# M.C. MEHTA AND ANR v. UNION OF INDIA & ORS

- **Citation:** [1987] 1 S.C.R. 819
- **Court:** Supreme Court of India
- **Decided:** 1987
- **Bench:** P.N. Bhagwati. Cj, Ranganath Misra. G.L. Oza, M.M. Dutt, K.N. Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-c-mehta-and-anr-v-union-of-india-ors-9512
- **Pages:** 27

## Headnote

Constitution of India 195()-Artic/es 12 & 21-Private corporation-Engaged in industry vital to public interest with potential to affect
life and health of people-Whether 'other authority'-Extent of availability of Article 21.
Article 32-Jurisdiction and Power of Court-Not only injunctive
in ambit-Remedial ·in scope and provides relief for infringement of
fundamental right-Power to award compensation.
A
B
c
Public Interest Litigation-Maintainability of-Whether letters
D
addressed even to an individual judge entertainable-Whether preferred
form of address applicable-Whether letters to· be supported by
affidavits-Hyper-technical approach to be avoided by the CourtCourt must look at the substance and not the form-Court's power to
collect relevant material and to appoint commissions.
Law of Torts-Liability of an enterprise engaged in a hazardous
and inherently dangerous industry for occurrence of accident-Strict
and absolllfe-Quantum of compensation payable for harm causedDetermination of-Rule laid in Rylands v. Fletcher-Whether applicable in India.
Jurisprudence-Law-Should 1 keep pace ivith changing socioeconomic norms--Where a law of the past does not fit in to the present
context, Court should evolve new law.
Interpretation of Constitution-Creative and innovative interpreE
F
tation in consonance with human rights jurisprudence emphasised.
G
Interpretation of statutes-Foreign case /a1v-Supre1ne Court of
India not bound to follow.
The petitioners, in this writ petition under Art. 32, sought a direction for closure of the various units of Shriram Foods & Fertilizers ' H
819
820
SUPREME COURT REPORTS
[ 1987] 1 S.C.R.
'
A Industries on the ground that they were hazardous to the community.
During the pendency of the petition, there was escape of oleum gas from
one of the units of Shriram. The Delhi Legal Aid and Advice Board and
the Delhi Bar Association filed applications for award of compensation
to the persons who had suffered harm on account of escape of oleum
B gas.
A Bench of three Hon'ble Judges while permitting Shriram to
restart its power plant as also other plants subject to certain conditions,
referred the applications for compensation to a larger Bench of five
Judges because issues of great constitutional importance were involved,
namely, (I) What is the scope and ambit of the jurisdiction of the
C Supreme Court under Art. 32 since the applications for compensation
are sought to be maintained under that Article; (2) Whether Art. 2 I is
available against Shriram which is owned by Delhi Cloth Mills Limited,
a public company limited by shares and which is engaged in an industry
vital to public interest and with potential to affect the life and health of
0 the people; and (3) What is the measure of liability of an enterprise
which is engaged in an hazardous or inherently dangerous industry, if
by reason of an accident occurring in such industry, persons die or are
injured. Does the rule in Rylands v. Fletcher, (1866 Law Report 1
Exchequer 265) apply or is there any other principle on which the
liability can be determined.
Disposing of the applications,
HELD: I. The question whether a private corporation like
Shriram would fall within the scope and ambit of Art. 12 so as to be
amenable to the discipline of Art. 21 is left for proper and detailed
F consideration at a later stage if it becomes necessary to do so. [844F-G I
Rajasthan Electricity Board v. Mohan Lal, [1967] 3 SCR 377;
Sukhdev v. Bhagwat Ram, [1975] l SCC 421; Ramanna Shetty v. International Airport Authority, [1979] 3 SCR 1014; Ajay Hasia v. Khalid
Mujib, [1981] 2 SCR 79; Som Prakash v. Union of India, [1981] 1
G S.C.C. 449; Appendix I to Industrial Policy Resolution, 1948; Industries (Development and Regulation) Act, 1951; Delhi Municipal Act,
1957 Water (Prevention and Control of PoUution) Act, 1974; Air (Prevention and Control of PoUution) Act, 1981; Eurasian Equipment and
Chemicals ltd. v. State of West Bengal, [1975] 2 SCR 674; Rasbehari
Panda v. State, [1969]

## Text

_Characters 0–39,690 of 70,921. This is a partial read: ask again with offset=39690 for what follows._

M.C. MEHTA AND ANR.
v.
UNION OF INDIA & ORS.
DECEMBER 20. 1986
[P.N. BHAGWATI. CJ, RANGANATH MISRA. G.L. OZA,
M.M. DUTT AND K.N. SINGH, JJ.]
Constitution of India 195()-Artic/es 12 & 21-Private corporation-Engaged in industry vital to public interest with potential to affect
life and health of people-Whether 'other authority'-Extent of availability of Article 21.
Article 32-Jurisdiction and Power of Court-Not only injunctive
in ambit-Remedial ·in scope and provides relief for infringement of
fundamental right-Power to award compensation.
A
B
c
Public Interest Litigation-Maintainability of-Whether letters
D
addressed even to an individual judge entertainable-Whether preferred
form of address applicable-Whether letters to· be supported by
affidavits-Hyper-technical approach to be avoided by the CourtCourt must look at the substance and not the form-Court's power to
collect relevant material and to appoint commissions.
Law of Torts-Liability of an enterprise engaged in a hazardous
and inherently dangerous industry for occurrence of accident-Strict
and absolllfe-Quantum of compensation payable for harm causedDetermination of-Rule laid in Rylands v. Fletcher-Whether applicable in India.
Jurisprudence-Law-Should 1 keep pace ivith changing socioeconomic norms--Where a law of the past does not fit in to the present
context, Court should evolve new law.
Interpretation of Constitution-Creative and innovative interpreE
F
tation in consonance with human rights jurisprudence emphasised.
G
Interpretation of statutes-Foreign case /a1v-Supre1ne Court of
India not bound to follow.
The petitioners, in this writ petition under Art. 32, sought a direction for closure of the various units of Shriram Foods & Fertilizers ' H
819
820
SUPREME COURT REPORTS
[ 1987] 1 S.C.R.
'
A Industries on the ground that they were hazardous to the community.
During the pendency of the petition, there was escape of oleum gas from
one of the units of Shriram. The Delhi Legal Aid and Advice Board and
the Delhi Bar Association filed applications for award of compensation
to the persons who had suffered harm on account of escape of oleum
B gas.
A Bench of three Hon'ble Judges while permitting Shriram to
restart its power plant as also other plants subject to certain conditions,
referred the applications for compensation to a larger Bench of five
Judges because issues of great constitutional importance were involved,
namely, (I) What is the scope and ambit of the jurisdiction of the
C Supreme Court under Art. 32 since the applications for compensation
are sought to be maintained under that Article; (2) Whether Art. 2 I is
available against Shriram which is owned by Delhi Cloth Mills Limited,
a public company limited by shares and which is engaged in an industry
vital to public interest and with potential to affect the life and health of
0 the people; and (3) What is the measure of liability of an enterprise
which is engaged in an hazardous or inherently dangerous industry, if
by reason of an accident occurring in such industry, persons die or are
injured. Does the rule in Rylands v. Fletcher, (1866 Law Report 1
Exchequer 265) apply or is there any other principle on which the
liability can be determined.
Disposing of the applications,
HELD: I. The question whether a private corporation like
Shriram would fall within the scope and ambit of Art. 12 so as to be
amenable to the discipline of Art. 21 is left for proper and detailed
F consideration at a later stage if it becomes necessary to do so. [844F-G I
Rajasthan Electricity Board v. Mohan Lal, [1967] 3 SCR 377;
Sukhdev v. Bhagwat Ram, [1975] l SCC 421; Ramanna Shetty v. International Airport Authority, [1979] 3 SCR 1014; Ajay Hasia v. Khalid
Mujib, [1981] 2 SCR 79; Som Prakash v. Union of India, [1981] 1
G S.C.C. 449; Appendix I to Industrial Policy Resolution, 1948; Industries (Development and Regulation) Act, 1951; Delhi Municipal Act,
1957 Water (Prevention and Control of PoUution) Act, 1974; Air (Prevention and Control of PoUution) Act, 1981; Eurasian Equipment and
Chemicals ltd. v. State of West Bengal, [1975] 2 SCR 674; Rasbehari
Panda v. State, [1969] 3 SCR 374; Kasturi Lal Reddy v. State of Jammu
H & Kashmir, [1980] 3 SCR 1338, referred to.
i
'
-"!
...
'
M.C. MEHTA v. UNION OF INDIA
821
2. The Delhi Legal Aid and Advice Board is directed to take up
the cases of all those who claim to have suffered on account of oleum gas
and to file actions on their behalf in the appropriate Court for claiming
compensation and the Delhi Administration is directed to provide
neces..ary funds to the Board for the purpose. [844G-H; 84SA]
3.(i) Where there is a violation of a fundamental or other legal
right of a person or class of persons who by reason of poverty or disability or socially or economically disadvantaged position cannot approach
a Court of law for justice, it would be open to any public-spirited
individual or social action group to bring an action for vindication of
the fundamental or other legal right of such individual or class of individuals and this can be done not only by filing regular writ petition
under Art. 226 in the High Court and under Art. 32 in this Court, hut
also by addressing a letter to the Court. [828B-C; E-F]
3.(ii) Even if a letter is addressed to an individual Judge of the
Court, it should be entertained, provided of course it is by or on behalf
A
B
c
of a person in custody or on behalf of a woman or a child or a class or o
deprived or disadvantaged persons. [8298-C)
3.(iii) Letters addressed to individual Justices of this Court
should not be rejected merely because they fail to conform to the preferred form of address nor should the Court adopt a rigid stance that no
letters will be entertained unless they are supported by an affidavit. If
the Court were to insist on an affidavit as a condition of entertaining the
letters the entire object and purpose of epistolary jurisdiction would be
frustrated because most of the poor and· disadvantaged persons will
then not be able to have easy access to the Court and even the social
action groups will find it difficult to approach the Court. [828H; 829B)
Bandhua Mukti Morcha v. Union of India & Ors .• [!984) 2 SCR
67; S.P. Gupta v. Union of India, [1981) (Suppl) SCC 87 and Union for
Democratic Rights & Ors. v. Union of India, [1983) I SCR 456, relied
upon.
E
F
4.(i) Article 32 does not merely confer power on this Court to G
issue direction, order or writ for enforcement of the fundamental rights
but it also lays a constitutional obligation on this Court to protect the
fundamental rights of the people and for that purpose this Court has all
incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental
rights. It is in realisation of this constitutional obligation that this Court
H
822
SUPREME COURT REPORTS
[1987) 1 S.C.R.
A has, in the past, innovated new methods and strategies for the purpose
of securing enforcement of the fundamental rights, particularly in the
case of the poor and the disadvantaged who are denied their basic human
rights and to whom freedom and liberty have no meaning. [827F-828A]
B
4.(ii) The power of the Court is not only injunctive in ambit, that
is, preventing the infringement of fundamental right but it is also remedial in scope and provides relief against a breach of the fundamental
right already committed. [830A-B]
4.(iii) The power of the Conrt to grant such remedial relief may
inclnde the power to award compensation in appropriate cases. The
C infringement of the fnndamental right must be gross and patent, that is
incontrovertible and exfacie glaring and either such infringement
should be on a large scale affecting the fundamental rights of a large
number of persons or it should appear unjust or unduly harsh or
oppressing on account of their poverty or disability or socially or
-economically disadvantaged position to require the person or persons
D affected by such infringement to initiate and pursue action in the Civil
Courts. [830D; E-F]
4. (iv) Ordinarily a petition under Art. 32 should not be used as a
substitute for enforcement of the right to claim compensation for infringement of a fundamental right through the ordinary process of Civil
E Court. It is only in exceptional cases that compensation may be awarded in a petition under Art. 32. [830F-G]
4.(v) The applications for compensation in the instant writ petition are foi' enforcement of the fundamental right to life enshrined in
Art. 21 of the Constitution and while dealing with such applications the
F Court cannot adopt a hyper-technical approach which would defeat the
ends of justice. The Court must look at the substance and not the form.
Therefore, the instant applications for compensation are maintainable
under Art. 32. [827A-B]
Bandhua Mukti Morcha v. Union of India & Ors., (1984] 2 SCR
G 67; S.P. Gupta v. Union of India, (1981] (Suppl.) SCR 87; Union for
Democratic Rights & Ors. v. Union of India, [1983] I SCR 456 and
Rudul Shah v. State of Bihar, AIR 1983 SC 1086, relied upon.
5. The rule in Rylands v. Fletcher (snpra) laid down a principle
of liability that if a person who brings on to his land and collects and
H keeps there anything likely to do harm and such thing escapes and does
)
M.C. MEHTA v. UNION OF INDIA
823
~
damage to another, he is liable to compensate for the damage caused. A
This rule applies only to non-natural user of the land and it does not
apply to things naturally on the land or where the escape is due to an act
of God and an act of a stranger or the default of the person injured or
where the thing which escapes is present by the consent of the person
~
injured or in certain cases where there is statutory authority. This rule
evolved in the 19th century at a time when all tbese developments of B
science and technology had not taken place cannot afford any guidance
in evolving any standard of liability consistent with the constitutional
J"'
norms and the needs of the present day economy and social structure.
In a modern industrial society with highly developed scientific knowledge and technology where hazardous or inherently dangerous indus-
·t
tries are necessary to carry on as part of developmental programme, c
the Court need not feel inhibited by this rule merely because the new
law does not recognise the rule of strict and absolute liability in case of
an enterprise engaged in hazardous and dangerous activity. [842D-G]
Halsburry Laws of England, Vol. 45 Para 1305, relied upon.
D
6.(i) Law has to grow in order to satisfy the needs of the fast
changing society and keep abreast with the economic developments
--i--
taking place in the country. Law cannot .afford to remain static. The
Court cannot allow judicial thinking to be constricted by reference to
the law as it prevails in England or in any other foreign country.
Although this Court should be prepared to receive light from whatever E
source it comes, but it has to build up its own jurisprudence, evolve new
principles and lay down new norms which would adequately deal with
~
the new problems which arise in a highly industrialised economy. If it is
found that it is necessary to construct a new principle of law to deal with
an unusual situation which has arisen and which is likely to aris~ in
future on account of hazardous or inherently dangerous industries F
which are concommitant to an industrial economy the Court should not
hesitate to eYolve such principles of liability merely because it has not
been so done in England. [843A-E]
'
6(ii) This Court has throughout the last few years expanded the
horizon of Art. 12 primarily to inject respect for human-rights and G
social conscience in corporate structure. The purpose of expansion has
not been to destroy the raison d'etre of creating corporations but to
advance the human rights jurisprudence. The apprehension that ineluding within the ambit of Art. 12 and thus subjecting to the discipline
of Art. 21 those private corporations whose activities have the potential
of affecting the life and health of the people, would deal a death blow to H
. · 824
SUPREME COURT REPORTS
[1987) 1 S.C.R .
A the policy of encouraging and permitting private enterpreneurial activity is not well founded. It is through creative interpretation and bold
innovation. that the human-rights jurisprudence has been developed in
--_India to a remarkable extent and this forward march of the humanrights movement cannot be allowed to be halted by unfounded apprehensions expressed by status quoists. [841C-E]
B
· 7 .(i) An enterprise which is engaged in a hazardous or inherently
dangerous industry which poses a potential threat to the health and
safety of the persons wo~kin~ in the factory and residing in the sur·
rounding areas owes an absolute non-delegable duty to the community
to ensure that if any harm results to anyone, the enterprise must be held
C to be under an obligation to provide that the hazardous or inherently
dangerous activity must be conducted with the highest standards of
safety and if any harm results on account of such activity the enterprise
must he absolutely liable to compensate for such harm irrespective of
the fact that the enterprise had taken all reasonable care and that the
harm occurred without any negligence on its part. [843E-G)
D
r
7.(ii) If the enterprise is permitted to carry on an hazardous or
inherently dangerous activitiy for its profit, the law must presume that
such permission is Conditional on the enterprise absorbing the cost or
any accident arising on account of such activity as an appropriate item
of its overheads. The enterprise alone has the resource to discover and
.E guard against hazards or dangers and to provide warning against poF
.
'
tenhal hazards. [844A-B]
7 .(iii) The measure of c~mpensation in such kind of cases must be
co-related to the magnitude and capacity of the enterprise because such
compensation must have a deterrent effect. The larger and more
prosperous the. enterprise, the greater must be the amount of compensation payable by it for the harm caused on account of an accident in
carrying on of the hazardous or· inherently dangerous activity by the
eri!erprise. [844E-F]
G
8. The historical context in which the American doctrine of State
'
action evolved in the united States is irrelevant for the purpose of I
Indian Courts, especially in view of Art. 15(2) of the Indian Constitution. But, it is the principle behind the doctrine of State aid, control and
regulation so impregnating a private activity as to give it the colour of
State action which can be applied to the limited extent to which it can be
H lndianised and harmoniously blended with Indian constitutional
M.C. MEHTA >. UNION OF INDIA (BHAGWATI, CJ.]
825
jurisprudence. Indian Courts are not bound by the Ai.1erican exposition of constitutional law. The provisions of American Constitution
cannot always be applied to Indian conditions or to the provisions of
Indian Constitution and whilst some of the principles adumberated by
the American decisions may provide a useful guide, close adherence to
those principles while applying them to the provisions of the Indian
Constitution is not to be favoured, because the social conditions in India
are different. [840D-H]
Ramanna Shetty v. International Airport Authority, (1979] 3 SCR
1014; Jackson v. Metropolitan Edison Co., 42 L.ed. (2d) 477; Air India
v. Nargesh Mirza, [1982] l SCR 438 and General Electric Co. Maratha
v. Gilbert, 50 L.ed (2d) 343, relied upon.
ORIGINAL JURISDICTION: Writ Petition (Civil) No. 12739
of 1985.
(Under Article 32 of the Constitution of India.)
Petitioner-in-person.
B. Datta, Additional Solicitor General, A.B. Diwan, F.S.
Nariman, B.R.L. Iyengar, Hardev Singh, Hemani Sharma, C.V.S.
Rao, R.D. Aggarwal, Ms. S. Relan, R.S. Sodhi, S. Sukumaran,
A
B
c
D
Ravinder Narain, D.N. Mishra, Aditya Narayan, Ms. Lira Goswami,
E
S. Kachwaha, Mohan, Raviilder Bana, K.C. Dua, K. Kumaramangalam, O.C. Jain and K.R.R. Pilai for the Respondents.
Raju Ramachandran for the Intervener.
Soli J. Sorabji for Citizens Action Committee.
F
The Judgment of the Court was delivered by
BHAGWATI, CJ. This writ petition under Article 32 of the
Constitution has come before us on a reference made by a Bench of
three Judges. The reference was made because certain questions of
G
seminal importance and high constitutional significance were raised in
the course of arguments when the writ petition was originally heard.
The facts giving rise to the writ petition and the subsequent events
have been set out in some detail in the Judgment given by the Bench of
three Judges on 17th February 1986, and it is therefore not necessary
to reiterate the same. Suffice it to state that the Bench of three Judges
f I
826
SUPREME COURT REPORTS
[1987] 1 S.C.R.
A permitted Shriram Foods and Fertiliser Industries (hereinafter referred
to as Shriram) to restart its power plant as also plants for manufacture
of caustic chlorine including its by-products and recovery plants like
soap, glycerine and technical hard oil, subject to the conditions set out
in the Judgment. That would have ordinarily put an end to the main
controversy raised in the writ petition which was filed in order to
I3 obtain a direction for closure of the various units of Shriram on the
ground that they were hazardous to the community and the only point
in dispute which would have survived would have been whether the
units of Shriram should be directed to be removed from the place
where they are presently situate and relocated in another place where
there would not be much human habitation so that there would not be
any real danger to the health and safety of the people. But while the
C writ petition was pending there was escape of oleum gas from one of the
units of Shriram on 4th and 6th December, 1985 and applications were
filed by the Delhi Legal Aid & Advice Board and the Delhi Bar
Association for award of compensation to the persons who had
suffered harm on account of escape of oleum gas. These applications
D for compensation raised a number of issues of great constitutional
importance and the Bench of three Judges therefore formulated the
issues and asked the petitioner and those supporting him as also
Shriram to file their respective written submissions so that the Court
could take up the hearing of these applications for compensation.
When these applications for compensation came up for hearing it wa• felt
E that since the issues raised involved substantial questions of law relating to the interpretation of Articles 21 and 32 of the Constitution, the
case should be referred to a larger Bench of five Judges and this is how
the case has now come before us.
Mr. Diwan, learned counsel appearing on behalf of Shriram
F raised a preliminary objection that the Court should not proceed to
decide these constitutional issues since there was no claim for compensation originally made in the writ petition and these issues could not be
said to arise on the writ petition. Mr. Diwan conceded that the escape
of oleum gas took place subsequent to the filing of the writ petition but
his argument was that the petitioner could have applied for amendG ment of the writ petition so as to include a claim for compensation for
the victims of oleurn gas but no such application for amendment was
made and hence on the writ petition as it stood, these constitutional
issues did not arise for consideration. We do not think this preliminary
objection raised by Mr. Diwan is sustainable. It is undoubtedly true that
the petitioner could have applied for amendment of the writ petition
H so as to include a claim for compensation but merely because he did
.>-
,.
M.C. MEHTA v. UNION OF INDIA [BHAGWATI, CJ.)
827
not do so, the applications for compensation made by the Delhi Legal A
Aid & Advice Board and the Delhi Bar Association cannot be thrown
out. These applications for compensation are for enforcement of the
fundamental right to life enshrined in Article 21 of the Constitution
and while dealing with such applications, we cannot adopt a hyper-
~
technical approach which would defeat the ends of justice. lbis Court
has on numerous occasions pointed out that where there is a violation B
of a fundamental or other legal right of a person or class of persons
who by reason of poverty or disability or socially or economically
~
disadvantaged position cannot approach a Court of law for justice, it
would be open to any public spirited individual or social action group
to bring an action for vindication of the fundamental or other legal
•
right of such individual or class of individuals and this can be done not c
only by filing a regular writ petition but also by addressing a letter to
the Court. If this Court is prepared to accept a letter complaining of
violation of the fundamental right of an individual or a class of indivictuals who cannot approach the Court for justice, there is no reason
why these applications for compensation which have been made for
enforcement of the fundamental right of the persons affected by the
D
oleum gas leak under Article 21 should not be entertained. The Court
while dealing with an application for enforcement of a fundamental
Yright must look at the substance and not the form. We cannot therefore sustain the preliminary objection raised by Mr. Diwan.
The first question which requires to be considered is as to what is
E
the scope and ambit of the jurisdiction of this Court under Article 32
since the applications for compensation made by the Delhi Legal Aid
and Advice Board and the Delhi Bar Association are applications
sought to be maintained under that Article. We have already had
occasion to consider the ambit and coverage of Article 32 in the
Bandhua Mukli Morcha v. Union of India & Ors., [1984] 2 SCR 67 and
F
we wholly endorse what has been stated by one of us namely,
Bhagwati, J. as he then was in his judgment in that case in regard to
the true scope and ambit of that Article. It may now be taken as well
settled that Article 32 does not merely confer power on this Court to
issue a direction, order or writ for enforcement of the fundamental
~
rights but it also lays a constitutional obligation on this Court to protect
G
the fundamental rights of the people and for that purpose this Court
has all incidental and ancillary powers including the power to forge
new remedies and fashion new strategies designed to enforce the
fundamental rights. It is in realisation of this constitutional obligation
that this Court has in the past innovated new methods and strategies
for the purpose of securing enforcement of the fundamental rights,
H
828
SUPREME COURT REPORTS
[1987] 1 S.C.R.
--;.,
particularly in the case of the poor and the disadvantaged who are
A denied their basic human rights and to whom freedom and liberty have
no meaning.
Thus it was in S.P. Gupta v. Union of India, [1981] Supp. SCC
87 that this Court held that "where a legal wrong or a legal injury is
,..
B caused to a person or to a determinate class of persons by reason of
violation of any constitutional or legal right or any burden is imposed
in contravention of any constitutional or legal provision or without
authority of law or any such legal wrong or legal injury or illegal
burden is threatened, and any such person or determinate class of
persons is by reason of poverty or disability or socially or economically
c disadvantaged position unable to approach the court for relief, any i
member of the public or social action group can maintain an application for an appropriate direction, order or writ in the High Court
under Article 226 and in case of breach of any fundamental right of
such person or class of persons, in this Court under Article 32 seeking
judicial redress for the legal wrong or injury caused to such person or
D determinate class of persons." This Court also held in S.P. Gupta's case
(supra) as also in the People's Union for Democratic Rights and Ors. v.
Union of India, [ 1983] 1SCR456 and in Babdhua Mukti Morcha's case
(supra) that procedure being merely a hand-maden of justice it should ,
not stanc! in the way of access to justice to the weaker sections of
Indian humanity and therefore where the poor and the disadvantaged
E are concerned who are barely eking out a miserable existence with
their sweat and toil and who are victims of an exploited society without
any access to justice, this Court will not insist on a regular writ petition
and even a letter adressed by a public spirited individual or a social
action group acting probono publico would suffice to ignite the jurisdiction of this Court. We wholly endorse this statement of the law in
~
F regard to the broadening of locus standi and what has come to be
known as epistolary jurisdiction.
We may point out at this stage that in Bandhua Mukti Morcha's
case (supra) some of us apprehending that letters addressed to indivictual justices may involve the court in frivolous cases and that possiG bly the view could be taken that such letters do not invoke the jurisdiction
of the court as a whole, observed that such letters should not be addresl
sed to individual justices of the court but to the Court or to the Chief
I
Justice and his companion judges. We do not think that it would be
right to reject a letter addressed to an individual justice of the court
merely on the ground that it is not addressed to the court or to the
H Chief Justice and his companion Judges. We must not forget that
)-
M.C. MEHTA v. UNION OF INDIA [BHAGWATI, CJ.]
829
letters would ordinarily be addressed by poor and disadvantaged
persons or by social action groups who may not know the proper form
A
of address. They may know only a particular Judge who comes from
their State and they inay therefore address the letters to him. If the
Court were to insist that the letters must be addressed to the court, or
to the Chief Justice and his companion Judges, it would exclude from
the judicial ken a large number of letters and in the result deny access
to justice to the deprived and vulnerable sections of the community.
We are therefore of the view that even if a letter is addressed to an
individual Judge of the court, it should be entertained, provided of
course it is by or on behalf of a person in custody or on behalf of a
woman or a child or a class of deprived or disadvantaged persons. We
may point out that now there is no difficulty in entertaining letters
addressed to individual justice of the court, because this Court has a
Public Interest Litigation Cell to which all letters addressed to the
Court or to the individual justices are forwarded and the staff attached
to this Cell examines the letters and it is only after scrutiny by the staff
members attached to this Cell that the letters are placed before the
Chief Justice and under his direction, they are listed before the Court.
We must therefore hold that letters addressed to individual justice of
the court should not be rejected merely because they fail to conform to
the preferred form of address. Nor should the court adopt a rigid
stance that no letters will be entertained unless they are supported by
an affidavit. If the court were to insist on an affidavit as a condition of
entertaining the letters the entire object and purpose of epistolary
jurisdiction would be frustrated because most of the poor and disad·
vantaged persons will then not be able to have easy access to the
Court and even the social action groups will find it difficult to
approach the Court. We may point out that the court has so far been ·
entertaining letters without an ·affidavit and it is only in a few rare
cases that it has been found that the allegations made in the letters
were false. But that might happen also in cases where the jurisdiction
of the Court is invoked in a regular way,
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So far as the power of the court under Article 32 to gather rele·
vant material bearing on the issues arising in this kind of litigation,
which we may for the sake of convenience call.social action litigation, G
and to appoint Commissions for this purpose is concerned, we endorse.
what one of us namely, Bhagwati, J., as he then was, has said in his
Judgment in Bandhua Mukti Morcha's case (supra). We need not
repeat what has been stated in that judgment. It has our full approval.
We are also of the view that this Court under Article 32(1) is free H
830
SUPREME COURT REPORTS
[1987) 1 S.C.R.
A to devise any procedure appropriate for the particular purpose of the
proceeding, namely, enforcement of a fundamental right and under
Article 32(2) the Court has the implicit power to issue whatever direction, order or writ is necessary in a given case, including all incidental
or ancillary power necessary to secure enforcement of the fundamental
right. The power of the Court is not only injunctive in ambit, that is,
B preventing the infringement of a fundamental right, but it is also remedial in scope and provides relief against a breach of the fundamental
right already committed vide Bandhua Mukti Morcha's case (supra). If
the Court were powerless to issue any direction, order or writ in cases
where a fundamental right has already been violated, Article 32 would
be robbed of all its efficacy, because then the situation would be that if
a fundamental right is threatened to be violated, the Court can injunct
C such violation but if the violator is quick enough to take action infringing the fundamental right, he would escape from the net of Article 32.
That would, to a large extent, emasculate the fundamental right
guaranteed under Article 32 and render it impotent and futile. We
must, therefore, hold that Article 32 is not powerless to assist a person
D when he finds that his fundamental right has been violated. He can in
that event seek remedial assistance under Article 32. The power of the
Court to grant such remedial relief may include the power to award
compensation in appropriate cases. We are deliberately using the
words "in appropriate cases" because we must make it clear that it is
not in every case where there is a breach of a fundamental right comE mitted by the violator that compensation would be awarded by the
Court in a petition under Article 32. The infringement of the fundamental right must be gross and patent, that is, incontrovertible and ex
facie glaring and either such infringement should be on a large scale
affecting the fundamental rights of a large number of persons, or it
should appear unjust or unduly harsh or oppressive on account of their
F poverty or disability or socially or economically disadvantaged position to require the person or persons affected by such infringement to
initiate and pursue action in the civil courts. Ordinarily, of course, a
petition under Article 32 should not be used as a substitute for
enforcement ·of the right to claim compensation for infringement of a
fundamental right through the ordinary process of civil court. It is only
G in exceptional cases of the nature indicated by us above, that compensation may be awarded in a petition under Article 32. This is the
principle on which this Court awarded compensation in Rudul Shah v.
State of Bihar, (AIR 1983 SC 1086). So also, this Court awarded
compensation to Bhim Singh, whose fundamental right to personal
liberty was grossly violated by the State of Jarnmu and Kashmir. If we
H make a fact analysis of the cases where compensation has been
M.C. MEHTA v. UNION OF INDIA (BHAGWATI, CJ.]
831
awarded by this Court, we will find that in all the cases, the fact of A
infringement was patent and incontrovertible, the violation was gross
and its magnitude was such as to shock the conscience of the court and
it would have been gravely unjust to the person whose fundamental
right was violated, to require him to go to the civil court for claiming
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compensation.
}
,
The next question which arises for consideration on these applications for compensation is whether Article 2 J is available against
Shriram which is owned by Delhi Cloth Mills Limited, a public company limited by shares and which is engaged in an industry vital to
public interest and with potential to affect the life and health of the
people. The issue of availability of Article 21 against a private corporation engaged in an activity which has potential to affect the life and
health of the people was vehemently argued by counsel for the applicants and Shriram. It was emphatically contended by counsel for. the
applicants, with the analogical aid of the American doctrine of State
Action and the functional and control test enunciated by this Court in
its earlier decisions, that Article 21 was available, as Shriram was
carrying on an industry which, according to the Government's own
declared industrial policies, was ultimately intended to be carried out
by itself, but instead of the Government immediately embarking on
that industry, Shriram was permitted to carry it on under the active
control and regulation of the Governn;ient. Since the Government
intended to ultimately carry on this industry and the mode of carrying
on the indu$try could· vitally affect public interest, the control of the
Government was linked to regulating that aspect of the functioning of
the industry which could vitally affect public interest. Special emphasis
was laid by counsel for the applicants on the regulatory mechanism
provided under the Industries Development and Regulation Act, 1951
where industries are included in the schedule if they vitally affect
public interest. Regulatory measures are also to be found in the
Bombay Municipal Corporation Act, the Air and Water Pollution
Control Ajrts and now the recent Environment Act, 1986. Counsel for
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the applicants also pointed to us the sizable aid in loans, land and other
facilities granted by the Government to Shriram in· carrying on the
industry. Taking aid of the American State Action doctrine, it was also
G
argued before us on behalf of the applicants that private activity, if
supported, controlled or regulated by the State may get so entwined
with governmental activity as to be termed State action and it would
then be subject to the same constitutional restraints on the exercise of
power as the State.
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832
SUPREME COURT REPORTS
(1987] 1 S.C.R.
On the other hand, counsel for Shriram cautioned against
A expanding Article 12 so .as to bring within its ambit private corporations. He contended that control or regulation of a private corporation's functions by the State under general statutory law such as the
Industries Development and Regulation Act, 1951 is only in exercise
of police power of regulation by the .State. Such regulation does not
B convert the activity of the private corporation into that of the State.
The activity remains that of the private corporation, the State in its
police power only regulates the manner in which it is to be carried on.
It was emphasised that control which deems a corporation, an agency
of the State, must be of the type where the State controls the management policies of the Corporation, whether by sizable representation on
the board of management or by necessity of prior approval of the
C Government before any new policy of management is adopted, or by
any other mechanism. Counsel for Shriram also pointed out the in:
appositeness of the State action doctrine to the Indian situation. He
said that in India the control and function test have been evolved in
order to determine whether a particular authority is an instrumentality
D or agency of the State arid hence 'other authority' within the meaning
of Article 12. Once an authority is deemed to be 'other authority'
under Article 12, it is State for the purpose of all its activities and
functions and the American functional dichotomy by which some functions of an authority can be termed State action and others private
action, cannot operate here. :rhe learned counsel also pointed out that
E those rights which are specifically intended by the Constitv.tion makers
to be available against private parties are so provided in the Constitution specifically such as Articles 17, 23 and 24. Therefore, to so expand
Article 12 as to bring within its ambit even private corporations would
be against the scheme of the Chapter on fundamental rights.
F
In order to deal with these rival contentions we think it is necessary that we should trace that part of the development of Article 12
where this Court embarked on the path of evolving criteria by which a
corporation could be termed 'other authority' under Article 12.
In Rajasthan Electricity Board v. Mohan Lal, [i967] 3 SCR 377
G this Court was called upon to consider whether the Rajasthan Electricity Board was an 'authority' within the meaning of the expression
'other authorities' in Article 12. Bhargava, J. who delivered the judgment of the majority pointed out that the expression 'other authorities'
in Article 12 would include all constitv.tional and statutory authorities
on whom powers are conferred by law. The learned Judge also said
H that if any body of persons has authority to issue directions, the dis-
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M.C. MEHJ'A •:UNION OF INDIA !BHAGWATI, CJ.I
833
obedience of which would be publishable as a criminal offence, that
would be an indication that the concerned authority is 'State'. Shah,
J., who delivered a separate judgment agreeing with the conclusion
reached by the majority, preferred to give a slightly different me!ning
to the expression 'other authorities'. He said that authorities, constitutional or statutory, would fall within the expression "other authorities" only if they are invested with the sovereign power of the State,
namely, the power to make rules and regulations·which have the force
of law. The ratio of this decision may thus be stated to be .that a
constitutional or statutory authority would be within the expression
"other authorities" if it has been invested with statUtory power to issue
binding directions to third parties, the disobedience of which would
entail penal consequences or it has the sovereigo power to make rules
and regulations having the force of law.
This test was followed by Ray, CJ, in Sukhdev v. Bhagat Ram,
(1975] 1SCC421. Mathew, J. however, in the same case propounded a
broader test. The learned Judge emphasised that the concept bf 'State'
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had undergone drastic changes in recent years and today 'State' could o
not be conceived of simply as a coercive machinery wielding the
thunderbolt of authority; rather it has to be viewed mainly as a service
corporation. He expanded on this dictum by stating that the emerging
principle appears to be that a public corporation being an instrumentality or agency of the 'State' is subject to the same constitutional
limitations as the 'State' itself. The preconditions of this are two,
E
namely, that the corporation is the creation of the 'State' and that
there is existence of power in the corporation to invade the constitutional rights of the individual. This Court in Ramanna Shetty v. International Airport Authority, [1979] 3 SCR 1014 accepted and adopted
the rational of instrumentality or agency of State put forward by
Mathew, J., and spelt out certain criteria with whose aid such an
F
inference could be made. However, before we come to these criteria
we think it necessary to refer to the concern operating behind the
exposition of the broader test by Justice Mathew which is of equal
relevance to us today, especially' considering the fact that the definition under Article 12 is an inclusive and not an exhaustive definition.
That concern is the need to curb arbitrary and unregulated power G
wherever and howsoever reposed.
In Ramanna D. Shitty v.