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

i - as a hearing ru1d a deci:;;on by the 'Court ·itself. The judgment pronounced and the decree or ordc:r nlade are acts of the Court, and accordingly they are respected,. o!'i:yed and enforced thrcughout· the Jan~ It is only right and prciper that this Should be kno\VTI G clearly to the lay public .. Communications ai1d petitions addressed to a particular Judge are· improper and· violate the institutional per- sonality of the Court. They also embarrass the judge to whom they are p~rsonally a<ldr~ssed.. The fundamental conception of the Court !11Ust ·b~ r~specteJ, that it is a single ·indivisible instituticn, Of unit<d H~ purpus·e and cxi~ting solely for tl)c high col1stitutional functions fer • \Vhich it !1a'l b.~8t1 Created .. The conception of ...the Co~rt as a J-oose

IlANDHUA MUKTI 1'{0RCHA ·v. UNION (PDt!wk, J.) 159

aggregate of individual Judges,. to one· or more of whom judicial access may be particularly had, undermines its very existence and. endangers its proper and effective functioning . .. I. shall now turn to the character and incidents of the procedure . open to t\le Court iii public interest litigation and the nature of the power exercised by it during the proceeding. · In public interest litigation, the .role held by the Court is more assertive than in tradi~ tional actions. During the .regime of the Warran Court in the United · · States, it proceeded to the point. where a.ffirmative programmes wer• ·j .envisaged, 'and .the relationship between right and ·reniedy' was freed from the rigid intimacy which constitutes a fundamental feature of

. --~ ' ' private law liti.gation. While remedial prncedure. was fashioned according to the demands of the case and varied from stage to stage, in the shaping of relief the. court treated with the future and devised · c .a code of regulatory action. Viewed in that context, the role. of. the Court i_s creative rather .than passive and it asseums a more positive attitude in determining facts.. ·

· Not infrequently public interest litigatidn affect 0 the rights of persons rrat before the court, and in shaping the relief the court must · invariably take into.accouht its impact on those interests. Moreover," · when its jurisdiction is invoked on behalf of a group, ii is as well to re1nember that differences n1ay exisf in Content and emphasis between the claims of different sectipns of the group. For all .these ·E reasons the co11rt must exercise the greatest caution and adopt pro-· Cedures ensudng Sufficient notice_ to all inrerests likely to be a.ffected. Moreover, the nature ·or the ·litigation . sometimes ·involves , the continued, intervention of the court over a period of time, and the organising of the litigation to ·a .;atisfactory concl~sion calls for ·judicial statesn1anship, ·.a close understanding of constitutiorial and legal values in .the context cf contempora'ry social forces, and a judi- • J:ious mix of restraint. and p.ctivism determined by the dictates of existi1ig realities. •Importantly,. at the same .tini'e, ·the Court must never forget that its jurisdiction extends no fart]\n than ¥1e legitimate limits of its constitutional powers; and avoid trespassing into political·'-' • territory which under 'the CO'nstitution has been appropriated to other organs of the State. This last aspect of the matter calls for more detailed con.sideration, which will he ~!tempted later. •

The procedures adopted by the Court in cases of public interest · litigation must of course be procedures designed and shaped, by_ the ·H Cou,rt with a. view to resolving the problem presented before it and

160 SUPREME COURT REPORTS . [1984] 2 S.C.R.

A deterillining t!ie naiure and ext.cnt of rdief accessible in the circums- . tances. On the. ·cons;.derations to which I have adverted earli.er, \ .. ·the C.ourt enjoys a degree .of flexibility unknown to the frial of tradi- tional private law' litigation. 'But I think it. necessary to .emphasise . that whatever the procedure adopted by the colirt it must be pro- .. cedure known to judicial tenets and characteristic of a judicial pro- ceedirrg. There· are .m.ethods and. avenues ·of procuring, material ·.a.vailabie to executive. arid legislative agencies, and often. empfoyed by tJiem for the efficient and effective disch.arge of the ta.sks before • them.· Not all those. methods-and avenues are available to the Court. \. The Cotirt must ever remind itself that oi1e of the indicia: identifying it 'as. a Court. is. the nature and character of the· procedure adopted· c by it fo determining a controversy. Xt is in that sense limited in the evolution of procedures pursued ])y it in. the p~ocess of an adjudication arid in the. grant. and ·execution of the relief. Legal jurisprudence .. has in its ·historical.development identified certairi..fundamental prin• ·ciples which form the essential constituents of judicial procedure . •Thev are emploved in 'every judicial proceeding; and constitute the.. basic infrastructure along whose channels flows the ·power of the <;:ourt iri the process of adjudication. ' What should be the conceivable framework of procedure in. public interest litigation? This questi.on does not admit of a clear cut .• answer.As I have obsernid ·earlier, it is not possible· to envisage '. E a de1i11ed pattern of procedure applicable to all cases .. or. necessity the pattern which the Court adbp1s· will v~ry with the circumstances of.each case. But it seems to me that one principle is clear. lfthere is a statute prescribing a judicial proced~re'governing the part.icular; . ; case the Court must follow such procedure. It is not open to the " Court to bypass the statute arid evolve a different procedure at variance F with it Where, however, the proceoure J>fescribed by statute . is incomplete or insufficient, ii. will .be open to the Court to supplement ·it by evolving its own rules .. N;netheless, the supplementary pro- .• . cedure must. conform at all stages to the principles of natural justice. The~e.can be no deviation from the pr;ricipks of naturaljustice and· , . >other well accepted procedural norms characteristic of a. judicial proceeding. Tiley ~onstitute an e.nti.re code· of general principles" of. . ;procedure, tried and proven . and halllowed . by the sanctity of common ' . a.nd. consistent acceptance during long years of the historical develop• :

ment of the. Jaw. The. general principles of law. to which reference · is made .here, conitnand.lhe confidence, not merely ofthe Ju'dge. and. ·the lawyer and the parties to the litigation; but supply that basic credib;lity t@ the judicial p1oceeding wh;ch strengthens public faith

Bl\NDHUA Ml:JKTI MORCHA v. UNION (Pathak, J.) 161 •· in the Rule of Law. They are•iules rooted in reason and fairplay, ·arid their governance guarantees ·a just disposition of the case. The court . should be wary .of suggestions favouring novel ·procedures in · cases· where accepted procedural Jules will suffice.

Turning now to the nature and extent of. the relief which can be contemphte<l in public inte'est.litigaticin, we enter into an area B· at once delicate and. sensitive and frangbt with grav~ implications. Article 32 confers· the· widest amplitude of power on this Courf in the matter of granting relief. It has power to issue "directions or orders or writs". and ther is no sp~cific indication, no express language, limiting or circumscribing that power. YeV the power is limited by· its very nature, ·that it is judicial power, It is power which per- tains to the judicial'organ ofthe State, identified by the very nature of the judicial institution. ·There are certain fundamental constitu- li.onal concepts which, although elementary, need to be recalfed at L:11cs. T:;:-: Constitulion envisages a broa<l division of the power of foe 3~atc ~~tween 'the legislature, the. executive and the judiciary. Although the division .~ not-precisely demarcated. there is genernl ackno-..vicdgln.::rt of its limits. The lirnits ca:· L•' gatJ-i· .·.c'. frr,m th.e .written text of Lhe C~lnS 1 :t·~1 tion, froril conv~::.·:.:,n::. ,,' tl _cn..,i.itutiun8] practice, a11d from· a11 ellti1') array of i.:J'._i: .:·-~ d~'..Jr(·< The coA-- . stitutional_ lawy~r co-nr."c-j s a certai;1 incasUrC' ot o·y·er\:tpping ·in functional action lmong the three o,-gans of ihc S ate. Eut there is no. warrant for assuming ·a ge·ometrical cpngruence. It is common· pl;tce that while the kgislature enacts the law, the executi\e · ·' implements it and the court interprets it and, in doing so, adjudicates· on ·the validity ofe~ecutive action and, under our·Constitution, even judge's the validity of the legislation itself. And yet it is well recog- . ,nised that in a certain sphere th'' legislature is possessed of.judicial power, the executive' possesses a measure of both ,legislative an judicial functions, and the co,urt,. in its. duty of interpreting the· law, a accomplishes in itS ·perfected action· marginal degree of legislative "x~rcise. Nonetheless, a fine and delic~te balance is envisaged under our Constitution betwe.en these primary institutions of. the State. In similar Constitutions elsewhere the courts have been anxious to maintain and preserve . that balance. An example is provi~ed by Marbury v. Madisanl" I do not mean to say that the· Court should- hesitate or falter or withdraw from the exercise of its jurisdic" tion. ·On the contracy, it must plainly do its duty under the Con- · · stitution. But .r do say that in every case the Cour.t ~hould determine . H. ( l l. 5 U.S. [l Cranchj 137 [1803].

162 ~SUPREME COURT REPORTS [1~84).2. S.C.R. ·

A the true limits of its jurisdiction and,'having done so, it should take care. to remain within the restn\ints of its jurisdictio.n.

This aspect of- Coiirt action assumes especial significance in public interest litigation. It bears upon the legitimacy of the judicial •instituti9n, Md. that. legitimacy is affected as much by the solution presented by the Court in. resolving .a controversy as by the manner in which 'the so1ution is reached. In an area of judicial functioning where' judicial activism finds .room for play, where constitutional adjudication. can become. an instrument of social policy forged by the p~rsollal political philosophy of the jUdge, this is .an important CO!)- . siderati(ln to keep in mind. . c . . . . . . .

· •Where the Court.embarks upon affirmative ·action in the attempi to. remedy a "constitutional imbalance within the social 'order, few ·· critics will find fault with it so Jong as it confines itself to the scope ·of its legitimate authority. But there is always the possibility, .in D ·public interest· litigation, ·of succumbing tp . the temptation ·or crossing into terri,tofy .which .prope'rly pertailis to the Legislature or to the Executive Government: 'For in. most cases the jurisdicticin of th~ 'Court is. invoked when a default occurs in executive administra- a tion;. and· sometimes where void .in community life remains unfilled by ..legislative action: The resulting public. grieva~ce finds expression E through social action groups, which consider the Court an appropriate · " forum for removing. the deficiencies. · Indeed, the citizen. seems· to . find it ~pre coniienient to apply to the Court for the. vindication ·of constitutional· i;ghts than appeal .to the executive or legislative organs of the State. -

F · In th~ process of correcting executive erro.r. or removing legisla, tive omission the. Court can so ea~ily find itself 'involved in pelic.y . 'making of fl quality and toa degree characteristic of political autho-." . rity and inde~d run the risk of being mistaken for one. . An ·excessi- vely political role identifiable with political governance betrays the Court into functions alien to. its fundamental character, and tends G to destroy the <!elicate balance envisaged ·in our constitutional system . between its three b.asic institutions. The Judge, conceived in the true classicai mould, is an impartial arbiter,' beyond and abow political bias and prejudice; functioning silent!) in· accordance with 1he Con- stitution ancl his · judicial concience .. Thus does he maintain the legitimacy of the institution he serves and hopour ·the trust which·· t- his office has reposed . . in him .. ..

BANDHUA MUKTI MORCHA v. UNION (Pathak, J.) 163 .

The affirmative ·schemes framed in public inter~st litigation A by the. Court sometimes require detailed administration under con~ ·· stant judicial snpervisfon over protracted periods, Tue lives of large ·. sections of people, some of whom have had no voice in the deci'sion, are- shaped. and 'ordered by mandatory Court action extendini: i11to the future.: In that context, it is· as well to remember that public approval and public consent assu~e material importance. in its. B successful 'implemenfution. Jn· ·contrast' with · polity making by · Jegisla.ticin, where a large. body of legislators. debate ori a proposed legislative enactment, no such visual impact cai1 be perceived when judicial decrees .are forged and fashioned by a few judicial p_ersonages

- in the confines of a Court. The mystique of the robe, at the stage of decision-making, is associated.traditionally .with cloistered secrecy ·and ·confidentiality and the end-result commonly issue• as a ·fin&l definitive act of the Court.: It is a serious question whether· in every . ·.case .the same awesone respect and reverence will endure durini ..... different stages .of affirmati'l'e action seeking to regµJate · the' Jiyi,. · of · · large numbers of people, .some ·of. whom never partieipated ·in tl!e judicial process . D . .. There is good reason to suppose that treating with public interest · litigation requires more- than legal schola"hip and. a~ la.towlcdie of . ' textbook. Jaw. It is of the ·utmost importance in such cam that .; wheri formulating a scheme of.action, the Court must have due regard · to the· ·particular circumstan.ces· of the case, to /surrounding realities E · including the potential for successful implementation, and the lilce- . ~ lihood and degree of response from· the agencies on ·whom the imple- ' mentation will depend. In 111os.t cases of public inter~st litigation; there· will be neither. precedent nor settled practice to &dd weight and force to' the vitality of the Court'; action. The example -~of. ~ similar cases in otl]er coun\_ries can afford little support.. The success- F •. ful implementation Of the orde.rs of the Court wiU depend upon the particular social forces in the backdrop of local history, t!:te prev11iling . economic pressures, the duration o( the stages involved in the imple- mentation, the momentum of success from stage to stage, and accep- tance of t_he Court's action ..at all times by those involved in or affected ~it. • . . . . . . ... An activist Court,. spearheading the mo~ement for the develop- ni,-nt and exteqsion ~f the citizen's constil1ltional rights, for the pr-0- tection' of individual -liberty and for· the strengthening of th« soci.o- economic fabric in compliance with declared constitutional objectives, H will need . to move ·with. a degree . of judicial circumspection. In the

164 SUPREME COURT REPORTS '[1984] 2 s.c.R.

A centre of a social order changing with dynamic pace, the Coutt needs to balance the authority of the pa•t with the urges of the future. · As far· back as 1939, Judge Learned Hand()' observed that a Judge "must preserve his authority by cloakin.g himself in the majesty of an over-shadowing past; but he · must discover some composition with the dominant n<;eds of his times". In thaHask the Court must B: ever be conscious of the ,constitutonal truism that it possesses the sanction of neither the swo.rd nor the purse and that its st;ength lies basically in public confidence and support, and that consequently the legitimacy of its acts and· decisions must remain beyo1~d all doubt. · Therefore, whatever the case before it, whatever the context of facts

c and legal ~ights; ·whatever the s·ocial' and· economic pressures of the times, whatever the· personal philosophy of the Judge, let i.t not be · forgotten that the essential identity of the institution, that it is a Ccurt, must remain preserved so ·that every action of the Court is informed .. by the· fundamental norms of Jaw, ' - . . and by the principles embodied - in the Constitution and other sources of law. If its contribution to y the. jurisprudeniiai .ethos of society is to advance our constitutional . D objectiv.es, it must function in. accord with only those principles which. enter irito the composition of .judicial action and give to it its essential quality. In his perceptive Lectures entitled "The Warren Court: Constitutional Decision as an Instrument of Reform"'''· Professor Archicald Cox .·pointedly ·observes .: .

E "Ability to rationalise a constitutional judgment in terms

,_, - of principleneferable to accepted sources of Jaw is an essen- tial, major element of constitutional a!ljudication. It is one of the ultimate sources of ·the power of the Court- including the power to gain aceeptance for the occasional { great leaps forward which lack such justification., Constitu- F tional government must operate by consent of the governed . . Court decrees: draw no authority from the parlicipat10n of the people.. Their power to command consent depends upon more than habit or .even the deserved prestige of the. . justices. It comes; to an important degree, from the con- tinuing force of the rule of law-from the belief that the G major influence in ·judicial decisions is not fiat but principles which bind thejudges as well as the litigants and which apply : consistently among all men today, and also yesterday . and tomorrow".

I H (O 52 Harvard Law Review 361 [1939]. (2) Harvard University Press [1968], p. 21.

,, BANDHUA MUKTI MORCH!\ v, UNION (PRthak, J.) 165

. There is great merit in the Court proceeding to decide an issue on the basis of strict legal principle and avoiding carefully the influence of purely emotional irppeal. For that alone gives the decision of the Court. a direction· which is certain, and unfaltering, and that particular permanence in. legal jurisprudence which makes it a base for the next step forward in the further progress of the law. Indeed,. both certainty of substance and ce~tainty of direction are indispensable requirements in the development of the law, and· invest it with the i credibility which commands public confidence in it• legitimacy .. _ . .

I This w~rning· is of especial si gnifi~ance in these times, during

~ a phase· of judicial history· when a fow social action groups tend to show evidence of presuming that in every cas'e the· court must bend c and mould its decision to popular notions of which way .t'.case should be decided.. ·

I have endeavoured by th_ese observations to indicate some of the areas in· which the Court should move with caution and cir- cumspection when addressing.itself to public interest litigatiqn., As new areas-open before .the. Court with modern developments in jurisprudence, in a world more sensitive to human rights as well as the impact of technological progress; the Court will become increasingly conscious of its expanding jurisdiction. That. is inevitable. But its responsi- bilities are correspondingly gre_at, and perhaps never greater than now. And we must remember that tliere is no higher Court to correct our errors, and that we wear the mantle of infallibility only because \- ciur decisions are final: That we sit at the apex of the judicial adminis- tration and our· word, by constitutio1ml mandate, is the·law of the land can induce an unusual sense of power. It is a feeling we must guard against by constantly reminding om'selves that every decision . r· must be guided by re,'.'son and by judi.;:ial principles. F • My brothers have dealt with the preliminary objections raised by the respondents to the maintainability of this proceeding. On the considerations to which I have adverted earlier J have no hesita- 'tion in agreeing with them ihat the preliminary objections must be rejected. I have 90 doubt in my mind that persons in this country. G obliged. to serve as bonded Jabour are. entitlted to invoke Article 23 · of the Constitution. The provisions embodied in .that.clause form a vital constituent of the Fundamental Rights set forth in Part III of the Constitution, and their ·violation attracts properly the scope of Article 32 of the Constitution. I also find difficulty in upholding H th? objection by the respondents to the admissibility and relevance ,

. 166 . SUPREME COURT REPORTS · [1984] 2 s:c.R,

.C,f the material consisting of'the repo;·t of the two advocates and of Dr. P.atwardhan appointed as Commissioners. H is tnie that the reports of the said:Co'mmissioners have not been tested by cross- .examination,' but then the .record docs not show whether any .attempt .. was made by .the· respondents to call them· for cross-examination .. The further question whether the appointment of the Comm.issioners B falls withi,;.·the terms of Order XLVI of the Suprem~ Court Rules . 1966 is of technical significance only, \)ecausc there was inherent power in the Cou·rt, i11 the particular circumstances of this case, to \ take that action. 1 have already set forth earlier my views.in r~spect of the nature and forms of procedure open to .the Co ti rt in pulllic ·interest litigation and I need not elaborate them here. ( may add, c howev~r, that.the Court would do well to issue notice to. the respon- dents, bofore appointing any Commissioner,.. iii tl)ose cases where there Is little upprehen:iion of the disappearan~e of evidence: . . . . ._· . . (ln the merits· of.the case I find ·myself in agreement with my )Jrother Bhagwati, .both in regard to ·:·the operation· of the various statut~s as. well as the directions proposed by. him. The case. is one . . of considerable importance to a section of our people, .who .pressed by the twiit misfortunes of pov.erty and i1iileracy, are compelled to a condition of life which long since should ·have passed into history~ The continued . ·existence of such pockets. of oppression and misery do no justice to the promises and assurances extended by 'm,ir Con- "' . . . . . .. . ' .. E st1tut.Ion to 1ts citizens. . ·. , . . . . · -

. · AMARENDRA NATH 'SEN, J .. The' relevant facts .have .been fully. i set out· in the judgment of my learned brother Bhagwati; J. My learned : . brother has. also recorded in his judgment the. various· contentions' which were urged before us in this writ .petition. \ ' ' - F 'i· • A preliminary objection . was raised by Shri K. L. Bhagat, Additional Solicitor General of India and also by Shri Phadke, learned ·counsel appe.aring on behalf of the respondents, as to the ma.intaina- bility of the present petition. TI1e objection to the maintainability of th~ present petition is taken mainly on the following three grounds:-,- .

!. Art. 32 of the Constitution is.' not attracted to the instant case as no fundamental right of the, petitioners or of the workmen referred to in. the petition ate infringed.

2. a A letter addressed by party to this Court cannot be treatrd as a writ petition and in th~ absence ·of any .'

BANDHUA MUKTI MORCjlA v. UNIOl:I (A.N. Sen, J.) . 167

verified petitiqn this Court cannot he moved to exercise

,. 3. its wrir jurisdiction. - ·

In a proceeding under Art. 32 of the· Constitution ihis Court is n~t cmp;wered tc. appoint any commission or an investigating body to enquire into the allegations . . . made and make a report to·· this. Court on t~e basis of .B the enquiry to ¢nable this Court to exercise its power • and jurisdiction under Art. 32 of the Constitution, -~

.. I ·Propose to consider the objection• in ihe ·order noted above. I shall first deal with the first objection, namely, that Art. .32 of the

- -~ ' Constitu.tion ·is ·not attracted as. there is· no violation· of any funda- c mental right of the petitioner or of·the >Vorkri1en referred to in the .petition.

Tl;e substance of the grievance of the petitioners in this petition is that the workmen referred to in the communication addressed to thls Court. are bonded labourers .. In 1976, ·the Parliament enacted D· . the. Bonded Lab 0ur System (Abolition) Act, 1976 and by virtue of the provisions of the said Act,. the· bonded labour system has been declar.ed to be illegal inthis country. Any person who is wrongfully and illegal!i employed as· a labourer in violation of the provisions of the Act, -is in essence deprived al. his liberty ... A bo"nded labourer truly becomes a· slave and the freedom of a ·bonded labourer in the matter of his employment and ·movement is ·m~re or Jess completely taken. away .and forced iabour is thrust° upon him. When any bonded

- labourer appraaches this Court, the real grievance that he makes ·is that he s~ould be freed from this bondage and he prays for be;ng set a~ liberty and· liberty is no doubt a fundamental righ(gura1tteed to every person under the Constitution. · There cannot be any-manner of doubt that any person who is wrongfully ana illegally detained and F

is deprived of his liberty can approach this Co11rt under Art. ·32 of the Constitution for his freedom from wrongfui and illegal detention, and for being sef at liberty. Jn my opinion, whenever any person is wrongfully and illegally depdved of his libertv, it is open to, anybody · who is interested in the person· to move'· this Court under Art. 32 of : G the Constitution for his release. It may not very often be possible for the person who is deprived of his liberty to approach. this Court, as by. virtue of such illegal and wrongful detentio~·; he may not be .· free and in a· position to' move this Court. The Petitlo.ner in the instant case claims to ·be an association interested in the welfare of " H society and particularly of the weaker section. The Petiticner furtl1cr ,

168 SUPREME COURT REPORTS [1984] 2S.C.R.

.A states that the petifioner seeks to promote the welfare of the labourers and. for promoting the welfare of laboljr, the petitioner .seeks to niove this Court for rel~asing the bonded labourers from their. bondage and:for resloring to them their freedom and.othe.r legitimate 1ights. . ' The bonded labourers working in the far away places are generally po9r and belong to the very weak section of the people. · They. are B also ;JO! very .literate and they may not be conscious of their own rights. Further, as they are kept in bondage their freedom is: also restricted and they may ndt be in a position to approach this Court. · Though no fundamental right of the petitioner may be said to be infringed, yet the petititner who complains of the violatio1i of the fundamental· right of the workmen who have .been wrongfully and c illegally denied their freedom .and deprived of their constitntional right must be. held to be. entitled to approach this Com:t on behalf of.the bonded labourers for removing them from illegal bondage and - deprivation of liberty. · The focus standi oLthe petitiouer to move this Court appear to be conclusively established by the· decision of. this .r Court in the case of S.P. Guta v. Union of India. & Aiir.U 1 Farced D labour is constitutionally· forbidden by Art. 23 of the Constitution .• As in the present case the violation or the fundamental ·right of liberty of the workmen who" arc.said to be k.ept in wrongful and illegal deten- tion, employed in forced labour, is alleged, Art. 32 of the Constitu!icn· . to my mind, is clearly attracted; The ftrst ground raised on behalf of the respondei:ts cannot, therefore, be sustained': E Before I proceed to deal with the second ground urged on behalf

·- of the respol)dents, it will be convenient to set out the provisions. of Art .. 32 of the Constitution. Art. 32 'read· as follows : -

"(!) The right to move the Supreme Court by appropriate proceedings for. the enforcement of the ri_ghts conferred by ~.· trus Part is guaranteed.

(2) The Supreme Court shall have power to issue. directions ·or orders or writs, including writs in the nature of habeas · corpus, mandamus, prohibition, qup warrants and certiorari, whichever· may be appropriate'; for the enforcement of any of' the rights conferred by this part. ·

(3). Without prejudice to the powers co.nferred on the Supreme Court by clauses (I) and (2), Parliament may by law empower H (1) [19811 Suppl. S.C.C. 87. •

aANDHUA MUK.Ti MORCHA V. UNION (A.N. Sen, J.) J69

any other court to exercise within t!ie .local limits of its A ·jurisdiction all or aµy of the powers exercisable by tlie Supreme Court under clause (2). ' (4) The right guaranteed· by this article sh.,!! not ~ sus- . pended except as otherwise provided for by this Constitu-

. tion."

Art. 32(1) confers the right to move this Court by appropriate B

-~ proceedings for enforcement of the· fundamental rights. guaranteed under the Constitution. Art. 32(2) makes provision. for the powers· of this. Court in the matter of granting relief in any proceeding in - this Court_ for enforcement of the fundamental. rights . guaranteed c by the ConstitutiOn. )\rt. 32(3) and 32(4) which I have also set out for the purpose of complete understanding of the provisions of Art. 32 for proper appreciation of its scope and effect; do not have any material bearing ori the question-involved in the prese_nt proceeding.

The se~ond grou.nd which raises the question whether tjie letter D addressed by a party to this Court can be treated as a writ petition and in the absence of any verified_ petition this court can be moved to exercise its writ jurisdiction. is essentially ·an objection to the pro- cedure to be adopted by. this Cou.rt in the matter of entertaining a proceeding under Art. 32 for enforcement of fundamental rights of the parties. Art. 32(1) of the Constitution- which ha_s been earlier· set out guarantees the right to move this Court by an appropriate .. proceeding for the enforcement Of the fundamental rights. A;t. 32(2)

... f:Onfers ·wide powers on this Court in the _matter. of granting relief against any violation ofthe fundamental rights. Art. 32 or for that matter any other article does not lay down any procedure which has to be followed to move this Court for ·relief against the violation of any fundamental· right. Art. 32(1) only' lays down that _the right • to move this Court by appropriate proceedings for enforcement ·of fundamental rights is guaranteed. _The Constitution very· appro- priately leaves the question as to what will constitute an appropri~te .proceeding for the p~pose of enforcement of fundamental rights' to be determined by the Court. Tgis Court, when sought to be_ moved under Art. 32 by any party for redressing· his .grievance against the violation of fundamental rights has to consider whether the procedure followed by the party is appropriate enough to entitle _the court to procee.d to act on the same. No doubt this Court.has framed ·rules which are .contained in part IV, ·Order XXXV of the Supreme Court H Rules under the Caption. "application for enforcement of fundamental .-

170 SUPREME COURT REPORTS (1984] i S.C.R.

rights ("Art. 32 of the Constitution"). Generally speaking, any party who seeks to move this Con.rt under Act. 32 of the Constitution: · should conform "to the rules prescribed.. The rules fay down the procedure which is normally to be f~llowed in the· matter of a·ny application under Art. 32 of the Constitution. These rules are rul~s relating to the procedure tci be adopted and the rules are intended ·· to serv.e as mafds to the. Deity of Justice. Pro.cedural Jaw which also . forms a part of the law and has t6 be. observed, is, however, sub- servient to substantive law and the Jaws of procedure are prescri'll!d for promoting and furthering the ends of justice. There cannot. be · any :doubt that this. Court should usually follow .the procedure laid down in O.XXXV of the Rules of this Court and should .normally insist on a petitio'n properly verified by an affidavit to· be· filed te enable the Co.tut to take necessary action ·on ·the same. Though this Court should n~rmally insist on the rul~s of procedure being followed, it cannot be said, taking.into consideration the nature of - ·right conferred under Art. 32 to move this Courthy an appropriate proeeeding and the very wide powers conferred on this Court for D granting relief in the case of violation or' fundamental rights, ·that . this Co.urt will have no jurisdiction to entertain any proceeding which may not be in conformity wit]\ procedure prescribed by the Rules of tilis COurt. The Rules undoubtedly lay down the procedure which is normally to be followed for. making an application 'under Art. 32 · of the Constitution. They, ·however, do not ·and cannot have the effect of limiting the jurisdiction ~·f this Court of entertaining a pro- ceeC.!ing>under Art. 32 of t\le Constitut)on, if made', only in the manner prescribed by the rules. For effectively safeguarding the fundamental rights guaranteed by the Constitution, the Court in appropriate cases in the. inte.rests of justice will certainly be- 'ompetent to. treat a pro- '! ,. ceeding, though ·not in conformity with the procedure prescribed F by the Rules of this Court, as an appropriate proceeding under Art. 32 of the Constitution ·aud to entertain· the same. Fundamental rights . •guaranteed under the'Constitutiqn are indeed too sacred to ·be ignored • . or trifled with merely on the ground. of technicality or any rule of .. procedute. .It may further be notice'a that the rules framed by this Court do not also. fay ·down that this Court. can be moved under Art G 32 .of t)le Constitution only in accordance with the. procedure pres- cribed by the .Rules. and not otherwise .. A mere technicality in. the matter of form Ol' procedure whic)l may not in any way affect the substance of any proceeing should .not. stand in the way of the exercise of the very wide jurisdiction· and· powers conferred on this H Court under Art. 32 of the Constitutjqn for enforcement of funda- mental rights guarante~d under the Constjtution. Taking. into .

BANDHUA ,MUKTI MORCHA v. UNION (A.N. Sen, J.) !'71

considera.tio;1 th~ substance ~f the matter and .the nature of allega- A ). tions ma:de, it .will essentialiy be a matter for the Court to decide whether the 'procedure adopted cnn be considertd to te ,;n anic- ·priate proceeding within the ambit' of Art. 32 ·of the Constitution. The Court, if satisfied on the material; placed in the fem of a letter " or other communication addressed to this· court,· may take notice · . of . the same in a.ppropriate - cases. Experience shows that . in\ many ' B cases it may not be possible for the party conc.,rned to file a regular writ petition in conformity with procedure laid .down in ·the Ruks of this Court. It further appears that this Court;for quite some years· now ha.s 1n many cases proceeded to act on the basis of the letters a~dressed to it. A long standfog· practice of the. Court in the matter of·procedure also acquires sancti'ty~. It may also be pointed C out that in various cases the Court has refused to take any notice of letters or other kind of communications addressed to Court and in many cases also. the court on being moved by a letter hasdireeied a formal writ petition to be filed before it has. decided to prcceed . further in the ·matter. It is, however, eminently desirable, in my · opinion, that nornially the. procedur~ prescribed in the ruies. of this D Court should he followed while entertaining a petiticn 'under Art. 32 . of the ·Constitution, though in exceptional cases and particularly in matter of general public interest, this Court may, taking· into C0\1sideration the peculiar .facts and circumstances of the case, proceed to exerci.se its jurisdiction under Art. 32 of the constitution for enforce- ment of. fundamental rights treating t)le letter or ,.the communication ,E in any other form as an appropriate proceeding under Arte 32. of the Constitution, It is, however, eminently desir1ble mat any party who addresses a Jetter .or any other coinmunication to this Court seeking intervention of this Court on the basis of the said letter and. communication shOuld 'address this letter or communication to this . Court and nqt to any individual Judge by name. ·Such communica- F • . tion should be addressed to, the Chief Justice. of the Court and .his companion Justices,· A private communication, by a party to any Learned Judge over any matter is ·not proper and niay create. embar- rassment for the Court. and the Judge concerned.

lti the present <:ase,.the unfortunate ,workers who are emploccd · G· ,as bonded labourers at a distant place, could not possibly in view of the.ir bondage, move this Court, following the procedure laid do\vn in the Rules of this Court. The.· Petitioner which claiins to be a Social Welfare Organisation ·interested jn restoring. liberty ·and digni,ty to these unfortunate bonded- labourers should be considered competent H to move this Court by a letter or like communication addressed to

172 SUPREME COURT REPORTS [1984] 2 $.C.R. r A this Court, to avoid trouble and expenses, as the· petitioner. is not moving . this Court for any personal or private . benefit. . I shall now consider. the third and the last: objection which '-!,Ill relates to the powers of this Court to direct an enquiry into the allega- tions made and to call for a report in a proceeding under Art. 32 of B the Constitution to enable this Court to exercise its power andjurisdic- tion under Art. 32 'bf the Constitution.

We have earlier noted that the funpamental rights are guar~nteed by the Constitution arid for the enforcement of· the fundamental rights very -wide powers have been conferred on this Court Before c this Court proceeds to exercise itsp owers under Art.. 32 of the Con- · stitution for enforcing the fundamental rights guaranteed, this Court has to be satisfied that there has been a violati('ln of the fundamental rights. The fundamental rights may be alleged to have been violated under various. circumstances. The facts and circumstances differ I'" . from case to case. Wh.enever, ho.wever, there is an allegation of D violation of fundamental rights, it becomes the responsibility and also the sacred duty of this Court to protect such fundamental rights guaranteed under the Constitution provided 'that this Court is satisfie.d that a case for interference by this. Court appears prima facie to have been made out.. very often the violation. of fundamental rights is not admitted or accepted. On a proper consideration of the materials· E t.he Court has to come to a c0 ncluson whether there has been any violation· of fundamental rights to enable the Court to grant' appro' priate reliefs in the matter. rn· various cases, because of the peculiar facts and circumstances. of the case the party approaching this Court for · enforcement of fundamental rights may not be in " position to furnish all relevant materials an<l necessary partiuclars. If,' however, on a consideration of the materials placed, the Court is satisfied that .. F a prope_r probe ·into the qatter is necessary in .the larger interest· of administration ·of'justice and for enforcement of fund~mental rights guaranteed, the Court, in view of the obligations and duty cast upon it of preserving and protecting fundamental rights, ·may require better and further materials to· enable the. Court to take appropriate action; G and there cannot be anything improper in the proper exercise of Court's jurisdiction under Art. 32 of the .Constitution to try to secure the necessary materials through appropriate ·agency. The Com- . rnission that. the Court may appoint or the investigation that the · court may .direct is essentially for the Court's satisfaction as to the H ·correctness or otherwise of the allegation of violation of fundamental rights tci .enable the Court to decide the coiirse to. be adopted for

~ANDHUA MUKTI M,ORCHA v. UNION (A.N. Sen, J. 173

doing proper justice to the parties i.n the matter of protection of their A fundamental rights', We have to bear in mind that in this Jarid of outs,. there are persons without education, without means and without opportunities and they also are entitled to full protec.tion of their rights or privileges which the Constitution affords. Living .iP. chilled penury without necessary.resources and very often not fully conscious of their .rights guaranted under the ,Constitution, a very large section .B of the people· commonly termed as the weaker section iive iri this land. When this Court is approached on behalf of this cl.ass of people for enforcement of fundamental rights of which they have beeii deprived ·and which they are equally entitied to enjoy, it beco.mes the special

- · responsibility of this Court to see that justice is not denied to them and the disadvantageous position in whiCh they' are placed, do not stand in the way of theii- getting justice ·from this Court .. The power to appoint a commission or an.'investigating body for making en- quiries in terms of directions given by the Court must be considered C

to be implied and inherent in the power that the Court has under Art. 32 for enforcement of the fundame~tal rights guaranteed under. the Constitution. This is .a power which is indeed incidental . or ..D ancillary to the power 'which the Court is called upon to exercise in . a proceeding under Art. 32 of the Constitution. It is entirely in the discretion of the Court, depending_ on the facts and circuinstpnces of any.case, to consider whether any such power regarding invest!gation has to be exercised or not. .. The Commission that the Court appoints or the investigation. that the Court .directs while deali.ng with a pro- E. .ceeding under ·Art. 32 of the Constitution is not a commission .or

- enquiry under the Code of Civil Procedure. Such power must necessarily be held to be implied within the· very wide powers con- ferred on this Court· under Art.. 32 f~r enforcement of fundamental rights. I am, further of the opinion that for proper exercise of its powers under Art. 32 of the Constitution and for due discharge of the obligation and duty. cast upon this Court in the matter ·of • protection and enforcement of fundamental rights which the Con- stitution• guarantees, it must be held that this Ccurt ·has an inherent power to act in such a manner as will enable this Court to discharge its dutles and obligations under Art. 32 of ·the Constitution prorerly and effectively in the larger interest of administraticn of justice, and for proper protection of ccinstitutionai safeguards. I am, there- fore, of the opinion that this objection is. de,void of any .merit.

I may incidentally observe that as.a result of such acticn on the .. part of' the Court aitention of the appropriate authorities concerned· H has in a number of cases. been po,intedly drawn to the existence of

SUPREME COUU REPORTS · ' - [l Q84J 2 S.C.R.

bonded labourers in various parts of the country and to their misea- . rable plight and a iarge number ·of bonded labourers have been freed from their bondage. ··.To my mint!, the litigation. of t~is type parti. cularly in. re)ation to bonded labourers is really not in nature· in adver- · ' sary litigation and it becomes thioduty of the State and also of the . ' appropriate authorities to offer its best co-operation to see thaHhi$ 8 evil practice "'.hich has been declaie,d illegal is ended at the earliest. The existence of.bonded labour in the country is ap unfortunate fact. . Whenever there is any allegation of the existence of bonded labour in ·any particular State, the.State instead.of seeking to come 'out with· a case of denial of such existence o'n the basis of a·feeling that the ,.___ - I existence of bonde~ labour in 'the State may, cast a slur or stigma C. on its' administrative machinery,. should cause effective enquiries to bo mad'e into the matter and if the m~tter is pending in ·this Court, should. co-operate with this Court to-see that death-knell is sounded· on this illegal system which constitutes. a veritable, social menace and stands in the way of healthy development of the nation. ' 'r

D Foneasons aforesaid, I do not find any merit in the preliminary • objections, raised and I agree with my learned brother that the ·pre- liminary objections must be over-ruled. ·

On the merits of the case my learned broth.er ·Bhagwati, · J. h~s in.his judgment carefully and elaborately discussed all the aspects. E ~· . .from Apart .. the principal . grievance made-that the. workmen. in the '

instant case are bonded labourers, various grievances on behalf of the w~rkmen have.been voiced !lnd deni.a·I to the workmen of various -; other just rights has been alleged. The grievance of denial of.other .· just rights to the. workmen and the reliefs claimed for giving the workmen· the benefits to which. they may be entitled 'under various· F legislat.ions enacted· for their welfare are more or Jess in the nature of consequential reliefs incidental to the· main relief of 'freedom from • .bonded.and forced labour to which the workmen are subjected. ·1 must frankly confess th3.t"in the facts .and circumstances of this case I have .some. . doubts ·as to ·- the applicability of the . provisions of Inter . State Migrant Workmen (Regulation of Employment. and Conditions of S~ryice). Act, 1919 . . The vie,vs expressed by my learned brot~er Bhagwati, J. in his judgment, to my mind, do not amount to any adjudication on the question nf appl\cabiliiy of the Inter Siate Migrant Workmen (Regulation of Employment and Conditions of Service) . ·Act, 1979. The 'observati()n.s niade by my lear~ed brother Bhagwati,· J. and the directions ·given by him on. the various aspects witlnegard to . th> m:rits . of th' case· after carefully considering the provisions - of .'

BANDHUA MUKTI MORCHA v. UNION (A.·N. Sen', J.) 175

) all the relevant labour legislations enacted tor the benefit of labourers· and. for improvement .and betterment of their Jot, are for· furthering .. the interests of the .workmen and for proper protection and "preser'Va-. · tion of their just rights and to enable the appropriate authorities to take. necessary action in tha matter. As I am 'in agreement wit.h the vie\Ys expressed bv my learned Brother .Bhagwati, J. I do not propose • . to deal with these aspects at any Jength and l ccntent ·myself ]Jy B ..... expressing my agreement .wiih the judgment of my learned brother Bhagwati, J. on these matters. · ·

,__.,' - S. R. Pttitions allowed and . preliminary grmmds ·rejected. .·C.