BEFORE THE HONOURABLE SUPREME COURT OF INDIA

NEW DELHI, INDIA

WRIT PETITION NO. _____/2018

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

PUBLIC INTEREST LITIGATION

Save the Children

(PETITIONER)

v.

State & Ors.

(RESPONDENTS)
_________________________________________________________

MEMORIAL ON BEHALF OF PETITIONERS

SUBMITTED BY:-

DHARMVEER LALI
ROLL NO.15/15
LLB 6th Semester.
 TABLE OF CONTENTS

A LIST OF ABBREVIATIONS

B INDEX OF AUTHORITIES

B-1 LIST OF STATUTES/RULES

B-2 LIST OF CASES REFERRED

B-3 LIST OF BOOKS REFERRED

C STATEMENT OF JURISDICTION

D STATEMENT OF FACTS

E ISSUE RAISED

F SUMMARY OF PLEADINGS

G PLEADINGS ADVANCED

H PRAYER FOR RELIEF

 --MEMORIAL FOR PETITIONERS--

A. LIST OF ABBREVIATIONS

Sr. ABBREVIATION EXPANSION

No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
 B. INDEX OF AUTHORITIES

B1. LIST OF STATUTES/RULES

1. Constitution of India, 1950

2. Minimum Wages Act, 1948
3. Equal Remuneration Act, 1976
4. Child Labour (Prohibition & Regulation) Act, 1986 as amended by
Child Labour (Prohibition & Regulation) Amendment Act, 2016
5. Building and other Construction Workers (Regulation of
Employment and Conditions of Services) Act, 1996.
6. Contract Labour (Regulation and Abolition) Act, 1970.
7. Interstate Migrant Workmen (Regulations of Employment and
Conditions of Service) Act 1979

B2. LIST OF CASES REFERRED

Sr. Case Title Citation ¶

No.
1
2
3
4
5
6
7
8
9
10
11
12
13

B3. LIST OF BOOKS REFERRED

Sr. Name of the Book

No.
1
2
 C. STATEMENT OF JURISDICTION

The Petitioner humbly submits to the jurisdiction of this Hon’ble Supreme

Court of India under Article 32 of the Constitution. The Petitioner has
approached this Hon’ble Court as the Panchayati Raj (Amendment) Act,
2018 passed by the state Government has violated his fundamental
rights ensured by the Constitution of India. The Petitioner maintains that
the jurisdiction of Article 32 of the Constitution, which protects the
citizens of India from any violation of their fundamental rights, is
applicable in the present case.
Article 32 of the Constitution of India is reproduced as under:-
“Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for
the enforcement of the rights conferred by this 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, quo warranto and certiorari, whichever may be appropriate,
for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by
clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to
exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as
otherwise provided for by this Constitution”

The present writ petition has been filed in the shape of Public Interest
Litigation. PIL means a legal action initiated in a Court of law for the
enforcement of public interest or general interest in which the public or
class of the community have pecuniary interest or some interest by
which their legal rights or liabilities area affected. PIL can be filed any
person acting bona fide and who has enough interest in instituting an
action for redressal of public injury or public wrong doing.
 D. STATEMENT OF FACTS

HENCE, THE PRESENT MATTER IS BEFORE THIS APEX COURT

 E. ISSUES FRAMED

I. Whether the petitioner has locus standi to maintain the writ

petition or not?
II. Whether there is any violation of Fundamental Rights as well as
Labour Laws or not?
III. Whether the Government can be made liable to enforce the
Rights of the laborers working in the construction site or not?
 F. SUMMARY OF PLEADINGS

A. The petitioner has locus standi to maintain the writ petition or

not:-
i. New dimension has been given to the traditional rule that only the
workmen whose legal rights are violated would be entitled to
approach the Court for judicial redress. Anyone can move to the
Court for the redressal of the rights of workmen if they are not in
position to enforce them.
ii. The construction workers working at the construction site are
vulnerable and not aware about their rights.
iii. It is not only the moneyed who have the golden key to unlock the
doors of justice.
iv. The petitioner has no personal interest in the present writ petition
and there is no mala fide intention.

B. There is clear violation of Fundamental Rights as well as

Labour Laws at the construction site:-
i. The minimum wages are not being paid to the workers, which is
against the Article 21 & 23 of the Indian Constitution, 1950 and
against Minimum Wages Act.
ii. The non compliance of the provisions of the Interstate Migrant
Workmen (Regulations of Employment and Conditions of Service)
Act 1979 is violation of Article 21.
iii. The women workers are being paid less than their male
counterparts, which is violation of the Article 14 and Equal
Remuneration Act.
iv. Overtime is not paid to the workmen and there is no weekly off to
the workmen as required under the Minimum Wages Act.
v. There are no safety equipments or hygienically maintained rooms
for their stay which is against Article 21 and Building and other
Construction Workers (Regulation of Employment and Conditions
of Services) Act, 1996
vi. Children below the age of 14 years who are working at the
construction site, which is clear violation of the Article 24 of the
Indian Constitution and Child Labour (Prohibition & Regulation)
Act, 1986 as amended by Child Labour (Prohibition & Regulation)
Amendment Act, 2016

C. Government is liable to ensure the enforcement of the Rights

of the laborers working in the construction site:-

i. Government cannot run from its liability for observance of the

various labour laws as it is the Government who has entrusted
the work of construction to the contractor.
ii. As there is clear violation of the Fundamental Rights of the
construction workers, it is the duty of the Government to take
necessary steps to ensure that their rights are protected.
 PLEADINGS ADVANCED

A. The petitioner has locus standi to maintain the writ petition:-

1. Article 14 of the Indian constitution provides “The state shall not

deny to any person equality before the law or the equal protection
of laws within the territory of India”.

2. It embodies the Rule of Law in India which means that law is

equal for everyone and no one is above the law.

3. The Rule of Law doesn’t mean that the protection of the law must
be available only to a fortunate few. The poor too have Civil &
Political Rights and the Rule of Law is meant for them also.

4. In the case of PUCL v. Union of India & Ors. the apex Court has
held that “courts are not meant only for the rich and the well-to-do,
for the landlord and the gentry, for the business magnate and the
industrial tycoon, but they exist also for the poor and the down-
trodden the have-nots and the handicapped and the half-hungry
millions of our countrymen. So far the courts have been used only
for the purpose of vindicating the rights of the wealthy and the
affluent. It is only these privileged classes which have been able to
approach the courts for protecting their vested interests. It is only
the moneyed who have so far had the golden key to unlock the
doors of justice. But, now for the first time the portals of the court
are being thrown open to the poor and the downtrodden, the
ignorant and the illiterate, and their cases are coming before the
courts through public interest litigation.”
5. No doubt, it is the construction workers whose rights have been
violated. But they have no source to approach the Court for
enforcement of their rights.

6. It is undisputed fact that the construction workers at the site are

living in a sub human existence in the conditions of object poverty
which has broken their back. The considerable poverty, illiteracy
and ignorance are obstructing their way to access the judicial
process for enforcing their rights.

7. Children working there are minor and their voices are going
unheard. It becomes very difficult for these children to go to court
and fight for their rights. Thus in that case PIL seems to be an
effective weapon to fight for their rights and justice. (David
Feldman, “Public interest litigation and Constitutional theory in
Comparative Perspective.” The Modern Law Review 55 (1), 44
(1992).)

8. If strict rules are implemented in such a case, it would result in

closing the doors of justice to the poor and deprived sections of
community. Under the liberalized rule, the petitioner has locus
standi to maintain the present petition espousing the cause of the
workmen.

9. W. Paul Gormseley at the Silver Jubilee Celebrations of the

Universal Declaration of Human Rights at the Banaras Hindu
University observed that "Since India is one of those countries
which has given a pride of place to the basic human rights and
 freedoms in its Constitution in its chapter on Fundamental Rights
and on the Directive Principles of State Policy and has already
completed twenty-five years of independence, the question may be
raised whether or not the Fundamental Rights enshrined in our
Constitution have any meaning to the millions of our people to
whom food, drinking water, timely medical facilities and relief from
disease and disaster, education and job opportunities still remain
unavoidable. We, in India, should on this occasion study the
Human Rights declared and defined by the United Nations and
compare them with the rights available in practice and secured by
the law of our country."

10. By way of this PIL, the petitioner seeks to bring justice to

these construction workers whose fundamental rights are being
violated by the contractors. There is no mala fide intention on the
part of the petitioner since the petitioner is an organization
dedicated to the protection of Fundamental Rights. There can be
no doubt that it is out of a sense of public service that the present
PIL has been brought by the petitioners and it is clearly
maintainable.

D. There is clear violation of Fundamental Rights as well as

Labour Laws at the construction site:-

11. There is violation of the Fundamental Rights ensured under

Article 14, 21, 23, 24 of the Indian Constitution as well as violation
of the various labour laws such as Minimum Wages Act, 1948,
Equal Remuneration Act, 1976, Child Labour (Prohibition &
 Regulation) Act, 1986 as amended by Child Labour (Prohibition &
Regulation) Amendment Act, 2016, Building and other
Construction Workers (Regulation of Employment and Conditions
of Services) Act, 1996, Contract Labour (Regulation and Abolition)
Act, 1970 and Interstate Migrant Workmen (Regulations of
Employment and Conditions of Service) Act 1979.

12. Section _____ of the Minimum Wages Act, 1948 provides

that ________________________

13. The concept of the minimum wages as provided under the

Minimum Wages Act is based on the Fundamental Rights ensured
under Article 21 and 23 of the Indian Constitution.

14. Article 21 of the Indian Constitution provides that “no person

shall be deprived of his life or personal liberty except according to
procedure established by law”.

15. Right to live with human dignity, free from exploitation

enshrined in Article 21 derives its life breath from the Directive
Principles of State Policy.

16. Article 39 (e) of the Constitution provides that the State shall
secure that the health and strength of workers, men and women,
and the tender age of children are not abused and that citizens are
not forced by economic necessity to enter avocations unsuited to
their age or strength.
17. In the case of Maneka Gandhi v. UOI it was held that these
Fundamental Rights (here referred to as Article 21) represent the
basic values cherished by the people of this country since the
Vedic times and they are calculated to protect the dignity of the
individual and create conditions in which every human being can
develop his personality to the fullest extent. They weave a "pattern
of guarantees on the basic-structure of human rights" and impose
negative obligations on the State not to encroach on individual
liberty in its various dimensions. page no.23

18. In the case of Francis Coralie Mullin v. The Administrator, UT

of Delhi & Ors, it was held that the fundamental right to life which is
the most precious human right and which forms the ark of all other
rights must therefore be interpreted in a broad and expansive spirit
so as to invest it with significance and vitality which may endure for
years to come and enhance the dignity of the individual and the
worth of the human person. Now obviously, any form of torture or
cruel, inhuman or degrading treatment would be offensive to
human dignity and constitute an inroad into this right to live and it
would, on this view, be prohibited by Article 21 unless it is in
accordance with procedure prescribed by law, but no law which
authorizes and no procedure which leads to such torture or cruel,
inhuman or degrading treatment can ever stand the test of
reasonableness and non-arbitrariness

19. In the case of Addi- tional District Magistrate, Jabalpur v. S .

S. Shukla and others, Kania CJ (as he then was) said
("Deprivation (total loss) of personal liberty, inter alia includes the
right to eat or sleep when one likes or to work or not to work as
 and when one-pleases and several such rights sought to be
protected by the expression 'personal liberty' in article 21

20. In the case of Delhi Council for Child Welfare v. Sheela Devi
and Another, it was held that the provisions of the Minimum Wages
Act, 1948 are applicable to persons who work in mines or on
construction sites, contract labour, and persons working in
agriculture operations, on daily wages.

21. As the workers are not being paid minimum wages it is clear
violation of Article 21 as enumerated supra. They are also
compelled to work on all days which is also against the principles
of Minimum Wages Act.

22. Section 13 of the Minimum Wages Act provides that

maximum working hours must be fixed and over time is required to
be paid. However, the workers are compelled to work more than
the fixed time. It is imperative to mention here that no over time is
paid to the workers for the extra work extracted from them.

23. Without handsome wages it quite impossible to live with

basic human dignity. Unfortunately, the contractor is exploiting
them in so many ways as they are highly vulnerable. Moreover,
their health; physical and mental wellbeing is being disturbed.

24. Similarly, Article 23 of the Constitution prohibits traffic in

human beings, begar and other similar forms of forced labour and
exploitation.
25. In the case of S. Vasudevan v. S.D.Mittal it was held that the
word begar is clearly a film of forced labour. It means forced labour
under which a person is compelled to work without receiving any
remuneration.

26. Article 23 doesn’t only prohibit begar, but it also prohibits any
other similar forms of forced labour. In the case of Menaka Gandhi
v. Union of India it was held that when interpreting the provisions
of the Constitution conferring Fundamental Rights, the attempt of
the Court should be to expand the reach and ambit of the
Fundamental Rights rather than to attenuate their scope. As such
scope of the term "any other similar forms of forced labour" is very
vast.

27. It is clear from the investigation report that the workers

working at the construction site are not being paid minimum
wages. Where a person provides labour or services to another for
remuneration which is less than the minimum wage, the labour or
service provided by him clearly falls under the definition of forced
labour. There can be hardly a case, where a person, who knows
that that under the law he is entitled for higher wages, than he is
getting, will voluntarily work on lesser pay. Maybe there is
compulsion of hunger or poverty or the like and thus, it will amount
to forced labour. Such a person would be entitled to come to Court
with a request to direct payment at minimum wages.

28. In Bandhua Mukti Morcha V. Union of India, the Supreme

Court has held that"... whenever it is shown that the laborer is
made to provide forced labour, the Court would raise a
 presumption that he is required to do so in consideration of an
advance or other economic consideration received by him and he
is, therefore, a bonded labour ... unless and until satisfactory
material is provided for rebutting this presumption, the Court must
proceed on the basis that the labor is a bonded laborer"

29. Further, there are children below 14 years of age are working
at the construction site which is against the Article 24 of the Indian
Constitution and Section 3 of the Child Labour (Prohibition &
Regulation) Act, 1986 as amended by Child Labour (Prohibition &
Regulation) Amendment Act, 2016

30. Section 3 of the Child Labour (Prohibition & Regulation) Act,

1986 as amended by Child Labour (Prohibition & Regulation)
Amendment Act, 2016 provides that no child (child below 14 years)
shall be employed or permitted to work in any occupation or
process.
31. Article 24 expressly provides that no child below the age of
14 years shall be employed to work in any factory or mine or
engaged in any hazardous employment.

32. Article 15(3) of the Constitution has provided the State with
the power to make special provisions for women and children

33. Article 21-A of the Constitution mandates that every child in

India shall be entitled to free and compulsory education up to the
age of 14 years. However, child labour is a stumbling block of road
to education.
34. Article 39 (f) of the Indian Constitution provides that that
children must be given opportunities and facilities to develop in a
healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation and against
moral and material abandonment.

35. Article 45 of the DPSP's is supplementary to Article 24 on the

ground that when the child is not to be employed before the age of
14 years, he is to be kept occupied in some educational
institutions. Virtually, Article 45 recognizes the importance of
dignity and personality of the child and directs the State to provide
free and compulsory education for the children upto the age of 14
years.

36. Children are the future assets of the nation. They must be
allowed to enjoy their fundamental freedoms in the childhood days,
since childhood comes only once in their lifetime. Unfortunately,
the contractor is exploiting them in so many ways as they are
highly vulnerable and their growth, health; physical and mental
wellbeing is being disturbed. They are deprived of their childhood
rights like education, health, nutrition, privacy and personality
development. Moreover, in such circumstances children may be
subjected to sexual abuse.

37. It is relevant to mention here that the women workers are

being paid lesser pay than their male counterparts. It is clear
violation of the Article 14 of the Indian Constitution which provides
Right to Equality and against the Equal Remuneration Act, 1976.
38. The Equal Remuneration Act, 1976; is designed for
prevention of discrimination based on gender in matters of
employment, applicable to women workers. Under the Act, the
employer is obliged to pay equal remuneration to men and women
workers for same work or work of a similar nature. By same work
or work of a similar nature is meant work in respect of which the
skill, effort, and responsibility required are the same, when
performed under similar working conditions.

39. According to Section 4 (1) of the Equal Remuneration Act,

1976 provides that No employer shall pay to any worker, employed
by him in an establishment or employment, remuneration, whether
payable in cash or in kind, at rates less favorable than those at
which remuneration is paid by him to the workers of the opposite
sex in such establishment or employment for performing the same
work or work of a similar nature.

40. In Mackinnon Mackenzie & Co. Ltd vs Audrey D'Costa & Anr
it was held that the applicability of this Act does not depend upon
financial ability of the employer to pay equal remuneration. AIR
1987 SC 1281(1289)

41. Article 39 (d) of the DPSP's provides that the State shall
ensure that that there is equal pay for equal work for both men and
women. However, the same is not being paid, though; they are
discharging similar duties carrying equal physical effort and
responsibility.
42. The non compliance of the provisions of the Interstate
Migrant Workmen (Regulations of Employment and Conditions of
Service) Act 1979 is violation of Article 21. It is applicable to any
establishment who hires more than five-inter State migrant
workers. The act provides for equality on the basis of payment of
wages, wage rates, holidays, hours of work, and other conditions
of service (non-discriminatory towards inter-state migrants
workers). Wages paid to the inter-state workmen should comply
with the minimum wages legislation. This act also provides for
displacement allowance and journey allowance. Overall, the
contractor has the primary responsibility for: registering the worker,
issuance of passbooks, regular payment of wages, equal
remuneration to men and women, ensure suitable condition for
work, provide suitable residential arrangement, provide medical
facility, provide clothing, in case of serious injury to the worker
inform the next to kin and the state authorities.

43. There is also violation of the Building and other Construction

Workers (Regulation of Employment and Conditions of Services)
Act, 1996 which provides Act provides for fixing hours for normal
working day inclusive of one or more specified intervals; provides
for a day to rest in every period of seven days and payment of
work on a day of rest at the overtime rate, wages at the rate twice
the ordinary rate of wages for overtime work. Section 28, 29 It
also provides for adequate drinking water, latrines and urinals and
accommodation for workers, crèches, first-aid, and canteens at the
work site. Section 32, 33, 34, 35, 37
44. However, there are no safety equipments or hygienically
maintained rooms for their stay which is against Article 21 and
Building and other Construction Workers (Regulation of
Employment and Conditions of Services) Act, 1996

C. Government is liable to ensure the enforcement of the Rights

of the laborers working in the construction site:-

45. Dr. B.R. Ambedkar at the birth of the Indian Constitution said
that by independence we have lost the excuse of blaming the
British for anything going wrong. If hereafter things go wrong, we
will have nobody to blame except ourselves. It implies to put forth
to put forth the goal of building a new India on the lines of the
ideals and goals embodied in the Constitution - created by her own
people and representing the masses; adopted to secure the ideals
of social justice, equality, and equity. Quoted from Granville Austin, The Indian

Constitution: Cornerstone of a Nation (New Delhi: Oxford University Press, 1999) at 308

46. The Constitution of India casts a duty on the State to ensure

the enforcement of the Fundamental Rights which are guaranteed
under Constitution for the achievement of the goals as enumerated
supra.
47. In case they are not protected by the State then there are
Article 32 (which has been described as the soul of the
constitution) and 226 for their enforcement by judiciary.

48. It is undisputed that the work for the construction was initially
given by the State Government. As such the Government cannot
run from its liability for observance of the various labour laws as it
 is the Government who has entrusted the work of construction to
the contractor.

49. It is also evident that here is clear violation of the

Fundamental Rights of the construction workers guaranteed under
Article 14, 21, 23 & 24; it is the duty of the Government to take
necessary steps to ensure that their rights are protected.

50. Not only it is the duty of the State Government to ensure the
protection of Fundamental Rights of the people but also it is their
moral and constitutional obligation. However, the State
Government is not taking necessary steps to ensure the same at
the construction site.

51. In a larger perspective, if we see, then it is a case of mass

violation of human rights. Moreover, the conditions in which these
children were working were also very perilous to their health and
overall well-being.

52. At least, the State Government must provide protection of

the health and strength of workers, men and women and the
children of tender age against abuse.

53. Article 24 as guaranteed by the Constitution of our Country is

of a higher concern. It was inserted with a view to ensure that the
children must not be exploited. However, it is also clear from the
facts of the case that they are being exploited and their
participation in the construction work is against the provisions of
the Child Labour (Prohibition & Regulation) Act, 1986 as amended
 by Child Labour (Prohibition & Regulation) Amendment Act, 2016
and Article 24. As such State Government is duty bound to ensure
that the children must get their due rights guaranteed under the
Constitution. The State Government cannot fold its hands in
despair and become silent spectator of the breach of a
constitutional prohibition being committed by its own contractors.

54. It is the constitutional obligation of the State to take

necessary steps for the purpose of interdicting such violation and
ensuring observance of the fundamental right by the private
individual who is transgressing the same. The fact that the person
whose fundamental right is-violated can always approach the court
for the purpose of enforcement of his fundamental right cannot
absolve the State from its constitutional obligation to see that there
is no violation of the fundamental right of such person, particularly
when he/she belongs to the weaker section of humanity and is
unable to wage a legal battle against a strong and powerful
opponent who is exploiting him.

55. Sections 17 and 18 of the Inter-state Migrant Workmen

(Regulation of Employment and Conditions of Service) Act 1979
also make principal employer liable to make payment of the wages
to the wages to the migrant workmen employed by the contractor
as also to pay the allowances provided under sections 14 and 15
and to provide the facilities specified in section 16 of such migrant
workmen.

56. So far as Contract Labour (Regulation and Abolition) Act

1970 is concerned, it is clear that under section 20, if any amenity
required to be provided under sections 16, 17, 18 or 19 for the
benefit of the workmen employed in an establishment is not
provided by the contractor, the obligation to provide such amenity
rests on the principal employer and therefore if in the construction
work, the contractors do not carry out the obligations imposed
upon them by any of these sections, the State Government as
principal employers would be liable and these obligations would be
enforceable against them.
 H. PRAYER FOR RELIEF

For the foregoing reasons, the petitioner respectfully prays

with folded hands to this Hon’ble Court to issue writ of Mandamus or any
appropriate writ direction to the State Government to take necessary
step to stop the violation of the Fundamental Rights as well as Rights
guaranteed under labour laws of the workmen at the construction site. It
is further prayed that ombudsman(s) may kindly be appointed to make
periodical visits to meet the workmen to see as to whether they are
being getting their wages and other benefits without any delay or not. It
is also prayed that a writ of mandamus or other appropriate writ, order
and direction may kindly be issued by laying down guidelines, devising
strategy to the State Government to protect the interest of the workmen
in the future contracts.
The Hon’ble Court may pass any other order that it deems fit
in the interest of justice, equity and good conscience.
All of which is respectfully submitted.

Date: Dharmveer Lali

Place: New Delhi (Counsel for the PETITIONER)