# BANDHUA MUKTI MORCHA • v. UNION OF INDIA & OTHERS·

- **Citation:** [1984] 2 S.C.R. 67
- **Court:** Supreme Court of India
- **Decided:** 1984
- **Case number:** Writ .Petition No. 2135 of 1982
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bandhua-mukti-morcha-v-union-of-india-others-8719
- **Pages:** 109

## Headnote

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67
A
. BANDHUA MUKTI MORCHA
•
v.
UNION OF INDIA & OTHERS·
December.16, 1983
B
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 weaker iRections co1n'p/aining violation
... •
of their 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 6Code 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 of the 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
of Service) Act. 1979-ss.2 (/) (e), (b), (g), 4,§_)2 and Chapter V-Inter·State Migrant Workmen (Regulation of Employment aird Conditions of SerJ1ice) Central Rules,
: 1980-Rules 23, 25-45-Definition of inter-state 1nigrant workinen-Rights and benefits
of inter-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-Existene,!! of Forced 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.
Minbnum Wciges Act, Worktnen's C0mpensation 1Act, 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 ActsWhether available to mine workers. -
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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)
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that there \Vere a large number of labourers from different parts ofthC: Country who
wC:re work.1ng in some of the stone quarries situate in district Faridabad, State of
.
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SUPREME COURT REPORTS
[!982] 2 S.c.R.
Haryana under
0 inhuman and intolerable cohditions; (2) that a large number
of them were bonded labollrcrs; (3) that the provision·s of the Constitution and
·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.:.
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, suffe

## Text

_Characters 0–39,998 of 329,768. This is a partial read: ask again with offset=39998 for what follows._

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·,
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67
A
. BANDHUA MUKTI MORCHA
•
v.
UNION OF INDIA & OTHERS·
December.16, 1983
B
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 weaker iRections co1n'p/aining violation
... •
of their 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 6Code 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 of the 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
of Service) Act. 1979-ss.2 (/) (e), (b), (g), 4,§_)2 and Chapter V-Inter·State Migrant Workmen (Regulation of Employment aird Conditions of SerJ1ice) Central Rules,
: 1980-Rules 23, 25-45-Definition of inter-state 1nigrant workinen-Rights and benefits
of inter-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-Existene,!! of Forced 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.
Minbnum Wciges Act, Worktnen's C0mpensation 1Act, 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 ActsWhether available to mine workers. -
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E
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G
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)
H
that there \Vere a large number of labourers from different parts ofthC: Country who
wC:re work.1ng in some of the stone quarries situate in district Faridabad, State of
.
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SUPREME COURT REPORTS
[!982] 2 S.c.R.
Haryana under
0 inhuman and intolerable cohditions; (2) that a large number
of them were bonded labollrcrs; (3) that the provision·s of the Constitution and
·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.:.
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<iinst sun and rain;
(v) some of ihe labourers were suffering from chronic diseases; (vi) no compensa-
·tion was being paid tO labourers~whq were injured due iO accidents arising in the
Course of cmploymeiit; (vii) there were no f<icilities for medical ·treatment ·or
~chooling. At the direction of the Court, a· socio-legal investigation Was a.lso
carried out and it suggested measures for ·improving the conditions of the ·rn~ne
workers;
The respond~nts Cotitep.ded: (1) Article 32 of the Constitution is not attracted
to the instant case as no fundcimental right of the .petitio"ner or of the workrr1en
referred to in the· petition is iiifringed ; (2) A letter addressed bY a party to this
Collrt cannot be treated as a· writ petition;· (3) In a prdceeding under Art. 32,_ this
. Court is not empo~ered to appoint any commission or an investigating body to
enquire into the allegations made Jn the writ petition; (4} Reports made.by such
commissions are based only on ex-parte statements which have not been tested by
'cross-examination and theiefore they. have no 'evidentiary value; and (5) there
might be forced labourers in the stone ·quarries and stone· crushers.in the S_tate of
Haryana but tlieY were not bonded. labourers within the meaning of that ex.pres-
, sion as Used in the Ponded La~our System (Abolition) Act, 1976.
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RejeCtini all the contentions aD.d allowing 'the writ petition on· merits,· tbe
Court
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HELD : ·The State GoVernment's objection as to the maintainability of
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the writ petition under Article 32 of the Constitution by the petitioners is repre:
hen'sible.
If any citizeri brings before the Court· a coniptaiqt that a large nuni.ber
of peasants or .workers are boqded serfs or are b~ing subjected to exploitation by
a few mine lessees or contractors or emplo.yers.?r are be~ng ~enied ~htJ.o_benefit~ of.
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BAND HUA· MUKTI MORCHA 'v. · UN~ON
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social welfare laws, the State Government,
Which is, under our constitutional
sche!Jle, charged with the μiission of bringing about ·a new socio-ecomonic order
\vhere there will be social alld economic justice for.every One equality of status and
opportuniiy for all, would \-velcome an inquiry by-"the .court, so that if it is found
- ·that there are ill fact bonded labourers or even if the workers are-not bof_1ded in
the strict sense of the. term as defined in the Bonded Labour System (Abolition)
Act 1976 but they are made to proVide forced labour or are consigned to a·Jife of
utter deprivatioD. ·and degradation~ such a situation can be set right by the State
Govcrnm~nt. Even if the State Goveriunent"iS on its own inquiry satisfied ihilt
the workm~ri are not bOnded and are not- compelled to provide forced Jabour and·
are Jivjng and wOrking in decent conditions with all the basic neceSsities of iife '
provided to them, the State Government should not baulk an inquiry bY the court
when a complaint is brought by ·a citizen, but it should be anxiolls to satisfy the·
court and through tlie court, the pOOple of the coUntr.Y, that it is discharging its
constitutional obligation fairly and adequately and the workriten are being ~nsured_
social and eeonomic justice .. [IQ2A-D].
2 .. Moreover, When a complaint is made on behalf of workmen that they
are held in bondage and are working and living in miserable cOndltions Without·
any proper or adequate. shelter ·over their heads, without any protection a~inst
sun and rain, without two squaremeals per da:Y arid with- only dirty water from a
nullah tO drink, it is diffic.ult how such a_ complaint can be thrown out on the ground
that it is not violative of the fundamental right of the workmen. ·It is the fundamental right of every one in this.country, assure4. under the interpfetation given to
Article 21 by this Court in Francis Mullen's Case, to Jive with 'human dignity,
free from exploitatiori. This right to live with human _dignitY enshrined in Article 21 derives· its life breath from: the Directive Principles of State Poiicy and -particullrly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least,
therefore, ,it mttst include protection Of the health. and strength of workers, men
and women, and of.the tender age of children against abuse, opportunities 3nd"faci~
lities for children to develop in a healthy manner and in cond!tionS of freedom and
dignity, educational facilities, just and humane conditions of work and maternity
relief. These are the ffiinimum.requirements which fllUSt exist in order to ertable
a person to live with human dignity .and no State-neither thC Central Government
nor ariy State Govefiiqient-has the right ta ,take any aCtion which will deprive a
person of the enjoyment·of these·basic essentials. Since th,e Directive Principles of
State Policy contained .in clauses (e) and (f) of Article 39, Article 41 arid- 42 arC
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not enforceable in a court of law, it may not be possible to compel the State through
the jLidicial_ process to make provision by statutory ~nactment 'or executive fiat
fOr ensuring· these basic essentials which go to make up a Jife of human dignity
but"where legislation is· alteady enaGted by the State providing these ba-3ic require~
ments to the ~wOrkinen ·.and thus inv~sting their" right to Jive with basic human
dignity, with concrete reality and content,· the. State can certainly be obligated to
ensure observance of such legislation for inactiOn op. the part·of the State fn securing implementation of such leg!slation would amount to denial of the right to live
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with human.dignity ~nshrined in·Articie 21, more so in the context of Article 256_
which provides 1hat the exceutive power of every State shall be so exercised as to
· ensure compliance with the laws made by Parliament and any existing laws which
apply in that State. [103B-H-104A]
·
3. The State is Under a: cOnstituti.onaI obligation to see that there is no violation of the fundamental right of any person, particularly when lie
~clongs, to the
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SUPREME COURT REPORTS
[1984] 2 S.C.R·
·. w~a~~r secti?ns of the con~unity and ls unable to wage a legal battlC against a
strong and powerful opponent who is exploiting him.
The Central Government
is therefore bound to ensU.re obserVancC of various social welfare and,13.bour laws
enacted by Parliament for the purpose of securing tO the workmen a life of basic
~uman dignity in compliance wifh · the_ Directive Principles of St~te Policy. It
· niust also follow as a necessary corollary that the State of Haryana in which the
stone quarries arc vested by reason of Haryana Minerals (Vesting of Rights) ·Act .
·1973 and which is therefore the owner.of the mines cannot while giving its mines
for stone quarrying operations, permit wqrkni.en to be denied the benefit of various·
social welfare and labour laws enacted with. a view to enabling them to live a life
of humln di~nity. The State of Haryana n1ust therefore ensure that the minele'ssees or contractors, to whom it is giving its mines for stone quarrying operations, observe various social welfare and labour laws enacted for the benefit of the
workmen.
TJ:iis is a constitlltional obligat~on which can be enforced against the
Central Government and the State of Haryana by a writ petition under Article
' 32 of the Constitution. [1.04 A·D]
4. While interpreting Article 32, it must be borne in mind that our approach •
1nu~t-be guided nOt by any verbal or formalistic canons ef construction but by the
paramount object and purpose-for 'vhich this Ariicie has been .enacted 3.s a Fund.a·
mental Right in the Constitution and its interpretation 'must receive· illu.mination
from the tiinity of provisions-which permeate and energise the entire Constitution
~amely, the Preamble, the Fundamenta! Rights and the· Directive PrinciPles of
·, State Policy. ClauSe (I) of ~rticle.32 confers the righ~ to inove the_ Supreme c:otirt.
·for enforcement of any of the fundamental rights;=> but it does not say as to who
, shall have this right to move the Supreme Court -nor 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."
Of course, the collrt would nbt, in exercise of its discfetion, intervene at the in·
stance of a ·meddlesome interloper or buSy body and would ordinarily insist that
only a person whose fundain"ental fight is violative should
0be 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
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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
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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
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]
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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
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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 bono Publico 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]
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Public Interest litigation is not in the nature of adversary 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 obserVance 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
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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
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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 enforcement of a fundamental right: That is why the Constit~tioll is silent as to what procedurC sh<i.11 be followed by the Supreme Court in exercising the power to issue such
direction or Order or writ as in Article 32 and advisedly so, beca.Sue the constitution makers never_ intended to fetter· the discretion of the Supreme Court to
evo!ve a procedure appropriate in the circumstances of a given case• for the purpose
of enabliiig it to exercise its .power of enforcing a fundamental right. Neither
claug;e (2) of Article 32 nor any other provision of"the Constitution requires that any
particular procedure shall be followed by the Supreme Court in exercising its power
to issue· an approrpriate direction, order or writ. The pprpose for which the power
to issue "an appropriate direction, order or -writ is·conferred on the Supreme 'Court
is to secure enfotcement of a fundtimeri.tal .fight.and obviously therefore, \vhatever
pr0cedure is necessary· for fu1filment of that purpose must be permissible .to the
Supreme Court. [108 B-H, 109 A-BJ ,
·
8,. It is notvat ail obtigatOrJ. that an <idversarial prot:edurc. where each· party
producJs his own evidence tested by cross-examination by the other side .and the ·
judge sits like an umpire and decides the case only on the basis of such m8.terial ·as
may be produced before him by both parties, must be .followed ih a proceeding
under Article 32 for enforcement of a fundamental right.
In _·fact, there is
no· such constitUtional compulSion enacted in clause ·(2} of Article 32 or ifn any
other part of the Constitution. There is D.othing sacrosanct abOui the adversarial ·
,procedure with evidence led by either party and tested by cr_oss~xmainatfon by the
other party and the judge playing ;i. positi.ve role has become a part of our legal system ·beCause it is embodied in the Code of Civil pro_Cedure and the. Indian Evidence
ACt. But these statutes ·obviously have no· application where, a new jurisdiction is
created in the Supreme Court for enforcement of a fWldamental ·right. Therefore it Is rtot justified to impose anj" restriction on the power of the Supreme Cour::t'
adopt ·such procedure as it thinks fit in _exercise. of Its new jurisdication, by lngrafting adve.rsarial procedure on· it, when the constitution makers have deliberately
chosen not tO insist, on any such requirement and instead left it open to the SuprCme
C9urt to foliow such procedure as it thinks appropriate· for the purpose of securing
the end for which the" power is conferred namely, enforcement of a funruin1eiita-1
right. [109 B-0)
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9. The strict adherence to the adversarial procedure can som~ times lead to
injustice. Particularly when the parti~ are nOt evenly balanced Jn social or econo·
mic strength. ·Where one of the parties to a· litigation belongs to a· poor and depriVed
section of the·cOmin~nity.and do~ not possiss adeq~ate social and material resour·
·ces, he is bound to be at a disadvantage as against a strong and powerful opponent
uri,der the adversary,.system of justice, becasue of his.difficulty iii.getting competent
legal representation and more than an)'thing else, his inability to· produce relevant·
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evidence· before ihe court.
Th~refwe, when ihe. p~or come before the court'. particularJy for. enforcement of.their fun,daffiental .. rjghts, it is ~eces~ry to d~part f~om
.... the adversarial procedure and to evoive·a ne":. pro_cedurc wh_1chw1ll_make It posSible
for tbe poor and the weak to bring the necessary Ill~t.erial before the court for t~e
purpose of securing enforcen1ent of their fundamental_ rights. If the adver.san~~
procedUre is truly followed in their case, they would never be able to enforce their
fundamental rights and the" result ~ould be nothing but a mock~ry of the _-Constitution. Therefore the Courts should a:balldon the laissez faire approach in the·
judicial process particularly where it.involves a question of enforcement of fun~a
inental rights and forge new tools, ·devise new methods and adopt new strategi~
... for the purpose of making fundamental ri~ts meaningful for the large ma~es of
people. And this is clearly pcnnissibli: on the language of clause (2) of Article 32
because the· Constitution makers while. enacting that clause haye deliberately and
advisedIY not used 'and words restricting th.e .power of the court to adopt any procedure which it considers appropriate in the circumstances of a given case for enforcing a fundamental right. [1_10 B·Fl
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10. .it is. obvious that the .Poor and. the disadvantaged cannot possibly: produce ~relevant materia-1 before the Court in support Of their caso and equally where .
. an action is brought on their behair by a citizen- acting pr(J bono pub/ico. it would
be almost impossible for him to gather the relevant !9.aterial and place it before the
Court. lo such a case the Supreme Court would he faiiing in discharge of its con-
'tional duties of enfofcing a fundamental right if it refuses to intervene because th"e
stitupetitioner belonging to the underprivileged segment of society or a Public spirited
citizen espousing his cause is unable to produce the relevant material before the court.
If the Supreml;l Court \vere to agopt a passive approach arid decline to 'intervene in
such a case because relevani material has not been produced before it by the party
Seeking its intervention, the fundamental tights would remain merely a teasing
i11usion so far as the poor and disadvanta~d sections of the community are concerned. Therefore the SuPren1e Court has evolved the practice of appointing conunissions for the purpose of g~thering facts and data in regard to a Complaint' of breach
of a fundamental right made on behalf.of the weaker sections of the society. The
Report" of 'the commisSioner would furnish prima facie evidence of the facts and data
gathered by the commissioner and that is why the Supreme Court is careful
to appoint a responsible person as commissioner to make an inquiry or investigation into the fa~ts r~Jating to the complairit. Even in ·the· past the Supreme Court
has appoii:ted sometimes a district magistrate, sometimes a district Ju~e; some-
. times a professOr of law,· sometimes a jciumalist, sometimes an officer of the court
and soinetim~s an advocate practising in the court, for the purpose' of carrying
out an enquiry of investigation and inaking report to the court because the commissioner appointe'd .by the Court .must be a-responsible· person who enjoys the confiden~ of the court and who is expected to ·carry o-Ut his assignment objective~y and
impartially without" any predilection or .prejudice. Once ·the report of the conimissioner is f~ived, copies of ii-would be supplied to the parties so that either party,
if it wants to 'dispute any·of the facts or date statedjn the Report, rnaY do so by
·filing au affidavit ~nd the court then ·eonsider the report of the co.mmissioner and thC
affidavits which rilay have been filed and proceed to adjudicate upon the issue "arising in the wdt" petition. It would. be entirely foi the Court io consider what wtiight
to attach to the f<icts and data stated in the report of the commissioner and to what
extent to act'upon such.facts and data. But it wOuld not be correct to say that the
report of the commissioner has- no evidentiary value at al1, since the Statements
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m<lde :in it are not_ tested b~ cross-examina~ioQJ., To accept this co'ntentio'n would
be to introduce the adversarial_ procedure-in a pr.occeding where in the given situation, it is totally inapposite. [111 B-H, 112, A-BJ
1.1. If is 'true that Order XL Vi 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<iJ.e quarries. The petitioner in the writ petition specifically alleged violation of the fundamental rights of the workmen employed in the
stone quarries under Articles 4.1 and 23 and ii was therefore necessary for the court
to' appoint these comn1issioners for th,e purpose of in{iuiring i11to the facts related
to this complaint. The· Reports of the Commissions were clearly docwnents .
hri.ving cvidentiary value .ind. they fui-nished prima facie evidence 'of the facis and
data stated in those Reports. Of course, it is f0r the' court to consider what ".'eight
it Should attach to the facts and data contained in these Reports ,in the light of
the various ri.ffidavits filed in the proceedings.[l,l.2 F-H, 113 A-BJ.
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12.· The position pointed out as the power of_ the Supreme Couft to appoint
con1mis~ionerS in the exercise of its jurisdictiOn under Article 32 1nust"apply equ3.lly
in relation to the exercise of jurisdiction by the High Courts under Article 226
for th~ tatter Jurisdiction is also a ne\V constitutional ju(isdiction and it is conferred
in the same wide ten,ns as the jurisdiction Under Article 32 and the san1e powers
can and must therefore be exerCised by the High Court v.ihilc exercising jurisdic-
'tion under-Art.ide 226. In fact, ihe jurisdiction of th~ High Courts under Article
226 is much \Vider, 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 righ_t and there are many rights conferred on the poor and .. the disadvantaged
which are the creation of statute and they need to be enforced,as urgently and
vigo_tousl!' as fundan1ental rights .. [I I 3 B-D]
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The St~ne quarries in the instant case are "mines" within the meaning
of the Section 2 (j) of the Milles Act, 1952 since they are excavations where operp.-
tions for the purpose of searching for or obtaining stone by quarrying are
~eing
carried on but they are not 'open Cas"t working' since admittedly e~Civations ,in the
case of' these Stone quarries extend below superjacent.ground.
Since the workings
in these stone quarriciS extend below Superjacent ground t1-nd they are not 'open
east \Vorkings' and 'moreover explosives are admittedly used in connection with
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the excavation, the conditions set out in the. proviso to see. 3 (i) (i) are not,fulfilled
and hence the exclusion of the provisioris of the Minrs Act 1952 (other than the
excepted sections) is not attracted and 'all the provisions of the Mines Act 1952
apply to these stone ·quarries. The" prOvJsions contailled in chapters V1 VI & VII
of the Mines Act confer certain rights and benefits on· thfl workIQen employed in the
stone quarries and stone crushers and these rights <ind benefits intended to secure
to the workman jus~ ar.d human conditions of .\\'ork ensuring a decent. standard
of Iife· with basic human dignity. ·Since th~ stone quarries are not being exploited
by the State of Haryana though it is the o.wner of the st.one quan·ies, but are being
given out on lease by auction, the rn,ine-lessees who are not only lessees but also
occupiers of the stone quarries arc the owners of the stone quarries within the mean.:.
ing of that expression as used in section 2 (1) 3.nd so also are the owners of stone
crushers ill relation to their establishment. The mine-lessees and owners of. stone
crushers are, therefore, liable under section 18 of the Mines Act, 1952 to carry out
their operations in accordance with the provisions of the Mines Act, 1952 and the
Mines Rules, 1955 and other Rules and Regulations made under that Act and to
ensure that the rights and benefits conferred by these provisions are actually and
. concretelY made available to the workmen. The Central Government is entrusted
under the Mines Act 1952 with the r~sponsibilit).' of securiilg compliance with the
provisions of that Act and of the Mines Rules 1953 a.nd other Rules and Regulations made under that Act and it is the primary obligation of thci Central Government to ensure that .these provisions (\re complied with bY the mine-lessees and
stone crusher owners.
The State of Haryana is.also under an obligation to take
all necessary steps for the purpose of secμring compliance with these provisions by
·the mine-ICssee~ and owners of stone crushers. The Staie of Haryana is .therefore,
in-any event, bound to take action to enforce the provisions.of the Mines Act 1952
and the Mines ,g\lles 1955 and other·Rules and RegulatiOns made under that Act
for the berrefit of the workmen. [113 G-H, 114 A, li5 A1 E: G, li6 B-F, 117 GD]
13. The Inter-state Migrant Workmen (Regulatio-n of Employment and, .
conditions of Service) Act, by ·sub-seCtion (4) of section (1) applies to every establishn1ent in· which five or more inter-St;ite M-igrant workmen are employed or
were·employed on any day of the preceding twelve n1onths .and so also it appiies
~o every contractoi· who employs or employed five or m~re inter~State migrant
\Vorkmeil on any day of t_he preceding twelve m<:>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 res Ult 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 expression "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 InterA
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State WorknlCn Act. Section 16 Jays a duty ·on every contractor employing inter
State migrant work1nen i_n connection with the work of an csta blishment to prov id~
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<icilities is in
rel~tion to the-inter-State migrant··wOrkmen employed in an
estab1ishn1ent to which the Act applies. Rut this liability is not confined only to the
·contracti;>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·r fo'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 Fu rids 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]
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trac.tor• within t~e meaning of the definition of the tem1 in the Inter~State Migrant
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WOrkmen Act, he wollld a fortiorari be ~contractor' also for the purpose of Conti-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
Rules ~nd to. provide to the contract labour rights and benefits collferred by these
Provisions.