interpreting Article 32-Appropriate proceedings
Supreme Court of India
Bandhua Mukti Morcha vs Union Of India & Others on 16 December, 1983
Equivalent citations: 1984 AIR 802, 1984 SCR (2) 67
Author: P Bhagwati
Bench: Bhagwati, P.N.
PETITIONER:
BANDHUA MUKTI MORCHA
Vs.
RESPONDENT:
UNION OF INDIA & OTHERS
DATE OF JUDGMENT16/12/1983
BENCH:
BHAGWATI, P.N.
BENCH:
BHAGWATI, P.N.
PATHAK, R.S.
SEN, AMARENDRA NATH (J)
CITATION:
1984 AIR 802 1984 SCR (2) 67
1984 SCC (3) 161 1983 SCALE (2)1151
CITATOR INFO :
R 1984 SC1099 (3)
RF 1986 SC 847 (30)
RF 1987 SC 990 (16)
R 1987 SC1086 (3,4,5,6,7)
R 1988 SC1863 (3,9,10)
F 1989 SC 549 (15)
RF 1989 SC 653 (12)
F 1990 SC2060 (3)
F 1991 SC 101 (35)
RF 1991 SC 420 (7)
RF 1991 SC1117 (7)
RF 1991 SC1420 (25)
RF 1992 SC 38 (4)
RF 1992 SC1858 (11)
ACT:
Constitution of India.-Article 32(1)-Mode of
interpreting Article 32-Appropriate proceedings, meaning
of-Letter addressed by a party on behalf of persons
belonging to socially and economically weaker sections
complaining violation of their rights under various social
welfare legislations-Whether can be treated as a writ
petition-Maintainability of-Public Interest Litigation-
Nature and scope of.
Constitution of India, Article 32 (2)-Appointment of
commissions by the Supreme Court to enquire into the
complaint made in the writ petition and relying upon the
commissioners' report-Propriety of-Adversarial Procedure-How
far binding on the Court-Supreme Court Rules, 1966, O, XXXV,
XLVI and XLVII, Rule 6-Code of Civil Procedure, O.XXVI.
Mines Act, 1952-Sections 2 (j), (jj), (kk), 3 (1) (b)
proviso 18 Chapters V, VI & VII-Meaning of the word mine-
Whether stone quarries are mines-Whether workers of the
stone quarries and crushers entitled to the benefits
accruing under the Act-Responsibility of the mine lessees,
mine owners, Central Government and the State Governments
for ensuring the benefits accruing under the Act, explained-
Mines Rules 1955, Rules, Rules 30-32-Punjab Minor Mineral
Concession Rules, 1964.
Inter-State Migrant Workmen (Regulation of Employment
and Conditions of Service) Act, 1979-ss.2 (1) (e), (b), (g),
4,8,12 and Chapter V-Inter-State Migrant Workmen (Regulation
of Employment and Conditions of Service) Central Rules,
1980-Rules 23, 25-45-Definition of inter-state migrant
workmen-Rights and benefits of inter-state migrant workmen
explained-Thekedars or Jamadars recruiting workers for mine
lessees/owners from outside the State are contractors-
Contract Labour (Regulation and Abolition) Act, 1970-ss. 2
(1) (a), (b), (c) (g), 16 to 21.
Bonded Labour System (Abolition) Act, 1976-ss.2 (f),
(g), 4, 5, 10-15-Existence of Forced Labour-Whether bonded
labour-Burden of proof lies upon the employer that the
labourer is not a bonded labourer-Court will be justified in
presuming that the labourer is a bonded labourer unless the
presumption is rebutted by producing satisfactory material.
Minimum Wages Act, Workmen's Compensation Act, 1983,
Payment of Wages Act, Employees State Insurance Act,
Employees Provident fund and Miscellaneous Provisions Act,
Maternity Benefits Act, 1957-Benefits accruing under these
Acts-Whether available to mine workers.
HEADNOTE:
The petitioner, an organisation dedicated to the cause
of release of bonded labourers in the country, addressed a
letter to Hon'ble Bhagwati, J. alleging: (1) that there were
a large number of labourers from different parts of the
country who were working in some of the stone quarries
situate in district Faridabad, State of
68
Haryana under inhuman and intolerable conditions; (2) that
a large number of them were bonded labourers; (3) that the
provisions of the Constitution and various social welfare
laws passed for the benefit of the said workmen were not
being implemented in regard to these labourers. The
petitioner also mentioned in the letter the names of the
stone quarries and particulars of labourers who were working
as bonded labourers and prayed that a writ be issued for
proper implementation of the various provisions of the
social welfare legislations, such as, Mines Act, 1952 Inter-
State Migrant Workmen (Regulation of Employment and
Conditions of Service) Act, 1979, Contract Labour
(Regulation and Abolition) Act, 1970, Bonded Labour System
(Abolition) Act, 1976, Minimum Wages Act, Workmen's
Compensation Act, Payment of Wages Act, Employees State
Insurance Act, Maternity Benefits Act etc. applicable to
these labourers working in the said stone quarries with a
view to ending the misery, suffering and helplessness of
these victims of the most inhuman exploitation.
The Court treated the letter as a writ petition and
appointed a commission to inquire into the allegations made
by the petitioner. The commission while confirming he
allegations of the petitioner, pointed out in its report
that (i) the whole atmosphere in the alleged stone quarries
was full of dust and it was difficult for any one to
breathe; (ii) some of the workmen were not allowed to leave
the stone quarries and were providing forced labour; (iii)
there was no facility of providing pure water to drink and
the labourers were compelled to drink dirty water from a
nullah; (iv) the labourers were not having proper shelter
but were living in jhuggies with stones piled one upon the
other as walls and straw covering the top which was too low
to stand and which did not afford any protection against sun
and rain; (v) some of the labourers were suffering from
chronic diseases; (vi) no compensation was being paid to
labourers who were injured due to accidents arising in the
course of employment; (vii) there were no facilities for
medical treatment or schooling. At the direction of the
Court, a socio-legal investigation was also carried out and
it suggested measures for improving the conditions of the
mine workers.
The respondents contended: (1) Article 32 of the
Constitution is not attracted to the instant case as no
fundamental right of the petitioner or of the workmen
referred to in the petition is infringed; (2) A letter
addressed by a party to this Court cannot be treated as a
writ petition; (3) In a proceeding under Art. 32, this Court
is not empowered to appoint any commission or an
investigating body to enquire into the allegations made in
the writ petition; (4) Reports made by such commissions are
based only on ex-parte statements which have not been tested
by cross-examination and therefore they have no evidentiary
value; and (5) there might be forced labourers in the stone
quarries and stone crushers in the State of Haryana but they
were not bonded labourers within the meaning of that
expression as used in the Bonded Labour System (Abolition)
Act, 1976.
Rejecting all the contentions and allowing the writ
petition on merits, the Court
^
HELD: The State Government's objection as to the
maintainability of the writ petition under Article 32 of the
Constitution by the petitioners is reprehensible. If any
citizen brings before the Court a complaint that a large
number of peasants or workers are bonded serfs or are being
subjected to exploitation by a few mine lessees or
contractors or employers or are being denied the benefits of
69
social welfare laws, the State Government, which is, under
our constitutional scheme, charged with the mission of
bringing about a new socioeconomic order where there will be
social and economic justice for every one equality of status
and opportunity for all, would welcome an inquiry by the
court, so that if it is found that there are in fact bonded
labourers or even if the workers are not bonded in the
strict sense of the term as defined in the Bonded Labour
System (Abolition) Act 1976 but they are made to provide
forced labour or are consigned to a life of utter
deprivation and degradation, such a situation can be set
right by the State Government. Even if the State Government
is on its own inquiry satisfied that the workmen are not
bonded and are not compelled to provide forced labour and
are living and working in decent conditions with all the
basic necessities of life provided to them, the State
Government should not baulk an inquiry by the court when a
complaint is brought by a citizen, but it should be anxious
to satisfy the court and through the court, the people of
the country, that it is discharging its constitutional
obligation fairly and adequately and the workmen are being
ensured social and economic justice. [102A-D]
2. Moreover, when a complaint is made on behalf of
workmen that they are held in bondage and are working and
living in miserable conditions without any proper or
adequate shelter over their heads, without any protection
against sun and rain, without two square meals per day and
with only dirty water from a nullah to drink, it is
difficult how such a complaint can be thrown out on the
ground that it is not violative of the fundamental right of
the workmen. It is the fundamental right of every one in
this country, assured under the interpretation given to
Article 21 by this Court in Francis Mullen's Case, to live
with human dignity, free from exploitation. This right to
live with human dignity enshrined in Article 21 derives its
life breath from the Directive Principles of State Policy
and particularly clauses (e) and (f) of Article 39 and
Articles 41 and 42 and at the least, therefore, it must
include protection of the health and strength of workers,
men and women, and of the tender age of children against
abuse, opportunities and facilities for children to develop
in a healthy manner and in conditions of freedom and
dignity, educational facilities, just and humane conditions
of work and maternity relief. These are the minimum
requirements which must exist in order to enable a person to
live with human dignity and no State neither the Central
Government nor any State Government-has the right to take
any action which will deprive a person of the enjoyment of
these basic essentials. Since the Directive Principles of
State Policy contained in clauses (e) and (f) of Article 39,
Article 41 and 42 are not enforceable in a court of law, it
may not be possible to compel the State through the judicial
process to make provision by statutory enactment or
executive fiat for ensuring these basic essentials which go
to make up a life of human dignity but where legislation is
already enacted by the State providing these basic
requirements to the workmen and thus investing their right
to live with basic human dignity, with concrete reality and
content, the State can certainly be obligated to ensure
observance of such legislation for inaction on the part of
the State in securing implementation of such legislation
would amount to denial of the right to live with human
dignity enshrined in Article 21, more so in the context of
Article 256 which provides that the executive power of every
State shall be so exercised as to ensure compliance with the
laws made by Parliament and any existing laws which apply in
that State. [103B-H 104A]
3. The State is under a constitutional obligation to
see that there is no violation of the fundamental right of
any person, particularly when he belongs to the
70
weaker sections of the community and is unable to wage a
legal battle against a strong and powerful opponent who is
exploiting him. The Central Government is therefore bound to
ensure observance of various social welfare and labour laws
enacted by Parliament for the purpose of securing to the
workmen a life of basic human dignity in compliance with the
Directive Principles of State Policy. It must also follow as
a necessary corollary that the State of Haryana in which the
stone quarries are vested by reason of Haryana Minerals
(Vesting of Rights) Act 1973 and which is therefore the
owner of the mines cannot while giving its mines for stone
quarrying operations, permit workmen to be denied the
benefit of various social welfare and labour laws enacted
with a view to enabling them to live a life of human
dignity. The State of Haryana must therefore ensure that the
minelessees or contractors, to whom it is giving its mines
for stone quarrying operations, observe various social
welfare and labour laws enacted for the benefit of the
workmen. This is a constitutional obligation which can be
enforced against the Central Government and the State of
Haryana by a writ petition under Article 32 of the
Constitution. [104 A-D]
4. While interpreting Article 32, it must be borne in
mind that our approach must be guided not by any verbal or
formalistic canons of construction but by the paramount
object and purpose for which this Article has been enacted
as a Fundamental Right in the Constitution and its
interpretation must receive illumination from the Trinity of
provisions which permeate and energies the entire
Constitution namely, the Preamble, the Fundamental Rights
and the Directive Principles of State Policy. Clause (1) of
Article 32 confers the right to move the Supreme Court for
enforcement of any of the fundamental rights, but it does
not say as to who shall have this right to move the Supreme
Court nor does it say by what proceedings the Supreme Court
may be so moved. There is no limitation in the words of
Clause (1) of Article 32 that the fundamental right which is
sought to be enforced by moving the Supreme Court should be
one belonging to the person who moves the Supreme Court nor
does it say that the Supreme Court should be moved only by a
particular kind of proceeding. It is clear on the plain
language of clause (1) of Article 32 that whenever there is
a violation of a fundamental right, any one can move the
Supreme Court for enforcement of such fundamental right. Of
course, the court would not, in exercise of its discretion,
intervene at the instance of a meddlesome interloper or busy
body and would ordinarily insist that only a person whose
fundamental right is violative should be allowed to activise
the court, but there is no fetter upon the power of the
court to entertain a proceeding initiated by any person
other than the one whose fundamental right is violated,
though the court would not ordinarily entertain such a
proceeding, since the person whose fundamental right is
violated can always approach the court and if he does not
wish to seek judicial redress by moving the court, why
should some one else be allowed to do so on his behalf. This
reasoning however breaks down in the case of a person or
class of persons whose fundamental right is violated but who
cannot have resort to the court on account of their poverty
or disability or socially or economically disadvantaged
position and in such a case, therefore, the court can and
must allow any member of the public acting bona fide to
espouse the cause of such person or class of persons. This
does not violate, in the slightest measure the language of
the constitutional provision enacted in clause (1) of
Article 32. [106 B-H-107A]
5. Clause (1) of Article 32 says that the Supreme Court
can be moved for enforcement of a fundamental right by any
'appropriate' proceeding. There
71
is no limitation in regard to the kind of proceeding
envisaged in clause (1) of Article 32 except that the
proceeding must be appropriate and this requirement of
appropriateness must be judged in the light of the purpose
for which the proceeding is to be taken, namely, enforcement
of a fundamental right. The Constitution makers deliberately
did not lay down any particular form of proceeding for
enforcement of a fundamental right nor did they stipulate
that such proceeding should conform to any rigid pattern or
straight jacket formula as, for example, in England, because
they knew that in a country like India, where there is so
much of poverty, ignorance, illiteracy, deprivation and
exploitation, any insistence on a rigid formula of
proceeding for enforcement of a fundamental right would
become self defeating because it would place enforcement of
fundamental rights beyond the reach of the common man and
the entire remedy for enforcement of fundamental rights
which the Constitution makers regarded as so precious and
invaluable that they elevated it to the status of a
fundamental right, would become a mere rope of sand so far
as the large masses of the people in this country are
concerned. The Constitution makers therefore advisedly
provided in clause (1) of Article 32 that the Supreme Court
may be moved by any 'appropriate' proceeding, 'appropriate'
not in terms of any particular form but 'appropriate' with
reference to the purpose of the proceeding. [107 A-F]
Therefore where a member of the public acting bona fide
moves the Court for enforcement of a fundamental right on
behalf of a person or class of persons who on account of
poverty or disability or socially or economically
disadvantaged position cannot approach the court for relief,
such member of the public may move the court even by just
writing a letter, because it would not be right or fair to
expect a person acting pro bono publico to incur expenses
out of his own pocket for going to a lawyer and preparing a
regular writ petition for being filed in court for
enforcement of the fundamental right of the poor and
deprived sections of the community and in such a case, a
letter addressed by him can legitimately be regarded as an
appropriate proceeding. [107 F-H]
6. Public Interest litigation is not in the nature of
adversary litigation but it is a challenge and an
opportunity to the government and its officers to make basic
human rights meaningful to the deprived and vulnerable
sections of the community and to assure them social and
economic justice which is the signature tune of our
Constitution. When the Court entertains public interest,
litigation, it does not do so in a cavilling spirit or in a
confrontational mood or with a view to tilting at executive
authority or seeking to unsurp it, but its attempt is only
to ensure observance of social and economic rescue
programmes, legislative as well as executive, framed for the
benefit of the have-nots and the handicapped and to protect
them against violation of their basic human rights, which is
also the constitutional obligation of the executive. The
Court is thus merely assisting in the realisation of the
constitutional objectives. [102 D-E, G-H, 103 A-B]
7. Clause (2) of Article 32 conferring power on the
Supreme Court to issue directions, or orders, or writs,
including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari which ever may be
appropriate, for enforcement of any of the fundamental
rights, is in the widest terms. It is not confined to
issuing the high prerogative writs of habeas corpus,
mandamus, prohibition, certiorari, and quo warranto, which
are hedged in by strict conditions differing from one writ
to another. But it is much wider and includes within its
matrix, power to issue any directions, orders or writs which
may be appropriate
72
for enforcement of the fundamental right in question and
this is made amply clear by the inclusive clause which
refers to in the nature of habeas corpus, mandamus,
prohibition, qua warranto and certiorari. Therefore even if
the conditions for issue of any of these high prerogative
writs are not fulfilled, the Supreme Court would have power
to issue any direction, order or writ including a writ in
the nature of any high prerogative writ. This provision
conferring on the Supreme Court power to enforce the
fundamental rights in the widest possible terms shows the
anxiety of the Constitution makers not to allow any
procedural technicalities to stand in the way of enforcement
of fundamental rights. The Constitution makers clearly
intended that the Supreme Court should have the amplest
power to issue whatever direction, order or writ may be
appropriate in a given case for enforcement of a fundamental
right. That is why the Constitution is silent as to what
procedure shall be followed by the Supreme Court in
exercising the power to issue such direction or order or
writ as in Article 32 and advisedly so, because the
Constitution makers never intended to fetter the discretion
of the Supreme Court to evolve a procedure appropriate in
the circumstances of a given case for the purpose of
enabling it to exercise its power of enforcing a fundamental
right. Neither clause (2) of Article 32 nor any other
provision of the Constitution requires that any particular
procedure shall be followed by the Supreme Court in
exercising its power to issue an appropriate direction,
order or writ. The purpose for which the power to issue an
appropriate direction, order or writ is conferred on the
Supreme Court is to secure enforcement of a fundamental
right and obviously therefore, whatever procedure is
necessary for fulfillment of that purpose must be
permissible to the Supreme Court. [108 B-H, 109 A-B]
8. It is not at all obligatory that an adversarial
procedure, where each party produces his own evidence tested
by cross examination by the other side and the judge sits
like an umpire and decides the case only on the basis of
such material as may be produced before him by both parties,
must be followed in a proceeding under Article 32 for
enforcement of a fundamental right. In fact, there is no
such constitutional compulsion enacted in clause (2) of
Article 32 or in any other part of the Constitution. There
is nothing sacrosanct about the adversarial procedure with
evidence led by either party and tested by cross-exmaination
by the other party and the judge playing a positive role has
become a part of our legal system because it is embodied in
the Code of Civil procedure and the Indian Evidence Act. But
these statutes obviously have no application where a new
jurisdiction is created in the Supreme Court for enforcement
of a fundamental right. Therefore it is not justified to
impose any restriction on the power of the Supreme Court
adopt such procedure as it thinks fit in exercise of its new
jurisdiction, by engrafting adversarial procedure on it,
when the constitution makers have deliberately chosen not to
insist on any such requirement and instead left it open to
the Supreme Court to follow such procedure as it thinks
appropriate for the purpose of securing the end for which
the power is conferred namely, enforcement of a fundamental
right.[109 B-G]
9. The strict adherence to the adversarial procedure
can some times lead to injustice, particularly when the
parties are not evenly balanced in social or economic
strength. Where one of the parties to a litigation belongs
to a poor and deprived section of the community and does not
possess adequate social and material resources, he is bound
to be at a disadvantage as against a strong and powerful
opponent under the adversary system of justice, because of
his difficulty in getting competent legal representation and
more than anything else, his inability to produce relevant-
73
evidence before the court. Therefore, when the poor come
before the court, particularly for enforcement of their
fundamental rights, it is necessary to depart from the
adversarial procedure and to evolve a new procedure which
will make it possible for the poor and the weak to bring the
necessary material before the court for the purpose of
securing enforcement of their fundamental rights. If the
adversarial procedure is truly followed in their case, they
would never be able to enforce their fundamental rights and
the result would be nothing but a mockery of the
Constitution. Therefore the Courts should abandon the
laissez faire approach in the judicial process particularly
where it involves a question of enforcement of fundamental
rights and forge new tools, devise new methods and adopt new
strategies for the purpose of making fundamental rights
meaningful for the large masses of people. And this is
clearly permissible on the language of clause (2) of Article
32 because the Constitution makers while enacting that
clause have deliberately and advisedly not used and words
restricting the power of the court to adopt any procedure
which it considers appropriate in the circumstances of a
given case for enforcing a fundamental right. [110 B-F]
10. It is obvious that the poor and the disadvantaged
cannot possibly produce relevant material before the Court
in support of their case and equally where an action is
brought on their behalf by a citizen acting pro bono
publico, it would be almost impossible for him to gather the
relevant material and place it before the Court. In such a
case the Supreme Court would be failing in discharge of its
contiotnal duties of enforcing a fundamental right if it
refuses to intervene because the stitupetitioner belonging
to the underprivileged segment of society or a public
spirited citizen espousing his cause is unable to produce
the relevant material before the court. If the Supreme Court
were to adopt a passive approach and decline to intervene in
such a case because relevant material has not been produced
before it by the party seeking its intervention, the
fundamental rights would remain merely a teasing illusion so
far as the poor and disadvantaged sections of the community
are concerned. Therefore the Supreme Court has evolved the
practice of appointing commissions for the purpose of
gathering facts and data in regard to a complaint of breach
of a fundamental right made on behalf of the weaker sections
of the society. The Report of the commissioner would furnish
prima facie evidence of the facts and data gathered by the
commissioner and that is why the Supreme Court is careful to
appoint a responsible person as commissioner to make an
inquiry or investigation into the facts relating to the
complaint. Even in the past the Supreme Court has appointed
sometimes a district magistrate, sometimes a district Judge,
sometime a professor of law, sometimes a journalist,
sometimes an officer of the court and sometimes an advocate
practising in the court, for the purpose of carrying out an
enquiry or investigation and making report to the court
because the commissioner appointed by the Court must be a
responsible person who enjoys the confidence of the court
and who is expected to carry out his assignment objectively
and impartially without any predilection or prejudice. Once
the report of the commissioner is received, copies of it
would be supplied to the parties so that either party, if it
wants to dispute any of the facts or date stated in the
Report, may do so by filing an affidavit and the court then
consider the report of the commissioner and the affidavits
which may have been filed and proceed to adjudicate upon the
issue arising in the writ petition. It would be entirely for
the Court to consider what weight to attach to the facts and
data stated in the report of the commissioner and to what
extent to act upon such facts and data. But it would not be
correct to say that the report of the commissioner has no
evidentiary value at all, since the statements
74
made in it are not tested by cross-examination. To accept
this contention would be to introduce the adversarial
procedure in a proceeding where in the given situation, it
is totally inapposite. [111 B-H, 112, A-B]
11. It is true that Order XLVI of the Supreme Court
Rules 1966 makes the provisions of Order XXVI of the Code of
Civil Procedure, except rules 13, 14, 19 20, 21 and 22
applicable to the Supreme Court and lays down the procedure
for an application for issue of a Commission, but Order XXVI
is not exhaustive and does not detract from the inherent
power of the Supreme Court to appoint a commission, if the
appointment of such commission is found necessary for the
purpose of securing enforcement of a fundamental right in
exercise of its constitutional jurisdiction under Article
32. Order XLVI of the Supreme Court Rules 1966 cannot in any
way militate against the power of the Supreme Court under
Article 32 and in fact rule 6 of Order XLVII of the Supreme
Court Rules 1966 provides that nothing in these Rules shall
be deemed to limit or otherwise affect the inherent powers
of the court to make such orders as may be necessary for the
ends of justice. [112 C-F]
In the instant case, therefore, the court did not act
beyond its power in appointing the commissions for the
purpose of making an inquiry into the conditions of workmen
employed in the stone quarries. The petitioner in the writ
petition specifically alleged violation of the fundamental
rights of the workmen employed in the stone quarries under
Articles 21 and 23 and it was therefore necessary for the
court to appoint these commissioners for the purpose of
inquiring into the facts related to this complaint. The
Reports of the Commissions were clearly documents having
evidentiary value and they furnished prima facie evidence of
the facts and data stated in those Reports. Of course, it is
for the court to consider what weight it should attach to
the facts and data contained in these Reports in the light
of the various affidavits filed in the proceedings.[112 F-H,
113 A-B]
12. The position pointed out as the power of the
Supreme Court to appoint commissioners in the exercise of
its jurisdiction under Article 32 must apply equally in
relation to the exercise of jurisdiction by the High Courts
under Article 226 for the latter jurisdiction is also a new
constitutional jurisdiction and it is conferred in the same
wide terms as the jurisdiction under Article 32 and the same
powers can and must therefore be exercised by the High Court
while exercising jurisdiction under Article 226. In fact,
the jurisdiction of the High Courts under Article 226 is
much wider, because the High Courts are required to exercise
this jurisdiction not only for enforcement of a fundamental
right but also for enforcement of any legal right and there
are many rights conferred on the poor and the disadvantaged
which are the creation of statute and they need to be
enforced as urgently and vigorously as fundamental rights.
[113 B-D]