BANDHUA MUKTI MORCHA v. UNION OF INDIA & OTHERS

Citation: [1984] 2 S.C.R. 67

Court: Supreme Court of India

Bench: P.N. BHAGWATI, R.S. PATHAK, AMARENDRA NATH SEN

Case summary

of non-beings into human-beings and what it involves is eloquently described in the beautiful lines of Rabindra Nath Tagore ·in "Kadi and Koma! States and obviously with the ushering in of independence it could · not be allowed to continue to blight the national life any...

Judgment text

• . BANDHUA MUKTI MORCHA • v. UNION OF INDIA & OTHERS· December. 16, 1983 Constiflltio11 of India. -Article 32 (1)-Mode of intirpreting Article 3Z..... - "Appropriate proceedings", 1neaning of-Letter addressed· by a party on behalf of pers_ons belonging to socially and, economically weakeriRections co1n'p/aining violation ... • oftheir rights under vario~ts social welfare legislations-Whether can be t'reated as a writ petition. _Maint~iltability of-Public ·Interest Litigation-Nature and scope of. . C • -- Constitution of India, Article 32 (2)-Appointmeftt of com1nissions _by ihe Supretn'! Court to enqui;e into the complaint made iii the writ petition anti rrlying upon the commi~sioners' re/,ort-Prop~iety of-Adver:;arial Procedure-How far binding on the Co. urt-Supreme Court Rules, 1966, O, ·xxxv, XLVI and XLVll, Rule 6- Code of Civil Procedure,. O,XXVI. · Mines Act, ·1952-Sections 2 (j), (jj), (kk), . i (I) (b) proviso 18 Chapters V, VI &.

Vil-Meaning of the word ''mine"--Whether stone quarries are 1n;ties-Whether workers ofthe stone quarries and crushers entitled to the benefits accruing under" the Act-Responsibility of the mine lessees, 1nine owners, Ceniral Governmint and the State ·Governments for ensuring the benefits accruing under the Act, explained-Mines Rules 1955, Rules 30-32-r'uniab Minor Minera~ Concession Rules, 1964. Inter-State Migra~t Work1nen (Regulation of . Employment and Conditions ofService) Act. 1979-ss. 2 (/) (e), (b), (g), 4,§_)2 and Chapter V-Inter·State Migrant Workmen (Regulation ofEmployment aird Conditions of SerJ1ice) Central Rules, :1980-Rules 23, 25-45-Definition ofinter-state 1nigrant workinen-Rights and benefits ofinter-state mlgrant workmen·explalned~Thekedars or Jan1adars recruitlng workers for· mine lessees/owners from outside the State are "contractOrs"-Contract Labour (Regulation and Abolition) Act, J. 970-:-ss. 2 (/)(a), (b), (c) (g), 16 to 21. . .

Bonded IAbour Sys(em (Abolition) Act, 1976-ss. 2 (f), (g), 4, 5, 10-15-Exis- ·, tene,!! ofForced Labour-Whether bonded. labour-Burden o} prooJ lies upon the employer that the labourer is not a bonded labourer-Court will be justified in pressuming thilt the labourer ls a bonded labourer unless the pfesumption is rebutted by . producing satisfactory mai~rial. 1 Minbnum Wciges Act, Worktnen's C0mpensation Act, 1983,Paynient of Wages Act, ·E1npl0Yees State Insurance Act, Emplqyees Provident Fund and MisCel/aneous Provisions Act, Maternity Benefits Act, 1957-Benefits accruing under these Acts- Whether available to mine workers. - - .... The petitioner, an organisation dedicated to the cause of release of bonded . labourers in the country, addressed ·a Ieiter to Hon'ble Bbagwati, J. alleging : (1) that there \Vere a large number oflabourers from different parts ofthC: Country who wC:re work. 1ng in some of the stone quarries situate in district Faridabad, State of . ' .

' • , Haryana under inhuman and intolerable cohditions; (2) that a large number of them were bonded labollrcrs; (3) that the provision·s of the Constitution and 'r-· ·various social Weffare laws passed for the benefit of the ~aid workmen ~ere not be:ing implemented in regard to these IabOurers.. Th~ petitioner also mentioned in the letter the names of the stone. quarries and particulars of labourers who were work~ ing a_s bonded labourers and prayed that a w. t;it be issued for Proper implementation of the yarious provisiOni . of . the.. , soda! welfare legislations, s:4ch as,· Min~s Act, 1952 Inter-State ~11grant Workmen (Regulation of Employment and Con. :. . B ditiofls 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, ·Ma. tern'ity ~enefits Act et~. applicable t~ these'Iabour~rs Wo.

rking in the said ,sto-ne quarries with a view to endiIJ,$ the misery, suffering, and helplessness of "these victims of t~e inost inhllinan exploitation. " · The Coui't treated the letter as·a writ petition and appointed a commissi;>n to inqui. re ·into· the allegations made by the petitioner. The conunission while cori- , firming the allegatic;>ns of the petitioner, pointed out i~ its ref)ort that-(i) the v,. hole atmosphere in the alleged stone quarries was fuil of dust and it was difficult for any ·one tci breathe; ai) some of.

the workmen were riOt allowed to leave the stone quarries and were providing forced lab6ur; {i~i) there was no· facility of providing pure water to•drink and the labourers wefe compelled to' drink dirty water from a nul/ah; (i11) the labourers were not ·having proper shelter but were living in jhuggies With stones piled one upon the other as walls and straw caverning the top which Was too low to stanP, and which did not afford any proteCtion ag but it does not say as to who , shall have this right to move the Supreme Court -nor d0eS it say by what proceeding~ the Supreme Court may be so mov~d. There. is no limitation in the words of Clause. (J) of Article 32-that the fundamental right which is sought to be enforced bY n1oving the Supreme Court should be o. ne belonging to the person who n1oves· the Suprerne Court nor does it say that the Supreme Court shoU:ld be moved only by-a particular kind of proceeding.

· It is clear on the plain language of clause' (l)' of ·Article 32 that wheriever there is ii violation of a fundamental right, any ' . One can move the Supreme Court for enforcement Of ,such fundamental right. " J Of course, the collrt would nbt, in exercise of its discfetion, intervene at the in· I ,. stance of a ·meddlesome interloper or buSy body and would ordinarily insist that 0 only a person whose fundain"ental fight 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 ally person other than . the one whose fundamental right is violated, though the court would not ordinarily entertain such a proceeding, since the person whose fuiidamental right. is violated. can always approach the ·court-and if he docs not wisli to seek judical 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~ person or·ciass of persons ,vhose fundamental right is violated but who canno·t 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 rriust allow any membf:r of the public a~ting bona fide to esPouse thC cause of such person or class of persons. This does not violate, in the slightest measμro the Iallguage of the constitutional provision enacted in clause (1) of Article 32. [106 B·H-107AJ • • ff s:~ Clause (1) of Articie. 32 s_ays that the Suprf. me Cotirt can_ be moved for cnforcenlent·of a fundan1ental right by· any 'appfopriate' proceeding. There . . • BANDHUA MUKTI MORCHA V. UNION 71 is no liinitation in regard to the_kind o_f proceeding envisaged·in clause (1) of Article · 32 except that the proceeding must be "appropriate" and this requirement of appr.

opriateness 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 Jay down any pariicular forn1 of proceeding for enforcement o·r a fundamental right nor di&,they stipulate that suCh proceeding should confonn to anY rigid pattern or straight jacket fonnula as, for example, in Erigland, becau5e theY knew that in a country like India· where there is so much of poverty, ignorance, illiteracy, deprivation and ~xploitation, any insistence on a rigid for· mula of proceeding for enfotcement of a fundamental right would become ~elf~ defeating because it would place enforcement of fundamental r,ights beyond the reach of the comiμo"n man and~the entire remedy for enforcetnent of fundamental rig_hts which the Constitution makers regarded as so precious and invaluable that they elevatCd it to the status of a fundii.

mentaI right, would become a mere rope of sand so far aS; the large masses of the people in this country are concerned. The Ill Constit~tion 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 p'oceeding. [107 A-F] · ' . ' . ~ ..... Therefore where a member of the public acting bona fide mOves the Court ' for. enforcement of a fi.! -ndamenta1 right on beha_lf of, a person or ~lass of persons who on-account of poverty or disability or socially of economicallY disadvantaged position canriot approach the court for relief, such member of the public may mOve the collrt even by just writing a letter,'because it woi. Ild not be right or fair to expect a person' acting pro bonoPublico to incur expenses out of his own pocket for going to a lawyer aii. d prepar.

ing a regular writ petitiofi 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] · E' . 6. Public Interest litigation is not in the nature ofadversary litigation. but it is a challenge and an opportunity to the goYernment and its officers to make basic human rights meanirigful to the deprived and vulnerable sections of the comn1unity and to assure them 'social and economic justice whici:) i~ the signature tune of our Constitution. When the Court 'entertains public interest litigation, it does no. t do so in a cavilling spirit or in a confrontational mood or with a yiew to tilting at .

executive authority or seeking to unsurp it, but its attempt is only to ensure obser- Vance ar social and economic rescue progfamrhes, legislative as wen as eXecutive, framed for the benefit of the have-nots and the handicapped and to protect them· against v;iolation of their basic hunian ;-ights, which is also thti eonstitutional obli· gation of the executive. The Court is thus merely assisting in the realisation of the constitutional. objectives. [102 D-E, G-H, 103 A-Bl 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 ~e appropriate, • for enforcement of any of the fundamerital rights, is in the widest ·terms..

It is not con,fined to issuing the high prerogative writs of habeas corpus, mandamust prohibition, certiorari, and quo warranto, which are hedged in by strict conditions differing froin one writ to another. But it is i'. nuCh wider and includes within its ~trix, Power· to issue any directions, orders or WtitS Which may be appropriate ' . • SuPREME COURT RE}? ORTS (1984] 2 S. C. R. fot enforctment of the fu~damental right in question and this is m3. de aniply 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 wou. ld have power to issue any directjon, order or ~it 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 poss1ble terms shows the anxiety of the ·constitution makers not to a1Iow anY proceduraJ. technicalities to stand·in the way Or enforcement of fundamental rights. Th6 Constitution makers 'clearly intended . that . ihe Supreme Court should have the an1plest power to issue whatever direction, order or writ may be 'appropriate. in a given case for enforce- \. '". ment of a fundamental right: That is why the Constit~tioll is silent as to what procedurC sh - , tion, it is totally inapposite. [111 B-H, 112, A-BJ 1. 1. Ifis 'true that Order XLVi of the Supreme Court Rules 1966 makes the provisions of Order x·xvr of the Code of Civil·Procedure, except rules 13, 14, 19, io, 21 and 22 applicable to the Supreme Court and lays down the procedure for an application, for issue of a Comm_ission, but Order XXVI is not exhaustive and does Il~t"d~tract from the-inherent power of th(l Supreme Court to appoint a conurll~sion, if the.

appointment of such Comthission is found necessary for the purpose of secur- . ing enforcement ~fa funda1nental tight in- exercise of its constitutional jurisdiction under Article 32. Order XLYI Of_the Supreme Court Rules 1966 cannot in any way n1ilitate 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 noth. ing in these Rules "shall be deemed to limit or otherwise affect the inherent Powers of the couft . to niakC such orders as may be n~ss~ry for the cndS of justice. [l 12 C-F] \ ... In the instant case, thf:refore, the Court did not act'beyond its power in appointing the commissions for the purpose of making ~n inquiry into the conditions of_ workmen employed i°' the st ntJ:is. Section (2) sub-section (1) Clause (b) of the Act defines contractor, in relation to an establishment, to me?.

n "a person \vho 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 n1anufacture to such establishment, b)• 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 s. Ub-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 a,greement or other arra~gement for employme·nt ·in an establishment in· anoiher State, whe'the1· with or with~out the knowledge of the principal employer in relation to Such establisbment. " The ex- .

, pression "pri~ipal en1ployer" is defined by claUse (g) of sub-~tion ·(1) of section 2 tO inean "in relation to a mine, the owner or agent of the mine·and where a person has been named as the nianager of the mine, . the person so named. " Obviously, therefore, the mine-lessees and owners of stone crushers in the . present case would be principal en1ployers within the ·meaning of that expression as used in the Inter- 76 SUPREME COUllT REPORTS . . [1984] 2s. c. R. State WorknlCn Act. Section 16 Jays a duty ·on every contractor employing inter State migrant work1nen i_n connection with the work ofan cstablishment to provid~ various other facilities particulars of. which are to be found in Rules 36 to ·45 of ~he Inter-State Migrant Workmen Rules. (These facilities include me'dical facilities, protective ·clothing, di-inking water, latrines;_ urinaIS and •washing facilities, rest rooms, ca~teens, crccbe and residential accomn1odation)..

The obligation to provide these f r1 ,because Section 18 provides in so many terms that if any anowancc required tb be paid under-section 14 or 15 to an inter. ,State migrant workmari 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 casf'. may be, . the fa. cility"s'1. a11 be provided by the principal employer within ·such tin1e as ma. Y be prescribed by the Rules and all the allowances paid by the priricipal employer or all the expenses incurred by him in thiS connection may be recovered by him from the -con~ractor either by deductiori froln the iamount payable to the contiactor or as a ·. debt payable by the contractor. [117 F-H, U9 E-A-120 A] 14. Th"ethekcd'ir or jamadar who is engaged by. the 1nine lessees or the stone-.

crusher own'ers to recruit workrrien or e1nplOy them on behalf of the mine lessees or stone crush:r o"Yners Would clearly be a 'contractor' within the meaning of that term as'defined in Section 2 sub-section (1) clause (b) and the \YOrkmen recruited by or thtough hin1 from other States for crnployni. ent in the stone quarries and stone • crushers in the State of Haryana w0:uld Undoubtedly -be inter·State migrant work· meri. Even ·when the thekedar or jamadnr recruits or employs workmen for the sL:>n~ qL11rries and ston~ 'crUsh~rs by sen·:lii1g word" through the "old hands", the • workmen so rhCruited· or "entployed would, h~ inter·State migl:a~t workmen, becausO the "old. hands" wo. uld be· really ·acting as ·agents of the thekedar or janiada·rfo'r the purpose 'of recruiting or employirig workmen crushers in the Sfiite of ·Haryana. (121-E] l5.

In addition tO ·the rights and be~efits conferred upon hiin Under the Inter-State Migrant W0rkmen Act _and the" iriter-State Migrant \Vorkmen Rules~ an intcr·State migrant -workman is also, by reasori of Section 21, entitled to the benefit of the Provisions contained in the ·workmen's Cotnpen,sation Act 1923, The Payment of Wages Act 1936, The EmploYees' State Insurance Act 1948, . The Employees'. Provident Furids afld Misc. ·Provisions Apt, 1952, and_ the Maternity Benefit Act 1961. ('122 B-C] • The obligation to give effect to. the provisipns cOntain~d 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 intC'r·State Migrant Workmen em. ployed ln the establishment) but;also: that of the. Central Govenunent because tpe. Central Government being 'the "~ppropriate Government" within the meaui~ of Sectio.

n 2(l)(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 stori. e . 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 . stoi1e crushers. [122·D:. F] ~ 16. ' If the Jan1adar or thekadar in a Stone quarry or stone ci;usheris a •con· trac. tor• within t~e meaning of the definition of the tem1 in the Inter~State Migrant . , • • • ·. BANDHUA MUKTI MORCHA v. UNION 77 WOrkmen Act, he wollld a fortiorari be ~contractor' also for the purpose ofConti-act Labour Act and any workmen hired in or in cohncc. tio{i with the work of· stone quarfy or stone crusher by or through thejarn. adar or thekedar \vou1d be work- . men ·entitled to the-benefit of the provisions of the Contract labour Act. - . Where . therefore the tl;tekedar for Jan1adar is a Contractor, 3. nd the workmen are.

employed as 'coritract labour'~within· the rtlealling of these expressions as used in the Contr'act Labour Act the Contractor is well as the principal employer would be liable io ~omply with the Provisions of the Co~tract Labo~r Act and the Contract Labour . B Rules ~nd to. provide to the contract labour rights and benefits collferred by these Provisions. The ·Central Government being the ''appropriate government'' witliin the meaning Of section 2 sub~section. (l) clause (a) would be responsible for ensuring compliance\ith the provisions of the Contract Labour A. ct and the Contract Labour Rules by the mine-lessees and Stone crus. hers 0¥. 'ners apd the thekedar :or jamadar. So also, for reasons discussed while dealing with the applicability of the Mines Act ·1952 and the Inter State Migrant. 'Norkmen Act, the State of Ha·ryana Woqld be · under an obligation to enfor~e the provisions of the Contract Labour Act and the Contract Labour Rules for the h:nefit. of the workm,en.

[123 E-F, H. • 124 A·CJ 17. There can be no doubt and indeed this was not . disputed On behii. lf of the respondents·, t~at the Miniffium Wag,es Act"1948 is applicable. to workmen employed irl the stone quarries and stone crushers. Therefore whatever be the mode of pay- : ~. ment fclloWed by the mine lesSees and stone crusher owners, the V. 'orkmen must . get nothing less than the minirrium . wage for . the joQ which is being carfied out by them and if they are required to carry out additionally any of the functions pertaining to another job or occllpation for which a separate minimum wage is prescribed, they must be paid a proportion. ate part of such minimum wage in addition . to the minimum wage payable to them for the work priffiarily carried out bY them.

· The system of payment which is-being followed in the stone quarries and stone cru~ shers, under which the expenses of the explosives and of drilling holes arc to be born·e by the workmen out of their own Wages, should be changed and the explo- . sives required for carrYing out blasting should be supPlied by,_th·~ mine lessees or the . jamadar or thekedar without any deductio. n being made out of the v. -·ages ·of. the workmen and the Work of drilling holes and shot firing ·should be entrusted only ·~ . ' to those who have received ·the req~isiie training un. der the" Mines Vocational Train- ' ing Rules 1966. So far as the complaint of the petitioner·that the workmen employed in the stone quarries and stone cru. shcrs are not beir,g . paid the mfnlmum wage due and payable for the work cai·fied out by them is concerned,· jt is a matter . • which would have to be i! J. vestigated and detem1i,ncd.

Ll24 C, 125 A-E] ' The Bonded Labour system is intendc'i:l to strike against the system of bonded· 1 labour which has been a shameful scar on the Jndian ·Soda! Scene for decades and ,;,. hich has c6nti. nued to disfig~re the life of ihe nation even after independence. The 'Act was brought into force thro. ugh out 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 sho. uld haVe ·by this time brought · 8. bout cOmplete idehtification, freeing and rehabilitation of bonded labouf. Bllt as official, semi-official and non-offici? -1 reports show, we have yet to go a long way in wiping out this outrage against humrinity. [126 A-C] 18. It i. S clear bonded 1aboUr 1s a form of .

forced labour and Section 1~ of the Bonded Labour Systein (Abolition) Act 1976 recognises this self-evident l prc_>position by Jajringa duty on every District Magistrate and e-Very officer specified [1984] 2 s. c. R. by him to inquire whether any bonded Jabour SYS\em or a~y other form_ of fo~d labour is being enforced by or on behalf of any ,person and, if so, to take· such action as inay be necessary to eradicate the enforcement of such forced Jabour. The thrust ofthe Act is against. the continua-rice of any fornl of forced 1ab~ur. It is of course true that, strictly speaking, a borided labourer me~ns a labourer who incurs or . has or is presumed to have incurred a bonded debt· and a bori. ded debt m~ans an advance obtained or presumed to have been obtained by a bonded labourer under or in pursuance 9f the 11ori~ed labour system and it wo~ld therefore appeaf that before a labourer can be regarded as a bonded labourer, he must not only be forced to ·provide 13.

bour 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 custoni or. social obligation 3r by reason of his birth i_n ~ny p1rticular·caste or community. -J30 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 n1ust first prove that they are. ·pzoviding forced lab_our in consideration of an ·adVance or othef . economic con~ . \~• sid~ration re·c:~ived Dy th~m and then only they woU. ld be eligible_ for the benefits provided urlder the Act, is nothing but asking tlicm to do a t'ask which is extremely diffi. :::Ult, ~if iiot impos~ible. _ The labourers w6'. ild have no evidence :it all .

to prove so and since employment of bonded labour is a penal Offence under- the Act, the e:nployer \Vould im:nediately without any hesitation disown ha-Ying given any advance or e:;onomic consideration to the bonded. labourers. The insistance of proof from two labo'urers by the State Government which is constitutiOllally mindated to bring :ibout Change in the life conditions of the poor aad downtrodden and ·to ensure social justice to. the1n is rePrehensiblC . (130 F-H, 131 AJ .. • It would be cruel to insist that a bonded labour in· order to derive the benefits ')' of this i;ocial welfare legislation, should have to go through a formal. process of t_rial 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 atld social and economic backwardness and if such a procedure were required to ~ be followed, the St. ate Government might as well obliterate this Act from the statute ( book. It is now statistically establ_ished 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 takeri of it, that there ·would be nO occasion for a labourer to be placed in a situation wher~ he is reqiiired to supply (arced labour for no wige or for nominal wage, unless he has received some advance of other economic· consideration from the employer and under the consideration fron1 the employer and·under the pretext of not. having returned such a1Vance or other economic consideration, he is required to render service to the employer br is .

deprived of his freedcim of -employment or of the right to moVe freely whereever he wants. Therefore, whenever it is shown that a labourers • is maae to provide forced labour, the Court ·would raise a, presumption that he is required to do so ln consideration of an advance o. r other economic consideration received bY him and he is therefore a bonded labourer. This presumption- may · b~ rebutted by the . employer and also by the State Government if it so chooses but unless and until satisfactory m:lterial is produced for reubut~ing this presump- . tion, the Cotirt must ·proceed on the basis that-the lab. curer is a bonded labourer entitled to . the benefif of the provisions of the Act. The St~te Government _cannot •. . ' ... • BAND:~UA MUKTI MORCHA V. UNION 79 be permitted to repudiate its obligation ·to identify, release and rehabilitate the · bonded labourers on the ple3.

that though the concerned labollrers m:iy be providing forced labour, the State Government does not owe any obligation to them .. ·unl~Ss and until they ,show in an ·appropriate legal proceeding . conducted 'accordif\g to the· rules of adversary ~ystem of jllsti&,. ·that they are bonded labourers. [131 C-H, 132 A] 20.. Th~ugh section 13 provides for constitution of a Vigilance Committee in· each f:>istrict and each sub. -division of a 'District, 'the Government-of Haryana, for some reason or the other,· did not constitute any Vigilance Conrmittee until ~ts attention was drawn to this requirement of the law by this Court. It· may be that according to the Go'vernment of Haryapa there . were not at any time any bonded labourers ·v. ,ithin. its territories, . but everl so Vigilance COmmittees are required by Sectipn. 13 to be constltuted 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 Goyernment not to constitute . c vigilance Comn1itteeS on the assumption. that there ate no bonded labourers at ~11. In constituting Vigilance· Committee in each District and. •sub-division, the Haryana Government would do well to include representatives of non-political social action group~ operating at the grass root level; for it is only through such social actioti groups and voluntary agencies that the problems of identification of bonded labour can be effectively 'solved. [128 E-H, 129 A·B] _·The magistq~. tes and jUdicial officers take. a very lenient view of _violations o( labour laws enacted for the benefits of the workmen and Jet off the defaulting employers \\lith smaM fines. There have also. been occasions where the ·magistrate and judicial officers have scotched prosecutiOns and acquitted· or discharged the defaulting employers on hypertechrlicalities.

This happens largely because the magistrates and judicial officefs are not sufficiently sensitised to the importance . ' of the-observance of labour laws . \vith the result that the labour I 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 th. at better in this matter than insisting at the earliest stage, and before issuing riotice to the respondent,· that an appropriate verification of the allegations be · supplied. The ~equirement ,i$- iinperative in private law litigation. Having r~g3. rd to its nature and purpose, Uis equally attracted to public interest litigation. While this Court has readily acted upon lc;tters and telegtams in the past, there is need to insist now on an appropriate 'verification of the petitioner other 9om~unication. b~fore act_ing on it. It will always be a matter for the court to decide, on wha;t peti-' .

ti n will it require verification and when will it waive the rule. [157 B-H; 158 A-C] 3:2. All communicatipns and petitions invoking the jurisdiction of the Court mu~t' be addressed to the entire Court, that is t6 say, the €hief Justice and his companion jud~es, No such communication or petition can properly be addresse~ • 82 SUPREME COURT RBPoRTS [1984] 2 s. c. R. to a particular j~dge. When the jurisdiction of the Court is invoked, it' i! the jurisdiction of the entire court. Which Judge or Judges will hear . the _Case 11 exclusively a matter concerning_the interital regulation of the business o(the Court, interference with whi,eh by a litigant or member of the public constitutes the grossest jmpropriety. It iS Well established that when a division of the Court house and de'cides cases 'it is in law regarded as a he'\fing and ~-decision by the Court itself. The judgffient pronounced· :ind the decree or order made are aCts of the Court, and -accordingly !

hcY 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 inlp~oper and : violate the institutional personality· of thC Court; They also embarrass the judge to ·whom they "are personally a:ddr.! ssed. The fundamental Conception· of the ' Court must be respected, that is a singfo indivisible institution, of ·united purpOse and existing solely for the high constitutional . functioris for which it has been. created. 'The conception ofthe Court as a Ioose·aggregate of individual Juages, to one or more of whom judicial access may be particularly had, undermines its very_existen~ arid endangers its·proper and·effective functioning. [158 E-H; 159 AJ • 4::. 1.

In 'public interest litigation,·the role held by Ute Court is more assertive than in traditional actions, Viewed from the Warrei;i Court's experience the role ~f the Court is creative rather thari passive, and it assumes a more poSitive at. titude . ..... in determining facts. Not infrequentlY public interest litigation affects ihC rights . of pefsOns not before the Court, and in shaping the relier the court must invari{l-bJy tilke into account its impaCt on those interests. Moreover, when 1ts jurisdiction . is invoked on behalf of a group, it is as. well to remember. that differences may exist in -eoritent 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 ~ufficient "Il. otici:: to all interests likely tO be affected. · MOreover; the .

nature of the litigation sometimes invoJyes the Continued intervention Of the Collrt over a period of time, and the· organising of the litigation to a satisfiictory conclusion calls for judicial ~:tatemanship, a c(ose tlndeistanding· Of collstitutionaJ and legal values in the context or' contemporary social· forCes, and a judicious mix: of restraint and . activism determined bY the dictati;s of existing reaJities. Importantly, ~ at the same. time, the Court must never fo_rge~ that its jurist.! ictipn extends no farther _than the- legitimate limits of itS· constit\ltional powers, and avoid trespassing into i . Jiii political territory which under· the Constitutior:i has been appropriated· tb other organs of the State. [159 B; D-0] 4~2. , The Procedures acJop~d by the Court in cases. of public interest" litigation must of.

-course be proced_ures designed and shaped by the Court with a view to resolving the problem presented before it on 'determining the nature and extent of relief Mi COURT REPOUS [1984] 2 s. c. R. 5:2. This aspect of Collrt action assumes especial significance in public interest litigation. It bears . upon the legitimacy of the judicial irntitution, and that legitimacy is affected as ·much . by the solution presented by the· Court in resolvina a controversy as by the manner in . which the solutibn is reached. ·1n' an area of judicial functioning where jlldi~ial acti~ism finds room for play, where coM"titutional adjudication 'can beco~c an instrument of social policy forged by ! he personal pohtical philoophy o{ tho Judie, ! his ls an important comidoration ·10 keep in mind. [162 B·C] . 5:3. Whore Ibo Court embarks upon affirmative action in tho at«:mpt fo remedy· a consiitutional imbalance within the social order, few critics will ftc.

d fault >11th it so Ions as it confines itself to the. soope of its legitimate authority. But there is always the possibility, In public interest. litigation, of succumbing to the temptation of crossing into te_rritofy which properly pertains to the Legislature or to the ExocYtive Government. For in mo! lt cases the jurisdiction of the Court is_Invoked when a default occurs,in executive administration, and sometimes where . a void _in community life remains unfilled by legislative action. Tho resulting public grieva'nce~ finds" eXpression through social action groups, which consider. the Couri an appropriate forilm fo! feμioving the deficiencies. Indeed, the citizen -e:eems to find it more convenient to apply to the Court fof the vindicit. tion of con· ... stitutional rights than appeal to the executive or legislative organs of the State..

In the process of correcting executive error or' removing legislative omission the Court can so easily find itself involved in policy making pf a quality and to a degree characteristic, of political authority, and indeed run the risk of being mistaken for one.. An excessively political role identifiable with political govCrnance betrays the Court into functions alien to its fundarμental character, and tends to destrqy . ,the delicate balance'nvisaged in our constitutional system between its three basic institlltions. The Judge, conceived in the -true c1assical mould, is an impartial. arbiter, beyond and above Political bias· and prejudice, functioning ·silently in ..... ·&ccordan1re with the Constitution and his judicial conscience. Thus does h~ maintain tho legitimacy of the institution be selves and honour tho trust which his oftice _bas reposed in him. (162 D·HJ . ,_ .. ,, I Tho aftirmative schemes framed in public interest litigation by the C.

Ourt sometimes' require detailed adJninistration under. constarit judicial supervision ( over pro~ected periods. The lives of large sections of· people some of whom·have T had no voice in the decisions, are shaped and ordered by mand osition of judicial action and ' give to it_s essential quality. [163 H; 164 A·D] ... . 5:6. There is a grea. t' merit in the Court proceeding . to decide an issue on the . basis of strict . legal principle and avoiding carefully the influence of purely emotional appeal. For that alOne gi,ves the-decision Of the Court a direction which· is certain, and unfaltering, and that especial permanance in legal jhrisprudence which makes it a· base for the next step fo~ard in the further progress of the law. Indoed, both certainty of substarice and oortainty of direction are indispenaable requireiμents in the development of the law, and invest it with the credibility"whicft commands pubiic. confidenco In. its legitimacy. [165 A·B] .

This •warning is of especial significance. in these times, during a phase - of judicial history whel) a few social action groups tend to sl! ow evidence of prosuming that in CverY case the court must bend and mould its decision to popular notions of which way a case should be decided. [165 CJ ' · ·' As new area! · open before the Court with modem deyelopments ·in jurisw prudence,- in a World more seruitive to·human rights as well as the imPact of t"echnological progresl'! , the Co_urt will become increasingly consioUa of its expand. in. a: jurisdiCtion. That is. inevitable. But its res"ponsibiJities are correspondinaJy .. llrO&t, aad perhaps never greater than now. [165 DJ [1984] 2 s. c. R. It mrist 'be . remerμ'btrC r an~ belong to the very·weak_ section of the people. They are astava and Ashol': Panda but be did not hop_, to get ari'y co·1nμensation "because here ilo one gets any co. n1rn1sation for any injury''. Most of the workers interviewed 'by M/s.

Ash0k Srivastava and Ashok Panda stated that they got very little by way of \Vage·s fro1n ti1e mi. ne lessees or owners of" stone crushers· since they . had to purchase explosives with their own m011eys and they had to incur other e~penses which, according to Dr. Patwardhan's repJrt to which we . shall refer :hereafter, inCluded 50 per cent of the expenses of drilling holes. · M/s.. Ashok Srivastava . and Ashok Panda also pointed out in the Report that the folJo,ving persons working 98 SUPREME. COURT REPORTS [19S4] 2 S. c. R. in the Godhokhor ~tone quarries"claimetl t~at they were tcn . poverty rrci ? xtrcme exploitation at the hands of moneyed people" and ihry \\(·re found "leading a most. miserable life and perhapsheasts rnd ;n;n-c'c. could be leading niore comfortable life than these •iielplessiabourers". · Thereafter, the writ petition came up for hc. aring on Sth March 1;'82 along with anot(ler wtit petition filed by the present pethiciner . ·• .. ' . IlANDJIUA MUKTI MORCHA v.

UNION (Bhagwati, J. ) 99 j for release of some other bonded. labourers and on this day the Court m1-:le an order directing that the copies of the Repqtt of M/s. Ashok . · Srinstava and Ashok Panda should- be supplied to all the mine- ' lc>sees and stono crushers who are respondents t_o. th_e writ petitions . 'so that they mly have an opportunity to file their reply to the focts found in the Report. The Court also appointed ·nr. Patw. ardha'n ~f . Indi•. tn _Institute of Technology to carry out a socioClegal lnvestiga- . ti. on in the following terms : · "ft is neCe5'ary that asocio-legal investigation should be ' carried out for the purpose 9f determining what are the con-.. -1. · ditiohs prevailing in the various quar_ries in Faridabad District and. whether ther_e· are any workmen in those qu. arries · . againsi their will 'or without their conse1it and what are the · COi'! ditions i~ which they an living.

and whether a·ny of the provisions ofthe Bonded Labour System (Abolition) Act and Inter-State Migrant Workmen (Regulation of Employment&· Conditions ofScrvice) Act is being violated. We may make it clear that when ,~e are directiiig a socio-legal investigation n - of these matters it 'is . not in a Spirit to criticise the State . . G wernment or any of its officers but-with a view to find. ou_t the correctness of the state of affairs so that the State Govern- . moot. and its officers could take i1cccssary steps for remedying· . tl~e situation if a state of affairs cxis'ts ,v. hicli iS contrary . -tO th. e provi. sions Of law and. the basic· hunH1n· . nornis. · The Court can take actioi1 only after the s~cio-legal investigation is carried out by some respon;iblc person and a copy ,ofthe· 'report of the socio-legal investigation is· made available io the p1rties. We would, therefore, request Dr. Patwardhan of T. f. T.

to be good enough to carry out a socio-legal investigation into the aforesaid matters in the quarfies in Faridabad :bistriCt · a list of which will . be supplied by Mr: Muklrnty on behalf of the P'titi011crs to. Dr. Patwardhan within ten d"ays from . · today after giving a copy to Mr. K. d. Bhagat, learned C9ttn ndent of the Hindustan Times. It took some time for Dr. Patwarr dh1n to complete his assignment and prepare his report but having . regard to the lmmensity of. the task, the. time within which Dr. Patw1rdhan finished the inquiry and submitted his report was remarkably sbrt. . We shall have occasion to refer to . this Report a little latter • w'nn we deal· with the arguments advanced . on behalf of the parties', bc1t we m1y point out at this stage that the report of Dr. Patwardhan is a compreh~nsive, well documented socio-legal study of the conditions in which the workmen engaged in stone quarries and· stone crushers live and work and it.

has made various constructive sugges- G- tions·. and recommendations fof'ihe purpqs{ of improving the living conditions of the pro1nise- of unreality, so that in case G. . the complaint·in the public interest litigation is found to be true,: . they can in discharge or;'their' constitutional obligation root out exploitation and. injustice and·ensure to the weaker. sections their rights . and entitlcme~ts. When the Court entertains public. interest litiga- · iion, it does not do so. in. a cavilling spirit or in a confrontational mood ··or with a -view to tilting. at executive authority or seeking to usurp it bui its attempt,. is only to ensure observance of . sociai and economic BANDHUA MUKTI MORCHA v. UNION (Bhagwilti, J. ) 103 rescue programmes: legislatiye as w~ir as executive, fra1il~d for the · i . · benefit of ti)e have-nots and the handica1iped and to protect them against vio-Jation ·of their basic human rights, which is also the con- . stitutional obligation of the executive.

The Court is. thus• merely assisting in the ·realisation of the constitutio1ial obj_ecti\•cs. Moreover, when a complaint i_s made on behalf of workmen that tlrey are held in bondage :and arc working and· living in miserable conditions without any proper or adequate shelter over their heads, without any" protection againsi ·sun and rain, without ·two . square meals per day. and with only dirty water 'from a nullah to. drink, it is ' . difficult to appreciate how such a c01hplaini can be thrown out o~ the ground that it is not violative of the fundamental right of the workmen.. It is the fundamental riglit of every one in this country, a_ssurcd under the interpretatioi1 giv~n to A~ticlc 21 b,y thisCourt in Fraizcis Mullen's case, ·to live with human dignity, free froiu exr. loitation. This right to live with human dignity enshrined in Arti!

le 21 ·derives its life breath from _the Directive Prindplcs of State Policy and parti- · cularly clauses (e}~nd (f) of Article 39 and Artie-les41 and-42. and at the. least, th compel the State through the judicial process to make provision: by • statutory enactment or executive fiat for ensuring these_ basic essen· iials ·which go to make up a life of human dignity but . where legisla· tion is alrea\ly enacted by the St~te providing these basic requirements to the workmen ·and thus investing their right to"1ive 'with basic human dignity, with concr-ete reality a11d 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- a1u~unt. to denial of the right to live with human dignitY. enshrined in Article 21, more so in the_context of Article 256 which providGs that· the. executive power of every State shall be so· .

H exercised· as to ensure compliance ;yith the iaws made by. Parliament ,. ! 04 SUPREME COURT. REPORTS [1'984] 2 s. c. R. and any existing laws which. apply in that State, We have alr~ady po. inted out in Asiad Construction Worker il~erned. · The Constitution 1nakers therefore advis,dly provided in Clause (I) of Article 32-that the Supreme Court m1y b' in)v;. j by a11y '. a;>prop'riatc' proceeding, . 'appropriate' not . i1r·term1 of a11y pi~ticular form but 'appropriate'· with ·refrcnce ·to the pucpJ~c o(the proceeding. · That is the reason why it . was held - by this· Cnrt in the Judges Appoi1itment and Transfer Case (supra) lint Wli)rC a m'mbor of the public acting ·bona_ fide moves Hie Court for enforcJ. mnt of a. funclamental ·right 011 behalf of a person or cla11 of pmoin who on acco. uu; of poverty or . disability cir s. ocially 1 Of . eJ. JllJ n c1\ly disidvantaged position cannot approach the ·Court far nlief, such member ·of the public may move the court even .

by just wriiiag,a letter, because i~would not. be right or fair to· expect a . p~rson acting pro bona publico to incur expenses out of his own pocket for going to. a. lawyer and preparing a regular writ petition for being filed in c6uit for cnfprcement. of the fundamentalright or'the poor and doprivod ;ectfons of the cominunify a11d in such a case, a Jetter addrossecd. by him·can legitimately be regarded as ari "appropriate''. ·ii proceeding. · 103 SUPREMI> COURT REPORTS [1984] 2 s. c. R· • ! Jut the question then arises as to what is the power which may be exernis. ed bi the· Supreme Court when it is moved by an "appro_priate" proceeding for enforcement ·of a fundamental right. ·The only provision made by the Constitution maker~ in this behallis to be found in clause (2) of Article 32.

which confers power on the Supreme Court "to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo· warranto" and cer- · tlorari, which-ever may be apprapriate, for enforcement of any of the fundamental rights. lt will be seen that the power conferred by clause (2) of Article 32 is in the widest terms. . It is not confined to issuing the high prerogative writs of habeas 'corpus, mandamus, prohibition, certiorari and quo quarrnnto, which are hedged in by strict conditions differing from one writ·to another and which to quote the words. f-spoken by Lord Atkin 'in Bnited Australia Liniited v. Barciays Banle .... Ltd. (ll in another context often "stand in the path of justice·Clanking their mediavel cilains". But it is much wider and includes witilin it't; matrix, power to issue,any directions, orders or .

writs which may be appropriate for enforcement of the iuO:damental right in questi~n and this is made ampiy clear by tlie inclusive clause whicil refers to ;,, the 1iature of habeas corpus, mandamus, prohibition, quo·warranto ;ind certiorari. It is not only the iligh prerogative writs of 111andan1us, habeas corpus, ·prohibition, quo \Varranto and. certiorari . which can bei ssuo:l by the Supreme Court but· also writs in the nature cif . thes~ higil pnrJg1tive writs and tl1erefore even if the cpnditions for issue of any of tl1·oie high prerogative writs are not fulfilled; the Suprem~ Court W·JU\d n_o( be constrained to fold its hands in despair and plead· its inability to help the citizen who has· come before it for judieial redr~ss, bitt would have po. wer to issue any directio1i, order . or \Vri·t including a. \Vrit in. the nature of any high prerOgatlve writ. ·r_ This provision conforring on the Supreme Court power t~ enforce the fonaamental rights.

in tile widest possible terms shows the anJ : a •new juriSdicdon is created in the Suprcn1c Court for enforce1ncnf of a fundamental right. We do not think we would be justified in imposing any restriction on the power of the Supreme Court to adopt such procedure as it thinks fit in exercise of its new jurisdiction, by engrafting adversarial procedure on it. when the ·constitution makers haVe delibe,rately cho? en not to insist on any such requirement and instead, left it opei~ to tl)e SuP,reme Court to foliow. such proceoure·as it thinks appropriate for the purpose of securfng the end for which the power is conferred, namely, enforcement of a fundamental right. The adversarial proceQ_ure l)aS, in fact, come in for a ·lot of criticism ! Ven in the coU:ntry of its ofigin, and there is an increasing tendency even in that country to depart from its strict. norms. Lord' De Jin speaking of the. ~·nglish judi~ial syS"te. m· sai~ ~ ''If our n1~thcds \\Ere , . . 110 as antiq.

uated as our legal methods, we ~hould be a ba~krupl country". +-'. ,And Foster Q:C. . Observed : . "I t! Jink tl1e· whole EngJ. ish system is non-sense. I would go to the root of it-·~the civil case between two private parties. is a mimic battle........ conducted according to rules of ev. idcnce. " . There's a consicferable body of juristic opinion in our country als0 which believes that strict adherence to the adversarial ·procedure can some times lead tq injustice, . particularly where the parties are not evenly balanced i. n social or economic st1ength. Where one of the parties to a litigation belongs to apoor and de? rived 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 p0werful opponent ui1de. r the adversary system of jusiice, because . ..

·C o[ his diflb1lty ih getting competent legal representation and more that; anything else, his inability to produce relevant evidence before the court. ··Therefore, ·when the poor come before ·the· coil;! , particularly for cnforcem,nt of their fondam~ntal rights, it is nescessary to de. part from'thi adversari'al ·procedure· and to evolve a n'ew procedure which, wi! I rmkc it pJs~ible for the poor and the weak to bring the necessary 1111tcrial before the court for the 'purpose of securing enforce111e11t of . . . . ·. th>'r funclamcntal rights. It must be remembered that the problems of th~ pJor. whic'. 1· are now coming before the court. are qualitatively different from thJse which ·hnvo hither to occupied the attei1tion of tho C'}urt and_they needa different kind of law·yering skill· and a · '... ' difforent kind ofjudicial approach. If we blindly folio~ the· ad versaria l prJcedure in their case; they would never be able to. enforce their fu,1da1nenta,!

rights and the result would be nothing but a mockery T of the Constitution. We have· therefore to abandon the laissez •' ; faire . approach in . the jH ;ary for the ends of justice. " We ca~not therefore accept x. th' coatention or the learned Addi. Solicitor General and Mr. Phadke '. ·that th' court acted· beyond its power in appointing M/s. Ashok , Sriva-;tava· a11d Ashok Pandci as Co1nmissiOnerS in the fi~st i~stBncc and Dr. Pat\vardhan as co111n1issioner at- a subsequent stage {or the .. ·· purp:Jse of making: an itiquiry into the conditions C! f \vorkn1en en1pl6yod in the stone quarries. The petitioner in the "'rit petitio1i speci- . froally alleged violation of' the fundamenial rights of the workmen ·employed in the stone quarries under Articles 21 aTid 23 and it was therefore nec0ssary for· the court to appoint these c"oiinnissioner·s· for the pc1rpose of inquiring int~ the facts related io this ~omplaint. The. Report of M/s..

Ashok s·rivastava and Ashok Panda as also· the Report of Dr. Patwardhan were clearly documents having eviden- . BANDHUA MUK1' MORCHA v. UNION (Bhagwati, J. ) ·113. tiary value. and they furnished·primafacie evidence of the facts and A.. data stated i. n those Reports. Of course, as we have· stated above, it will be for us to consider what weight w~ should attach to the facts and data contained in these·Report; i. n the light of the various af! idavi. ts filed·in the _proceedings. . . . - . . . . . We may point out that what we have. said abcve in regard 1o · · the exercise of jurisdiction by the. Supreme Court under Articl. e 32 . j. ' must apply equally ,in relation to the . exercise· of jurisdkticn by )lie. High. Courts under Article 226, for the latter jurisdicticn js a'[o a new constitutlonal jurisdiction and it is conferred in the san:c wide terms as . the jurisdi'ction under Article ~2 and the same powers can and must therefore be. exercised b) the . High Co];! rts while ex.

ercising · . 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 man-yrights conferred on the poor and the disadva. ntagcd · "· which are· the creation of statute and they need·. tp _be. ·enforced· . as ·. • urgently and vigorously its fundamental r1ghts,. ·. ·thving disposed of these preliminary ~bjections, ·we shall now . proceed· to consider the writ petition on merits. But,. before· ive forn to "examine. the facts of this case, we may'first c~nsider which . are tile laws gover. ning the living a. nil working conditions of workmen' ·,employed in the stone quarries--:~The first statute to which' we. must refer ill' this connectilfi1 is the Mines Act, 1952. This·Act extends · ' \ to tM whole of India an,d therefore applies a fo•tiorari in the State .

of B:aryana. Section· 2(j) ~nes "mine" to mean ·~ny excavaticin where· any operation for the. purpose of ·searching for of obtaining mi1wrals has been. or is being carried on and includes. in clause (iv) "all open cast working". The word "minerals" has been. given ·a very broad meaning under section 2(jj) a;d it rr. eans ·"ail substances which ca·rt be obtained from the earth. by mining, digging, drilling, dredging, hydraulicing. quarrying or by any other. operation".. Section 2(kk) gives the definition of "op~n cast workfog" an4 according ·to this ddiaition, it means "a quar;y, that is to say, an·excavation where any opertatfon for the purpose of searching for or obtaining minerals ''has been or is. being carried ! ORCHA ~· UNION (Bhagwati, .! ;) 115 the conditions set out in the proviso are not fulfilled and henc;'e the A.

exclusion of the provisions of the Mines Act 1952· (other than the excepted sections)·is not attracted and all the provisions o(the Mines Act' 1952 apply to- these stone quarries. It may also be noted that the definition of 'mine' in section 2(j) includes in Clause (x) any premises or part thereof in or adjacent and belonging to a mine on : which any process ancilliary to the getting, dressing or . preparation for sale· of minerals ........... , ... is being carried on. ''. Now obviously stone crushing is a process apcilliary to the getting, dressing . or preparation for ~ale of stone quarried from. the stone quarries and therefore if th. e stone crushing activity is caj'Iied o~ in premises •' in or adjacent to a stone quarry and it belongs to the same owner as the sfone· quarry,. it would be. subject to the discipline of the . · provisions of the Mines.

Act 1952 ~nd ail wqrkmen employed in connection with such stone crushers would be entitled to the benefit of the provisions of that Act. It will, thus, be seen that all the provisions of the Mines Act, 1952 are. applicable to the \vorkmen employed in the stone quarries as also to the· workmen employed in· connection: with stone crushers, where. the stone crusher is si. tuate in or adjoining to a stone quarry and belongs to the same owner as the stone quany. Now the provisions of the Mines Act, 1952 which are material ·are those set out in Chapters V; VI and VII, Chapter V deaiing wit. h. provisions as to h~alth and safety, Chapter. VI, with. hours and li1'nitation of employment and Chapter VII, wfrh leave with wages. The provisions contained in these three Chapters confer certain rights E' and benefits on the workmen employed in the stone quarries and stone crushers and these rights and benefits are in)ended to secure .

• to the workmen just and humane conditiqns of work ensuring a d wn wages, should be changed and the explosives required for carrying out b! nsting should be suppiied by the mine lessees or . the j~madar or thekedar without any deduction being made out of. the. wages ·of the workmen and the· work of -Ori11ing holes. and shot firing should be entrusted only to those who have received the requisite ·n training ·. under· the Mines Vocational Training . Rnles 1966. We . would direc. t the Central Government and the Staie of Haryana to take. necessary steps in this behalf. so rar as the complaint of the petitioner thqt the' workmen employed in the •tone quarries ·and ·. st~he crushers' are not boing paid the min1mum ·was due and payable , for . the work carried out 'by them is concerned, it is a matter . which . E would have to be investigated and' determined in the light of the law: laid down by us. • Lastly, we must conside~ the provision~ of the Bonded Labour System (Abolition) !

ACt 1976. We. have already pointed out ,that many ofthe States are not prepared to adinit the existence of'b0nded labour in theif territories and the State of Haryana is no ~·xception. But in ·order to determine whether there· is any bonded labour in the stone quarries and >tone crushers in the Faridabad area of the State of l! aryana, it is _necessary to examine some of the relevant provisions of the Bonded Labour System (Abolition)· Act 1976: This Act was enacted with aview to giving effect to Article 23 of the Constitution which. prohibits traffic fu . h. ~man 'beings and begar and other similar ·forms of forced 1aboui·: We bave ·had ~ecasion to. consid_er the true scope and dimension of this. Article of the Constituiion in, Ptople's • 'Union. for Democratic Rights v, [,Inion~( india l commonly known as (I) [198JJ 1 s,c:R. 456. 126 SUPREMllliCOURT REPORTS [1984] 2 s. C. R.

the Asiad workers' case and it is not necessary for us to say anything· more about it in the present judgment.. Sufl\ce it to. state that this Act is intended to strike against the system of bonded labour which has. been a shameful sdllr on· the Indian social sceue for decades and which has· continued to disfigure the life of the nation even after independence. The 'Act was brought into force through out the length and· breadth of the country· with effect• from 25th Qctober 1975, which means that the. Act has been in force now for alfilost 8 years and if properly implemented, it should have by this time brought about complete identification, freeing and rehabilitation of ·bonded Jabour. But as official, semi-official and ·non,official reports show, we h~ve yet to go a long way in wiping out this outtage · · against humat. ity. Clause (d) of Section 2 defines '°bonded debt" to mea. n an· advance obtained or presumed to have been obtained, by .

a bonded labourer, under or in pur_suance of, the bonded Jabour . system. The expression 'bended labourer' is . defined in clause (t) to mean "a labourer who. incurs, Gr has, or· is presumed to have incurred a bonded 'debt", Clause (g) defines "bonded labour system" ? '·· · D to mean ·,! ; "the system of forced, or partly foreed, labour under which a debtor enters, or has, or is presumed to have, entered, into an agreement with the creditor to the effect that,- · (i) in consideration of an advance optained by him or·, by any of his lineal ascendants or descendants (whether or not . such advance is evidenced by any document) and . in. considerat~n of the interest, if any, due on such advance, or (ii) in pursuance ofany customary or social obligati~n·; ar . . . • (iii) for . any economic consideratio·n· received by him or by any of his lineal ascend. ants or descendants, or he would- · (1) render, by .

himself or through- any member of his family, or any person dependent ori him, labour or service to the creditor, or for the benefit of: the creditor. for a specified period or for an unspecified period, either . without ·-,vages or for nominal 'wages, or · (2) forfeit the freedom of emplo /inent or other means of H. . , livel;hood for a specified period or for an un-specified period, or . , . • BANDHUA. MUKTI MORCHA v. UNION (Bhagwati, J. ). 127. (3) forfeit the right to move freely throughout the territory of India; or (4) fo1feit the right-to appropriate. or sell at market value -any. of his property or product of his labour. or the labour cf a member of hi> family or an;y persoi1 dependent on him. " The expression "nominal wages" is. defined in clause (i) of Section 2 to mean, in relation to an, labour, a wage which is less t]lan-·- (a) the minimum wages fixed by the.

Government, in-relation to the same or similar labour, under ariy law for the time being ·in force, and (b) where no such wage has been fixed in relation to any form of labour, the . wages that are normally paid, for the same or similar labour, to the labo. urers working. in the same locality. " Section 4 is the material section which provides for abolition of bo. nded labour system and it rims as follows : "4(1) On the commencement of this Act, the bonded labour system shall stand abolished and every bonded labourer.. 1 shall, on such commencement, stand freed and discharged - • frnm any obligation to render. any bonded labour. {2) after the. commencement of this Act, no person·shall- (a) make any advance nncter, or in pursuance of; t. he bonded labour system, or (b) . compel any person to render any bonded labour or othen fonii of forced labour. .

Section 5 invalidates any custom or 'tradition or any contract agreement or other instrument by virtue ·of which any person or any member of the family or dependent of such . person is required to do. any work or render· any service as a bonded labourer. Section 6 provides inter a/ia that on. the commencement of the Act, every obligation of a bonded labourer to. repay any bonded debt or such part of any bonded debt as remains unsatisfied immediately before s\Jch commencemerit, shall be deemed to have been extingui£hed. . 128 S0PRE~1E COURT REPORTS [I 984] 2 s. qc . There ate certain other consequential provisions m Section 7 to 9 b:ut it is not necessary to refer to them. Sections IO to 12 impose a duty on. every District Magistrate and every officer to \vhom . power ·may be delegated by him, to inquire whether, after the commencement · of the Act, any bonded Jabour system· . or any other form ·or forced · 'Jabour is. ,being enforced by or on behalf 9f, any person resident wit.

hin the I. ocal limits of bis jurisdiction and if, as. a result of such inquir)', · . any person is· found to be enforcing tbe bonded labour system ot · ·any other syst0m cf forced labour, he is ·required forthwith to take tho necessary action to eradicate the enforcement of such forced labour. 'Section 15 provides for Constifution of a Vigilance Committee in each District and each sub-division of a District and sets out what shallbo the composition· of each Vigilance Commiitee. · The functions ·Of the. Vigilance (;ommitiee are set out'in Sectio~ 14 ard among other ·things, that Section· proviaes ·that. the Vigilance· Comm ttee shall' be responsible biter a/ia to advise . tho District M~gistrate as to the offorts made and action taken, to ensure that' the provisions· of the Act or any Rule. made thereunder are properly impleiucnted, to provi. de · for the economic and. soda! rehilbUitation of the freed bonded labourers'. . ·.

and to keep an eye on·the number of offences of 'which cognizance has been \aken unde~ the Act. Then comes Section 15 which Jays ·down that whenever any debt is clajnied by any Jab9urer or a Vigilance Committee to be a bonded debt, . ·the· burden of proof that such debt • • i~ not a bonded debt shall lie on the 1;reditor. These are some of . the material provisions of the B. onded Labonr System (Abolition) Act-1976 wbich need to l{e considered. It is a . matter· of. regret i)lat ·though Section 13 pro~ides for· . ·. constitution of a Vigilance Committee in each. District and each subd! vision of' a District; the Goveminent of Haryana, for some reason .. ; ' F· or . the othe,r, 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 Har}ana 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 theVigilarice Committee is to identify bonded , labourers·, if there arc any, and 'to· free ,and rehabilitate them and it would not be right for the State'Government riot to constitute Vigil~rtce Committees on . the assumption that there . are rio bonded Jaboure1s at all. But ·;. ,~ . are glad to find that the Government of Il:aryana · has now co·~stituted a Vigilance Committee in each District. It does not appear froin the record whether a_Vigilance. Committee: has been consthuted also in each ·sub-division of a District bu. t we BANDHUA MUKTI MORCHA v. UNION (Bhagwati,· J. ) 129 have no doubt that the Government pf Hacyana will without any delay and at any rate within six' weeks from tcday constitue a Vigilance Committe. e in each sub-division and thus comply with the requirement of Section 13 of the Act.

We may point out that in constituting Vigilance Commitiee in each District and sub-division, the Haryana Government would do well to include representatives of non-political '. social action groups oper~ting at the grass root level, for it is only through such social action groups and voluntary agencies that the problem of identification of bonded labour can be effectively /. solved. It was contended by the learned Additional Solicitor General on behalf of the State of Haryana that in the stone quarries and stone - crushers. there might be forced labourers but they were not bonded labourers within the meaning of that expression as used in. the Act, • • since a· labourer would be. a. bonded labourer only if be bas er is . :presumed to have inc'urred a bonded debt and there was nothipg in the presont,cose to show that the workmen employed in the sione quarries and stone crushers had incurred or could be presumed to have incurred any bonded debt.

It was not enough, contended thelearned AdditionalffSolicitor General, for the· petitioner merely to . show that the workme~ were providillg forced labour in. that they were not allowed . to leave the premises of the establishment, but it was further necessary to show that they were wo~king under the bonded, . labour system. The learned Additional' Solicitor General ' also subm;t! ed that. in any event, even if the workmen filed affidavits .. to the effect that they had taj ther economic consideration received from the employer and • are t\ierefore bonded lab9urers. It is indeed a matter of. regret that the State Government should have insisted on a formal, rigid and !. legalistic approach in the matter of a statute wich is one of the most important measures for ensuring human dignity to these unfortunate · specimens of humanity who are exiles bf· civilization and who are leading a life of abject misery and destitution. .

It would be cruel C· to insist that a bonded labourer in order to derive the benefits of this social welfare legislation, should have to go· through a formal process of trial with the normal procedure for recording of evidence. That would be a totally futile process because it is obvious that · bonded lal:iourer can never stand up to the rigidity and formalism of the legal process due to his poverty,. illiteracy and social and economic backwardness and . if such a procedure were required to be folldwed, the State Government might as· well obliterate this Act from the statute book. It is now statistically established that most •f bonded labourers are members of Scheduled Castes and Scheduled Tribes or other backward classes and ordinary course. of hunian 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 la. hour for no wage or for. nomi- · nal.

wage, unless he has received some advance or othe~. economic , ·consideration from the employer and under the pretext of not having returned such advance or. other economic consideration, he is required to render service to the employer or is deprived of his freedom of employment or of the right to move fteely wherever he wants. Therefore, whenever it is shown that a labourer is. made to provide forced labour, the Court would raise apresumption that he is required to do so in consideration of an·advance or other economic considera' tion 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 i11 produced for rebutting this presumption, the Court must proceed on the basis that the labourer is a bonded labourer entitled to the benefit of ihe provisions of the Act. The State Government. cannot be permitted to repudiate its .

obligation to identify, release and rehabilitate the bonded labourers on the ·plea that though the • concerned labourers may be p~oviding forced labour, the State Government does not owe any obligatiqn to them unless and until they · show in an appropriate legal proceeding conducted according to the .. rules of adversary system . of justice, that they are bonded labourers. The first question that arises in regard to the implementation of the Bonded Labour System (Abolition) Act 1976,is that·of identification of bonded labour. One major handicap which impedes the identification of bonded labour is the reluctance of the administra- • tion to admit the existence of bonded labour. even where it is prevalent. It is therefore. necessary to impress upon the administration that it does not help to ostrich-like bury its head in the sand and ignore the prevalence of bonded labour, for it is not the existence of bonded .

labour that is a slur on the administration but its failure 'to eradicate it and moreover not taking the necessary ·steps for the purpose of wiping out this biot on the fair name of the State is a breach of its constitutional obligation. We would therefore direct the Government of Haryana and also suggest to the other State Qovernments,. tQ take :D st. eps to sensitise the· officers . concerned with the implementation of the Act to this acute human problems and its. socio-economic parameters. Moreover it may be noted that the District . Magistrates have a central role to play under. the provisions of the Act and. the State Governments would therefore do weli to instruct the District Magistra. tes to ta~e up the work of identification of bonded labour • as one of their top priority task~. There are certain areas of concentration of bonded labour which can be easily identified on the basis _of various studies and reports made bi governmental authorities, I .

social action groups and social scientists· from time to time. These areas of concentration of bonded labour are mostly to be found in stonequarries, brick kilns and amongst agricultural landless labourers ·and such areas must be mapped out by each State Government and task forces should be assigned. for identification and release of bonded labour: Labour camp. s should be held periodicall~ in these areas with a view to educating the labourers and for this purpose, the assistance of the National 'Labour Institute may be taken, because the National Labour Institute has the requisite expertise and experience of holding such ~amps and it should be associated with. the · organisation and conduct of such camps and in each such camp, individuals with organisational capability or potential shculd 1:e • identified and given training in the work of identification and relea'e 'of bonded Jabour. More importantly non-political serial acticn groups and voluntary agencies and.

particularly those with a record of honost and cJmp,tent ·service for Scheduled Castes and Scheduled . ~ . . ' 'BANDHUA MUKTI MORCHA v. . UNION (Bhagwati, J,) 133 .. Tribes, agricultural labourers and other unorganised workmen shouid be involved in the . task of. identification and release of bonded labourers, for it is primarily through such soda! action groups and ·voluntary agencies alone that it will be possible to eradicate the toaded latour system, because social action groups ·and voluntary agencies comprising inen and women dedi£ated to the cause o. f emancipation of bonded labour will be able to penetrate through the secrecy under which very often bonded labourers are required tp work and discover the. existe. nce of bonded labour and help to identify and release bonded labourers. We would therefore direct the Vigilance Committees '. as also the District Magistrates to take the assistance ·of non-political social.

action· groups and voluntary agencies for the purpose of ensuring implementation of the provisions of the Bonded Labour System (Abolition) Act 1976. · ' Th. e other question arising' ou~ of the. · implementation· of ·th~ Bonded Labour System (Abolition) Act 1976 is that of rehabilitation of tlie released bonded labourers. and that is also a question of the · greatest importance, because if the bonded labourers who are identi- • 1 fied and freed, arc not rehabilitated, their condition would be much . worse . than what it was before during the period of their ·serfdom and they would . become more exposed to exploitation and slide back once again into serf lte migrant workmen at all .. t in. any. of the stone quarries or stone crushers. We would therefore direct Shri Laxmi Dhar Misra to conduct an inquiry in each of the stone quarries and stone crushers in Faridabad District for the purpose of ascertaining whether there are any contract lab~rers or .

inter-State migrant workmen in any of tlj,ese stone quarries or slone -'-· crushers, in the light of 'the interpretation laid down by us in this ' judgment, and, if so, what is the number of such contract labourers or inter,State migrant workmen in each stone quarry or stone crusher. If Shri Laxmi Dhar Misra finds as a result of his inquiry that 'the Contract Labour Act and/or the Inter-State. · Migrant Workmen Act . is applicable, he will make a report. to that effect to the Court ou or before 15th February 1984. We may make it clear that this. inquiry ~ by Shri Laxmi Dhar Misra is not directed for the purpose of fastehing any liability on the mine-lessees and stone crusher owners or the . iamadars and thekedars propriO vigore on the basis of such report, · '\ but merely for the purpose of considering whether a prima facie case T eX1sts on the basis of which action can be initiated by the Central Goverrunent; in which the mine-lessees and stone crusher .

owners and/or the jam~dars or thekedars would have. an opportunity of :. · contesting the allegation thl\t the Contract Labour Act. and/or the Inter-State Migrant Workmen Act applies to their' stone l\jUarry or stone crusher and defending such action. We may. now take up a few specific complaints urged on behalf of the workmen. The first complaint ·relates. to the failure to provide pure drinking water to the workmen in most of the stone quarries and stone crushers. The Report of M/s Ashok Sr'vastava and Ash~k . , Panda as also the Report made by Dr. Patwardhan shows that pure · drinking water is not made available to the workmen. ·rn Lakarpur mines· the workmen are obliged to take water ! 'from a shallow rivulet covered with thick algae" and that too, "after a walk over a dangerously ,steep incline'·'. The same situation also prevails in the mine in the Gurukul area as also in the Anangpur mines and in these mines 140 SUPREME COURT REPOR:rs [l9'84J2 s. c. R.

"quite -0ften the upstream and the further down-streani of the rivulet get blocked due to mining of stone and the water becomes stagn~nt" and the workmen have . no other option but to use this water fo. r drink , king p11rposes. It is true that in the low. er reaches of Lakarpur near the road there is a tubewell from which the workmen get water but that is only when they are permitted to do so by the persons oper~ting. it. The Report of Dr. Patwardhan also points out that it is the children or women of the workmen who· are usually engaged in the . work of transporting wate. r from distant places like the . tubewell . \ but they are not paid anything for this work which is being done by them.

Ne'ther any m'ne-lessee or stone· crusher owner nor any · jamadar or thekedar regards it as his duty to make prov;sion for drink- · ihg water for the workmen nor does any officer of the Central Government or of the State Government bother to enforce the· provisions of law in regard to snpply of drinking water: It is clear that, quite apart from the provisions of the Contract Labour Act and the Interstate Migrant Workmen Act, there is a specific prescription in section 19 of the Mines Act 1952 and Rules 30 to 32 of the Mines Rules l955 that the mine-lessees and sto·ne crusher owners shall make effective arrangement~ fot providing and maintaining at ,suitable points conveniently situated a sufficient supply of cool and ·wholesome drinking wa,ter for all workmen· employed in the . stone quarries. and stone crushers. The quality of drinkin_g· wate~ to be provided by them has to be on a scale of at least. 2.

1itres for every person employed at any one time and such drinking water has to be readily ayailable at conveniently accessible points · during the whole of the working . ,. . time. Rule 31 requires that if drinking water is not provided from I taps connected with· constant 'water supply system, it should . be kept I cool in suitable vessels sheltered from weather ·and such vessels must ·be emptied, cleaned and refilled every day a;i. d steps have to·be taken . ·~ to preserve the water, the storage vessels and the vessels used for . F . , drinking water in clean and hygienic condition. · The inspectors may also by order in writing require the mine-lessees and stone crusher owners to submit with the least possible delay a certificate from a competent health officer or analyst as to the fitness of the water for human consumption.

This obligation has to be carried out by the mine-lessees and stone crush~r owners and it is the responsibility of the Central Government as also of the State of Haryana to ensure that this o]:>ligation is immediately carfied out by the mine-lessees and stbne crusher owners. We would therefore direct the Central Government and the State of ·Haryana to ensure immediately that the mine-lessees and stone crusher owners· start supplying pure drink- . ing water· to the workmen on a seale of at least 2 . litres for every • BANDHUA _MUKTI MORCHA v. UNION (Bhcgwati, J. ) 14! • • workman by keeping suitable vessels in a shaded place at conveniently access;ble points and appointing some one, preferably, amongst the women and/or children of the workmen to look after these .. vessels. · The Central Government and. the State. of Haryana will also take steps for ensuring that the vessels in which drinking water ·is kept by the mine-Jes.

sees and· stone crusher owners are kept in clea and hygienic condition and are emptied, cleaned and refilled every day anc! they shall also ensure that minimum wage is paid to the women and/or children who look after the, vessels. The Chief Labour ) Commissioner, th. e Deputy Chief Labour Commissioner, the Assistant L1baur Commissioner arid the Labour Enforcement Officers of the Government of India as also the appropriate inspecting officers of the Government of Haryana shall supervise strict! } the enforcement of this obligation and initiate necessary actiori if there is any default. The Central Government ' as also. the'. State of Haryana will also immediataly direct the mi~e-lessees and stone-crusher owners to start' obtaining drinking Water from ·any nnpolluted source . or sources .