By Apurva Rathee, Advocate

Statement of Facts:

  1. The Petitioner, Bandhua Mukti Morcha, is an organization dedicated to the cause of release of bonded labourers.
  2. The Petitioner conducted a survey of some of the stone quarries in Faridabad district near the city of Delhi.
  3. On the basis of that survey, the petitioner addressed a letter to Hon’ble Justice Bhagwati on 25th February 1982 alleging that:
  • In the mines of Sh. S.L. Sharma in Faridabad District, Haryana, a large number of labourers from different part of the country were working under inhuman and intolerable conditions;
  • A large number of them were bonded labourers;
  • The provisions of the Constitution and various social welfare laws passed for the benefit of said workmen were not being implemented.
  • The petitioner also mentioned the particulars of labourers who were working as bonded labourers and prayed that a writ be issued for the 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 1948 etc. applicable to these labourers working in the said stone quarries with a view to ending their misery and helplessness.
  1. The Hon’ble Supreme Court treated the said letter as a writ petition and on 26th February 1982 appointed a Commission consisting of Mr. Ashok Shrivastava and Mr. Askok Panda to enquire into the allegations made by the Petitioner.
  2. The Commission while confirming the allegations made by the Petitioner, pointed out in its report dated 2nd March 1982 that:
  • The whole atmosphere in the alleged stone quarries was full of dust and it was difficult for anyone to breathe;
  • Some of the workmen were not allowed to leave the stone quarries and were providing forced labour;
  • There was no facility of providing clean drinking water;
  • The labourers did not have proper houses, instead they were living in jhuggies made of piled stones and straw;
  • No compensation was paid to labourers who were injured in accidents occurring in the course of their employment;
  • There were no facility for medical treatment or schooling.
  1. At the direction of the Apex Court, a socio-legal investigation was also carried out by Dr. Patwardhan.

Issues Involved:

  • Preliminary Issues:

  1. Whether or not writ petition under Article 32 of the Constitution is maintainable in the present matter?
  2. Whether or not any fundamental right of the Petitioner or of the workmen on whose behalf the writ petition has been filed is infringed?
  3. Whether or not the Supreme Court is empowered to appoint any Commission or investigating body under Article 32 of the Constitution?
  • On Merits:

  1. Whether or not the workmen mentioned in the present case are bonded labourers?
  2. Whether or not the workmen in the present case are entitled to benefits under various social welfare and labour law legislations?

Arguments Advanced (On behalf of Respondents):

Issue 1:

  1. That the present writ petition is not maintainable under Article 32 of the Constitution.
  2. That the petitioner has no locus standi.
  3. That a letter addressed by a party to the Court cannot be treated as a writ petition.
  4. That in the absence of a verified petition the Apex Court cannot be moved to exercise its writ jurisdiction.

Issue 2:

  1. That even if the allegations made by the Petitioner in the letter dated 25th February 1982 are true, it still cannot support a writ petition under Article 32.
  2. That no fundamental right of the petitioner or of the workmen on whose behalf the petition is filed is infringed.

Issue 3:

  1. That the Supreme Court does not have power to appoint Commissioner.
  2. That the Commissioner appointed in the present matter are beyond the scope of Order XLVI of the Supreme Court Rules, 1966 and therefore no reliance can be placed on the said reports.
  3. That reports submitted by Commissioners are based only upon ex parte statements which have not been tested by cross examination.
  4. That the said reports, therefore, have no evidentiary value.

Issue 4:

  1. That the labourers in stone quarries and stone crushers might be forced labourers, but they are not bonded labourers within the meaning of the Bonded Labour System (Abolition) Act, 1976.
  2. That under the above mentioned Act, a labourer would be a bonded labourer only if he has or is presumed to have incurred a bonded debt.
  3. That there is nothing in the present case to show that the labourers employed in the stone quarries and stone crushers has incurred or could be presumed to have incurred any bonded debt.
  4. That it is not sufficient to merely show that the labourers were providing forced labour in as much as they were not being allowed to leave the premises.
  5. That even if the workmen filed affidavits to the effect that they had taken advances from the thekedar or mine lessees or the stone crusher owners and they were not being allowed to leave the premises of the establishment until the advances were paid off, that would not be enough evidence for them to be declared bonded labourers, because the mine lessees and stone crusher owners had no opportunity to cross-examine the workmen making such affidavits.[1]

Issue 5:

  1. That the workmen employed in the stone quarries and stone crushers were coming to join the service in the stone quarries of their own volition and they were not recruited by any agent for being migrated from any State and so they did not come under the definition of the term ‘Inter-state Migrant Workmen’.[2]
  2. That the application of the Mines Act, 1952; Minimum Wages Act, 1948 and other basic amenities such as clean drinking water and sanitation not disputed.

Judgement of the Supreme Court:

After hearing the arguments and going through all the facts and relevant law, the Supreme Court allowed the writ petition and gave elaborate directions to the Central Government, State Government of Haryana and other concerned authorities.

Per Bhagwati, J. :-

Issue 1:

  1. Regarding the issue of maintainability of the writ petition in the present matter; the Court first looked into the issue of locus standi.
  2. The Court stated that earlier the view was that only a person whose fundamental right had been violated could approach the court, that is, the petitioner must have a cause of action for enforcement of his fundamental right.
  3. However, in the Judges Appointment and Transfer Case[3] the Supreme Court took the view that where a person or class of persons to whom legal injury is caused by reason of violation of a fundamental right is unable to approach the court for judicial redress on account of poverty or disability or socially or economically disadvantaged position, any member of the public acting bona fide can move the Court under Article 32 or Article 226 of the Constitution, so that the fundamental rights become meaningful not only for the rich and the resourceful but also for the masses who are living a life of destitution, lack of awareness and resources.[4]
  4. While interpreting Article 32, the approach of the Court must be guided by the paramount object and purpose for which this article has been enacted as a fundamental right and not by formalistic rules of construction.
  5. There is no such 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 Court should be moved only by a particular kind of proceedings.
  6. Thus, whenever there is a violation of the fundamental rights any person can move the Supreme Court. The Court will use its discretion and ordinarily not allow a person to exercise Article 32 until and unless his or her own right is infringed, however, there is no fetter upon the power of the Supreme Court.
  7. Also, there is no limitation with regard to the ‘kind of proceeding’ envisaged under Article 32 (1) except that the proceedings must be “appropriate” and this requirement of appropriateness must be judged in the light of the purpose for which the proceedings is to be taken, namely enforcement of a fundamental right.[5] Thus, ‘appropriate’ is not in terms of any particular form.
  8. A person acting pro bono publico for enforcement of a fundamental right may move the court even by writing a letter which can be regarded as appropriate proceedings.

Issue 2:

  1. In response to the argument raised by the Respondent that there has been no infringement of any fundamental right, the Apex Court said that when a public interest litigation is initiated alleging that certain workmen are living in bondage and under inhuman conditions, it is not expected of the government to raise such preliminary objections. Instead, the Government should welcome an inquiry by the Court, so that it can be found if there are workers living in bondage or otherwise providing forced labour, and the Government can set right such a situation.[6]
  2. A public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the Government to make basic human rights meaningful to the deprived and vulnerable sections of the community.
  3. The Court further cited the case of Frances Mullin[7] wherein it was held that Article 21 includes the right to live with human dignity, free from exploitation.
  4. The right to live with human dignity derives its life breath from the Directive Principles of State Policy, particularly Article 39 (e), Article 39 (f), Article 41 and Article 42, therefore, it must include the protection of health and strength of workers, both men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief.[8]
  5. Therefore, the State is under a constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when he or she belongs to the weaker sections of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him.
  6. Both, the Central and the State Governments are bound to apply 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.[9]

Issue 3:

  1. The Court held that the issue number 3 with regards to the appointment of the Commissioners is based upon a total misconception of the true nature of the proceedings under Article 32 of the Constitution.[10] This is because the power conferred on the Supreme Court by Article 32 (2) is in the widest terms.
  2. Article 32 (2) includes within its matrix, power to issue any direction, order or writs which may be appropriate for the enforcement of the fundamental right in question and this is made amply clear by the inclusive nature of the clause which refers to writ in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Therefore, it is not only the high prerogative writs which can be issued by the Supreme Court but also writs in the nature of these high prerogative writs.[11]
  3. Thus, the Constitution makers did not allow any procedural technicalities to stand in the way of enforcement of fundamental rights.
  4. No particular procedure has to be followed by the Court in exercising its power under Article 32. Thus, it is not obligatory that an adversarial procedure be followed in case of enforcement of fundamental right.
  5. The poor and the disadvantaged and also a citizen acting pro bono public cannot possibly produce relevant material before the Court in support of their case. This is the reason why the Supreme Court has evolved the practise of appointing commissions for gathering facts and data regarding a complaint.[12]
  6. Such a report filed by the Commissioner:-
  • Furnishes prima facie evidence of the facts and data gathered
  • Copies of the report are supplied to both parties
  • If any party wants to dispute any facts or data stated in the report, it can do so by filing an affidavit.
  • The court considers both the report as well as the affidavits filed by the parties for adjudication.
  1. The Supreme Court Rules 1966 states that a Commission can be appointed by the Supreme Court only for the purpose of examining witnesses, making legal investigations and examining accounts and the Supreme Court has no power to appoint a Commission for making an inquiry. However, Rule 6 of Order XLVII of the Supreme Court Rules 1966 provides that nothing in those rules “shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as maybe necessary for the ends of justice.”[13]

Issue 4:

  1. In response to the question whether or not the workmen in the present matter were bonded labourers, the Apex Court said that whenever it is shown that a labourer is made to provide forced labour the court would raise a presumption that he is required to do so in consideration of an advance or other economic consideration received by him as bonded debt and he is therefore a bonded labourer.[14]
  2. This presumption maybe rebutted by the employer and also by the State government but unless and until satisfactory material is produced for rebutting this presumption, the Court must proceed on the basis that the labourer is a bonded labourer entitled to the benefit of the provisions of the Bonded Labour System (Abolition) Act, 1976.
  3. The State Government cannot 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 concluded according to the rules of adversary system of justice, that they are bonded labourers.

Issue 5:

  1. The stone quarries in the instant case were held to be ‘mines’ within the meaning of 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 these stone quarries extend below superjacent ground.[15]
  2. Since the workings of these stone quarries extend below the superjacent ground and they are not ‘open case workings’ and moreover, explosives are admittedly used in connection with the excavation, the conditions set out in the proviso to Section 3 (1) are not fulfilled and hence, exclusion to the provisions of the Mines Act, 1952 is not attracted and all the provisions of the said Act apply to stone quarries.[16]
  3. For finding out the application of the Inter-State Migrant Workmen (Regularization of Employment and Conditions of Service) Act, 1959, the Court said that inquiry had to be done whether in any particular stone quarry or stone crusher the workmen employed are inter-state migrant workers or not.[17]
  4. The Haryana Government was directed to implement the provisions of Minimum Wages Act, 1948 ensuring that minimum wages are paid to the workers.[18]

Per Pathak, J. :-

Issues 1, 2 and 3:

  1. The provisions of Article 32 do not specifically indicate who can move the court. In the absence of such a confining provision, it is plain that a petitioner maybe anyone in whom the law recognizes a standing to maintain an action of such nature.[19]
  2. As regards the form of the proceeding and its character, Article 32 generally speaks “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.[20]
  3. A practise has grown in the public of invoking the jurisdiction of the Supreme 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 of the Constitution. Grave danger is inherent in a practise where a mere letter is entertained as a petition from a person whose antecedents and status are unknown. There is good reason in insisting for proper evidence indicating that allegations are made with responsibility.[21]

Issue 4 and 5:

Pathak, J. stated his complete agreement with the judgment on merits as given by Bhagwati, J. as also the specific directions given to governments.[22]

Per Sen, J. :-

Issues 1, 2 and 3:

  1. Sen, J. was in agreement with the judgment given by Bhagwati, J. and said that whenever any person is wrongfully and illegally deprived of his liberty, it is open to anybody who is interested in the person to move the Court under Article 32.[23]
  2. The locus standi of the petitioner to move this court appear to be conclusively established by the decision of the Apex Court in the case of P. Gupta v. Union of India[24] wherein it was held that a person can file a petition on behalf of another acting pro bono public.[25]
  3. Forced labour is forbidden by Article 23 of the Constitution. As in the present case there is violation of the fundamental right of liberty of the workmen who are said to be kept in wrongful and illegal detention and employed in forced labour, Article 32 is attracted.[26]
  4. Normally the rules prescribed for filing of the petition under Article 32 should be followed. However, in exceptional cases and particularly in matters of general public interest, Supreme Court may, proceed to exercise its jurisdiction under Article 32 of the Constitution treating a letter or a communication in any other form as an appropriate proceeding.[27]
  5. Also, the Commission that the Court appoints or the investigation that the Court directs while dealing with a proceeding under Article 32 of the Constitution is not a commission or inquiry under Code of Civil Procedure. Such powers must be held to be implied under the vast powers conferred on the Supreme Court under Article 32 for the enforcement of fundamental rights.[28]
  6. Litigation in relation to bonded labourers is really not in the nature of adversary litigation and it becomes the duty of the State and also the appropriate authorities to offer their best co-operation to see that this evil practise which has been declared illegal is ended at the earliest.[29]

Issues 4 and 5:

  1. Sen, J. was in agreement with the directions given by Bhagwati, J.
  2. However, Sen, J. also said that in the facts and circumstances of the matter at hand, he has doubts as to the applicability of the provisions of Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979. He further stated that the views expressed by Bhagwati, J. do not amount to any adjudication on the question of applicability of the said Act.[30]

Directions of the Supreme Court:[31]

The Apex Court issued directions to the Central government, the government of Haryana and various authorities. These directions are given below:

  1. The Government of Haryana will without delay and at any rate within 6 weeks from the date of the judgment constitute Vigilance Committee in each sub-division of a district in compliance with the requirements of Section 13 of the Bonded Labour System (Abolition) Act, 1976 keeping in view the guidelines as laid down by Supreme Court in this judgment.
  2. The Government of Haryana will instruct the District Magistrates to take up the work of identification of bonded labour as one of its top priority tasks. The District Magistrates are to map out areas of concentration of bonded labour which are mostly to be found in stone quarries and brick kilns and assign task forces for identification and release of bonded labour. Periodically, hold labour camps to educate such labourers with the help of the National Labour Institute.
  3. The State Government has to take the assistance of non-political social action groups and voluntary agencies for ensuring implementation of the Bonded Labour System (Abolition) Act, 1976.
  4. The Government of Haryana had to draw up within a period of three months from the date of judgment a scheme or programme for rehabilitation of the freed bonded labourers.
  5. The Central Government and the Haryana Government will take all necessary steps for the purpose of ensuring that minimum wages are paid to the workmen employed in stone quarries and stone crushers. Also, this direction was to be implemented so that within six weeks, the workmen actually start receiving in their hands a wage not less than the minimum wage.
  6. If payment of wages is made on truck basis, the Central Government should direct the appropriate officer to determine the measurement of each truck as to how many cubic feet of stone it can contain and print or inscribe such measurement on the truck so that appropriate wage is received by the workmen and they are not cheated.
  7. Appropriate officers of the Central Enforcement Machinery are to carry out surprise checks atleast once a week for the purpose of ensuring that the trucks are not loaded beyond their true measurement capacity and if it is not found so, necessary action shall be initiated against the defaulting mine owners or/ and thekedars.
  8. The Haryana Government will ensure that the payment of wages is made directly to the workmen by the mine lessees and stone crusher owners and periodic checks would be carried out to ensure this.
  9. The Central Board of Workers Education will organize periodic camps near the sites of stone quarries in Faridabad district for the purpose of educating the workmen about the rights and benefits available to them by social welfare and labour laws.
  10. The Central Government and Haryana Government will immediately take steps for the purpose of ensuring that the stone crusher owners do not continue to foul the air and they adopt either of the two devices, namely:
  • Keeping a drum of water upon the stone crusher machine which continuously sprays water upon it.
  • A dust sucking machine.

A compliance report was to be filed before the Supreme Court on or before 28 February 1984.

  1. The Central Government and State Government will immediately ensure that mine lessees and stone crusher owners start supplying pure drinking water to the workmen on a scale of atleast 2 litres for every workmen at conveniently accessible points, in clean and hygienic conditions. In case of default, action to be taken against defaulter.
  2. The governments also have to ensure that minimum wage is to be paid to the women and children who look after the vessels in which pure drinking water is kept.
  3. The mine owners and stone crusher owners are to obtain water from unpolluted sources and transport it by tankers to the work site with sufficient frequency so as to keep the vessels filled up for supply of clean drinking water for workmen.
  4. The State Government must ensure that conservancy facilities in the shape of latrines and urinals in accordance with the Section 20 of the Mines Act 1952 and Rules 33 to 36 of the Mines Rules, 1955 were to be provided at the latest by 15th February 1984.
  5. To ensure that appropriate and adequate medical and first aid facilities are provided to workmen as required by Section 21 of the Mines Act 1952 and Rules 40 to 45-A of the Mines Rules 1955.
  6. To ensure that every workmen who is required to carry out blasting with explosives is trained under the Mines Vocational Training Rules, 1966 and also holds first aid qualifications and carries a first aid outfit while on duty.
  7. To ensure that the mine lessees and owners of stone crushers provide proper and adequate medical treatment to the workmen and their families free of cost.
  8. The benefits under the Maternity Benefit Act, 1961 are provided.
  9. If the workman receives injury or contracts disease in the course of his employment, the concerned mine lessees or owners of stone crushers shall immediately report this fact to the Chief Inspector or the Inspecting Officer of the Central or State Governments, who shall then provide legal assistance to the workmen with a view to enable him to file a claim for compensation before the appropriate Court or authority.
  10. The concerned inspecting officers will visit the quarries once in every fortnight and if they find any labourer injured or suffering from illness, they will provide medical and legal assistance.
  11. If the Central Government and the Haryana Government fail to ensure performance of any of the obligations set out in Clauses 11, 13, 14 and 15 by the mine lessees and stone crusher owners within the period specified in those respective clauses, such obligation or obligations to the extent to which they are not performed shall be carried out by the Central Government and the State Government.
  12. The Supreme Court appointed Mr. Laxmi Dhar Misra, Joint Secretary in the Ministry of Labour, Government of India as a Commissioner for the purpose of carrying out the following assignments:
  • To visit the stone quarries and stone crushers in Faridabad district and ascertain by enquiring from the labourers if any of them are being forced to provide labour and are bonded labourers.
  • To prepare a list of workmen who according to his enquiry are bonded labourers and he will also ascertain from them whether they want to continue to work in the stone quarry or they want to leave.
  • To give particulars of workers who want to leave to District Magistrate, Faridabad who will then make necessary arrangements for releasing them and provide for their transportation back to their homes.
  • To ensure from mine lessees and owners of stone crushers and the thekedars whether any advances were made by them to the labourers and whether any documentary evidence is there in support of the same.
  • To ascertain that workers get their wages not less than the minimum wage
  • To ascertain if there are any contract labourers or inter-state migrant labourers.
  • To ascertain whether directions of the court regarding supply of pure drinking water, conservancy facilities, medical and health care facilities have been implemented or not.
Image Source: https://bandhua1947.files.wordpress.com/2014/01/no-bonded-labour.jpg?w=240&h=240

[1] Para 23 of the Judgment

[2] Para 18 of the Judgment

[3] AIR 1982 SC 149

[4] Para 11 of the Judgment

[5] Para 12 of the Judgment

[6] Para 9 of the Judgment

[7] AIR 1980 SC 849

[8] Para 10 of the Judgment

[9] Asiad Constructions Workers case, AIR 1982 SC 1473

[10] Para 11 of the Judgment

[11] Para 13 of the Judgment

[12] Para 14 of the Judgment

[13] Ibid.

[14] Para 24 of the Judgment

[15] Para 16 of the Judgment

[16] Para 17 of the Judgment

[17] Para 18 of the Judgment

[18] Para 29 of the Judgment

[19] Para 51 of the Judgment

[20] Para 52 of the Judgment

[21] Para 54 of the Judgment

[22] Para 71 of the Judgment

[23] Para 75 of the Judgment

[24] AIR 1982 SC 149

[25] Para 76 of the Judgment

[26] Para 75 of the Judgment

[27] Para 78 of the Judgment

[28] Para 81 of the Judgment

[29] Para 82 of the Judgment

[30] Para 84 of the Judgment

[31] Para 40 of the Judgment

Advertisements