in bringing freedom
to the country but freedom was not an end in itself, it was only a means to an
end, the end being the raising of the people to higher levels of achievement
and bringing about their total advancement and welfare. Political freedom had
no meaning unless it was accompanied by social and economic freedom and it was
therefore necessary to carry forward the social and economic revolution with a
view to creating social economic conditions in which every one would be able to
enjoy basic human rights and participate in the fruits of freedom and liberty
in an egalitarian social and economic framework. It was with this end in view
that the constitution makers enacted the Directive Principles of State Policy
in Part IV of the Constitution setting out the constitutional goal of a new
socio-economic order. Now there was one feature of our national life which was
ugly and shameful and which cried for urgent attention and that was the
existence of bonded or forced labour in large parts of the country. This evil
was the relic of feudal exploitative society and it was totally incompatible
with the new egalitarian socio-economic order which, "We the people of
India" were determined to build and constituted a gross and most revolting
denial of basic human dignity. It was therefore necessary to eradicate this
pernicious practice and wipe it out altogether from the national scene and this
had to be done immediately because with the advent of freedom, such practice
could not be allowed to continue to blight the national life any longer.
Obviously, it would not have been enough
merely to include abolition of forced labour in the Directive Principles of
State Policy, because then the outlaying of this practice would not have been
legally enforceable and it would have continued to plague our national life in
violation of the basic constitutional norms and values until some appropriate
legislation could be brought by the legislature forbidding such practice. The
Constitution makers therefore decided to give teeth to their resolve to
obliterate and wipe out this evil practice by enacting constitutional
prohibition against it in the chapter on fundamental rights, so that the
abolition of such practice may become enforceable and effective as soon as the
Constitution came into force. This is the reason why the provision enacted in
Article 23 was included in the chapter on fundamental rights. The prohibition
against "traffic in human beings and begar and other similar forms of
forced labour" 485 is clearly intended to be a general prohibition, total
in its effect and all pervasive in its range and it is enforceable not only
against the State but also against any other person indulging in any such
practice.
The question then is as to what is the true
scope and meaning of the expression "traffic in human beings and begar and
other similar forms of forced labour" in Article 237 What are the forms of
'forced labour' prohibited by that Article and what kind of labour provided by
a person can be regarded as 'forced labour' so as to fall within this prohibition?
When the Constitution makers enacted Article 23 they had before them Article of
the Universal Declaration of Human Rights but they deliberately departed from
its language and employed words which would make the reach and content of
Article 23 much wider than- that of Article 4 of the Universal Declaration of
Human Rights. They banned 'traffic in human beings which is an expression of
much larger amplitude than "slave trade" and they also interdicted
"begar and other similar forms of forced labour". The question is
what is the scope and ambit of the expression 'begar and other similar forms of
forced labour ?" In this expression wide enough to include every
conceivable form of forced labour and what is the true scope and meaning of the
words ''forced labour?" The word 'begar' in this Article is not a word of
common use in English language. It is a word of Indian origin which like many
other words has found its way in the English vocabulary. It is very difficult
to formulate a precise definition of the word begar' but there can be no doubt
that it is a form of forced labour under which a person is compelled to work
without receiving any remuneration. Molesworth describes 'begar' as
"labour or service exacted by a government or person in power without
giving remuneration for it." Wilson's glossary of Judicial and Revenue
Terms gives the following meaning of the word 'begar': "a forced labourer,
one pressed to carry burthens for individuals or the public.
Under the old system, when pressed for public
service, no pay was given. The Begari, though still liable to be pressed for
public objects, now receives pay: Forced labour for private service is
prohibited." "Begar" may therefore be loosely described as
labour or service which a person is forced to give without receiving any
remuneration for 'it.
That was the meaning of the word 'begar'
accepted by a Division Bench 486 of the Bombay High Court in S. Vasudevan v.
S.D. Mital.(1) 'Begar' is thus clearly a film of forced labour. Now it is not
merely 'begar' which is unconstitutionally prohibited by Article 23 but also
all other similar forms of forced labour. This Article strikes at forced labour
in whatever form it may manifest itself, because it is violative of human
dignity and is contrary to basic human values. The practice of forced labour is
condemned in almost every international instrument dealing with human rights.
It is interesting to find that as far back as 1930 long before the Universal
Declaration of Human Rights came into being, International Labour organisation
adopted Convention No. 29 laying down that every member of the International
Labour organisation which ratifies this convention shall "suppress the use
of forced or compulsory labour in all its forms" and this prohibition was
elaborated in Convention No. 105 adopted by the International Labour
organisation in 1957.
The words "forced or compulsory
labour" in Convention No. 29 had of course a limited meaning but that was
so on account of the restricted definition of these words given in Article 2 of
the Convention. Article 4 of the European Convention of Human Rights and
Article 8 of the International Covenant on Civil and Political Rights also
prohibit forced or compulsory labour. Article 23 is in the same strain and it
enacts a prohibition against forced labour in whatever form it may be found.
The learned counsel appearing on behalf of the respondent laid some emphasis on
the word 'similar' and contended that it is not every form of forced labour
which is prohibited by Article 23 but only such form of forced labour as is similar
to 'begar' and since 'begar' means labour or service which a person is forced
to give without receiving any remuneration for it, the interdict of Article 23
is limited only to those forms of forced labour where labour or service is
exacted from a person without paying any remuneration at all and if some
remuneration is paid, though it be inadequate, it would not fall within the
words 'other similar forms of forced labour. This contention seeks to unduly
restrict the amplitude of the prohibition .
against forced labour enacted in Article 23
and is in our opinion not well founded. It does not accord with the principle
enunciated by this Court in Maneka Gandhi v. Union of India(2) that when
interpreting the provisions of the Constitution conferring fundamental rights,
the attempt of the court should be to expand the reach and ambit of the
fundamental rights rather than to attenuate their (1) AIR 1962 Bom. 53:
(2) [1978] 2 SCR 621.
487 meaning and content. It is difficult to
imagine that the Constitution makers should have intended to strike only at
certain forms of forced labour leaving it open to the socially or economically
powerful sections of the community to exploit the poor and weaker sections by
resorting to other forms of forced labour. Could there be any logic or reason
in enacting that if a person is forced to give labour or service to another
without receiving any remuneration at all it should be regarded as a pernicious
practice sufficient to attract the condemnation of Article 23, but if some remuneration
is paid for it, then it should be outside the inhibition of that Article ? If
this were the true interpretation, Article 23 would be reduced to a mere rope
of sand, for it would then be the easiest thing in an exploitative society for
a person belonging to a socially or economically dominant class to exact labour
or service from a person belonging to the deprived and vulnerable section of
the community by paying a negligible amount of remuneration and thus escape the
rigour of Article 23. We do not think it would be right to place on the
language of Article 23 an interpretation which would emasculate its beneficent
provisions and defeat the very purpose of enacting them. We are clear of the
view that Article 23 is intended to abolish every form of forced labour. The
words "other similar forms of forced labour are used in Article 23 not
with a view to importing the particular characteristic of 'begar' that labour
or service should be exacted without payment of any remuneration but with a view
to bringing within the scope and ambit of that Article all other forms of
forced labour and since 'begar' is one form of forced labour, the Constitution
makers used the words "other similar forms of forced labour." If the
requirement that labour or work should be exacted without any remuneration were
imported in other forms of forced labour, they p would straightaway come within
the meaning of the word 'begar' and in that event there would be no need to
have the additional words "other similar forms of forced labour."
These words would be rendered futile and meaningless and it is a well
recognised rule of interpretation that the court should avoid a construction
which as the effect of rendering any words used by the legislature superfluous
or redundant. The object of adding these words was clearly to expand the reach
and content of Article 23 by including, in addition to 'begar', other forms of
forced labour within the prohibition of that Article. Every form of forced
labour 'begar' or otherwise, is within the inhibition of Article 23 and it
makes no difference whether the per- 488 son who is forced to give his labour
or service to another is remunerated or not. Even if remuneration is paid,
labour supplied by a person would be hit by this Article if it is forced labour,
that is, labour supplied not willingly but as a result of force or compulsion.
Take for example a case where a person has entered into a contract of service
with another for a period of three years and he wishes to discontinue serving
such other person before the expiration of the period of three years. If a law
were to provide that in such a case the contract shall be specifically enforced
and he shall be compelled to serve for the full period of three years, it would
clearly amount to forced labour and such a law would be void as offending
Article 23. That is why specific performance of a contract of service cannot be
enforced against an employee and the employee cannot be forced by compulsion of
law to continue to serve the employer. Of course, if there is a breach of the
contract of service, the employee would be liable to pay damages to the
employer but he cannot be forced to continue to serve the employer without
breaching the injunction of Article 23.
This was precisely the view taken by the Supreme
Court of United States in Bailv v. Alabama(1) while dealing with a similar
provision in the Thirteenth Amendment. There, a legislation enact ed by the
Alabama State providing that when a person with intent to injure or defraud his
employer enters into a contract in writing for the purpose of any service and
obtains money or other property from the employer and without refunding the
money or the property refuses or fails to perform such service, he will be
punished with of fine. The constitutional validity of this legislation was
challenged on the ground that it violated the Thirteenth Amendment which inter
alia provides: "Neither slavery nor involuntary servitude shall exist
within the United States or any place subject to their jurisdiction".
This challenge was upheld by a majority of
the Court and Mr. Justice Hughes delivering the majority opinion said:
"We cannot escape the conclusion that
although the statute in terms is to punish fraud, still its natural and
inevitable effect is to expose to conviction for crime those . who simply fail
or refuse to perform contracts for personal service in liquidation of a debt,
and judging its purpose by its effect that it seeks in this way to provide the
means of compulsion through which performance of such service may (1) 219 U.S.
219: 55 L. Ed. 191.
489 be secured. The question is whether such
a statute is constitutional".
The learned Judge proceeded to explain the
scope and ambit of the expression 'involuntary servitude' in the following
words:
"The plain intention was to abolish
slavery of whatever name and form and all its badges and incidents, to render
impossible any state of bondage, to make labour free by prohibiting that
control by which the personal service of one men is disposed of or coerced for another's
benefit, which is the essence of involuntary servitude." Then, dealing
with the contention that the employee in that case had voluntarily contracted
to perform the service which was sought to be compelled and there was therefore
no violation of the provisions of the Thirteenth Amendment, the learned Judge
observed:
"The fact that the debtor contracted to
perform the labour which is sought to be compelled does not withdraw the
attempted enforcement from the condemnation of the statute. The full intent of
the constitutional provision could be defeated with obvious facility if through
the guise of contracts under which advances had been made, debtors could be
held to compulsory service. It is the compulsion of the service that the
statute inhibits, for when that occurs, the condition of servitute is created
which would be not less involuntary because of the original agreement to work
out the indebtedness. The contract exposes the debtor to liability for the loss
due to the breach, but not to enforced labour." and proceeded to elaborate
this thesis by pointing out:
"Peonage is sometimes classified as
voluntary or involuntary, but this implies simply a difference in the mode of
origin, but none in the character of the servitude. The one exists where the
debtor voluntarily contracts to enter the Service of his creditor. The other is
forced upon the debtor by some provision of law. But peonage however created,
is compulsory service, involuntary servitude. The peon can release himself
therefrom, it is true, by the pay- 490 ment of the debt, but otherwise the
service is enforced. A clear distinction exists between peonage and the
voluntary performance of labour or rendering of services in payment of a debt.
In the latter case the debtor though contracting to pay his indebtedness by
labour of service, and subject like any other contractor to an action for
damages for breach of that contract, can elect at any time to break it, and no
law or force compels performance or a continuance of the service." It is
therefore clear that even if a person has contracted with another to perform
service and there is consideration for such service in the shape of liquidation
of debt or even remuneration, he cannot be forced by compulsion of law or
otherwise to continue to perform such service, as that would be forced labour
within the inhibitian of Article 23. This Article strikes at every form of
forced labour even if it has its origin in a contract voluntarily entered into
by the person obligated to provide labour or service Vide Pollock v.
Williams.(1) The reason is that it offends against human dignity to compel a
person to provide labour or service to another if he does not wish to do so,
even though it be in breach of the contract entered into by him. There should
be no serfdom or involuntary servitude in a free democratic India which
respects the dignity of the individual and the worth of the human person.
Moreover, in a country like India where there is so much poverty and
unemployment and there is no equality of bargaining power, a contract of
service may appear on its face voluntary but it may, in reality, be
involuntary, because while entering into the contract, the employee, by reason
of his economically helpless condition, may have been faced with Hobson's
choice, either to starve or to submit to the exploitative terms dictated by the
powerful employer. It would be a travesty of justice to hold the employee in
such a case to the terms of the contract and to compel him to serve the
employer even though he may not wish to do so. That would aggravate the
inequality and injustice from which the employee even otherwise suffers on
account of his economically disadvantaged position and lend the authority of
law to the exploitation of the poor helpless employee by the economically
powerful employer.
Article 23 therefore says that no one shall
be forced to (1) 322 U.S. 4:88 Lawyers Edition 1095.
491 provide labour or service against his
will, even though it be under a contract of service.
Now the next question that arises for consideration
is whether there is any breach of Article 23 when a person provides labour or
service to the State or to any other person and is paid less than the minimum
wage for it. It is obvious that ordinarily no one would willingly supply labour
or service to another for less than the minimum wager when he knows that under
the law he is entitled to get minimum wage for the labour or service provided
by him. It may therefore be legitimately presumed that when a person provides
labour or service to another against receipt of remuneration which is less than
the minimum wage, he is acting under the force of some compulsion which drives
him to work though he is paid less than what he is entitled under law to
receive. What Article 23 prohibits is 'forced labour' that is labour or service
which a person is forced to provide and 'force' which would make such labour or
service 'forced labour' may arise in several ways. It may be physical force
which may compel a person to provide labour or service to another or it may be
force exerted through a legal provision such as a provision for imprisonment or
fine in case the employee fails to provide labour or service or it may even be
compulsion arising from hunger and poverty, want and destitution. Any factor
which deprives a person of a choice of alternatives and compels him to adopt
one particular course of action may properly be regarded as 'force' and if
labour or service is compelled as a result of such 'force', it would we 'forced
labour'. Where a person is suffering from hunger or starvation, when he has no
resources at all to fight disease or feed his wife and children or even to hide
their nakedness, where utter grinding poverty has broken his back and reduced
him to a state of helplessness and despair and where no other employment is
available to alleviate the rigour of his poverty, he would have no choice but
to accept any work that comes hims way, even if the remuneration offered to him
is less than the minimum wage. He would be in no position to bargain with the employer;
he would have to accept what is offered to him. And in doing so he would be
acting not as a free agent with a choice between alternatives but under the
compulsion of economic circumstances and the labour or service provided by him
would be clearly 'forced labour.' There is no reason why the word 'forced'
should be read in a narrow and 492 restricted manner so as to be confined only
to physical or legal 'force' particularly when the national charter, its
fundamental document has promised to build a new socialist republic where there
will be socioeconomic justice for all and every one shall have the right to
work, to education and to adequate means of livelihood. The constitution makers
have given us one of the most remarkable documents in history for ushering in a
new socio-economic order and the Constitution which they have forged for us has
a social purpose and an economic mission and therefore every word or phrase in
the Constitution must be interpreted in a manner which would advance the
socio-economic objective of the Constitution. It is not unoften that in
capitalist society economic circumstance exert much greater pressure on an
individual in driving him to a particular course of action than physical
compulsion or force of legislative provision.
The word 'force' must therefore be
constructed to include not only physical or legal force but also force arising
from the compulsion of economic circumstance which leaves no choice of
alternatives to a person in want and compels him to provide labour or service
even though the remuneration received for it is less than the minimum wage of
course, if a person provides labour or service to another against receipt of
the minimum wage, it would not be possible to say that the labour or service
provided by him is 'forced labour' because he gets- what he is entitled under
law to receive. No inference can reasonably be drawn in such a case that he is
forced to provide labour or service for the simple reason that he would be
providing labour or service against receipt of what is lawfully payable to him
just like any other person who is not under the force of any compulsion. We are
therefore of the view that where a person provides labour or service to another
for remuneration which is less than the minimum wage, the labour or service
provided by him clearly falls within the scope and ambit of the words 'forced
labour' under Article 23. Such a person would be entitled to come to the court
for enforcement of his fundamental right under Article 23 by asking the court to
direct payment of the minimum wage to him so that the labour or service
provided by him ceases to be 'forced labour' and the breach of Article 23 is
remedied. It is therefore clear that when the petitioners alleged that minimum
wage was not paid to the workmen employed by the contractors, the complaint was
really in effect and substance a complaint against violation of the fundamental
right of the workmen under Article 23.
493 Before leaving this subject, we may point
out with all the emphasis at our command that whenever any fundamental right,
which is enforceable against private individuals such as, for example a
fundamental right enacted in Article 17 or 23 or 24 is being violated, it is
the constitutional obligation of the State to take the necessary steps for the
purpose of interdicting such violation and ensuring observance of the
fundamental right by the private indivi- dual who is transgressing the same. Of
course, the person whose fundamental right is violated can always approach the
court for the purpose of enforcement of his fundamental right, but that cannot
absolve the State from its constitutional obligation to see that there is no
violation of the fundamental right of such person, particularly. when he
belongs to the weaker section humanity and is unable to wage a legal battle
against a strong and powerful opponent who is exploiting him. The Union of
India, the Delhi Administration and the Delhi Development Authority must
therefore be held to be under an obligation to ensure observance of these
various labour laws by the contractors and if the provisions of any of these
labour laws are violated by the contractors, the petitioners indicating the
cause of the workmen are entitled to enforce this obligation against the Union
of India, the Delhi Administration and the Delhi Development Authority by
filing the present writ petition. The preliminary objections urged on behalf of
the respondents must accordingly be rejected.
Having disposed of these preliminary
objections, we may turn to consider whether there was any violation of the
provisions of the Minimum Wages Act 1948, Article 24 of the Constitution, the Equal
Remuneration Act 1976, the Contract labour (Regulation and Abolition) Act 1970
and the Inter State Migrant Workmen (Regulation of Employment and Conditions of
Service) Act 1979 by the contractors. The Union of India in its affidavit in
reply admitted that there were certain violations committed by the contractors
but hastened to add that for these violations prosecutions were initiated
against the errant contractors and no violation of any of the labour laws was
allowed to go unpunished. The Union of India also conceded in its affidavit in
reply that Re. 1/- per worker per day was deducted by the jamdars from the wage
payable to the workers with the result that the workers did not get the minimum
wage of Rh. 9.25 per day, but stated that proceedings had been taken for the
purpose of recovering the amount of the short fall in minimum wage from the
contractors. No particulars were however given of 494 such proceedings adopted
by the Union of India or the Delhi Administration or the Delhi Development
Authority. It was for this reason that we directed by our order dated 11th May
1982 that whatever is the minimum wage for the time being or if the wage
payable is higher than such wage, shall be paid by the contractors to the
workmen directly without the intervention of the jamadars and that the jamadars
shall not be entitled to deduct or recover any amount from the minimum wage
payable to the workmen as and by way of commission or otherwise. He would also
direct in addition that if the Union of India or the Delhi Administration or
the Delhi Development Authority finds and for this purpose it may hold such
inquiry as is possible in the circumstances that any of the workmen has not
received the minimum wage payable to him, it shall take the necessary legal
action against the contracts whether by way of prosecution or by way of
recovery of the amount of the short-fall. We would also suggest that hereafter
whenever any contracts are ' given by the government or any other governmental
authority including 2 public sector corporation, it should be ensured by intro
ducing a suitable provision in the contracts that wage shall be paid by the
contractors to the workmen directly without the intervention of any jamadars or
thekadars and that the contractors shall ensure that no amount by way of
commission or otherwise is deducted or recovered by the Jamadars from the wage
of the workmen. So far as observance of the other labour laws by the
contractors is concerned, the Union of India, the Delhi Administration and the
Delhi Development Authority disputed the claim of the petitioners that the
provisions of these labour laws were not being implemented by the contractors
save in a few instances where prosecutions had been launched against the
contractors.
Since it would not be possible for this Court
to take evidence for the purpose of deciding this factual dispute between the
parties and we also wanted to ensure that in any event the provisions of these
various laws enacted for the benefit of the workmen were strictly observed and
implemented by the contractors, we by our order dated 11th May 1982 appointed
three ombudsmen and requested them to make periodical inspections of the sites
of the construction work for the purpose of ascertaining whether the provisions
of these labour laws were being carried out and the workers were receiving the
benefits and amenities provided for them under these beneficient statutes or
whether there were any violations of these provisions being committed by the
contractors so that on the basis of the reports of the three ombudsmen, this
Court could give further direction in the matter if found necessary. We may 495
add that whenever any construction work is being carried out either
departmentally or through contractors, the government or any other governmental
authority including a public sector corporation which is carrying out such work
must take great care to see that the provisions of the labour laws are being
strictly observed and they should not wait for any complaint to be received
from the workmen in regard to nonobservance of any such provision before
proceeding to take action against the erring officers or contractor, but they
should institute an effective system of periodic inspections coupled with
occasional surprise inspections by the higher officers in order to ensure that
there are no violations of the provisions of labour laws and the workmen are
not denied the rights and benefits to which they are entitled under such
provisions and if any such violations are found, immediate action should be taken
against defaulting officers or contractors. That is the least which a
government or a governmental authority or a public sector corporation is
expected to do in a social welfare state.
These are the reasons for which we made our
order dated 11th May 1982.
S.R. Petition allowed.
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