CASE ANALYSIS OF

BANDHUA MUKTI MORCHA V. UNION OF INDIA

(AIR 1984 SC 802)

By-

RITURAJ BHOWAL
5TH YEAR, B.A. LL.B.
DEPARTMENT OF LAW, UNIVERSITY OF NORTH BENGAL
Mob- 8101195170
E-mail- riturajbhowal2123@gmail.com

www.probono-india.in
 May 15, 2020

FACTUAL SITATION OF THE CASE

The Petitioner, Bandhua Mukti Morcha, a philanthropic organisation, conducted an

investigation into some of the stone quarries in the Faridabad district near Delhi and found
that a large number of workers from Maharashtra, Madhya Pradesh, Uttar Pradesh and
Rajasthan were undergoing through despicable situation. The petitioner then wrote a letter to
the Honourable Justice P. N. Bhagwati on February 25, 1982.

The letter listed the names of 11 employees working for Rajasthan, 30 for Madhya Pradesh
and 14 for Uttar Pradesh and their statements detailing their vulnerability. Aside from the
issues of incarcerated labour the letter focused on fatal injuries, respiratory illness caused by
accidents and stone dust respectively. Further it talked about contaminated drinking water,
poor sanitation, poor pay and sexual exploitation of women which are enough to make
workers’ lives wretched. The petitioner prayed for the issuance of writ petition for
appropriate implementation of labour welfare legislation, such as, Mines Act, 1952, Inter-
State Migrant Workmen (Regulation of Employment and Conditions of Service) Act 1979,
Contract Labour (Regulation and Abolition) Act 1970, Bonded Labour System (Abolition)
Act 1976, Minimum Wages Act, 1948 etc.

The letter was treated by the Hon'ble Supreme Court as a Writ Petition and a notice was
issued by a court appointing two attorneys, namely, Ashok Srivastava and Ashok Panda as
commissioner to visit the stone quarries mentioned in the said letter and to cooperate with the
staff. The report of the commissioners was submitted on 2 nd March, 1982 and stated the
following:

 many stone crushing machines were operating with the result that the whole
atmosphere was full of dust and it was difficult even to breathe;
 they did not have even pure water to drink but were compelled in most cases to drink
dirty water from a nallah;
 they were living in jhuggies made of piled stones and straw;

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  labourers were not allowed to leave the stone quarries;
 The workers cannot avail compensation for injuries occurred in the course of
employment.

On March 5, 1982 the Court ordered that copies of the Report of Ashok Srivastava and
Ashok Panda should be given to all respondents in written requests so that they have the
opportunity to add their answer to the facts contained in the Report. The Court has also
appointed Dr Patwardhan of the Indian Institute of Technology to conduct a socio-legal
investigation to determine the accuracy of the functions of state so that the State Government
and its officials can take the necessary steps to remedy the situation.

ISSUES FOR CONSIDERTION

After the comprehensive and well documented report of Dr. Patwardhan was submitted
before the court, Apex Court framed following issues:

1. Whether the Writ Petition is maintainable, or not?

2. Whether there was any abrogation of Fundamental Right or not?

3. Whether the Apex Court has the power to appoint a commission or not?

4. Whether the provisions of the Bonded Labour System (Abolition) Act, 1976 can be
attracted in the present matter?

5. Whether the implementation of various social welfare legislations for workers are
disputed or not?

ARGUMENTS RAISED BY PETITIONER

As it is evident from the factual scenario of the case that Hon’ble Court treated the letter of
the petitioner as the Writ Petition under Article 32 of the Constitution. In the said letter the
petitioner organisation while acting pro bono publico addressed the vulnerability of the
workers in stone quarries and reported about non-fulfilment of obligations of the respondent.
However, the petitioner had not argued on the legal issues framed by the court from legal
point of view.

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ARGUMENTS RAISED BY RESPONDENTS

After the reports of were submitted to answerable respondents, i.e., Central Govt., Govt. of
Haryana, mine lessees and owners responded to the issues in the following manner:

Issue 1: That, the present petition is not maintainable as neither the petitioner has locus standi
nor a letter which is not verified can be treated as writ petition within the meaning of Article
32.

Issue 2: Even if this court considers the allegations made in the letter are to be true, then also
petition cannot be maintained before this court as there was no violation of Fundamental
Rights neither of petitioner nor of workers.

Issue 3: Appointing Commission in the present mater is ultra vires the scope and extent of
Order XLVI of the Supreme Court Rules, 1966. Moreover, reports which are submitted says
only about ex parte opinion, which has not been cross examined and hence it does not bear
any evidentiary value with it.

Issue 4: Provision of the Bonded Labour System (Abolition) Act, 1976 cannot be attracted as
the workers are required to proof enough evidence that they have been forced to do their
work and are not allowed to leave the premise of their work at their volition. In the present
case there is nothing which can be considered as conclusive evidence to prove the bondage of
workmen.

Issue 5: The workers do not fall within the definition of Inter-state Migrant Workmen as
defined S. 2(1) (e) of Inter-State Migrant Workmen Act, 1959 as they joined the work at their
free will without any sort of coercion. It was also argued that implementation of all welfare
legislations ensuring basic amenities is not disputed.

POSITIONS IN INDIA, U.S.A. AND U.K.

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Indian Constitution by way of Article 21 and Article 23 provides to all persons right to life &
personal liberty and protection from forced labour. That apart, Parliament has enacted the
Bonded Labour System (Abolition) Act, 1976 to strike the system of bonded labour and also
to rehabilitate the survivors of this menace. Not only this, India has various labour welfare
legislations viz., Workmen Compensation, Maternity Benefit, Mines Act etc. which ensures
the DPSP enshrined in Part IV of Constitution.

Talking about U.S.A., Trafficking Act of 2000 is a bold measure of U.S.A. which gives the
power to Dept. of State to identify, release and rehabilitate force labourers, involuntary
servitude etc. That apart Smoot-Hawley Tariff Act, 1930&Alien Tort Claims Act, 1789
provides additional avenues to combat forced labour outside the U.S.A.

On the other hand, in U.K. S. 71 of the Coroners and Justice Act, 2009 criminalises slavery or
servitude. Furthermore, Modern Slavery Act, 2015 provides extensive provisions for
rehabilitation of victims. That apart, S. 1(4e) of Employment Rights Act, 1996 gives right to
citizens to quit their job at their will, which indirectly restricts forced labour.

INTERNATIONAL INSTRUMENTS RELATING TO FORCED

LABOUR

Concerning the matter of Slavery, Servitude and Bonded Labour numerous international
instruments are in existence at this present time. Article 4 of the UDHR provides that no one
shall be held in slavery or servitude and slave trade is prohibited. Article 8 of the ICCPR
enumerates that no one shall be held in slavery and the slave trade in all its form shall be
prohibited. Article 6 of CEDAW provides that state parties shall take appropriate measures to
all forms of exploitation of women. Article 3 of Convention for the Suppression of the Traffic
in Persons and of Exploitation of the Prostitution of Others also prohibits bonded labour.
That apart Slavery Convention of 1926, ILO Forced Labour Convention 1930 and 1957, also
shows concern to eliminate forced labour.

RATIO OF THE JUDGEMENT

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The Bench led by Justice Bhagwati, observed the legal issues in the following manner:

Issue 1: Hon’ble Court completely negated the argument concerning locus standi of the
respondent. Earlier the view of the court was that only the aggrieved person can approach the
court for remedy. However, by refereeing the S. P. Gupta v. Union of India1it ruled that due
to poverty or any disadvantageous position, any member of the public acting bona fide can
move the Court under Article 32 or Article 226 of the Constitutionfor the masses that are
living a life of destitution, lack of awareness and resources. Further, the Court interpreting
Article 32 ruled that there is no limitation in the words of Article 32 which makes the
mandate of locus standi as sine qua non. Court also clarified that the words ‘appropriate
proceeding’ used in Article 32 must be understood in this way that requirement of
appropriateness must be judged in the light of the purpose for which the proceeding is to be
taken, namely, enforcement of a fundamental right. Thus, it was held that the present petition
is maintainable as the petitioner was acting pro bono publico for securing the fundamental
rights to the needy.

Issue 2: Responding to the Defendant's contention, that there was no infringement of

fundamental rights, the Apex Court said that at the commencement of the present P.I.L.
alleging that some workers were in slavery and under humane conditions, the government is
not expected to raise such objections. Instead, the Government must approve the inquiry
conducted by the Court, to find out if there is any slave labour or other forced labour. The
P.I.L. is not an adversarial litigation by its nature but is a challenge and opportunity for the
Government to ensure Fundamental Rights to the most vulnerable and deplorable sectors of
society.

The court also cited Frances Mullinv. W.C. Khambra2 case where it was held that Article 21
included the right to life and human dignity, without exploitation. Not only Fundamental
Rights but the court also referred Directive Principles of State Policy, in particular Article 39
(e), Article 39 (f), Article 41 and Article 42, which portrays the protection of the health and
strength of workers, men and women, and tender age of children against abuse, opportunities
and areas for children to develop in a healthy way as well as conditions of freedom and
dignity, educational institutions, and work environments with personality and freedom.The
State is, therefore, under a constitutional obligation to see that there is no violation of any
fundamental human right of people.
1
AIR 1982 SC 149
2
AIR 1980 SC 849

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Issue 3: The court has held that respondent’s argument on issue 3 in respect of the
appointment of Commissioners is based on a misconception of proceedings under Section 32
of the Constitution. Article 32 (2) incorporates in its matrix, the power to give any direction,
order or toissue writs which may be relevant to the assertion of the fundamental right in
question and this is made explicit in the concurrent form of the clause.It is not only the high
prerogative writs of mandamus, habeas corpus, prohibition, quo warranto and certiorari
which can be issued by the Supreme Court but also writs in the nature of these high
prerogative writs and therefore even if the conditions for issue of any of these high
prerogative writs are not fulfilled, the Supreme Court would not be restricted in despair and
plead its inability to help the citizen who has come before it for judicial redress.

It is true that, Supreme Court Rules, 1966 states that a Commission may be appointed by the
Supreme Court only for the purpose of examining witnesses, conducting judicial
investigations and checking accounts and the Supreme Court has no power of appointment of
a Commission to conduct investigations. But it would be fallacious to render the issuance of
commission as ultra vires of Court’s power. As, Rule 6 of Order XLVII of the Supreme Court
Rules provides that nothing in those rules shall be deemed to limit or affect the Court's local
authority to make such orders as may be necessary for the purposes of justice. Furthermore,
the report of the commission Provides initial evidence of facts and information collected
which is necessary for the assessment of the factual situation.

Issue 4: The contention of the Respondent that the burden of proof under the Bonded Labour
System (Abolition) Act, 1976 is upon the labourers is misconceived. To insist that the bonded
labourers must first prove that they are providing forced labour in consideration of an
advance or other economic consideration received by them and then only they would be
eligible for the benefits provided under the Act, is nothing but asking them to do a task which
is extremely difficult, if not impossible. Responding to this issue, the Apex Court has said
that whenever question of forced labour is raised before the court, it will prima facie establish
a presumption that the labourers are providing forced labour for an advance economic
consideration.

This assumption may be rebutted by the employer and the State government but unless
satisfactory evidence is produced, the Court must continue with the presumption and must
rule that the comptroller has the right to benefit from the provision of the Act of 1976. It
would be cruel to insist that a bonded labour in order to derive the benefits of this social

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welfare legislation should have to go through a formal process of trial with the normal
procedure for recording of evidence.

Issue 5: The quarrying stone in this case is held to be 'mine' within the meaning of Section 2
(j) of the Mining Act, 1952since they are excavations where operations for the purpose of
searching for of obtaining stone by quarrying are being carried on but they are not ‘open cast
working’ since admittedly excavations in the case of these stone quarries extend below super-
jacent ground. That apart, respondent tried to shield themselves with the aid of Section 3(1)
(b) of the Act of 1952 as the same provides the quarries which are not subject of the present
legislation. Since the operation of these mines expands underground and is not 'open cases'
and, in addition, explosives are permitted for use in mining, the conditions set out in state
3(1) (b) are not met. As a result, except for the provisions of the Mining Act, 1952 are
excluded and all provisions of the said Act apply to stone quarries.

In terms of the application of the Inter-State Migrant Workmen Act, 1959, the Court said that
thekedar or jamadar falls within Section 2(1) (b) of the Act as Contractor and the owners also
satisfies the definition of Section 2(1) (g). But in an establishment if five or more workmen
who fall within the expression of the Inter-State Migrant Workmen as defined in Section 2
sub-section (1) clause (e) then only establishment in which they are employed would be
covered by the Inter-State Migrant Workmen Act. Though Dr, Patwardhan’s report says that
in the stone quarry of Haryana most of the workmen employed in the stone quarries and stone
crushers come from Uttar Pradesh, Madhya Pradesh, Rajasthan, Tamil Nadu and Andhra
Pradesh and there are only a few workmen from Haryana, the Court ruled that an
investigation should be conducted on whether any inter-state stoneworkers were employed by
the employers of the state.

The Haryana government was directed to implement the provisions of the Minimum Wages
Act, 1948, the Workmen Compensation Act 1923, the Employees’ State Insurance Act, 1948,
the Employees’ Provident Funds and Misc. Provisions Act, 1952, and the Maternity Benefit
Act, 1961 so that the Constitutional mandate can be fulfilled.

RULING OF THE COURT AT GLANCE

The Bench ruled the present case in the following manner:

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 1. A letter addressed to the Supreme Court was treated as Writ Petition filed under
Article 32 of the Constitution.
2. There was gross violation of Fundamental Rights of the workers, provided under
Article 21 and 23; and respondents were held liable to protect their rights.
3. Supreme Court Rules, 1966 does not restrict Supreme Court to issue commissions for
investigation in a writ petition.
4. Respondents, in the present case were liable under the Act of 1976 to identify, release
and rehabilitate the workers.
5. Workers are entitled all the benefits under Mines Act, Minimum Wages Act, and
Maternity Benefit Act.

DIRECTIVES ISSUED TO APPROPRIATE AUTHORITIES

Court allowing the present petition, enumerated following guidelines to curb forced labour:

1. The Government of Haryana within six weeks from the date of final Judgment will
appoint Vigilance Committee in each region of the state in accordance with the
requirements of Section 13 of the Act of 1976 and guidelines enshrined in this case.
2. The Government of Haryana will instruct the District Magistrate to carry out the task of
identifying Bonded Labourers as one of the priority activities. Mapping prone areas,
release of bonded workers and holding labour camps will also be the obligation of DM.
3. The State Government should take the assistance of political parties and voluntary
organizations to enforce the implementation of the 1976 Act.
4. The Government of Haryana had to make a three-month deadline from the date of the
ruling on the plan or program for the rehabilitation of freed slaves.
5. The Central Government and state of Haryana will take all necessary steps to ensure that
the minimum wage is paid to those working in the tone quarries and stone crushers.
6. If payment of wages is made by trucks, the Central Government should direct the
appropriate authority to specify the capacity of trucks to contain stones and also to print
or write that rating on the truck for the correct payment.
7. Appropriate officers of the Central Enforcement Machinery should conduct surprise
checks once a week in order to ensure that trucks are not loaded beyond their true
capacity and if they are not found, such measures will have to be taken against owners
or/and thekedars.

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8. The Government of Haryana will ensure that payment of wages is made directly to the
workmen by the owners and periodic checks will be made to confirm this.
9. The Central Board of Workers Education will organize regular camps near the stone
quarries in the Faridabad district for the purpose of educating workers on the rights and
benefits they receive through social and labour laws.
10. The Central Government and Govt. of Haryanawill immediately take steps to ensure that
the stone miners do not continue to pollute the air and get any of the two machines,
namely, Water Spraying Machine and Dust Sucking Machine.
11. The Central Government and the National Government will make sure that the mine
owners start to provide safe drinking water to at least 2 litres of every worker working, in
easily accessible, clean and sanitary conditions.
12. Governments must also ensure that minimum wage is paid to the women and children
responsible for the equipment where drinking water is stored.
13. Mine and stone crusher owners should obtain water from unpolluted wells and transport it
by tankers to the work site, with sufficient frequency so that vessels can be filled with
clean drinking water for supply to workers.
14. The State Government should ensure that lavatory facilities with latrine and urinals are
provided in accordance with Section 20 of the Mines Act 1952 and Rules 33 to 36 of the
Mines Act, 1955.
15. Ensure that adequate and sufficient medical care facilities are provided to the staff as
required by Section 21 of the Mines Act 1952 and Rules 40 to 45-A of the Mines Rules
1955.
16. To ensure that all workers, required to deal with explosives is trained under the Mines
Vocational Training Rules, 1966 and also has a first aid qualification and carries first aid
supplies with him while on duty.
17. Government shall ensure that owners provide appropriate and adequate medical treatment
for workers and their families free of charge.
18. Benefits under the Maternity Benefits Act, 1961 are to be provided.
19. If an employee receives an injury or contracts any disease when he or she is hired, then
the owners will immediately report this fact to the Chief Inspector or officer in charge of
inspection of the Central or State Government, who will then provide legal assistance to
the employees in order to allow him or her to file a claim before the Court or appropriate
authority.

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20. Concerned officers will visit these sites once in every fortnight, and if they find anyone
working injured or suffering from illness, they will provide medical and legal assistance.
21. If the Central Government and State of Haryana fail to enforce any of the obligations set
out in clauses 11, 13, 14 and 15 by the owners within the period specified in those
regulations, Central and State Government shall be responsible to carry out the same
responsibility.
22. The Supreme Court appointed Mr. Laxmi Dhar Misra, Joint Secretary in the Ministry of
Labour, and Government of India as a Commissioner for the purpose of visiting Stone
Quarries and also to investigate about interstate migrant workers. Commissioner had also
been entrusted with to look after whether all the welfare legislations are implemented or
not in those areas.

PRECEDENTS OF HIGH COURTS AND SUPREME COURT

Since a prolonged period of time Hon’ble Supreme Court and various High Courts of States
tried to protect the rights of labourers from slavery, servitude, debt bondage, apartheid and
colonialism. Under this head an attempt has been made to scrutinise all relevant judgments in
order to assess the efforts of judiciary to obliterate this social menace. Bombay high Court in
the case of S. Vaseederam v. S.D. Mittal,3 gave a wide meaning to the term begar. It said,
begar means involuntary work without payment and include those cases in which though the
payment is made but it is grossly inadequate.

In Secretary, State of Karnataka v. Umadevi4 the Court refused to accept the argument that
employment on the basis of daily wages amounts to forced labour under Article 23. It was
held that the employees accept the employment at their own volition and with eyes open as to
the nature of their employment. In the case of People’s Union for Democratic Rights v.
Union of India5 illegal commission was deducted from the wages of workers employed by
contractors for Asiad Projects. The result was that workers were getting less than minimum
wages which was fixed at Rupees 9.25 per day. It was held that it was violation of Article 23
of the Constitution. It was also held that force which make labour forced labourmay arise in
following manner: (a) it may be physical force which compel a person to provide labour or
3
AIR 1962 Bom. 53
4
AIR 2006 SC 1806
5
AIR 1982 SC 1473

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service to another; (b) it may be force exerted through a legal provision such as provision for
imprisonment or fine in case the employee fails to provide labour or service; or (c) it may be
compulsion arising from hunger and poverty, want and destitution.

However, Article 23(2) enables the court to impose compulsory service for public purpose.
The scope of the expression public purpose is very wide and it includes all that is calculated
to promote welfare of the people as visualised in the Directive Principles of State Policy. 6In
Achara Singh v.State of Bihar,7the Court justified the orders made under Rule 125 of Defence
of India Rules for the compulsory levy or food grains on the cultivators and payment of 10
paise per quintal per mile as transportation charges to carry the Food Grains to the nearest
government godown. The transportation charge was held to be valid and notviolative of
Article 23 of the Constitution. However, In State v. Jarawar8 the Court invalidated the
Chambo Force Paid Labour Act for the reason that imposition of compulsory service in
normal time by the tahsildar or any other government officials to carry a load of government
property is not a public purpose. Equitable remuneration should be paid to the prisoners for
the work done by them and in order to determine the quantum of equitable remuneration
payable to prisoners the State concerned shall constitute wage fixation body for making
recommendation for the purpose.9

OVERVIEW OF THE JUDGMENT

The Hon’ble Court in the present matter rightly placed directions before appropriate authority
to curb the social dilemma of bonded labour. But, through these 21 directives, the Court fails
to ensure proper rehabilitation, both social and economically, of the inter-state labourers.
Although court asked from Govt. of Haryana a plan for rehabilitation of workers but that was
not suffice to rehabilitate them in toto. It was reported that total umber of 135 bonded
labourers were released from the quarries in execution of Apex Court’s order in the resent
case but they were not rehabilitated. Their sad apathy after their release from the bondage
was brought to the attention of the Supreme Court by Ms. Neerja Chowdhury. The court
further ruled that, identification and release is not enough, rehabilitation is also a sine qua non

6
State of Bihar v Kameshwar Singh AIR 1952 SC 290
7
AIR 1967 Pat. 114
8
AIR 1955 H.P. 18
9
State of GujaratvHon'ble High Court AIR 1998 SC 3164

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to ensure the fundamental rights of labourers enshrined under Article 21 and 23. 10 In 1997,
the Court again asked the National Human Rights Commission (NHRC) to take over the
monitoring of the implementation of the directives of this court relating to bonded labour.
Further directions were issued in 2004 on the issue of rehabilitation. The court also
acknowledged the role played by on-governmental organisations and suggested that their
services should be utilized for rehabilitating bonded labourers.11 Thus, at the end it can be
said efforts made in Bandhua Mukti Morcha were no doubt splendid but paucity relating to
the rehabilitation of workers were plenished by Neerja Chowdhury and several other
attempts.

References:

 Jain M.P., Indian Constitutional Law (7th edn, Lexis Nexis 2014)
 Shukla V.N. (ed), Constitution of India (12th edn, Eastern Book Company 2016)
 Kumar N., Constitutional Law of India (9th edn, Allahabad Law Agency 2015)
 Chandra U., Human Rights (8th edn, Allahabad Law Agency 2018)
 Jawsal P.S. &Jaswal N., Human Rights and the Law (1st edn, APH Publishing
Corporation 1996)
 Mantri G., ‘It’s 2020 but bonded labour is still a reality in India: Here’s why’ (the
news minute, 28 January 2020) <https://www.thenewsminute.com/article/it-s-2020-
bonded-labour-still-reality-india-here-s-why-116977> accessed 27 April 2020
 International Covenant on Civil and Political Rights (adopted 16 December 1966,
entered into fore 23 March 1976) 999 UNTS 171 (ICCPR)
 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217
A(III) (UDHR)
 Bandhua Mukti Morcha v Union of India AIR 1984 SC 802
 S. P. Gupta v Union of India AIR 1982 SC 149
 Frances Mullin v W.C. Khambra AIR 1980 SC 849
 S. Vaseederam v S.D. Mittal AIR 1962 Bom. 53
 State of Gujarat v Hon'ble High Court AIR 1998 SC 3164
 Secretary, State of Karnataka v Umadevi AIR 2006 SC 1806

10
Neerja Chowdhury v State of Madhya Pradesh AIR 1984 SC 1099
11
P.U.C.L. v State of Tamil Nadu (2004) 12 SCC 381

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  People’s Union for Democratic Rights v Union of India AIR 1982 SC 1473
 Achara Singh v State of Bihar AIR 1967 Pat. 114
 State v JarawarAIR 1955 H.P. 18

 Neerja Chowdhury v State of Madhya Pradesh AIR 1984 SC 1099

 P.U.C.L. vState of Tamil Nadu (2004) 12 SCC 381

 State of BiharvKameshwar Singh AIR 1952 SC 290

ABOUT THE AUTHOR

Rituraj Bhowal is a fifth-year student of Department of Law, University of North Bengal. He

has utmost interest in Constitutional law, Feminine Jurisprudence and Private International
Law. He has actively joined hands with District Legal Services Authority and American
Consulate, Kolkata to facilitate the functions of Lok Adalat and to curb Trafficking-in-
Persons, respectively. Being a member of Moot Court Society, Seminar Organising
Committee and Anti-Human Trafficking Club of Department of Law, he has lent a hand for
organising Moot Court Competitions, National Conclaves and Workshops as well. Besides he
took part in various National Moot Court Competitions, National Trial Advocacy
Competitions, National Seminars also published various papers in journals.

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