Bandhua Mukti Morcha Vs. Union of
India & Ors [1983] INSC 206 (16 December 1983)
BHAGWATI, P.N.
BHAGWATI, P.N.
PATHAK, R.S.
SEN, AMARENDRA NATH (J)
CITATION: 1984 AIR 802 1984 SCR (2) 67 1984
SCC (3) 161 1983 SCALE (2)1151
CITATOR INFO :
R 1984 SC1099 (3) RF 1986 SC 847 (30) RF 1987
SC 990 (16) R 1987 SC1086 (3,4,5,6,7) R 1988 SC1863 (3,9,10) F 1989 SC 549 (15)
RF 1989 SC 653 (12) F 1990 SC2060 (3) F 1991 SC 101 (35) RF 1991 SC 420 (7) RF
1991 SC1117 (7) RF 1991 SC1420 (25) RF 1992 SC 38 (4) RF 1992 SC1858 (11)
ACT:
Constitution of India.-Article 32(1)-Mode of
interpreting Article 32-"Appropriate proceedings", meaning of-Letter
addressed by a party on behalf of persons belonging to socially and
economically weaker sections complaining violation of their rights under
various social welfare legislations-Whether can be treated as a writ
petition-Maintainability of-Public Interest Litigation- Nature and scope of.
Constitution of India, Article 32
(2)-Appointment of commissions by the Supreme Court to enquire into the
complaint made in the writ petition and relying upon the commissioners'
report-Propriety of-Adversarial Procedure-How far binding on the Court-Supreme
Court Rules, 1966, O, XXXV, XLVI and XLVII, Rule 6-Code of Civil Procedure,
O.XXVI.
Mines Act, 1952-Sections 2 (j), (jj), (kk), 3
(1) (b) proviso 18 Chapters V, VI & VII-Meaning of the word
"mine"- Whether stone quarries are mines-Whether workers of the stone
quarries and crushers entitled to the benefits accruing under the Act-Responsibility
of the mine lessees, mine owners, Central Government and the State Governments
for ensuring the benefits accruing under the Act, explained- Mines Rules 1955,
Rules, Rules 30-32-Punjab Minor Mineral Concession Rules, 1964.
Inter-State Migrant Workmen (Regulation of
Employment and Conditions of Service) Act, 1979-ss.2 (1) (e), (b), (g), 4,8,12
and Chapter V-Inter-State Migrant Workmen (Regulation of Employment and
Conditions of Service) Central Rules, 1980-Rules 23, 25-45-Definition of
inter-state migrant workmen-Rights and benefits of inter-state migrant workmen
explained-Thekedars or Jamadars recruiting workers for mine lessees/owners from
outside the State are "contractors"- Contract Labour (Regulation and
Abolition) Act, 1970-ss. 2 (1) (a), (b), (c) (g), 16 to 21.
Bonded Labour System (Abolition) Act,
1976-ss.2 (f), (g), 4, 5, 10-15-Existence of Forced Labour-Whether bonded
labour-Burden of proof lies upon the employer that the labourer is not a bonded
labourer-Court will be justified in presuming that the labourer is a bonded
labourer unless the presumption is rebutted by producing satisfactory material.
Minimum Wages Act, Workmen's Compensation
Act, 1983, Payment of Wages Act, Employees State Insurance Act, Employees
Provident fund and Miscellaneous Provisions Act, Maternity Benefits Act,
1957-Benefits accruing under these Acts-Whether available to mine workers.
HEADNOTE:
The petitioner, an organisation dedicated to
the cause of release of bonded labourers in the country, addressed a letter to
Hon'ble Bhagwati, J. alleging: (1) that there were a large number of labourers
from different parts of the country who were working in some of the stone
quarries situate in district Faridabad, State of 68 Haryana under "inhuman
and intolerable conditions; (2) that a large number of them were bonded
labourers; (3) that the provisions of the Constitution and various social
welfare laws passed for the benefit of the said workmen were not being
implemented in regard to these labourers. The petitioner also mentioned in the
letter the names of the stone quarries and particulars of labourers who were
working as bonded labourers and prayed that a writ be issued for proper
implementation of the various provisions of the social welfare legislations,
such as, Mines Act, 1952 Inter- State Migrant Workmen (Regulation of Employment
and Conditions of Service) Act, 1979, Contract Labour (Regulation and
Abolition) Act, 1970, Bonded Labour System (Abolition) Act, 1976, Minimum Wages
Act, Workmen's Compensation Act, Payment of Wages Act, Employees State
Insurance Act, Maternity Benefits Act etc. applicable to these labourers
working in the said stone quarries with a view to ending the misery, suffering
and helplessness of "these victims of the most inhuman exploitation."
The Court treated the letter as a writ petition and appointed a commission to
inquire into the allegations made by the petitioner. The commission while
confirming he allegations of the petitioner, pointed out in its report that (i)
the whole atmosphere in the alleged stone quarries was full of dust and it was
difficult for anyone to breathe; (ii) some of the workmen were not allowed to
leave the stone quarries and were providing forced labour; (iii) there was no
facility of providing pure water to drink and the labourers were compelled to
drink dirty water from a nullah; (iv) the labourers were not having proper
shelter but were living in jhuggies with stones piled one upon the other as
walls and straw covering the top which was too low to stand and which did not
afford any protection against sun and rain; (v) some of the labourers were
suffering from chronic diseases; (vi) no compensation was being paid to
labourers who were injured due to accidents arising in the course of
employment; (vii) there were no facilities for medical treatment or schooling.
At the direction of the Court, a socio-legal investigation was also carried out
and it suggested measures for improving the conditions of the mine workers.
The respondents contended: (1) Article 32 of
the Constitution is not attracted to the instant case as no fundamental right
of the petitioner or of the workmen referred to in the petition is infringed;
(2) A letter addressed by a party to this Court cannot be treated as a writ
petition; (3) In a proceeding under Art. 32, this Court is not empowered to
appoint any commission or an investigating body to enquire into the allegations
made in the writ petition; (4) Reports made by such commissions are based only
on ex-parte statements which have not been tested by cross-examination and
therefore they have no evidentiary value; and (5) there might be forced
labourers in the stone quarries and stone crushers in the State of Haryana but
they were not bonded labourers within the meaning of that expression as used in
the Bonded Labour System (Abolition) Act, 1976.
Rejecting all the contentions and allowing
the writ petition on merits, the Court
HELD: The State Government's objection as to
the maintainability of the writ petition under Article 32 of the Constitution
by the petitioners is reprehensible. If any citizen brings before the Court a
complaint that a large number of peasants or workers are bonded serfs or are
being subjected to exploitation by a few mine lessees or contractors or
employers or are being denied the benefits of 69 social welfare laws, the State
Government, which is, under our constitutional scheme, charged with the mission
of bringing about a new socioeconomic order where there will be social and
economic justice for every one equality of status and opportunity for all,
would welcome an inquiry by the court, so that if it is found that there are in
fact bonded labourers or even if the workers are not bonded in the strict sense
of the term as defined in the Bonded Labour System (Abolition) Act 1976 but
they are made to provide forced labour or are consigned to a life of utter
deprivation and degradation, such a situation can be set right by the State
Government. Even if the State Government is on its own inquiry satisfied that
the workmen are not bonded and are not compelled to provide forced labour and
are living and working in decent conditions with all the basic necessities of
life provided to them, the State Government should not baulk an inquiry by the
court when a complaint is brought by a citizen, but it should be anxious to
satisfy the court and through the court, the people of the country, that it is
discharging its constitutional obligation fairly and adequately and the workmen
are being ensured social and economic justice. [102A-D]
2. Moreover, when a complaint is made on
behalf of workmen that they are held in bondage and are working and living in
miserable conditions without any proper or adequate shelter over their heads,
without any protection against sun and rain, without two square meals per day
and with only dirty water from a nullah to drink, it is difficult how such a
complaint can be thrown out on the ground that it is not violative of the
fundamental right of the workmen. It is the fundamental right of every one in
this country, assured under the interpretation given to Article 21 by this
Court in Francis Mullen's Case, to live with human dignity, free from
exploitation. This right to live with human dignity enshrined in Article 21
derives its life breath from the Directive Principles of State Policy and
particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at
the least, therefore, it must include protection of the health and strength of
workers, men and women, and of the tender age of children against abuse,
opportunities and facilities for children to develop in a healthy manner and in
conditions of freedom and dignity, educational facilities, just and humane
conditions of work and maternity relief. These are the minimum requirements
which must exist in order to enable a person to live with human dignity and no
State neither the Central Government nor any State Government-has the right to
take any action which will deprive a person of the enjoyment of these basic
essentials. Since the Directive Principles of State Policy contained in clauses
(e) and (f) of Article 39, Article 41 and 42 are not enforceable in a court of
law, it may not be possible to compel the State through the judicial process to
make provision by statutory enactment or executive fiat for ensuring these
basic essentials which go to make up a life of human dignity but where
legislation is already enacted by the State providing these basic requirements
to the workmen and thus investing their right to live with basic human dignity,
with concrete reality and content, the State can certainly be obligated to
ensure observance of such legislation for inaction on the part of the State in
securing implementation of such legislation would amount to denial of the right
to live with human dignity enshrined in Article 21, more so in the context of
Article 256 which provides that the executive power of every State shall be so
exercised as to ensure compliance with the laws made by Parliament and any
existing laws which apply in that State. [103B-H 104A]
3. The State is under a constitutional
obligation to see that there is no violation of the fundamental right of any
person, particularly when he belongs to the 70 weaker sections of the community
and is unable to wage a legal battle against a strong and powerful opponent who
is exploiting him. The Central Government is therefore bound to ensure
observance of various social welfare and labour laws enacted by Parliament for
the purpose of securing to the workmen a life of basic human dignity in
compliance with the Directive Principles of State Policy. It must also follow
as a necessary corollary that the State of Haryana in which the stone quarries
are vested by reason of Haryana Minerals (Vesting of Rights) Act 1973 and which
is therefore the owner of the mines cannot while giving its mines for stone
quarrying operations, permit workmen to be denied the benefit of various social
welfare and labour laws enacted with a view to enabling them to live a life of
human dignity. The State of Haryana must therefore ensure that the minelessees
or contractors, to whom it is giving its mines for stone quarrying operations,
observe various social welfare and labour laws enacted for the benefit of the
workmen. This is a constitutional obligation which can be enforced against the
Central Government and the State of Haryana by a writ petition under Article 32
of the Constitution. [104 A-D]
4. While interpreting Article 32, it must be
borne in mind that our approach must be guided not by any verbal or formalistic
canons of construction but by the paramount object and purpose for which this
Article has been enacted as a Fundamental Right in the Constitution and its
interpretation must receive illumination from the Trinity of provisions which
permeate and energies the entire Constitution namely, the Preamble, the
Fundamental Rights and the Directive Principles of State Policy. Clause (1) of
Article 32 confers the right to move the Supreme Court for enforcement of any
of the fundamental rights, but it does not say as to who shall have this right
to move the Supreme Court nor does it say by what proceedings the Supreme Court
may be so moved. There is no limitation in the words of Clause (1) of Article
32 that the fundamental right which is sought to be enforced by moving the
Supreme Court should not be one belonging to the person who moves the Supreme
Court nor does it say that the Supreme Court should be moved only by a
particular kind of proceeding. It is clear on the plain language of clause (1)
of Article 32 that whenever there is a violation of a fundamental right, anyone
can move the Supreme Court for enforcement of such fundamental right. Of
course, the court would not, in exercise of its discretion, intervene at the
instance of a meddlesome interloper or busy body and would ordinarily insist
that only a person whose fundamental right is violative should be allowed to
activise the court, but there is no fetter upon the power of the court to
entertain a proceeding initiated by any person other than the one whose
fundamental right is violated, though the court would not ordinarily entertain
such a proceeding, since the person whose fundamental right is violated can
always approach the court and if he does not wish to seek judicial redress by
moving the court, why should someone else be allowed to do so on his behalf.
This reasoning however breaks down in the case of a person or class of persons
whose fundamental right is violated but who cannot have resort to the court on
account of their poverty or disability or socially or economically
disadvantaged position and in such a case, therefore, the court can and must
allow any member of the public acting bona fide to espouse the cause of such person
or class of persons. This does not violate, in the slightest measure the
language of the constitutional provision enacted in clause (1) of Article 32.
[106 B-H-107A]
5. Clause (1) of Article 32 says that the
Supreme Court can be moved for enforcement of a fundamental right by any
'appropriate' proceeding. There 71 is no limitation in regard to the kind of
proceeding envisaged in clause (1) of Article 32 except that the proceeding
must be "appropriate" and this requirement of appropriateness must be
judged in the light of the purpose for which the proceeding is to be taken,
namely, enforcement of a fundamental right. The Constitution makers
deliberately did not lay down any particular form of proceeding for enforcement
of a fundamental right nor did they stipulate that such proceeding should
conform to any rigid pattern or straight jacket formula as, for example, in
England, because they knew that in a country like India, where there is so much
of poverty, ignorance, illiteracy, deprivation and exploitation, any insistence
on a rigid formula of proceeding for enforcement of a fundamental right would
become self defeating because it would place enforcement of fundamental rights
beyond the reach of the common man and the entire remedy for enforcement of fundamental
rights which the Constitution makers regarded as so precious and invaluable
that they elevated it to the status of a fundamental right, would become a mere
rope of sand so far as the large masses of the people in this country are
concerned. The Constitution makers therefore advisedly provided in clause (1)
of Article 32 that the Supreme Court may be moved by any 'appropriate'
proceeding, 'appropriate' not in terms of any particular form but 'appropriate'
with reference to the purpose of the proceeding. [107 A-F] Therefore where a
member of the public acting bona fide moves the Court for enforcement of a
fundamental right on behalf of a person or class of persons who on account of
poverty or disability or socially or economically disadvantaged position cannot
approach the court for relief, such member of the public may move the court
even by just writing a letter, because it would not be right or fair to expect
a person acting pro bono public to incur expenses out of his own pocket for
going to a lawyer and preparing a regular writ petition for being filed in
court for enforcement of the fundamental right of the poor and deprived
sections of the community and in such a case, a letter addressed by him can
legitimately be regarded as an "appropriate" proceeding. [107 F-H]
6. Public Interest litigation is not in the
nature of adversary litigation but it is a challenge and an opportunity to the
government and its officers to make basic human rights meaningful to the
deprived and vulnerable sections of the community and to assure them social and
economic justice which is the signature tune of our Constitution. When the
Court entertains public interest, litigation, it does not do so in a cavilling
spirit or in a confrontational mood or with a view to tilting at executive
authority or seeking to unsurp it, but its attempt is only to ensure observance
of social and economic rescue programmes, legislative as well as executive,
framed for the benefit of the have-nots and the handicapped and to protect them
against violation of their basic human rights, which is also the constitutional
obligation of the executive. The Court is thus merely assisting in the
realisation of the constitutional objectives. [102 D-E, G-H, 103 A-B]
7. Clause (2) of Article 32 conferring power
on the Supreme Court "to issue directions, or orders, or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari" which ever may be appropriate, for enforcement of any of the
fundamental rights, is in the widest terms. It is not confined to issuing the
high prerogative writs of habeas corpus, mandamus, prohibition, certiorari, and
quo warranto, which are hedged in by strict conditions differing from one writ
to another. But it is much wider and includes within its matrix, power to issue
any directions, orders or writs which may be appropriate 72 for enforcement of
the fundamental right in question and this is made amply clear by the inclusive
clause which refers to in the nature of habeas corpus, mandamus, prohibition,
qua warranto and certiorari. Therefore even if the conditions for issue of any
of these high prerogative writs are not fulfilled, the Supreme Court would have
power to issue any direction, order or writ including a writ in the nature of any
high prerogative writ. This provision conferring on the Supreme Court power to
enforce the fundamental rights in the widest possible terms shows the anxiety
of the Constitution makers not to allow any procedural technicalities to stand
in the way of enforcement of fundamental rights. The Constitution makers
clearly intended that the Supreme Court should have the amplest power to issue
whatever direction, order or writ may be appropriate in a given case for
enforcement of a fundamental right. That is why the Constitution is silent as
to what procedure shall be followed by the Supreme Court in exercising the
power to issue such direction or order or writ as in Article 32 and advisedly
so, because the Constitution makers never intended to fetter the discretion of
the Supreme Court to evolve a procedure appropriate in the circumstances of a
given case for the purpose of enabling it to exercise its power of enforcing a
fundamental right. Neither clause (2) of Article 32 nor any other provision of
the Constitution requires that any particular procedure shall be followed by
the Supreme Court in exercising its power to issue an appropriate direction,
order or writ. The purpose for which the power to issue an appropriate
direction, order or writ is conferred on the Supreme Court is to secure
enforcement of a fundamental right and obviously therefore, whatever procedure
is necessary for fulfillment of that purpose must be permissible to the Supreme
Court. [108 B-H, 109 A-B]
8. It is not at all obligatory that an adversarial
procedure, where each party produces his own evidence tested by cross
examination by the other side and the judge sits like an umpire and decides the
case only on the basis of such material as may be produced before him by both
parties, must be followed in a proceeding under Article 32 for enforcement of a
fundamental right. In fact, there is no such constitutional compulsion enacted
in clause (2) of Article 32 or in any other part of the Constitution. There is
nothing sacrosanct about the adversarial procedure with evidence led by either
party and tested by cross-examination by the other party and the judge playing
a positive role has become a part of our legal system because it is embodied in
the Code of Civil procedure and the Indian Evidence Act. But these statutes
obviously have no application where a new jurisdiction is created in the
Supreme Court for enforcement of a fundamental right. Therefore it is not
justified to impose any restriction on the power of the Supreme Court adopt
such procedure as it thinks fit in exercise of its new jurisdiction, by
engrafting adversarial procedure on it, when the constitution makers have
deliberately chosen not to insist on any such requirement and instead left it
open to the Supreme Court to follow such procedure as it thinks appropriate for
the purpose of securing the end for which the power is conferred namely,
enforcement of a fundamental right.[109 B-G]
9. The strict adherence to the adversarial
procedure can some times lead to injustice, particularly when the parties are
not evenly balanced in social or economic strength. Where one of the parties to
a litigation belongs to a poor and deprived section of the community and does
not possess adequate social and material resources, he is bound to be at a disadvantage
as against a strong and powerful opponent under the adversary system of
justice, because of his difficulty in getting competent legal representation
and more than anything else, his inability to produce relevant- 73 evidence
before the court. Therefore, when the poor come before the court, particularly
for enforcement of their fundamental rights, it is necessary to depart from the
adversarial procedure and to evolve a new procedure which will make it possible
for the poor and the weak to bring the necessary material before the court for
the purpose of securing enforcement of their fundamental rights. If the
adversarial procedure is truly followed in their case, they would never be able
to enforce their fundamental rights and the result would be nothing but a
mockery of the Constitution. Therefore the Courts should abandon the laissez
faire approach in the judicial process particularly where it involves a
question of enforcement of fundamental rights and forge new tools, devise new
methods and adopt new strategies for the purpose of making fundamental rights
meaningful for the large masses of people. And this is clearly permissible on
the language of clause (2) of Article 32 because the Constitution makers while
enacting that clause have deliberately and advisedly not used and words
restricting the power of the court to adopt any procedure which it considers
appropriate in the circumstances of a given case for enforcing a fundamental
right. [110 B-F]
10. It is obvious that the poor and the
disadvantaged cannot possibly produce relevant material before the Court in
support of their case and equally where an action is brought on their behalf by
a citizen acting pro bono publico, it would be almost impossible for him to
gather the relevant material and place it before the Court. In such a case the
Supreme Court would be failing in discharge of its contiotnal duties of
enforcing a fundamental right if it refuses to intervene because the
stitupetitioner belonging to the underprivileged segment of society or a public
spirited citizen espousing his cause is unable to produce the relevant material
before the court. If the Supreme Court were to adopt a passive approach and
decline to intervene in such a case because relevant material has not been
produced before it by the party seeking its intervention, the fundamental
rights would remain merely a teasing illusion so far as the poor and
disadvantaged sections of the community are concerned. Therefore the Supreme
Court has evolved the practice of appointing commissions for the purpose of
gathering facts and data in regard to a complaint of breach of a fundamental
right made on behalf of the weaker sections of the society. The Report of the
commissioner would furnish prima facie evidence of the facts and data gathered
by the commissioner and that is why the Supreme Court is careful to appoint a
responsible person as commissioner to make an inquiry or investigation into the
facts relating to the complaint. Even in the past the Supreme Court has
appointed sometimes a district magistrate, sometimes a district Judge, sometime
a professor of law, sometimes a journalist, sometimes an officer of the court
and sometimes an advocate practising in the court, for the purpose of carrying
out an enquiry or investigation and making report to the court because the
commissioner appointed by the Court must be a responsible person who enjoys the
confidence of the court and who is expected to carry out his assignment
objectively and impartially without any predilection or prejudice. Once the
report of the commissioner is received, copies of it would be supplied to the
parties so that either party, if it wants to dispute any of the facts or date
stated in the Report, may do so by filing an affidavit and the court then
consider the report of the commissioner and the affidavits which may have been
filed and proceed to adjudicate upon the issue arising in the writ petition. It
would be entirely for the Court to consider what weight to attach to the facts
and data stated in the report of the commissioner and to what extent to act
upon such facts and data. But it would not be correct to say that the report of
the commissioner has no evidentiary value at all, since the statements 74 made
in it are not tested by cross-examination. To accept this contention would be
to introduce the adversarial procedure in a proceeding where in the given
situation, it is totally inapposite. [111 B-H, 112, A-B]
11. It is true that Order XLVI of the Supreme
Court Rules 1966 makes the provisions of Order XXVI of the Code of Civil
Procedure, except rules 13, 14, 19 20, 21 and 22 applicable to the Supreme
Court and lays down the procedure for an application for issue of a Commission,
but Order XXVI is not exhaustive and does not detract from the inherent power
of the Supreme Court to appoint a commission, if the appointment of such
commission is found necessary for the purpose of securing enforcement of a
fundamental right in exercise of its constitutional jurisdiction under Article
32. Order XLVI of the Supreme Court Rules
1966 cannot in any way militate against the power of the Supreme Court under
Article 32 and in fact rule 6 of Order XLVII of the Supreme Court Rules 1966
provides that nothing in these Rules "shall be deemed to limit or
otherwise affect the inherent powers of the court to make such orders as may be
necessary for the ends of justice. [112 C-F] In the instant case, therefore,
the court did not act beyond its power in appointing the commissions for the
purpose of making an inquiry into the conditions of workmen employed in the
stone quarries. The petitioner in the writ petition specifically alleged
violation of the fundamental rights of the workmen employed in the stone
quarries under Articles 21 and 23 and it was therefore necessary for the court
to appoint these commissioners for the purpose of inquiring into the facts
related to this complaint. The Reports of the Commissions were clearly
documents having evidentiary value and they furnished prima facie evidence of
the facts and data stated in those Reports. Of course, it is for the court to
consider what weight it should attach to the facts and data contained in these
Reports in the light of the various affidavits filed in the proceedings.[112
F-H, 113 A-B]
12. The position pointed out as the power of
the Supreme Court to appoint commissioners in the exercise of its jurisdiction
under Article 32 must apply equally in relation to the exercise of jurisdiction
by the High Courts under Article 226 for the latter jurisdiction is also a new
constitutional jurisdiction and it is conferred in the same wide terms as the
jurisdiction under Article 32 and the same powers can and must therefore be
exercised by the High Court while exercising jurisdiction under Article 226. In
fact, the jurisdiction of the High Court’s under Article 226 is much wider,
because the High Courts are required to exercise this jurisdiction not only for
enforcement of a fundamental right but also for enforcement of any legal right
and there are many rights conferred on the poor and the disadvantaged which are
the creation of statute and they need to be enforced as urgently and vigorously
as fundamental rights.
[113 B-D] 3: 1. The Stone quarries in the
instant case are "mines" within the meaning of the Section 2 (j) of
the Mines Act, 1952 since they are excavations where operations for the purpose
of searching for or obtaining stone by quarrying are being carried on but they
are not open cast working' since admittedly excavations in the case of these
stone quarries extend below superjacent ground. Since the workings in these
stone quarries extend below superjacent ground and they are not 'open east
workings' and moreover explosives are admittedly used in connection with 75 the
excavation, the conditions set out in the proviso to see 3 (i) (i) are not
fulfilled and hence the exclusion of the provisions of the Mines Act 1952
(other than the excepted sections) is not attracted and all the provisions of
the Mines Act 1952 apply to these stone quarries. The provisions contained in
chapters V, VI & VII of the Mines Act confer certain rights and benefits on
the workmen employed in the stone quarries and stone crushers and these rights
and benefits intended to secure to the workman just and human conditions of
work ensuring a decent standard of life with basic human dignity. Since the
stone quarries are not being exploited by the State of Haryana though it is the
owner of the stone quarries, but are being given out on lease by auction, the
mine-lessees who are not only lessees but also occupiers of the stone quarries
are the owners of the stone quarries within the meaning of that expression as
used in section 2 (1) and so also are the owners of stone crushers in relation
to their establishment. The mine-lessees and owners of stone crushers are, therefore,
liable under section 18 of the Mines Act, 1952 to carry out their operations in
accordance with the provisions of the Mines Act, 1952 and the Mines Rules, 1955
and other Rules and Regulations made under that Act and to ensure that the
rights and benefits conferred by these provisions are actually and concretely
made available to the workmen. The Central Government is entrusted under the Mines
Act 1952 with the responsibility of securing compliance with the provisions of
that Act and of the Mines Rules 1953 and other Rules and Regulations made under
that Act and it is the primary obligation of the Central Government to ensure
that these provisions are complied with by the mine-lessees and stone crusher
owners. The State of Haryana is also under an obligation to take all necessary
steps for the purpose of securing compliance with these provisions by the mine-
lessees and owners of stone crushers. The State of Haryana is therefore, in any
event, bound to take action to enforce the provisions of the Mines Act 1952 and
the Mines Rules 1955 and other Rules and Regulations made under that Act for
the benefit of the workmen. [113 G-H, 114 A, 115 A, E, G, 116 B-F, 117 C-D]
13. The Inter-state Migrant Workmen
(Regulation of Employment and conditions of Service) Act, by sub-section (4) of
section (1) applies to every establishment in which five or more inter-State
Migrant workmen are employed or were employed on any day of the preceding
twelve months and so also it applies to every contractor who employs or
employed five or more inter-State migrant workmen on any day of the preceding
twelve months. Section (2) sub-section (1) Clause (b) of the Act defines
contractor, in relation to an establishment, to mean "a person who
undertakes (whether as an independent contractor, agent, employee or otherwise)
to produce a given result for the establishment, other than a mere supply of
goods and articles of manufacture to such establishment, by the employment of
workmen or to supply workmen to the establishment, and includes a
subcontractor, khatedar, sardar, agent or any other person, by whatever name
called, who recruits or employs workman." Clause (e) of sub-section (1) of
section (2) defines "interstate Migrant Workmen" to mean "any
person who is recruited by or through a contractor in one State under an
agreement or other arrangement for employment in an establishment in another
State, whether with or with-out the knowledge of the principal employer in
relation to such establishment." The expression "principal
employer" is defined by clause (g) of sub-section (1) of section 2 to mean
"in relation to a mine, the owner or agent of the mine and where a person
has been named as the manager of the mine, the person so named."
Obviously, therefore, the mine-lessees and owners of stone crushers in the
present case would be principal employers within the meaning of that expression
as used in the Inter- 76 State Workmen Act. Section 16 lays a duty on every
contractor employing inter State migrant workmen in connection with the work of
an establishment to provide various other facilities particulars of which are
to be found in Rules 36 to 45 of the Inter-State Migrant Workmen Rules. (These
facilities include medical facilities protective clothing, drinking water,
latrines, urinals and washing facilities, rest rooms, canteens, creche and
residential accommodation). The obligation to provide these facilities is in
relation to the inter-State migrant workmen employed in an establishment to
which the Act applies. But this liability is not confined only to the
contractor, because Section 18 provides in so many terms that if any allowance
required to be paid under-section 14 or 15 to an inter-State migrant workman is
not paid by the contractor or if any facility specified in Section 16 is not
provided for the benefit of such workman, such allowance shall be paid or as
the case may be, the facility shall be provided by the principal employer
within such time as may be prescribed by the Rules and all the allowances paid
by the principal employer or all the expenses incurred by him in this
connection may be recovered by him from the contractor either by deduction from
the amount payable to the contractor or as a debt payable by the contractor.
[117 F-H, 119 E-A-120 A]
14. The thekedar or jamadar who is engaged by
the mine lessees or the stone crusher owners to recruit workmen or employ them
on behalf of the mine lessees or stone crusher owners would clearly be a 'contractor'
within the meaning of that term as defined in Section 2 sub-section (1) clause
(b) and the workmen recruited by or through him from other States for
employment in the stone quarries and stone crushers in the State of Haryana
would undoubtedly be inter- State migrant workman . Even when the thekedar or
jamadar recruits or employs workmen for the stone quarries and stone crushers
by sending word through the "old hands", the workmen so recruited or
employed would be inter-State migrant workmen, because the "old
hands" would be really acting as agents of the thekedar or jamadar for the
purpose of recruiting or employing workmen crushers in the State of Haryana.
[121-E]
15. In addition to the rights and benefits
conferred upon him under the Inter-State Migrant workmen Act and the
inter-State Migrant Workmen Rules, an inter-State migrant workman is also, by
reason of Section 21, entitled to the benefit of the provisions contained in
the Workmen's Compensation Act 1923, The Payment of Wages Act 1936, The Employees'
State Insurance Act 1948, The Employees' Provident Funds and Misc. Provisions
Act, 1952, and the Maternity Benefit Act 1961. [122 B-C] The obligation to give
effect to the provisions contained in these various laws is not only that of
the jamadar or thekedar and the minelessees and stone crushers owners (provided
of course there are 5 or more inter-State Migrant Workmen employed in the
establishment) but also that of the Central Government because the Central
Government being the "appropriate Government" within the meaning of
Section 2(1)(a) is under an obligation to take necessary steps for the purpose
of securing compliance with these provisions by the thekedar or jamadar and
mine-lessees and owners of stone crushers. The State of Haryana is also bound
to ensure that these provisions are observed by the thekedar or jamadar and
minelessees and owners of stone crushers.
[122 D-F]
16. If the Jamadar or thekadar in a stone
quarry or stone crusher is a contractor' within the meaning of the definition
of the term in the Inter-State Migrant 77 Workmen Act, he would a fortiorari be
'contractor' also for the purpose of Contract Labour Act and any workmen hired
in or in connection with the work of stone quarry or stone crusher by or
through the jamadar or thekedar would be workmen entitled to the benefit of the
provisions of the Contract Labour Act. Where therefore the thekedar for Jamadar
is a Contractor, and the workmen are employed as 'contract labour' within the
meaning of these expressions as used in the Contract Labour Act the Contractor
as well as the principal employer would be liable to comply with the provisions
of the Contract Labour Act and the Contract Labour Rules and to provide to the
contract labour rights and benefits conferred by these provisions. The Central
Government being the "appropriate government" within the meaning of
section 2 sub-section (1) clause (a) would be responsible for ensuring
compliance with the provisions of the Contract Labour Act and the Contract
Labour Rules by the mine-lessees and stone crushers owners and the thekedar or
jamadar. So also, for reasons discussed while dealing with the applicability of
the Mines Act 1952 and the Inter State Migrant Workmen Act, the State of
Haryana. would be under an obligation to enforce the provisions of the Contract
Labour Act and the Contract Labour Rules for the benefit of the workmen. [123
E-F, H, 124 A-C]
17. There can be no doubt and indeed this was
not disputed on behalf of the respondents, that the Minimum Wages Act 1948 is
applicable to workmen employed in the stone quarries and stone crushers.
Therefore whatever be the mode of payment followed by the mine lessees and
stone crusher owners, the workmen must get nothing less than the minimum wage
for the job which is being carried out by them and if they are required to
carry out additionally any of the functions pertaining to another job or
occupation for which a separate minimum wage is prescribed, they must be paid a
proportionate part of such minimum wage in addition to the minimum wage payable
to them for the work primarily carried out by them. The system of payment which
is being followed in the stone quarries and stone crushers, under which the
expenses of the explosives and of drilling holes are to be borne by the workmen
out of their own wages, should be changed and the explosives required for
carrying out blasting should be supplied by the mine lessees or the jamadar or
thekedar without any deduction being made out of the wages of the workmen and
the work of drilling holes and shot firing should be entrusted only to those
who have received the requisite training under the Mines Vocational Training
Rules 1966. So far as the complaint of the petitioner that the workmen employed
in the stone quarries and stone crushers are not being paid the minimum wage
due and payable for the work carried out by them is concerned, it is a matter
which would have to be investigated and determined. [124C, 125 A-E] The Bonded
Labour system is intended to strike against the system of bonded labour which
has been a shameful scar on the Indian Social Scene for decades and which has
continued to disfigure the life of the nation even after independence. The Act
was brought into force throughout the length and breadth of the country with
effect from 25th October 1975, which means that the Act has been in force now
for almost 8 years and if properly implemented, it should have by this time
brought about complete identification, freeing and rehabilitation of bonded
labour. But as official, semi-official and non-official reports show, we have
yet to go a long way in wiping out this outrage against humanity. [126 A-C]
18. It is clear bonded labour is a form of
forced labour and Section 12 of the Bonded Labour System (Abolition) Act 1976
recognises this self-evident proposition by laying a duty on every District
Magistrate and every officer specified 78 by him to inquire whether any bonded
labour system or any other form of forced labour is being enforced by or on
behalf of any person and, if so, to take such action as may be necessary to
eradicate the enforcement of such forced labour. The thrust of the Act is
against the continuance of any form of forced labour. It is of course true
that, strictly speaking, a bonded labourer means a labourer who incurs or has
or is presumed to have incurred a bonded debt and a bonded debt means an
advance obtained or presumed to have been obtained by a bonded labourer under
or in pursuance of the bonded labour system and it would therefore appear that
before a labourer can be regarded as a bonded labourer, he must not only be
forced to provide labour to the employer but he must have also received an
advance or other economic consideration from the employer unless he is made to
provide forced labour in pursuance of any custom or social obligation or by
reason of his birth in any particular caste or community. [130 A-D]
19. The contention of the State of Haryana
that the burden of proof under the bonded labour System (Abolition) Act, 1976
is upon the bonded labourers is misconceived. To insist that the bonded
labourers must first prove that they are providing forced labour in
consideration of an advance or other economic consideration received by them
and then only they would be eligible for the benefits provided under the Act,
is nothing but asking them to do a task which is extremely difficult, if not
impossible. The labourers would have no evidence at all to prove so and since
employment of bonded labour is a penal offence under the Act, the employer
would immediately without any hesitation disown having given any advance or
economic consideration to the bonded labourers. The insistence of proof from
two labourers by the State Government which is constitutionally mandated to
bring about change in the life conditions of the poor and downtrodden and to
ensure social justice to them is reprehensible. [130 F-H, 131 A] It would be
cruel to insist that a bonded labour in order to derive the benefits of this
social welfare legislation, should have to go through a formal process of trial
with the normal procedure for recording of evidence.
That would be a totally futile process
because it is obvious that a bonded labourers can never stand up to the
regidity and formalism of the legal process due to his poverty, illiteracy and
social and economic backwardness and if such a procedure were required to be
followed, the State Government might as well obliterate this Act from the
statute book. It is now statistically established that most of bonded labourers
are members of Scheduled Castes and Scheduled Tribes or other backward classes
and ordinary course of human affairs would show, indeed judicial notice can be
taken of it, that there would be no occasion for a labourer to be placed in a
situation where he is required to supply forced labour for no wage or for
nominal wage, unless he has received some advance of other economic
consideration from the employer and under the consideration from the employer
and under the pretext of not having returned such advance or other economic
consideration, he is required to render service to the employer or is deprived
of his freedom of employment or of the right to move freely wherever he wants.
Therefore, whenever it is shown that a labourers is made to provide forced
labour, the Court would raise a presumption that he is required to do so in
consideration of an advance or other economic consideration received by him and
he is therefore a bonded labourer. This presumption may be rebutted by the
employer and also by the State Government if it so chooses but unless and until
satisfactory material is produced for reubutting this presumption, the Court
must proceed on the basis that the labourer is a bonded labourer entitled to
the benefit of the provisions of the Act. The State Government cannot 79 be
permitted to repudiate its obligation to identify, release and rehabilitate the
bonded labourers on the plea that though the concerned labourers may be
providing forced labour, the State Government does not owe any obligation to
them unless and until they show in an appropriate legal proceeding conducted
according to the rules of adversary system of justice, that they are bonded
labourers. [131 C-H, 132 A]
20. Though section 13 provides for
constitution of a Vigilance Committee in each District and each sub-division of
a District, the Government of Haryana, for some reason or the other, did not
constitute any Vigilance Committee until its attention was drawn to this
requirement of the law by this Court. It may be that according to the
Government of Haryana there were not at any time any bonded labourers within
its territories, but even so Vigilance Committees are required by Section 13 to
be constituted because the function of the Vigilance Committee is to identify
bonded labourers, if there are any, and to free and rehabilitate them and it
would not be right for the State Government not to constitute vigilance
Committees on the assumption that there are no bonded labourers at all. In
constituting Vigilance Committee in each District and sub-division, the Haryana
Government would do well to include representatives of non-political social
action groups operating at the grass root level, for it is only through such
social action groups and voluntary agencies that the problems of identification
of bonded labour can be effectively solved. [128 E-H, 129 A- B] The magistrates
and judicial officers take a very lenient view of violations of labour laws
enacted for the benefits of the workmen and let off the defaulting employers
with small fines. There have also been occasions where the magistrate and
judicial officers have scotched prosecutions and acquitted or discharged the
defaulting employers on hyper technicalities. This happens largely because the
magistrates and judicial officers are not sufficiently sensitised to the
importance of the observance of labour laws with the result that the labour
laws are allowed to be ignored and breached with utter callousness and
indifference and the workmen begin to feel that the defaulting employers can,
by paying a fine which hardly touches their pocket, escape from the arm of law
and the labour laws supposdely enacted for their benefit are not meant to be
observed but are merely decorative appendages intended to assuage the
conscience of the workmen. The Magistrates and Judicial Officers should take a
strict view of violation of labour laws and to impose adequate punishment on
the erring employers so that they may realise that it does not pay to commit a
breach of such laws and to deny the benefit of such laws to the workmen. [145
A-D]
21. The Court issued several directions to
the Central Government and the State Government and the various authorities for
implementing the provisions enacted in various social welfare laws for the
benefit of the workmen employed in the stone quarries and stone crushers in the
state of Haryana. So that the poor workmen who lead a miserable existence may
one day be able to realise that freedom is not only the monopoly of a few but
belongs to them all and that they are also equally entitled along with others
to participate in the fruits of freedom and development. [132 D, 145 D-F] PER
PATHAK, J CONCURRING (1) Public Interest Litigation in its present form
constitutes a new chapter in our judicial system. It has acquired a significant
degree of importance in the jurisprudence practised by our courts and has
evoked a lively, if somewhat con- 80 troversial, response in legal circles, in
the media and among the general public. In our country, this new class of
litigation is justified by its protagonists on the basis generally of vast
areas in our population of illiteracy and poverty, of social and economic
backwardness, and of an insufficient awareness and appreciation of individual
and collective rights. These handicaps have denied millions of our countrymen
access to justice. Public interest litigation is said to possess the potential
or providing such access in the milieu of a new ethos, in which participating
sectors in the administration of justice cooperate in the creation of a system
which promises legal relief without cumbersome formality and heavy expenditure.
In the result, the legal organisation has taken on a radically new dimension,
and correspondingly new perspectives are opening up before judges and lawyers
and State Law agencies in the tasks before them. A crusading zeal is abroad,
viewing the present as an opportunity to awaken the political and legal order
to the objectives of social justice projected in our constitutional system. New
slogans fill the air, and new phrases have entered the legal dictionary, and
one hears of the "justicing system" being galvanised into supplying
justice to the socioeconomic disadvantages. These urges are responsible for the
birth of new judicial concepts. and the expanding horizon calpower. They claim
to represent an increasing emphasis on social welfare and a progressive
humanitarianism, to the mind trained in the certainty of the law, of defined
principles, of binding precedent, and the common law doctrine of stare decisis,
the future is fraught with confusion and disorder in the legal world and severe
strains in the constitutional system. At the lowest, there is an uneasy doubt
about where we are going. If public interest litigation is to command broad
acceptance attention must be paid to certain relevant considerations. The
history of human experience shows that when a revolution in ideas and in action
enters the life of a nation, the nascent power so released possesses the
potential of throwing the prevailing social order into disarray. In a changing
society, wisdom dictates that reform should emerge in the existing polity as an
ordered change produce through its institution. Moreover, the pace of change
needs to be handled with care lest the institutions themselves be endangered.
[152 F-H; 153 A-C; 153 G; 154 A-B] 1:2 Like the Warren Court's affirmative
action programmes for the benefit of minorities and other socially or
economically disadvantaged interests through the avenues of Public Law, the
courts in India, are beginning to apply a similar concept of constitutional
duty. The doctrine of standing has been enlarged in India to provide, where
reasonably possible, access to justice to large sectors of people for whom so
far it had been a matter of despair. It is time indeed for the law to do so. In
large measure, the traditional conception of adjudication represented the
socioeconomic vision prevailing at the turn of the century.
In India, as the consciousness of social
justice spread though our multi-layered social order, the constitution began to
come under increasing pressure from social action groups petitioning on behalf
of the under privileged and deprived sections of society for the fulfillment of
their aspirations. Despite the varying fortunes of the number of cases of
public interest litigation which have entered the Supreme Court, Public
Interest Litigation constitutes today a significant segment of the court's
docket. [154 D: 156 A- C] 2:1. The provisions of Article 32 do not specifically
indicate who can move the Court. In the absence of a confining provision in
that respect, it is plain that a petitioner may be anyone in whom the Law
recognises a standing to maintain an action of such nature. [156 E] 81 2:2. As
regards the form of proceeding and its character, Article 32 speaks generally
of "appropriate proceedings." It should be a proceeding which can
appropriately lead to an adjudication of the claim made for the enforcement of
a fundamental right and can result in the grant of effective relief. Article 32
speaks of the Court's power "to issue direction or orders of writs, and
the specific reference to "writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari" is by way of illustration only.
They do not exhaust the content of the Court's power under Article 32. [156
F-G] 3:1. A practice has grown in the public of invoking the jurisdiction of
this Court by a simple letter complaining of a legal injury to the author or to
some other person or group of persons, and the Court has treated such letter as
a petition under Article 32 and entertained the proceeding without anything
more. It is only comparatively recently that the Court has begun to call for
the filing of a regular petition on the letter. There is grave danger inherent
in a practice where a mere letter is entertained as a petition from a person
whose antecedents and status are unknown or so uncertain that no sense of
responsibility can, without anything more, be attributed to the communication.
There is good reason for the insistence on a document being set out in a form,
or accompanied by evidence, indicating that the allegations made in it are made
with a sense of responsibility by a person who has taken due care and caution
to verify those allegations before making them. A plaint instituting a suit is
required by the Code of Civil Procedure to conclude with a clause verifying the
pleadings contained in it. A petition or application filed in court is required
to be supported on affidavit. These safeguards are necessary because the
document, a plaint or petition or application, commences a course of litigation
involving the expenditure of public time and public money, besides in
appropriate cases involving the issue of summons or notice to the defendant or
respondent to appear and contest the proceeding. Men are busy conducting the
affairs of their daily lives, and no one occupied with the responsibilities and
pressures of present day existence welcomes being summoned to a law court and
involved in a litigation. A document making allegations without any proof
whatever of responsibility can conceivably constitute an abuse of the process of
law. Therefore, in special circumstances the document petitioning the court for
relief should be supported by satisfactory verification. This requirement is
all the greater where petitions are received by the Court through the post. It
is never beyond the bound of possibility that an unverified communication
received through the post by the court may in fact have been employed mala
fide, as an instrument of coercion or blackmail or other oblique motive against
a person named therein who holds a position of honour and respect in society.
The Court must be ever vigilant against the abuse of its process. It cannot do
that better in this matter than insisting at the earliest stage, and before
issuing notice to the respondent, that an appropriate verification of the
allegations be supplied. The requirement is imperative in private law
litigation. Having regard to its nature and purpose, it is equally attracted to
public interest litigation. While this Court has readily acted upon letters and
telegrams in the past, there is need to insist now on an appropriate
verification of the petitioner other communication before acting on it. It will
always be a matter for the court to decide. on what petition will it require
verification and when will it waive the rule. [157 B-H; 158 A-C] 3:2. All
communications and petitions invoking the jurisdiction of the Court must be
addressed to the entire Court, that is to say, the Chief Justice and his
companion judges, No such communication or petition can properly be addressed
82 to a particular judge. When the jurisdiction of the Court is invoked, it the
jurisdiction of the entire court. Which Judge or Judges will hear the case is
exclusively a matter concerning the internal regulation of the business of the
Court, interference with which by a litigant or member of the public
constitutes the grossest impropriety. It is well established that when a
division of the Court house and decides cases it is in law regarded as a
hearing and a decision by the Court itself. The judgment pronounced and the
decree or order made are acts of the Court, and accordingly they are respected,
obeyed and enforced throughout the land. It is only right and proper that this
should be known clearly to the lay public. Communications and petitions
addressed to a particular Judge are improper and violate the institutional
personality of the Court. They also embarrass the judge to whom they are
personally addressed. The fundamental conception of the Court must be
respected, that is a single indivisible institution of united purpose and
existing solely for the high constitutional functions for which it has been
created. The conception of the Court as a loose aggregate of individual Judges,
to one or more of whom judicial access may be particularly had, undermines its
very existence and endangers its proper and effective functioning. [158 E-H;
159 A] 4:1. In public interest litigation,
the role held by the Court is more assertive than in traditional actions.
Viewed from the Warren Court's experience the
role of the Court is creative rather than passive, and it assumes a more
positive attitude in determining facts. Not infrequently public interest
litigation affects the rights of persons not before the Court, and in shaping
the relief the court must invariably take into account its impact on those
interests.
Moreover, when its jurisdiction is invoked on
behalf of a group, it is as well to remember that differences may exist in
content and emphasis between the claims of different sections of the group. For
all these reasons the court must exercise the greatest caution and adopt
procedures ensuring sufficient notice to all interests likely to be affected.
Moreover, the nature of the litigation
sometimes involves the continued intervention of the Court over a period of
time, and the organising of the litigation to a satisfactory conclusion calls
for judicial statemanship, a close understanding of constitutional and legal
values in the context of contemporary social forces, and a judicious mix of
restraint and activism determined by the dictates of existing realities.
Importantly, at the same time, the Court must never forget that its
jurisdiction extends no farther than the legitimate limits of its
constitutional powers, and avoid trespassing into political territory which under
the Constitution has been appropriated to other organs of the State. [159 B;
D-G] 4;2. The procedures adopted by the Court in cases of public interest
litigation must of course be procedures designed and shaped by the Court with a
view to resolving the problem presented before it on determining the nature and
extent of relief accessible in the circumstances.
Whatever the procedure adopted by the court
it must be procedure known to judicial tenets and characteristic of a judicial
proceeding. There are methods and avenues of procuring material available to
executive and legislative agencies and often employed by them for the efficient
and effective discharge of the tasks before them. Not all those methods and
avenues are available to the Court. the Court must ever remind itself that one
of the indicia identifying it as a Court is the nature and character of the
procedure adopted by it in determining a controversy. It is in that sense
limited in the evolution of procedures pursued by it in the process of an
adjudication, and in the grant and execution of the relief. Legal jurisprudence
has in its historical 83 development identified certain fundamental principles
which form the essential constituents of judicial procedure. They are employed
in every judicial proceeding, and constitute the basic infrastructure along
whose chamacts flows the power of the Court in the process of adjudication.
[159 H;
160 A-D] 4:3. What should be the conceivable
frame work of procedure in public interest litigation does not admit of a clear
cut answer. It is not possible to envisage a defined pattern of procedure
applicable to all cases. Of necessity the pattern which the Court adopts will
vary with the circumstances of each case. But, if there is a statute
prescribing a judicial procedure governing the particular case the Court must
follow such procedure. It is not open to the Court to bypass the statute and
evolve a different procedure at variance with it. Where, however, the procedure
prescribed by statute is incomplete or insufficient, it will be open to the
Court to supplement it by evolving its own rules. Nonetheless, the
supplementary procedure must conform at all stages to the principles of natural
justice. There can be no deviation from the principles of natural justice and
other well accepted procedural norms characteristic of a judicial proceeding.
They constitute an entire code of general principles of procedure, tried and
proven and hallowed by the sanctity of common and consistent acceptance during
long years of the historical development of the law.
The general principles of law, to which
reference is made here, command the confidence, not merely of the judge and the
lawyer and the parties to the litigation, but supply that basic credible to the
judicial proceeding which strengthens public faith in the Rule of Law. They are
rules rooted in reason and fairplay and their governance guarantees a just
disposition of the case. The Court should be wary of suggestions favouring
novel procedures in cases where accepted procedural rules will suffice. [160
E-H; 161 A] 5:1. Article 32 confers the widest amplitude of power of this Court
in the matter of granting relief. It has power to issue "directions or
orders of writs", and there is no specific indication, no express
language, limiting or circumscribing that power. Yet, the power is limited by
the very nature, that its judicial power. It is power which pertains to the
judicial organ of the State, identified by the very nature of the judicial
institution. There are certain fundamental constitutional concepts which,
although elementary, need to be recalled at times. The constitution envisages a
broad division of the power of the State between the legislature, the executive
and the judiciary. Although the division is not precisely demarcated, there is
general acknowledgement of its limits. The limits can be gathered from the
written text of the Constitution, from conventions and constitutional practice,
and from an entire array of judicial decisions. The constitutional lawyer concedes
a certain measure of overlapping in functional action among the three organs of
the State. But there is no warrant for assuming geometrical congruence. It is
common place that while the legislature enacts the law the executive implements
it and the court interprets it and, in doing so, adjudicates on the validity of
executive action and under our Constitution, even judges the validity of the
legislation itself. And yet it is well recognised that in a certain sphere the
legislature is possessed of judicial power, the executive possesses a measure
of both legislative and judicial functions, and the court, in its duty of
interpreting the law, accomplished in its perfected action a marginal degree of
legislative exercise. Nonetheless, a fine and delicate balance is envisaged
under our Constitution between these primary institutions of the State. In
every case the Court should determine the true limits of its jurisdiction and,
having done so, it should take care to remain within the restraints of its
jurisdiction. [161 B-H; 162 A] 84 5:2. This aspect of Court action assumes
especial significance in public interest litigation. It bears upon the
legitimacy of the judicial institution, and that legitimacy is affected as much
by the solution presented by the Court in resolving a controversy as by the
manner in which the solution is reached. In an area of judicial functioning
where judicial activism finds room for play, where constitutional adjudication
can become an instrument of social policy forged by the personal political
philosphy of the judge, this is an important consideration to keep in mind.
[162 B-C] 5:3. Where the Court embarks upon affirmative action in the attempt
to remedy a constitutional imbalance within the social order, few critics will
find fault with it so long as it confines itself to the scope of its legitimate
authority.
But there is always the possibility, in
public interest litigation, of succumbing to the temptation of crossing into
territory which properly pertains to the Legislature or to the Executive
Government. For in most cases the jurisdiction of the Court is invoked when a
default occurs in executive administration, and sometimes where a void in
community life remains unfilled by legislative action. The resulting public
grievance finds expression through social action groups, which consider the
Court an appropriate forum for removing the deficiencies. Indeed, the citizen
seems to find it more convenient to apply to the Court for the vindication of
constitutional rights than appeal to the executive or legislative organs of the
State. In the process of correcting executive error or removing legislative
omission the Court can so easily find itself involved in policy making of a
quality and to a degree characteristic of political authority, and indeed run
the risk of being mistaken for one. An excessively political role identifiable
with political governance betrays the Court into functions alien to its
fundamental character, and tends to destroy the delicate balance envisaged in
our constitutional system between its three basic institutions. The Judge,
conceived in the true classical mould, is an impartial arbiter, beyond and
above political bias and prejudice, functioning silently in accordance with the
Constitution and his judicial conscience. Thus does he maintain the legitimacy
of the institution he serves and honour the trust which his office has reposed
in him. [162 D-H] The affirmative schemes framed in public interest litigation
by the Court sometimes require detailed administration under constant judicial
supervision over protected periods. The lives of large sections of people some
of whom have had no voice in the decisions are shaped and ordered by mandatory
Court action extending into the future. In that context it is as well to remember
that public approval and public consent assume material importance in its
successful implementation. In contrast with policy making by legislation, where
a large body of legislators debate on a proposed legislative enactment, no such
visual impact can be perceived when judicial decrees are forged and fashioned
by a few judicial personages in the confines of a Court. The mystique of the
robe, at the stage of decision-making, is associated traditionally with
cloistered secrecy and confidentiality and the end-result commonly issues as a
final definitive act of the Court. It is a serious question whether in every
case the same awesome respect and reverence will endure during different stages
of affirmative action seeking to regulate the lives of large numbers of people,
some of whom never participated in the judicial process. [163 A-D] 5:4.
Treating with public interest litigation requires more than legal scholar ship
and knowledge of text book law. It is of the utmost importance in such 85 cases
that when formulating a scheme of action, the Court must have due regard to the
particular circumstances of the case, to surrounding realities including the
potential for successful implementation, and the likelihood and degree of
response from the agencies on whom the implementation will depend. In most
cases of public interest litigation, there will be neither precedent nor
settled practice to add weight and force to the validity of the Court's action.
The example of similar cases in other countries can afford little support. The
successful implementation of the orders of the Court will depend upon the
particular social forces in the backdrop of local history, the prevailing
economic pressures, the duration of the stages involved in the implementation,
the momentum of success from stage to stage, and the acceptability of the
Court's action at all times by those involved in or affected by it. [163 E-G]
5:5. An activist Court spearheading the movement for the development and
extension of the citizen's constitutional rights, for the protection of
individual liberty and for the strengthening of the socioeconomic fabric in
compliance with declared constitutional objectives, will need to move with a
degree of judicial circumspection. In the centre of a social order changing
with dynamic pace, the Court needs to balance the authority of the past with
the urges of the future. In that task the court must ever be conscious of the
constitutional truism that it possesses the sanction of neither the sword nor
the pursue and that its strength lies basically in public confidence and
support, and that consequently the legitimacy of its acts and decisions must
remain beyond all doubt.
Therefore, whatever the case before it,
whatever the context of facts and legal rights, whatever the social and
economic pressures of the times, whatever the personal philosophy of the Judge,
let it not be forgotten that the essential identity of the institution, that it
is a Court, must remain preserved so that every action of the Court is informed
by the fundamental norms of law, and by the principles embodied in the
Constitution and other sources of law. If its contribution to the
Jurisprudential ethos of society is to advance our constitutional objectives,
it must function in accord with only those principles which enter into the
composition of judicial action and give to its essential quality. [163 H; 164
A-D] 5:6. There is a great merit in the Court proceeding to decide an issue on
the basis of strict legal principle and avoiding carefully the influence of
purely emotional appeal.
For that alone gives the decision of the
Court a direction which is certain, and unfaltering, and that especial
permanence in legal jurisprudence which makes it a base for the next step
forward in the further progress of the law.
Indeed, both certainty of substance and
certainty of direction are indispensable requirements in the development of the
law, and invest it with the credibility which commands public confidence in its
legitimacy. [165 A-B] This warning is of special significance in these times,
during a phase of judicial history when a few social action groups tend to show
evidence of presuming that in every case the court must bend and mould its
decision to popular notions of which way a case should be decided. [165 C] As
new areas open before the Court with modern developments in jurisprudence, in a
world more sensitive to human rights as well as the impact of technological
progress, the Court will become increasingly consious of its expanding
jurisdiction. That is inevitable. But its responsibilities are correspondingly
great, and perhaps never greater than now. [165 D] 86 It must be remembered
that there is no higher Court to correct over the Supreme Court its errors, and
that its Judge wear the mantle of infallibility only because their decisions
are final. That the Judges sit at the apex of the judicial administration and
their word, by constitutional mandate, is the law of the land can induce an
unusual sense of power. It is a feeling Judges must guard against by constantly
reminding themselves that every decision must be guided by reason and by
judicial principles. [65 E-F] 6:1. Persons in this country obliged to serve as
bonded labour are entitled to invoke Article 23 of the Constitution. The
provisions embodied in that clause form a vital constituent of the Fundamental
Rights set forth in Part III of the Constitution, and their violation attracts
properly the scope of Article 32 of the Constitution. [165 G] 6:2. It is true
that the reports of the court appointed commissions have not been tested by
cross examination, but then the record does not show whether any attempt was
made by the respondents to call them for cross examination.
Further, whether the appointment of the
commissioners falls within the term of order XLVI of the Supreme Court Rules,
1966 is of technical significance only because there was inherent power in the
court, in the particular circumstances of this case to take that action,
However, the court would do well to issue notice to the respondents, before
appointing any Commissioner, in those cases where there is little apprehension
of the disappearance of evidence. [166 B-C] 6:3. The present case is one of
considerable importance to a section of our people, who pressed by the twin
misfortunes of poverty and illiteracy, are compelled to a condition of life
which long since should have passed into history. The continued existence of
such pockets of oppression and misery do no justice to the promises and
assurances extended by our Constitution to its citizens.
[166 B-E] PER AMARENDRA NATH SEN, J:
(Concurring with Pathak, J.) 1: 1. Article 32 of the Constitution is clearly
attracted to the facts of the case, as in the present case the violation of the
fundamental right of liberty of the workmen who are said to be kept in wrongful
and illegal detention, employed in forced labour, is alleged. Forced labour is
constitutionally forbidden by Article 23 of the, Constitution. [168 D-E] 1:2.
Any person who is wrongfully and illegally employed as a labourer in violation
of the provisions of the Bonded Labour System (Abolition) Act, 1976 is in
essence deprived of his liberty. A bonded labourer truly becomes a slave and
the freedom of a bonded labourer in the matter of his employment and movement
is more or less completely taken away and forced labour is thrust upon him.
When any bonded labourer approached this Court the real grievance that he makes
is that he should be freed from this bondage and he prays for being set at
liberty and liberty is no doubt a fundamental right guaranteed to every person
under the Constitution. There cannot be any manner of doubt that any person who
is wrongfully and illegally detained and is deprived of his liberty can
approach this Court under Article 32 of the Constitution for his freedom and
wrongful and illegal detention, and for being set at liberty.
Whenever any person is wrongfully and
illegally deprived of his liberty, it is open to anybody who is interested in
the person to move this Court under Article 32 of the Constitution for his
release. It may not very often be possible for the person who is deprived of
his liberty to 87 approach this Court, as by virtue of such illegal and
wrongful detention, he may not be free and in a position to move the Supreme
Court. [167 E-H] 1:3. The Bonded labourers working in the faraway places are
generally poor and belong to the very weak section of the people. They are also
not very literate and they may not be conscious of their own rights. Further,
as they are kept in bondage their freedom is also restricted and they may not
be in a position to approach this Court.
Though no fundamental right of the petitioner
may be said to be infringed, yet the petitioner who complains of the violation
of the fundamental right of the workmen who have been wrongfully and illegally
denied their freedom and deprived of their constitutional right must be held to
be entitled to approach this Court on behalf of the bonded labourers for removing
them from illegal bondage and deprivation of liberty. [168 B-C] S.P. Gupta v.
Union of India & Another, [1981] Suppl.
S.C.C. 87, referred to 2:1. Article 32 or for
that matter any other article does not lay down any procedure which has to be
followed to move this Court for relief against the violation of any fundamental
right. Article 32 (1) only lays down that the right to move this court by
appropriate proceedings for enforcement of fundamental rights is guaranteed.
The Constitution very appropriately leaves the question as to what will
constitute an appropriate proceeding for the purpose of enforcement of
fundamental rights to be determined by the Court. This Court when sought to be
moved under Article 32 by any party for redressing his grievance against the
violation of-fundamental rights has to consider whether the procedure followed
by the party is appropriate enough to entitle the court to proceed to act on
the same.
No doubt this Court has framed rules which
are contained in part IV, Order XXXV of the Supreme Court Rules under the
Caption "application for enforcement of fundamental rights"
("Article 32 of the Constitution") Generally speaking, any party who
seeks to move this Court under Article 32 of the Constitution should conform to
the rules prescribed. The rules lay down the procedure which is normally to be
followed in the matter of any application under Article 32 of the Constitution.
These rules are rules relating to the procedure to be adopted and the rules are
intended to serve as maids to the Deity of Justice. Procedural law which also
forms a part of the law and has to be observed, is, however, subservient to
substantive law and the laws of procedure are prescribed for promoting and
furthering the ends of justice.
There cannot be any doubt that this Court
should usually follow the procedure laid down in O.XXXV of the Rules of this
Court and should normally insist on a petition properly verified by an
affidavit to be filed to enable the Court to take necessary action on the same.
Though this Court should normally insist on the rules of procedure being
followed, it cannot be said, taking into consideration the nature of right
conferred under Article 32 to move this Court by an appropriate proceeding and
the very wide powers conferred on this Court for granting relief in the case of
violation of fundamental rights, that this Court will have no jurisdiction to
entertain any proceeding which may not be in conformity with procedure
prescribed by the Rules of this Court. The Rules undoubtedly lay down the
procedure which is normally to be followed for making an application under
Article 32 of the Constitution. They, however, do not and cannot have the
effect of limiting the jurisdiction of this Court of entertaining a proceeding
under Article 32 of the Constitution, if made, only in the manner prescribed by
the rules. [169 F-H; 170 A-D] 88 2:2. For effectively safeguarding the
fundamental rights guaranteed by the Constitution, the Court in appropriate
cases in the interests of justice will certainly be competent to treat a
proceeding, though not in conformity with the procedure prescribed by the Rules
of this Court, as an appropriate proceeding under Article 32 of the
Constitution and to entertain the same. Fundamental rights guaranteed under the
Constitution are indeed too scared to be ignored or trifled with merely on the
ground of technicality or any rule of procedure. The rules framed by this Court
do not also lie down that this Court can be moved under Article 32 of the
Constitution only in accordance with the procedure prescribed by the Rules and
not otherwise. A mere technicality in the matter of form or procedure which may
not in any way affect the substance of any proceeding should not stand in the
way of the exercise of the very wide Jurisdiction and powers conferred on this
Court under Article 32 of the Constitution for enforcement of fundamental
rights guaranteed under the Constitution. Taking into consideration the
substance of the matter and the nature of allegations made, it will essentially
be a matter for the court to decide whether the procedure adopted can be
considered to be an appropriate proceeding within the ambit of Article 32 of
the Constitution. The Court if satisfied on the materials placed in the form of
a letter or other communication addressed to this Court, may take notice of the
same in appropriate cases. Experience shows that in many cases it may not be
possible for the party concerned to file a regular writ petition in conformity
with procedure laid down in the Rules of this Court. The Supreme Court for
quite some years now has in many cases proceeded to act on the basis of the
letters addressed to it. A long standing practice of the Court in the matter of
procedure also acquired sanctity. Further in various cases the Court has
refused to take any notice of letters or other kind of communications addressed
to Court and in many cases also the Court on being moved by a letter has
directed a formal writ petition to be filed before it has decided to proceed
further in the matter. [170 F-H; 171 A-D] 2:3. It is however eminently
desirable that normally the procedure prescribed in the rules of this Court
should be followed while entertaining a petition under Article 32 of the
Constitution, though in exceptional cases and particularly in the matter of
general public interest, this Court may, taking into consideration the peculiar
facts and circumstances of case, proceed to exercise its jurisdiction under
Article 32 of the Constitution for enforcement of fundamental rights treating the
letter or the communication in any other form as an appropriate proceeding
under Art. 32 of the Constitution. Further any party who addresses a letter or
any other communication to this Court seeking intervention of this Court on the
basis of the said letter and communication should address this letter or
communication to this Court and not to any individual Judge by name. Such
communication should be addressed to the Chief Justice of the Court and his
companion Justices. A private communication by a party to any Learned Judge
over any matter is not proper and may create embarrassment for the Court and
the Judge concerned. [171 G-H; 172 A] In the present case, the unfortunate
workers who are employed and bonded labourers at a distant place, could not possibly
in view of their bondage, move this Court, following the procedure laid down-in
the Rules of this Court. The Petitioner which claims to be a social welfare
Organization interested in restoring liberty and dignity to these unfortunate
bonded labourers should be considered competent to move this Court by a letter
or like communication addressed to 89 this Court, to avoid trouble and
expenses, as the petitioner is not moving this Court for any personal or
private benefit.
3:1. Whenever, however, there is an
allegation of violation of fundamental rights, it becomes the responsibility
and also the sacred duty of this Court to protect such fundamental rights
guaranteed under the Constitution provided that this Court is satisfied that a
case for interference by this Court appears prima facie to have been made out.
Very often the violation of fundamental rights is not admitted or accepted. On
a proper consideration of the materials the Court has to come to a conclusion
whether there has been any violation of fundamental rights to enable the court
to grant appropriate reliefs in the matter. In various cases, because of the
peculiar facts and circumstances of the case the party approaching this Court
for enforcement of fundamental rights may not be in a position to furnish all
relevant materials and necessary particulars. If, however, on a consideration
of the materials placed, the Court is satisfied that a proper probe into the
matter is necessary in the larger interest of administration of justice and for
enforcement of fundamental rights guaranteed, the Court, in view of the
obligations and duty cast upon it of preserving and protecting fundamental
rights, may require better and further materials to enable the Court to take
appropriate action; and there cannot be anything improper in the proper
exercise of Court's jurisdiction under Article 32 of the Constitution to try to
secure the necessary materials through appropriate agency. The commission that
the Court may appoint or the investigation that the court may direct is
essentially for the Court's satisfaction as to the correctness or otherwise of
the allegation of violation of fundamental rights to enable the Court to decide
the Course to be adopted for doing proper justice to the parties in the matter
of protection of their fundamental rights. It has to be borne in mind that in
this land of ours, there are persons without education, without means and
without opportunities and they also are entitled to full protection of their
rights or privileges which the Constitutions affords. Living in chilled penury
without necessary resources and very often not fully conscious of their rights
guaranteed under the Constitution, a very large section of the people commonly
termed as the weaker section live in this land. When this Court is approached
on behalf of this class of people for enforcement of fundamental rights of
which they have been deprived and which they are equally entitled to enjoy, it
becomes the special responsibility of the Court to see that justice is not denied
to them and the disadvantageous position in which they are placed, do not stand
in the way of their getting justice from this Court.
[172 D-H; 173 A-B] 3:3. The power to appoint
a commission or an investigation body for making enquiries in terms of directions
given by the Court must be considered to be implied and inherent in the power
that the Court has under Article 32 for enforcement, of the fundamental rights
guaranteed under the Constitution. This is a power which is indeed incidental
or ancillary to the power which the Court is called upon to exercise in a
proceeding under Article 32 of the Constitution. It is entirely in the
discretion of the Court, depending on the facts and circumstances of any case,
to consider whether any such power regarding investigation has to be exercised
or not. The Commission that the Court appoints or the investigation that the
Court directs while dealing with a proceeding under Article 32 of the
Constitution is not a commission or enquiry under the Code of Civil Procedure.
Such power must necessarily be held to be implied within the very wide powers
conferred on this Court under Article 32 for enforcement of fundamental rights.
90 For proper exercise of its powers under
Article 32 of the Constitution and for due discharge of the obligation and duty
cast upon this Court in the matter of protection and enforcement of fundamental
rights which the Constitution guarantees, this Court has an inherent power to
act in such a manner as will enable this Court to discharge its duties and
obligations under Article 32 of the Constitution properly and effectively in
the larger interest of administration of justice, and for proper protection of
Constitution safeguards. [173 C-G]
4. The litigation of this type particularly
in relation to bonded labourers is really not in nature an adversary litigation
and it becomes the duty of the State and also of the appropriate authorities to
offer its best cooperation to see that this evil practice which has been
declared illegal is ended at the earliest. The existence of bonded labour in
the Court is an unfortunate fact. Whenever there is an allegation of the
existence of bonded labour in any particular State, the State instead of
seeking to come out with a case of denial of such existence on the basis of a
feeling that the existence of bonded labour in the State may cast a slur or
stigma on its administrative machinery, should cause effective enquiries to be
made into the matter and if the matter is pending in this Court, should
cooperate with this Court to see that death-knell is sounded on this illegal
system which constitutes a veritable social menace and stands in the way of
healthy development of the nation.
[174 A-C] PER CONTRA :
5. The grievance of denial of other just
rights to the workmen and the reliefs claimed for giving the workmen the
benefits to which they may be entitled under various legislations enacted for
their welfare are more or less in the nature of consequential reliefs
incidental to the main relief of freedom from bonded and forced labour to which
the workmen are rejected. In the facts and circumstances of the case, it
appears that the provisions of inter-State Migrant Workmen (Regulation of
Employment and Conditions of Service) Act, 1979 are not applicable and
therefore do not fall for any adjudication. [174 F-G]
ORIGINAL JURISDICTION: Writ Petition No. 2135
of 1982.
Under Article 32 of the Constitution.
Govind Mukhoty, S.K. Bhattacharya and N.R.
Chaudhary for the Petitioner.
M.N. Phadke, K.B. Rohtagi and S.K. Dhingra
for the Respondent Nos. 4,5,7, 8 & 9.
K.B. Rohtagi and S.I. Dhingra for the
Respondent No. 13 S.K. Verma for the Respondent No. 6.
Abdul Khadar Sr. Advocate and Miss. A.
Subhashni for the respondent.
91 The following Judgments were delivered-
BHAGWATI, J. The petitioner is an organisation dedicated to the cause of
release of bonded labourers in the country. The system of bonded labour has
been prevalent in various parts of the country since long prior to the
attainment of political freedom and it constitutes an ugly and shameful feature
of our national life. This system based on exploitation by a few socially and
economically powerful persons trading on the misery and suffering of large
numbers of men and holding them in bondage is a relic of a feudal hierarchical
society which hypocritically proclaims the divinity of men but treats large
masses of people belonging to the lower rungs of the social ladder or
economically impoverished segments of society as dirt and chattel. This system
under which one person can be bonded to provide labour to another for years and
years until an alleged debt is supposed to be wiped out which never seems to
happen during the life time of the bonded labourer, is totally incompatible
with the new egalitarian socioeconomic order which we have promised to build
and it is not only an affront to basic human dignity but also constitutes gross
and revolting violation of constitutional values. The appalling conditions in
which bonded labourers live, not as humans but as serfs, recall to the mind the
following lines from "Man with the Hoe" which almost seem to have
been written with reference to this neglected and forlorn species of Indian
humanity:
"Bowed by the weight of centuries he
leans Upon his hoe and gazes on the ground The emptiness of ages on his face,
And on his back the burden of the world, They are non-beings, exiles of
civilization, living a life worst than that of animals, for the animals are at
least free to roam about as they like and they can plunder or grab food
whenever they are hungry but these out castes of society are held in bondage,
robbed of their freedom and they are consigned to an existence where they have
to live either in hovels or under the open sky and be satisfied with whatever
little unwholesome food they can manage to get inadequate though it be to fill
their hungry stomachs. Not having any choice, they are driven by poverty and
hunger into a life of bondage a dark bottomless pit from which, in a cruel
exploitative society, they cannot hope to be rescued.
This pernicious practice of bonded labour
existed in many 92 States and obviously with the ushering in of independence it
could not be allowed to continue to blight the national life any longer and
hence, when we framed our Constitution, we enacted Article 23 of the
Constitution which prohibits "traffic in human beings and beggar and other
similar forms of forced labour" practised by any one. The system of bonded
labour therefore stood prohibited by Article 23 and there could have been no
more solemn and effective prohibition than the one enacted in the Constitution
in Article 23. But, it appears that though the Constitution was enacted as far
back as 26th January, 1950 and many years passed since then, no serious effort
was made to give effect to Article 23 and to stamp out the shocking practice of
to bonded labour. It was only in 1976 that Parliament enacted the Bonded Labour
System (Abolition) Act, 1976 providing for the abolition of bonded labour
system with a view to preventing the economic and physical exploitation of the
weaker sections of the people. But, unfortunately, as subsequent events have
shown and that is borne out also by the Report made by the Centre for Rural
Development Administration, Indian Institute of Public Administration to the
Ministry of Labour Government of India on "Rehabilitation of Bonded Labour
in Monghyr District, Bihar", the Report made by the Public Policy and
Planning Division of the Indian Institute of Public Administration to the
Ministry of Labour, Government of India on "Evaluation Study of Bonded
Labour Rehabilitation Scheme In Tehri Garhwal, U.P.", the Report of Laxmi
Dhar Misra, the Director-General (Labour Welfare) of the Government of India
based on On the Spot Studies Regarding Identification, Release of Bonded
Labourers and Rehabilitation of Freed Labourers in Uttar Pradesh, Madhya
Pradesh, Madhya Pradesh, Karnataka, Orissa, Bihar, Rajasthan, Tamilnadu and
Kerala and the Report of the National Seminar on "Indentification and
Rehabilitation of Bonded Labour" held from 7th to 9th February, 1983 that
the pernicious practice of bonded labour has not yet been totally eradicated
from the national scene and that it continues to disfigure the social and
economic life of the country at certain places. There are still a number of
bonded labourers in various parts of the country and significantly, as pointed
out in the Report of the National Seminar on "Identification and
Rehabilitation of Bonded Labour" a large number of them belong to
Scheduled Castes and Scheduled Tribes account for the next largest number while
the few who are not from Scheduled Castes or Scheduled Tribes are generally landless
agricultural labourers. It is absolutely essential we would unhesitatingly
declare that it is a constitutional imperative-that the bonded labourers must
be identified and released from the shackles of bondage so that they can
assimilate 93 themselves in the main stream of civilised human society and
realise the dignity, beauty and worth of human existence.
The process of identification and release of
bonded labourers is a process of discovery and transformation of non-beings
into human-beings and what it involves is eloquently described in the beautiful
lines of Rabindra Nath Tagore in "Kadi and Komal" Into the mouths of
these Dumb, pale and meak We have to infuse the language of the soul.
Into the hearts of these Weary and worn, dry
and forlorn we have to minstrel the language of humanity.' This Process of
discovery and transformation poses a serious problem since the social and
economic milieu in which it has to be accomplished is dominated by elements
hositle to it. But this problem has to be solved if we want to emancipate those
who are living in bondage and serfdom and make them equal participants in the
fruits of freedom and liberty. It is a problem which needs urgent attention of
the Government of India and the State Governments and when the Directive
Principles of State Policy have obligated the Central and the State Governments
to take steps and adopt measures for the purpose of ensuring social justice to
the have-notes and the handicapped, it is not right on the part of the
concerned governments to shut their eyes to the inhuman exploitation to which
the bonded labourers are subjected. It is not uncommon to find that the
administration in some States is not willing to admit the existence of bonded
labour, even though it exists in their territory and there is incontrovertible
evidence that it does so exist. We fail to see why the administration should
feel shy in admitting the existence of bonded labour, because it is not the
existence of bonded labour that is a slur on the administration but its failure
to take note of it and to take all necessary steps for the purpose of putting
an end to the bonded labour system by quickly identifying, releasing and
permanently rehabilitating bonded labourers. What is needed is determination,
dynamism and a sense of social commitment of the part of the administration to
free bonded labourers and rehabilitate them and wipe out this ugly inhuman
practice which is a blot on our national life. What happened recently in the
Ranga Reddy District of Andrha Pradesh as a result of the initiative taken by
this Court in Writ Petitions Nos. 1574 of 1982 and 54 of 1983 shows clearly
that if the political and administrative apparatus has a sense of commitment to
the constitutional values 94 and is determined to take action for identifying,
releasing and rehabilitating bonded labourers despite pressures and pulls from
different quarters, much can be done for securing emancipation and
rehabilitation of bonded labourers. The District Administration of Ranga Reddy
District could in less than six months release over 3000 bonded labourers from
the clutches of contractors in stone quarries in Ranga Reddy District and send
them back to their homes with tickets and pocket expenses. It is therefore
essential that whichever be the State Government it should, where there is
bonded labour, admit the existence of such bonded labour and make all possible
efforts to eradicate it. By doing so, it will not only be performing a
humanitarian function but also discharging a constitutional obligation and
strengthening the foundations of participatory democracy in the country.
We also find that in some cases the State
Governments in order to shirk their obligation, take shelter under the plea
that there may be some forced labour in their State but that is not bonded
labour. We shall have occasion to deal with this plea a little later when we
refer to the definition of 'bonded labour' given in the Bonded Labour System
(Abolition) Act, 1976 which at first blush appears to be a narrow definition
limited only to a situation where a debtor is forced to provide labour to a
creditor. The State of Haryana has in the present case tried to quibble with
this definition of 'bonded labour' and its argument has been that these
labourers may be providing forced labour but they are not bonded labourers
within the meaning of the Bonded Labour System (Abolition) Act, 1976 and they
may therefore be freed by the Court if it so pleases but the State of Haryana
cannot be compelled to rehabilitate them. We are constrained to observe that
this argument, quite apart from its invalidity, ill-behoves a State Government
which is committed to the cause of socialism and claims to be striving to
ensure social justice to the vulnerable sections of the community. But we do
not wish to anitcipate the discussion in regard to this argument and at the
present stage we content ourselves by merely observing that it is unfortunate
that any State Government should take up the plea that persons who are forced
to provided labour may be forced labourers but unless it is shown by them by
proper evidence tested by cross-examination that they are forced to provide
labour against a bonded debt, they cannot be said to be bonded labourers and
the State Government cannot be held to be under any obligation to rehabilitate
them.
The petitioner made a survey of some of the
stone quarries in 95 Faridabad district near the city of Delhi and found that
there were a large number of labourers from Maharashtra, Madhya Pradesh, Uttar
Pradesh and Rajasthan who were working in these stone quarries under
"inhuman and intolerable conditions" and many of whom were bonded
labourers. The petitioner therefore addressed a letter to one of us on 25th
February, 1982 pointing out that in the mines of Shri S.L. Sharma, Gurukula
Indra Prastha, Post Amar Nagar, Faridabad, District, a large number of
labourers were languishing under abject conditions of bondage for last about
ten years, and the petitioner gave the names of 11 bonded labourers who were
from village Asarha, Barmer district of Rajasthan, 7 bonded labourers who were
from village Bharol, district Jhansi of Madhya Pradesh and 23 bonded labourers
who were from village Barodia, Bhanger, Tehsil Khurai, district Sagar, M.P. The
petitioner pointed out that there were "yet another 14 bonded labourers
from Lalitpur in U.P.". The petitioner also annexed to its letter,
statements in original bearing the thumb marks or signatures as the case may be
of these bonded labourers referred to in the letter.
The petitioner pointed out in the letter that
the labourers working in these stone quarries were living under the most
inhuman conditions and their pitiable lot was described by the petitioner in
the following words:
"Besides these cases of bonded labour,
there are innumerable cases of fatal and serious injuries caused due to
accidents' while working in the mines, while dynamiting the rocks or while
crushing the stones. The stone-dust pollution near the stone crushers is so
various that many a valuable lives are lost due to tuberculosis while others
are reduced to mere skeletons because of T.B. and other diseases. The workers
are not provided with any medical care, what to speak of compensating the poor
worker for injury or for death.
No cases are registered against the mine
owners or the lessees for violation of safety rules under Mines Act.
We are enclosing herewith the statements of
about 75 workers who have suffered or are suffering continuously due to
non-implementation of the rules by the Central Government or by Haryana
Government or by the employers.
Almost 99% of the workers are migrant from
drought prone areas of Rajasthan, Madhya Pradesh, Andhra Pradesh, Orissa,
Maharashtra and Bihar. But if there is any one place where the Central
legislation of Inter State Migrant Workmens Act 1979 is being most flagrantly
violated it is 96 here in these mines, without any residential accommodation,
with the name-not even a thatched roof to fend against the icy winds and winter
rain or against the scorching heat in midsummer, with scanty clothing, with
very impure and polluted drinking water accumulated during rainy season in the
clitches, with absolutely no facilities for schooling or childcare, braving all
the hazards of nature and pollution and ill-treatment, these thousands of sons
and daughters of Mother India epitomise the "Wretched of the Earth".
On top of all these forms of exploitation is
the totally illegal system of "Thekedars", middlemen who extract 30%
of the poor miner's wages as their ill gotten commission (Rs. 20 out of Rs. 60,
wages for per truck load of stone ballast). The trucks are invariably
oversigned in some cases they doubt the prescribed size of 150 Sq. feet but
payment remains the same. The hills are dotted with liquor vends-legal and
illegal. Murders and molestation of women is very common." The petitioner
also set out the various provisions of the Constitution and the statutes which
were not being implemented or observed in regard to the labourers working in
these stone quarries. The petitioner in the end prayed that a writ be issued
for proper implementation of these provisions of the Constitution and statutes
with a view to ending the misery, suffering and helplessness of "these
victims of most inhuman exploitation".
The letter dated 25th February 1982 addressed
by the petitioner was treated as a writ petition and by an order dated 26th
February 1982 this Court issued notice on the writ petition and appointed two
advocates, namely, M/s. Ashok Srivastava and Ashok Panda as commissioners to
visit the stone quarries of Shri S.L. Sharma in Godhokhor (Anangpur) and
Lakkarpur in Faridabad district and to interview each of the persons whose
names were mentioned in the letter of the petitioner as also a cross section of
the other workers with a view to finding out whether they are willingly working
in these stone quarries and also to inquire about the conditions in which they
are working. M/s. Ashok Srivastava and Ashok Panda were directed to visit these
stone, quarries on 27th and 28th February 1982 and to make a report to this
Court on or before 2nd March 1982.
Pursuant to this order made by us, M/s. Ashok
Srivastava and Ashok Panda visited the stone quarries of S.L. Sharma in Godhokhor
and Lakkarpur and carried out the assignment entrusted to them and submitted a
97 report to this Court on 2nd March 1982. The Report pointed out inter alia
that in the stone quarries of S.L. Sharma at Godhakhpur, "many stone
crushing machines were operating with the result that the whole atmosphere was
full of dust and it was difficult even to breathe". The report then
referred to the statements of various workers interviewed by M/s. Ashok
Srivastava and Ashok Panda and according to the statements given by some of
them, namely, Lalu Ram, Dalla Ram, Thakur Lal, Budh Ram, Harda, Mahadev, Smt.
Shibban, Hardev, Anam, Punnu, Ghanshyam, Randhir and Mute, they were not
allowed to leave the stone quarries and were providing forced labour and they
did not have even pure water to drink but were compelled in most cases to drink
dirty water from a nallah and were living in Jhuggies with stones piled one
upon the other as walls and straw covering at the top, which did not afford any
protection against sun and rain and which were so low that a person could
hardly stand inside them.
The statements of these workers showed that a
few of them were suffering from tuberculosis and even when injuries were caused
due to accidents arising in the course of employment, no compensation was being
paid to them and there were no facilities for medical treatment or schooling
for children.
The Report proceeded to state that M/s. Ashok
Srivastava and Ashok Panda then visited mine no. 8 in Godhokhor stone quarries
and here they found that the condition of the jhuggies was much worse in such
as the jhuggies were made only of straw and most of the people living in
jhuggies had no clothes to wear and were shivering from cold and even the small
children were moving about without any proper clothing. M/s. Ashok Srivastava
and Ashok Panda found that none of the inmates of the jhuggies had any blanket
or woolen clothes and they did not even have any mat on which they could sleep.
The statements of Phool Chand, Babu Lal, Bhoolu, Karaya, Ram Bahadur and Sallu
also showed that all these workers were bonded labourers who were not allowed
to leave the stone quarries and one of them, namely Sallu was seriously injured
on his left leg only a day before the visit of M/s. Ashok Srivastava and Ashok Panda
but be did not hope to get any compensation "because here no one gets any
compensation for any injury". Most of the workers interviewed by M/s.
Ashok Srivastava and Ashok Panda stated that they got very little by way of
wages from the mine lessees or owners of stone crushers since they had to
purchase explosives with their own moneys and they had to incur other expenses
which, according to Dr. Patwardhan's report to which we shall refer hereafter,
included 50 per cent of the expenses of drilling holes. M/s. Ashok Srivastava
and Ashok Panda also pointed out in the Report that the following persons
working 98 in the Godhokhor stone quarries claimed that they were bonded
labourers:
(1) Chand Bahadur son of Hastbir (2) Lal
Bahadur son of Umbar Bahadur (3) Chhotey Lal son of Jarau (4) Harak Bahadur son
of Jeet Bahadur (5) Gopal Bahadur son of Jhabu Singh (6) Roop Singh son of
Govinda (7) Medh Bahadur son of Aspteir (8) Jiddey Bahadur son of Nunbahadur
(9) Phool Bahadur son of Ram Bahadur (10) Heera Bahadur son of Balbahadur (11)
Veer Bahadur son of Chhalvir (12) Nain Singh son of Lal Bahadur (13) Lal
Bahadur son of Gang Bahadur (14) Ganesh son of Gang Bahadur (15) Amber Bahadur
son of Sadhu Bahadur (16) Hira Lal son of Atbahadur (17) Kamar Bahadur (18)
Jagadh Bahadur son of Top Bahadur (19) Gajender Bahadur son of Shyam Lal (20)
Ganga Ram son of Lal Bahadur (21) Nar Bahadur and (22) Sant Bahadur son of Bhag
Bahadur.
So far as the workers working in Lakkarpur
stone quarries were concerned, the report of M/s. Ashok Srivastava and Ashok
Panda stated that out of about 250 persons living in straw jhuggies 100 persons
hailed from Bilaspur while 150 persons belonged to Allahabad and according to
the report, 100 persons coming from Bilaspur stated that they were forcibly
kept by the contractor and they were not allowed to move out of their place and
they were bonded labourers. M/s.
Ashok Srivastava and Ashok Panda described in
the Report the pitiable condition in which these workers were living in straw
jhuggies without any protection against sun and rain and with drinking water
available only from the barsati nallah. The Report pointed out that wile M/s.
Ashok Srivastava and Ashok Panda were interviewing the workers in the Lakkarpur
stone quarry it started raining heavily and thereupon they took shelter in one
of the jhuggies "but inside the jhuggi it was not safe, as water was
pouring inside" and they were completely drenched inside the jhuggi.
The Report also stated that, according to
these workers, there were no medical facilities available and even where
workers were injured they did not get any medical aid. The Report ended by
cbserving that these workmen "presented a picture of helplessness, poverty
and extreme exploitation at the hands of moneyed people" and they were
found "leading a most miserable life and perhaps beast and animal could be
leading more comfortable life than these helpless labourers".
Thereafter, the writ petition came up for
hearing on 5th March 1982 along with another writ petition filed by the present
petitioner 99 for release of some other bonded labourers and on this day the
Court made an order directing that the copies of the Report of M/s. Ashok
Srivastava and Ashok Panda should be supplied to all the minelesses and stone
crushers who are respondents to the writ petitions so that they may have an
opportunity to file their reply to the facts found in the Report. The Court
also appointed Dr. Patwardhan of Indian Institute of Technology to carry out a
socio-legal investigation in the following terms:
"It is necessary that a socio-legal
investigation should be carried out for the purpose of determining what are the
conditions prevailing in the various quarries in Faridabad District and whether
there are any workmen in those quarries against their will or without their
consent and what are the conditions in which they are living and whether any of
the provisions of the Bonded Labour System (Abolition) Act and Inter- State
Migrant Workmen (Regulation of Employment & Conditions of Service) Act is
being violated. We may make it clear that when we are directing a socio-legal
investigation of these matters it is not in a spirit to criticise the State
Government or any of its officers but with a view to find out the correctness
of the state of affairs so that the State Government and its officers could
take necessary steps for remedying the situation if a state of affairs exists
which is contrary to the provisions of law and the basic human norms. The Court
can take action only after the socio- legal investigation is carried out by
some responsible person and a copy of the report of the socio-legal
investigation is made available to the parties. We would, therefore, request
Dr. Patwardhan of I.I.T. to be good enough to carry out a socio-legal
investigation into the aforesaid matters in the quarries in Faridabad District
a list of which will be supplied by Mr. Mukhoty on behalf of the petitioners to
Dr. Patwardhan within' ten days from today after giving a copy to Mr. K.G.
Bhagat, learned Counsel appearing for the State of Haryana. Dr. Patwardhan is
requested to carry out socio-legal investigation with a view to putting forward
a scheme for improving the living conditions for the workers working in the
stone quarries and after the scheme is submitted to us we propose to hear the
parties on the scheme with a view to evolving a final scheme with the
assistance of the State of Haryana for the purpose of economic regeneration of
these workmen.
The Court permitted Dr. Patwardhan to take
the assistance of 100 any person other than the parties to the writ petition in
order to help him in his task and at the suggestion of the Court, the State of
Haryana agreed to deposit a sum of Rs. 1500 to meet the expenses of Dr.
Patwardhan in carrying out the socio-legal investigation. The Court also
recorded in its order that when it was pointed out in the Report of M/s. Ashok
Srivastava and Ashok Panda that the workers in the stone quarries did not have
any pure drinking water but were using dirty water from the nallah for drinking
purposes, Mr. K.G. Bhagat learned Additional Solicitor General appearing on
behalf of the State of Haryana fairly stated that "though it may not be
strictly the obligation of the State Government, the State Government will take
necessary measures for providing drinking facilities to the workmen in the
stone quarries". The Court also directed that the workmen whose names were
set out in the writ petition and in the Report of M/s. Ashok Srivastava and
Ashok Panda and particularly in regard to whom a separate statement had been
filed in Court on behalf of the petitioner, would be free to go wherever they
liked and they should not be restrained from doing so by any one and "if
they go to their respective villages, the district magistrates having
jurisdiction over those villages" shall "take steps or measures to
the extent possible for rehabilitating them." Pursuant to this order made
by the Court, the State of Haryana deposited a sum of Rs. 1500 in Court to meet
the expenses of the socio-legal investigation and Dr. Patwardhan embarked upon
his task with the assistance of Mr. Krishan Mahajan, the legal correspondent of
the Hindustan Times. It took some time for Dr. Patwardhan to complete his
assignment and prepare his report but having regard to the immensity of the
task, the time within which Dr. Patwardan finished the inquiry and submitted
his report was remarkably short. We shall have occasion to refer to this Report
a little latter when we deal with the arguments advanced on behalf of the
parties, but we may point out at this stage that the report of Dr. Patwardhan a
comprehensive, well documented socio- legal study of the conditions in which
the workmen engaged in stone quarries and stone crushers live and work and it
has made various constructive suggestions and recommendations for the purpose
of improving the living conditions of these workmen. We are indeed grateful to
Dr. Patwardhan for carrying out this massive assignment so efficiently and in
such a short time. Dr. Patwardhan has submitted a statement of the expenses
incurred by him in carrying out this socio-legal investigation and this
statement shows that he has incurred a total expense of Rs. 2078 which after
withdrawal of the amount of Rs. 101 1500 deposited by the State of Haryana,
leaves a balance of Rs. 578 to be reimbursed to Dr. Patwardhan. We are of the
view that Dr. Patwardhan should also be paid a small honorarium of Rs. 1000. We
would therefore direct the State of Haryana to deposit a sum of Rs. 1578 with
the Registry of this Court within 4 weeks from today with liberty to Dr. Patwardhan
to withdraw the same.
Though it was stated by Shri K.G. Bhagat on
behalf of the State of Haryana that the State Government will take necessary
measures for providing drinking facilities to the workmen in the stone quarries
referred to in the writ petition and in the report of M/s. Ashok Srivastava and
Ashok Panda, it appears that either no such measures were taken on behalf of the
State Government or even if they were taken, they were short lived. The result
was that the workmen working in most of these stone quarries had to remain
without pure drinking water and they had to continue "to quench their
thirst by drinking dirty and filthy water".
Whether it is the obligation of the State
Government to provide pure drinking water and if so what measures should be
directed to be taken by the State Government in that behalf are matters which
we shall presently consider. These are matters of some importance because there
can be no doubt that pure drinking water is absolutely essential to the health
and well-being of the workmen and some authority has to be responsible for
providing it.
Before we proceed to consider the merits of
the controversy between the parties in all its various aspects it will be
convenient at this stage to dispose of a few preliminary objections urged on
behalf of the respondents.
The learned Additional Solicitor General
appearing on behalf of the State of Harynana as also Mr. Phadke on behalf of
one of the mine lessees contended that even if what is alleged by the
petitioner in his letter which has been treated as a writ petition, is true, it
cannot support a writ petition under Article 32 of the Constitution, because no
fundamental right of the petitioner or of the workmen on whose behalf the writ
petition has been filed, can be said to have been infringed. This contention
is, in our opinion, futile and it is indeed surprising that the State
Government should have raised it in answer to the writ petition. We can
appreciate the anxiety of the mine lessees to resist the writ petition on any
ground available to them, be it hyper-technical or even frivolous, but we find
it incomprehensible that the State Government should urge such a preliminary
objection with a view to stifling at the thresh-hold an inquiry by the Court as
to whether the workmen are living in bondage 102 and under inhuman conditions.
We should have thought that if any citizen brings before the Court a complaint
that a large number of peasants or workers are bonded serfs or are being
subjected to exploitation by a few mine lessees or contractors or employers or
are being denied the benefits of social welfare laws, the State Government,
which is, under our constitutional scheme, charged with the mission of bringing
about a new socioeconomic order where there will be social and economic justice
for everyone and equality of status and opportunity for all, would welcome an
inquiry by the court, so that if it is found that there are in fact bonded
labourers or even if the workers are not bonded in the strict sense of the term
as defined in the Bonded Labour System (Abolition) Act 1976 but they are made
to provide forced labour or are consigned to a life of utter deprivation and
degradation such a situation can be set right by the State Government. Even if
the State Government is on its own inquiry satisfied that the workmen are not
bonded and are not compelled to provide forced labour and are living and
working in decent conditions with all the basic necessities of life provided to
them, the State Government should not baulk an inquiry by the court when a
complaint is brought by a citizen, but it should be anxious to satisfy the
court and through the court the people of the country, that it is discharging
its constitutional obligation fairly and adequately and the workmen are being
ensured social and economic justice. We have on more occasions than one said
that public interest litigation is not in the nature of adversary litigation
but it is a challenge and an opportunity to the government and its officers to
make basic human rights meaningful to the deprived and vulnerable sections of
the community and to assure them social and economic justice which is the
signature tune of our Constitution. The Government and its officers must
welcome public interest litigation, because it would provide them an occasion
to examine whether the poor and the down-trodden are getting their social and
economic entitlements or whether they are continuing to ermine victims of
deception and exploitation at the hands of strong and powerful sections of the
community and whether social and economic justice has become a meaningful
reality for them or it has remained merely a teasing illusion and a promise of
unreality, so that in case a the complaint in the public interest litigation is
found to be true, they can in discharge of their constitutional obligation root
out exploitation and injustice and ensure to the weaker sections their rights
and entitlements. When the Court entertains public interest litigation, it does
not do so in a cavilling spirit or in a confrontational mood or with a view to
tilting at executive authority or seeking to usurp it but its attempt is only
to ensure observance of social and economic 103 rescue programmes, legislative
as well as executive, framed for the benefit of the have-nots and the
handicapped and to protect them against violation of their basic human rights,
which is also the constitutional obligation of the executive. The Court is thus
merely assisting in the realisation of the constitutional objectives.
Moreover, when a complaint is made on behalf
of workmen that they are held in bondage and are working and living in
miserable conditions without any proper or adequate shelter over their heads,
without any protection against sun and rain, without two square meals per day
and with only dirty water from a nullah to drink, it is difficult to appreciate
how such a complaint can be thrown out on the ground that it is not violative
of the fundamental right of the workmen. It is the fundamental right of every
one in this Country, assured under the interpretation given to Article 21 by
this Court in Francis Mullen's case, to live with human dignity, free from
exploitation. This right to live with human dignity, enshrined in Article 21
derives its life breath from the Directive Principles of State Policy and
particularly clauses (e) and (f) of Article 39 and Article 41 and 42 and at the
least, therefore, it must include protection of the health and strength of
workers men and women, and of the tender age of children against abuse,
opportunities and facilities for children to develop in healthy manner and in
conditions of freedom and dignity, educational facilities, just and humane
conditions of work and maternity relief. These are the minimum requirements
which must exist in order to enable a person to live with human dignity and no
State neither the Central Government nor any State Government-has the right to
take any action which will deprive a person of the enjoyment of these basic
essentials. Since the Directive Principles of State Policy contained in clauses
(e) and (f) of Article 39, Article 41 and 42 are not enforceable in a court of
law, it may not be possible to compel the State through the judicial process to
make provision by statutory enactment or executive fiat for ensuring these
basic essentials which go to make up a life of human dignity but where
legislation is already enacted by the State providing these basic requirements
to the workmen and thus investing their right to live with basic human dignity,
with concrete reality and content, the State can certainly be obligated to
ensure observance of such legislation for inaction on the part of the State in
securing implementation of such legislation would amount to denial of the right
to live with human dignity enshrined in Article 21, more so in the context of
Article 256 which provides that, the executive power of every State shall be so
exercised as to ensure compliance with the laws made by Parliament 104 and any
existing laws which apply in that State. We have already pointed out in Asiad
Construction Worker(1) case that the State is under a constitutional obligation
to see that there is no violation of the fundamental right of any person,
particularly when he belongs to the weaker sections of the community and is unable
to wage a legal battle against a strong and powerful opponent who is exploiting
him. The Central Government is therefore bound to ensure observance of various
social welfare and labour laws enacted by Parliament for the purpose of
securing to the workmen a life of basic human dignity in compliance with the
Directive Principles of State Policy. It must also follow as a necessary
corollary that the State of Haryana in which the stone quarries are vested by
reason of Haryana Minerals (Vesting of Rights) Act 1973 and which is therefore
the owner of the mines cannot while giving its mines for stone quarrying
operations, permit workmen to be denied the benefit of various social welfare
and labour laws enacted with a view to enabling them to live a life of human
dignity. The State of Haryana must therefore ensure that the mine-lessees or
contractors, to whom it is giving its mines for stone quarrying operations,
observe various social welfare and labour laws enacted for the benefit of the
workmen. This is a constitutional obligation which can be enforced against the
Central Government and the State of Haryana by a writ petition under Article 32
of the Constitution.
The next preliminary objection urged by the
learned Additional Solicitor General on behalf of the State of Haryana and Mr.
Phadke on behalf of one of the mine-lessees was that the court had no power to
appoint either Mr. Ashok Srivastava and Mr. Ashok Panda or Mr. Patwardhan as
commissioners and the Reports made by them had no evidentiary value since what
was stated in the Reports was based only on ex-parte statements which had not
been tested by cross-examination. The learned Additional Solicitor General as
also Mr. Phadke relied on Order XLVI of the Supreme Court Rules 1966 which, as
its heading shows, deals with commissions and contended that since the
commissions issued by the court in the present case did not fall within the
terms of any of the provisions of Order XLVI, they were outside the scope of
the power of the court and the court was not entitled to place any reliance on
their reports for the purpose of adjudicating the issues arising in the writ
petition. This argument, plausible though it may seem at first sight, is in our
opinion not well founded and must be rejected. It is based upon a total
misconception of the 105 true nature of a proceeding under Article 32 of the
Constitution. Article 32 is so frequently used by lawyers and Judges for
enforcement of fundamental rights without any preliminary objection against its
invocation being raised on behalf of the State, that we have rarely any
occasion to examine its language and consider how large is the width and
amplitude of its dimension and range. We are so much accustomed to the concepts
of Anglo-Saxon jurisprudence which require every legal proceeding including a
proceeding for a high prerogative writ to be cast in a rigid or definitive
mould and insist on observance of certain well settled rules of procedure, that
we implicitly assume that the same sophisticated procedural rules must also govern
a proceeding under Article 32 and the Supreme Court cannot permit itself to be
freed from the shackles of these rules even if that be necessary for
enforcement of a fundamental right. It was on the basis of this impression
fostered by long association which the Anglo-Saxon system of administration of
justice that for a number of years this court had taken the view that it is
only a person whose fundamental right is violated who can approach the Supreme
Court for relief under Article 32 or in other words, he must have a cause of
action for enforcement of his fundamental right. It was only in the years 1981
in the Judges Appointment and Transfer Case(1) that this Court for the first
time took the view that where a person or class of persons to whom legal injury
is caused by reason of violation of a fundamental right is unable to approach
the court for judicial redress on account of poverty or disability or socially
or economically disadvantaged position, any member of the public acting bona
fide can move the court for relief under Article 32 and a fortiorari, also
under Article 226, so that the fundamental rights may become meaningful not
only for the rich and the well-to-do who have the means to approach the court
but also for the large masses of people who are living a life of want and
destitution and who are by reason of lack of awareness, assertiveness and
resources unable to seek judicial redress.
This view which we took in the Judges
Appointment and Transfer Case is clearly within the terms of Article 32 if only
we look at the language of this Article uninfluenced and uninhibited by any
pre-conceptions and prejudices or any pre-conceived notions. Article 32 in so
far it is material is in the following terms:
"Art. 32 (1): The right to move the
Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed.
106 (2): The Supreme Court shall have power
to issue directions or orders or writs including writ in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part.
While interpreting Article 32, it must be
borne in mind that our approach must be guided not by any verbal or formalistic
canons of construction but by the paramount object and purpose for which this
Article has been enacted as a Fundamental Right in the Constitution and its
interpretation must receive illumination from the trinity of provisions which
permeate and energies the entire Constitution namely, the Preamble, the
Fundamental Rights and the Directive Principles of State Policy. Clause (1) of
Article 32 confers the right to move the Supreme Court foe enforcement of any
of the fundamental rights, but it does not say as to who shall have this right
to move the Supreme Court nor does it say by what proceedings the Supreme Court
may be so moved. There is no limitation in the words of Clause (1) of Article
32 that the fundamental right which is sought to be enforced by moving the
Supreme Court should not be one belonging to the person who moves the Supreme
Court nor does it say that the Supreme Court should be moved only by a
particular kind of proceeding. It is clear on the plain language of clause (1)
of Article 32 that whenever there is a violation of a fundamental right any one
can move the Supreme Court for enforcement of such fundamental right. Of
course, the Court would not, in exercise of its discretion, intervene at the
instance of a meddlesome interloper or busy body and would ordinarily insist
that only a person whose fundamental right is violated should be allowed to
activise the court, but there is no fetter upon the power of the court to
entertain a proceeding initiated by any person other than the one whose
fundamental right is violated, though the court would not ordinarily entertain
such a proceeding, since the person whose fundamental right is violated can
always approach the court and if he does not wish to seek judicial redress by
moving the court, why should someone else be allowed to do so on his behalf.
This reasoning however breaks down when we have the case of a person or class
of persons whose fundamental right is violated but who cannot have resort to
the court on account of their poverty or disability or socially or economically
disadvantaged position and in such a case, therefore, the court can and must
allow any member of the public acting bona fide to espouse the cause of such
107 person or class of persons and move the court for judicial enforcement of
the fundamental right of such person or class of persons. This does not
violate, in the slightest measure, the language of the constitutional provision
enacted in clause (1) of Article 32.
Then again clause (1) of Article 32 says that
the Supreme Court can be moved for enforcement of a fundamental right by any
'appropriate' proceeding. There is no limitation in regard to the kind of
proceeding envisaged in clause (1) of Article 32 except that the proceeding
must be "appropriate" and this requirement of appropriateness must be
judged in the light of the purpose for which the proceeding is to be taken,
namely, enforcement of a fundamental right. The Constitution makers
deliberately did not lay down any particular form of proceeding for enforcement
of a fundamental right nor did they stipulate that such proceeding should
conform to any rigid pattern or straight jacket formula as, for example, in
England, because they knew that in a country like India where there is so much
of poverty, ignorance, illiteracy, deprivation and exploitation, any insistence
on a rigid formula of proceeding for enforcement of a fundamental right would
become self-defeating because it would place enforcement of fundamental rights
beyond the reach of the common man and the entire remedy for enforcement of
fundamental rights which the Constitution makers regarded as so precious and
invaluable that they elevated it to the status of a fundamental right, would
become a mere rope of sand so far as the large masses of the people in this
country are concerned. The Constitution makers therefore advisedly provided in
clause (1) of Article 32 that the Supreme Court may be moved by any
'appropriate' proceeding, 'appropriate' not in terms of any particular form but
'appropriate' with reference to the purpose of the proceeding. That is the
reason why it was held by this Court in the Judges Appointment and Transfer
Case (supra) that where a member of the public acting bona fide moves the Court
for enforcement of a fundamental right on behalf of a person or class of
persons who on account of poverty or disability or socially or economically
disadvantaged position cannot approach the court for relief, such member of the
public may move the court even by just writing a letter, because it would not
be right or fair to expect a person acting pro bono publico to incur expenses
out of his own pocket for going to a lawyer and preparing a regular writ
petition for being filed in court for enforcement of the fundamental right of
the poor and deprived sections of the community and in such a case, a letter
addressed by him can legitimately be regarded as an "appropriate"
proceeding.
108 But the question then arises as to what
is the power which may be exercised by the Supreme Court when it is moved by an
"appropriate" proceeding for enforcement of a fundamental right. The
only provision made by the Constitution makers in this behalf is to be found in
clause (2) of Article 32 which confers power on the Supreme Court "to
issue directions or orders or writs including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, which-ever may be
appropriate, for enforcement of any of the fundamental rights. It will be seen
that the power conferred by clause (2) of Article 32 is in the widest terms. It
is not confined to issuing the high prerogative writs of habeas corpus,
mandamus, prohibition, certiorari and quo quarranto, which are hedged in by
strict conditions differing from one writ to another and which to quote the
words spoken by Lord Atkin in United Australia Limited v. Barclays Bank Ltd. in
another context often "stand in the path of justice Clanking their
mediavel chains". But it is much wider and includes within its matrix,
power to issue any directions, orders or writs which may be appropriate for
enforcement of the fundamental right in question and this is made amply clear
by the inclusive clause which refers to in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari. It is not only the high
prerogative writs of mandamus, habeas corpus, prohibition, quo warranto and
certiorari which can be issued by the Supreme Court but also writs in the
nature of these high prerogative writs and therefore even if the conditions for
issue of any of these high prerogative writs are not fulfilled, the Supreme
Court would not be constrained to fold its hands in despair and plead its
inability to help the citizen who has come before it for judicial redress, but
would have power to issue any direction, order or writ including a writ in the
nature of any high prerogative writ. This provision conferring on the Supreme
Court power to enforce the fundamental rights in the widest possible terms
shows the anxiety of the Constitution makers not to allow any procedural
technicalities to stand in the way of enforcement of fundamental rights. The
Constitution makers clearly intended that the Supreme Court should have the
amplest power to issue whatever direction, order or writ may be appropriate in
a given case for enforcement of a fundamental right. But what procedure shall
be followed by the Supreme Court in exercising the power to issue such
direction, order or writ ? That is a matter on which the Constitution is silent
and advisedly so, because the Constitution makers never intended to fetter the
discretion of the Supreme Court to evolve a procedure appropriate in the
circums- 109 tances of a given case for the purpose of enabling it to exercise
its power of enforcing a fundamental right. Neither clause (2) of Article 32
nor any other provision of the Constitution requires that any particular
procedure shall be followed by the Supreme Court in exercising its power to
issue an appropriate direction, order or writ. The purpose for which the power
to issue an appropriate direction, order or writ is conferred on the Supreme
Court is to secure enforcement of a fundamental right and obviously therefore,
whatever procedure is necessary for fulfillment of the purpose must be
permissible to the Supreme Court. It is not at all obligatory that an adversarial
procedure, where each party produces his own evidence tested by cross
examination by the other side and the judge sits like an umpire and decides the
case only on the basis of such material as may be produced before him by both
parties, must be followed in a proceeding under Article 32 for enforcement of a
fundamental right. In fact, there is no such constitutional compulsion enacted
in clause (2) of Article 32 or in any other part of the Constitution. It is
only because we have been following the adversarial procedure for over a
century owing to the introduction of the Anglo-Saxon system of jurisprudence
under the British Rule that it has become a part of our conscious as well as
sub-conscious thinking that every judicial proceeding must be cast in the mould
of adversarial procedure and that justice cannot be done unless the adversarial
procedure is adopted. But it may be noted that there is nothing sacrosanct
about the adversarial procedure and in fact it is not followed in many other
countries where the civil system of law prevails. The adversarial procedure
with evidence led either party and tested by cross-examination by the other
party and the judge playing a passive role has become a part of our legal
system because it is embodied in the Code of Civil Procedure and the Indian
Evidence Act. But these statutes obviously have no application where a new
jurisdiction is created in the Supreme Court for enforcement of a fundamental
right. We do not think we would be justified in imposing any restriction on the
power of the Supreme Court to adopt such procedure as it thinks fit in exercise
of its new jurisdiction, by engrafting adversarial procedure on it. when the
Constitution makers have deliberately chosen not to insist on any such
requirement and instead, left it open to the Supreme Court to follow such
procedure as it thinks appropriate for the purpose of securing the end for
which the power is conferred, namely, enforcement of a fundamental right. The
adversarial procedure has, in fact, come in for a lot of criticism even in the
country of its origin and there is an increasing tendency even in that country
to depart from its strict norms. Lord De lin speaking of the English judicial
system said: "If our methods were 110 as antiquated as our legal methods,
we should be a bankrupt country". And Foster Q.C. observed : "I think
the whole English system is non-sense. I would go to the root of it- the civil
case between two private parties is a mimic battle........conducted according
to rules of evidence." There is a considerable body of juristic opinion in
our country also which believes that strict adherence to the adversarial
procedure can sometimes lead to injustice, particularly where the parties are
not evenly balanced in social or economic strength. Where one of the parties to
a litigation belongs to a poor and deprived section of the community and does
not possess adequate social and material resources, he is bound to be at a
disadvantage as against a strong and powerful opponent under the adversary
system of justice, because of his difficulty in getting competent legal
representation and more than anything els, his inability to produce relevant
evidence before the court.
Therefore, when the poor come before the
court, particularly for enforcement of their fundamental rights, it is
necessary to depart from the adversarial procedure and to evolve a new
procedure which will make it possible for the poor and the weak to bring the
necessary material before the court for the purpose of securing enforcement of
their fundamental rights. It must be remembered that the problems of the poor
which are now coming before the court are qualitatively different from those
which have hither to occupied the attention of the court and they need a
different kind of lawyering skill and a different kind of judicial approach.
If we blindly follow the adversarial
procedure in their case, they would never be able to enforce their fundamental
rights and the result would be nothing but a mockery of the Constitution. We
have therefore to abandon the laissez faire approach in the judicial process
particularly where it involves a question of enforcement of fundamental rights
and forge new tools, devise new methods and adopt new strategies for the
purpose of making fundamental rights meaningful for the large masses of people.
And this is clearly permissible on the language of clause (2) of Article 32
because the Constitution makers while enacting that clause have deliberately
and advisedly not used any words restricting the power of the court to adopt
any procedure which it considers appropriate in the circumstances of a given
case for enforcing a fundamental right. It is true that the adoption of this
non-traditional approach is not likely to find easy acceptance from the
generality of lawyers because their minds are conditioned by constant
association with the existing system of administration of justice which has
become ingrained in them as a result of long years of familiarity and
experience and become part of their mental makeup and habit and they would
therefore always have an unconscious predilection for the prevailing system 111
of administration of justice. But if we want the fundamental rights to become a
living reality and the Supreme Court to become a real sentinel on the quivive, we
must free ourselves from the shackles of outdated and outmoded assumptions and
bring to bear on the subject fresh outlook and original unconventional
thinking.
Now it is obvious that the poor and the
disadvantaged cannot possibly produce relevant material before the court in
support of their case and equally where an action is brought on their behalf by
a citizen acting pro bono publico, it would be almost impossible for him to
gather the relevant material and place it before the court. What is the Supreme
Court to do in such a case ? Would the Supreme Court not be failing in
discharge of its constitutional duty of enforcing a fundamental right if it
refuses to intervene because the petitioner belonging to the underprivileged
segment of society or a public spirited citizen espousing his cause is unable
to produce the relevant material before the court? If the Supreme Court were to
adopt a passive approach and decline to intervene in such a case because
relevant material has not been produced before it by the party seeking its
intervention, the fundamental rights would remain merely a teasing illusion so
far as the poor and disadvantaged sections of the community are concerned. It
is for this reason that the Supreme Court has evolved the practice of appointing
commissions for the purpose of gathering facts and data in regard to a
complaint of breach of fundamental right made on behalf of the weaker sections
of the society. The Report of the commissioner would furnish prima facie
evidence of the facts and data gathered by the commissioner and that is why the
Supreme Court is careful to appoint a responsible person as commissioner to
make an inquiry or investigation into the facts relating to the complaint. It
is interesting to note that in the past the Supreme Court has appointed
sometimes a district magistrate, sometimes a district Judge, sometimes a
professor of law, sometimes a journalist, sometimes an officer of the court and
sometimes an advocate practising in the court, for the purpose of carrying out
an inquiry or investigation and making report to the court because the
commissioner appointed by the Court must be a responsible person who enjoys the
confidence, of the court and who is expected to carry out his assignment
objectively and impartially without any predilection or prejudice. Once the
report of the Commissioner is received, copies of it would be supplied to the
parties so that either party, if it wants to dispute any of the facts or data
stated in the Report, may do so by filing an affidavit and the court then
consider the report of the commissioner and the affidavits which may have been
filed and proceed to adjudicate upon 112 the issue arising in the writ
petition. It would be entirely for the Court to consider what weight to attach
to the facts and data stated in the report of the commissioner and to what
extent to act upon such facts and data. But it would not be correct to say that
the report of the commissioner has no evidentiary value at all, since the
statements made in it are not tested by cross-examination. To accept this
contention would be to introduce the adversarial procedure in a proceeding
where in the given situation, it is totally inapposite. The learned Additional
Solicitor General and Mr. Phadke relied on Order XXVI of the Code of Civil
Procedure and Order XLVI of the Supreme Court Rules 1966 for the purpose of
contending that a commission can be appointed by the Supreme Court only for the
purpose of examining witnesses, making legal investigations and examining
accounts and the Supreme Court has no power to appoint a commission for making
an inquiry or investigation into facts relating to a complaint of violation of
a fundamental right in a proceeding under Article 32. Now it is true that Order
XLVI of the Supreme Court Rules 1966 makes the provisions of Order XXVI of the
Code of Civil Procedure, except rules 13, 14, 19, 20, 21 and 22 applicable to
the Supreme Court and days down the procedure for an application for issue of a
commission, but Order XXVI is not exhaustive and does not detract from the
inherent power of the Supreme Court to appoint a commission, if the appointment
of such commission is found necessary for the purpose of securing enforcement
of a fundamental right in exercise of its constitutional jurisdiction under Article
32. Order XLVI of the Supreme Court Rules 1966 cannot in any way militate
against the power of the Supreme Court under Article 32 and in fact rule 6 of
Order XLVII of the Supreme Court Rules 1966 provides that nothing in those
Rules "shall be deemed to limit or otherwise affect the inherent powers of
the court to make such orders as may be necessary for the ends of
justice." We cannot therefore accept the contention of the learned Addl. Solicitor
General and Mr. Phadke that the court acted beyond its power in appointing M/s.
Ashok Srivastava and Ashok Panda as commissioners in the first instance and Dr.
Patwardhan as commissioner at a subsequent stage for the purpose of making an
inquiry into the conditions of workmen employed in the stone quarries. The
petitioner in the writ petition specifically alleged violation of the
fundamental rights of the workmen employed in the stone quarried under Articles
21 and 23 and it was therefore necessary for the court to appoint these
commissioners for the purpose of inquiring into the facts related to this
complaint. The Report of M/s. Ashok Srivastava and Ashok Panda as also the
Report of Dr. Patwardhan were clearly documents having eviden- 113 tiary value
and they furnished prima facie evidence of the facts and data stated in those
Reports. Of course, as we have stated above, it will be for us to consider what
weight we should attach to the facts and data contained in these Reports in the
light of the various affidavits filed in the proceedings.
We may point out that what we have said above
in regard to the exercise of jurisdiction by the Supreme Court under Article 32
must apply equally in relation to the exercise of jurisdiction by the High Court’s
under Article 226, for the latter jurisdiction is also a new constitutional
jurisdiction and it is conferred in the same wide terms as the jurisdiction
under Article 32 and the same powers can and must therefore be exercised by the
High Court’s while exercising jurisdiction under Article 226. In fact, the
jurisdiction of the High Court’s under Article 226 is much wider, because the
High Courts are required to exercise this jurisdiction not only for enforcement
of a fundamental right but also for enforcement of any legal right and there
are many rights conferred on the poor and the disadvantaged which are the
creation of statute and they need to be enforced as urgently and vigorously as
fundamental rights.
Having disposed of these preliminary
objections, we shall now proceed to consider the writ petition on merits.
But, before we turn to examine the facts of
this case, we may first consider which are the laws governing the living and
working conditions of workmen employed in the stone quarries. The first statute
to which we must refer in this connection is the Mines Act, 1952. This Act
extends to the whole of India and therefore applies a fortiorari in the State
of Haryana. Section 2(j) defines "mine" to mean "any excavation
where any operation for the purpose of searching for or obtaining minerals has
been or is being carried on and includes in clause (iv) "all open cast
working". The word "minerals" has been given a very broad
meaning under section 2(jj) and it means "all substances which can
obtained from the earth by mining, digging, drilling, dredging, hydraulicing,
quarrying or by any other operation". Section 2(kk) gives the definition
of "open cast working" and according to this definition, it means
"a quarry, that is to say, an excavation where any operation for the
purpose of searching for or obtaining minerals has been or is being carried on,
not being a shaft or an excavation which extends below superjacent
ground". There can be no doubt that according to these definitions, the
stone quarries with which we are concerned in this writ petition constitute
"mines" within the meaning of the definition of that term in section
2(j). since they are 114 excavations where operations for the purpose of
searching for of obtaining stone by quarrying are being carried on but they are
not `open cast working' since admittedly excavations in the case of these stone
quarries extend below superjacent ground. But the question still remains
whether the provisions of the Mines Act 1952 apply to these stone quarries even
if they are "mines". Section 3(1) (b) enacts that the provisions of
the Mines Act, 1952 except those contained in sections 7, 8, 9, 44, 45 and 46
shall not apply to any mine engaged in the extraction inter alia of kankar,
murrum, laterite boulders, gravel, shingle, building stone, road metal and
earth and therefore, if this statutory provision stood alone without any qualification,
it would appear that barring the excepted sections, the provisions of Mines Act
1952 would not apply to these stone quarries. But there is a proviso to
section. 3(1)(b) which is very material and it runs as follows :
"3(1) The provisions of this Act, except
those contained in sections 7, 8, 9, 44, 45 and 46, shall not apply to- (b) any
mine engaged in the extraction of kankar, murrum, laterite, boulder, gravel,
shingle, ordinary sand (excluding moulding sand, glass sand and other mineral
sands), ordinary clay (excluding kaolin, china clay, white clay or fire clay),
building stone, road metal earth, fullers earth and lime stone :
Provided that- (i) the workings do not extend
below superjacent ground; or (ii) where it is an open cast working- (a) the
depth of the excavation measured from its highest to its lowest point nowhere
exceeds six metres;
(b) the number of persons employed on any one
day does not exceed fifty; and (c) explosives are not used in connection with
the excavation." Since the workings in these stone quarries extend below
superjacent ground and they are not `open cast workings' and moreover
explosives are admittedly used in connection with the excavation, 115 the conditions
set out in the proviso are not fulfilled and hence the exclusion of the
provisions of the Mines Act 1952 (other than the excepted sections) is not
attracted and all the provisions of the Mines Act 1952 apply to these stone
quarries. It may also be noted that the definition of `mine' in section 2(j)
includes in Clause (x) any premises or part thereof in or adjacent and
belonging to a mine on which any process ancillary to the getting, dressing or
preparation for sale of minerals...........is being carried on." Now
obviously stone crushing is a process ancillary to the getting, dressing or
preparation for sale of stone quarried from the stone quarries and therefore if
the stone crushing activity is carried on in premises in or adjacent to a stone
quarry and it belongs to the same owner as the stone quarry, it would be
subject to the discipline of the provisions of the Mines Act 1952 and all
workmen employed in connection with such stone crushers would be entitled to
the benefit of the provisions of that Act. It will, thus, be seen that all the
provisions of the Mines Act, 1952 are applicable to the workmen employed in the
stone quarries as also to the workmen employed in connection with stone
crushers, where the stone crusher is situate in or adjoining to a stone quarry
and belongs to the same owner as the stone quarry.
Now the provisions of the Mines Act, 1952
which are material are those set out in Chapters V, VI and VII, Chapter V
dealing with provisions as to health and safety, Chapter VI, with hours and
limitation of employment and Chapter VII, with leave with wages. The provisions
contained in these three Chapters confer certain rights and benefits on the
workmen employed in the stone quarries and stone crushers and these rights and benefits
are intended to secure to the workmen just and humane conditions of work
ensuring a decent standard of life with basic human dignity. We shall have
occasion to consider some of these rights and benefits when we deal with the
specific complaints made on behalf of the petitioner, but we may point out at
this stage that the most important rights and benefits conferred on the workmen
are those relating to their health and safety which include provisions as to
drinking water, conservancy and injuries arising out of accidents, in regard to
which detailed requirements are laid down in Chapters V, VI and IX of the Mines
Rules; 1955. We may also point out that the obligation of complying with these
provisions of the Mines Act, 1952 and the Mines Rules, 1955 rests on the owner,
agent and manager of every stone quarry and stone crusher, because section 18
declares that the owner, agent and manager of every mine shall be responsible
that all operations carried on in connection therewith are conducted in
accordance with the provisions of the Act and of the regulations, rules and
by-laws 116 and of any orders made under the Act. The `owner' is defined in
section 2(1) of the Mines Act, 1952 to mean "any person who is the
immediate proprietor or lessee or occupier of the mine or any part
thereof.........but does not include a person who merely receives a royalty,
rent or fine from the mine or is merely the proprietor of the mine, subject to
any lease, grant or licence for the working thereof." Since the stone
quarries in the present case are not being exploited by the State of Haryana
though it is the owner of the stone quarries, but are being given out on lease
by auction, the mine-lessees who are not only lessees but also occupiers of the
stone quarries are the owners of the stone quarries within the meaning of that
expression as used in section 2(1) and so also are the owners of stone crushers
in relation to their establishment. The mine-lessees and owners of stone
crushers are, therefore liable under section 18 of the Mines Act, 1952 to carry
out their operations in accordance with the provisions of the Mines Act, 1952
and the Mines Rules, 1955 and other Rules and Regulations made under that Act
and to ensure that the rights and benefits conferred by these provisions are
actually and concretely made available to the workmen. The Central Government
is entrusted under the Mines Act 1952 with the responsibility of securing
compliance with the provisions of that Act and of the Mines Rules 1955 and
other Rules and Regulations made under that Act and it is the primary
obligation of the Central Government to ensure that these provisions are
complied with by the mine-lessees and stone crusher owners.
The State of Haryana is also, for reasons
which we have already discussed, under an obligation to take all necessary
steps for the purpose of securing compliance with these provisions by the
mine-lessees and owners of stone crushers.
The State of Haryana has in fact amended the
Punjab Minor Mineral Concession Rules 1964 in their application to the State of
Haryana by issuing the Punjab Minor Mineral Concession (Haryana First
Amendment) Rules 1982 on 6th December 1982 and substituted a new clause 16 in
Form F, a new clause 13 in Form L and a new clause 10 in Form N providing that
the lessee/lessees or the contractor/contractors, as the case may be,
"shall abide by the provisions of Mines Act, 1952 Inter State Migrant
Workmen (Regulation of Employment and Conditions of Service) Act, 1979 and the
rules and regulations framed thereunder and also the provisions of other labour
laws both Central and State as are applicable to the workmen engaged in the
mines, and quarries relating to the provisions of drinking water, rest
shelters, dwelling houses, latrnesi 117 and first aid and medical facilities in
particular and other safety and welfare provisions in general, to the
satisfaction of the competent authorities under the aforesaid Acts, rules and
regulations and also to the satisfaction of the District Magistrate concerned.
In the case of non-compliance of any of the provisions of the enactments as
aforesaid, the State Government or any officer authorised by it in this behalf
may terminate the contract by giving one month's notice with forfeiture of
security deposited or in the alternative the State Labour Department may remedy
the breach/breaches by providing the welfare and safety measures as provided in
the aforesaid enactments at the expense and cost of the contractor/contractors.
The amount thus spent shall be recovered from the contractor/contractors by the
Industries Department and reimbursed to Labour Department." The State of
Haryana is therefore, in any event, bound to take action to enforce the
provisions of the Mines Act 1952 and the Mines Rules 1955 and other Rules and
Regulations made under that Act for the benefit of the workmen.
We may then turn to the provisions of
Inter-State Migrant Workmen (Regulation of Employment and Conditions of
Service) Act, 1979 (hereinafter referred to as the Inter- State Migrant Workmen
Act). This Act was brought into force in the State of Haryana with effect from
2nd October 1980 and the authorities and this Act were notified on 21st July
1982. We may, therefore, proceed on the basis that the provisions of this Act became
enforceable, if not from 2nd October 1980 at least from 21st July 1982. Now
this Act by subsection (4) of Section (1) applies to every establishment in
which five or more inter-State migrant workmen are employed or were employed on
any day of the preceding twelve months and so also it applies to every
contractor who employs or employed five or more inter-State migrant workmen on
any day of the preceding twelve months. Section (2) sub- section (1) Clause (b)
of the Act defines contractor, in relation to an establishment, to mean "a
person who undertakes (whether as an independent contractor, agent, employee or
otherwise) to produce a given result for the establishment, other than a mere
supply of goods and articles of manufacture of such establishment, by the
employment of workmen or to supply workmen to the establishment, and includes a
sub-contractor, khatedar, sardar, agent or any other person, by whatever name
called, who recruits 118 or employs workmen." Clause (e) of sub-section
(1) of Section (2) defines "inter-State migrant workmen" to means
"any person who is recruited by or through a contractor in one State under
an agreement or other arrangement for employment in an establishment in another
State, whether with or without the knowledge of the principal employer in
relation to such establishment." The expression "principal-
employer" is defined by clause (g) of sub-section (1) of Section 2 to mean
"in relation to a mine, the owner or agent of the mine and where a person
has been named as the manager of the mine, the person so named."
Obviously, therefore, the mine-lessees and owners of stone crushers in the
present case would be principal employers within the meaning of that expression
as used in the Inter-State Migrant Workmen Act.
Section 4 provides for registration of every
principal employer of an establishment to which the Act applies and Section 6
enacts that no principal employer of an establishment to which this Act
applies, shall employ inter- State migrant workmen in the establishment unless
a certificate of registration in respect of such establishment is issued under
the Act in force. Similarly, Section 8 sub- section (1) provides that with
effect from such date as the appropriate Government may be Notification in the
Official Gazette appoint no contractor to whom the Act applies shall recruit
any person in a State for the purpose of employing him in any establishment
situated in another State, except under and in accordance with a licence issued
in that behalf by the licensing officer appointed by the Central Government who
has jurisdiction in relation to the area wherein the recruitment is made, nor
shall be employ as workmen for the execution of any work in any establishment
in any State, persons from another State excent under and in accordance with a
licence issued in that behalf by the licensing officer appointed by the
appropriate Government having jurisdiction in relation to the area wherein the
establishment is situated. Sub-section (2) of Section 8 declares that a licence
under sub-section (1) may contain such conditions including, in particular, the
terms and conditions of the agreement or other arrangement under which the
workmen will be recruited, the remuneration payable, hours of work, fixation of
wages and other essential amenities in respect of the inter-State migrant
workmen, as the appropriate Government may deem fit to impose in accordance
with the Rules, if any, made under Section 35.
Section 12 imposes certain duties and
obligations on contractors which include inter alia the duty to issue to every
inter-State migrant workman a pass-book containing various particulars
regarding recruitment and employment of the workman as also to pay to the
workman the return fare from the place of employment to the place of residence
119 in the home State when he ceases to be employed. Rule 23 of the Inter-State
Migrant Workmen (Regulation of Employment and Conditions of Service) Central
Rules 1980 (hereinafter referred to as Inter-State Migrant Workmen Rules) sets
out certain additional particulars which must be included in the pass-book to
be issued to every inter-State migrant workman.
Section 13 then proceeds to lay down the wage
rates, holidays, hours of work and other conditions of service of an
inter-State migrant workman and provides inter alia that in no case shall a
inter-State migrant workman be paid less than the wages fixed under the Minimum
Wages Act 1948, and the wages shall be paid to an inter-State migrant workman
in cash. The detailed particulars in regard to wages payable to an inter-State
migrant workman are laid down in Rules 25 to 35 of the Inter-State Migrant
Workmen Rules. Then follows Section 14 which provides that there shall be paid
by the contractor to every inter-State migrant workman at the time of
recruitment, a displacement allowance and the amount of displacement allowance
shall not be refundable but shall be in addition to the wages or other amounts
payable to him.
There is also a provision made in Section 15
for payment to an inter-State migrant workman of a journey allowance of a sum
not less than the fare from the place of residence in his State to the place of
work in the other State, both for outward and return journeys and this Section
also enacts that the workman shall be entitled to payment of wages during the
period of such journeys as if he was on duty.
Section 16 days a duty on every contractor
employing inter- State migrant workmen in connection with the work of an
establishment to provide various other facilities particulars of which are to
be found in Rules 36 to 45 of the Inter-State Migrant Workmen Rules. These
facilities include medical facilities, protective clothing, drinking water,
latrines, urinals and washing facilities, rest rooms, canteens, creche and
residential accommodation. The obligation to provide these facilities is in
relation to the inter-State Migrant Workmen employed in an establishment to
which the Act applies. But this liability is not confined only to the
contractor, because Section 18 provides in so many terms that if any allowance
required to be paid under- section 14 or 15 to an inter-State migrant Workman
is not paid by the contractor or if any facility specified in section 16 is not
provided for the benefit of such workman, such allowance shall be paid or as
the case may be, the facility shall be provided by the principal employer
within such time as may be prescribed by the Rules and all the allowances paid
by the principal employer or all the expenses incurred by him in this
connection may be recovered by him from the contractor either by deduction from
the amount payable to the 120 contractor or as debt payable by the contractor.
Section 25 & 26 make it an offence for anyone to contravene any of the
provisions of the Inter-Stage Migrant Workmen Act or Inter- State Migrant
Workmen Rules and Section 30 gives over-riding effect to the provisions of the
Inter-State Migrant Workmen Act over any other law or any agreement or contract
of service or any standing orders. These are broadly the relevant provisions of
the Inter-State Migrant Workmen Act and the Inter-State Migrant Workmen Rules
which may call for consideration.
But the question arises whether the
Inter-State Migrant Workmen Act applies to the workmen employed in the stone
quarries and the stone crushers. Now it was not disputed on behalf of the State
of Haryana and indeed it was clear from the Report of Dr. Patwardhan that most
of the workmen employed in the stone quarries and stone crushers come from
Uttar Pradesh, Madhya Pradesh, Rajasthan, Tamil Nadu and Andhra Pradesh and
there are only a few workmen from Haryana. It is only if 5 or more out of these
workmen coming from States other than Haryana are inter-State migrant workmen
within the meaning of that expression as defined in Section 2 sub-section (1)
clause (e) of the Inter-State Migrant Workmen Act that the establishment in
which they are employed would be covered by the Inter-State Migrant Workmen
Act. It would therefore have to be determined in case of each stone quarry and
each stone crusher whether there are 5 or more inter-State Migrant workmen
employed in the establishment and if there are, the provisions of the inter-
State Migrant Workmen Act and the Inter-State Migrant Workmen Rules would
become applicable to such establishment.
The Union of India in a submission filed on
its behalf by Miss Subhasini has taken up the stand that the workmen employed
in the one quarries and stone crushers "are coming to join the service in
the stone quarries of their own volition and they are not recruited by any
agent for being migrated from any State" and "as such they do not
come under the definition of the term" inter-State migrant workman. We
would have ordinarily been inclined to accept this statement made on behalf of
the Union of India, but we find that, according to the Report of Dr.
Patwardhan, the modus operandi that is followed for the purpose of recruitment
of workmen is "that the stone crusher owners or the lessees holders ask
the thekedar or jamadar of the mine to fetch people from various States to work
in the mines" and sometimes "the jamadar or thekedar communicates the
need for workers to old hands at the quarries so that they could bring in
people on their return from their villages or their respective States".
Now 121 if what has been reported by Dr. Patwardhan is true, there can be no
doubt that the workmen employed in the stone quarries and stone crushers would
be inter-State migrant workmen. The thekedar or jamadar who is engaged by the
mine lessees or the stone-crusher owners to recruit workmen or employ them on
behalf of the mine lessees or stone crusher owners would clearly be a
'contractor' within the meaning of that term as defined in Section 2
sub-section (1) clause (b) and the workmen recruited by or through him from
other States for employment in the stone quarries and stone crushers in the
State of Haryana would undoubtedly be inter- State migrant workmen. Even when
the thekedar or jamadar recruits or employs workmen for the stone quarries and
stone crushers by sending word through the "old hands", the workmen
so recruited or employed would be inter-State migrant workmen, because the
"old hands" would be really acting as agents of the thekedar or
jamadar for the purpose of recruiting or employing workmen. The Inter-State
Migrant Workmen Act being a piece of social welfare legislation intended to
effectuate the Directive Principles of State Policy and ensure decent living
and working conditions for the workmen when they come from other States and are
in a totally strange environment where by reason of their poverty, ignorance
and illiteracy, they would be totally unorganised and helpless and would become
easy victims of exploitation, it must be given a broad and expansive interpretation
so as to prevent the mischief and advance they remedy and therefore, even when
the workmen are recruited or employed by the jamadar or thekedar by operating
through the "old hands", they must be regarded as inter-State migrant
workmen entitled to the benefit of the provisions of the Inter-State Migrant
Workmen Act and the Inter-State Migrant Workmen Rules. The Report of Dr. Patwardhan
also points out one other aspect of the matter:
according to him, there is invariably
"an understanding between the jamadar or thekedar and the owners of stone
crushers holding leases of stone quarries as to the rate of output of stone to
be fed through the crushers" and thus the jamadar or thekedar is clearly a
'contractor' of the stone crusher owners and the workmen recruited or employed
by him on behalf of the owners of stone crushers are inter-State migrant
workmen. We entirely agree with this view put forward by Dr. Patwardhan in his
Report and we have no doubt that if there is any agreement or understanding between
the jamadar or thekedar on the one hand and the owners of stone crushers on the
other, that the jamadar or thekedar will ensure a certain rate of output of
stone to be fed to the stone crushers, the jamadar or thekedar would be a
'contractor' and the workmen recruited or employed by him on behalf of the
stone 122 crusher owners would be inter-State migrant workmen. But whether in
any particular stone quarry or stone crusher the workmen employed are
inter-State migrant workmen on the application of this test laid down by us and
if so, how many of them are such inter-State migrant workmen, is a matter which
would have to be investigated and determined and that is what must be done if
we are to make the provisions of the Inter-State Migrant Workmen Act and the
Inter-State Migrant Workmen Rules meaningful for these workmen who are
recruited from other States and who come to the stone quarries and stone
crushers in the State of Haryana. We may point out that in addition to the
rights and benefits conferred upon him under the Inter-State Migrant Workmen
Act and the Inter- State Migrant Workmen Rules, an inter-State migrant workman
is also, by reason of Section 21, entitled to the benefit of the provisions
contained in the Workman's Compensation Act 1923. The Payment of Wages Act 1936,
The Employees' State Insurance Act 1948, The Employees' Provident Funds and
Misc. Provisions Act, 1952, and the Maternity Benefit Act 1961.
The obligation to give effect to the
provisions contained in these various laws is not only that of the jamadar or
thekedar and the mine-lessees and stone crusher owners (provided of course
there are 5 or more inter-State migrant workmen employed in the establishment)
but also that of the Central Government because the Central Government being
the appropriate Government" within the meaning of Section 2(1)(a) is under
an obligation to take necessary steps for the purpose of securing compliance
with these provisions by the thekedar or jamadar and mine-lessees and owners of
stone crushers. The State of Haryana is also for reasons already discussed
above bound to ensure that these provisions are observed by the thekedar or
jamadar and mine-lessees and owners of stone crushers.
We then turn to consider the provisions of the
Contract Labour (Regulation and Abolition) Act 1970 (hereinafter referred to as
the Contract Labour Act). This Act applies to every establishment in which 20
or more workmen are employed or were employed on any day of the preceding
twelve months as contract labour and to every contractor who employs or who
employed on any day of the preceding twelve months 20 or more workmen. The
expression "appropriate government" is defined in Section 2
sub-section (1) clause (a) and so far as the stone quarries and stone crushers
are concerned, the Central Government is the 'appropriate Government'. Section
2 sub-section (1) clause (b) states that a workman shall be deemed to be
employed as "contract labour" in or in connection with the work of an
establishment when he is hired in or in connection with the work of an
establishment when he is hired in or in connection 123 with such work by or
through a contractor and "contractor" is defined in clause (c) of
that sub-section to mean, in relation to an establishment, "a person who
undertakes to produce a given result for the establishment, other than a mere
supply of goods or articles of manufacture to such establishment, through
contract labour or who supplies contract labour for any work of the
establishment and includes a sub-contractor". The expression
"principal employer" is defined in clause (g) of sub-section (i) of
section 2 and for the purpose of a mine, it means the owner or agent of the
mine and therefore, so far as the stone quarries and stone crushers are concerned,
the mine lessees and owners of stone crushers would be the principal employers.
Then there are provisions in the Contract Labour Act for registration of
establishment by every principal employer and for licensing of every contractor
to whom the Act applies. But more importantly, Sections 16 to 19 impose a duty
on every contractor to provide canteens, rest rooms, first aid facilities and
other facilities and Section 20 enacts that if any amenity required to be
provided under section 16, 17, 18 or 19 for the benefit of the contract labour
employed in an establishment is not provided by the contractor, such amenity
shall be provided by the principal employer and all expenses incurred by the
principal employer in providing such amenity may be recovered by the principal
employer from the contractor. Every contractor is made responsible
under-section 21 for payment of wages to each worker employed by him as
contract labour and such wages are to be disbursed in the presence of a
representative duly authorised by the principal employer. Now if the jamadar or
thekedar in a stone quarry or stone crusher is a 'contractor' within the
meaning of the definition of that term in the Inter-State Migrant Workmen Act,
he would a fortiorari be a 'contractor' also for the purpose of Contract Labour
Act and any workmen hired in or in connection with the work of a stone quarry
or stone crusher by or through the jamadar or thekedar would be workmen
entitled to the benefit of the provisions of the Contract Labour Act. There are
elaborate Rules made under the Contract Labour Act called the Contract Labour
(Regulation and Abolition) Central Rules 1971 (hereinafter referred to as the
Contract Labour Rules) and these Rules not only deal with the procedure for
application and grant of registration to a principal employer and licence to a
contractor, but also particularise the details of the various welfare and other
facilities directed to be provided to the contract labour by Section 16, 17, 18
and 19 of the Contract Labour Act. Where therefore the thekedar or jamadar is a
'contractor' and the workmen are employed as contract labour' within the
meaning of these expres- 124 sions as used in the Contract Labour Act, the
contractor as well as the principal employer would be liable to comply with the
provisions of contract Labour Act and the Contract Labour Rules and to provide
to the contract labour rights and benefits conferred by these provisions. The
Central Government being the "appropriate government" within the
meaning of Section 12 sub-section (1) clause (a) would be responsible for
ensuring compliance with the provisions of the Contract Labour Act and the
Contract Labour Rules by the mine-lessees and stone crusher owners and the
thekedar or jamadar. So also, for reasons which we have already discussed while
dealing with the applicability of the Mines Act 1952 and the Inter-State
Migrant Workmen Act, the State of Haryana would be under an obligation to
enforce the provisions of the Contract Labour Act and the Contract Labour Rules
for the benefit of the workmen.
Turning to the provisions of the Minimum
Wages Act 1948, there can be no doubt and indeed this was not disputed on
behalf of the respondents, that the Minimum Wages Act 1948 is applicable to
workmen employed in the stone quarries and stone crushers. The minimum wage
fixed for miners by the Notification of the Central Government dated 2nd
December 1981 is Rs. 9.75 per day for those working, above the ground and Rs.
11.25 per day for those working below the ground.
Moreover the Notification prescribes a
separate minimum wage for the occupation of a shot firer, stone breaker, stone
carrier, mud remover and water carrier. There is a minimum wage prescribed in
the Notification for each of these occupations. The question is whether the
workmen employed in the stone quarries and stone crushers are paid minimum wage
for the work done by them. The Report of Dr. Patwardhan alleges that the mode
of payment to the workmen employed in stone quarrying operations is such that
after deduction of the amounts spent on explosives and drilling of holes, which
amount has to be borne by the workmen out of their wages, what is left to the
workmen is less than the minimum wage.
It is also stated in the Report of Dr.
Patwardhan that the workmen employed in the stone quarries not only quarry the
stone but also carry out the work of a shot firer and a stone breaker, though
the work of a shot firer cannot be done by them without proper training as
provided in the Mines Vocational Training Rules 1966 and for this work of a
shot firer and a stone breaker carried cut by them, they do not get the minimum
wage stipulated for the occupation of a shot firer or a stone breaker and
moreover since they are piece-rated workers, their output falls because of the
other jobs they are required to carry out with the result that they are
deprived of the 125 minimum wage which they should otherwise receive. We are
not in a position at the present stage to give a definite finding that what is
stated in the Report of Dr. Patwardhan is true, but there can be no doubt that
whatever be the mode of payment followed by the mine lessees and stone crusher
owners, the workmen must get nothing less than the minimum wage for the job
which is being carried out by them and if they are required to carry out
additionally any of the functions pertaining to another job or occupation for
which a separate minimum wage is prescribed, they must be paid a proportionate
part of such minimum wage in addition to the minimum wage payable to them for
the work primarily carried out by them. We would also suggest that the system
of payment which is being followed in the stone quarries and stone crushers,
under which the expenses of the explosives and of drilling holes are to be
borne by the workmen out of their own wages, should be changed and the
explosives required for carrying out blasting should be supplied by the mine
lessees or the jamadar or thekedar without any deduction being made out of the
wages of the workmen and the work of drilling holes and shot firing should be
entrusted only to those who have received the requisite training under the
Mines Vocational Training Rules 1966. We would direct the Central Government
and the State of Haryana to take necessary steps in this behalf. So far as the
complaint of the petitioner that the workmen employed in the stone quarries and
stone crushers are not being paid the minimum was due and payable for the work
carried out by them is concerned, it is a matter which would have to be
investigated and determined in the light of the law laid down by us.
Lastly, we must consider the provisions of
the Bonded Labour System (Abolition) Act 1976. We have already pointed out that
many of the States are not prepared to admit the existence of bonded labour in
their territories and the State of Haryana is no exception. But in order to
determine whether there is any bonded labour in the stone quarries and stone
crushers in the Faridabad area of the State of Haryana, it is necessary to examine
some of the relevant provisions of the Bonded Labour System (Abolition) Act
1976.
This Act was enacted with a view to giving
effect to Article 23 of the Constitution which prohibits traffic in human
beings and beggar and other similar forms of forced labour.
We have had occasion to consider the true
scope and dimension of this Article of the Constitution in People's Union for
Democratic Rights v. Union of India(1) commonly known as 126 the Asiad workers'
case and it is not necessary for us to say anything more about it in the
present judgment. Suffice it to state that this Act is intended to strike
against the system of bonded labour which has been a shameful scar on the
Indian social scene for decades and which has continued to disfigure the life
of the nation even after independence.
The Act was brought into force throughout the
length and breadth of the country with effect from 25th October 1975, which
means that the Act has been in force now for almost 8 years and if properly
implemented, it should have by this time brought about complete identification,
freeing and rehabilitation of bonded labour. But as official, semi- official
and non-official reports show, we have yet to go a long way in wiping out this
outrage, against humanity.
Clause (d) of Section 2 defines "bonded
debt" to mean an advance obtained or presumed to have been obtained, by a
bonded labourer, under or in pursuance of, the bonded labour system. The
expression 'bonded labourer' is defined in clause (f) to mean "a labourer
who incurs, or has, or is presumed to have incurred a bonded debt". Clause
(g) defines "bonded labour system" to mean:
"the system of forced, or partly forced,
labour under which a debtor enters, or has, or is presumed to have, entered,
into an agreement with the creditor to the effect that,- (i) in consideration
of an advance obtained by him or by any of his lineal ascendants or descendants
(whether or not such advance is evidenced by any document) and in consideration
of the interest, if any, due on such advance, or (ii) in pursuance of any
customary or social obligation, or (iii) for any economic consideration
received by him or by any of his lineal ascendants or descendants, or he would-
(1) render, by himself or through any member of his family, or any person
dependent on him, labour or service to the creditor, or for the benefit of the
creditor, for a specified period or for an unspecified period, either without
wages or for nominal wages, or (2) forfeit the freedom of employment or other
means of livelihood for a specified period or for an unspecified period, 127
(3) forfeit the right to move freely throughout the territory of India, or (4)
forfeit the right to appropriate or sell at market value any of his property or
product of his labour or the labour of a member of his family or any person
dependent on him." The expression "nominal wages" is defined in
clause (i) of Section 2 to mean, in relation to any labour, a wage which is
less than- (a) the minimum wages fixed by the Government, in relation to the
same or similar labour, under any law for the time being in force, and (b)
where no such wage has been fixed in relation to any form of labour, the wages
that are normally paid, for the same or similar labour to the labourers working
in the same locality." Section 4 is the material section which provides
for abolition of bonded labour system and it runs as follows:
"4(1) On the commencement of this Act,
the bonded labour system shall stand abolished and every bonded labourer shall,
on such commencement, stand freed and discharged from any obligation to render
any bonded labour.
(2) after the commencement of this Act, no
person shall- (a) make any advance under, or in pursuance of, the bonded labour
system, or (b) compel any person to render any bonded labour or other form of
forced labour.
Section 5 invalidates any custom or tradition
or any contract agreement or other instrument by virtue of which any person or
any member of the family or dependent of such person is required to do any work
or render any service as a bonded labourer. Section 6 provides inter alia that
on the commencement of the Act, every obligation of a bonded labourer to repay
and bonded debt or such part of any bonded debt as remains unsatisfied
immediately before such commencement, shall be deemed to have been
extinguished.
128 There are certain other consequential
provisions in Section 7 to 9 but it is not necessary to refer to them. Sections
10 to 12 impose a duty on every District Magistrate and every officer to whom
power may be delegated by him, to inquire whether, after the commencement of
the Act, any bonded labour system or any other form of forced labour is being
enforced by or on behalf of, any person resident within the local limits of his
jurisdiction and if, as a result of such inquiry, any person is found to be
enforcing the bonded labour system or any other system of forced labour, he is
required forthwith to take the necessary action to eradicate the enforcement of
such forced labour. Section 15 provides for Constitution of a Vigilance
Committee in each District and each sub-division of a District and sets out
what shall be the composition of each Vigilance Committee. The functions of the
Vigilance Committee are set out in Section 14 and among other things, that
Section provinces that the Vigilance Committee shall be responsible inter alia
to advise the District Magistrate as to the efforts made and action taken, to
ensure that the provisions of the Act or any Rule made thereunder are properly
implemented, to provide for the economic and social rehabilitation of the freed
bonded labourers and to keep an eye on the number of offences of which
cognizance has been taken under the Act.
Then comes Section 15 which lays down that
whenever any debt is claimed by any labourer or a Vigilance Committee to be a
bonded debt, the burden of proof that such debt is not a bonded debt shall lie
on the creditor. These are some of the material provisions of the Bonded Labour
System (Abolition) Act 1976 which need to be considered.
It is a matter of regret that though Section
13 provides for constitution of a Vigilance Committee in each District and each
subdivision of a District, the Government of Haryana, for some reason or the
other, did not constitute any Vigilance Committee until its attention was drawn
to this requirement of the law by this Court. It may be that according to the
Government of Haryana there were not at any time any bonded labourers within
its territories, but even so Vigilance Committees are required by Section 13 to
be constituted because the function of the Vigilance Committee is to identify
bonded labourers, if there are any, and to free and rehabilitate them and it
would not be right for the State Government not to constitute Vigilance
Committees on the assumption that there are no bonded labourers at all.
But we are glad to find that the Government
of Haryana has now constituted a Vigilance Committee in each District. It does
not appear from the record whether a Vigilance Committee has been constituted
also in each sub-division of a District but we 129 have no doubt that the
Government of Haryana will without any delay and at any rate within six weeks
from today constitute a Vigilance Committee in each sub-division and thus
comply with the requirement of Section 13 of the Act.
We may point out that in constituting Vigilance
Committee in each-District and sub-division, the Haryana Government would do
well to include representatives of non-political social action groups operating
at the grass root level, for it is only through such social action groups and
voluntary agencies that the problem of identification of bonded labour can be
effectively solved.
It was contended by the learned Additional
Solicitor General on behalf of the State of Haryana that in the stone quarries
and stone crushers there might be forced labourers but they were not bonded
labourers within the meaning of that expression as used in the Act, since a
labourer would be a bonded labourer only if he has or is presumed to have
incurred a bonded debt and there was nothing in the present case to show that
the workmen employed in the stone quarries and stone crushers had incurred or
could be presumed to have incurred any bonded debt. It was not enough,
contended the learned Additional Solicitor General the petitioner merely to
show that the workmen were providing forced labour in that they were not
allowed to leave the premises of the establishment, but it was further
necessary to show that they were working under the bonded labour system. The
learned Additional Solicitor General also submitted that in any event, even if
the workmen filed affidavits to the effect that they had taken advances from
thekedar or jamadar and or mine lessees and/or stone crusher owners and they
were not allowed to leave the premises of the establishment until the advances
were paid off, that would not be enough evidence for the Court to hold that
they were bonded labourers, because the mine-lessees and stone crusher owners
had no opportunity to cross-examine the workmen making such affidavits. This
contention was seriously pressed by the learned Additional Solicitor General on
behalf of the State of Haryana, but as we shall presently show, there is no
substance in this contention. We may point out that in the course of the
arguments we did suggest to the learned Additional Solicitor General that even
if the workmen were not bonded labourers in the strict sense of the term but
were merely forced to provide labour, should the State Government not accept
liability for freeing and rehabilitating them, particularly in view of the
Directive Principles of State Policy. The State of Haryana was however not
prepared to come forward with any proposal in this behalf.
130 Now it is clear that bonded labour is a
form of forced labour and Section 12 of the Bonded Labour System (Abolition)
Act 1976 recognises this self-evident proposition by laying a duty on every
District Magistrate and every officer specified by him to inquire whether any
bonded labour system or any other form of forced labour is being enforced by or
on behalf of any person and, if so, to take such action as may be necessary to
eradicate the enforcement of such forced labour. The thrust of the Act is
against the continuance of any form of forced labour. It is of course true
that, strictly speaking, a bonded labourer means a labourer who incurs or has
or is presumed to have incurred a bonded debt and a bonded debt means an
advance obtained or presumed to have been obtained by a bonded labourer under
or in pursuance of the bonded labour system and it would therefore appear that
before a labourer can be regarded as a bonded labourer, he must not only be
forced to provide labour to the employer but he must have also received an
advance or other economic consideration from the employer unless he is made to
provide forced labour in pursuance of any custom or social obligation or by
reason of his birth in any particular caste or community. It was on the basis
of this definitional requirement that the learned Additional Solicitor General
on behalf of the State of Haryana put forward the argument that even if the
workmen employed in the stone quarries and stone crushers were being compelled
to provide forced labour, they were not bonded labourers, since it has not
shown by them or by the petitioner that they were doing so in consideration of
an advance or other economic consideration received from the mine-lessees and
owners of stone crushers. Now if this contention of the learned Additional
Solicitor General were well-founded, it would become almost impossible to
enforce the provisions of the Bonded Labour System (Abolition) Act 1976 because
in every case where bonded labourers are sought to be identified for the
purpose of release and rehabilitation under the provisions of the Act, the
State Authorities as also the employer would be entitled to insist that the
bonded labourers must first prove that they are providing forced labour in
consideration of an advance or other economic consideration received by them
and then only they would be eligible of the benefits provided under the Act and
this would make it extremely difficult, if not impossible, for the labourers to
establish that they are bonded labourers because they would have no evidence at
all to prove that any advance or economic consideration was provided to them by
the employer and since employment of bonded labourers is a penal offence under
the Act the employer would immediately, without any hesitation, disown having
given any advance or economic 131 consideration to the bonded labourers. It is
indeed difficult to understand how the State Government which is
constitutionally mandated to bring about change in the life conditions of the
poor and the down-trodden and to ensure social justice to them, could possibly
take up the stand that the labourers must prove that they are made to provide
forced labour in consideration of an advance or other economic consideration
received from the employer and are therefore bonded labourers. It is indeed a
matter of regret that the State Government should have insisted on a formal,
rigid and legalistic approach in the matter of a statute which is one of the
most important measures for ensuring human dignity to these unfortunate
specimens of humanity who are exiles of civilization and who are leading a life
of abject misery and destitution. It would be cruel to insist that a bonded
labourer in order to derive the benefits of this social welfare legislation,
should have to go through a formal process of trial with the normal procedure
for recording of evidence. That would be a totally futile process because it is
obvious that a bonded labourer can never stand up to the rigidity and formalism
of the legal process due to his poverty, illiteracy and social and economic
backwardness and if such a procedure were required to be followed, the State
Government might as well obliterate this Act from the statute book. It is now
statistically established that most of bonded labourers are members of
Scheduled Castes and Scheduled Tribes or other backward classes and ordinary
course of human affairs would show, indeed judicial notice can be taken of it,
that there would be no occasion for a labourer to be placed in a situation
where he is required to supply forced labour for no wage or for nominal wage,
unless he has received some advance or other economic consideration from the
employer and under the pretext of not having returned such advance or other
economic consideration, he is required to render service to the employer or is
deprived of his freedom of employment or of the right to move freely wherever
he wants.
Therefore, whenever it is shown that a
labourer is made to provide forced labour, the Court would raise a presumption
that he is required to do so in consideration of an advance or other economic
consideration received by him and he is therefore a bonded labourer. This
presumption may be rebutted by the employer and also by the State Government if
it so chooses but unless and until satisfactory material is produced for
rebutting this presumption, the Court must proceed on the basis that the
labourer is a bonded labourer entitled to the benefit of the provisions of the
Act. The State Government cannot be permitted to repudiate its obligation to
identify, release and rehabilitate the bonded labourers on the plea that though
the 132 concerned labourers may be providing forced labour, the State
Government does not owe any obligation to them unless and until they show in an
appropriate legal proceeding conducted according to the rules of adversary
system of justice, that they are bonded labourers.
The first question that arises in regard to
the implementation of the Bonded Labour System (Abolition) Act 1976 is that of
identification of bonded labour. One major handicap which impedes the
identification of bonded labour, is the reluctance of the administration to
admit the existence of bonded labour, even where it is prevalent. It is
therefore necessary to impress upon the administration that it does not help to
ostrich-like bury its head in the sand and ignore the prevalence of bonded
labour, for it is not the existence of bonded labour that is a slur on the
administration but its failure to eradicate it and moreover not taking the
necessary steps for the purpose of wiping out this blot on the fair name of the
State is a breach of its constitutional obligation. We would therefore direct
the Government of Haryana and also suggest to the other State Governments, to
take steps to sensitise the officers concerned with the implementation of the
Act to this acute human problems and its socioeconomic parameters. Moreover it
may be noted that the District Magistrates have a central role to play under
the provisions of the Act and the State Governments would therefore do well to
instruct the District Magistrates to take up the work of identification of
bonded labour as one of their top priority tasks. There are certain areas of
concentration of bonded labour which can be easily identified on the basis of
various studies and reports made by governmental authorities, social action
groups and social scientists from time to time. These areas of concentration of
bonded labour are mostly to be found in stone quarries, brick kilns and amongst
agricultural landless labourers and such areas must be mapped out by each State
Government and task forces should be assigned for identification and release of
bonded labour. Labour camps should be held periodically in these areas with a view
to educating the labourers and for this purpose, the assistance of the National
Labour Institute may be taken, because the National Labour Institute has the
requisite expertise and experience of holding such camps and it should be
associated with the organisation and conduct of such camps and in each such
camp, individuals with organisational capability or potential should be
identified and given training in the work of identification and release of
bonded labour. More importantly non-political social action groups and
voluntary agencies and particularly those with a record of honest and competent
service for Scheduled Castes and Scheduled 133 Tribes, agricultural labourers
and other unorganised workmen should be involved in the task of identification
and release of bonded labourers, for it is primarily through such social action
groups and voluntary agencies alone that it will be possible to eradicate the
bonded labour system, because social action groups and voluntary agencies
comprising men and women dedicated to the cause of emancipation of bonded
labour will be able to penetrate through the secrecy under which very often
bonded labourers are required to work and discover the existence of bonded
labour and help to identify and release bonded labourers. We would therefore
direct the Vigilance Committees as also the District Magistrates to take the
assistance of non-political social action groups and voluntary agencies for the
purpose of ensuring implementation of the provisions of the Bonded Labour
System (Abolition) Act 1976.
The other question arising out of the
implementation of the Bonded Labour System (Abolition) Act 1976 is that of
rehabilitation of the released bonded labourers and that is also a question of
the greatest importance, because if the bonded labourers who are identified and
freed, are not rehabilitated, their condition would be much worse than what it
was before during the period of their serfdom and they would become more
exposed to exploitation and slide back once again into serfdom even in the
absence of any coercion.
The bonded labourer who is released would
prefer slavery to hunger, a world of 'bondage and (illusory) security' as
against a world of freedom and starvation. The State Governments must therefore
concentrate on rehabilitation of bonded labour and evolve effective programmes
for this purpose. Indeed they are under an obligation to do so under the
provisions of the Bonded Labour System (Abolition) Act 1976. It may be pointed
out that the concept of rehabilitation has the following four main features as
admirably set out in the letter dated 2nd September 1982 addressed by the
Secretary. Ministry of Labour, Government of India to the various States
Governments:
(i) Psychological rehabilitation must go side
by side with physical and economic rehabilitation;
(ii) The physical and economic rehabilitation
has 15 major components namely allotment of house-sites and agricultural land,
land development, provision of low cost dwelling units, agriculture, provision
of credit, horticulture, animal husbandry, training for acquiring 134 new
skills and developing existing skills, promoting traditional arts and crafts,
provision of wage employment and enforcement of minimum wages, collection and
processing of minor forest produce, health medical care and sanitation supply
of essential commodities, education of children of bonded labourers and
protection civil rights;
(iii) There is scope for bringing about integration
among the various central and centrally sponsored schemes and the on-going
schemes of the State Governments for a more qualitative rehabilitation.
The essence of such integration is to avoid
duplication i.e. pooling resources from different sources for the same purpose.
It should be ensured that while funds are not drawn from different sources for
the same purpose drawn from different sectors for different components of the
rehabilitation scheme are integrated skillfully;
and (iv) While drawing up any
scheme/programme of rehabilitation of freed bonded labour, the latter must
necessarily be given the choice between the various alternatives for their
rehabilitation and such programme should be finally selected for execution as would
need the total requirements of the families of freed bonded labourers to enable
them to cross the poverty line on the one hand and to prevent them from sliding
back to debt bondage on the other.
We would therefore direct the Government of
Haryana to draw up a scheme on programme for "a better and more meaningful
rehabilitation of the freed bonded labourers" in the light of the above
guidelines set out by the Secretary to the Government of India, Ministry of
Labour in his letter dated 2nd September 1982. The other State Governments are
not parties before us and hence we cannot give any direction to them, but we
hope and trust that they will also take suitable steps for the purpose of
securing identification, release and rehabilitation of bonded labourers on the
lines indicated by us in this Judgment.
We are not at all satisfied that the stand
taken on behalf of the State of Haryana that there is no bonded labour at all
in the stone 135 quarries and stone crushers is correct. The Report of M/s
Ashok Srivastava and Ashok Panda shows that, according to the statements given
by some of the workers, they were not allowed to leave the stone quarries and
were providing forced labour and this Report also stated that several persons
working in the Ghodhokor and Lakarpur stone quarries were forcibly kept by the
contractors and they were not allowed to move out of their places and were
bonded labourers. The petitioner also filed the affidavits of a large number of
workers on 24th August 1982, each of them stating that he is under heavy debt
of the thekedar who does not allow him to leave the premises without settling
the account. We cannot ignore this material which has been placed before us and
unquestioningly accept the statement made on behalf of the State of Haryana
that there is no bonded labour in the stone quarries and stone crushers. But at
the same time, we do not think that it would be right for us on the basis of
this material to come to a definite finding that these workers whose names are
given in the Report of M/s Ashok Srivastava and Ashok Panda or who have filed
affidavits are providing forced labour or are bonded labourers. It is necessary
to direct a further inquiry for the purpose of ascertaining whether any of the
labourers working in the stone quarries and stone crushers in Faridabad
District are bonded labourers in the light of the law laid down by us in this
judgment. We would therefore direct Shri Laxmi Dhar Misra, Joint Secretary in
the Ministry of Labour, Government of India, who has considerable experience of
the work of identification, release and rehabilitation of bonded labourers, to
visit the stone quarries and stone crushers in Faridabad District and ascertain
by enquiring from the labourers in each stone quarry or stone crusher whether
any of them are being forced to provide labour and are bonded laboureres. While
making this inquiry, Shri Laxmi Dhar Misra will take care to see that when he
interviews the labourers either individually or collectively, neither the
mine-lessees or owners of stone crushers nor the thekedar of jamadar nor anyone
else is present. Shri Laxmi Dhar Misra will prepare in respect of each stone
quarry or stone crusher a statement showing the names and particulars of those
who, according to the inquiry made by him, are bonded labourers and he will
also ascertain from them whether they want to continue to work in the stone
quarry or stone crusher or they want to go back to their homes and if they want
to go back, the District Magistrate of Faridabad will on receipt of the
statement from Shri Laxmi Dhar Misra, make necessary arrangements for releasing
them and provide for their transportation back to their hromes and for this
purpose the State Government shall make the requisite funds 136 available to
the District Magistrate. Shri Laxmi Dhar Misra will also enquire from the
mine-lessees and owners of stone crushers as also from the thekedar or jamadar
whether there are any advances made by them to the labourers working in the
stone quarry or stone crusher and if so, whether there is any documentary
evidence in support of the same and he will also ascertain what, according to
the mine-lessees and owners of stone crushers or the jamadar or thekedar, are
the amounts of loans still remaining outstanding against such labourers. Shri
Laxmi Dhar Misra will submit his report to this Court on or before 28th
February 1984. We may make it clear that the object and purpose of this inquiry
by Shri Laxmi Dhar Misra is not to fasten any liability on the minelessees and
owners of stone crushers and the jamadar or thekedar on the basis of the Report
of Shri Laxmi Dhar Misra but to secure the release and repatriation of those
labourers who claim to be bonded labourers and who want to leave the employment
and go somewhere else. We may point out that the problem of bonded labourers is
a difficult problem because unless, on being freed from bondage, they are
provided proper and adequate rehabilitation, it would not help to merely secure
their release. Rather in such cases it would be more in their interest to
ensure proper working conditions with full enjoyment of the benefits of social
welfare and labour laws so that they can live a healthy decent life. But of
course this would only be the next best substitute for release and
rehabilitation which must receive the highest priority.
So far as implementation of the provisions of
the Minimum Wages Act 1948 is concerned we would direct the Central Government
and State of Haryana to take necessary steps for the purpose of ensuring that
minimum wages are paid to the workmen employed in the stone quarries and stone
crushers in accordance with the principles laid down by us in this judgment. It
may not be a matter of any consequence as to which mode of payment is followed,
whether the workmen are paid on truck basis or on any other basis, but what is
essential is and that is what the Minimum Wages Act 1948 requires that the
workmen must not receive any wage less than the minimum wage. Even if payment
of wages is made to the workmen on truck basis, a formula would have to be
evolved by the Central Government and the State of Haryana to ensure that the
workmen receive no less than the minimum wage and to facilitate this formula it
would have to be provided that the expenses on explosives and drilling holes
shall be borne by the mine-lessees and or the jamadar or thekedar and the work
of drilling holes and shot firing shall be entrusted only 137 to those who have
received requisite training under the Mines Vocational Training Rules 1966. We
would direct the Central Government and the State of Haryana to take the
necessary steps in this behalf so that within the shortest possible time and as
far as possible within six weeks from today the workmen start actually
receiving in their hands a wage not less than the minimum wage. If payment of
wages is continued to be made on truck basis, it is necessary that the
appropriate officer of the Central Enforcement Machinery must determine the
measurement of each truck as to how many cubic feet of stone it can contain and
print or inscribe such measurement on the truck, so that appropriate and
adequate wage is received by the workmen for the work done by them and they are
not cheated out of their legitimate wage. We would also direct the inspecting
officers of Central Enforcement Machinery to carry out surprise checks for the
purpose of ensuring that the trucks are not loaded beyond their true
measurement capacity. Such surprise checks shall be carried out by the
inspecting officers of the Central Enforcement Machinery at least once in a
week and if it is found that the trucks are loaded in excess of their true
measurement capacity and the workmen are thereby deprived of their legitimate
wages, the inspecting officers carrying out such checks will immediately bring
this fact to the notice of the appropriate authorities for initiation of
necessary action against the defaulting mine owners and/or thekedar or jamadar.
We would also direct the Central Government and the State of Haryana to ensure
that payment of wage is made directly to the workmen by the mine-lessees and
stone-crusher owners or at any rate in the presence of a representative of the mine-lessees
and stone crushers owners and the inspecting officers of the Central Government
as also of the State of Haryana shall carry out periodic checks in order to
ensure that payment of the stipulated wage is made to the workmen. Shri Laxmi
Dhar Misra will also, while holding an inquiry pursuant to this order,
ascertain, by carrying out sample check, whether the workmen employed in any
particular stone quarry or stone crusher are actually in receipt of wage not
less than the minimum wage and whether the directions given by us in this order
are being implemented by the authorities.
There are also two other matters in respect
of which it is necessary for us to give directions. The first is that, apart
from poverty and helplessness, one additional reason why the workmen employed
in stone quarries and stone crushers are deprived of the rights and benefits
conferred upon them under various social welfare laws enacted for their benefit
and are subjected to deception and 138 exploitation, in that they are totally
ignorant of their rights and entitlements. It is this ignorance which is to
some extent responsible for the total denial of the rights and benefits
conferred upon them. It is therefore necessary to educate the workmen employed
in stone quarries and stone crushers so that they become aware as to what are
the rights and benefits to which they are entitled under the various social
welfare laws. The knowledge of their rights and entitlements will give them the
strength to fight against their employers for securing their legitimate dues
and it will go a long way towards reducing, if not eliminating, their
exploitation. We have fortunately in our country the Central Board of Workers
Education which is entrusted with the function of educating workers in their rights
and entitlements and we would therefore direct the Central Board of Workers
Education to organise periodic camps near the sites of stone quarries and stone
crushers in Faridabad District for the purpose of creating awareness amongst
the workmen about the rights and benefits conferred upon them by social welfare
laws. This educational campaign shall be taken up by the Central Board of
Workers Education as early as possible and the progress made shall be reported
to this Court by the Central Board of Workers Education from time to time, at
least once in three months.
The other matter in regard to which we find
it necessary to give directions relates to the tremendous pollution of air by
dust thrown out as a result of operation of the stone crushers. When the stone
crushers are being operated, they continually throw out large quantities of
dust which not only pollute the air, but also affect the visibility and
constitute a serious health hazard to the workmen. The entire air in the area
where stone crushers are being operated is heavily laden with dust and it is
this air which the workmen breathe day in and day out and it is no wonder that
many of them contract tuberculosis. We would therefore direct the Central
Government and the State of Haryana to immediately take steps for the purpose
of ensuring that the stone crushers owners do not continue to foul the air and
they adopt either of two devices, namely, keeping a drum of water above the
stone crushing machine with arrangement for continues spraying of water upon it
or installation of dust sucking machine. This direction shall be carried out by
the Central Government and the State of Haryana in respect of each stone
crusher in the Faridabad District and a compliance report shall be made to this
Court on or before 28th February, 1984.
So far as the provisions of the Contract
Labour Act and the 139 Inter-State Migrant Workmen Act are concerned, we have
already discussed those provisions and pointed out in what circumstances those
provisions would be applicable in relation to workmen employed in the stone
quarries and stone crushers. It is not possible for us on the material on
record to come to a definite finding whether the provisions of the Contract
Labour Act and the Inter-State Migrant Workmen Act are applicable in the case
of any particular stone quarry or stone crusher, because it would be a matter
for investigation and determination, particularly since it has been disputed by
the Central Government that there are any inter-State migrant workmen at all in
any of the stone quarries or stone crushers. We would therefore direct Shri
Laxmi Dhar Misra to conduct an inquiry in each of the stone quarries and stone
crushers in Faridabad District for the purpose of ascertaining whether there
are any contract labourers or inter-State migrant workmen in any of these stone
quarries or stone crushers, in the light of the interpretation laid down by us
in this judgment, and, if so, what is the number of such contract labourers or
inter-State migrant workmen in each stone quarry or stone crusher. If Shri
Laxmi Dhar Misra finds as a result of his inquiry that the Contract Labour Act
and/or the Inter-State Migrant Workmen Act is applicable, he will make a report
to that effect to the Court on or before 15th February 1984. We may make it
clear that this inquiry by Shri Laxmi Dhar Misra is not directed for the
purpose of fastening any liability on the mine-lessees and stone crusher owners
or the jamadars and thekedars proprio vigore on the basis of such report, but
merely for the purpose of considering whether a prima facie case exists on the
basis of which action can be initiated by the Central Government, in which the
mine- lessees and stone crusher owners and/or the jamadars or thekedars would
have an opportunity of contesting the allegation that the Contract Labour Act
and/or the Inter- State Migrant Workmen Act applies to their stone quarry or
stone crusher and defending such action.
We may now take up a few specific complaints
urged on behalf of the workmen. The first complaint relates to the failure to
provide pure drinking water to the workmen in most of the stone quarries and
stone crushers. The Report of M/s Ashok Srivastava and Ashok Panda as also the
Report made by Dr. Patwardhan shows that pure drinking water is not made
available to the workmen. In Lakarpur mines the workmen are obliged to take
water "from a shallow rivulet covered with thick algae" and that too,
"after a walk over a dangerously steep incline". The same situation
also prevails in the mine in the Gurukul area as also in the Anangpur mines and
in these mines 140 "quite often the upstream and the further down-stream
of the rivulet get blocked due to mining of stone and the water becomes
stagnant" and the workmen have no other option but to use this water for
drink king purposes. It is true that in the lower reaches of Lakarpur near the
road there is a tube-well from which the workmen get water but that is only
when they are permitted to do so by the persons operating it. The Report of Dr.
Patwardhan also points out that it is the children or women of the workmen who
are usually engaged in the work of transporting water from distant places like
the tubewell but they are not paid anything for this work which is being done
by them. Neither any mine-lessee or stone crusher owner nor any jamadar or
thekedar regards it as his duty to make provision for drinking water for the
workmen nor does any officer of the Central Government or of the State
Government bother to enforce the provisions of law in regard to supply of
drinking water. It is clear that, quite apart from the provisions of the
Contract Labour Act and the Inter-State Migrant Workmen Act, there is a
specific prescription in section 19 of the Mines Act 1952 and Rules 30 to 32 of
the Mines Rules 1955 that the mine-lessees and stone crusher owners shall make
effective arrangements for providing and maintaining at suitable points
conveniently situated a sufficient supply of cool and wholesome drinking water
for all workmen employed in the stone quarries and stone crushers. The quality
of drinking water to be provided by them has to be on a scale of at least 2
litres for every person employed at any one time and such drinking water has to
be readily available at conveniently accessible points during the whole of the
working time. Rule 31 requires that if drinking water is not provided from taps
connected with constant water supply system, it should be kept cool in suitable
vessels sheltered from weather and such vessels must be emptied, cleaned and
refilled every day and steps have to be taken to preserve the water, the
storage vessels and the vessels used for drinking water in clean and hygienic
condition. The inspectors may also by order in writing require the mine-lessees
and stone crusher owners to submit with the least possible delay a certificate
from a competent health officer or analyst as to the fitness of the water for
human consumption. This obligation has to be carried out by the mine-lessees
and stone crusher owners and it is the responsibility of the Central Government
as also of the State of Haryana to ensure that this obligation is immediately
carried out by the mine-lessees and stone crusher owners. We would therefore
direct the Central Government and the State of Haryana to ensure immediately
that the mine-lessees and stone crusher owners start supplying pure drinking
water to the workmen on a scale of at least 2 litres for every 141 workman by
keeping suitable vessels in a shaded place at conveniently accessible points
and appointing someone, preferably, amongst the women and/or children of the
workmen to look after these vessels. The Central Government and the State of
Haryana will also take steps for ensuring that the vessels in which drinking
water is kept by the mine-lessees and stone crusher owners are kept in clea and
hygienic condition and are emptied, cleaned and refilled every day and they
shall also ensure that minimum wage is paid to the women and/or children who look
after the vessels. The Chief Labour Commissioner, the Deputy Chief Labour
Commissioner, the Assistant Labour Commissioner and the Labour Enforcement
Officers of the Government of India as also the appropriate inspecting officers
of the Government of Haryana shall supervise strictly the enforcement of this
obligation and initiate necessary action if there is any default. The Central
Government as also the State of Haryana will also immediately direct the
mine-lessees and stone-crusher owners to start obtaining drinking water from
any unpolluted source or sources of supply and to transport it by tankers to
the works site with sufficient frequency so as to be able to keep the vessels
filled up for supply of clean drinking water to the workmen. The Chief Administrator,
Faridabad Complex is directed to set up the points from where the mine-lessees
and stone crusher owners can, if necessary, obtain supply of potable water for
being carried by tankers.
These directions given by us shall be
promptly and immediately carried out by the appropriate authorities and Shri
Laxmi Dhar Misra will, while conducting his inquiry, also ascertain whether
these directions have been carried out and pure drinking water has been made
available to the workmen in accordance with these directions and submit a
report in that behalf to the Court on or before 28th February 1984.
The second complaint related to the failure
to provide conservancy facilities to the workmen in the stone quarries and
stone crushers. Section 20 of the Mines Act 1952 requires that there shall be
provided separately for males and females a sufficient number of latrines and
urinals of prescribed types so situated as to be convenient and accessible to
persons employed in the stone quarries and stone crushers and all such latrines
and urinals shall be adequately lighted, ventilated and at all times maintained
in a clean and sanitary condition. What should be the number of latrines and
urinals to be provided in each stone quarry or stone crusher and what should be
the standard of construction to be complied with in erecting the latrines are
provided in Rules 33 to 35 of the Mines Rules 1955 and Rule 36 provides that a
sufficient number of water 142 taps conveniently accessible shall be provided
in or near such latrines and if piped water supply is not available, then a
sufficient quantity of water shall be hept stored in suitable receptacles near
such latrines. The Report of Dr. Patwardhan shows that there is not a trace of
such conservancy facilities in any of the stone quarries and the "vast
open mountain dug-up without a thought as to environment is used by men and
women and children as one huge open latrine" where the only privacy is
that provided by the "curtain drawn by the turned down eyes of women and
the turned away eyes of men". This statement made in the Report of Dr.
Patwardhan has not been denied in any of the affidavits in reply filed on
behalf of the respondents. We would therefore direct the Central Government as
also the State Government to ensure that conservancy facilities in the shape of
latrines and urinals in accordance with the provisions contained in Section 20
of the Mines Act 1950 and Rules 33 to 36 of the Mines Rules 1955 are provided
immediately by mine lessees and owners of stone crushers.
This direction shall be carried out at the
earliest without any delay and Shri Laxmi Dhar Misra will, while making his
inquiry, ascertain whether the mine-lessees and owners of stone crushers in
each of the stone quarries and stone crushers visited by him have complied with
this direction and a Report in that behalf shall be submitted by Shri Laxmi
Dhar Misra on or before 28th February, 1984.
There was also one other complaint made on
behalf of the workmen and that related to the absence of any medical or first
aid facilities. The Report of Dr. Patwardhan shows that no such facilities are
provided to the workmen employed in the stone quarries and stone crushers and
this finding was not seriously disputed on behalf of the respondents. It is
indeed regrettable that despite there being a mandatory provision for medical
and first aid facilities in Section 21 of the Mines Act 1952 and Rules 40 to
45A of the Mines Rules 1955, no medical or first aid facilities seem to be
provided in the stone quarries and stone crushers. We would therefore direct
the Central Government as also the State Government to take steps to
immediately ensure that proper and adequate medical and first aid facilities as
required by Section 21 of the Mines Act 1952 and Rules 40 to 45A of the Mines
Rules 1955 are provided by the mine-lessees and owners of stone quarries to the
workmen. Rule 45 provides that every shot firer and blaster in a mine shall
hold first aid qualification specified in Rule 41 and shall carry, while on
duty, a first aid outfit consisting of one large sterilized dressing and an
amul of tincture of iodine or other suitable antiseptic. But we find that this
requirement is also 143 not observed by the mine-lessees and stone crusher
owners and the workmen are required to carry on blasting with explosives
without any first aid qualification or first aid outfit. We would therefore
direct the Central Government as also the State of Haryana to ensure that every
workman who is required to carry out blasting with explosives should not only
be trained under the Mines Vocational Training Rules 1966 but should also hold
first aid qualification and he should carry a first aid outfit, while on duty,
as required by Rule 45. The Central Government and the State Government will
also take steps to secure that proper and adequate medical treatment is
provided by the mine-lessees and owners of stone crushers to the workmen
employed by them as also to the members of their families and such medical
assistance should be made available to them without any cost of transportation
or otherwise and the cost of medicines prescribed by the doctors must be
reimbursed to them. Where the workmen or the members of their families meet
with any serious accident involving fracture or possibility of disability or
suffer from any serious illness, the mine- lessees and owners of stone crushers
should be required by the Central Government as also the State Government to
make arrangements for hospitalisation of such workmen or members of their
families at the cost of the mine-lessees and/or owners of stone crushers. We
would also direct the Central Government and the State of Haryana to ensure
that the provisions of the Maternity Benefit Act, 1961, the Maternity Benefit
(Mines and Circus) Rules 1963 and the Mines Creche Rules, 1966, where
applicable in any particular stone quarries or stone crushers,, are given
effect to by the mine-lessees and owners of stone crushers. These directions
given by us shall also be carried out at the earliest without any undue delay
and Shri Laxmi Dhar Misra, while conducting his inquiry, will ascertain whether
these directions have been complied with and the necessary medical and first
aid facilities including hospitalization have been provided to the workmen and
the members of their families.
We may point out that the above directions in
regard to provision of health and welfare facilities have been given by us only
with reference to the provisions of the Mines Act 1952 and the Mines Rules 1955
which are admittedly applicable in the case of stone quarries and stone
crushers.
We have not given any directions for
enforcement of the provisions of the Contract Labour Act and the Inter-State
Migrant Workmen Act because it has yet to be determined whether these two
statutes are applicable in any particular stone quarry or stone crusher. It is
also necessary to point out that whenever any 144 workman suffers any injury or
contracts any disease in the course of employment, he is entitled to
compensation under the Workmens' Compensation Act 1923, but unfortunately he is
very often not in a position to approach the appropriate court or authority for
enforcing his claim to compensation and even if he files such a claim, it takes
a long time before such claim is disposed of by the court or authority.
We would therefore direct that as soon as any
workman employed in a stone quarry or stone crusher receives injury or
contracts disease in the course of his employment, the concerned mine-lessee or
stone crusher owner shall immediately report this fact to the Chief Inspector
or Inspecting Officers of the Central Government and/or the State Government
and such Inspecting Officers shall immediately provide legal assistance to the
workman with a view to enabling him to file a claim for compensation before the
appropriate court or authority and they shall also ensure that such claim is
pursued vigorously and the amount of compensation awarded to the workman is
secured to him. We would like to impress upon the Court or Authority before
which a claim for compensation is filed by or on behalf of the workman to
dispose of such claim without any undue delay, since delay in the awarding of
compensation to the workman would only and to his misery and helplessness and
would be nothing sort of gross denial of justice to him. The Inspecting
Officers of the Central Government as also of the State Government will visit
each stone quarry or stone crusher at least once in a fortnight and ascertain
whether there is any workman who is injured or who is suffering from any
disease or illness, and if so, they will immediately take the necessary steps
for the purpose of providing medical and legal assistance and if they fail to
do so, the Central Government and the State Government, as the case may be,
shall take unnecessary action against the defaulting Inspecting Officer or
Officers.
We have given these directions to the Central
Government and the State of Haryana and we expect the Central Government and
the State of Haryana to strictly comply with these directions. We need not
state that if any of these directions is not properly carried out by the
Central Government or the State of Haryana, we shall take a very serious view
of the matter, because we firmly believe that it is no use having social
welfare laws on the statue book if they are not going to be implemented. We must
not be content with the law in books but we must have law in action. If we want
our democracy to be a participatory democracy, it is necessary that law must
not only speak justice but must also deliver justice.
Before parting with this case, we may point
out, and this has 145 come to our notice not only through the Report of Dr. Patwardhan
but also otherwise, that the magistrates and judicial officers take a very
lenient view of violations of labour laws enacted for the benefits of the
workmen and let off the defaulting employers with small fines. There have also
been occasions where the magistrate and judicial officers have scotched
prosecutions and acquitted or discharged the defaulting employers on hyper
technicalities.
This happens largely because the magistrates
and judicial officers are not sufficiently sensitised to the importance of
observance of labour laws with the result that the labour laws are allowed to
be ignored and breached with utter callousness and indifference and the workmen
begin to feel that the defaulting employers can, by paying a fine which hardly
touches their pocket, escape from the arm of law and the labour laws supposedly
enacted for their benefit are not meant to be observed but are merely
decorative appendages intended to assuage the conscience of the workmen. We
would therefore strongly impress upon the magistrates and judicial officers to
take a strict view of violation of labour laws and to impose adequate
punishment on the erring employers so that they may realise that it does not
pay to commit a breach of such laws and to deny the benefit of such laws to the
workmen.
We accordingly allow this writ petition and
issue the above directions to the Central Government and the State of Haryana
and the various authorities mentioned in the preceding paragraphs of this
judgment so that these poor unfortunate workmen who lead a miserable existence
in small hovels, exposed to the vagaries of weather, drinking foul water,
breathing heavily dust-laden polluted air and breaking and blasting stone all
their life, may one day be able to realise that freedom is not only the
monopoly of a few but belongs to them all and that they are also equally
entitled along with others to participate in the fruits of freedom and
development. These directions may be summarized as follows (1) The Government
of Haryana will, without any delay and at any rate within six weeks from today,
constitute Vigilance Committee in each sub- division of a district in
compliance with the requirements of section 13 of the Bonded Labour System
(Abolition) Act 1976 keeping in view the guidelines given by us in this
judgment.
(2) The Government of Haryana will instruct
the district magistrates to take up the work of identification of bonded 146
labour as one of their top priority tasks and to map out areas of concentration
of bonded labour which are mostly to be found in stone quarries and brick kilns
and assign task forces for identification and release of bonded labour and
periodically hold labour camps in these areas with a view to educating the
labourers inter alia with the assistance of the National Labour Institute.
(3) The State Government as also the
Vigilance Committees and the district magistrates will take the assistance of
non-political social action groups and voluntary agencies for the purpose of
ensuring implementation of the provisions of the Bonded Labour System
(Abolition) Act, 1976.
(4) The Government of Haryana will draw up
within a period of three months from today a scheme or programme for
rehabilitation of the freed bonded labourers in the light of the guidelines set
out by the Secretary to the Government of India, Ministry of Labour in his
letter dated 2nd September 1982 and implement such scheme or programme to the
extent found necessary.
(5) The Central Government and the Government
of Haryana will take all necessary steps for the purpose of ensuring that
minimum wages are paid to the workmen employed in the stone quarries and stone
crushers in accordance with the principles laid down in this judgment and this
direction shall be carried out within the shortest possible time so that within
six weeks from today, the workmen start actually receiving in their hands a
wage not less than the minimum wage.
(6) If payment of wages is made on truck
basis, the Central Government will direct the appropriate officer of the
Central Enforcement Machinery or any other appropriate authority or officer to
determine the measurement of each truck as to how many cubic ft. of stone it
can contain and print or inscribe such measurement on the truck so that appropriate
and adequate wage is received by the workmen for the work done by them and they
are not cheated out of their legitimate wage.
(7) The Central Government will direct the
inspecting officers 147 of the Central Enforcement Machinery or any other appropriate
inspecting officers to carry out surprise checks at least once in a week for
the purpose of ensuring that the trucks are not loaded beyond their true
measurement capacity and if it is found that the trucks are loaded in excess of
the true measurement capacity, the inspecting officers carrying out such checks
will immediately bring this fact to the notice of the appropriate authorities
and necessary action shall be initiated against the defaulting mine owners
and/or thekedars or jamadars.
(8) The Central Government and the Government
of Haryana will ensure that payment of wages is made directly to the workmen by
the mine lessees and stone crusher owners or at any rate in the presence of a
representative of the mine lesseses or stone crusher owners and the inspecting
officers of the Central Government as also of the Government of Haryana shall
carry out periodic checks in order to ensure that the payment of the stipulated
wage is made to the workmen.
(9) The Central Board of Workers Education
will organise periodic camps near the sites of stone quarries and stone
crushers in Faridabad district for the purpose of educating the workmen in the
rights and benefits conferred upon them by social welfare and labour laws and
the progress made shall be reported to this Court by the Central Board of
Workers Education at least once in three months.
(10) The Central Government and the
Government of Haryana will immediately take steps for the purpose of ensuring
that the stone crusher owners do not continue to foul the air and they adopt
either of two devices, namely,, keeping a drum of water above the stone
crushing machine with arrangement for continuous spraying of water upon it or
installation of dust sucking machine and a compliance report in regard to this
direction shall be made to this Court on or before 28th February, 1984.
(11) The Central Government and the
Government of Haryana will immediately ensure that the mine lessees and stone
crusher owners start supplying pure drinking water to the workmen on a scale of
at least 2 litres for every work 148 man by keeping suitable vessels in a
shaded place at conveniently accessible points and such vessels shall be kept
in clean and hygienic condition and shall be emptied, cleaned and refilled
every day and the appropriate authorities of the Central Government and the
Government of Haryana will supervise strictly the enforcement of this direction
and initiate necessary action if there is any default.
(12) The Central Government and the
Government of Haryana will ensure that minimum wage is paid to the women and/or
children who look after the vessels in which pure drinking water is kept for
the workmen.
(13) The Central Government and the
Government of Haryana will immediately direct the mine lessees and stone crusher
owners to start obtaining drinking water from any unpolluted source or sources
of supply and to transport it by tankers to the work site with sufficient
frequency so as to be able to keep the vessels filled up for supply of clean
drinking water to the workmen and the Chief Administrator, Faridabad Complex
will set up the points from where the mine lessees and stone crusher owners
can, if necessary, obtain supply of potable water for being carried by tankers.
(14) The Central Government and the State
Government will ensure that conservancy facilities in the shape of latrines and
urinals in accordance with the provisions contained in section 20 of the Mines
Act, 1950 and Rules 33 to 36 of the Mines Rules 1955 are provided at the latest
by 15th February 1984.
(15) The Central Government and the State
Government will take steps to immediately ensure that appropriate and adequate
medical and first aid facilities as required by section 21 of the Mines Act
1952 and Rules 40 to 45A of the Mines Rules 1955 are provided to the workmen
not later than 31st January 1984.
(16) The Central Government and the
Government of Haryana will ensure that every workmen who is required to carry
out blasting with explosives is not only trained under the 149 Mines Vocational
Training Rules 1966 but also holds first aid qualification and carries a first
aid outfit while on duty as required by Rule 45 of the Mines Rules 1955.
(17) The Central Government and the State
Government will immediately take steps to ensure that proper and adequate
medical treatment is provided by the mine lessees and owners of stone crushers
to the workmen employed by them as also to the members of their families free
of cost and such medical assistance shall be made available to them without any
cost of transportation or otherwise and the doctor's fees as also the cost of
medicines prescribed by the doctors including hospitalisation charges, if any,
shall also be reimbursed to them.
(18) The Central Government and the State
Government will ensure that the provisions of the Maternity Benefit Act 1961,
the Maternity Benefit (Mines and Circus) Rules 1963 and the Mines Creche Rules
1966 where applicable in any particular stone quarry or stone crusher are given
effect to by the mine lessees and stone crusher owners.
(19) As soon as any workman employed in a
stone quarry or stone crusher receives injury or contracts disease in the
course of his employment, the concerned mine lessee or stone crusher owner
shall immediately report this fact to the Chief Inspector or Inspecting
Officers of the Central Government and/or the State Government and such
Inspecting Officers shall immediately provide legal assistance. to the workman
with a view to enabling him to file a claim for compensation before the appropriate
court or authority and they shall also ensure that such claim is pursued
vigorously and the amount of compensation awarded to the workman is secured to
him.
(20) The Inspecting Officers of the Central
Government as also of the State Government will visit each stone quarry or
stone crusher at least once in a fortnight and ascertain whether there is any
workman who is injured or who is suffering from any disease or illness, and if
so, they will immediately take the necessary steps for the purpose of providing
medical and legal assistance.
150 (21) If the Central Government and the
Government of Haryana fail to ensure performance of any of the obligations set
out in clauses 11, 13, 14 and 15 by the mine lessees and stone crusher owners
within the period specified in those respective clauses, such obligation or
obligations to the extent to which they are not performed shall be carried out
by the Central Government and the Government of Haryana.
We also appoint Shri Laxmi Dhar Misra, Joint
Secretary in the Ministry of Labour, Government of India as a Commissioner for
the purpose of carrying out the following assignment.
(a) He will visit the stone quarries and
stone crushers in Faridabad district and ascertain by enquiring from the
labourers in each stone quarry or stone crusher in the manner set out by us
whether any of them are being forced to provide labour and are bonded labourers
and he will prepare in respect of each stone quarry or stone crusher a
statement showing the names and particulars of those who, according to the
inquiry made by him, are bonded labourers and he will also ascertain from them
whether they want to continue to work in the stone quarry or stone crusher or
they want to go away and if he finds that they want to go away, he will furnish
particulars in regard to them to the District Magistrate, Faridabad and the
District Magistrate will, on receipt of the particulars from Shri Laxmi Dhar
Misra, make necessary arrangements for releasing them and provide for their
transporation back to their homes and for this purpose the State Government
will make the requisite funds available to the District Magistrate.
(b) He will also enquire from the mine
lessees and owners of stone crushers as also from the thekedars and jamadars
whether there are any advances made by them to the labourers working in the
stone quarries or stone crushers and if so, whether there is any documentary
evidence in support of the same and he will also ascertain what, according to
the mine lessees and owners of stone crushers or the Jamadar or Thekedar, are
the amounts of loans still remaining outstanding against such labourers.
(c) He will also ascertain by carrying out
sample check whether the workmen employed in any particular stone quarry 151 or
stone crusher are actually in receipt of wage not less than the minimum wage
and whether the directions given in this order in regard to computation and
payment of minimum wage are being implemented by the authorities.
(d) He will conduct an inquiry in each of the
stone quarries and stone crushers in Faridabad District for the purpose of
ascertaining whether there are any contract labourers or inter-State migrant
workmen in any of these stone. quarries or stone crushers and if he finds as a
result of his inquiry that the Contract Labour Act and/or the Inter State
Migrant Workmen Act is applicable, he will make a report to that effect to the
Court.
(e) He will ascertain whether the directions
given by us in this judgment regarding effective arrangement for supply of pure
drinking water have been carried out by the mine lessees and stone crusher
owners and pure drinking water has been made available to the workmen in
accordance with those directions.
(f) He will also ascertain whether the mine
lessees and owners of stone crushers in each of the stone quarries and stone
crushers visited by him have complied with the directions given by us in this
judgment regarding provision of conservancy facilities.
(g) He will also ascertain whether the
directions given by us in this judgment in regard to provision of first aid
facilities and proper and adequate medical treatment including hospitalisation
to the workmen and the members of their families are being carried out by the
mine lessees and stone crusher owners and the necessary first aid facilities
and proper and adequate medical services including hospitalisation are provided
to the workmen and the members of their families.
(h) He will also enquire whether the various
other directions given by us in this judgment have been and are being carried
out by the mine lessees and stone crusher owners.
Shri Laxmi Dhar Misra will carry out this
assignment entrusted to him and make his report to the Court on or before 28th
February 152 1984. It will be open to Shri Laxmi Dhar Misra to take the
assistance of such other person or persons as he thinks fit including officers
or employees in the Ministry of Labour or in the Ministry of Mines, who may be
made available by the higher authorities. If Shri Laxmi Dhar Misra finds it
necessary, he may request the Court to extend the time for submitting his
report by addressing a letter to the Registry of the Court. The State of
Haryana will deposit a sum of Rs. 5000 within two weeks from today for the
purpose of meeting the costs and out of pocket expenses of Shri Laxmi Dhar
Misra.
We have no doubt that if these directions
given by us are honestly and sincerely carried out, it will be possible to
improve the life conditions of these workmen and ensure social justice to them
so that they may be able to breathe the fresh air of social and economic
freedom. The Central Government and the State of Haryana will pay to the
petitioner's advocate a sum of Rs. 5000 by way of costs. We are grateful to Mr.
Govind Mukhoty for rendering valuable assistance to us in this case.
PATHAK, J. I have read the judgments prepared
by my brothers Bhagwati and A.N. Sen, and while I agree with the directions
proposed by my brother Bhagwati I think it proper, because of the importance of
the questions which arise in such matters, to set forth my own views.
Public interest litigation in its present
form constitutes a new chapter in our judicial system. It has acquired a
significant degree of importance in the jurisprudence practised by our courts
and has evoked a lively, if somewhat controversial, response in legal circles,
in the media and among the general public. In the United States, it is the name
"given to efforts to provide legal representation to groups and interests
that have been unrepresented or under-represented in the legal process.
These include not only the poor and the
disadvantaged but ordinary citizens who, because they cannot afford lawyers to
represent them, have lacked access to courts, administrative agencies and other
legal forums in which basic policy decisions affecting their interests are
made".(1) In our own country, this new class of litigation is justified by
its protagonists on the basis generally of vast areas in our population of
illiteracy and poverty, of social and economic backwardness, and of an insufficient
awareness and appreciation of individual and collective rights. These handicaps
have denied millions of our countrymen access to justice.
Public interest litigation is said to possess
the potential of providing such access in the milieu of a new ethos, in which
participating sectors in the administration of justice co-operate in the
creation of a system which promises legal relief without cumbersome formality
and heavy expenditure.
In the result, the legal organisation has
taken on a radically new dimension and correspondingly new perspectives are
opening up before judges and lawyers and State Law agencies in the tasks before
them. A crusading zeal is abroad, viewing the present as an opportunity to
awaken the political and legal order to the objectives of social justice
projected in our constitutional system. New slogans fill the air, and new
phrases have entered the legal dictionary, and we hear of the "justicing
system" being galvanised into supplying justice to the socioeconomic
disadvantaged. These urges are responsible for the birth of new judicial
concepts and the expanding horizon of juridical power. They claim to represent
an increasing emphasis on social welfare and a progressive humanitarianism.
On the other side, the attempts of the judge
and the lawyer are watched with skeptical concern by those who see interference
by the courts in public interest litigation as a series of quixotic forays in a
world of unyielding and harsh reality, whose success in the face of opposition
bolstered by the inertia and apathy of centuries is bound to be limited in
impact and brief in duration. They see judicial endeavour frustrated by the
immobility of public concern and a traditional resistance to change, and
believe that the temporary success gained is doomed to waste away as a mere
ripple in the vastness of a giant slow-moving society. Even the optimistic
sense danger to the credibility and legitimacy of the existing judicial system,
a feeling contributed no doubt by the apprehension that the region into which
the judiciary has ventured appears barren, uncharted and unpredictable, with
few guiding posts and direction finding principles, and they fear that a
traditionally proven legal structure may yield to the anarchy of purely
emotional impulse. To the mind trained in the certainty of the law, of defined
principles, of binding precedent, and the common law doctrine of Stare decisis
the future is fraught with confusion and disorder in the legal world and severe
strains in the constitutional system. At the lowest, there is an uneasy doubt
about where we are going.
Amidst this welter of agitated controversy, I
think it appropriate to set down a few considerations which seem to me relevant
if public 154 interest litigation is to command broad acceptance. The history
of human experience shows that when a revolution in ideas and in action enters
the life of a nation, the nascent power so released possesses the potential of
throwing the prevailing social order into disarray. In a changing society,
wisdom dictates that reform should emerge in the existing polity as an ordered
change produced through its institutions. Moreover, the pace of change needs to
be handled with care lest the institutions themselves be endangered.
In his Law in the Modern State, Leon Duguit
observed:
"Any system of public law can be vital
only so far as it is based on a given sanction to the following rules: First,
the holders of power cannot do certain things; second, there are certain things
they must do." (1) Traditional legal remedies have been preoccupied
largely with the first rule. It is recently that the second has begun
substantially to engage the functional attention of the judicial
administration. In the United States, the Warren Court achieved a remarkable
degree of success in decreeing affirmative action programmes for the benefit of
minorities and other socially or economically disadvantaged interests through
the avenues of public law. In India, we are now beginning to apply a similar
concept of constitutional duty.
Until the arrival of public interest
litigation,' civil litigation was patterned exclusively on the traditional
model. The traditional conception of adjudication believes a suit to be a means
for settling disputes between private parties concerning their private rights.
In the usual form, the suit is an organised proceeding between two individual
contestants. It deals with a definite framework of facts requiring
identification through principles codified by statute and on the basis of which
the right-obligation relations between the parties are determined, culminating
in the grant or denial of relief by the Court, It is a proceeding confined to
the parties, on whose volition depends the fact material brought on the record,
with the judge sitting over the contest as a mere passive neutral umpire.
Judicial initiative has no significant role.
The rigid character of civil litigation
conceived as contests between two individual parties representing their
personal interests has been allowed to expand into a representative proceeding
where a person can, with the permission of the Court, represent others also
having the same interest although not named in the 155 suit. And the
disability, temporary or permanent, of a person whose legal right is violated,
enables another to represent his interest in a judicial proceeding. They are
cases where next friends are permitted by the Court to act for minors and
persons. Of unsound mind, where a person may petition for the release of an
illegally detained individual, and where a minority shareholder, complaining of
an ultra vires transaction by the management of a company, can sue in the name
of the company. Interveners are allowed to participate in a proceeding
involving the decision of legal questions affecting their interests. A rate
payer of a local authority has been held entitled to challenge its illegal
action. A person conferred by statute the right to participate in the
decision-making process of a statutory authority is entitled to seek relief
against such decision.
In S.P. Gupta v. Union of India,(1) this
Court has laid down that its jurisdiction can be invoked by a third party in
the case of violation of the constitutional rights of another person or
determinate class of persons who, by reason of poverty, helplessness, disability
or social or economic disadvantage is unable to move the Court personally for
relief. The Court observed further that where the public injury was suffered by
an indeterminate class of persons from the breach of a public duty or from the
violation of a constitutional provision of the law, any member of the public
having sufficient interest can maintain an action for judicial redress for such
public injury. The principle was qualified by the reservation that such
petitioner should act bona fide and not for personal gain or private profit,
nor be moved by political or other oblique motivation. The doctrine of standing
has thus been enlarged in this country to provide, where reasonably possible,
access to justice to large sections of people for whom so far it had been a
matter of despair.
It is time indeed for the law to do so. In
large measure, the traditional conception of adjudication represented the
socioeconomic vision prevailing at the turn of the century. The expansion of
governmental activity into the life of individuals through programmes of social
welfare and development had not yet been foreshadowed. An environment permeated
by the doctrine of laissez faire shaped the development of legal jurisprudence.
But soon, progressive social and economic forces began to grow stronger and
influence the minds of people, and governments, in response to the pressures of
egalitarian and socialist- oriented urges, began to enter increasingly upon
socioeconomic programmes in which legislation and the courts 156 constituted
the principal instruments of change. The movements accelerated with the close
of the Second World War, and a character of human rights was written into the
political constitutions adopted by most nations emerging from colonial rule
even as, on another plane, it altered our basic conception of international
law. In India, as the consciousness of social justice spread though our multi-
layered social order, the courts began to come under increasing pressure from
social action groups petitioning on behalf of the underprivileged and deprived
sections of society for the fulfillment of their aspirations. It is not
necessary to detail the number of cases of public interest litigation which
have entered this Court. It is sufficient to point out that, despite the
varying fortune of those cases, public interest litigation constitutes today a
significant segment of the Court's docket.
In the debate before us, questions of
substantial importance have been raised by learned counsel, questions which go
to the procedure adopted by the Court and the manner of the exercise of its
constitutional powers.
This petition invokes the jurisdiction of the
Court under Article 32 of the Constitution, which confers the guaranteed right
to move this Court by appropriate proceedings for the enforcement of
fundamental rights. The right exercised is a right to a constitutional remedy
and the jurisdiction invoked is a constitutional jurisdiction.
Bearing this in mind, we must also take into
account that the provisions of Article 32 do not specifically indicate who can
move the Court. In the absence of a confining provision in that respect. It is
plain that a petitioner may be anyone in whom the law recognises a standing to
maintain an action of such nature.
As regards the form of the proceeding and its
character, Article 32 speaks generally of a "appropriate
proceedings". It should be a proceeding which can appropriately lead to an
adjudication of the claim made for the enforcement of a fundamental right and
can result in the grant of effective relief. Article 32 speaks of the Court's
power "to issue directions or orders or writs", and the specific
reference to "writs in the nature of habeas corpus, mandamus, prohibition,
quo warranto and certiorari" is by way of illustration only. They do not
exhaus the content of the Court's power under Article 32.
Entering not into a more controversial area,
it is appropriate to consider the nature of the procedure which the court may
adopt under Article 32 of the Constitution. So far as the traditional private
157 law is concerned, the procedure follows the accepted pattern and
traditional forms associated with it. There can be little dispute there. Does
public interest litigation call for somewhat different considerations? Before
dealing with this aspect, however, it is necessary to touch on two fundamental
matters.
First, as to the petition, A practice has
grown in the public of invoking the jurisdiction of this Court by a simple
letter complaining of a legal injury to the author or to some other person or
group of persons, and the Court has treated such letter as a petition under
Article 32 and entertained the proceeding without anything more. It is only
comparatively recently that the Court has begun to call for the filing of a
regular petition on the letter. I see grave danger inherent in a practice where
a mere letter is entertained as a petition from a person whose antecedents and
status are unknown or so uncertain that no sense of responsibility can, without
anything more, be attributed to the communication. There is good reason for the
insistence on a document being set out in a form, or accompanied by evidence;
indicating that the allegations made in it are made with a sense of
responsibility by a person who has taken due care and caution to verify those
allegations before making them. A plaint instituting a suit is required by the
Code of Civil Procedure to conclude with a clause verifying the pleadings
contained in it. A petition or application filed in court is required to be supported
on affidavit. These safeguards are necessary because the document, a plaint or
petition or application, commences a course of litigation involving the
expenditure of public time and public money, besides in appropriate cases
involving the issue of summons or notice to the defendant or respondent to
appear and contest the proceeding. Men are busy conducting the affairs of their
daily lives, and no one occupied with the responsibilities and pressures of
present day existence welcomes being summoned to a law court and involved in litigation.
A document making allegations without any proof whatever of responsibility can
conceivably constitute an abuse of the process of law. There is good reason, I
think, for maintaining the rule that, except in special circumstances, the
document petitioning the court for relief should be supported by satisfactory
verification.
This requirement is all the greater where
petitions are received by the Court through the post. It is never beyond the
bound of possibility that an unverified communication received through the post
by the court may in fact have been employed mala fide, as an instrument of
coercion or blackmail or other oblique motive against a person named therein
who holds a position of honour and respect in society.
158 The Court must be ever vigilant against
the abuse of its process It cannot do that better in this matter than insisting
at the earliest stage, and before issuing notice to the respondent, that an
appropriate verification of the allegations be supplied. The requirement is
imperative in private law litigation. Having regard to its nature and purpose,
it is equally attract to public interest litigation. While this Court has
readily acted upon letters and telegrams in the past, there is need to insist now
on an appropriate verification of the petition or other communication before
acting on it. As I have observed earlier, there may be exceptional
circumstances which may justify a waiver of the rule. For example, when the
habeas corpus jurisdiction of the Court is invoked. For in all cases of illegal
detention there is no doubt that the Court must act with speed and readiness.
Or when the authorship of the communication is so impeccable and unquestionable
that the authority of its contents may reasonably be accepted prima facie until
rebutted. It will always be a matter for the Court to decide, on what petition
will it require verification and when will it waive the rule.
Besides this, there is another matter which,
although on the surface appears to be of merely technical significance, merits
more than passing attention. I think the time has come to state clearly that
all communications and petitions invoking the jurisdiction of the Court must be
addressed to the entire Court, that is to say, the Chief Justice and his
companion Judges. No such communication of petition can properly be addressed
to a particular Judge.
When the jurisdiction of the Court is
invoked, it is the jurisdiction of the entire court. Which Judge or Judges will
hear the case is exclusively a matter concerning the internal regulation of the
business of the Court, interference with which by a litigant or member of the
public constitutes the grossest impropriety. It is well established that when a
division of the Court hears and decides cases it is in law regarded as a
hearing and a decision by the Court itself. The judgment pronounced and the
decree or order made are acts of the Court, and accordingly they are respected,
obeyed and enforced throughout the land. It is only right and proper that this
should be known clearly to the lay public. Communications and petitions
addressed to a particular Judge are improper and violate the institutional
personality of the Court. They also embarrass the judge to whom they are
personally addressed. The fundamental conception of the Court must be
respected, that it is a single indivisible institution, of united purpose and
existing solely for the high constitutional functions for which it has been
created. The conception of the Court as a loose 159 aggregate of individual
Judges, to one or more of whom judicial access may be particularly had,
undermines its very existence and endangers its proper and effective
functioning.
I shall now turn to the character and
incidents of the procedure open to the Court in public interest litigation and
the nature of the power exercised by it during the proceeding. In public
interest litigation, the role held by the Court is more assertive than in
traditional actions.
During the regime of the Warran Court in the
United States, it proceeded to the point where affirmative programmes were
envisaged, and the relationship between right and remedy was freed from the
rigid intimacy which constitutes a fundamental feature of private law
litigation. While remedial procedure was fashioned according to the demands of
the case and varied from stage to stage, in the shaping of relief the court
treated with the future and devised a code of regulatory action. Viewed in that
context, the role of the Court is creative rather than passive and it assumes a
more positive attitude in determining facts.
Not infrequently public interest litigation
affects the rights of persons not before the court, and in shaping the relief
the court must invariably take into account its impact on those interests.
Moreover, when its jurisdiction is invoked on behalf of a group, it is as well
to remember that differences may exist in content and emphasis between the
claims of different sections of the group. For all these reasons the court must
exercise the greatest caution and adopt procedures ensuring sufficient notice
to all interests likely to be affected. Moreover, the nature of the litigation
sometimes involves the continued intervention of the court over a period of
time, and the organising of the litigation to a satisfactory conclusion calls
for judicial statesmanship, a close understanding of constitutional and legal
values in the context of contemporary social forces, and a judicious mix of
restraint and activism determined by the dictates of existing realities.
Importantly, at the same time, the Court must never forget that its
jurisdiction extends no farther than the legitimate limits of its
constitutional powers, and avoid trespassing into political territory which
under the Constitution has been appropriated to other organs of the State. This
last aspect of the matter calls for more detailed consideration, which will be
attempted later.
The procedures adopted by the Court in cases
of public interest litigation must of course be procedures designed and shaped
by the Court with a view to resolving the problem presented before it and 160
determining the nature and extent of relief accessible in the circumstances. On
the considerations to which I have adverted earlier, the Court enjoys a degree
of flexibility unknown to the trial of traditional private law litigation.
But I think it necessary to emphasis that
whatever the procedure adopted by the court it must be procedure known to
judicial tenets and characteristic of a judicial proceeding.
There are methods and avenues of procuring
material available to executive and legislative agencies, and often employed by
them for the efficient and effective discharge of the tasks before them. Not
all those methods and avenues are available to the Court. The Court must ever
remind itself that one of the indicia identifying it as a Court is the nature
and character of the procedure adopted by it in determining a controversy. It
is in that sense limited in the evolution of procedures pursued by it in the
process of an adjudication and in the grant and execution of the relief. Legal
jurisprudence has in its historical development identified certain fundamental
principles which form the essential constituents of judicial procedure. They
are employed in every judicial proceeding, and constitute the basic
infrastructure along whose channels flows the power of the Court in the process
of adjudication What should be the conceivable framework of procedure in public
interest litigation ? This question does not admit of a clear cut answer. As I
have observed earlier, it is not possible to envisage a defined pattern of
procedure applicable to all cases. Of necessity the pattern which the Court
adopts will vary with the circumstances of each case.
But it seems to me that one principle is
clear. If there is a statute prescribing a judicial procedure governing the
particular case the Court must follow such procedure. It is not open to the
Court to bypass the statute and evolve a different procedure at variance with
it. Where, however, the procedure prescribed by statute is incomplete or
insufficient, it will be open to the Court to supplement it by evolving its own
rules, Nonetheless, the supplementary procedure must conform at all stages to
the principles of natural justice. There can be no deviation from the
principles of natural justice and other well accepted procedural norms
characteristic of a judicial proceeding.
They constitute an entire code of general
principles of procedure, tried and proven and hallowed by the sanctity of common
and consistent acceptance during long years of the historical development of
the law. The general principles of law, to which reference is made here,
command the confidence, not merely of the Judge and the lawyer and the parties
to the litigation, but supply that basic credibility to the judicial proceeding
which strengthens public faith 161 in the Rule of Law. They are rules rooted in
reason and fairplay, and their governance guarantees a just disposition of the
case. The court should be wary of suggestions favouring novel procedures in
cases where accepted procedural rules will suffice.
Turning now to the nature and extent of the
relief which can be contemplated in public interest litigation, we enter into
an area at once delicate and sensitive and fraught with grave implications.
Article 32 confers the widest amplitude of power on this Court in the matter of
granting relief. It has power to issue "directions or orders or
writs", and there is no specific indication, no express language, limiting
or circumscribing that power. Yet, the power is limited by its very nature,
that it is judicial power. It is power which pertains to the judicial organ of
the State, identified by the very nature of the judicial institution. There are
certain fundamental constitutional concepts which, although elementary, need to
be recalled at times. The Constitution envisages a broad division of the power
of the State between the legislature, the executive and the judiciary. Although
the division is not precisely demarcated, there is general acknowledgment of
its limits.
The limits can be gathered from the written
text of the Constitution, from conventions and constitutional practice, and
from an entire array of judicial decisions. The constitutional lawyer concedes
a certain measure of overlapping in functional action among the three organs of
the State. But there is no warrant for assuming a geometrical congruence. It is
common place that while the legislature enacts the law, the executive
implements it and the court interprets it and, in doing so, adjudicates on the
validity of executive action and, under our Constitution, even judges the
validity of the legislation itself. And yet it is well recognised that in a
certain sphere the legislature is possessed of judicial power, the executive
possesses a measure of both legislative an judicial functions, and the court,
in its duty of interpreting the law, accomplishes in its perfected action a
marginal degree of legislative exercise. Nonetheless, a fine and delicate
balance is envisaged under our Constitution between these primary institutions
of the State. In similar Constitutions elsewhere the courts have been anxious
to maintain and preserve that balance. An example is provided by Marbury v. Madisan(1)
I do not mean to say that the Court should hesitate or falter or withdraw from
the exercise of its jurisdiction. On the contrary, it must plainly do its duty
under the Constitution. But I do say that in every case the Court should
determine 162 the true limits of its jurisdiction and, having done so, it
should take care to remain within the restraints of its jurisdiction.
This aspect of Court action assumes especial
significance in public interest litigation. It bears upon the legitimacy of the
judicial institution, and that legitimacy is affected as much by the solution
presented by the Court in resolving a controversy as by the manner in which the
solution is reached. In an area of judicial functioning where judicial activism
finds room for play, where constitutional adjudication can become an instrument
of social policy forged by the personal political philosophy of the judge, this
is an important consideration to keep in mind.
Where the Court embarks upon affirmative
action in the attempt to remedy a constitutional imbalance within the social
order, few critics will find fault with it so long as it confines itself to the
scope of its legitimate authority.
But there is always the possibility, in
public interest litigation, of succumbing to the temptation of crossing into
territory which properly pertains to the Legislature or to the Executive
Government. For in most cases the jurisdiction of the Court is invoked when a
default occurs in executive administration, and sometimes where a void in
community life remains unfilled by legislative action. The resulting public
grievance finds expression through social action groups, which consider the
Court an appropriate forum for removing the deficiencies. Indeed, the citizen
seems to find it more convenient to apply to the Court for the vindication of
constitutional rights than appeal to the executive or legislative organs of the
State.
In the process of correcting executive error
or removing legislative omission the Court can so easily find itself involved
in policy making of a quality and to a degree characteristic of political
authority and indeed run the risk of being mistaken for one. An excessively
political role identifiable with political governance betrays the Court into
functions alien to its fundamental character, and tends to destroy the delicate
balance envisaged in our constitutional system between its three basic
institutions.
The Judge, conceived in the true classical
mould, is an impartial arbiter, beyond and above political bias and prejudice,
functioning silently in accordance with the Constitution and his judicial
conscience. Thus does he maintain the legitimacy of the institution he serves
and honour the trust which his office has reposed in him?
163 The affirmative schemes framed in public
interest litigation by. The Court sometimes require detailed administration
under constant judicial supervision over protracted periods. The lives of large
sections of people, some of whom have had no voice in the decision, are shaped
and ordered by mandatory Court action extending into the future. In that
context, it is as well to remember that public approval and public consent
assume material importance in its successful implementation. In contrast with
policy making by legislation, where a large body of legislators debate on a proposed
legislative enactment, no such visual impact can be perceived when judicial
decrees are forged and fashioned by a few judicial personages in the confines
of a Court. The mystique of the robe, at the stage of decision-making, is
associated traditionally with cloistered secrecy and confidentiality and the
end-result commonly issues as a final definitive act of the Court. It is a
serious question whether in every case the same awesome respect and reverence
will endure during different stages of affirmative action seeking to regulate
the lives of large numbers of people, some of whom never participated in the
judicial process.
There is good reason to suppose that treating
with public interest litigation requires more than legal scholarship and knowledge
of textbook law. It is of the utmost importance in such cases that when
formulating a scheme of action, the Court must have due regard to the
particular circumstances of the case, to surrounding realities including the
potential for successful implementation, and the likelihood and degree of
response from the agencies on whom the implementation will depend. In most
cases of public interest litigation, there will be neither precedent nor
settled practice to add weight and force to the vitality of the Court's action.
The example of similar cases in other countries can afford little support.
The successful implementation of the orders
of the Court will depend upon the particular social forces in the backdrop of
local history, the prevailing economic pressures, the duration of the stages
involved in the implementation, the momentum of success from stage to stage,
and acceptance of the Court's action at all times by those involved in or
affected by it.
An activist Court, spearheading the movement
for the development and extension of the citizen's constitutional rights, for
the protection of individual liberty and for the strengthening of the
socioeconomic fabric in compliance with declared constitutional objectives,
will need to move with a degree of judicial circumspection. In the 164 centre
of a social order changing with dynamic pace, the Court needs to balance the
authority of the past with the urges of the future, As far back as 1939, Judge
Learned Hand(1) observed that a Judge "must preserve his authority by
cloaking himself in the majesty of an over-shadowing past; but he must discover
some composition with the dominant needs of his times". In that task the
Court must ever be. conscious of the constitutional truism that it possesses
the sanction of neither the sword nor the purse and that its strength lies
basically in public confidence and support, and that consequently the
legitimacy of its acts and decisions must remain beyond all doubt. Therefore,
whatever the case before it, whatever the context of facts and legal rights,
whatever the social and economic pressures of the times, whatever the personal
philosophy of the Judge, let it not be forgotten that the essential identity of
the institution, that it is a Court, must remain preserved so that every action
of the Court is informed by the fundamental norms of law, and by the principles
embodied in the Constitution and other sources of law. If its contribution to
the jurisprudential ethos of society is to advance our constitutional
objectives, it must function in accord with only those principles which enter
into the composition of judicial action and give to it its essential quality.
In his perceptive Lectures entitled "The Warren Court: Constitutional
Decision as an Instrument of Reform"(2). Professor Archicald Cox pointedly
observes:
"Ability to rationalise a constitutional
judgment in terms of principles referable to accepted sources of law is an
essential, major element of constitutional adjudication. It is one of the
ultimate sources of the power of the Court- including the power to gain
acceptance for the occasional great leaps forward which lack such
justification. Constitutional government must operate by consent of the
governed. Court decrees draw no authority from the participation of the. people.
Their power to command consent depends upon
more than habit or even the deserved prestige of the justices. It comes, to an
important degree, from the continuing force of the rule of law-from the belief
that the major influence in judicial decisions is not fiat but principles which
bind the judges as well as the litigants and which apply consistently among all
men today, and also yesterday and tomorrow".
165 There is great merit in the Court
proceeding to decide an issue on the basis of strict legal principle and
avoiding carefully the influence of purely emotional appeal. For that alone
gives the decision of the Court a direction which is certain, and unfaltering,
and that particular permanence in legal jurisprudence which makes it a base for
the next step forward in the further progress of the law. Indeed, both
certainty of substance and certainty of direction are indispensable
requirements in the development of the law, and invest it with the credibility
which commands public confidence in its legitimacy.
This warning is of especial significance in
these times, during a phase of judicial history when a few social action groups
tend to show evidence of presuming that in every case the court must bend and
mould its decision to popular notions of which way a case should be decided.
I have endeavoured by these observations to
indicate some of the areas in which the Court should move with caution and
circumspection when addressing itself to public interest litigation. As new
areas open before the Court with modern developments in jurisprudence, in a
world more sensitive to human rights as well as the impact of technological
progress, the Court will become increasingly conscious of its expanding
jurisdiction. That is inevitable.
But its responsibilities are correspondingly
great, and perhaps never greater than now. And we must remember that there is
no higher Court to correct our errors, and that we wear the mantle of
infallibility only because our decisions are final. That we sit at the apex of
the judicial administration and our word, by constitutional mandate, is the law
of the land can induce an unusual sense of power. It is a feeling we must guard
against by constantly reminding ourselves that every decision must be guided by
reason and by judicial principles.
My brothers have dealt with the preliminary
objections raised by the respondents to the maintainability of this proceeding.
On the considerations to which I have adverted earlier I have no hesitation in
agreeing with them that the preliminary objections must be rejected. I have no
doubt in my mind that persons in this country obliged to serve as bonded labour
are entitled to invoke Article 23 of the Constitution. The provisions embodied
in that clause form a vital constituent of the Fundamental Rights set forth in
Part III of the Constitution, and their violation attracts properly the scope
of Article 32 of the Constitution. I also find difficulty in upholding the
objection by the respondents to the admissibility and relevance 166 of the
material consisting of the report of the two advocates and of Dr. Patwardhan
appointed as Commissioners.
It is true that the reports of the said
Commissioners have not been tested by cross-examination, but then the record
does not show whether any attempt was made by the respondents to call them for
cross-examination. The further question whether the appointment of the
Commissioners falls within the terms of order XLVI of the Supreme Court Rules
1966 is of technical significance only, because there was inherent power in the
Court, in the particular circumstances of this case, to take that action. I
have already set forth earlier my views in respect of the nature and forms of
procedure open to the Court in public interest litigation and I need not
elaborate them here. I may add, however, that the Court would do well to issue
notice to the respondents, before appointing any Commissioner, in those cases
where there is little apprehension of the disappearance of evidence.
On the merits of the case I find myself in
agreement with my brother Bhagwati, both in regard to the operation of the
various statutes as well as the directions proposed by him. The case is one of
considerable importance to a section of our people, who pressed by the twin
misfortunes of poverty and illiteracy, are compelled to a condition of life
which long since should have passed into history. The continued existence of
such pockets of oppression and misery do no justice to the promises and
assurances extended by our Constitution to its citizens.
AMARENDRA NATH SEN, J. The relevant facts
have been fully set out in the judgment of my learned brother Bhagwati, J. My
learned brother has also recorded in his judgment the various contentions which
were urged before us in this writ petition.
A preliminary objection was raised by Shri K.
L. Bhagat. Additional Solicitor General of India and also by Shri Phadke,
learned counsel appearing on behalf of the respondents, as to the
maintainability of the present petition. The objection to the maintainability
of the present petition is taken mainly on the following three grounds:- 1 Art.
32 of the Constitution is not attracted to the instant case as no fundamental
right of the petitioners or of the workmen referred to in the petition are
infringed.
2 A letter addressed by a party to this Court
cannot be treated as a writ petition and in the absence of any 167 verified petitions
this Court cannot be moved to exercise its writ jurisdiction.
3 In a proceeding under Art. 32 of the
Constitution this Court is not empowered to appoint any commission or an
investigating body to enquire into the allegations made and make a report to
this Court on the basis of the enquiry to enable this Court to exercise its
power and jurisdiction under Art. 32 of the Constitution.
I propose to consider the objections in the
order noted above. I shall first deal with the first objection, namely, that
Art. 32 of the Constitution is not attracted as there is no violation of any
fundamental right of the petitioner or of the workmen referred to in the petition.
The substance of the grievance of the
petitioners in this petition is that the workmen referred to in the
communication addressed to this Court are bonded labourers.
In 1976, the Parliament enacted the Bonded
Labour System (Abolition) Act, 1976 and by virtue of the provisions of the said
Act, the bonded labour system has been declared to be illegal in this country.
Any person who is wrongfully and illegally employed as a labourer in violation
of the provisions of the Act, is in essence deprived of his liberty. A bonded
labourer truly becomes a slave and the freedom of a bonded labourer in the
matter of his employment and movement is more or less completely taken away and
forced labour is thrust upon him. When any bonded labourer approaches this
Court, the real grievance that he makes is that he should be freed from this
bondage and he prays for being set at liberty and liberty is no doubt a
fundamental right guaranteed to every person under the Constitution.
There cannot be any manner of doubt that any
person who is wrongfully and illegally detained and is deprived of his liberty
can approach this Court under Art. 32 of the Constitution for his freedom from
wrongful and illegal detention, and for being set at liberty. In my opinion,
whenever any person is wrongfully and illegally deprived of his liberty, it is
open to anybody who is interested in the person to move this Court under Art.
32 of the Constitution for his release. It may not very often be possible for
the person who is deprived of his liberty to approach this Court, as by virtue
of such illegal and wrongful detention, he may not be free and in a position to
move this Court. The Petitioner in the instant case claims to be an association
interested in the welfare of society and particularly of the weaker section.
The Petitioner further 168 states that the petitioner seeks to promote the
welfare of the labourers and for promoting the welfare of labour, the
petitioner seeks to move this Court for releasing the bonded labourers from
their bondage and for restoring to them their freedom and other legitimate
rights. The bonded labourers working in the faraway places are generally poor
and belong to the very weak section of the people. They are also not very
literate and they may not be conscious of their own rights. Further, as they
are kept in bondage their freedom is also restricted and they may not be in a
position to approach this Court. Though no fundamental right of the petitioner
may be said to be infringed, yet the petitioner who complains of the violation
of the fundamental right of the workmen who have been wrongfully and illegally
denied their freedom and deprived of their constitutional right must be held to
be entitled to approach this Court on behalf of the bonded labourers for
removing them from illegal bondage and deprivation of liberty. The locus standi
of the petitioner to move this Court appear to be conclusively established by
the decision of this Court in the case of S.P. Gupta v. Union of India &
Anr.(1) Forced labour is constitutionally forbidden by Art. 23 of the
Constitution.
As in the present case the violation of the
fundamental right of liberty of the workmen who are said to be kept in wrongful
and illegal detention, employed in forced labour, is alleged, Art. 32 of the
Constitution to my mind, is clearly attracted. The first ground raised on
behalf of the respondents cannot, therefore, be sustained.
Before I proceed to deal with the second
ground urged on behalf of the respondents, it will be convenient to set out the
provisions of Art. 32 of the Constitution. Art. 32 read as follows:- "(1)
The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to
issue directions or orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warrants and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this part.
(3) Without prejudice to the powers conferred
on the Supreme Court by clauses (1) and (2), Parliament may by law empower 169
any other Court to exercise within the local limits of its jurisdiction all or
any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article
shall not be suspended except as otherwise provided for by this
Constitution." Art. 32(1) confers the right to move this Court by
appropriate proceedings for enforcement of the fundamental rights guaranteed
under the Constitution. Art. 32(2) makes provision for the powers of this Court
in the matter of granting relief in any proceeding in this Court for
enforcement of the fundamental rights guaranteed by the Constitution. Art.
32(3) and 32(4) which I have also set out for the purpose of complete
understanding of the provisions of Art. 32 for proper appreciation of its scope
and effect, do not have any material bearing on the question involved in the
present proceeding.
The second ground which raises the question
whether the letter addressed by a party to this Court can be treated as a writ
petition and in the absence of any verified petition this court can be moved to
exercise its writ jurisdiction, is essentially an objection to the procedure to
be adopted by this Court in the matter of entertaining a proceeding under Art.
32 for enforcement of fundamental rights of the parties. Art. 32(1) of the
Constitution which has been earlier set out guarantees the right to move this
Court by an appropriate proceeding for the enforcement of the fundamental
rights. Art. 32(2) confers wide powers on this Court in the matter of granting
relief against any violation of the fundamental rights. Art. 32 or for that
matter any other article does not lay down any procedure which has to be
followed to move this Court for relief against the violation of any fundamental
right. Art. 32(1) only lays down that the right to move this Court by
appropriate proceedings for enforcement of fundamental rights is guaranteed.
The Constitution very appropriately leaves the question as to what will
constitute an appropriate proceeding for the purpose of enforcement of
fundamental rights to be determined by the Court. This Court, when sought to be
moved under Art. 32 by any party for redressing his grievance against the
violation of fundamental rights has to consider whether the procedure followed
by the party is appropriate enough to entitle the court to proceed to act on
the same. No doubt this Court has framed rules which are contained in part IV,
Order XXXV of the Supreme Court Rules under the Caption "application for
enforcement of fundamental 170 rights ("Art. 32 of the Constitution").
Generally speaking, any party who seeks to move this Court under Act. 32 of the
Constitution should conform to the rules prescribed. The rules lay down the
procedure which is normally to be followed in the matter of any application
under Art. 32 of the Constitution. These rules are rules relating to the
procedure to be adopted and the rules are intended to serve as maids to the
Deity of Justice. Procedural law which also forms a part of the law and has to
be observed, is, however, subservient to substantive law and the laws of
procedure are prescribed for promoting and furthering the ends of justice.
There cannot be any doubt that this Court
should usually follow the procedure laid down in O.XXXV of the Rules of this
Court and should normally insist on a petition properly verified by an
affidavit to be filed to enable the Court to take necessary action on the same.
Though this Court should normally insist on the rules of procedure being
followed, it cannot be said, taking into consideration the nature of right
conferred under Art. 32 to move this Court by an appropriate proceeding and the
very wide powers conferred on this Court for granting relief in the case of
violation of fundamental rights that this Court will have no jurisdiction to
entertain any proceeding which may not be in conformity with procedure
prescribed by the Rules of this Court. The Rules undoubtedly lay down the
procedure which is normally to be followed for making an application under Art.
32 of the Constitution. They, however, do not and cannot have the effect of
limiting the jurisdiction of this Court of entertaining a proceeding under Art.
32 of the Constitution, if made, only in the manner prescribed by the rules.
For effectively safeguarding the fundamental rights guaranteed by the
Constitution, the Court in appropriate cases in the interests of justice will
certainly be competent to treat a proceeding, though not in conformity with the
procedure prescribed by the Rules of this Court, as an appropriate proceeding
under Art. 32 of the Constitution and to entertain, the same. Fundamental
rights guaranteed under the Constitution are indeed too scared to be ignored or
trifled with merely on the ground of technicality or any rule of procedure. It
may further be noticed that the rules framed by this Court do not also lay down
that this Court can be moved under Art. 32 of the Constitution only in
accordance with the procedure prescribed by the Rules and not otherwise. A mere
technicality in the matter of form or procedure which may not in any way affect
the substance of any proceeding should not stand in the way of the exercise of
the very wide jurisdiction and powers conferred on this Court under Art. 32 of
the Constitution for enforcement of fundamental rights guaranteed under the Constitution.
Taking into 171 consideration the substance of the matter and the nature of
allegations made, it will essentially be a matter for the Court to decide
whether the procedure adopted can be considered to be an appropriate proceeding
within the ambit of Art. 32 of the Constitution. The Court, if satisfied on the
materials placed in the form of a letter or other communication addressed to
this court, may take notice of the same in appropriate cases. Experience shows
that in many cases it may not be possible for the party concerned to file a
regular writ petition in conformity with procedure laid down in the Rules of
this Court. It further appears that this Court for quite some years now has in
many cases proceeded to act on the basis of the letters addressed to it. A long
standing practice of the Court in the matter of procedure also acquires
sanctity. It may also be pointed out that in various cases the Court has
refused to take any notice of letters or other kind of communications addressed
to Court and in many cases also the court on being moved by a letter has
directed a formal writ petition to be filed before it has decided to proceed
further in the matter. It is, however, eminently desirable, in my opinion, that
normally the procedure prescribed in the rules of this Court should be followed
while entertaining a petition under Art. 32 of the Constitution, though in
exceptional cases and particularly in matter of general public interest, this
Court may, taking into consideration the peculiar facts and circumstances of
the case, proceed to exercise its jurisdiction under Art. 32 of the
constitution for enforcement of fundamental rights treating the letter or the
communication in any other form as an appropriate proceeding under Art. 32 of
the Constitution. It is, however, eminently desirable that any party who
addresses a letter or any other communication to this Court seeking
intervention of this Court on the basis of the said letter and communication
should address this letter or communication to this Court and not to any
individual Judge by name. Such communication should be addressed to the Chief
Justice of the Court and his companion Justices. A private communication by a
party to any Learned Judge over any matter is not proper and may create embarrassment
for the Court and the Judge concerned.
In the present case, the unfortunate workers
who are emploced as bonded labourers at as distant place, could not possibly in
view of their bondage, move this Court, following the procedure laid down in
the Rules of this Court. The Petitioner which claims to be a Social Welfare
Organisation interested in restoring liberty and dignity to these unfortunate
bonded labourers should be considered competent to move this Court by a letter
or like communication addressed to 172 this Court, to avoid trouble and
expenses, as the petitioner is not moving this Court for any personal or
private benefit.
I shall now consider the third and the last
objection which relates to the powers of this Court to direct an enquiry into
the allegations made and to call for a report in a proceeding under Art. 32 of
the Constitution to enable this Court to exercise its power and jurisdiction
under Art. 32 of the Constitution.
We have earlier noted that the fundamental
rights are guaranteed by the Constitution and for the enforcement of the
fundamental rights very wide powers have been conferred on this Court. Before
this Court proceeds to exercise its owers under Art. 32 of the Constitution for
enforcing the fundamental rights guaranteed, this Court has to be satisfied
that there has been a violation of the fundamental rights. The fundamental
rights may be alleged to have been violated under various circumstances. The
facts and circumstances differ from case to case. Whenever, however, there is
an allegation of violation of fundamental rights, it becomes the responsibility
and also the sacred duty of this Court to protect such fundamental rights
guaranteed under the Constitution provided that this Court is satisfied that a
case for interference by this Court appears prima facie to have been made out. Very
often the violation of fundamental rights is not admitted or accepted. On a
proper consideration of the materials the Court has to come to a conclusion
whether there has been any violation of fundamental rights to enable the Court
to grant appropriate reliefs in the matter. In various cases, because of the
peculiar facts and circumstances of the case the party approaching this Court
for enforcement of fundamental rights may not be in a position to furnish all
relevant materials and necessary particulars. If, however, on a consideration
of the materials placed, the Court is satisfied that a proper probe into the
matter is necessary in the larger interest of administration of justice and for
enforcement of fundamental rights guaranteed, the Court, in view of the
obligations and duty cast upon it of preserving and protecting fundamental
rights, may require better and further materials to enable the Court to take
appropriate action; and there cannot be anything improper in the proper
exercise of Court's jurisdiction under Art. 32 of the Constitution to try to
secure the necessary materials through appropriate agency. The Commission that
the Court may appoint or the investigation that the court may direct is
essentially for the Court's satisfaction as to the correctness or otherwise of
the allegation of violation of fundamental rights to enable the Court to decide
the course to be adopted for 173 doing proper justice to the parties in the
matter of protection of their fundamental rights. We have to bear in mind that
in this land of ours, there are persons without education, without means and
without opportunities and they also are entitled to full protection of their
rights or privileges which the Constitution affords. Living in chilled penury
without necessary resources and very often not fully conscious of their rights
guaranteed under the Constitution, a very large section of the people commonly
termed as the weaker section live in this land. When this Court is approached
on behalf of this class of people for enforcement of fundamental rights of
which they have been deprived and which they are equally entitled to enjoy, it
becomes the special responsibility of this Court to see that justice is not denied
to them and the disadvantageous position in which they are placed, do not stand
in the way of their getting justice from this Court. The power to appoint a
commission or an investigating body for making enquiries in terms of directions
given by the Court must be considered to be implied and inherent in the power
that the Court has under Art. 32 for enforcement of the fundamental rights
guaranteed under the Constitution. This is a power which is indeed incidental
or ancillary to the power which the Court is called upon to exercise in a
proceeding under Art. 32 of the Constitution. It is entirely in the discretion
of the Court, depending on the facts and circumstances of any case, to consider
whether any such power regarding investigation has to be exercised or not. The
Commission that the Court appoints or the investigation that the Court directs
while dealing with a proceeding under Art. 32 of the Constitution is not a
commission or enquiry under the Code of Civil Procedure. Such power must
necessarily be held to be implied within the very wide powers conferred on this
Court under Art. 32 for enforcement of fundamental rights. I am, further of the
opinion that for proper exercise of its powers under Art. 32 of the
Constitution and for due discharge of the obligation and duty cast upon this
Court in the matter of protection and enforcement of fundamental rights which
the Constitution guarantees, it must be held that this Court has an inherent
power to act in such a manner as will enable this Court to discharge its duties
and obligations under Art. 32 of the Constitution properly and effectively in
the larger interest of administration of justice, and for proper protection of
constitutional safeguards. I am, therefore, of the opinion that this objection
is devoid of any merit.
I may incidentally observe that as a result
of such action on the part of the Court attention of the appropriate
authorities concerned has in a number of cases been pointedly drawn to the
existence of 174 bonded labourers in various parts of the country and to their
miserable plight and a large number of bonded labourers have been freed from
their bondage. To my mind, the litigation of this type particularly in relation
to bonded labourers is really not in nature in adversary litigation and it
becomes the duty of the State and also of the appropriate authorities to offer
its best co-operation to see that this evil practice which has been declared
illegal is ended at the earliest. The existence of bonded labour in the country
is an unfortunate fact. Whenever there is any allegation of the existence of
bonded labour in any particular State, the State instead of seeking to come out
with a case of denial of such existence on the basis of a feeling that the
existence of bonded labour in the State may cast a slur or stigma on its
administrative machinery, should cause effective enquiries to be made into the
matter and if the matter is pending in this Court, should co- operate with this
Court to see that death-knell is sounded on this illegal system which
constitutes a veritable social menace and stands in the way of healthy
development of the nation.
For reasons aforesaid, I do not find any
merit in the preliminary objections raised and I agree with my learned brother
that the preliminary objections must be over-ruled.
On the merits of the case my learned brother
Bhagwati, J. has in his judgment carefully and elaborately discussed all the
aspects. Apart from the principal grievance made that the workmen in the
instant case are bonded labourers, various grievances on behalf of the workmen
have been voiced and denial to the workmen of various other just rights has
been alleged. The grievance of denial of other just rights to the workmen and
the reliefs claimed for giving the workmen the benefits to which they may be
entitled under various legislations enacted for their welfare are more or less
in the nature of consequential reliefs incidental to the main relief of freedom
from bonded and forced labour to which the workmen are subjected. I must
frankly confess that in the facts and circumstances of this case I have some
doubts as to the applicability of the provisions of Inter State Migrant Workmen
(Regulation of Employment and Conditions of Service) Act, 1979. The views
expressed by my learned brother Bhagwati, J. in his judgment, to my mind, do
not amount to any adjudication on the question of applicability of the Inter
State Migrant Workmen (Regulation of Employment and Conditions of Service) Act,
1979. The observations made by my learned brother Bhagwati, J. and the
directions given by him on the various aspects with regard to the merits of the
case after carefully considering the provisions of 175 all the relevant labour
legislations enacted tor the benefit of labourers and for improvement and
betterment of their lot, are for furthering the interests of the workmen and
for proper protection and preservation of their just rights and to enable the
appropriate authorities to take necessary action in the matter. As I am in
agreement with the views expressed by my learned Brother Bhagwati, J. I do not
propose to deal with these aspects at any length and I content myself by
expressing my agreement with the judgment of my learned brother Bhagwati, J. on
these matters.
S. R. Petitions allowed and preliminary grounds
rejected.
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