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 j
