LAW & POVERTY

IV SEMESTER

STUDY MATERIAL

2022

Compiled By
Dr. N.Bhagyalakshmi,
Faculty of Law,
DSNLU, Visakhapatnam,
Mobile: 9849528129.

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAM

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 INDEX
Page.
# Description
No
1 Introduction about Subject 1
2 Course Outline 3
3 Introduction about Course 8
4 Cases for Reference 10
Kishen Pattanayak and Another v. State of Odisha
5 12
1989 AIR 677
Standard Vacuum Refining Company of India, Ltd. v. Its workmen
6 18
(1961) 1 LLJ 227
Minerva Mills Ltd. & Ors vs Union of India & Ors
7 20
1980 AIR 1789
Francis Coralie Mullin v. Administrator, Union Territory of Delhi,
8 21
AIR 1981 SC 746
OLGA TELLIS AND ORS. v. BOMBAY MUNICIPAL
9 CORPORATION AND ORS. 22
(1985) 3 SCC 545.
GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA
10 AND OTHERS v. GROOTBOOM (GROOTBOOM) 24
2001 (1) SA 46 (CC), 2000 (11) BCLR 1169 (CC)
People’s Union for Civil Liberties v. Union of India & Others
11 (PUCL) 27
Citation: 2001 (2) SCC 688
DELHI DEVELOPMENT HORTICULTURE EMPLOYEES'
12 UNION V. DELHI ADMINISTRATION, DELHI AND ORS. 30
AIR 1992 SC 789
Express Newspapers Private Limited & Another v. Union of India
13 & Others 37
AIR 1958 SC 578
14 Chameli Singh v. State of U.P. 45
AIR 1996 SC 1051
15 STATE OF ANDHRA PRADESH AND ORS. v. P. SAGAR 47
AIR 1968 SC 1379

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16 In Re: Ambalathil Assainar 52
AIR 1956 MAD 97
BHAGWANDASS&ANR. v. PUNJAB STATE ELECTRICITY
17 BOARD 53
AIR 2008 SC 990
18 PRAJWALA v. UNION OF INDIA 59
(2005) 12 SCC 136
19 Kurra Subba Rao v. Distt. Collector 61
[ 1984 (3) APLJ 249]
UNION CARBIDE CORPORATION VS UNION OF INDIA
20 (UOI) AND ORS 64
(1989) 3 SCC 38
SOOBRAMONEY V. MINISTER OF HEALTH, KWAZULU-
21 75
NATAL 1998 (1) SA 765 (CC), 1997 (12) BCLR 1696 (CC)
JAVED ABIDI V. UNION OF INDIA AND OTHERS.
22 77
1999 (1) SCC 467
RAKESH CHANDRA NARAYAN V. STATE OF BIHAR AND
23 OTHERS 79
1989 AIR 348

24 S.P. GUPTA V. UNION OF INDIA AND OTHERS 81

AIR 1982 SC 149
SURENDRA KUMAR SHARMA V VIKAS ADHIKARI AND ANR.
25 87
(2003) 5 SCC 12
IN RE: SREERANGAYEE v UNKNOWN
26 91
(1973) 1 MLJ 231
NATIONAL CAMPAIGN COMMTT., C.L. LABOUR v. UNION OF
27 INDIA AND ORS. 92
2009(3)SCC269
GAURAV KUMAR BANSAL v. UNION OF INDIA AND ORS
28 94
(2017)6 SCC 730
K.C. VASANTH KUMAR AND ANR. VS. STATE OF
29 KARNATAKA 97
AIR 1985 SC 1495
M. R. BALJI AND ORS. v. STATE OF MYSORE
30 98
[1963] 1 S.C.R. 439
JANKI PRASED PARIMOO AND ORS. ETC. ETC. v. STATE
31 OF JAMMU & KASHMIR AND ORS. 102
[1973]3SCR236

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 BACHPAN BACHAO ANDOLAN VS UNION OF INDIA & ORS
32 103
(2011) 5 SCC 1
NANDINI SUNDAR & ORS. v. STATE OF
33 CHATTISGARH 105
AIR 2011 SC 2839
VIKRAM VIR VOHRA v. SHALINI BHALLA
34 109
(2010)4 SCC 179
35 INTRODUCTION ABOUT POVERTY 115
36 DEFINITION AND KINDS OF POVERTY 116
37 DIMENSIONS OF POVERTY 119
38 INTELLECTUAL POVERTY 122
39 MENTAL DISABILITY 122
40 WHO 125
41 CHILD & HOME 127
42 POOR & BAIL 129
Moti Ram &Ors vs State Of M.P on 24 August, 1978
43 137
1978 AIR 1594, 1979 SCR (1) 335
44 DOWRIES TRAP POOR PEOPLE IN DEBT 155
45 POVERTY ALLEVIATION PROGRAMMES 165
46 ANTI POVERTY MEASURES 166
47 CONCLUSION 181

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.
INTRODUCTION ABOUT SUBJECT

Overcoming poverty is not a gesture of charity. It is an act of justice. It is the protection

of a fundamental human right, the right to dignity and a decent life. While poverty
persists, there is no true freedom----Nelson Mandela,

Satisfaction of human needs is widely accepted as a characteristic of any just society. However,
in view of the stages of development and ideological preferences there may be marked difference
between one society and another on the issue of perception of human needs, priorities of human
needs and the techniques deployed for securing them. Though human needs issues have been
traditionally explored by disciplines like Economics, Political Science, Anthropology and
Psychology but in recent times human need have started receiving the attention of legal scholars,
who have made human needs their starting points for more meaningful enquiries in the fields of
human rights, social justice, individual liberty, equality, etc. In this context the food need has
acquired a distinct status in some of the recent researches and studies in the field of International
Law and Jurisprudence.
Justice is an idea that affirms social equality against any kind of discrimination or abuse out of
social class or any other reason. It is a concept involving fair, moral and impartial treatment of
all people who faces injustice in some or the other way. Identification of Human Needs urge or
drive may be understood as a physiological or social requirement of the body or the mind which
is considered essential for the maintenance of human life. In respect of physiological or
homeostatic needs the biological sciences are more unanimous in producing scientific
information regarding the essential needs relating to general hunger and specific food appetites,
thirst, respiration, constant internal temperature and sleep, rest after fatigue and work after rest,
etc. Though the social categorization of the 'needy' on the basis of caste, landlessness, working
class, gender and juvenile status may prove a useful criteria for fulfilling basic needs of
particular type such as the need to remove social stigma and access to social resources in case of
Scheduled Caste or women, etc., but the criterion of poverty line provides a generally acceptable
basis. It can be assumed safely that the below poverty line population would also suffer for want
of multifarious needs.
Problem of Poverty:

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Poverty is an age-old social malaise and global problem. The problems of how to define and
measure poverty cannot proceed until we clarify the conception of poverty we wish to employ.
Three broad concepts of poverty can be identified. According to Martin Rein, poverty may be
regarded as subsistence, inequality or externality. Subsistence is concerned with the minimum of
provision needed to maintain health and working capacity. Its terms of reference are the capacity
to survive and to maintain physical efficiency. Inequality is concerned with the relative position
of income groups to each other. Poverty cannot be understood by isolating the poor and treating
them as a special group. Society is seen as a series of stratified income layer and poverty is
concerned with how the bottom layers fare relative to the rest of society. Hence, the concept of
poverty must be seen in the context of society as a whole. Poverty consists of social problems
correlated with low income.
Prof. Upendra Baxi preferred to substitute the word ‘poverty’ with ‘impoverishment’ and the
word ‘poor’ with the word ‘impoverished’ because people are not naturally poor but are made
poor, that impoverishment is a dynamic process of public decision-making in which it is
considered just, right and fair that some people may become or stay impoverished. Prof. Baxi
says, “Impoverishment of people is a matter of conscious planning by those who are not
impoverished. Both state policies and our innumerable daily actions decide who, how many, to
what extent, for how long and with what cost shall become or remain impoverished. Both the
State and society are equal partners in India in generating the strata or under-class of the
impoverished.”
Social Justice:
Social justice means availability of equal social opportunities for the development of personality
to all the people in the society, without any discrimination on the basis of caste, sex or race. No
one should be deprived, because of these differences, those social conditions which are essential
for social development. The issue of social justice is associated with social equality and social
equality and social rights and these are dependent on economic equality and rights. Social justice
can be made available only in a social system where the exploitation of man by man is absent,
and where privileges of the few are not built upon the miseries of the many. The Preamble to the
constitution of India assures to all citizens, justice-social, economic and political; Liberty of
status and of opportunity, and promotion among them all; Fraternity assuring the dignity and the
unity of the nation. The spirit represented in the Preamble is further enshrined in the chapter of
Fundamental Rights and Directive Principles of State Policy, the purpose of which is to promote

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the social welfare of the by securing and protecting as effectively as it may socially order in
which justice- social, economic and political shall inform to all the institution of national life.

COURSE OUTLINE

Name of the Faculty: Dr N. Bhagya Lakshmi Total No. of Hours: Min 60

Credits: 4

ABOUT THE COURSE:

The satisfaction of human needs is widely accepted as a characteristic of any just society.
However, in view of the stages of development and ideological preferences, there may be
marked differences between one society and another on the issue of perception of human needs,
priorities of human needs and the techniques deployed for securing them. Though human needs
issues have been traditionally explored by disciplines like Economics, Political Science,
Anthropology, and Psychology in recent times human need have started receiving the attention
of legal scholars, who have made human needs their starting points for more meaningful
inquiries in the fields of human rights, social justice, individual liberty, equality, etc.

OBJECTIVE OF THE COURSE:

➢ The crucial and primary objective of this course is to introduce to the students the basic
understanding of vulnerable, marginalized, poor, and related law.
➢ To understand the basic legal issues of the socially, economically disadvantaged weaker
sections of the society along with the examination of how the legal system deals with the
issue of access to justice to the poor
➢ This course seeks to examine the relationship between ‘legal institutions’ and ‘poverty’
wherein the former not only act as critical tools for empowerment and emancipation but
also serve as instruments of impoverishment and exclusion.
➢ To understand beneficial schemes and welfare measures of the Government and its
effective implementation for the alleviation of poverty
➢ To understand the role of the international legal arrangement in dealing with the issue of
poverty
➢ The idea is to understand the interface of human, legal, and social processes, evaluate law
as a policy action instrument, and access the scope for law reform as part of development.

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 ➢ Analyze the role of legal resources in combating poverty and more particularly, discuss
the importance of understanding poverty through the prism of the human rights
framework and study contemporary efforts at poverty reduction through the creation and
assertion of legal rights.
LEARNING OUTCOME:
• On pursuing this course, the students will be able to identify the legal responses to the
phenomena of "poverty" and "development" both in the national and international
context.
• Evaluate against other international dimensions, principles, and institutions in the
reduction of poverty.
• Propose a solution to the existing problems of poverty in India and the role of institutions
in the reduction of poverty.

PEDAGOGY:
• Case Analysis, Lecture based and problem-based learning would be used. Case studies
would be used for initiating discussions in the module on different Anti-Povertyu
Alleviation Schemes.

Unit CASES FOR REFERENCE No. of

No. UNIT- 1: ➢ Law Subjects - List of Hours
INTRODUCTION&PERILS OF Cases
THE POVERTY ➢ Social Sciences - Case
Studies / recommended
readings
(List of cases are not
exhaustive - Faculty may
discuss or indicate any
additional Cases)
1.1 People’s Union for Civil
Liberties & Another v. State
of Maharashtra & Others 2013
Conceptualizing & Defining
(10) SCC 635.
Impoverishment
1.2
Understanding Poverty & Theories -
1.3 Measurements of Poverty - RamsharanAutyanuprasi and
Dimensions of Poverty 12

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 another v. Union of India and
Others, AIR 1989 SC 549
1.4
five faces of oppression of Poverty.
1.5 Francis Coralie Mullin v. The
Illiteracy- Unemployment-Bonded Administrator, Union
Labour Child Labour - Prostitution- Territory of Delhi, (1981) 2
Surrogacy and penury cause crime. SCR 516
UNIT – 2: IMPOVERISHMENT OF VULNERABLE GROUPS & LAW
AS A DETERMINANT
2.1 Olga Tellis and Ors. v.
Bombay Municipal
Corporation and Ors(1985) 3 12
Pavement Dwellers – Forest
SCC 545.
Dwellers
2.2
BhagawanDass v. Punjab
State Electricity Board, AIR
Vagrants- Untouchables – 2008 SC 990
Marginalized-Disabled in Poverty
2.3
M. R. Balajee v State of
Mysore, AIR 1963 SC 469
Aged in Poverty- Indigent
2.4
Rakesh Chandra Narayan v.
the State of Bihar and Others
Land Distribution – Development 1989 AIR 348
induced displacement
2.5
Denial of Housing –Access denied to KurraSubbarao v. Dist.
education- Eradication of evil Collector, (1984) 3 APLJ 249
practices
UNIT – 3: CONSTITUTIONAL SAFEGUARDS&LEGISLATIVE
FRAMEWORK
3.1
Ram Lakhan v State, 137
Fundamental Rights- Right to work (2007) DLT 173
– Right to Food – Right to shelter-
12
3.2 Right to bail

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3.3 Access to health – Access to Amitha v Union of India,
Education – Access to Justice. (2005) 13 SCC 721
3.4 Ahmedabad Municipal
Corporation v. Nawab Khan
Human Rights-Civil Rights- Legal Gulab Khan, (1997) 11 SCC
Aid- 123
3.5 Disaster Management – Welfare
Legislations
UNIT - 4 : WELFARE POLICIES AND EMPOWERMENT OF POOR&
INTERNATIONAL REGIME
4.1 State Policies- National Schemes for
Poor
4.2
Chameli Singh &Ors v. State
of U.P & Another, A I R 1996
S C 1051
Rural Development Schemes

4.3
T.N.
GodavarmanThirumulkpad v.
Union of India, AIR 1998 SC
769
Economic Reforms

4.4
R.M.Wasawa v State of
Gujarat, (1974) 3 SCC 581
Implementation of the policies.

4.5 Role of UNICEF- UNESCO -

UDHR – WHO – UNDP – ILO
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UNIT 5: CONTEMPORARY ISSUES IN POVERTY ALLEVIATION &
ECONOMIC SHOCK OF COVID-19
5.1 Associate Banks Officers
Millennium Development Goals Association v. State Bank of
Sustainable Development- India, AIR 1998 SC 32
5.2
MadhuKishwar v State of
Bihar, 1996(5) SCC 148
Anti-Poverty Programs. Migrants

5.3 legal profession 12

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5.4
State of Madhya Pradesh v.
PramodBhartiya, AIR 1993
SC 286
Insurance Sector- education system

5.5 World Economy

Text Books
Minimum Two Text Books
Sl. Author/s Title of the Book Edition and Publisher
No.
1. AbhijitVinayakBanarjee, Understanding Poverty Oxford University Press,
Roland Benabou
2006

2. S. Muralidhar Law, Poverty and LexisNexis Butter

Legal Aid Access to Worths, 2007
Criminal Justice
3. Sadhnaarya, Anupama Poverty Gender and Sage Publications, 2006.
Roy Migration

Books for Reference

Minimum Two Reference Books

Sl. Author/s Title of the Book Edition and Publisher

No.
1. Baxi. Upendra, N.M. Law and Poverty, Oxford, 2000.
Tripathi Critical Essays

2. Radhakrishnan, Ray Oxford Handbook of Oxford University Press,

Poverty in India, New
2005.
York

3. Deepali Pant Josh Poverty and Gyan Publication, 2006.

Sustainable
Development

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 INTRODUCTION ABOUT COURSE

UNIT-I: INTRODUCTION & PERILS OF THE POVERTY: Conceptualizing & Defining

Impoverishment - Understanding Poverty & Theories - Measurements of Poverty -Dimensions of
Poverty – five faces of oppression of Poverty. Illiteracy- Unemployment-Bonded Labour - Child
Labour - Prostitution- Surrogacy and penury cause crime.
This module shall discuss the different conceptions of poverty used by policy‐makers and
theorists. Particularly, the module shall go beyond the income‐based approach of defining
poverty and examine the nuances of viewing poverty as a form of deprivation of capabilities and
as a form of oppression. This module shall discuss the numerous perils of poverty faced by
economically, educationally, and socially backward people. Particularly this module focused on
penury is a road to crime and factors that influenced the impoverished for economic growth.

UNIT-II: IMPOVERISHMENT OF VULNERABLE GROUPS & LAW AS A

DETERMINANT: Pavement Dwellers – Forest Dwellers – Vagrants- Untouchables –
Marginalized- Disabled in Poverty- Aged in Poverty- Indigent. Land Distribution – Development
induced displacement- Denial of Housing – Access denied to education- Eradication of evil
practices
This module shall clarify the vulnerable groups in India and the challenges faced by them for
sustainability. This concept further focused on Legislative and Judicial role in their
sustainability. This module seeks to illustrate the impoverishing role of law and legal institutions
through the specific examples of inequitable distribution of land, development induced
displacement, and denial of livelihood and housing rights to urban poor.

UNIT-III: CONSTITUTIONAL SAFEGUARDS & LEGISLATIVE FRAMEWORK:

Fundamental Rights- Right to work – Right to Food – Right to shelter- Right to bail - Access to
health – Access to Education – Access to Justice. Human Rights - Civil Rights - Legal Aid-
Disaster Management – Welfare Legislations
This module shall explain the various fundamental rights provided under the Indian Constitution
and its violation. Further, it explains that the proactive role of Indian Courts. Constitutional

8
responsibility is reflected via legislation and development policies. This module shall examine
the use and potential of law as an instrument for poverty reduction and empowerment. More
specifically, shall discuss the importance of understanding poverty through the prism of the
human rights framework, the overlap between international human rights and poverty eradication
and weaknesses of the right‐based approach

UNIT-IV: WELFARE POLICIES AND EMPOWERMENT OF POOR & POVERTY &

INTERNATIONAL REGIME: State Policies- National Schemes for Poor – Rural
Development Schemes – Economic Reforms - Implementation of the policies. Role of UNICEF-
UNESCO - UDHR – WHO – UNDP - ILO

This module shall examine the various policies and measurements taken by the State and Nation
to eradicate the poverty in the society. Further, it will explain the Aim and Objective behind the
schemes and implementation of the various schemes for the progress of the Nation. The module
shall study the professed linkages between impoverishment and the global political and
economic order so that they appreciate the argument that persistent deprivation cannot merely be
attributed to local causes but is also inextricably linked to the current international institutional
arrangements.
UNIT-V: CONTEMPORARY ISSUES IN POVERTY ALLEVIATION & ECONOMIC
SHOCK OF COVID-19: Millennium Development Goals - Sustainable Development- Anti-
Poverty Programs. Migrants – legal profession – Insurance Sector- education system – World
Economy
This module shall explain the significance of economic growth and development of India and
poverty reduction was always given a top priority by the Government right from the beginning of
the plan period. This chapter focused on basic development issues, which in turn led the
governments at national and sub-national levels to do better planning and implement more
intensive policies and programs. This module mainly focused on the recent pandemic situation
and its effect on society. Social distance and Continues lockdowns, its impact the global
economy and also effect of COVID - 19 on different sectors. Measurements and precautions
taken by the Government to overcome the financial crisis will be explained.

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 CASES FOR REFERENCE

1. Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors(1985) 3 SCC 545.
2. People’s Union for Civil Liberties & Another v. State of Maharashtra & Others 2013
(10) SCC 635.
3. Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, (1981) 2 SCR 516
4. S.P. Gupta v. Union of India and others, AIR 1982 SC 149
5. BandhuaMuktiMorcha v. Union of India, (1984) 2 SCR 67
6. Ramsharan Autyanuprasi and another v. Union of India and Others, AIR 1989 SC 549
7. Narmada BachaoAndolan v. Union of India, (2000) 4 SCJ 261.
8. Associate Banks officers Association v. State Bank of India, AIR 1998 SC 32
9. P.Sagar v. State of Andhra Pradesh, AIR 1968 SC 1379
10. BhagawanDass v. Punjab State Electricity Board, AIR 2008 SC 990
11. Madhu Kishwar v State of Bihar, 1996(5) SCC 148
12. M. R. Balajee v State of Mysore, AIR 1963 SC 469
13. R.M.Wasawa v State of Gujarat, (1974) 3 SCC 581
14. Delhi development Horticulture Employees Union v Delhi Administration, AIR 1992 SC
789
15. State of Madhya Pradesh v. PramodBhartiya, AIR 1993 SC 286
16. 16.Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, (1997) 11 SCC 123
17. Rakesh Chandra Narayan v. State of Bihar and Others 1989 AIR 348
18. 18.Prajwala v. Union of India &Ors, (2009) 4 SCC 798
19. Butu Prasad Kumar &Ors v. Steel Authority of India Limited, 1995 Supp 2 SC 225
20. Amitha v Union of India, (2005) 13 SCC 721
21. Chameli Singh &Ors v. State of U.P & Another, A I R 1996 S C 1051
22. Kurra Subbarao v. Dist. Collector, (1984) 3 APLJ 249
23. ManushiSangathan v Govt. of Delhi, 68 (2010) DLT 168
24. Ram Lakhan v State, 137 (2007) DLT 173
25. 25.T.N. GodavarmanThirumulkpad v. Union of India, AIR 1998 SC 769
26. VikramVir Vohra v.ShaliniBhalla, (2010)4 Scc 179
27. 27.NandiniSundar&Ors. v. State Of Chattisgarh, AIR 2011 SC 2839

10
28. BachpanBachaoAndolan v. Union Of India &Ors, (2011) 5 SCC 1
29. 29.JankiPrasedParimooAndOrs. Etc. Etc. v. State Of Jammu & Kashmir And Ors. ,
[1973]3 SCR 236
30. K.C. Vasanth Kumar AndAnr. v. State Of Karnataka, AIR 1985 SC 1495
31. Gaurav Kumar Bansal v. Union Of India And Ors, (2017)6 SCC 730
32. National Campaign Commtt., C.L. Labour v. Union Of India And Ors.2009 (3) SCC 269
33. 33.In Re: Sreerangayeev. Unknown(1973) 1 MLJ 231
34. 34.Surendra Kumar Sharma v.VikasAdhikari And Anr.(2003) 5 SCC 12
35. 35.JavedAbidi v. Union Of India And Others.1999 (1) Scc 467
36. C.M. Arumugam v. S. Rajgopai, A.I.R. 1976 S.C. 936
37. Basheshar Nath v. The Commissioner of Income Tax Delhi, 1959 (1) SCR Supp 528.
38. State of Gujarat v. Vora Saiyedbhai Kadharbhai & Somsinh Takhatsinh Rana, AIR 1995
SC 2208.
39. C.E.S.C Ltd. v Subhash Chandra Bose, 1986 AIR 180.
40. STATE OF KERALA V. N. M. THOMAS AIR 1976 SC 490.

11
 CASE METHOD STUDY ANALYSIS

Kishen Pattanayak and Another v. State of Odisha

1989 AIR 677
Bench: Dutt, M.M. (J)

Writ Petition (Civil) No. 12847 of 1985 has its origin in a letter written by Shri Kishen Pattnayak
and Shri Kapil Narayan Tiwary, two social and political workers, addressed to the Hon'ble the
Chief Justice of India. In this letter, they have brought to the notice of this Court the miserable
condition of the inhabitants of the district of Kalahandi in the State of Orissa on account of
extreme poverty. It is alleged that the people of Kalahandi, in order to save themselves from
starvation deaths, are compelled to subject themselves to distress sale of labour on a large scale
resulting in exploitation of landless labourers by the well-to-do landlords. It is alleged that in
view of distress sale of labour and paddy, the small peasants are deprived of the legitimate price
of paddy and they somehow eke out their daily existence. Further, their case is that being victims
of 'chill penury', the people of Kalahandi are sometimes forced to sell their children. It has been
prayed that the State Government should be directed to take immediate steps for the purpose of
ameliorating the misery of the people of the district of Kalahandi.

On receipt of the said letter, this Court directed the same to be treated as a writ petition and it
was registered as such. Another writ petition being Writ Petition (Civil) No. 1081 of 1987 has
been filed by the Indian People's Front. This writ petition not only relates to the misery of the
people of Kalahandi, but also of the people of another district namely, the district of Koraput. In
this writ petition, it has been alleged that the starvation deaths of the inhabitants of the districts of
Koraput and Kalahandi are due to utter negligence and callousness of the administration and the
Government of Orissa. It is alleged that the starvation deaths, drought diseases and famine have
been the continuing phenomena in the said two districts since 1985. The Government of Orissa
has been accused of utter failure to protect the lives of the people of the two districts.
The State of Orissa appeared in both these writ petitions and opposed the same by filing counter-
affidavits denying the allegations of the petitioners. The State of Orissa filed two statements one
dated October 20, 1986 consisting of 160 pages and the other dated December 1, 1986 consisting

12
of 181 pages. In these statements, it has been alleged by the State of Orissa that the State
Government has implemented the social welfare measures in the district of Kalahandi.

In order to ascertain the correct state of affairs, this Court by its order dated January 16, 1987
requested the District Judge of Kalahandi to enquire as to whether the State Government has, in
fact, implemented the social welfare measures in the district of Kalahandi and whether such
measures were adequate to meet the needs of the people there. The learned District Judge was
asked to submit a report to this Court. It was further directed by this Court that the learned
District Judge, while preparing his report, would consider the feasibility of the implementation of
some suggestions made by the petitioners regarding the steps to be taken for the purpose of
ameliorating the condition of the people in the said district.

The learned District Judge has since submitted his report which runs into 361 pages. The
petitioners are not at all satisfied with the said report of the learned District Judge. They have
challenged the correctness of facts found by him, particularly with regard to the question of
starvation deaths. It has been stated by the learned District Judge that there was hardly any case
of starvation death; on the other hand, there has been implementation by the Government of the
social welfare measures. We do not think it necessary to consider the report of the learned
District Judge. It is agreed by the parties including Shri Pattnayak, petitioner 1 in Writ Petition
No. 12847 of 1985, who has appeared before us in person, that some steps should be taken for
the purpose of alleviating the miseries and sorrows of the poor inhabitants of both the said
districts.

It is not disputed that the people of the districts of Kalahandi and Koraput are very poor and most
of them have been living below the poverty line. Although the learned District Judge's report in
against the alleged starvation deaths, we are of the view that the happening of one or two cases
of starvation deaths cannot altogether be ruled out. Shri Pattnayak laid much emphasis in his
submissions on the duty of the Government to take immediate steps to prevent starvation deaths.
He has submitted before us some suggestions in writing. So far as prevention of starvation deaths
is concerned, his suggestions are inter alia that the government should constitute a 11 Member
Committee, of which the majority should be social workers, for the purpose of supervising
matters arising out of drought and other natural calamities. This Committee may be called the
Kalahandi Relief Implementation Committee (KRIC). The non-official members should not be

13
members of any political party and should belong to well known organisations of social work,
such as, Sarvodaya Ganshi Peace Foundation and registered voluntary agencies, as contained in
the State approved list of voluntary agencies. He has also enumerated the duties of the
Committee.

The learned Advocate General or Orissa, appearing on behalf of the Staff of Orissa, has drawn
our attention to paragraph 39 of the Orissa Relief Code which provides as follows:

"39. Reports as starvation - (1) In spite of taking adequate precautions in providing relief works
for able-bodied persons, and gratuitous relief and feeding programmes for those who cannot
undertake physical labour and other relief measures, reports of starvation cases very often appear
in the press. Whenever a report of death due to starvation is published and it comes to the notice
of the Collector, he shall immediately cause an enquiry into the allegation. The enquiry shall be
conducted by a gazetted officer in the presence of the Sarpanch, Ward Member or some
gentlemen of the village and the result of the enquiry reported in the pro forma in Appendix VI
within 48 hours, if possible. The pro forma is not exhaustive. The Collector should include such
other information which he considers necessary to give government a complete picture of the
situation in which the alleged death has taken place. If all the information cannot be collected
forthwith a preliminary report should be furnished immediately to be followed by a complete
report soon

(ii) After the receipt of the enquiry report, the Collector shall review the relief measures,
undertaken in the area and also if he deems proper, may visits the area himself or depute a senior
officer to take stock of the situation and be satisfied about the adequacy of labour employment,
food position, and other relief arrangements. He should take further steps to alleviate distress in
the area as far as possible. In case he considers necessary to further strengthen the relief
measures, he shall furnish concrete proposals promptly with necessary justification through the
Revenue Divisional Commissioner to the Board of Revenue/Special Relief Commissioner."

In this connection, we may also refer to paragraph 40 relating to verification of press reports and
issue of contradiction, if any. Paragraph 40 reads as follows:

"40. Verification of press reports and issue of contradiction, if any-Besides alleging starvation,
deaths, reports on large scale migration of population on account of lack of work, scarcity of
drinking water, outbreak of epidemics etc. appear in the press very often. The Collector shall

14
take to get such reports immediately verified by proper enquiry or otherwise and if found true
should take immediate remedial action. Proper publicity relating to the relief measures
undertaken should also be given. If on the other hand, the report is found inaccurate, exaggerated
or incorrect a contradiction stating the correct facts may be issued by the Collector immediately.
Copies of such contradictions should be made available to the higher authorities."
It is apparent from paragraph 39 that ample provision has been made for taking steps as soon as
the report of starvation death is published, or any starvation death comes to the notice of the
Collector.
It is also submitted by the learned Advocate General that there is a district level Natural
Calamities Committee consisting of the Collector, other officials and the popular representatives
like MPs and MLAs of the district, who are required to review the progress of relief work and
the measures taken to meet the drought conditions from time to time. He submits that instead of
consisting another Committee, the Natural Calamities Committee will serve the purpose. Shri
Pattnayak also agrees that another separate Committee need not be constituted, but he submits
that the Natural Calamities Committee should include at least five non-official and non-political
members belonging to well-known organisations of social work, such as, Sarvodaya Gandhi
Peace Foundation and registered voluntary agencies, as already suggested by him. The learned
Advocate General states that the Government has no objection to induct into the Committee non-
officials, such as, representative of the recognised voluntary organisations as suggested by Shri
Pattnayak.

In the circumstances, we direct the Government of Orissa that it shall, within a month from date,
nominate the names of at least five persons belonging to the recognised voluntary organisations
like Sarvodaya Gandhi Peace Foundation, Ramakrishna Mission, Bharat Sewa Sangha and
registered voluntary agencies as members of the said Natural Calamities Committee of the
district. We also accept the suggestion of Shri Pattnayak that the Committee shall hold at least
one meeting every two months. The functions of the Committee will not be confined only to the
cases of starvation deaths, but it shall be responsible for looking after the welfare of the people of
the district

We are given to understand that there is also such a district level Natural Calamities Committee
in the district of Koraput. We make it clear that the Government will also nominate at least five

15
such persons belonging to recognised voluntary within a month from today and the Committee
will also perform the same functions.

So far as the district of Kalahandi is concerned, it has been urged by the learned Advocate
General that the Government of Orissa has already undertaken appropriate measures for
mitigating the miseries of the people of that district. The steps which have taken by the
Government may be stated in brief. The State Government has allotted a sum of Rs. 8054 lakhs
for Kalahandi during the Sixth Plan.

The State Government is fully aware of the situation in Kalahandi and constant vigilance is
maintained under the direct supervision of the Chief Minister to redress the distress of the
people. The labour intensive work has been undertaken by the Government on a massive scale to
provide employment opportunity to the people of the district of Kalahandi. During the year
1984-85, in areas of acute distress, free feeding programme has been undertake on a massive
scale. During 1987-88 the coverage under the Normal Feeding Programme was 2, 12, 800
persons. Besides 1, 20, 000 persons were also covered under the Emergency Drought Feeding
Programme covering all the drought affected areas of the district. In 128 Gram Panchayats where
crop damage was more then 50 per cent, 1, 20, 000 persons were covered under the Emergency
Feeding Programme during 1987-88. During the current year, preliminary survey indicated that
crop damage was likely to occur in 74 Gram Panchayatas and, accordingly, 40, 000 persons from
the said affected areas have been covered under the Emergency Feeding Programme in addition
to the Normal Feeding Programme for Total Backwardness Scheme covering certain blocks,
about 20, 000 persons are being fed under the Feeding Programme. According to the
government, 2, 72, 000 persons are being covered by the Feeding Programme in Kalahandi
district in 1988.

Kalahandi is a drought-prone district and Government has, according to the learned Attorney
General, already taken a number of major, medium and small Irrigation Projects in the said
district to provide irrigation facilities for agriculturists. 485 tube-wells are stated to have been
dug as a major source of drinking water in Kalahandi. The Government has also started a
forestation Programme so as to prevent the recurrence of drought conditions

Much facilities are stated to have been given to the weaves of the district. Elaborate measures
have also been taken for ensuring that poor cultivators are not coerced to sell their surplus paddy
at a lower rate on account of their poverty. The Orissa Agricultural Procedure Marketing Act is
16
being strictly implemented. The entire procurement of paddy has been entrusted to the Food
Corporation of India and the State Co-operative Marketing Federation. These two organisations
specialised in such purchases, are possessed of godowns and have their local centers throughout
the State for purchase of surplus paddy. The FCI at the request of the State Government, has
established purchase centres at Junagarh, Khariar Road and Kesinga in the district of Kalahandi.
The FCI has also made arrangements for district purchase of paddy at Dharmagarh, Junagarh and
Narala. The State Co-operative Marketing Federation has also opened direct purchase centers at
Boden and Sinapalli in the district of Kalahandi. Furthermore, when surplus paddy comes to
market additional purchase centres are provided for purchase of the surplus paddy
The minimum purchase price for paddy is fixed by the Government of India. Adequate funds are
provided to the purchasing agents to purchase the surplus paddy at the rates prescribed by the
Government. State Government also ensures that unscrupulous traders do not coerce the farmers
to sell paddy at a distress price

Assistance to agricultural is also being given by the Government. Due to drought conditions, the
kharif crop was damaged in some areas of Kalahandi district in 1987-88. To enable cultivators to
undertake resowing, Government is stated to have supplied seeds free of cost in mini-bags.
The measures which have been taken and are being taken, as stated in the written note submitted
by the learned Advocate General, have been briefly mentioned. There is no reason not to accept
the statements made on behalf of the State of Orissa that the measures, stated above, are being
taken for the purpose of mitigating hunger, poverty, starvation deaths, etc. of the people of
Kalahandi. If such measures are taken, there can be no doubt that it will alleviate to a great extent
the miseries of the people of Kalahandi. Such measures are also being taken in respect of the
district of Koraput. The Natural Calamities Committee shall also keep a watch over the working
of the social welfare measures which are being taken and may be taken in future. Shri Pattnayak
also does not dispute that if such measures are continued to be taken, it will be a great relief to
the people of Kalahandi and Koraput. We hope and trust that in view of the prompt action that
has been taken by the Government, soon the miseries of the people of these two districts will be
over.

(The above case law explains about the concept of Right to Food and Schemes of States for
the welfare of the poor)

17
 Standard Vacuum Refining Company of India, Ltd. Versus Its workmen (including clerical
staff) and another (Petroleum Refineries Employee’ Sabha)

(1961) 1 LLJ 227

BENCH: GAJENDRAGADKAR, P.B.WANCHOO, K.N,GUPTA, K.C. DAS

This dispute related to a claim for bonus made by the respondents against the appellant for the
year commencing on January 1, 1956, and ending with December 31, 1956. The respondents
claimed that for the relevant year they were entitled to receive by way of bonus their nine
months' total earnings inclusive of all allowances and overtime and extra-time earnings. After
this demand was made the conciliation officer attempted conciliation between the parties but his
efforts failed, and so he submitted a failure report under s. 12(4) of the Industrial Disputes Act,
1947 (XIV of 1947). The Government of Bombay then considered the said report and was
satisfied that there was a case for reference of the said dispute to the Tribunal. That is how the
present reference came to be made under s. 12(5) of the Act.

Before the Tribunal the respondents' case was that during the conciliation proceedings the
appellant had admitted its capacity to pay and to meet the entire claim of bonus made by them;
and so it was urged that it was unnecessary to screen the respondents' claim through the Full
Bench formula. They further alleged that the appellant was not paying a living wage to the
respondents and there still remained a large gap between the wage actually received by them and
the living wage to which they would be ultimately entitled. According to the respondents their
claim for bonus should be examined solely by reference to the gap which had to be filled up
between the two wages; and in determining the amount of bonus all the legitimate requirements
of the respondents should be carefully considered.

This claim was denied by the appellant. It denied the respondents' allegation that during
conciliation proceedings it had admitted its capacity to pay the entire amount of bonus claimed
by the respondents. It then specifically averred that in law the respondents were not entitled to
any bonus because the appellant was paying them a living wage and so one of the essential
conditions for the payment of bonus, namely, the need to fill the gap between the actual wage

18
and the living wage was absent in the present case. The appellant then set out its calculations in
regard to the average wages paid to the different categories of respondents and supported its plea
that they were not entitled to any bonus at all. It may be added that the appellant had already
voluntarily paid three months' basic wages to the respondents by way of bonus, but since the
respondents were making a much larger claim the appellant thought it necessary to raise this
general issue of law and to contend that the respondents were not entitled to any bonus at all.

On these pleadings the Tribunal had to consider the said question of law, but it appears that the
material produced before it was so limited and meagre that it thought it would not be possible to
arrive at any definite opinion on the question of what is the living wage in Bombay; apparently
the Tribunal also thought that it was unnecessary to do so, because it has observed that the
present dispute did not relate to wage scales and that the living wage was an elusive concept.
Even so, having broadly considered the contentions raised by the appellant it held that " the
wages are fair but there is still in a large number of cases a gap between the actual wage and the
living wage." On this finding the Tribunal proceeded to examine the other contentions raised by
the parties in regard to the quantum of bonus which should be awarded and it reached the
conclusion that the respondents were entitled to receive five months' basic earnings " excluding
dearness and other allowances and overtime " as bonus for the relevant year. Accordingly, it has
made an award to that effect and has issued appropriate directions in that behalf.

At the outset it is necessary to state that the plea raised by the appellant assumes that as soon as a
living wage standard has been reached by any employer it would be unnecessary for him to pay
any bonus to his employees. The learned Attorney-General has naturally relied on the decisions
of this Court as well as the decisions of industrial tribunals in support of his argument that the
Full Bench formula which governs the decision of bonus disputes postulates that a claim for
bonus can be entertained if two conditions are satisfied; the employer must have made profit in
the relevant year, which after the deduction of prior charges leaves sufficient available surplus;
and there must be a gap between the wages actually paid to the employees and the living wage
standard which they hope to reach in due course. In dealing with bonus claims industrial
adjudication has so far proceeded on the assumption that in the making of profits labour makes
its contribution, and that since it is not receiving a living wage it is entitled to claim that the gap
between the actual and the living wages should be filled by the payment of bonus for each
relevant year.

19
It is well known that the problem of wage structure with which industrial adjudication is
concerned in a modern democratic State involves on the ultimate analysis to some extent ethical
and social considerations. The advent of the doctrine of a welfare State is based on notions of
progressive social philosophy which have rendered the old doctrine of laissez-J faire obsolete.

According to the United Provinces Labour Enquiry Committee wages were classified into four
categories, poverty level, minimum subsistence level, the subsistence plus level, and the comfort
level (2). The third category would approximate to the fair wage, and the fourth to the living
wage.

Tribunal has considered all the relevant factors and has come to the conclusion that five months'
bonus would meet the ends of justice. We do not see any reason to interfere with this award. In
the result both the appeals fail and are dismissed. There will be no order as to costs in both the
appeals. Appeals dismissed.

Minerva Mills Ltd. & Ors vs Union Of India & Ors

1980 AIR 1789
Bench: Bench: Chandrachud, Y.V. ((Cj), Bhagwati, P.N., Gupta, A.C., Untwalia, N.L.,
Kailasam, P.S.

The Fundamental Rights are no doubt important and valuable in a democracy, but there can be
no real democracy without social and economic justice to the common man and to create socio-
economic conditions in which there can be social and economic justice to everyone, is the theme
of the Directive Principles. It is the Directive Principles which nourish the roots of our
democracy, provide strength and vigour to it and attempt to make it a real participatory
democracy which does not remain merely a political democracy with Fundamental Rights
available to all irrespective of their power, position or wealth. The dynamic provisions of the
Directive Principles fertilise the static provisions of the Fundamental Rights. The object of the
Fundamental Rights is to protect individual liberty, but can individual liberty be considered in
isolation from the socio-economic structure in which it is to operate. There is a real connection
between individual liberty and the shape and form of the social and economic structure of the
society. Can there be any individual liberty at all for the large masses of people who are suffering
from want and privation and who are cheated out of their individual rights by the
exploitative economic system? Would their individual liberty not come in conflict with the

20
liberty of the socially and economically more powerful class and in the process, get mutilated or
destroyed? It is exiomatic that the real controversies in the present day society are not between
power and freedom but between one form of liberty and another. Under the present socio-
economic system, it is the liberty of the few which is in conflict with the liberty of the many. The
Directive Principles therefore, impose an obligation on the State to take positive action for
creating socio-economic conditions in which there will be an egalitarian social order with social
and economic justice to all, so that individual liberty will become a cherished value and the
dignity of the individual a living reality, not only for a few privileged persons but for the entire
people of the country. It will thus be seen that the Directive Principles enjoy a very high place in
the constitutional scheme and it is only in the framework of the socio-economic structure
envisaged in the Directive Principles that the Fundamental Rights are intended to operate, for it
is only then they can become meaningful and significant for the millions of our poor and
deprived people who do not have been the bare necessities of life and who are living below
the poverty level.

Francis Coralie Mullin v. Administrator, Union Territory of Delhi,

AIR 1981 SC 746

Bench: Bhagwati, P.N.

The petitioner, who is a British national, was arrested and detained in the Central Jail, Tihar
under an Order dated 23rd November 1979 issued under section 3 of the COFEPOSA Act. She
preferred a petition in this Court for a writ of habeas corpus challenging her detention, but by a
judgment delivered by this Court on 27th February 1980, her petition was rejected with the result
that she continued to remain under detention in the Tihar Central Jail. Whilst under detention, the
petitioner experienced considerable difficulty in having interview with her lawyer and the
members of her family. Her daughter aged about five years and her sister, who was looking after
the daughter, were permitted to have interview with her only once in a month and she was not
allowed to meet her daughter more often, though a child of very tender age. It seems that some
criminal proceeding was pending against the petitioner for attempting to smuggle hashish out of
the country and for the purpose of her defence in such criminal proceeding, it was necessary for
her to consult her lawyer, but even her lawyer found it difficult to obtain an interview with her
because in order to arrange an interview, he was required to obtain prior appointment from the
District Magistrate, Delhi and the interview could take place only in the presence of a Customs
21
Officer nominated by the Collector of Customs. This procedure for obtaining interview caused
considerable hardship and inconvenience and there were occasions when, even after obtaining
prior appointment from the District Magistrate, Delhi, her lawyer could not have an interview
with her since no Customs Officer nominated by the Collector of Customs remained present at
the appointed time. The petitioner was thus effectively denied the facility of interview with her
lawyer and even her young daughter 5 years old could not meet her except once in a month

“the right to life includes the right to live with human dignity and all that goes along with it,
namely the bare necessities of life such as adequate nutrition, clothing and shelter and facilities
for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and
co-mingling with fellow human beings. Of course, the magnitude and content of the components
of this right would depend upon the extent of the economic development of the country, but it
must, in any view of the matter, include the right to the basic necessities of life and also the right
to carry on such functions and activities as constitute the bare minimum expression of the
human-self.”

OLGA TELLIS AND ORS. v. BOMBAY MUNICIPAL CORPORATION AND ORS.

(1985) 3 SCC 545.

BENCH:

Chandrachud, Y.V. ((CJ), Fazalali, Syed Murtaza, Tulzapurkar, V.D., Reddy, O.

Chinnappa (J), Varadarajan, A. (J)

The facts of the case are as such that the plight of people who live on pavements and slums in the
city of Bombay. They have made such areas their homes, which exist in the midst of filth and
squalor. These are the people who made both of the ends of the day meet in ambiguity; there is
little hope of elevation of status between them. They came before the Honorable Supreme Court
to get back their homes from which they have been evicted by the municipal authority for the
city. Such snatching up of their homes is a violation of their Article 21. The major contention
from their side that they have made these places their homes, as they are near the place where
they work, which in turn provides them great assistance. Therefore, this also infringes Article
19(1) (e) as they will be in great difficulty to reach their workplace. To live a life or to exercise

22
the right to live they should also have right to livelihood and without this, such exercise is not
possible.Thus, the act, which is the Bombay Municipal Corporation Act under which such
evictions have been carried out, is arbitrary in nature and fanciful.

1. That the order for the eviction of the pavement is the infringement of their right to
livelihood and in turn, the encroachment over their right guaranteed under article 21 of
the Constitution.
2. That the impugned action of the State Government and the Bombay Municipal
Corporation is violative of the provisions contained in Article 19(1) (3), 19(1) (g) and 21
of the Constitution.
3. That the procedure prescribed by Section 314 of the Bombay Municipal Corporation Act,
1888 for the removal of encroachments from pavements is arbitrary and unreasonable.
4. The question here arises which has also been thrown light upon in the case is that whose
rights should be respected the right of pavement dwellers as their right of livelihood is
getting affected or the right of the people, the society at large who has the right to have
the access of the places on which these pavement dwellers have encroached upon.

Ironically, [the case] helped the propertied classes; lawyers often cite the case to justify the
eviction of tenants and slum dwellers. However, it also helps the slum dwellers; the Government
cannot evict them summarily. The case also spawned a lot of interest in fighting for housing as a
fundamental right but if you were a pavement dweller, it is just not enough. This case is widely
quoted as exemplifying the use of civil and political rights to advance social rights but it is also
viewed as problematic due to its failure to provide for the right to resettlement. It is also
inconsistent with developments in other jurisdictions, where courts have found stronger rights to
resettlement. The ruling made it mandatory for the authorities to provide alternate
accommodation to slum dwellers if their shantytowns were demolished.
Reaching, on the concluding part,it can only be said that all the above stated jurisprudential
principles are having the applicability over the judgment as a bridge is drawn between the
principles and the facts and circumstances of the case. The utilitarianism happiness, as well as
the tussle between social and private rights, has been clearly justified having the umbrella of
social engineering.

23
The Apex court has taken a balanced decision on the matter. It has also upheld the validity of the
above stated questionable act but this has not been done on the cast of the pavement dwellers.
The right to life, which is having its existence due to the right to livelihood, is being respected by
the court in the present matter. The court has struck a proper balance between the priority of an
individual’s rights and societal rights. Which one should have greater importance and which
should be satisfied in an effective manner has been categorically being stated by the court in the
judgment. It has neither neglected the importance of the impugned act nor negated the
individual’s right the right for the enforcement of which the petitioners came before the court.
It can be understood from the judgment is not that any negotiations being done by the people
with the administrative authorities at the cost of their fundamental rights which are being
guaranteed by the constitution are being discarded by the court but how court has respected both
the rights and followed the principles of social engineering, utilitarianism, rights and many more
jurisprudential aspects which are not being laid down in any codified book but are the theories
being formulated by the eminent jurist who have worked all their life so that the legal system
should work properly and the spirit of justice, equity and good conscience are being upheld. The
above-stated principles are being discussed in the present jurisprudential analysis and an attempt
has been done that justice can be done.
(The above case law explains the concept of basic rights to the poor people and role of
Government)

GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS v.

GROOTBOOM (GROOTBOOM)
2001 (1) SA 46 (CC), 2000 (11) BCLR 1169 (CC)
BENCH:
Chaskalson P, Langa DP, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, O’Regan J,
Sachs J, and Cameron AJ concur in the judgment of Yacoob J.

Mrs. Grootboom and other respondents were homeless and living in appalling conditions. Many
had applied for subsidized low-cost housing through the municipality and had been on the
waiting list for a period of up to seven years. While waiting for the assignment, they decided to
move and illegally live on someone’s private land. Respondents were then evicted from these
informal homes.

24
Respondents applied to the High Court seeking an order requiring the government to provide
them with adequate basic shelter or housing until they obtained permanent accommodation and
certain relief. Respondents contended that Sections 26 and 28 of the Constitution of South Africa
guaranteed the right of everyone to access to adequate housing and the right of children to be
afforded special protection, and, in particular, shelter. Respondents also contended that South
Africa’s obligations under the International Covenant on Economic, Social, and Cultural Rights
(ICESCR) further supported their section 26 claim.

The High Court held that under section 28 (c), affording special protection to children, the
government is obliged to provide children and their parents with immediate shelter. However,
the High Court rejected the argument that section 26 of the Constitution obliged the government
to provide minimum shelter for everyone. Thus, respondents without children were not ordered
to receive housing. In rejecting the section 26 claim, the High Court did not touch the issue on
South Africa’s obligations under ICESCR.

Against the order of the High Court, the government appealed to the Constitutional Court of
South Africa. In the Constitutional Court, the respondents sought to broaden the scope of the
Petition by contending that all adults, including those without children, should also be afforded
the right to shelter under the order of the High Court.

The Court first examined what the precise obligations of the Government are under Section 26 of
the Constitution of South Africa. In doing so, the Court stated that Section 26 must be interpreted
in light of the remainder of the Constitution and the historical and social circumstances in which
it is set. Section 26 requires that the state take reasonable legislative and other measures within
the context of available resources to ensure access to adequate housing. The Court determined
that the nationwide housing program falls short of constitutional obligations insofar as it fails to
provide relief for those in desperate need of housing.

At the same time, the Court determined that, contrary to the appellants’ assertions, the
Constitution does not draw a distinction between housing, on one hand, and shelter on another.
And so it concluded that that neither Section 26 nor Section 28 of the South African Constitution
can be read to entitle respondents to claim shelter immediately upon demand. The High Court
order to this effect, therefore, could not have been made.

25
The Court then examined whether the respondents were entitled to broaden the scope of the
original application so that persons without children would be equally entitled to the shelter. To
this the Court stated that under Section 26(2) of the Constitution, the government is required to
devise and implement, within its available resources, a comprehensive and coordinated program
progressively to realize the right of access to adequate housing. This right extends to all
individuals including those without children. The state housing program in the area of the Cape
Metropolitan Council fell short of compliance in that it failed to provide relief for those
desperately in need of housing.

In summary, the Constitutional Court declared that the government had not met its Constitutional
obligations and ordered the government, within its available resources, to devise, fund,
implement and supervise measures to provide relief for all, including those without children,
who are in desperate need. Agreeing with the petitioner’s original argument, the Court held that
this decision was within keeping of South Africa’s obligations under ICESCR to provide for a
right to adequate housing.

“The national government bears the overall responsibility for ensuring that the state complies
with the obligations imposed upon it by section 26. The nationwide housing program falls short
of obligations imposed upon national government to the extent that it fails to recognize that the
state must provide for relief for those in desperate need. They are not to be ignored in the
interests of an overall program focused on medium and long-term objectives. It is essential that a
reasonable part of the national housing budget be devoted to this, but the precise allocation is for
national government to decide in the first instance.” (Para. 66).

“This case shows the desperation of hundreds of thousands of people living in deplorable
conditions throughout the country. The Constitution obliges the state to act positively to
ameliorate these conditions. The obligation is to provide access to housing, health-care,
sufficient food and water, and social security to those unable to support themselves and their
dependents. The state must also foster conditions to enable citizens to gain access to land on an
equitable basis. Those in need have a corresponding right to demand that this be done.” (Para.
93).

“I am conscious that it is an extremely difficult task for the state to meet these obligations in the
conditions that prevail in our country. This is recognized by the Constitution, which expressly

26
provides that the state is not obliged to go beyond available resources or to realize these rights
immediately. I stress, however, that despite all these qualifications, these are rights, and the
Constitution obliges the state to give effect to them. This is an obligation that courts can, and in
appropriate circumstances, must enforce.” (Para. 94).

This is probably the most cited ESC (Economic, Social and Cultural Rights) rights case, laying
the foundation for subsequent successful ESC rights claims in South Africa and elsewhere. The
Court lays the foundation for the justifiability of the obligation to progressively realize ESC
rights, which the Court will review on the basis of the “reasonableness” test, and exercise
deference, where appropriate, at the stage of remedy.

The decision had a major impact on housing policy in South Africa. Most municipalities put in
place a "Grootboom allocation" in their budgets to address the needs of those in desperate need.
The applicants were provided with basic amenities as a result of a settlement reached prior to the
hearing of the case by the Constitutional Court, but the results of the decision for the community
have been disappointing. Further legal action was taken to enforce the remedy against the local
government.
(The above case law explains Economic, Social and cultural rights of the people)

People’s Union for Civil Liberties v. Union of India & Others (PUCL)

Citation: 2001 (2) SCC 688

The Supreme Court of India has established itself as a champion of food security and committed
itself to the realization of the right to food in India.

The fact that starvation deaths had occurred in Rajasthan despite excess grain being kept aside
for famine was agitated. Various schemes for food distribution throughout India were also non-
functional. The Supreme Court, noting the right to life, stated “would the very existence of life of
those families which are below poverty line not come under danger for want of appropriate
schemes and implementation”. The Court found failure by the government to implement and
resource various food schemes and ordered specific measures to be affected. Though efforts have
been made to reverse the limitation of the top-down approach and to enable the people to
participate more actively in the implementation of the development programmes, actualization of

27
financial and administrative powers to these local bodies has been dismally low. Local
democratic institutions are still prone to capture by the village elite and are generally ineffectual
in influencing their individualistic styles of functioning. The bureaucracy still maintains the
upper hand in expenditure disbursements and the weakness in the democratic process provides
them room to manipulate the welfare schemes and recipient beneficiaries.

Two night shelters located at Nehru Place and Kalkaji, Delhi were erected on vacant land
belonging to the Delhi Development Authority (‘DDA’). Those two night shelters have been
demolished only three days ago by the DDA.This indeed is a matter of great anguish,
disappointment and astonishment. How could the concerned authority be so insensitive,
impervious and callous to demolish night shelters when the bitter cold winter has already set in?
In case, proper night shelters are not provided to the homeless and they are compelled to Jive
under the open sky, particularly in places where intense winter has set in, similar unfortunate
deaths of homeless people are bound to occur.

This is a matter of great anxiety and concern. It is the bounden duty of the Union of India and the
State Governments to ensure at all costs that no death takes place because of lack of night
shelters or basic facilities. To preserve and save the lives of the people of this country has to be
given top priority by the State. No laxity or lapse on this count can be countenanced.

This Court in various orders passed in the last two years has expressed its deep concern and it
has been observed, in one of the orders, that what is of utmost importance is to see that food is
provided to the aged, infirm, disabled, destitute women, destitute men who are in danger of
starvation, pregnant and lactating women and destitute children, especially in cases where they
or members of their family do not have sufficient funds to provide food for them. In case of
famine, there may be shortage of food, but here the situation is that amongst plenty there is
scarcity. Plenty of food is available, but distribution of the same amongst the very poor and the
destitute is scarce and non-existent leading to malnutrition, starvation and other related problems.
The anxiety of the Court is to see that poor and the destitute and the weaker sections of the
society do not suffer from hunger and starvation. The prevention of the same is one of the prime
responsibilities of the Government – whether Central or the State. Mere schemes without any
implementation are of no use. What is important is that the food must reach the hungry.

Article 21 of the Constitution of India protects for every citizen a right to live with human

28
dignity. Would the very existence of life of those families which are below poverty line not come
under danger for want of appropriate schemes and implementation thereof, to provide requisite
aid to such families? Reference can also be made to Article 47 which inter alia provides that the
State shall regard the raising of the level of nutrition and the standard of living of its people and
the improvement of public health as among its primary duties. In the light of the aforesaid, we
are of the view that for the time being for the months of May, June and July 2003, it is necessary
to issue certain directions so that some temporary relief is available to those, who deserve it the
most.

Our attention has been drawn to the Famine Code (Annexure P –VIII). That Famine Code, we
are informed, is the one formulated by the State of Rajasthan and similar codes have been
formulated by other States. A perusal of this Famine Code shows that first three chapters deal
with the steps to be taken as preventive measure before the famine and drought and Chapter IV
onwards deal with declaration of distress and commencement of relief setting out in detail the
reliefs and the officers responsible therefor. One of the reliefs claimed in the petition is for
enforcement of the Famine Code.

The next aspect pertains to food for work. We have been taken through the Employment
Assurance Scheme of the Government of India. Though the same stands merged into SGRY, but
it has been submitted by learned counsel for the petitioner that the reliefs under SGRY, instead
of improvement, have since been reduced. SGRY provides for an outlay of only Rs 5000 crores
and 5 million tonnes of free grain. It was pointed out that as far as the guarantee of employment
is concerned, in the Employment Assurance Scheme, it was 100 days, whereas according to
SGRY, it is 15 days and rather 10 days according to the States and at the most 20 days which is
according to the Union of India.

India’s ongoing effort to realize a constitutional right to food began with a petition brought in
July 2001 on behalf of the poor in the state of Rajasthan who had not been receiving the required
employment and food relief mandated by the Rajasthan Famine Code of 1962. Filed in response
to the failure of the federal and state governments to address acute hunger and starvation deaths
at a time when India was producing a grain surplus, the PUCL petition sought enforcement of a
constitutional right to food under Article 21 of the Constitution of India. Ten years into the

29
litigation, PUCL has been expanded to apply to all state governments and to address larger, more
complex issues of hunger, unemployment, and food security.

Important developments to government schemes in recent years have included preservation of

the Public Distribution System, through which grains are delivered to people of extreme poverty;
the universalization of the Integrated Child Development Scheme (ICDS), which allows all
children to access services provided at ICDS feeding centers; the mandated continuance of the
Mid-Day Meal Scheme (MDMS) in schools; and the issuance of court directives prohibiting any
modification or discontinuance of any food scheme covered in previous orders without prior
permission of the Supreme Court

DELHI DEVELOPMENT HORTICULTURE EMPLOYEES' UNION V. DELHI

ADMINISTRATION, DELHI AND ORS.

AIR 1992 SC 789

BENCH:

P.B. Sawant and B.P. Jeevan Reddy, JJ.

The petitioner-workmen who were employed on daily wages have filed these petitions for their
absorption as regular employees in the Development Department of the Delhi Administration
and for an injunction prohibiting the termination of their services and also for the difference in
wages paid to them and those paid to the regular employees. The petitions are resisted on behalf
of the respondents contending that there is no scope for the absorption of the petitioners as they
were employed on daily wages with a clear understanding that the schemes under which they
were employed had no provision for regularization of any workman.

To understand the controversy between the parties, it is necessary to refer to the facts with regard
to the employment of the petitioners as brought on record by the respondents.

During the 5th Five Year Plan, the Central Government had formulated various schemes to
provide wage-employment to agricultural and landless laborers during lean periods. One such
scheme was "Food for work". Under this scheme, employment was given to the poorer sections

30
of the population in the rural areas partly for food and partly for cash payment. During the 6th
Five Year Plan, the objective of the program was enlarged to include alleviation of rural poverty
by distribution of income in favor of the poor and the needy population in the rural areas by
providing employment opportunities to them. With this view, a new program called the National
Rural Employment Programme was started in October 1980 replacing the "Food for Work"
program. During the period of the same Plan, another scheme called "Rural Landless
Employment Guarantee Programme" was launched on August 15, 1983 with the same objective
of generating additional employment in the rural areas particularly for the landless workers.
Under these programmes, works in rural areas resulting in durable community assets, social
forestry, village roads, etc. were taken up. Pursuant to them, a scheme for plantation of trees was
taken up at various sites in the rural areas of Delhi. The entire said work was done by providing
daily wage employment to rural workers including the present petitioners. The labor was
employed at these sites depending upon their availability in rural areas and without reference to
any Employment Exchange in either the Union Territory of Delhi or anywhere else. Since the
Social Forestry Programme involved knowledge of plantation and agricultural practices, some
unemployed agricultural graduates/diploma-holders who were ready to work on daily wage
employment and had approached the District Rural Development Agency ('DRDA' for short)
through various officials and non-officials, were also given daily wage employment under the
said programs.

For providing periodical daily wage employment, the officials of the DRDA made assessments
with reference to particular sites. The number of workers who could be provided employment in
the succeeding month was finalized in the last week of the preceding month. Since the schemes
themselves were meant only to provide daily wage employment, the workers were paid only for
actual working days. The educated workers like the petitioners were employed to guide unskilled
workers in actual plantation work and were paid higher daily wages compared to those paid to
the unskilled workers. However, the wages conformed to the minimum wages as notified by the
Delhi Administration for different categories. To identify the educated workers from the
uneducated and unskilled workers and to facilitate payment of the wages, the educated workers
were called Supervisors/Work Assistants, etc. and others were known as laborers. At no stage
any regular posts were created under the DRDA either for the Supervisors etc. or for the laborers,
as it was not possible to do so since the schemes were financed by the Government of India, and

31
the DRDA was only the implementing machinery for the employment program under the said
schemes.

In 1988-90 the Central Government announced a new scheme for intensive employment in
backward districts where acute poverty and unemployment prevailed. In all 120 districts were
identified for the purpose and the new scheme was named "Jawaharlal Nehru RozgarYojna". The
Government of India then decided to merge Rural Employment Programme and Rural Landless
Employment Guarantee Programme as well as the Jawaharlal Nehru RozgarYojna into one rural
employment program to be known as "JawaharRozgarYojna". Under this program, the assistance
received from the Central Government as well as the State Governments/Union Territories was
required to be given to the village panchayats to increase the coverage of the program and to
ensure fuller participation of the people in its implementation.

In view of the transfer of the responsibility to implement the programme to village panchayats
from the DRDA, the latter ceased to be the machinery for employing either the Supervisors or
the unskilled labourers and for choosing the works to be implemented and for distributing the
funds, since the funds were thereafter placed by the Central Government directly in the hands of
the village panchayats. The DRDA thus ceased to be the implementing machinery w.e.f. July 31,
1989.

It is necessary for this connection to note two more facts. The DRDA, Delhi is an autonomous'
body registered as a Society under the Societies Registration Act. It is neither a department of the
Delhi Administration nor of the Central Government. It only implements policies of the Central
Government under the supervision of the Delhi Administration. It has no funds of its own. For
the implementation of the programs of employment, the Central Government always placed the
funds at its disposal and it had to spend them as per the prescribed guidelines. As stated earlier,
the employment program under JawaharRozgarYojnahas since been transferred to the
Panchayats.

On behalf of the petitioners, it was contended that DRDA was a department either of the Central
Government or of the Delhi Administration and was not an autonomous body much less was it
registered under the Societies Registration Act. In view of what is stated in paragraph 4 of the
affidavit filed by the Director, Rural Development-cum-Project Director, DRDA in May 1990,
we are of the view that the fact that DRDA is registered as a Society and is an autonomous body

32
cannot be disputed. In one of the affidavits filed by Shri Tej Pal Singh on behalf of the
petitioners, it was accepted that the DRDA was an autonomous body. However, the contention
was that it was under the Delhi Administration. The history of the registration of the DRDA as a
Society speaks for itself. In 1971, it was named as "Marginal Farmers and Agricultural
Labourers Development Agency" registered as a Society under registration No. 4940 dated 8-2-
1971. As per the by-laws of the Society, the Development Commissioner of Delhi
Administration was nominated as Chairman of the Society. Ever since then the Society continued
to function as such with the Governing body of the Society taking major policy decisions and
with the Project Officer acting as Chief Executive to run the affairs of the Society. In May 1976,
the name of the Society was changed to "Small Farmers Development Agency". The changed
name was duly communicated to the Registrar of Firms and Societies. The name underwent yet
another change in 1981 and the Society was given the present name - the "District Rural
Development Agency". This change was also duly communicated to the Registrar of Firms and
Societies. All these changes are borne out by the minutes of the meetings of the Governing body
of the Society.

It was also sought to contend on behalf of the petitioners that the DRDA continues to be the
employing agency because the tenure of the Pradhans of the village panchayats in the Delhi
region has expired and at present the administration of the Panchayats is carried on by the Block
Development Officers. We are not impressed by this contention, for the simple reason that
village panchayats continue as legal entities. The Block Development Officers are administering
the affairs of the Panchayats until fresh elections are not held. The vesting of administration of
the panchayats in the Block Development Officers during the intervening period does not change
the fact that it is the village panchayats (and at present the Block Development Officers on their
behalf), which are allotted the funds for the Rural Employment Programme under the
JawaharRozgarYojna and it is they who choose the works to be carried out and the necessary
work-force to be employed. Hence, they are the implementing agencies. The DRDA is not re-
vested with the powers of implementing the employment program.

The next important fact, which requires to be borne in mind, is that the Horticulture Department
of the Delhi Administration and the workers employed by the Delhi Administration in the said
department have nothing to do with the JawaharRozgarYojna and its predecessor schemes and
the workers employed on daily wages basis by the DRDA under the said schemes. It has become

33
necessary to stress this aspect because we notice from certain orders passed by this Court and
produced before us that a good deal of confusion between the two sets of workers has been
responsible for some of them.

The situation that emerges out of the facts, which have narrated above, however, is that the Delhi
Administration had at no stage engaged any of the present petitioners for its work. It is the
DRDA which as implementing machinery of the JawaharRozgarYojna had given to the present
petitioners work on daily wage basis under the said Yojna. The Yojna has not and cannot have
by its very nature any sanctioned strength of posts or workers. Even when the DRDA was
implementing the said Yojna they were being funded by the Central Government directly for the
purpose of giving employment under the said Yojna. They had to decide the rural works which
they would undertake in the next month and for that purpose to estimate in the last week of the
preceding month the number of workers required for the same. The works by their very nature
had to be undertaken on daily wage basis and as soon as the works at particular sites were over,
the workers were required to be shifted to other sites. The workers were engaged from the areas
concerned and those like the petitioners who were willing to go to the sites where the work was
available, were also given the employment under the scheme. Even that the Central Government
transferred responsibility of the implementation of the Yojna from the DRDA to the panchayats
directly who, as stated above, were the only agencies that could choose the works to be carried
out as well as the work force to be employed for the works? The finance was also directly given
to the panchayats for the purpose. The only task that was entrusted to the DRDA was to monitor
the working of the scheme by the panchayats. In the circumstances, by the very nature of things
neither the DRDA nor the panchayats could be asked either to ensure work to the petitioners
every day or to regularise them. There was no scope for regularization since there were no
sanctioned posts or the sanctioned strength of workers.

It further appears from the annexures to the written submissions filed by the petitioners and the
respondent-Union of India that the Central Government decided to discontinue even the
JawaharRozgarYojna in the Union Territory of Delhi w.e.f. 1.1.1992 and the Development
Commissioner-cum-Chairman, DRDA has been asked by the Government under their letter
dated 26.11.1991 addressed by the Joint Secretary, Government of India, Ministry of Rural
Development to take steps to wind up the employment program Under the said Yojna.

34
In view of the aforesaid facts reliance placed on behalf of the petitioners on the decisions of this
Court where regularisation has been directed, is misplaced and the contentions based on them are
misconceived.

Viewed in the context of the facts of the present case it is apparent that the schemes under which
the petitioners were given employment have been evolved to provide income for those who are
below the poverty line and particularly during the periods when they are without any source of
livelihood and, therefore, without any income whatsoever. The schemes were further meant for
the rural poor, for the object of the schemes was to start tackling the problem of poverty from
that end. The object was not to provide the right to work as such even to the rural poor-much less
to the unemployed in general. As has been pointed out by the Union of India in their additional
affidavit, in 1987-88, 33 percent of the total rural population was below the poverty line. This
meant about 35 million families. To eliminate poverty and to generate full employment 2500-
3000 million man-days of work in a year, was necessary. As against that, the
JawaharRozgarYojna could provide only 870 million man-days of employment on intermittent
basis in neighborhood projects. Within the available resources of Rs. 2600 crores, in all 3.10
million people alone could be provided with permanent employment if they were to be provided
work for 273 days in a year on minimum wages. However, under the scheme meant for
providing work for only 80-90 days work could be provided to 9.30 million people.

The above figures show that if the resources used for the JawaharRozgarYojna were in their
entirety to be used for providing full employment throughout the year, they would have given
employment only to a small percentage of the population in need of income, the remaining vast
majority being left with no income whatsoever. No-fault could, therefore, be found with the
limited object of the scheme given the limited resources at the disposal of the State.

It is apparent that the schemes under which the petitioners were given employment have been
evolved to provide income for those who are below the poverty link and particularly during the
periods when they are without any source of livelihood and, therefore, without any income
whatsoever. The schemes were further meant for the rural poor, for the object of the schemes
was to start tackling the problem of poverty from that end. The object was not to provide the
right to work as such even to the rural poor-much less to the unemployed in general.

35
Those employed under the scheme, therefore, could not ask for more than what the scheme
intended to give them. To get employment under such scheme and to claim on the basis of the
said employment, a right to regularisation is to frustrate the scheme itself. No court can be a
party to such exercise. It is wrong to approach, the problems of those employed under such
schemes with a view to providing them with full employment and guaranteeing equal pay for
equal work. These concepts, in the context of such schemes are both unwarranted and misplaced.
They will do more harm than good by depriving many of the little income that they may get to
keep them from starvation. They would benefit a few at the cost of the many starving poor for
whom the schemes are meant. That would also force the state to wind up the existing schemes
and forbid them from introducing the new ones, for want of resources.

This is not to say that the problems of the unemployed deserve no consideration or sympathy.
This is only to emphasize that even among the unemployed a distinction exists between those
who live below and above the poverty line, those in need of parts and those in need of full
employment, the educated and uneducated, the rural and urban unemployed, etc.

A good deal of illegal employment market has developed resulting in a new source of corruption
and frustration of those who are waiting at the Employment Exchanges for years. Not all those
who gain such back-door entry in employment are in need of particular jobs. Though already
employed elsewhere, they join the jobs for better and secured prospects. That is why most of the
cases which come to the courts are of employment in Government Departments, Public
Undertakings or Agencies. Ultimately it is the people who bear the heavy burden of the surplus-
labor. The other equally injurious effect of indiscriminate regularisation has been that many of
the agencies have stopped undertaking casual or temporary works though they are urgent and
essential for fear that if those who are employed on such works are required to be continued for
240 or more days have to be absorbed as regular employees although the works are time-bound
and there is no need of the workmen beyond the completion of the works undertaken. The public
interests are thus jeopardized on both counts.

In the circumstances, it is not possible to accede to the request of the petitioners that the
respondents be directed to regularise them. The most that can be done for them is to direct the
respondent Delhi Administration to keep them on a panel and if they are registered with the
Employment Exchange and are qualified to be appointed on the relevant posts, give them a

36
preference in employment whenever there occurs a vacancy in the regular posts, which direction
we give hereby. Dismissed the petition with no order as to costs.

(The above case law explains objective behind the beneficial schemes of the poor
people)

Express Newspapers Private Limited & Another v. Union of India & Others
AIR 1958 SC 578
The position of a journalist was thus characterised by the Commission:

"A journalist occupies a responsible position in life and has powers which he can wield for good
or evil. It is he who reflects and moulds public opinion. He has to possess a certain amount of
intellectual equipment and should have attained a certain educational standard without which it
would be impossible for him to perform his duties efficiently. His wage and his conditions of
service should therefore be such as to attract talent. He has to keep himself abreast of the
development in different fields of human activity- even in such technical subjects as law, and
medicine. This must involve constant study, contact with personalities and a general
acquaintance with world's problems."

It considered therefore that there should be a certain minimum wage paid to a journalist. The
possible impact of such a minimum wage was also considered by it and it was considered not
unlikely that the fixation of such a minimum wage may make it impossible for small papers to
continue to exist as such but it thought that if a newspaper could not afford to pay the minimum
wage to the employee which would enable him to live decently and with dignity, that newspaper

37
had no business to exist. It recommended division of localities for taking into account the
differential cost of living in different parts of India, and determining what should be the
reasonable minimum wage in respect of each area. It endorsed the concept of a minimum wage
which has been adopted by the Bank Award: -

"Though the living wage is the target, it has to be tempered, even in advanced countries, by other
considerations, particularly the general level of wages in other industries and the capacity of the
industry to pay ...... .. In India, however, the level of the national income is so low at present that
it is generally accepted that the country cannot afford to prescribe a minimum wage
corresponding to the concept of a living wage. However, a minimum wage even here must
provide not merely for the bare subsistence of living, but for the efficiency of the worker. For
this purpose, it must also provide for some measure of education, medical requirements and
amenities."

it will be appropriate at this juncture to clear the ground by considering the principles of wage
fixation and the machinery employed for the purpose in various countries Broadly speaking
wages have been classified into three categories viz., (1) the living wage, (2) the fair wage and
(3) the minimum wage.

51. The concept of the living wage:

"The concept of the living wage which has influenced the fixation of wages, statutorily or
otherwise, in all economically advanced countries is an old and well-established one, but most of
the current definitions are of recent origin. The most expressive definition of the living wage is
that of Justice Higgins of the Australian Commonwealth Court of Conciliation in the Harvester
case. He defined the living wage as one appropriate for "the normal needs of the average
employee, regarded as a human being living in a civilized community". Justice Higgins has, at
other places, explained what he meant by this cryptic pronouncement. The living wage must
provide not merely for absolute essentials such as food, shelter and clothing but for "a condition
of frugal comfort estimated by current human standards." He explained himself further by saying
that it was a wage "sufficient to insure the workmen food, shelter, clothing, frugal comfort,
provision for evil days, etc., as well as regard for the special skill of an artisan if he is one". In a
subsequent case he observed that "treating marriage as the usual fate of adult men, a wage which
does not allow of the matrimonial condition and the maintenance of about five persons in a home
would not be treated as a living wage". According to the South Australian Act of 1912, the living
38
wage means "a sum sufficient for the normal and reasonable needs of the average employee
living in a locality where work under consideration is done or is to be done." The Queensland
Industrial Conciliation and Arbitration Act provides that the basic wage paid to an adult male
employee shall not be less than is "sufficient to maintain a well-conducted employee of average
health, strength and competence and his wife and a family of three children in a fair and average
standard of comfort, having regard to the conditions of living prevailing among employees in the
calling in respect of which such basic wage is fixed, and provided that in fixing such basic wage
the earnings of the children or wife of such employee shall not be taken into account". In a
Tentative Budget Inquiry conducted in the United States of America in 1919 the Commissioner
of the Bureau of Labour Statistics analysed the budgets with reference to three concepts, viz.,

(i) the pauper and poverty level.

(ii) the minimum of subsistence level, and

(iii) the minimum of health and comfort level, and adopted the last for the determination of the
living wage. The Royal Commission of the Basic Wage for the Commonwealth of Australia
approved of this course and proceeded through norms and budget enquires to ascertain what the
minimum of health and comfort level should be.

The commission quoted with approval the description of the minimum of health and comfort
level in the following terms:

"This represents a slightly higher level than that of subsistence, providing not only for the
material needs of food, shelter, and body covering, but also for certain comforts, such as clothing
sufficient for bodily comfort, and to maintain the wearer's instinct of self-respect and decency,
some insurance against the more important misfortunes - death, disability and fire-good
education for the children, some amusement, and some expenditure for self-development."

Writing practically in the same language, the United Provinces Labour Enquiry Committee
classified levels of living standard in four categories viz.,

(i) the poverty level,

(ii) the minimum subsistence level,

39
(iii) the substance plus level, and

(iv) the comfort level,

And chose the subsistence plus level as the basis of what it called the "minimum living wage".
The Bombay Textile Labour Inquiry Committee 1937, considered the living wage standard at
considerable length and, while accepting the concept of the living wage as described above,
observed as follows:

".....What we have to attempt is not an exact measurement of a well-defined concept. Any

definition of a standard of living is necessarily descriptive rather than logical. Any minimum,
after all, is arbitrary and relative No completely objective and absolute meaning can be attached
to a term like the "living wage standard" and it has necessarily to be judged in the light of the
circumstances of the particular time and country."

The Committee then proceeded through the use of norms and standard budgets to lay down what
the basic wage should be, so that it might approximate to the living wage standard "in the light of
the circumstances of the particular time and country."

The minimum Wage-Fixing Machinery published by the I. L. O. has summarised these views as
follows.

"In different countries estimates have been made of the amount of a living wage, but the
estimates vary according to the point of view of the investigator. Estimates may be classified into
at least three groups:

(1) the amount necessary for mere subsistence,

(2) the amount necessary for health and decency, and

(3) the amount necessary to provide a standard of comfort."

It will be seen from this summary of the concepts of the living wage held in various parts of the
world that there is general agreement that the living wage should enable the male earner to

40
provide for himself and his family not merely the bare essentials of food, clothing and shelter but
a measure of frugal comfort including education for the children, protection against ill-health,
requirements of essential social needs, and a measure of insurance against the more important
misfortunes including old age."

*Report of the committee on Fair Wages (1947 to 1949). Pp. 5-7. Paras 6 and 7.
52. Article 43 of our Constitution has also adopted as one of the Directive Principles of State
Policy that:

"The State shall endeavour to secure, by suitable legislation or economic organisation or in any
other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of
work ensuring a decent standard of life and full enjoyment of leisure and social and cultural
opportunities......."

This is the ideal to which our social welfare State has to approximate in an attempt to amelorate
the living conditions of the workers

53. The concept of the minimum wage

"The International Convention of 1928 prescribes the setting up of minimum wage-fixing

machinery in industries in which "no arrangements exist for the effective regulation of wages by
collective agreement or otherwise and wages are exceptionally low"

"As a rule, though the living wage is the target, it has to be tempered, even in advanced
countries, by other considerations, particularly the general level of wages in other industries and
the capacity of industry to pay. This view has been accepted by the Bombay Textile Labour
Inquiry Committee which says that "the living wage basis affords an absolute external standard
for the determination of the minimum" and that "where a living wage criterion has been used in
the giving of an award or the fixing of a wage, the decision has always been tempered by other
considerations of a practical character."

"In India, however, the level of the national income is so low at present that it is generally
accepted. That the country cannot afford to prescribe by law a minimum wage which would
correspond to the concept of the living were as described in the preceding paragraphs. What then
41
should be the level of minimum wage which can be sustained by the present stage of the
country's economy ? Most employers and some Provincial Governments consider that the
minimum wage can at present be only a bare subsistence wage. In fact, even one important All
India organisation of employees had suggested that "a minimum wage is that wage which is
sufficient to cover the bare physical needs of a worker and his family " Many others,
however,...... consider that a minimum wage should also provide for some other essential
requirements such as a minimum of education, medical facilities and other amenities. We
consider that a minimum wage must provide not merely for the bare sustenance of life but for the
preservation of the efficiency of the worker. For this purpose, the minimum wage must also
provide for some measure of education, medical requirements, and amenities".

*Report of the Committee on Fair Wages, pp. 7-9 Paras. 8-10.

54. This is the concept of the "minimum wage" adopted by the Committee on Fair Wages. There
are however variations of that concept and a distinction has been drawn for instance in
Australian industrial terminology between the basic wage and the minimum wage.

"The basic wage there approximates to a bare minimum subsistence wage and no normal adult
male covered by an award is permitted to work a full standard hours week at less than the
assessed basic wage rate. The basic wage is expressed as the minimum at which normal adult
male unskilled workers may legally be employed, differing from the amounts fixed as legal
minima for skilled and semi-skilled workers, piece workers and casual workers respectively.......
..... The minimum wage is the lowest rate at which members of a specified grade of workers may
legally be employed".

*O. D. R. Feenander Industrials Regulation in Australia (1947) Cl. XVII p. 155.

55.There is also a distinction between a bare subsistence or minimum wage and a statutory
minimum wage. The former is a wage which would be sufficient to cover the bare physical needs
of a worker and his family, that is, a rate which has got to be paid to the workers irrespective of
the capacity of the industry to pay. If an industry is unable to pay to its workmen at least a bare
minimum wage it has no right to exist.As was observed by us in Civil Appeal No. 235 of 1956 -
Messrs. Crown Aluminium Works. v. Their Workmen, A I R 1958 S C 30 at p. 34 (B) :

42
"It is quite likely that in under-developed countries, where unemployment prevails on a very
large scale, unorganised labour may be available on starvation wages, but the employment of
labour on starvation wages cannot be encouraged or favoured in a modern democratic-welfare
state. If an employer cannot maintain his enterprise without cutting down the wages of his
employees below even a bare subsistence or minimum wage, he would have no right to conduct
his enterprise on such terms."

The statutory minimum wage however is the minimum which is prescribed by the statute and it
may be higher than the bare subsistence or minimum wage, providing for some measure of
education, medical requirements and amenities, as contemplated above.(Cf. also the connotation
of "minimum rate of wages" in S. 4 of the Minimum Wages Act XI of 1948).)

56.The concept of the fair wage :

"The payment of fair wages to labour is one of the cardinal recommendations of the Industrial
Truce Resolution.....Marshall would consider the rate of wages prevailing in an occupation as
"fair" if it is "about on level with the average payment for tasks in other trades which are of equal
difficulty and disagreeableness, which require equally rare natural abilities and an equally
expensive training" Prof. Pigou would apply two degrees of fairness in judging a wage rate, viz.,
"fair in the narrower sense" and "fair in the wider sense." A wage rate, in his opinion; is "fair in
narrower sense" when it is equal to the rate current for similar workmen in the same trade and
neighbourhood and "fair in the wider sense" when it is equal to the predominant rate for similar
work throughout the country and in the generality of trades."

"The Indian National Trade Union Congress......is of the opinion that the wage fixed by
collective agreements, arbitrators, and adjudicators could at least be treated, like the minimum
wage, as the starting point and that wherever the capacity of an industry to pay a higher wage is
established, such a higher wage should be deemed to be the fair wage. The minimum wage
should have no regard to the capacity of an industry to pay and should be based solely on the
requirements of the worker and his family. "A fair wages" is, in the opinion of the Indian
National Trade Union Congress, "a step towards the progressive realization of a living wage."
Several employers while they are inclined to the view that fair wages would, in the initial stages,
be closely related to current wages, are prepared to agree that the prevailing rates could suitably
be enhanced according to the capacity of an Industry to pay and that the fair wage would in time

43
progressively approach the living wage. It is necessary to quote one other opinion, viz., that of
the Government of Bombay, which has had considerable experience in the matter of wage
regulation.

The opinion of that Government is as follows:

"Nothing short of a living wage can be a fair wage if under competitive conditions an industry
can be shown to be capable of paying a full living wage. The minimum wage standards set up the

irreducible level, the lowest limit or the floor below which no workers shall be paid.......A fair
wage is settled above the minimum wage and goes through the process of approximating towards
a living wage."

While the lower limit of the fair wage must obviously be the minimum wage, the upper limit is
equally set by what may broadly be called the capacity of industry to pay. This will depend not
only on the present economic position of the industry but on its future prospects. Between these
two limits the actual wages will depend on a consideration of the following factors and in the
light of the comments given below:

(i) the productivity of labour;

(ii) the prevailing rates of wages in the same or similar occupations in the same or neighbouring
localities;
(iii) the level of the national income and its distribution; and

(iv) the place of the industry in the economy of the country."

*Report of the 'Committee on Fair Wages, pp. 4, 9-11. Paras 11-15.

57. It will be noticed that the "fair wage" is thus a mean between the living wage and the
minimum wage and even the minimum wage contemplated above is something more than the
bare minimum or subsistence wage which would be sufficient to cover the bare physical needs of
the worker and his family, a wage which would provide also for the preservation of the
efficiency of the worker and for some measure of education, medical requirements and
amenities.

44
58. This concept of minimum wage is in harmony with the advance of thought in all civilised
countries and approximates to the statutory minimum wage which the State should strive to
achieve having regard to the Directive Principles of State Policy mentioned above.

59. The enactment of the Minimum Wages Act, 1948 (XI of 1948) affords an illustration of an
attempt to provide a statutory minimum wage. It was an Act to provide for fixing minimum rates
of wages in certain employments and the appropriate Government was thereby empowered to fix
different minimum rates of wages for

(i) different scheduled employments; (ii) different classes of work in the same scheduled
employment; (ii) adults, adolescents, children and apprentices, and (iv) different localities; and
(b) such minimum rates of wages could be fixed by the hour, by the day or by any larger period
as may be prescribed.

60. It will also be noticed that the content of the expressions "minimum wage" "fair wage" and
"living wage" is not fixed and static. It varies and is bound to vary from time to time. With the
growth and development of national economy, living standards would improve and so would our
notions about the respective categories of wages expand and be more progressive.

61. It must however be remembered that whereas the bare minimum or subsistence wage would
have to be fixed irrespective of the capacity of the industry to pay, the minimum wage thus
contemplated postulates the capacity of the industry to pay and no fixation of wages which
ignores this essential factor of the capacity of the industry to pay could ever be supported

Chameli Singh v. State of U.P.

AIR 1996 SC 1051.

It is settled law that the opinion of urgency formed by the appropriate Government to take
immediate possession, is a subjective conclusion based on the material before it and it is entitled
to great weight unless it is vitiated by mala fides or colourable exercise of power. Article 25(1)
of the Universal Declaration of Human Rights declares that "everyone has the right to a standard

45
of living adequate for the health and well-being of himself and his family including food,
clothing, housing, medical care and necessary social services". Article 11(1) of the International
Covenant on Economic, Social and Cultural Rights, 1966 laid down that State parties to the
Covenant recognise "the right to everyone to an adequate standard of living for himself and his
family including food, clothing, housing and to the continuous improvement of living
conditions". The State parties will take appropriate steps to ensure realisation of this right.

In any organised society, right to live as a human being is not ensured by meeting only the
animal needs of man. It is secured only when he is assured of all facilities to develop himself and
is freed from restrictions which inhibit his growth. All human rights are designed to achieve this
object. Right to live guaranteed in any civilised society implies the right to food, water, decent
environment, education, medical care and shelter. These are basic human rights known to any
civilised society. All civil, political, social and cultural rights enshrined in the Universal
Declaration of Human Rights and Convention or under the Constitution of India cannot be
exercised without these basic human rights. Shelter for a human being, therefore, is not a mere
protection of his life and limb. It is home where he has opportunities to grow physically,
mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space,
safe and decent structure, clean and decent surroundings, sufficient light, pure air and water,
electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his
daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one's
head but right to all the infrastructure necessary to enable them to live and develop as a human
being. Right to shelter when used as an essential requisite to the right to live should be deemed to
have been guaranteed as a fundamental right. As is enjoined in the Directive Principles, the State
should be deemed to be under at obligation to secure it for its citizens, of course subject to its
economic budgeting. In a democratic society as a member of the organised civic community one
should have permanent shelter so as to physically, mentally and intellectually equip oneself to
improve his excellence as a useful citizen as enjoined in the Fundamental Duties and to be a
useful citizen and equal participant in democracy. The ultimate object of making a man equipped
with a right to dignity of person and equality of status is to enable him to develop himself into a
cultured being. Want of decent residence, therefore, frustrates the very object of the
constitutional animation of right to equality, economic justice, fundamental right to residence,
dignity of person and right to live itself. To bring the Dalits and Tribes into the mainstream of

46
national life, providing these facilities and opportunities to them is the duty of the State as
fundamental to their basic human and constitutional rights

STATE OF ANDHRA PRADESH AND ORS. v. P. SAGAR

AIR 1968 SC 1379

BENCH:

G.K. Mitter, J.C. Shah and V. Ramaswami, JJ.

The State of Andhra Pradesh is divided into two areas - Telangana and Andhra areas. In the
Telangana area there are two Medical Colleges having in the aggregate 270 seats for entrants to
the medical degree course. In Andhra area there are four Medical Colleges having in the
aggregate 550 seats for new entrants. In admitting candidates for the medical degree course by
Government orders Nos. 1135 & 1136 Health, Housing and Municipal Administration
Department dated June 16, 1966, seats were reserved for Central Government nominees, for
N.C.C., A.C.C., President's Scouts & Guides, for candidates with sports and extracurricular
proficiency, for children of ex-Service army personnel, for children of displaced goldsmiths, for
candidates from Scheduled Castes and Tribes, for women candidates, for candidates appearing
from H.S.C. Multipurpose I.S.C. & P.U.C. Examinations, and for candidates who had secured
the M.Sc. & B.Sc. degrees. By Government order No. 1880 dated July 29, 1966, twenty per cent
of the total number of seats were reserved for backward classes in each area, and pursuant
thereto the Telangana Rules were amended by G.O.M.S. No. 1784-Health and the Andhra Rules
were amended by G.O.M.S. No. 1783-Health dated August 2, 1966. The validity of the
Government orders Nos. 1135 & 1136 was challenged on the ground that they infringed the
fundamental freedoms guaranteed under Arts. 15(4), 16(4) and 29(2) of the Constitution. The
High Court held that in reserving seats for nominees of the Central Government and from other
States, for cultural scholars, for women, for graduates and for students from H.S.C. & P.U.C.
Courses, no fundamental rights were infringed, but the reservation for members of the backward
classes described in the list prepared by the Government of Andhra Pradesh were invalid.
By Art. 15 of the Constitution, as originally enacted, it was provided that:-

47
"(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste,
sex, place of birth or any of them.
(2) . . . .
(3) Nothing in this article shall prevent the State from making any special provisions for women
and children."
Article 29(2) provided that:
"No citizen shall be denied admission into any educational institution maintained by the State or
receiving aid out of State funds on grounds only of religion, race, caste, language or any of
them."
By Art. 46, which occurs in Ch. IV relating to Directive Principles of State Policy, the State was
enjoined to promote the educational and economic interest of the weaker sections of the people,
but Arts. 15 and 29 as originally framed prohibited the making of any discrimination against any
citizen on grounds only of the religion, race, caste, sex, place of birth or any of them.

On February 3, 1964, the previous order issued by the State of Andhra Pradesh was cancelled.
Thereafter it is claimed by the State of Andhra Pradesh that it took steps to prepare a fresh list of
backward classes consistently with the provisions of the Constitution. The Chief Secretary of the
Government of Andhra Pradesh has sworn in his affidavit that the Council of Ministers
appointed a Sub-Committee to draw up a list of backward classes, inter alia, for the purpose of
admission of students to professional Colleges. The Committee invited the Law Secretary and
the Director of Social Welfare to attend the meetings of the Sub-Committee, and letters were
written to the other States calling for information about the criteria adopted by those States for
determining backward classes for purposes of Arts. 15(4) and 16(4) of the Constitution, that after
considering the replies received from the Chief Secretaries of the various States it was resolved
that the existing list of backward classes pertaining to Andhra and Telangana areas he scrutinized
with a view to selecting from that list those castes or communities which are "considered
backward on account of the low standard of living, education, poverty, places of habitation,
inferiority of occupations followed etc."; that at another meeting it was resolved that the list of
146 backward communities prepared by the Director be re-arranged in "the order of priority in
consultation with the Law Secretary, taking into consideration the criteria given by Law
Secretary in his note to the Cabinet Sub-Committee and that in doing so such of the criteria as
capable of being practically possible for consideration may be taken into account", and

48
accordingly the Law Secretary and the director of Social Welfare considered the representations
made by certain communities to the Government from time to time and "drew up a list of the
order of priority as called for by the Cabinet Sub-Committee", that thereafter the Cabinet Sub-
Committee made its recommendations which were considered by the Council of Ministers on
July 4, 1966, and that the Council of Ministers considered the social, educational and economic
conditions of the backward classes named in the lists submitted to them, and dealt with each
individual class and deleted certain items or classes in the lists, changed the denomination of
certain classes "for the more precise effectuation of concessions to those classes only who really
need them", and consolidated the backward classes into one list, ruling out the priorities
suggested by the Director of Social Welfare in accordance with the opinion of the Cabinet Sub-
Committee, and thereafter published resolution No. G.O. 1880 pursuant to which the rules were
amended reserving 20% of the seats for the backward classes mentioned in the list prepared by
the Cabinet of the State.

The list prepared on the basis of reservations for socially and educationally backward classes is
indisputably a list community wise. On behalf of the petitioners it was contended in the High
Court that the Government of Andhra Pradesh had adopted the same list of backward classes
which was struck down by the High Court in P. Sukhadev's case (1966) 1 And W.R. 294. With
some slight modifications and the new list also having made a reservation in favour of castes and
not classes, it infringed the guarantee under Art. 15(1). On behalf of the State it was urged that
caste is one of the relevant tests in determining backwardness, and cannot be ignored in
determining the socially and educationally backward classes: if a group has been classified as
backward on other relevant considerations, the classification is not liable to be challenged as
invalid on the ground that for the purpose of classifying, the designation of caste is given

In the context in which it occurs the expression "class" means a homogeneous section of the
people grouped together because of certain likenesses or common traits and who are identifiable
by some common attributes such as status, rank, occupation, residence in a locality, race, religion
and the like. In determining whether a particular section forms a class, caste cannot be excluded
altogether. But in the determination of a class a test solely based upon the caste or community
cannot also be accepted.

49
By cl. (1) Art. 15 prohibits the State from discriminating against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them. By cl. (3) of Art. 15 the State is,
notwithstanding the provision contained in cl. (1), permitted to make special provision for
women and children. By cl. (4) a special provision for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes is
outside the purview of cl. (1). But cl. (4) is an exception to cl. (1). Being an exception, it cannot
be extended so as in effect to destroy the guarantee of cl. (1). The Parliament has by enacting cl.
(4) attempted to balance as against the right of equality of citizens the special necessities of the
weaker sections of the people by allowing a provision to be made for their advancement. In order
that effect may be given to cl. (4), it must appear that the beneficiaries of the special provision
are classes which are backward socially and educationally and they are other that the Scheduled
Castes and Scheduled Tribes, and that the provision made is for their advancement. Reservation
may be adopted to advance the interests of weaker sections of society, but in doing so, care must
be taken to see that deserving and qualified candidates are not excluded from admission to higher
educational institutions. The criterion for determining the backwardness must not be based solely
on religion, race, caste, sex, or place of birth, and the backwardness being social and educational
must be similar to the backwardness from which the Scheduled Castes and the Scheduled Tribes
suffer.

It is true that in the present cases the list of socially and educationally backward classes has been
specified by caste. But that does not necessarily mean that caste was the sole consideration and
that persons belonging to these castes are also not a class of socially and educationally backward
citizens.

It was urged before the High Court that expert knowledge of the Director of Social
Welfare and of the Law Secretary was brought to bear upon the consideration of the
relevant materials in the preparation of the list and they were satisfied that the correct
tests were applied in the determination of backward classes and on that account the list
should be accepted by the High Court.

"..... the impugned backward classes list cannot be and has not sustained by the
Government as coming within the exception provided in Art. 15(4) on any material

50
placed before this Court. In fact, there is a total absence of any material, from which we
can say that the Government applied the criteria enunciated by their Lordships of the
Supreme Court in the above referred cases, in preparing the list of backward classes. We
cannot accept the contention of the learned Advocate General that "once there is proof
that the Government bona fide considered the matter it is sufficient". Acceptance of this
argument would make for arbitrariness, absolving the party on whom the burden of proof
to bring it within the exception rests, from proving it. The mere fact that the act is bona
fide and that there was total absence of mala fides, is not relevant."

Article 15 guarantees by the first clause a fundamental right of far-reaching importance to

the public generally. Within certain defined limits an exception has been engrafted upon
the guarantee of the freedom in cl. (1), but being in the nature of an exception, the
conditions which justify departure must be strictly shown to exist. When a dispute is
raised before a Court that a particular law, which is inconsistent with the guarantee
against discrimination, is valid on the plea that it is permitted under cl. (4) of Art. 15, the
assertion by the State that the officers of the State had taken into consideration the criteria
which had been adopted by the Courts for determining who the socially and educationally
backward classes of the Society are, or that the authorities had acted in good faith in
determining the socially and educationally backward classes of citizens, would not be
sufficient to sustain the validity of the claim.The Courts of the country are invested with
the power to determine the validity of the law which infringes the fundamental rights of
citizens and others and when a question arise whether a law which prima facie infringes a
guaranteed fundamental right is within an exception, the validity of that law has to be
determined by the Courts on materials placed before them. By merely asserting that the
law was made after full consideration of the relevant evidence and criteria which have a
bearing thereon, and was within the exception, the jurisdiction of the Courts to determine
whether by making the law a fundamental right has been infringed is not excluded.

The court has explained the expression "class" means a homogeneous section of the
people grouped together because of certain likenesses or common traits and who are
identifiable by some common attributes such as status, rank, and occupation, residence in
a locality, race, religion and the like. In determining whether a particular section forms a

51
 class, caste cannot be excluded altogether. But in the determination of a class a test solely
based upon the caste or community cannot also be accepted

Honesty of purpose of those who prepared and published the list was not and is not
challenged, but the validity of a law which apparently infringes the fundamental rights of
citizens cannot be upheld merely because the law-maker was satisfied that what he did
was right or that he believes that he acted in manner consistent with the constitutional
guarantees of the citizen.The test of the validity of a law alleged to infringe the
fundamental rights of a citizen or any act done in execution of that law lies not in the
belief of the maker of the law or of the person executing the law, but in the demonstration
by evidence and argument before the Courts that the guaranteed right is not infringed.The
appeal therefore fails and is dismissed.
(The above case law explains class and caste concept)

In Re: Ambalathil Assainar

AIR 1956 MAD 97

Bench:
E. E. Mack, W. S. Krishnaswami Nayudu
The accused and his wife used to quarrel mainly because the former did not bring home anything
for food. A few days before the murder, on Perunal day, there was a quarrel between the husband
and wife. When he enquired, Pathu complained that the accused did not bring anything for food
even on Perunal day and that after quarrelling the accused beat her.
The facts of this case are very tragic, the murder being founded really on desperate poverty, the
evidence showing no unchastity or even any suspicion of it on the part of this wife. The body
was found on the bench of an aided elementary school in Badagara at 7 a.m. the following
morning by a schoolteacher, P.W. 1, with ghastly wounds on her neck which have been proved
to have been caused by a small pen knife. The accused was arrested and has been found guilty
under S. 302, Indian Penal Code, 1860 for the murder of his wife.

The accused was arrested on 26-8-1954 on the road near Badagara railway station. He had in his
possession a pen knife and a dhoti on which, however, no human bloodstains were found. On 4-
9-1954 he made a confession before a Magistrate which have been voluntarily made in which
he confessed to killing his wife, under extraordinary circumstances pleading that he did so with
52
her consent. The offence is not murder under exception 5 to S. 300, Indian Penal Code, 1860 and
that Pathu suffered death in this ease with her own consent.
The learned Sessions Judge quite rightly rejected this plea on the ground that such consent must
be given unconditionally and without any reservation. Accused found guilty under S. 302 IPC for
the murder of his wife. High Court held, the learned Sessions Judge, on the facts of this case has
quite rightly declined to apply exception 5 to section 300 facts. The case is undoubtedly a
pathetic and a tragic one. In the matter of sentence, we can only leave it to the Government to
commute the sentence in this case, and we cannot lay down law out of charitable consideration
which undoubtedly weighed with three of the assessors who rather extraordinarily held on the
cogent evidence in this case that the accused was not guilty of any offence. The appeal is
dismissed.

BHAGWANDASS&ANR. v. PUNJAB STATE ELECTRICITY BOARD

AIR 2008 SC 990

BENCH:
AftabAlam, G.P. Mathur

Appellant No.1 joined the respondent Board on July 19, 1977, on ad-hoc/work-charged basis.
His services were regularized as an Assistant Lineman on June 16, 1981. While in service he
became totally blind on January 17, 1994 and a certificate to that effect was issued by the civil
surgeon, Faridkot.
Here, it may be noted that the rights of an employee who acquires a disability during his service
are protected and safeguarded by S. 47 of the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995. S. 47 reads as follows:
"47. Non-discrimination in Government employments
(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a
disability during his service: Provided that, if an employee, after acquiring disability is not
suitable for the post he was holding, could be shifted to some other post with the same pay scale
and service benefits : Provided further that if it is not possible to adjust the employee against any
post, he may be kept on a supernumerary post until a suitable post is available or he attains the
age of superannuation, whichever is earlier.

53
(2). No promotion shall be denied to a person merely on the ground of his disability. Provided
that the appropriate Government may, having regard to the type of work carried on in any
establishment, by notification and subject to such conditions, if any, as may be specified in such
notification, exempt any establishment from the provisions of this section"

The very frame and contents of S. 47 clearly indicate its mandatory nature. The very opening
part of the section reads "no establishment shall dispense with, or reduce in rank, an employee
who acquires a disability during his service". The section further provides that if an employee
after acquiring disability is not suitable for the post he was holding, could be shifted to some
other post with the same pay scale and service benefits; if it is not possible to adjust the
employee against any post he will be kept on a supernumerary post until a suitable post is
available or he attains the age of superannuation, whichever is earlier. Added to this no
promotion shall be denied to a person merely on the ground of his disability as is evident from
sub-s. (2) of S. 47. S. 47 contain a clear directive that the employee shall not dispense with or
reduce in rank an employee who acquires a disability during the service. In construing a
provision of a social beneficial enactment that too dealing with disabled persons intended to give
them equal opportunities, protection of rights and full participation, the view that advances the
object of the Act and serves its purpose must be preferred to the one which obstructs the object
and paralyses the purpose of the Act. Language of S. 47 is plain and certain casting statutory
obligation on the employer to protect an employee acquiring disability during service. "

After the Act came into force with effect from December 7, 1996 (vide S.O.107(E) dated 7th
February, 1996), the Government of Punjab, Department of Personnel and Administrative
Reforms, issued a letter dated September 24, 1996 directing all the heads of departments to
comply with S. 47 of the Act. The Punjab State Electricity Board too adopted the Government
letter under its Circular No.6/97, dated February 17, 1997.
In view of S. 47 of the Act and the Circulars issued by the State Government and the Board it is
clear that notwithstanding the disability acquired by the appellant the Board was legally bound to
continue him in service. But on behalf of the respondent it is stated that the disabled employee
himself wanted to retire from service and, therefore, the provisions of S. 47 had no application to
his case. Here it needs to be made clear that at no stage any plea was raised that since the
appellant was declared completely blind on January 17, 1994 he was not covered by the

54
provisions of the Act that come into force on February 7, 1996. Such plea cannot be raised
because on February 7, 1996 when the Act came into force the appellant was undeniably in
service and his contract of employment with the Board was subsisting. His case was, therefore,
squarely covered by the provisions of the Act.
Coming now to the reason assigned by the Board to deny him the protection of S. 47 of the Act,
it is stated on behalf of the respondents that he remained absent from duty without any
sanctioned leave from January 18, 1994 to March 21, 1997. He was directed by the Executive
Engineer to resume duties vide Memo No.412, dated March 16, 1994 and Memo No.6411, dated
August 4, 1994. He, however, failed to report for duty and on September 13, 1994, a charge
sheet was issued initiating disciplinary proceedings against him for gross misconduct under
regulation 8 of the Punjab State Electricity Board Employees Punishment & Appeal Regulation
1971.

The matter appears to have lain dormant for some time and then it is stated that the appellant by
his letter dated July 17, 1996 requested the Board to retire him from service. As a matter of fact
by this letter the appellant sought to explain his absence from duty and requested that his wife
might be employed in his place. But it was made the basis for denying the appellant his lawful
dues. Since the whole case of the respondents is based on this letter, it would be appropriate to
reproduce it in full:
"Sir,
I explain as under the subject cited unnatural happening, which I met, when I was returning
home after performing my duty on 17-1-94 then vision of my eyes lessened suddenly. I got
treatment from far and near for eye-sight/lessening of vision of my eyes.But I became
completely blind. Now I cannot perform my hard work duty. I want to retire from service. I may
be retired and my wife may be provided with suitable job against me. You will be genesis to me.
"

At this stage some internal correspondences took place between the officers of the Board over
the question how to deal with the appellant. On July 10, 1997, the Senior Executive Engineer
(OP) Division, Malout wrote to the Deputy Chief Engineer, Operation Circle, Muktsar, asking
for instructions in the matter. Paragraphs 2, 3 and 4 of the letter are relevant and are
reproducedbelow:

55
"2) As per report of Medical Board the official is unfit for duty, he cannot perform any duty.
3) But as per instructions contained in Punjab Government Memo No.17/16/94-5 PP-1/6546
adopted by PSEB vide its Circular No.6/97 the official/officer it not to be retired from service
who become disable during service.
4) The official has represented that he may be retired from duty and his wife be provided with
suitable job. "
The Senior Executive Engineer received the reply from the Secretary of the Board vide letter
dated February 17, 1998 in which he was advised as follows:
"It is advisable to retire the official as per rules and regulations of the Board if the employee is
not otherwise interested in taking the benefit of Boards Circular No.6/97. For the purpose of
clarification as to whether employee is entitled to the benefits, otherwise admissible under
rules/regulations of the Board in preference to Benefits admissible under Circular No.6/97, if he
so desires, can be obtained from the Office concerned which issued said circular. "
Later on, the charge-sheet issued against the appellant was withdrawn by the Senior Executive
Engineer vide Office Order No.14, dated January 13, 1999 and the appellant was asked to submit
leave application for the period of absence. Next in series is a letter, dated November 15, 1999,
from the Director/IR, PSEB, Patiala to the Senior Executive Engineer, (OP) Division, Malout. In
this letter, it was stated as follows:
"As per cited subject it is made clear that employee who is blind shall not be retired as per
instructions of the Board. But is such employee himself make request for retirement then he can
be given retirement on medical ground. "
Finally, the Senior Executive Engineer, issued Office Order No.559, dated December 14, 1999,
by which the appellant was relieved from service with effect from March 21, 1997 (the date of
issuance of Medical Certificate) as per Rule 5.11 of Civil Services Rules-Vol.II.
It appears that the appellant protested against the Action of the Board in relieving him from
service and made representations. The representations, it seems, were forwarded to the superior
authorities and the Board’s decision was communicated to the Senior Executive Engineer vide
letter dated February 18, 2000 from the Director/IR, PSEB, Patiala. The contents of the letter are
as follows:
"With regard to cited subject it is made clear that there are instructions of the Board on which
blind employee is not liable to be retired. But in the case of Shri BhagwanDass ALM advice of

56
retirement was given as he himself made request for his retirement on Medical Ground. So the
case of this employee is not likely considered for his rejoining of duty. "
In the affidavit he pathetically pleaded that he had no knowledge about the Rules of the
Electricity Board and represented for retirement unknowingly. He further stated that when he
came to know that there was no need for retirement for those who were disabled during service
he again represented that he might not be retired and might be retained in service as per the
instructions of the department. The affidavit did not evoke any response but the severance was
completed by making payment of his terminal dues.

From the materials brought before the court by none other than the respondent-Board it is
manifest that notwithstanding the clear and definite legislative mandate some officers of the
Board took the view that it was not right to continue a blind, useless man on the Boards rolls and
to pay him monthly salary in return of no service. They accordingly persuaded each other that
the appellant had himself asked for retirement from service and, therefore, he was not entitled to
the protection of the Act. The only material on the basis of which the officers of the Board took
the stand that the appellant had himself made a request for retirement on medical grounds was
his letter dated July 17, 1996. The letter was written when a charge sheet was issued to him and
in the letter he was trying to explain his absence from duty. In this letter he requested to be
retired but at the same time asked that his wife should be given a suitable job in his place. In our
view it is impossible to read that letter as a voluntary offer for retirement.
Appellant No.1 was a Class IV employee, a Lineman. He completely lost his vision. He was not
aware of any protection that the law afforded him and apparently believed that the blindness
would cause him to lose his job, the source of livelihood of his family. The enormous mental
pressure under which he would have been at that time is not difficult to imagine. In those
circumstances it was the duty of the superior officers to explain to him the correct legal position
and to tell him about his legal rights. Instead of doing that they threw him out of service by
picking up a sentence from his letter, completely out of context. The Action of the concerned
officers of the Board, to our mind, was depreciable.
We understand that the concerned officers were acting in what they believed to be the best
interests of the Board. Still under the old mind-set it would appear to them just not right that the
Board should spend good money on someone who was no longer of any use. But they were quite
wrong, seen from any angle. From the narrow point of view the officers were duty bound to

57
follow the law and it was not open to them to allow their bias to defeat the lawful rights of the
disabled employee. From the larger point of view the officers failed to realize that the disabled
too are equal citizens of the country and have as much share in its resources as any other citizen.
The denial of their rights would not only be unjust and unfair to them and their families but
would create larger and graver problems for the society at large. What the law permits to them is
no charity or largess but their right as equal citizens of the country.

This case highlights the highly insensitive and apathetic attitude harboured by some of us, living
a normal healthy life, towards those unfortunate fellowmen who fell victim to some
incapacitating disability. The facts of the case reveal that officers of the Punjab State Electricity
Board were quite aware of the statutory rights of appellant No.1 and their corresponding
obligation yet they denied him his lawful dues by means that can only be called disingenuous.

In light of the discussions made above, the Action of the Board in terminating the service of the
disabled employee (appellant No.1) with effect from March 21, 1997 must be held to be bad and
illegal. In view of the provisions of S. 47 of the Act, the appellant must be deemed to be in
service and he would be entitled to all service benefits including annual increments and
promotions etc. till the date of his retirement. The amount of terminal benefits paid to him should
be adjusted against the amount of his salary from March 22, 1997 till date. If any balance
remains, that should be adjusted in easy monthly installments from his future salary. The
appellant shall continue in service till his date of superannuation according to the service records.
He should be reinstated and all due payments, after adjustments as directed, should be made to
him within six weeks from the date of presentation of a copy of the judgment before the
Secretary of the Board. In the result the appeal is allowed with costs quantified at Rs.5, 000/-.

(The above case law explains the concept of disability and their rights)

58
 P. G. Gupta v. State of Gujarat

1995 (2) SCC 182

Bench of three Judges of this Court considering the mandate of human right to shelter read it
into Article 19(1)(e) and Article 21 of the Constitution of India to guarantee right to residence
and settlement. Protection of life guaranteed by Article 21 encompasses within its ambit the right
to shelter to enjoy the meaningful right to life. The Preamble to the Indian Constitution assures to
every citizen social and economic justice and equity of status and of opportunity and dignity of
person so as to fasten fraternity among all sections of society in an integrated Bharat. Article
39(b) enjoins the State that ownership and control of the material resources of the community are
so distributed as to promote welfare of the people by securing social and economic justice to the
weaker sections of the society to minimise inequality in income and endeavour to eliminate
inequality in status. Article 46 enjoins the state to promote with special care social, economic
and educational interests of the weaker sections of the society, in particular, Scheduled Castes
and Scheduled Tribes. Right to social and economic justice conjointly commingles with right to
shelter as an inseparable component for meaningful right to life. It was therefore, held that right
to residence and settlement is a fundamental right under Article 19(1)(e) and it is a facet of
inseparable meaningful right to life under Article 21. Food, shelter and clothing are minimal
human rights. The State has undertaken as its economic policy planned development of massive
housing schemes. The right to allotment of houses constructed by the Housing Board to the
weaker sections, lower income group people under Lower Income Group Scheme was held to be
a constitutional strategy, an economic programme undertaken by the State and that the weaker
sections are entitled to allotment as per the scheme

PRAJWALA v. UNION OF INDIA

(2005) 12 SCC 136

BENCH:

K.G. Balakrishnan, P. Sathasivam, J.M. Panchal

India is rife with trafficking and exploitation, particularly of women and children, which
involves prostitution, pornography and sex-tourism. Traffickers often target women and children
living in poverty, as they are vulnerable to exploitation. Of the millions of women and children
trafficked annually, approximately 25 percent are children. The volume of trafficking in recent
59
years has increased tremendously accompanied by a steady decrease in the average age of
victims. Today, it is not unusual to find children as young as nine years being trafficked for
sexual exploitation.
The Immoral Traffic (Prevention) Act, 1956, allowed authorities to conduct raids on red light
districts and arrest women working there. After paying a hefty fine, they were released into the
same conditions where they were susceptible to the same people who had exploited them
previously. No provision was made for their rehabilitation and protection. In 1996, authorities
began a set of raids on red light areas in Mumbai in an attempt to combat trafficking and sexual
exploitation. These raids still continue. While such raids are meant to curb trafficking and rescue,
rehabilitate and restore victims, they have largely failed in their objective due to the
government’s inability to offer any meaningful support and protection to victims rescued from
commercial sexual exploitation. Thus, three-quarters of the women rescued return to the sex
industry within a year, either voluntarily or by coercion from former employers. This is because
brothel owners, pimps and traffickers have easy access to victims once they have been ‘rescued
and placed in places of protection.
Victims may resist rescue because of their fear or mistrust of police officials who often treat
them harshly and have been known to collude with brothel owners and pimps. Conditions in
protection homes for women and children are inadequate. Strict rules and regulations make them
feel imprisoned again and there is a severe lack of much-needed medical and mental health
services. There is little or no follow up.
The ITPA, 1956, contains provisions for special courts to be set up by the state and the central
governments and for summary trials to be directed by the state governments to ensure speedy
disposal of trafficking offences. To date, none of these provisions havebeen enacted either by the
states or the central governments. This makes the trial process in a trafficking case needlessly
lengthy resulting in low conviction rates. The Committee on Prostitution, Child Prostitutes and
Children of Prostitutes and the Plan of Action to combat Trafficking and Commercial Sexual
Exploitation of Women and Children, Government of India Report, 1998, 8 and the Kamat
Committee of the National Commission for Women report in 2000 made recommendations
regarding the rehabilitation of women and children, which were vague and have not been fully
implemented. In 2003, the Government of Andhra Pradesh created a detailed policy to combat
trafficking of women and children for commercial sexual purposes

60
The petitioner is calling for a ‘victim protection protocol’ with detailed national guidelines with
regard to the pre-rescue, rescue and post-rescue stages involved in the rehabilitation of women
and children trafficked for commercial sexual exploitation. A favorable decision by the Supreme
Court will be a big step in addressing a legislative gap in efforts to eliminate trafficking on a
national level. Thereby saving many women and children from a life of sexual servitude by
providing them with the protection, assistance and skills they need to start a new life.
HRLN on behalf of Prajwala, an anti-trafficking organisation, files a PIL in the Supreme Court
petitioning the Government to create a ‘victim protection protocol’ so as to protect the rights of
victims of trafficking.
Existing laws do not protect the welfare of women and children who have been rescued from
trafficking and sexual exploitation. Thus, Prajwala invoked Article 32 of the Constitution to file
a Public Interest Litigation to force the Government to create a protocol for the rehabilitation of
women and children who have been the victims of trafficking.
Absence of basic needs for rescued victims in the protective homes and treating a victim as
criminal shows the law enforcement authorities had failed to heed to the instruction of the
Supreme Court in various landmark judgments to treat the trafficked persons as victims and not
as criminals. The court has imposed a duty on the state to take necessary steps to rehabilitate
them and provide them with the necessary medical aid, legal assistance and training them to be
self-satisfied with the financial aspects. The present scenario of the victims clearly shows that
there are all possibilities that victims will be re-trafficked and the efforts of the Supreme Court in
passing suitable directions to the states after spending a huge amount on investigation and
reporting on the rescue, rehabilitation of the victims will be futile.

(The above case law explains the schemes for the welfare of the women)

Kurra Subba Rao v. Distt. Collector

[ 1984 (3) APLJ 249]

Andhra Pradesh High Court considering the obligation of the State to provide shelter to the
weaker sections of the society by acquiring lands for public purpose and distribution thereof had
held that in all stages of social development a man must have some property or capacity for

61
acquiring property. There could be not individual liberty without a minimum of property. People
who cannot buy bread cannot follow the suggestion that they can eat cake. People bowed under
the weight of poverty are unlikely to stand up for their constitutional rights. Welfare State exists
not only to enable the people to eke out their livelihood but also to make it possible for them to
lead a good life. State strives to provide facilities and opportunities to them to improve
excellence transcending all sections with diversities in the society so as to enable them to lead a
good life assuring dignity of person under legal order. Equality of opportunity is not simply a
matter of legal equality. Its existence depends not merely on the absence of disabilities but on the
presence of abilities. Liberty is freedom and justice is equality which are the bedrock of modern
democracy. The challenge of social justice is the challenge for equal opportunity not in form but
in substance and the challenge of social justice a constitutional mandate has to be accepted and
answered on the basis of day-to-day experience of the performance of law, articulating diverse
provisions of he Constitution, while meeting the challenging situation in the society. The
Directive Principles are beacon light leading to reach the ultimate goal of economic equality and
social justice to all. It accordingly had uphold the power of the State Government invoking
urgency clause under Section 17(4) of the Act when the State discharged its constitutional
mandate to provide shelter to the proof

10. The need to provide right to shelter is not peculiar to India alone but is a global problem
being faced by all the developing and developed nations. In 1980 the United Nations General
Assembly in its Resolution No. 35/76 expressed the view that an international year devoted to
the problems of homeless people in urban and rural areas of the developing countries could be an
appropriate occasion to focus attention of the international community on those problems. In
Resolution No. 37/221 of 1987 the International Year of Shelter for the Homeless was adopted
and request was made to member States to sustain the momentum generated during the
programme of the year and to continue implementing concrete and innovative activities aimed at
improving the shelter and neighbourhoods of the poor and the disadvantaged and requested the
Secretary-General of the UNO to keep it informed periodically of the progress achieved. At the
close of the international year the General Assembly received and noted in Resolution No.
42/191 the reports of the executive director of the U. N. Centre for Human Settlement entitled
"Shelter and services for the poor - a call to action". It recognised that adequate and secure
shelter is a basic human right and is vital for the fulfillment of human aspirations and that a

62
squalid residential environment is a constant threat to health and to life itself, thereby
constituting a drain on human resources, a nation's most valuable asset. The General Assembly
expressed deep concern about the existing situation in which, in spite of efforts of Government at
the national and local levels and of international organisations, more than one billion people find
themselves either completely without shelter or living in homes unfit for human habitation; and
that owing to prevailing demographic trends, the already formidable problems will escalate in the
coming years unless concerted and determined efforts are taken immediately.As a consequence,
Global Strategy for Shelter to the year 2000, including a plan of action for its implementation,
monitoring and evaluation was chalked out and its objective would be to stimulate measures to
facilitate adequate shelter for all by the year 2000. It requested the Executive Director of the
Centre for Human Settlements to prepare a proposal for such a global strategy and called upon
the Commission of Human Settlements to formulate the strategy for consideration by the
assembly. In furtherance thereof, guidelines have been laid to take steps at the national level
which was accepted by the Assembly. Guidelines which are relevant for the present purpose are
as under"2.... The objectives should be based on a comprehensive view of the magnitude and
nature of the problem and of the available resource base, including the potential contribution of
men and women. In addition to finance, land, manpower and institutions building materials and
technology also have to be considered irrespective of whether they are held by the public or
private, formal or informal sector

"3. The objectives of the shelter sector need to be linked to the goals of overall economic policy,
social policy, settlement policy and environmental policy

63
 UNION CARBIDE CORPORATION VS UNION OF INDIA (UOI) AND ORS
(1989) 3 SCC 38

BENCH:
R Pathak, E Venkataramiah, M Venkatachaliah, N Ojha, R Misra

The Bhopal Gas Leak tragedy that occurred at midnight on 2nd December, 1984, by the escape
of deadly chemical fumes from the appellant's pesticide-factory was a horrendous industrial mass
disaster, unparalleled in its magnitude and devastation and remains a ghastly monument to the
dehumanizing influence of inherently dangerous technologies. The tragedy took an immediate
toll of 2,660 innocent human lives and left tens of thousands of innocent citizens of Bhopal
physically impaired or affected in various degrees. What added grim poignancies to the tragedy
was that the industrial-enterprise was using Methyl Isocyanine, a lethal toxic poison, whose
potentiality for destruction of life and biotic-communities was, apparently, matched any by the
lack of a prepackage of relief procedures for management of any accident based on adequate
scientific knowledge as to the ameliorative medical procedures for immediate neutralization of
its effects.

It is unnecessary for the present purpose to refer, in any detail, to the somewhat meandering
course of the legal proceedings for the recovery of compensation initiated against the multi-
national company initially in the Courts in the United States of America and later in the District
Court at Bhopal in Suit No. 113 of 1986. It would suffice to refer to the order dated 4 April, 1988
of the High Court of Madhya Pradesh which, in modification of the interlocutory-order dated 17
December, 1987 made by the learned District Judge, granted an interim compensation of Rs.
250/- crores. Both the Union of India and the Union Carbide Corporation appealed against that
order.This Court by its order dated 14 February, 1989 made in those appeals directed that there
be an overall settlement of the claims in the suit, for 470 million US dollars and termination of
all civil and criminal proceedings

The opening words of the order said:

Having given our careful consideration for these several days to the facts and circumstances of
the case placed before us by the parties in these proceedings, including the pleadings of the

64
parties, the mass of data placed before us, the material relating to the proceedings in the Courts
in the United States of America,the offers and counter-offers made between the parties at
different stages during the various proceedings, as well as the complex issues of law and fact
raised before us and the submissions made thereon, and in particular the enormity of human
suffering occasioned by the Bhopal Gas disaster andthe pressing urgency to provide immediate
and substantial relief to victims of the disaster, we are of opinion that the case is pre-eminently
fit for an overall settlement between the parties covering till litigations, claims, rights and
liabilities related to and arising out of the disaster....

It appears to us that the reasons that persuaded this Court to make the order for settlement should
be set out, so that those who have sought a review might be able effectively to assist the Court in
satisfactorily dealing with the prayer for a review. The statement of the reasons is not made with
any sense of finality as to the infallibility of the decision; but with an open mind to be able to
appreciate any tenable and compelling legal or factual infirmities that may be brought out,
calling for remedy in Review under Article 137 of the Constitution.

(a) How did this Court arrive at the sum of 470 million US dollars for an over-all settlement?

(b) Why did the Court consider this sum of 470 million US dollars as 'just, equitable and
reasonable?

(c) Why did the Court not pronounce on certain important legal questions of far reaching
importance said to arise in the appeals as to the principles of liability of monolithic,
economically entrenched multi-national companies operating with inherently dangerous
technologies in the developing countries of the third world-questions said to be of great
contemporary relevance to the democracies of the third world?

There is yet another aspect of the Review pertaining to the part of the settlement which
terminated the criminal proceedings. The questions raised on the point in the Review petitions,
prima facie, merit consideration and we should, therefore, abstain from saying anything, which
might tend to pre-judge this issue one way or the other.

The basic consideration motivating the conclusion of the settlement was the compelling need for
urgent relief. The suffering of the victims has been intense and unrelieved. Thousands of persons

65
who pursued their own occupations for a humble and honest living have been rendered destitute
by this ghastly disaster. Even after four years of litigation, basic questions of the fundamentals of
the law as to liability of the Union Carbide Corporation and the quantum of damages are yet
being debated. These, of course, are important issue, which need to be decided. But, when
thousands of innocent citizens were in near destitute conditions, without adequate substantial
needs of food and medicine and with every coming morrow haunted by the specter of death and
continued agony, it would be heartless abstention, if the possibilities of immediate sources of
relief were not explored. Considerations of excellence and niceties of legal principles were
greatly over-shadowed by the pressing problems of very survival for a large number of victims,

The Law's delays are, indeed, proverbial. It has been the un-fortunate bane of the Judicial process
that even ordinary cases, where evidence consists of a few documents and the oral testimony of a
few wit-nesses, require some years to realizes the fruits of litigation. This is so even in cases of
great and unquestionable urgency such as fatal accident actions brought by the dependents.
These are hard realities. The present case is one where damages are sought on behalf of the
victims of a mass disaster and, having regard to the complexities and the, legal questions
involved, any person with an unbiased vision would not miss the time con-summing prospect for
the course of the litigation in its sojourn through the various courts, both in India and later in
United States.

It is indeed a matter for national introspection that public response to this great tragedy which
affected a large number of poor and helpless persons limited itself to the expression of
understandable anger against the industrial enterprise but did not channel itself in any effort to
put together a public supported relief fund so that the victims were not left in distress, till the
final decision in the litigation. It is well known that during the recent drought in Gujarat, the
devoted efforts of public-spirited persons mitigated, in great measure, the loss of cattle-wealth in
the near famine conditions that prevailed.

This Court, considered it a compelling duty, both judicial and humane, to secure immediate relief
to the victims. In doing so, the Court did not enter upon any forbidden ground. Indeed, efforts
had earlier been made in this direction by Judge Keenan in the United States and by the learned
District Judge at Bhopal. What this Court did was in continuation of what had already been
initiated. Even at the opening of the arguments in the appeals, the Court had suggested to learned

66
Counsel on both sides to reach a just & fair settlement. Again, when counsel met for re-
scheduling of the hearings the suggestion was reiterated. The response of learned Counsel on
both sides was positive in attempting a settlement, but they expressed a certain degree of
uneasiness and skepticism at the prospects of success in view of their past experience of such
negotiations when, as they stated, there had been uninformed and even irresponsible criticism of
the attempts at settlement. The learned Attorney General submitted that even the most Bonafide,
sincere and devoted efforts at settlement were likely to come in for motivated criticism.

The Court asked learned Counsel to make available the particulars of offers and counter offers
made on previous occasions for a mutual settlement. Learned Counsel for both parties furnished
particulars of the earlier offers made for an overall settlement and what had been considered as a
reasonable basis in that behalf. The progress made by previous negotiations was graphically
indicated and those documents form part of the record. Shri Nariman stated that his client would
stand by its earlier offer of Three Hundred and Fifty Million US dollar and also submitted that
his client had also offered to add appropriate interest, at the rates prevailing in the U.S.A., to the
sum of 350 million US dollars which raised the figure to 426 million US dollars. Shri Nariman
stated that his client was of the view that amount was the highest it could go upto. In regard to
this offer of 426 million US dollars the learned Attorney General submitted that he could not
accept this offer. He submitted that any sum Jess than 500 million US dollars would not be
reasonable. Learned Counselor both parties stated that they would leave it to the Court to decide
what should be the figure of compensation. The range of choice for the Court| in regard to the
figure was, therefore, between the maximum of 426j million US dollars offered by Shri Nariman
and the minimum of 500j million US dollars suggested by the learned Attorney General.

In these circumstances, the Court examined the prima facie material as to the basis of
quantification of a sum which, having regard to all the circumstances including the prospect of
delays inherent in the judicial-process in India and thereafter in the matter of domestication of
the decree in the United States for the purpose of execution and directed that 470 million US
dollars, which upon immediate payment and with interest over a reasonable period, pending
actual distribution amongst the claimants, would aggregate very nearly to 500 million US dollars
or its rupee equivalent of approximately Rs. 750/- crores which the learned Attorney General had
suggested, be made the basis of the settlement. Both the parties accepted this direction.

67
The settlement proposals were considered on the premise that Government had the exclusive
statutory authority to represent and act on behalf of the victims and neither counsel had any
reservation as to this. The order was also made on the premise that the Bhopal Gas Leak
Disaster|(Registration and Processing of Claims) Act, 1985 was a valid law. In the event the Act
is declared void in the pending proceedings challenging its validity, the order dated 14 February,
1989 would require to be examined in the light of that decision.

We should make it clear that if any material is placed before this Court from which a reasonable
inference is possible that the Union Carbide Corporation had, at any time earlier, offered to pay
any sum higher than an out-right down payment of US 470 million dollars, this Court would
straightway initiate suomotu action requiring the concerned parties to show cause why the order
dated 14 February, 1989 should not be set aside and the parties relegated to their respective
original positions.

The next question is as to the basis on which this Court considered this sum to be a reasonable
one. This is not independent of its quantification; the idea of reasonableness for the present
purpose is necessarily a broad and general estimate in the context of a settlement of the dispute
and not on the basis of an accurate assessment by adjudication. The question is how good or
reasonable it is as a settlement, which would avoid delays, uncertainties and assure immediate
payment. The estimate, in the very nature of things, cannot share the accuracy of adjudication.
Here again one of the important considerations was the range disclosed by the offers and counter
offers which was between 426 million US dollars and 500 million US dollars. The Court also
examined certain materials available on record including the figures mentioned in the pleadings,
the estimate made by the High Court and also certain figures referred to in the course of the
arguments,

There are a large number of claims under the Act. In the very nature of the situation, doubts that
a sizeable number of them are either without any just basis or were otherwise exaggerated could
not be ruled out. It was, therefore, thought not unreasonable to proceed on some prima facie
undisputed figures of cases of death and of substantially comestible personal injuries. The
particulars of the number of persons treated at the hospitals were an important indicator in that
behalf. This Court had no reason to doubt the bona fides of the figures furnished by the plaintiff
itself in the pleadings as to the number of persons suffering serious injuries.

68
From the order of the High Court and the admitted position on the plaintiff's own side, a
reasonable, prima facie, estimate of the number of fatal cases and serious personal injury cases,
was possible to be made. The High Court said:

In the circumstances, leaving a small margin for the possibility of some of the claims relating to
death and personal injuries made by the multitude of claims before the Director of Claims of the
State Government being spurious,there is no reason to doubt that the figure furnished by the
plaintiff Union of India in its amended plaint can be safely accepted for the purpose of granting
the relief of interim payment of damages. It has been stated by the plaintiff-Union of India that a
total number of 2660 persons suffered agonizing and excruciating deaths and between 30000 to
40000 sustained serious injuries because of the disaster....

There is no scope for any doubt that the cases referred to as those of' Serious injuries' include
both types of cases of permanent total and partial disabilities of various degrees as also cases of
temporary total or partial disabilities of different degrees. The High Court relied upon the
averments and claims in the amended pleadings of the plaintiff, the Union of India, to reach this
prima facie finding.

Then, in assessing the quantum of interim compensation the High Court did not adopt the
standards of compensation usually awarded in fatal-accidents-actions or personal-injury-actions
arising under the Motor Vehicles Act. It is well-known that in fatal-accident-actions where
children are concerned, the compensation awardable is in conventional sums ranging from Rs.
15,000/- to Rs. 30,000/- in each case. In the present case, a large number of deaths was of
children of very young age. Even in the case of adults, according to the general run of damages
in comparable cases, the damages assessed on the usual multiplier-method in the case of income
groups comparable to those of the deceased-persons, would be anywhere between Rs. 80,000/-
and Rs. 1,00,000/-.

But the High Court discarded, and rightly, these ordinary standards which, if applied, would have
limited the aggregate of compensation payable in fatal cases to a sum less than Rs. 20/- crores in
all.

Bearing in mind, the above factors, in the opinion of this Court, it would not be unreasonable to
assume that if the suit proceeded to trial the plaintiff-Union of India would obtain judgment in

69
respect of the claims relating to deaths and personal injuries at least in the following amounts:
(a)Rs. 2 lakhs in each case of death; (b) Rs. 2 lakhs in each case of total permanent disability (c)
Rs. I1lakh in each case of permanent partial disablement; and (d) Rs. 50,000/- in each case of
temporary partial disablement.Half of these amounts were awarded as interim compensation. An
amount of Rs. 250/- crores was awarded.

The figures adopted by the High Court in regard to the number of fatal cases and cases of serious
personal injuries do not appear to have been disputed by anybody before the High Court. These
data and estimates of the High Court had a particular significance in the settlement. Then again,
it was not disputed before us that the total number of fatal cases was about 3000 and of grievous
and serious personal injuries, as verifiable from the records of the hospitals of cases treated at
Bhopal, was in the neighborhood of 30,000. It would not be unreasonable to expect that persons
suffering serious and substantially commensurable injuries would have gone to hospitals for
treatment. It would also appear that within about 8 months of the occurrence, a survey had been
conducted for purposes of identification of cases of death and grievous and serious injuries for
purposes of distribution of certain ex gratia payments sanctioned by Government. These figures
were, it would appear, less than ten thousand.

In these circumstances, as a rough and ready estimate, this Court took into consideration the
prima facie findings of the High Court and estimated the number of fatal cases at 3000 where
compensation could range from Rs. 1 lakh to Rs. 3 lakhs. This would account for Rs. 70/-crores,
nearly 3 times higher than what would, otherwise, be awarded in comparable cases in motor
vehicles accident claims.

Death has an inexorable finality about it. Human lives that have been lost were precious and
in that sense priceless and invaluable. But the law can compensate the estate of a person
whose life is lost by the wrongful act of another only in the way the law is equipped to
compensate i.e. by monetary compensations calculated on certain well-recognized principles.
"Loss to the estate" which is the entitlement of the estate and the loss of dependency'
estimated on the basis of capitalized present-value awardable to the heirs and dependants, are
the main components in the computation of compensation in fatal accident actions. But, the
High Court in estimating the value of compensation had adopted a higher basis.

70
It is true that in assessing the interim compensation the High Court had taken into account only
the cases of injuries resulting in permanent or temporary disabilities-total-or partial-and had not
adverted to the large number of other claims, said to run into lakhs, filed by other claimants.

Such cases of claims do not, apparently, pertain to serious cases of permanent or temporary
disabilities but are cases of a less serious nature,comprising claims for minor injuries, loss of
personal belongings, loss of livestock etc., for which there was a general allocation of Rs. 225/-
crores. If in respect of these claims allocations are made at Rs. 20,000/-, Rs. 15,000/-and Rs.
10,000/- for about 50,000 persons or claims in each category -accounting for about one and half
lakhs more claims-the sums required would be met by Rs. 225/- crores.

Looked at from another angle, if the corpus of Rs. 750/- crores along with the current market
rates of interest on corporate borrowings, of say 14% or 14 1/2% is spent over a period of eight
years it would make available Rs. 150/-crores each year; or even if interest alone is taken, about
Rs. 105 to 110 crores per year could be spent, year-after-year, perpetually towards compensation
and relief to the victims.

The court also took into consideration the general run of damages in comparable accident claim
cases and in cases under workmen's compensation laws. The broad allocations made are higher
than those awarded or awardable in such claims. These apportionments are merely broad
considerations generally guiding the idea of reasonableness of the overall basis of settlement.
This exercise is not a pre-determination of the quantum of compensation amongst the claimants
either individually or category-wise. No individual claimant shall be entitled to claim a particular
quantum of compensation even if his case is found to fall within any of the broad categories
indicated above. The determination of the actual quantum of compensation payable to the
claimants has to be done by the authorities under the Act, on the basis of the facts of each case
and without reference to the hypothetical quantifications made only for purposes of an overall
view of the adequacy of the amount.

These are the broad and general assumptions underlying the concept of 'justness' of the
determination of the quantum. If the total number of cases of death or of permanent, total or
partial, disabilities or of what may be called 'catastrophic' injuries is shown to be so large that the
basic assumptions underlying the settlement become wholly unrelated to the realities, the
element of 'justness' of the determination and of the 'truth' of its factual foundation would

71
seriously be impaired. The 'justness' of the settlement is based on these assumptions of truth.
Indeed, there might be different opinions of the interpretation of laws or on questions of policy
or even on what may be considered wise or unwise; but when one speaks of justice and truth,
these words mean the same thing to all men whose judgment is uncommitted. Of Truth and
Justice, Anatole France said:

Truth passes within herself a penetrating force unknown alike to error and falsehood. I say truth
and you must understand my meaning. For the beautiful words Truth and Justice used not be de-
fined in order to be understood in their true sense. They bear with-in them a shining beauty and a
heavenly light. I firmly believe in the triumph of truth and justice. That is what upholds me in
times of trial....

As to the remaining question, it has been said that many vital juristic principles of great
contemporary relevance to the Third World gene rally, and to India in particular, touching
problems emerging from the pursuit of such dangerous technologies for economic gains by
multi-nationals arose in this case. It is said that this is an instance of lost opportunity to this apex
Court to give the law the new direction on vital issues emerging from the increasing dimensions
of the economic exploitation of developing countries by economic forces of the rich ones. This
case also, it is said concerns the legal limits to be envisaged, in the vital interests of the
protection of the constitutional rights of the citizenry, and of the environment, on the
permissibility of such ultra-hazardous technologies and to prescribe absolute and deterrent
standards of liability if harm is caused by such enter-prizes. The prospect of exploitation of
cheap labour and of captive-markets, it is said, induces multi-nationals to enter into the
developing countries for such economic-exploitation and that this was eminently an appropriate
case for a careful assessment of the legal and Constitutional safeguards stemming from these
vital issues of great contemporary relevance. These issues and certain cognate areas of even
wider significance and the limits of the adjudicative disposition of some of their aspects are
indeed questions of seminal importance. The culture of modern industrial technologies, which is
sustained on processes of such pernicious potentialities, in the ultimate analysis, has thrown open
vital and fundamental issues of technology-options. Associated problems of the adequacy of
legal protection against such exploitative and hazardous industrial adventurism, and whether the
citizens of the country are assured the protection of a legal system which could be said to be

72
adequate in a comprehensive sense in such contexts arise. These, indeed, are issues of vital
importance and this tragedy, and the conditions that enabled it happen, are of particular concern.

The Chemical pesticide industry is a concomitant, and indeed, an integral part, of the
Technology of Chemical Farming. Some experts think that it is time to return from the high-risk,
resource-intensive, high-input, anti-ecological, monopolistic 'hard' technology which feeds, and
is fed on, its self-assertive attribute, to a more human and humane, flexible, eco-conformable,
"soft" technology with its systemic-wisdom and opportunities for human creativity and initiative.
"Wisdom demands" says Schumacher "a new orientation of science and technology towards the
organic, the gentle, the non-violent, the elegant and beautiful". The other view's rising the
spectacular success of agricultural production in the new era of chemical farming, with high-
yielding strains, points to the break-through achieved by the Green Revolution with its effective
response to, and successful management of, the great challenges of feeding the millions. This
technology in agriculture has given a big impetus to enterprises of chemical fertilizers and
pesticides. This, say its critics has brought in its trail its own serious problems. The technology
options before scientists and planners have been difficult.

Indeed, there is also need to evolve a national policy to protect national interests from such ultra
hazardous pursuits of economic gains. Jurists, technologists and other experts in Economics,
environment logy, futurology, sociology and public health etc. should identify areas of common
concern and help in evolving proper criteria, which may receive judicial re-cognition and legal
sanction.

But, in the present case, the compulsions of the need for | immediate relief to tens of thousands
of suffering victims could not, in our | opinion, wait till these questions, vital though they be, are
resolved in the | due course of judicial proceedings. The tremendous suffering of thousands of
persons compelled us to move into the direction of immediate relief which, we thought, should
not be subordinated to the uncertain promises of the law, and when the assessment of fairness of
the amount was based on certain factors and assumptions not disputed even by the plaintiff.

A settlement has been recorded upon material and in circumstances, which persuaded the Court
that it was a just settlement. This is not to say that this Court will shut out any important material
and compelling circumstances which might impose a duty on it to exercise the powers of review.
Like all other human institutions, this Court is human and fallible. What appears to the court to

73
be just and reasonable in that particular context and setting need not necessarily appear to others
in the same way? Which view is right, in the ultimate analysis, is to be judged by what it does to
relieve the undeserved suffering of thousands of innocent citizens of this country. As a learned
author said: (3)"In this imperfect legal setting we expect judges to clear their endless dockets,
uphold the Rule of Law, and yet not utterly disregard our need for the discretionary justice of
Plato's philosopher king. Judges must be sometimes cautions and sometimes bold. Judges must
respect both the traditions of the past and the convenience of the present...."But the course of the
decisions of courts cannot be reached or altered or determined by agitation pressures. If a
decision is wrong, the process of correction must be in a manner recognized by law. Here, many
persons and social action groups claim to speak for the victims, quite a few in different voices.
The factual allegations on which they rest their approach are conflicting in some areas and it
becomes difficult to distinguish truth from falsehood and half-truth, and to distinguish as to who
speaks for whom.

The culture of modern industrial technologies, which is sustained on processes of such

pernicious potentialities, in the ultimate analysis, has thrown open vital and fundamental issues
of technology-options. Associated problems of the adequacy of legal protection against such
exploitative and hazardous industrial adventurism, and whether the citizens of the country are
assured the protection of a legal system which could be said to be adequate in a comprehensive
sense in such contexts arise. These, indeed, are issues of vital importance and this tragedy, and
the conditions that enabled it happen, are of particular concern.

The Chemical pesticide industry is a concomitant, and indeed, an integral part, of the
Technology of Chemical Farming. Some experts think that it is time to return from the high-risk,
resource-intensive, high-input, anti-ecological, monopolistic 'hard' technology which feeds, and
is fed on, its self-assertive attribute, to a more human and humane, flexible, eco-conformable,
"soft" technology with its systemic-wisdom and opportunities for human creativity and initiative.
"Wisdom demands" says Schumacher "a new orientation of science and technology towards the
organic, the gentle, the non-violent, the elegant and beautiful".

However, all of those who invoke the corrective processes in accordance with law shall be heard
and the court will do what the law and the course of justice requires.The matter concerns the
interests of a large number of victims of a mass disaster. The Court directed the settlement with

74
the earnest hope that it would do them good and brings them immediate relief, for tomorrow
might be too late for many of them.But the case equally concerns the credibility of, and the
public confidence in, the judicial process. If, owing to the pre-settlement procedures being
limited to the main contestants in the appeal, the benefit of some contrary or supplemental
information or material, having a crucial bearing on the fundamental assumptions basic to the
settlement, have been denied to the Court and that, as a result, serious miscarriage of justice,
violating the constitutional and legal rights of the persons affected, has been occasioned, it will
be the endeavor of this Court to undo any such injustice.But that, we reiterate, must be by
procedures recognized by law. Those who trust this Court will not have cause for despair.

SOOBRAMONEY V. MINISTER OF HEALTH, KWAZULU-NATAL 1998 (1) SA 765 (CC),

1997 (12) BCLR 1696 (CC)

BENCH:

Chaskalson P, Madala J, Sachs J

The applicant, a 41 year old and unemployed man, was suffering from chronic renal failure
resulting from diabetes. This condition was irreversible. His life could only be prolonged by an
on-going dialysis treatment. He approached a state hospital for this treatment but the hospital
refused him admission to its renal unit following a set policy. According to the policy, the
primary requirement for this treatment was eligibility for a kidney transplant. The treatment
could be administered until a donor was found and the transplant completed. Furthermore, to be
eligible for a kidney transplant, a patient has to be free from other "significant" diseases. The
Appellant failed to satisfy the requirements for a kidney transplant as he was suffering from
other serious diseases such as heart disease. This refusal prompted the applicant to ask for a court
order directing the hospital to provide him with on-going dialysis treatment, and restraining the
provincial Minister of health from refusing him admission to the renal unit of the hospital.

The High Court dismissed the application. Thereupon, he appealed to the Constitutional Court,
arguing that patients who suffered from terminal illnesses and required treatment to prolong their
lives were entitled to be provided with such treatment by the State pursuant to section 27(3),
which guarantees the right to of everyone not to be denied emergency treatment. Reliance was
also placed on section 11, which guarantees the right to life.
75
According to Constitutional Court, "the right to medical treatment does not have to be inferred
from the nature of the State established by the Constitution or from the right to life which it
guarantees". (Para 19)

This right is dealt with directly under section 27.The right not to be refused emergency medical
treatment under section 27(3) of the Constitution was interpreted to mean that the State is under
an obligation not to deny a person remedial treatment that is necessary and available to forestall
harm in the case of a sudden catastrophe or emergency. It did not extend to the provision of
ongoing treatment of chronic illness for prolonging life. To hold otherwise, "it would make it
substantially more difficult for the state to fulfil its primary obligations under sections 27(1) and
(2) to provide health care services to 'everyone' within its available resources". (Para 19).

The Court then considered the applicability of section 27(1) (a) read with (2) of the Constitution.
This provision gives everyone the right of access to health care services, including reproduction
health care. This obligation is qualified in that the State is required to take "reasonable legislative
and other measures, within its available resources, to achieve the progressive realization of this
right."

The Court found that all rental units were stretched in terms of resources. There were more
people suffering from renal failure than there were dialysis machines to treat them. The Court
indicated, "It would be slow to interfere with rational decisions taken in good faith by political
organs and medical authorities whose responsibility it is to deal with such matters". (Para 29)

This was the first case in South Africa in which the Constitutional Court had to decide on the
constitutional right to health care for everybody in light of the problem of scarce resources for
the funding of the health care system. The Court accepted that rationing of resources is integral
to health service delivery in the public sector even though this might support ongoing inequities
between the private and public sector. However, the Court implied that there might be grounds
for the challenge of executive policies if such policies were unreasonable or if they were not
applied fairly and reasonable

76
It took the view that the guidelines drawn up by the hospital authorities for determining patients
who qualified for dialysis treatment were reasonable. It was not shown that these guidelines had
been applied irrationally or unfairly in the present case. Thus, the Court refused to order the
provision of the treatment arguing that the guidelines had the advantage of allocating scarce
resources rationally to ensure that a greater number of patients are cured than would be the case
if the dialysis machines were used to keep alive persons with chronic renal failure.

JAVED ABIDI V. UNION OF INDIA AND OTHERS.

1999 (1) SCC 467

BENCH:

K.Venkataswami, G.B. Pattanaik.

In this case going as far back as 1998, the Supreme Court of India took strong recognition of the
rights of persons with disabilities to have accessible public facilities. The petitioner, Mr.
JavedAbidi, an orthopedic disabled person, argued this case in person. The Petitioner raised both
a specific issue regarding accessible air transport for disabled persons, and a general issue
regarding implementation of the Persons with Disabilities Act, 1995.

Specifically, the petitioner argued that orthopedic disabled persons face significant difficulty in
making use of air transport facilities and that Indian Airlines, the domestic carrier, should
accommodate such passengers by providing “ambulifts” to take such passengers from the ground
level on to the aircraft, and aisle wheel chairs to reach their seats. Without such facilities, they
had to be physically hoisted up into the aircraft and to their seats, resulting not only in
tremendous discomfort, but also in embarrassment and loss of dignity for them. In response, the
Indian Airlines initially said that providing ambulifts at all major airports in the country would
be a very costly affair, and beyond their economic capacity. However, in the course of the
hearing and under the watchful eye of the Court, they changed their stand and indicated that
ambuliftswere being provided for at all major airports, and aisle chairs had already been made
available. On the petitioner’s plea, the apex court also directed that Indian Airlines provide
concessions in airfares to orthopedic disabled persons with more than 80% disability, despite
Indian Airlines’ opposition to this plea.

77
The petitioner further brought to the Court’s notice that whereas the Persons with Disabilities
Act, 1995, provided for the setting up of Central and State level committees to protect the rights
and further the cause of disabled person, these committees had not been set up and the legal
provisions for them remained on paper. No sooner did the Court issue notices to the Central and
State Governments;then they assured the Court of the steps, they were taking to constitute the
requisite committees. The Court said, “…we hope and trust that the respective committees will
discharge their obligations under the Act so as to achieve the objectives for which the Act had
been enacted…”

Disabled persons can draw encouragement from the observations of the Supreme Court of India
in this case to further agitate their causes.

Supreme Court of India took strong recognition of the rights of persons with disabilities to have
accessible public facilities.

“To create a barrier free environment for persons with disabilities and to make special provision
for the integration of persons with disabilities into the social mainstream apart from the
protection of rights, provisions of medical care, education, training, employment and
rehabilitation are some of the prime objectives of the Act.”,

“The petitioner himself is an orthopedically impaired person…He appeared in person in this

Court and successfully presented his case indicating several infirmities as well as callousness of
the different organizations of the State in implementing the provisions of the Act…we cannot but
thank the petitioner…which resulted in acceleration of the implementation of different
provisions of the Act, not only by the Union Government but also by the State Governments.”

RAKESH CHANDRA NARAYAN V. STATE OF BIHAR AND OTHERS

1989 AIR 348

BENCH:

MisraRangnath, Venkatachalliah, M.N. (J)

In 1985 the Petitioners wrote a letter to the Court regarding the deteriorating state of the Ranchi
MansikArogyashala, a mental hospital (the Hospital) in Bihar. The Court treated it as apublic

78
interest litigation under Article 32 of the Constitution. The Court directed the Chief Judicial
Magistrate to visit the Hospital and submit a report on the conditions prevailing there. The report
stated, among other things, that there was a severe shortage of water, electricity, beds, medicines
and medical personnel. Sanitation and hygiene was also a recurring problem. The report also
provided statistics for the number of deaths of patients between the years 1977 and 1986. The
year 1984 saw the highest death toll, which was allegedly due to internal management conflicts.
The report sought for a change in the administration for the welfare of the patients. The
Respondent Government denied the claims contained in the report.
Subsequently, in 1994, the Union Health Secretary, M.S. Dayal submitted a report (the Dayal
Report) on the functioning of the Hospital in furtherance to the directions of the Court issued
between 1988 and 1994. The report made recommendations for the improvement of the existing
conditions at the hospital regarding treatment and rehabilitation of patients.
The Court issued two main orders, in 1988 and 1994 respectively. In 1988, the Court ordered
that the matter remain pending, as the Respondent Government had to issue periodic reports.

On the issue of the conditions prevailing at the Hospital, the Court was appalled at the complete
lack of an efficient administrative system. The Court held that the mismanagement of the
Hospital had seriously affected the patients, some of whom were languishing in the Hospital
despite being cured. The Court relied on the report submitted by the Chief Judicial Magistrate
that highlighted the lack of medical personnel, medicines, food, water and electricity, among
other problems. The Court held that even though the mentally ill require a soothing environment
for their treatment, the Hospital resembled a “medieval torture house.”
As to whether the management of the Hospital was satisfactory, the Court held in the negative.
Due to the reports furnished by the Respondent Government, the Court held that it could not
place any trust in the prevailing administration of the Hospital. The Court held that the
Respondent Government had been lethargic and half-hearted in its duty to improve the
conditions at the Hospital. The Court constituted a Committee of Management to oversee the
Hospital. The Court also held that they “cannot close the proceedings at this stage” and hence the
parties could move the Court from time to time.
After the submission of the Dayal Report in 1994, all the recommendations made therein were
accepted by the Court. The Court held that construction and renovation of the Hospital, with
respect to functioning toilets, an uninterrupted supply of electricity and “additional construction

79
for occupational and rehabilitation activities,” were to be carried out immediately. The Court
also directed the budget for food for the indoor patients to be increased.
As to the administration of the Hospital, the Court held that it was essential that the Hospital
remain an autonomous entity to ensure its smooth functioning. The Court accepted the
recommendations of the Dayal report, which called for, among other things, a Director with a
medical background committed to the treatment and rehabilitation of the mentally ill. The Court
also approved the Ranchi MansikArogyashala Rules, 1994 (the Rules) appended to the Dayal
Report. The objectives of the Rules were:
(a) Diagnostic and therapeutic facilities for mental patients;
(b) Social and occupational rehabilitation of mental patients;
(c) Professional and paraprofessional training in the field of Psychiatry, clinical Psychology,
Psychiatric Social Work and Psychiatric Nursing;
(d) Expansion of mental health services at community level by providing training to medical
and para medical personnel in the field; and
(e) Research in behavioral sciences.

The Court held that the mismanagement of the Hospital had seriously affected the patients, some
of whom were languishing in the Hospital despite being cured.

“In welfare State - and we take it that the State of Bihar considers itself to be one such - it is the
obligation of the State to provide medical attention to every citizen. Running of the mental
hospital, therefore, is in the discharge of the State's obligation to the citizens . . .” 1988 SCR Supl.
(3) 306, pg. 318.
“The State has to realize its obligation and the Government of the day have got to perform its
duties by running the hospital in a perfect standard and serving the patients in an appropriate
way.” 1988 SCRSupl. (3) 306, pg. 318.
“The fact that lakhs of rupees had been spent on improvement is indeed of no consequence.

S.P. GUPTA V. UNION OF INDIA AND OTHERS

AIR 1982 SC 149
BENCH:
A Gupta, D Desai, E Venkataramiah, P Bhagawati, R Pathak, S M Ali, V Tulzapurkar

80
Home in Agra or Harijan workers engaged in road construction in the Ajmer District, who are
living in poverty and destitution, who are barely eking out a miserable existence with their sweat
and toil, who are helpless victims of an exploitative society and who do not have easy access to
justice, this Court will not insist on a regular writ petition to be filed by the public spirited
individual espousing their cause and seeking relief for them, This Court will readily respond
even to a letter addressed by such individual acting pro bono. It is true that there are rules made
by this Court prescribing the procedure for moving this Court for relief under Article 32 and they
require various formalities to be gone through by a person seeking to approach this Court. But it
must not be forgotten that procedure is but a handmaiden of justice and the cause of justice can
never be allowed to be thwarted by any procedural technicalities. The Court would therefore
unhesitatingly and without the slightest qualms of conscience cast aside the technical rules of
procedure in the exercise of its dispensing power and treat the letter of the public minded
individual as a writ petition and act upon it Today a vast revolution is taking place in the judicial
process; the theatre of the law is fast changing and the problems of the poor are coming to the
forefront. The Court has to innovate new methods and devise new strategies for the purpose of
providing access to justice to large masses of people who are denied their basic human rights and
to whom freedom and liberty have no meaning. The only way in which this can be done is by
entertaining writ petitions and even letters from public spirited individuals seeking judicial
redress for the benefit of persons who have suffered a legal wrong or a legal injury or whose
constitutional or legal right has been violated but who by reason of their poverty or socially or
economically disadvantaged position are unable to approach the Court for relief. It is in this spirit
that the Court has been entertaining letters for Judicial redress and treating them as writ petitions
and we hope and trust that the High Courts of the country will also adopt this proactive, goal-
oriented approach. But we must hasten to make it clear that the individual who moves the Court
for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the
cause of justice and if he is acting for personal gain or private profit or out of political motivation
or other oblique consideration, the Court should not allow itself to be activised at the instance of
such person and must reject his application at the threshold, whether it be in the form of a letter
ad-dressed to the Court or even in the form of a regular writ petition filed in Court.We may also
point out that as a matter of prudence and not as a rule of law, the Court may confine this
strategic exercise of jurisdiction to cases, where legal wrong or legal injury is caused to a

81
determinate class or group of persons or the constitutional or legal right of such determinate class
or group of persons is violated and as far as possible, not entertain eases of individual wrong or
injury at the instance of a third party, where there is an effective legal aid organisation which can
take care of such cases. The types of cases which we have dealt with so far for the purpose of
considering the question of locus standi are those where there is a specific legal injury either to
the applicant or to some other person or persons for whose benefit the action is brought, arising
from violation of some constitutional or legal right or legally protected interest. What is
complained of in these cases is a specific legal injury suffered by a person or a determinate class
or group of persons. But there may be cases where the State or a public authority may act in
violation of a constitutional or statutory obligation or fail to carry out such obligation, resulting
in injury to public interest or what may conveniently be termed as public injury as distinguished
from private injury. Who would have standing to complain against such act or omission of the
State or public authority? Can any member of the public sue for judicial redress? Or is the
standing limited only to a certain class of persons? Or there is no one who can complain and the
public in-Jury must go unredressed. To answer these questions it is first of all necessary to
understand what is the true purpose of the Judicial function. Is the judicial function primarily
aimed at preserving legal order by confining the legislative and executive organs of government
within their powers in the interest of the public (Jurisdiction de droit objectif) or is it mainly
directed towards the protection of private individuals by preventing illegal encroachments on
their individual rights (jurisdiction de droit subjectif)? The first contention rests on the theory
that Courts are the final arbiters of what is legal and illegal ....Requirement? of locus standi are
therefore unnecessary in this case since they merely impede the purpose of the function as
conceived here. On the other hand, where the prime aim of the judicial process is to protect
individual rights, its concern with the regularity of law and administration is limited to the extent
that individual rights are infringed. We would regard the first proposition as correctly setting out
the nature and purpose of the judicial function, as it is essential to the maintenance of the rule of
law that every organ of the State must act within the limits of its power and carry out the duty
imposed upon it by the Constitution or the law. If the State or any public authority acts beyond
the scope of its power and thereby causes a specific legal injury to a person or to a determinate
class or group of persons, it would be a case of private injury actionable in the manner discussed
in the preceding paragraphs. So also if the duty is owed by the State or any public authority to a
person or to a determinate class or group of persons, it would give rise to a corresponding right

82
in such person or determinate class or group of persons and they would be entitled to maintain an
action for judicial redress. But if no specific legal injury is caused to a person or to a determinate
class or group of persons by the act or omission of the State or any public authority and the
injury is caused only to public interest, the question arises as to who can maintain an action for
vindicating the rule of law and setting aside the unlawful action or enforcing the performance of
the public duty. If no one can maintain an action for redress of such public wrong or public
injury, it would be disastrous for the rule of law, for it would be open to the State or a public
authority to act with impunity beyond the scope of its power or in breach of a public duty owed
by it. The Courts cannot countenance such a situation where the observance of the law is left to
the sweet will of the authority bound by it, without any redress if the law is contravened. The
view has therefore been taken by the Courts in many decisions that whenever there is a public
wrong or public injury caused by an act or omission of the State or a public authority which is
contrary to the Constitution or the law, any member of the public acting bona fide and having
sufficient interest can maintain an action for redressal of such public wrong or public injury.The
strict rule of standing which insists that only a person who has suffered a specific legal injury can
maintain an action for judicial redress is relaxed and a broad rule is evolved which gives standing
to any member of the public who is not a mere busy -body or a meddlesome interloper but who
has sufficient interest in the proceeding. There can be no doubt that the risk of legal action
against the State or a public authority by any citizen will induce the State or such public
authority to act with greater responsibility and care thereby improving the administration of
justice. This broadening of the rule of locus standi has been largely responsible for the
development of public law, because it is only the availability of judicial remedy for enforcement
which invests law with meaning and purpose or else the law would remain merely a paper
parchment, a teasing illusion and a promise of unreality. It is only by liberalising the rule of
locus standi that it is possible to effectively police the corridors of powers and prevent violations
of law. It was pointed out by Schwartz and H.W.R. Wade in their book on "Legal Control of
Government" at page 354: Restrictive rules about standing are in general inimical to a healthy
system of administrative law. If a plaintiff with a good case is turned away, merely because he is
not sufficiently affected personally, that means that some government agency is left free to
violate the law, and that is contrary to the public interest. Litigants are unlikely to expend their
time and money unless they have some real interest at stake. In the rare cases where they wish to
sue merely out of public spirit, why should they be discouraged?" It is also necessary to point out

83
that if no one can have standing to maintain an action for judicial redress in respect of a public
wrong or public injury, not only will the cause of legality suffer but the people not having any
judicial remedy to redress such public wrong or public injury may turn to the street and in that
process, the rule of law will be seriously impaired. It is absolutely essential that the rule of law
must wean the people away from the lawless street and win them for the court of law. 19. There
is also another reason why the rule of locus standi needs to be liberalised. Today we find that law
is being increasingly used as a device of organised social action for the purpose of bringing about
socio-economic change. The task of national reconstruction upon which we are engaged has
brought about enormous increase in developmental activities and law is being utilised for the
purpose of development, social and economic. It is creating more and more a new category of
rights in favour of large sections of people and imposing a new category of duties on the State
and the public officials with a view to reaching social justice to the common man. Individual
rights and duties are giving place to meta-individual, collective, social rights and duties of
classes or groups of persons. This is not to say that individual rights have ceased to have a vital
place in our society but it is recognised that these rights are practicably meaningless in today's
setting unless accompanied by the social rights necessary to make them effective and really
accessible to all. The new social and economic rights, which are sought to be created in
pursuance of the Directive Principles of State Policy essentially, require active intervention of
the State and other public authorities. Amongst these social and economic rights are freedom
from indigency, ignorance and discrimination as well as the right to a healthy environment, to
social security and to protection from financial commercial, corporate or even governmental
oppression. More and more frequently the conferment of these socio-economic rights and
imposition of public duties on the State and other authorities for taking positive action generates
situations in which single human action can be beneficial or prejudicial to a large number of
people, thus making entirely inadequate the traditional scheme of litigation as merely a two-party
affair. For example, the discharge of affluent in a lake or river may harm all who want to enjoy
its clean water; emission of noxious gas may cause injury to large numbers of people who inhale
it along with the air, defective or unhealthy packaging may cause damage to all consumers of
goods and so also illegal raising of railway or bus fares may affect the entire public which wants
to use the railway or bus as a means of transport. In cases of this kind it would not be possible to
say that any specific legal injury is caused to an individual or to a determinate class or group of
individuals. What results in such cases is public injury and it is one of the characteristics of

84
public injury that the act or acts complained of cannot necessarily be shown to affect the rights of
determinate or identifiable class or group of persons: public injury is an injury to an
indeterminate class of persons. In these cases the duty which is breached giving rise to the injury
is owed by the State or a public authority not to any specific or determinate class or group of
persons, but to the general public. In other words, the duty is one which is not correlative to any
individual rights. Now if breach of such public duty were allowed to go unredressed because
there is no one who has received a specific legal injury or who was entitled to participate in the
proceedings pertaining to the decision relating to such public duty, the failure to perform such
public duty would go unchecked and it would promote disrespect for the rule of law. It would
also open the door for corruption and inefficiency because there would be no check on exercise
of public power except what may be provided by the political machinery, which at best would be
able to exercise only a limited control and at worst, might become a participant in misuse or
abuse of power. It would also make the new social collective rights and interests created for the
benefit of the deprived sections of the community meaningless and ineffectual. The principle
underlying the traditional rule of standing is that only the holder of the right can sue and it is
therefore, held in many jurisdictions that since the State representing the public is the holder of
the public rights, it alone can sue for redress of public injury or vindication of public interest.
They do so in a very limited field; see Sections 91 and 92 of the Civil Procedure Code, But, even
if we had a provision empowering the Attorney General or the Advocate General to take action
for vindicating public interest, I doubt very much whether it would be effective. The Attorney
General or the Advocate General would be too dependent upon the political branches of
Government to act as an advocate against abuses that are frequently generated at least tolerated
by political and administrative bodies. Be that as it may, the fact remains that we have no such
institution in our country and we have therefore to liberalise the rule of standing in order to
provide judicial redress for public injury arising from breach of public duty or from other
violation of the Constitution or the law. If public duties are to be enforced and social collective
'diffused' rights and interests are to be protected, we have to utilise the initiative and zeal of
public-minded persons and organisations by allowing them to move the court and act for a
general or group interest, even though they may not be directly injured in their own rights. It is
for this reason that in public interest litigation -- litigation undertaken for the purpose of
redressing public injury, enforcing public duty, protecting social, collective, 'diffused' rights and
interests or vindicating public interest, any citizen who is acting bona fide and who has sufficient

85
interest has to be accorded standing. What is sufficient interest to give standing to a member of
the public would have to be determined by the Court in each individual case. It is not possible for
the Court to lay down any hard and fast rule or any strait-jacket formula for the purpose of
defining or delimiting 'sufficient interest', It has necessarily to be left to the discretion of the
Court. The reason is that in a modern complex society which is seeking to bring about
transformation of its social and economic structure and trying to reach social justice to the
vulnerable sections of the people by creating new social, collective 'diffuse' rights and interests
and imposing new public duties on the State and other public authorities, infinite number of
situations are bound to arise which cannot be imprisoned in a rigid mould or a procrustean
formula. The Judge who has the correct social perspective and who is on the same wavelength as
the Constitution will be able to decide, without any difficulty and in consonance with the
constitutional objectives, whether a member of the public moving the court in a particular case
has sufficient interest to initiate the action. It is well established that where a legal wrong or a
legal injury is caused to a person or to a determinate class of persons by reason of violation of
any constitutional or legal right or any burden is imposed in contravention of any constitutional
or legal provision or without authority of law or any such legal wrong or legal injury or illegal
burden is threatened and such person or determinate class of persons is by reason of poverty,
helplessness or disability or socially or economically disadvantaged position, unable to approach
the Court for relief, any member of the public can maintain an application for an appropriate
direction, order or writ in the High Court under Article 226 and in case of breach of any
fundamental right of such person or determinate class of persons, in this Court under Article 32
seeking judicial redress for the legal wrong or injury caused to such person or determinate class
of persons. Where the weaker sections of the community are concerned, such as under-trial
prisoners languishing in jails without trial inmates of the Protective
SURENDRA KUMAR SHARMA V VIKAS ADHIKARI AND ANR.
(2003) 5 SCC 12
BENCH:
R Lahoti, B Agrawal

The appellant was employed as a Junior Engineer on daily wages for a period of 100 days vide
order dated 22.9.1988 in a scheme known as Rural Employment Programme. There were two
similar employment welfare schemes operating, known as Rural Employment Programme (REP)
and Rural Landless Employment Guarantee Programme (RLEGP). The two schemes were

86
merged into one elaborate scheme known as Jawaharlal Nehru RozgarYojna or
JawaharRozgarYojna. On completion of 100 days, his employment would have terminated
automatically; however, the authority passed a specific order of termination dated 29.12.1988.
Instead of being rendered jobless the appellant was offered yet another temporary employment in
a scheme known as JeevanDhara vide order dated 17.1.1989. The employment was extended
from time to time upto 12.6.1989. The last order of appointment was for a period of 7 days
issued on 24.6.1989 which came to an end of 30.6.1989.

The appellant and a few others similarly employed filed writ petitions in the High Court, which
by an interim order protected their employment. However, the posts came to be abolished and
the appellant's employment as also the employment of other similarly situated persons came to
be terminated with effect from 7.5.1991, consequent upon the posts having been abolished. The
writ petitions were dismissed by the High Court holding that as the posts themselves have been
abolished the question of regularization did not ise. The High Court also held that the workmen
given employment under the schemes got the employment on an ad hoc basis, and from the very
beginning knew that the employment was of a temporary nature co-terminus with the scheme
itself, and therefore they could not be said to have been retrenched within the meaning of Section
2(oo) of the Industrial Disputes Act, 1947, so as to be entitled to the relief of reinstatement if the
provisions of Section 25F of the Act were not complied with. The appellant filed a writ appeal
which has also been dismissed by the Division Bench of the High Court. This is an appeal by
special leave.

Shri Sanghi, the learned senior counsel for the appellant, submitted that without regard to the
nature of employment, once a workman has worked in continuous employment for a period of
240 days his employment could not have been terminated except by complying with the
provisions of Section 25F; else he would be deemed to have been retrenched and entitled to the
relief of reinstatement. Having heard the learned counsel for the parties we are satisfied that the
appellant is not entitled to any relief and the view taken by the High Court cannot be found fault
with.

The Court held, "if the resources used for the JawaharRozgarYojna were in their entirety to be
used for providing full employment throughout the year, they would have given employment
only to a small percentage of the population in need of income, the remaining vast majority

87
being left with no income whatsoever. No fault could, therefore, be found with the limited object
of the scheme given the limited resources at the disposal of the State. Those employed under the
scheme, therefore, could not ask for more than what the scheme intended to give them. To get an
employment under such scheme and to claim on the basis of the said employment, a right of
regularization, is to frustrate the scheme itself. No court can be a party to such exercise. It is
wrong to approach the problems of those employed under such schemes with a view to providing
them with full employment and guaranteeing equal pay for equal work. These concepts, in the
context of such schemes, are both unwarranted and misplaced. They will do more harm than
good by depriving the many of the little income that they may get to keep them from starvation.
They would benefit a few at the cost of the many starving poor for whom the schemes are meant.
That would also force the State to wind up the existing schemes and forbid them from
introducing the new ones, for want of resources. This is not to say that the problems of the
unemployed deserve no consideration or sympathy. This is only to emphasise that ever among
the unemployed a distinction exists between those who live below and above the poverty line,
those in need of partial and those in need of full employment, the educated and uneducated, the
rural and urban unemployed etc." The Court emphasized how a judicial sympathy with such
workmen could boomerang upon the purpose of the scheme itself and thereby in the largest
context, deny the limited benefit extended by the State to the unemployed which would not be
available but for such schemes. The Court held that the petitioners cannot be directed to be
regularized on the only ground that they have put in work for 240 or more days, as such
directions lead to pernicious consequences. Although there is the Employment Exchange Act
which requires recruitment on the basis of registration in the Employment Exchange, it has
become a common practice to ignore the Employment Exchange and the persons registered in
the Employment Exchanges, and to employ and get employed directly those who are either not
registered with the Employment Exchange or who though registered are lower in the long
waiting list in the Employment Register. The Courts can take judicial notice of the fact that such
employment is sought and given directly for various illegal considerations including money. The
employment is given first for temporary periods with technical breaks to circumvent the relevant
rules, and is continued for 240 or more days with a view to (SIC) benefit of regularization
knowing the judicial trend that those who have completed 240 or more days are directed to be
automatically regularized. A good deal of illegal employment market has developed, resulting in
a new source of corruption and frustration of those who are waiting at the Employment

88
Exchanges for years. Not all those who gain such back-door entry in the employment are in need
of the particular jobs. Though already employed elsewhere, they join the jobs for better and
secured prospects. That is why most of the cases which come to the courts are of employment in
Government Departments, Public Undertakings or Agencies. Ultimately it is the people who bear
the heavy burden of the surplus labour. The other equally injurious effect of indiscriminate
regularization has been that many of the agencies have stopped undertaking casual or temporary
works though they are urgent and essential for fear that if those who are employed on such works
are required to be continued for 240 or more days have to be absorbed as regular employees
although the works are time-bound and there is no need of the workmen beyond the completion
of the works undertaken. The public interests are thus jeopardized on both counts."

A matter as to termination of employment caused by abolition of posts consequent upon the

schemes having been abolished for non-availability of funds came up for the consideration of
this Courtheld that when posts temporarily created for fulfilling the needs of a particular project
or scheme limited in its duration come to an end because the need for the project comes to an end
either because the need was fulfilled or the project had to be abandoned wholly or partially for
want of funds, the employer cannot by a writ of mandamus be directed to continue employing
such employees as have been dislodged, because such a direction would amount to requisition
for creation of posts though not required by the employer and funding such posts though the
employer did not have funds available for the purpose.

In Jaipal and Ors. v. State of Haryana, (1988) 3 SCC 354, the employees of the project of adult
and non-formal education, a temporary project which was time bound to last till 1990, were held
not entitled for regularizing of their services.

There is yet another reason why the appellant cannot be allowed any relief. The appellant had
initiated proceedings against VikasAdhikari Panchayat Samiti alleging himself to be in the
employment of Panchayat Samiti. What the High Court has found, upon scrutiny of several
documents produced for its consideration and the evidence adduced before the Labour Court, is
that the appellant was not in the employment of Panchayat Samiti at all. What was done was that
a panel was prepared by the Collector of the District enrolling the unemployed and out of that
panel the appellant was taken for work on daily wages for the purpose of the scheme.

89
The appellant was a daily wager in a scheme and knew it well that his employment was co-
terminus with the scheme. The post against which the appellant worked has been abolished for
want of funds and has ceased to exist. As held above the Panchayat Samiti was not even an
employer of the appellant.

Court held that "It is common knowledge that the Government as a welfare State floats several
schemes and projects generating employment opportunities, though they are short-lived. The
objective is to meet the need of the moment. The benefit of such schemes and projects is that for
the duration they exist, they provide employment and livelihood to such persons as would not
have been able to secure the same but for such schemes or projects. If the workmen employed for
fulfilling the need of such passing-phase-projects or schemes were to become a liability on the
employer-State by too liberally interpreting the labour laws in favour of the workmen, then the
same may well act as a disincentive to the State for floating such schemes and the State may upto
to keep away from initiating such schemes and projects even in times of dire need, because it
may feel that by opening the gates of welfare it would be letting-in onerous obligations entailed
upon it by extended application of the labour laws."

The learned Single Judge rightly set aside the award of the Labour Court. The Division Bench
has not erred in upholding the decision of the learned Single Judge. The appeal is devoid of any
merit and liable to be dismissed. It is dismissed accordingly though without any order as to the
costs.

IN RE: SREERANGAYEE v UNKNOWN

(1973) 1 MLJ 231
BENCH:

V.V. Raghavan, J.

The appellant was charged with an offence of murder under Section 302 of the Indian Penal
Code, in that she on 9th April, 1971 between 8 and 10 a.m. committed murder of five of her
children aged between 11 and 1 1/2 years and lastly with an offence under Section 309 of the
Indian Penal Code, in that she at about the same time in the course of the same transaction

90
attempted to commit suicide by jumping into a well belonging to one Maria Pillai in Shanmugha
Nagar, Dadagapatti, Salem District.

The husband and wife were living with their children in a rented house belonging to Raja
Mudaliar in Shanmugha Nagar, Dadagapatti. The husband was earning by stitching gunny bags.
He was earning per day Rs. 5 or Rs. 6. He was also having a bullock cart with which he would
earn Rs. 6 or Rs. 7 per day. The husband had illicit intimacy with one Parvathi and Parvathi used
to stay with him in his house at Shanmugha Nagar, Dadagapatti. The accused and husband were
residing with their children in the house of RajuMudaliar on a rent of Rs. 10 per month and
husband could not even pay the rent in view of poverty. About 20 days prior to the occuirence
the accused pledged to P.W. 13 about four household articles like Anda and borrowed Rs. 60 and
further borrowings had to be made on pledge of other things for meeting the bare necessities.

The accused made her statement in the committal Court. In the Sessions Court she admitted the
correctness of the statement made by her in the committal Court and admitted that she had
committed the murder of her five children by drowning them in the water in the tub and that she
jumped into the well in order to commit suicide. She stated that she did so because of poverty.

The confessional statement of the accused-woman recites a tragic tale of child penury and stark
poverty, driving her and her five children from semi-starvation to utter starvation month after
month (for the past six months.) It also reveals the cruel neglect of her and her five children by
her own husband who was indulging in illicit amorous liaison with One Or two concubines
without his realising his responsibility towards his wife and children. Her children were stricken
by disease and at least one child became blind as a result of smallpox afflicting the child. The
other children also were disabled by disease, privation and starvation. She displayed a rare virtue
of chastity when the thwarted the illicit amours of her brother-in-law accompanying some little
financial help which she spurned with womanly dignity. At long last, finding nothing rewarding
or justifying in this world for the continued existence of herself and her five children, she was
driven to such a mood of utter desperation and she killed her five children one after another by
drowning them in a tub of water and after successfully completing her mission of mercy for her
children by killing them one after another journeyed to a dismal well and plunged herself into
that well to go the other unknown world, but she was unfortunately rescued by a passer-by one
Kandaswami

91
she admits commission of the offence, but pleads justification On ground of poverty. We are of
opinion that poverty cannot justify commission of grave offences. We have, therefore, no
hesitation in coming to the conclusion that the accused committed the grave crime of murdering
five of her children and we agree with the learned Sessions Judge on the sentences imposed on
the accused viz., the imprisonment for life in respect of each of the murders committed by her, as
also the simple imprisonment for one year under Section 309, Indian Penal Code, under charge
No. 6 and that the sentences should run concurrently.

NATIONAL CAMPAIGN COMMTT., C.L. LABOUR v. UNION OF INDIA AND ORS.

2009(3)SCC269

BENCH:

K.G. Balakrishnan, C.J.; P. Sathasivam and; J.M. Panchal,

The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (for short 'The Act'), was passed by the Parliament and in this writ petition it
is alleged that many of the provisions of the enactment are not put in practice and the respective
authorities have not complied with the statutory provisions. All the State Governments and
Union territories are impleaded as parties in this writ petition. The Act is intended to benefit the
unorganized workers in the construction sector. Under Section 6 of the Act, the appropriate
Government has to appoint registering officers and under Section 7 of the Act every employer
shall register their establishment. The building workers are given various benefits and in order to
enable the workers to avail the benefits, each State has to constitute a State Welfare Board. The
Board shall consist of a Chairman nominated by the Central Government, and such other
Members, not exceeding 15, as may be appointed by the State Government. The Board shall
appoint a Secretary as its Chief Executive Officer.
Under Section 22 of the Act, the Board may provide immediate assistance to the beneficiaries
in case of accident, and also pay compensation to those workers who had completed the age of
sixty years. The Board may also sanction loans and advances to the beneficiaries and also to give
financial assistance for the education of children of the beneficiaries and also to give the benefit
of group insurance schemes. The Board can also grant maternity benefit to the female
beneficiaries. A construction welfare fund has to be constituted and there are other provisions

92
also to regulate the conditions of service of construction workers. There are also provisions to
take care of the safety and health conditions of the workers. In order to implement the provisions
there shall be inspecting staff and certain penal provisions are also in the Act to punish those
who act in violation of the provisions of enactment.

The Parliament has also passed the Building and Other Construction Workers Welfare Cess Act,
1996 for the purpose of levy and collection of cess and Section 3 of the Act envisages that- there
shall be levied and collected a cess for the purposes of the Building and Other Construction
Workers (Regulation of Employment and Conditions of Service) Act, 1996, at such rate not
exceeding two percent; but not less than one per cent of the cost of construction incurred by an
employer, as the Central Government may specify for him to time. Section 62 of the Building
and Other Construction Workers Welfare Cess Act says that proper Rules are to be framed by the
Government after consultation with the expert committee.
The learned Counsel appearing for the writ petitioners filed a chart before us indicating the steps
that had been taken by the various state governments. It says that many of the governments had
not taken steps as per the provisions of the Act. Though some of the state governments have
collected cess but the benefits have not been fully passed on to the construction workers. Some
of the State governments have not constituted either the State Advisory Committee or the expert
committee or the Welfare Board as envisaged under the Act. The Delhi Government has framed
detailed Rules, namely, the Delhi Building and Other Construction Workers (Regulation of
Employment and Conditions of Service) Rules, 2002. These Rules exclusively deal with the
matter and gives various model forms also for compliance of the provisions of the Act. The State
Governments and Union Territories which have not framed the rules as per Section 62 of the
Act can very well take the Delhi Building and Other Construction Workers (Regulation of
Employment and Conditions of Service) Rules 2002, as a model and the same can be adopted for
the purpose of this Act. Copy of the same is available on internet and the same can be had from
the Government of Delhi.
Importance and applicability of Building and Other Construction Workers Welfare Cess Act,
1996 with relation to unorganized sector employees are explained.
Direct the Chief Secretary of the respective States and Secretary (Labour) of each States and the
Union Territories to take timely steps as per the provisions of the Act, if not already done. We
would like to have the appraisal report in the first week of May as to what steps have been taken

93
in this regard. If any of the State Government has not done anything pursuant to the Act, urgent
steps are to be taken so that the benefits of this legislation shall not go waste. Otherwise, the
unorganized workers of the construction sector will be denied the benefit of the Act.

GAURAV KUMAR BANSAL v. UNION OF INDIA AND ORS

(2017)6 SCC 730
BENCH:
Madan B. Lokur and Deepak Gupta

These two writ petitions were filed under Article 32 of the Constitution consequent upon
the unprecedented flood and landslide disaster that occurred in Uttarakhand in 2013.
Undoubtedly the disaster led to widespread damage to life, limb and property and
according to the petitioners, the adverse impact of the disaster could have been mitigated
had there been effective implementation of the Disaster Management Act, 2005 (for short
‘the Act’) and adequate preparedness by the State Government of Uttarakhand. It was
alleged in the writ petitions that many of the other States were also not fully prepared to
deal with a disaster and therefore necessary directions ought to be given by this Court for
proper implementation of the Act.
This Court took up the petitions in public interest and required responses to be filed by
the State Governments. However, as per the normal practice, the State Governments were
lax and extremely slow in filing affidavits. The Union Government was also a little slow
in ensuring that the Act is implemented in letter and spirit. Resultantly and apparently on
the prodding of this Court, the Union Government took some positive action and on 25th
February, 2016 a communication was sent to the Chief Secretaries of all the States by the
Joint Secretary (Policy and Plan) of the National Disaster Management Authority (for
short ‘the NDMA’). Through this letter, the NDMA required the Chief Secretaries of all
the States to frame minimum standards of relief for victims of disaster. This Court also
required the Chief Secretaries to formulate (among other
things) guidelines on minimum standards of relief for food, water, sanitation, medical
cover to be provided to persons affected by a disaster and also special provisions to be

94
made for widows and orphans. Unsurprisingly, there was again some laxity in complying
with the directions of this Court.
On 5th April, 2016 it was brought to the notice of this Court that Section 11 of the Act
requires the drawing up of a National Plan for disaster management in consultation with
State Governments and expert bodies or organizations in the field of disaster
management. It was brought out that while there is a policy document but the National
Plan has not yet been finalized.
It was also brought out that under Section 23 of the Act, each State is required to
formulate a State Plan for disaster management and under Section 31 of the Act each
district is required to formulate a plan for disaster management. It is unfortunate that
more than 10 years after the passage of the Act by Parliament, many of the States had not
taken adequate steps to ensure that the requirements under the Act were complied with
and disaster management plan formulated.
To make matters worse, we were informed on 14th September, 2016 that some States
particularly Himachal Pradesh, Kerala, Maharashtra, Meghalaya, Uttar Pradesh and West
Bengal had not yet responded to communications sent by the NDMA. Eventually,
however, it appears that all the State Governments have woken up to their statutory duties
and have formulated appropriate plans.
In the hearing held on 28th April, 2017 it was brought to our notice by learned counsel
appearing for the NDMA that a National Advisory Committee has since been constituted
under Section 7 of the Act by a notification dated 18th November, 2016 and the
Committee has a tenure of two years. Similarly, under Section 8 of the Act a National
Executive Committee has also been constituted by a notification issued on 27th
September, 2006 and that it is a continuing Committee in terms of the provisions of the
Act.
It was further pointed out that a National Plan has been approved and placed on the
website of the NDMA in terms of Section 11 of the Act and
the guidelines for minimum standards of relief under Section 12 of the Act have also
been placed on the website of the NDMA.
In further compliance with the provisions of the Act, a State Disaster Management
Authority has been constituted in all the States and Union Territories under Section 14 of

95
the Act and a State Executive Committee mandated under Section 20 of the Act has been
constituted except in the Union Territory of Chandigarh.

It was pointed out by the petitioner appearing in person that an Advisory Committee had
not been constituted by the State Disaster Management Authority under Section 17 of the
Act and that necessary directions should be given in this regard. Section 17 of the Act
reads as follows:- 17. Constitution of advisory committee by the State Authority – (1) A
State Authority may, as and when it considers necessary, constitute an advisory
committee, consisting of experts in the field of disaster management and having practical
experience of disaster management to make recommendations on different aspects of
disaster management. (2) The members of the advisory committee shall be paid such
allowances as may be prescribed by the State Government.”
On a plain reading of the above provision, we find that there is no mandate making
obligatory the establishment of an Advisory Committee. It is really for the State Disaster
Management Authority to constitute one or more Advisory Committee as and when it
becomes necessary to do so on different aspects of disaster management. Consequently,
on the plain language of Section 17 of the Act it is not possible for us to give any
direction as prayed for by the petitioner.
As far as the preparation of the State Plan under Section 23 of the Act is concerned, we
have been informed by learned counsel for the NDMA that all States except Andhra
Pradesh and Telangana have prepared a State Disaster Management Plan which is very
much in place.
As far as the districts are concerned, it is stated that the District Disaster Management
Authority has been constituted in every district under Section 25 of the Act and out of
684 districts in the country; a District Disaster Management Plan is in place in 615
districts while it is under process in the remaining districts.
On a review of the steps that have been taken by the NDMA, we are of opinion that there
has been sufficient compliance with the provisions of the Act and it is not necessary for
us to issue any particular directions. All we need say is that it is absolutely necessary for
the NDMA constituted at the national level and the State Disaster Management Authority
at the State level to be ever vigilant and ensure that if any unfortunate disaster strikes
there should be total preparedness and that minimum standards of relief are provided to

96
 all concerned. However, it would be advisable for the NDMA to regularly publish its
Annual Report (the last one on our record is of 2013-14), to review and update all plans
on the basis of experiences and to make its website ndma.gov.in multilingual so that all
concerned may benefit.
Directions issued for proper implementation of the Disaster Management Act, 2005 Act.
With these observations, we dispose of the writ petitions while acknowledging the efforts
put in by the petitioners in bringing into focus the necessity of implementing the statute
that might affect any one at any time.

K.C. VASANTH KUMAR AND ANR. VS. STATE OF KARNATAKA

AIR1985SC1495
BENCH:
Y.V. Chandrachud, C.J.,; A.P. Sen,; D.A. Desai,; E.S. Venkataramiah and; O. Ch

In India, social and educational backwardness is further associated with economic

backwardness and it is observed in Balaji's case referred to above that backwardness,
socially and educationally is ultimately and primarily due to poverty.
Having said this the Court was not prepared to lay down poverty as the exclusive test on
the ground that a large proportion of the population in India was poverty stricken and if
poverty was made the sole test for reservation, a resourceless situation might arise. But if
poverty is the exclusive test, a very large proportion of the population in India would
have to be regarded as socially and educationally backward and if reservations are made
only on the ground of economic considerations, an untenable situation may arise because
even in sectors which are recognized as socially and educationally advanced, there are
large pockets of poverty. In this country except for a small percentage of the population,
the people are generally poor-some being poorer, others less poor. Therefore, when a
social investigator tries to identify socially and educationally backward classes he may do
it with confidence that they are bound to be poor. Though the two words, 'Socially' and
'educationally' are used cumulatively or the purpose of describing the backward class, one
may find that if a class as a whole is educationally advanced, it is generally also socially
advanced because of the reformative effect of education on that class. The words

97
 'advanced' and 'backward' are only relative terms-there being several layers or strata of
classes, hovering between 'advanced' and 'backward', and the difficult task is which class
can be recognised out of these several layers as being socially and educationally
backward.
The Court while noticing the difficulty of defining the expression 'socially' and
'educationally' backward classes of citizens allowed itself to make the observation, 'the
traditional unchanging occupations of citizens may contribute to social and educational
backwardness. The place of habitation and its environment is also a determining factor in
judging the social and educational backwardness.

M. R. BALJI AND ORS. v. STATE OF MYSORE

[1963] 1 S.C.R. 439

BENCH:
Sinha, Bhuvneshwar P.(Cj), Gajendragadkar, P.B., Wanchoo, K.N., Gupta, K.C. Das,
Shah, J.C.

On the 26th, July 1958, the State issued an order that all the communities, excepting the
Brahmin community, fell within the definition of educationally and socially Backward
Classes and Scheduled Castes and Tribes, and provided for the said communities and
tribe’s reservation of 75% of seats in educational institutions. For the Scheduled Castes
and the Scheduled Tribes, the percentage of reservation was 15% and 3% respectively.
This percentage for the Scheduled Castes & Tribes has been maintained in all the
subsequent orders. The order issued by the State on the 26th July, 1958, was challenged
before the Mysore High Court and it appears that the State conceded before the High
Court that there was a drafting error in the Government Order and so, it did not press its
case that the said order was valid.

The problem raised for our decision by the present petitions involves the consideration of
sociological, social and economic factors, and so, before dealing with the contentions
raised by the parties before us, it is necessary to set out briefly the material which has
been adduced before us. On January 29, 1953, the President appointed the Backward

98
Classes Commission by virtue of the power conferred on him under Art. 340 (1) of the
Constitution. This Commission made its report on March 30, 1955. The Commission was
required "to investigate the conditions of socially and educationally backward classes
within the territory of India and the difficulties under which they labour, and to make
recommendations as to the steps that should be taken by the Union or any State to remove
such difficulties and to improve their condition." Art. 340 (1)]. According to the
Commission, the relevant factors to consider in classifying Backward Classes would be
their traditional occupation or profession; the percentage of literacy or the general
educational advancement made by them; the estimated population of the community, and
the distribution of the various communities throughout the State or their concentration in
certain areas. The Commission also thought that the social position that a community
occupies in the caste hierarchy would also have to be considered, as well as its
representation in Government service or in the industrial sphere. (p. 47). According to the
Commission the causes of educational backwardness amongst the educationally and
socially backward communities were:-
1. Traditional apathy for education because of social and environmental conditions or
occupational handicaps.
2. Poverty and lack of educational institutions in rural areas.
3. Living in inaccessible areas.
4. Lack of adequate educational aids, such as free studentships, scholarships and
monetary grants.
5. Lack of residential hostel facilities.
6. Unemployment among the educated which acts as a damper on the desire of the
members to educate their- children; and
7. Defective educational system, which does not train students for appropriate
occupations and professions. (p.- 107).
The Committee realized that, in substance, the problem of the Backward Classes is really
the problem of Rural India (p. 55). It appears that having considered several criteria ,
which may be relevant in determining which classes, are backward, the Committee
ultimately decided to treat the status of caste as an important factor in that behalf, and it is
on that basis that it proceeded to make a list of Backward Communities which were
specified in Volume 11 of the Report.

99
Dealing with the problem of university education, the Committee observed that the
present rush of students to the Universities should be prevented in the larger interests of
the country and that could be done only by training students in various occupations and
professions at the secondary stage itself. But the Committee noticed that so long as
University Degree qualification continues to be a pre- requisite to Government service, it
was not easy to prevent the rush at the doors of the Universities, and so, the Committee
proceeded to recommend that in all Science, Engineering, Medicine, Agriculture,
Veterinary and other technical institutions, a reservation of 70% of the seats should be
made for qualified students of Backward Classes till such time as accommodation can be
provided for all students eligible for admission. (pp. 119 & 125).
In the Hindu social structure, caste unfortunately plays an important part in determining
the status of the citizen. Though according to sociologists and Vedic scholars, the caste
system may have originally begun on occupational or functional basis, in course of time,
it became rigid and inflexible. The history of the growth of caste system shows that its
original functional and occupational basis was later over-burdened with considerations of
purity based on ritual concepts, and that led to its ramifications which introduced
inflexibility and rigidify. This artificial growth inevitably tended to create a feeling of
superiority and inferiority and to foster narrow caste loyalties. Therefore, in dealing with
the question as to whether any class of citizens is socially backward or not, it may not be
irrelevant to consider the caste of the said group of citizens. In this connection, it is,
however, necessary to bear in mind that the special provision is contemplated for classes
of citizens and not for individual citizens as such, and so, though the caste of the group of
citizens may be relevant, its importance should not be exaggerates. If the classification of
backward classes of citizens was based solely on the caste of the citizen, it may not
always be logical and may perhaps contain the vice of perpetuating the caste themselves.
Besides, if the caste of the group of citizens was made the sole basis for determining the
social backwardness of the said group, that test would inevitably break down in relation
to many sections of Indian society which do not recognize castes In the conventional
sense known to Hindu society.
Social backwardness is on the ultimate analysis the result of poverty, to a very large
extent. The classes of citizens who are deplorably poor automatically become socially
backward. They do not enjoy a status in society and have, therefore, to be content to take

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a backward seat. It is true that social backwardness, which results from poverty, is likely
to be aggravated by considerations of caste to which the poor citizens may belong, but
that only shows the relevance of both caste and poverty in determining the
backwardness of citizens.
The occupations of citizens may also contribute to make classes of citizens socially
backward. There are some occupations, which are treated as inferior according to
conventional beliefs, and classes of citizens who follow these occupations are apt to
become socially backward. The place of habitation also plays not a minor part in
determining the backwardness of a community of persons. In a sense, the problem of
social backwardness is the problem of Rural India and in that behalf, classes of citizens
occupying a socially backward position in rural area fall within the purview of Art.
15(4). The problem of determining whomsocially backward classes are is undoubtedly
very complex. Sociological, social and economic considerations come into play in
solving the problem and evolving proper criteria for determining which classes are
socially backward is obviously a very difficult task; it will need an elaborate investigation
and collection of data and examining the said data in a rational and scientific way.

It was observed that though caste in relation to Hindus may be a relevant factor to
consider in determining the social backwardness of groups or classes of citizens, it cannot
be made the sole or dominant test. Social backwardness is in the ultimate analysis the
result of poverty to a very large extent. The classes of citizens who are deplorably poor
automatically become socially backward. The problem of determining whomsocially
backward classes are is undoubtedly very complex, but the classification of socially
backward citizens based on their castes alone is not permissible under Article 15(4).
The Court could foresee the danger in treating caste as the sole criterion for determining
social and educational backwardness. The importance of the judgment lies in realistically
appraising the situation when it uttered the harsh but unquestionable truth that economic
backwardness would provide a much more reliable yardstick for determining social
backwardness because more often educational backwardness is the outcome of social
backwardness. The Court drew clear distinction between 'caste' and 'class'. The attempt at
finding a new basis for ascertaining social and educational backwardness in place of caste

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 reflected in this decision. Clairvoyance in this behalf displayed in our opinion is
praiseworthy.
The Constitution Bench has held that the reservation should and must be allowed to
advance the prospects of weaker sections of the society, but while doing so, care should
be taken not to exclude admission to higher educational standards of deserving and
qualified conditions of other communities. It has also been indicated that reservation
under Arts. 15(4) and 16(4) of the Constitution must be within a reasonable limit. The
interests of the weaker sections of the society, which are a first charge on the States and
the center, have to be adjusted with the interests of the community as a whole. The
objective of Art. 15(4) is to advance the interests of the weaker elements in society.

JANKI PRASED PARIMOO AND ORS. ETC. ETC. v. STATE OF JAMMU &
KASHMIR AND ORS.
[1973]3SCR236

BENCH:

Sikri, S.M. (Cj), Ray, A.N., Palekar, D.G., Beg, M. Hameedullah, Dwivedi, S.N.
It was observed that mere poverty cannot be a test of backwardness because in this
country except for a small percentage of the population, the people are generally poor-
some being more poor, others less poor. In the rural areas some sectors of the population
are advancing socially and educationally while other sectors are apathetic, applying this
yardstick, firstly classes following a traditional profession was held not to be socially
and educationally backward. Cultivators of land designated as backward measured by the
size of the holding was held to be impermissible on the ground that placing economic
consideration alone above other considerations, is erroneous to determine social and
educational backwardness.

BACHPAN BACHAO ANDOLAN VS UNION OF INDIA & ORS

(2011) 5 SCC 1

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BENCH:
Dalveer Bhandari, A.K. Patnaik

The petitioner found that circus is one of the ancient forms of indigenous entertainment in
the world, with humans having a major role to play. However, the activities that are
undertaken in these circuses deprive the artists especially children of their basic
fundamental rights. Most of them are trafficked from some poverty-stricken areas of
Nepal as well as from backward districts of India. The outside world has no meaning for
them. There is no life beyond the circus campus. Once they enter into the circuses, they
are confined to the circus arena, with no freedom of mobility and choice. They are
entrapped into the world of circuses for the rest of their lives, leading a vagrant tunnelled
existence away from the hub of society, which is tiresome, claustrophobic and dependent
on vicissitudes.
This petition has been filed in public interest under Article 32 of the Constitution in the
wake of serious violations and abuse of children who are forcefully detained in circuses,
in many instances, without any access to their families under extreme inhuman
conditions. There are instances of sexual abuse on a daily basis, physical abuse as well as
emotional abuse. The children are deprived of basic human needs of food and water. Her
complaint was that she and several other Nepalese girls had been trafficked and forced to
stay and perform in the circus where they were being sexually abused and were kept in
most inhuman conditions.

The petitioner further found that life of these children begins at dawn with training
instructors' shouting abuses, merciless beatings and two biscuits and a cup of tea. After 3
to 5 shows and of lot of pervert comments of the crowds, the young girls are allowed to
go back to their tents around midnight. Even then, life might have something else in
store, depending upon the nature and mood swings of the circus owners and managers. If
any child complains about the inadequate amount of food or the leaking tent in the rain or
if a child is scared on the rope while performing the trapeze, he/she is scolded and
maltreated by the managers or employers and sometimes even caned on one pretext or the
other.

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 There are no labour or any welfare laws, which protect the rights of these children.
Children are frequently physically, emotionally and sexually abused in these places.

Mostly, these children are sold to the circus owners either by the agents or their relatives
or sometimes the poor parents are lured into the web by promising high salaries,
luxurious life etc. However, some exceptional circuses were also found (only 4) that
treated their employees marginally better and allowed them to avail the privilege of
limited movement outside the circus campus for limited time, but child labour was
prevalent in these circuses as well and artists were not given minimum wages.Instability
in life, due to the circus's nomadic existence, makes it difficult for them to pursue formal
education, resulting in a large number of illiterate children and adults in circuses.
directions regarding children working in the Indian Circuses.

(i) In order to implement the fundamental right of the children under Article 21A it is
imperative that the Central Government must issue suitable notifications prohibiting the
employment of children in circuses within two months from today.

(ii) The respondents are directed to conduct simultaneous raids in all the circuses to
liberate the children and check the violation of fundamental rights of the children. Keep
the rescued children in the Care and Protective Homes till they attain the age of 18
years.

(iii) The respondents are also directed to talk to the parents of the children and in case
they are willing to take their children back to their homes, they may be directed to do so
after proper verification.

(iv) The respondents are directed to frame proper scheme of rehabilitation of rescued
children from circuses.

(v) We direct the Secretary of Ministry of Human Resources Development, Department

of Women and Child Development to file a comprehensive affidavit of compliance
within ten weeks.

Children's rights - Abuse of human rights of children in circuses - Rescue, rehabilitation

and social integration of children/juveniles working in circuses - Directions regarding, issued
- Though writ petitioner was concerned with human rights violations of children in

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circuses, Solicitor General broadening scope of petition and presenting broader evil of
child trafficking and violation of children's rights in general rather than confining it only to
circuses - Supreme Court noting comprehensive suggestions and reports presented and
acknowledging that children's exploitation needs to be systematically dealt with - But
before going to other aspects, Supreme Court first dealing with children working in Indian
circuses - Employment of children below 18 years in circuses, held, is unconstitutional
and illegal - Central Government directed to issue notification prohibiting employment of
children/juveniles in circuses, conduct raids and liberate children/juveniles, send them to
protective homes and hand them over to their parents after proper verification - State directed to
frame proper scheme for rehabilitation of rescued children from circuses - Secretary, Ministry
of Human Resource Development, Department of Women and Child Development directed
to file a comprehensive affidavit of compliance within ten weeks - Certain other directions
issued for coordinated action at the State level.

NANDINI SUNDAR & ORS. v. STATE OF CHATTISGARH

AIR 2011 SC 2839
BENCH:
Hon'ble Mr. Justice B. Sudershan Reddy Hon'ble Mr. Justice Surinder Singh Nijjar

The instant writ petition was filed, in 2007, by: (i) Dr. Nandini Sunder, a professor of
Sociology at Delhi School of Economics, and the author of "Subalterns and Sovereigns:
An Anthropological History of Bastar" (2nd Ed. 2007); (ii) Dr. Ramachandra Guha, a
well known historian, environmentalist and columnist, and author of several books,
including "Savaging the Civilised: Verrier Elwin, His Tribals and India" (1999) and
"India After Gandhi" (2007); and (iii) Mr. E.A.S. Sarma, former Secretary to
Government of India, and former Commissioner, Tribal Welfare, Government of Andhra
Pradesh. The petitioners have alleged, inter-alia, widespread violation of human rights of
people of Dantewada District, and its neighboring areas in the State of Chhattisgarh,
because of the on going armed Maoist/Naxalite insurgency, and the counter-insurgency
offensives launched by the Government of Chattisgarh. In this regard, it was also alleged
that the State of Chattisgarh was actively promoting the activities of a group called

105
"SalwaJudum", which was in fact an armed civilian vigilante group, thereby further
exacerbating the ongoing struggle, and was leading to further widespread violation of
human rights.
The judges further added that when state power is not exercised in a responsible manner,
then there is an inevitable breach of Arts. 14 and 21.In using fraternity in such a manner,
the Court has elevated the idea of fraternity to a constitutional principle and located it
within the idea of constitutionalism and not merely a noble declaration. In drawing a
clear link between unchecked state power and Arts. 14 and 21, the Court has created a
nexus between the threat to fraternity and a consequent breach of fundamental rights. In
doing so, the Court has brought the principle of fraternity in the Preamble and the
fundamental rights under Part III closer together. The Court also employed the principle
of fraternity as a means to advocate a more equitable and inclusive economic policy of
the Government. The judges stated that it was the responsibility of the Government to
ensure the security and integrity of the nation by means which were within the four
corners of the Constitution. One of many ways to achieve a unified nation, where a
culture of fraternity flourished would be to ensure that the economic policy of the
Government did not give rise to “disaffection and dissatisfaction” from its citizens. The
justification for such an opinion, the judges held, was evident from Part IV of the
Constitution. The Court further went on to qualify its sentiments by stating that only
when social, political and economic justice was ensured, would the constitutional
promise of fraternity be realized. The Court stated in unambiguous terms that the State
would not be able to promote fraternity, so long as it pursued a predatory form of
capitalism that was inconsistent with the idea of directive principles of state policy. The
Court also used the principle of fraternity as a means to remind the Centre of its
responsibility in protecting fundamental rights. The Court expressed its displeasure that
the Central Government was aware of the practice of appointment of SPOs in Chattisgarh
and was also involved in the reimbursement of such individuals. In response to an
argument that law and order is a state subject and hence the Centre could not interfere,
the Court asserted that despite the federal structure India is committed to the Central
Government has an obligation to protect fundamental rights and ensure fraternity. The
use of fraternity in this manner is indicative that the idea of fraternity not only binds all

106
the organs of the State, but also binds all levels of the state to certain constitutional
limitations.
1. The unguided power under the Chattisgarh Police Act 2007 to appoint Special Police
Officers is declared unconstitutional. An exception is permitted for non-combat purposes
such as relief assistance in disasters.
2. The state of Chattisgarh is to refrain from using SPOs for any other purpose, and must
recall all firearms that have been distributed. It must provide security to these SPOs.
3. It must prevent the operation of SalwaJudum and other private armed groups.
The Court found that the SPOs are mostly poor, young and uneducated tribals. They are
provided with negligible training, burdened with all the responsibilities of a police
officer, provided with fire arms, and used in combat operations against naxals. In this
role, they are quickly marked as targets by naxals. At one point, the Court described them
being used as cannon-fodder and held that their constitutional rights under Articles 14
and 21 were being violated.
The Court did not spend much intellectual energy to justify its SalwaJudum order. It is
an obvious point that the State must not tolerate, let alone encourage, private militias –
the Court treated this as such.
The Court employed the idea of fraternity in three distinct fashions: as a buffer to
unchecked state power; as a mechanism to promote more inclusive economic policy in
consonance with directive principles of state policy and finally to reinforce the Centre’s
responsibility of upholding human rights in a federal structure. The primary
characterization of fraternity was perceived as a means to check uncontrolled state power
that was inconsistent with the constitutional vision of a responsible State. The judges
clearly stated that governmental policies that disempower and dehumanize its citizenry,
are against the constitutional vision which mandates that power must vest in the State for
the welfare of all. The constitutional vision of welfare must be achieved, according to the
judges, through the assurance of dignity and the promotion of fraternity.
The following off-the-cuff comments are presented in order to inspire debate:
1. The legal reasoning of the Court is very sound, and in keeping with a great tradition of
judges standing up to political power seeking suspension of civil liberties during
emergencies. The Court disagrees with Cicero to say ‘Laws cannot remain silent when
the canon’s roar.’ (para 71) Standing up for civil liberties, especially at the times of crisis,

107
is a classic counter-majoritarian judicial function which judges across the world have
proudly performed time and again (and one that our own Supreme Court miserably failed
to perform in ADM Jabalpur in a different age). The Court insists that ‘The fight against
terrorism and/or extremism cannot be effectuated by constitutional democracies by
whatever means that are deemed to be efficient. Efficiency is not the sole arbiter of all
values, and goals that constitutional democracies seek to be guided by, and achieve.‘
In this insistence, no judicial impropriety or breach of separation of powers is evident.
2. The case is yet another remarkable example of the difficulties constitutional courts face
in dealing with evidentiary issues. India has one of the few constitutions which allow
constitutional courts to be courts of first instance in such a large number of cases. Bereft
of the facts determined by a trial court in accordance with well-established rules of
evidence, the Court is limited to reading between the lines in conflicting affidavit
evidence. We saw similar problems in cases such as Narmada BachaoAndolan and in the
Ayodhya case. (Most other constitutional courts have been known to exercise their
original jurisdiction extremely sparingly for two reasons – first, as already pointed out,
the trial process is the best way to judicially determine facts. Second, if another court has
applied its mind to a case, legal issues are clarified and an appellate court has the benefit
of at least one other reasoned opinion before making up its own mind. Arguably, this
reduces the chances of serious mistakes.)
To clarify, I do not intend this point as a criticism of what the Court did in this case. If
anything, the analysis of the patchy and difficult evidence before the Court is rather
commendable. Its job would have been much easier, however, if it had the benefit of facts
determined by a trial court.
3. The use of public interest litigation to bring this action is fascinating. There was clear
public interest involved in the case (the fear that thousands of unemployed armed men
scarred by political violence can destabilise society). While this was one of the reasons
for the Court’s orders, these orders were also justified in part on the basis that the
constitutional rights of SPOs were violated. The irony is that the only interested voice
absent in the proceedings was that of an SPO. Some of the language used by the Court to
describe the tribal youths recruited as SPOs is cringe-makingly paternalistic, if
thoroughly well-intentioned.

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 VIKRAM VIR VOHRA v. SHALINI BHALLA
(2010)4 SCC 179
BENCH:
G.S. Singhvi, Asok Kumar Ganguly

The parties to the present appeal were married as per the Hindu rites on 10.12.2000. A
child, Master Shivam, was born to them on 05.08.02. In view of irreconcilable
differences between the parties they had agreed for a divorce by mutual consent
under Section 13-B of the Act and filed a petition to that effect and on 05.09.06 a decree
of divorce on mutual consent was passed by the Additional District Judge, Delhi.As
regards the custody of the child there was some settlement between the parties and
according to the appellant the same was incorporated in paras 7 and 9 of the petition filed
under Section 13-B (2) of the Act. Those paragraphs are as under:

"The parties have agreed that the custody of the minor son Master Shivam shall remain
with the mother, petitioner No.1 who being the natural mother is also the guardian of the
son Master Shivam as per law laid down by the Supreme Court of India. It is, however,
agreed that the father petitioner shall have right of visitation only to the extent that the
child Master Shivam shall be with the father, petitioner No.2, once in a fortnight from 10
AM to 6.30 PM on a Saturday. Petitioner No.2 shall collect the child Master Shivam from
WZ-64, 2nd Floor Shiv Nagar Lane No.4, New Delhi-58 at 10 AM on a Saturday where
the child is with his mother. And on the same day at by 6.30 PM, the petitioner No.2
would leave the child back at the same place with the mother i.e. petitioner No.1 and in
case he does not do so petitioner No.1 the mother shall collect the child from petitioner
No.2 on the same day. Both parties undertake before this Hon'ble Court that they would
not create any obstruction in implementation of this arrangement.

The petitioner No.1 shall take adequate care of the child in respect of health, education
etc., at her own cost. In case the petitioner No.1 changes her address or takes the child
outside Delhi, she shall keep petitioner No.2 informed one week in advance about the
address and telephone nos. and the place where the child would be staying with the
mother, to enable the petitioner No.2 to remain in touch with the child.

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The petitioner No.1 has received all her Stridhan and other valuables, articles and other
possessions, and nothing remains due to her from the petitioner No.2. The petitioner No.1
and the child Shivam has no claim to any property or financial commitment from
petitioner No.2 and all her claims are settled fully and finally".

Thereafter the respondent-wife filed applications dated 07.11.06 and 9.05.08 and
the appellant-husband also filed applications dated 17.11.07 and 16.02.09 under Section
26 of the Act seeking modification of those terms and conditions about the custody of the
child.

The respondent was basing her claim on the fact that she wanted to take the child with
her to Australia where she was employed for gain with a request to revoke the visitation
rights granted to the appellant for meeting the child. This she felt will be conducive to
the paramount interest and welfare of the child. The appellant on the other hand sought
permanent custody of the child under the changed circumstances alleging that it is not in
the interest of the child to leave India permanently.

The Trial Court vide its order took notice of the fact that in the joint petition of divorce,
parties voluntarily agreed that the custody of the child shall remain with the mother and
father shall have only visiting rights, in the manner indicated in the mutual divorce decree.
The Court modified the terms and conditions of the custody and visitation rights of the
appellant about the minor child. By its order the Trial Court had allowed the
respondent to take the child with her to Australia but also directed her to bring
the child back to India for allowing the father visitation rights twice in a year
i.e. for two terms - between 18th of December to 26th of January and then from 26th of
June to 11th of July.

Being aggrieved by that order of the Trial Court, the appellant appealed to the High Court.
It was argued by the appellant since no decree was passed by the Court while granting
mutual divorce, an application under Section 26 of the Act does not lie and in the absence
of specific provision in the decree regarding the custody and visitation rights of the child,
the Trial Court has no jurisdiction to entertain the petition afresh after passing of the
decree.

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The High Court took into consideration the provisions of Section 26 of the Act and was
of the view that the aforesaid provision is intended to enable the Court to pass suitable
orders from time to time to protect the interest of minor children. However, the High
Court held that after the final order is passed in original petition of divorce for the
custody of the minor child, the other party cannot file any number of fresh petitions
ignoring the earlier order passed by the Court.

The Court took into consideration that even if the terms and conditions regarding the
custody and visitation rights of the child are not specifically contained in the decree, they
do form part of the petition seeking divorce by mutual consent. It was of the view that
absence of the terms and conditions in the decree does not disentitle the respondent to file
an application under Section 26 of the Act seeking revocation of the visitation rights of
the appellant.

It is important to mention here that the learned Judge of the High Court had personally
interviewed the child who was about 7 years old to ascertain his wishes. The child in
categorical terms expressed his desire to be in the custody and guardianship of his mother,
the respondent. The child appeared to be quite intelligent. The child was specifically
asked if he wanted to live with his father in India but he unequivocally refused to go with
or stay with him. He made it clear in his expression that he was happy with his mother
and maternal grandmother and desired only to live with his mother. The aforesaid
procedure was also followed by the learned Trial Court and it was also of the same view
after talking with the child.

The Court also talked with the child in our chambers in the absence of his parents &
found him to be quite intelligent and discerning. The child is in school and from the
behaviour of the child, we could make out that he is well behaved and that he is receiving
proper education. The child categorically stated that he wants to stay with his mother. It
appears to us that the child is about 8-10 years of age and is in a very formative and
impressionable stage in his life. The welfare of the child is of paramount importance in
matters relating to child custody and this Court has held that welfare of the child may
have a primacy even over statutory provisions [ We have considered this matter in all its
aspects.

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The argument of the learned counsel for the appellant, that in view of the provisions
of Section 26 of the Act, the order of custody of the child and the visitation rights of
the appellant cannot be changed as they are not reflected in the decree of mutual divorce,
is far too hyper technical an objection to be considered seriously in a custody proceeding.
A child is not a chattel nor is he/she an article of personal property to be shared in equal
halves.

In a matter relating to custody of a child, this Court must remember that it is dealing
with a very sensitive issue in considering the nature of care and affection that a child
requires in the growing stages of his or her life. That is why custody orders are always
considered interlocutory orders and by the nature of such proceedings custody orders
cannot be made rigid and final. They are capable of being altered and moulded
keeping in mind the needs of the child.

Even though the aforesaid principles have been laid down in proceedings under the
Guardians and Wards Act, 1890, these principles are equally applicable in dealing with
the custody of a child under Section 26 of the Act since in both the situations two things
are common; the first, being orders relating to custody of a growing child and secondly,
the paramount consideration of the welfare of the child. Such considerations are never
static nor can they be squeezed in a strait jacket. Therefore, each case has to be dealt with
on the basis of its peculiar facts.

"Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and
declares that in any proceeding under the said Act, the court could make, from time to
time, such interim orders as it might deem just and proper with respect to custody,
maintenance and education of minor children, consistently with their wishes, wherever
possible.

The principles in relation to the custody of a minor child are well settled. In determining
the question as to who should be given custody of a minor child, the paramount
consideration is the "welfare of the child" and not rights of the parents under a statute for
the time being in force". That is why this Court has all along insisted on focussing the
welfare of the child and accepted it to be the paramount consideration guiding the Court's

112
discretion in custody order. In the factual and legal background considered above, the
objections raised by the appellant do not hold much water.

The principles in relation to the custody of a minor child are well settled. In determining
the question as to who should be given custody of a minor child, the paramount
consideration is the "welfare of the child" and not rights of the parents under a statute for
the time being in force". That is why this Court has all along insisted on focusing the
welfare of the child and accepted it to be the paramount consideration guiding the Court's
discretion in custody order.

Now coming to the question of the child being taken to Australia and the consequent
variations in the visitation rights of the father, this Court finds that the Respondent
mother is getting a better job opportunity in Australia. Court cannot curtail her autonomy
on her personhood on the ground of a prior order of custody of the child. Every person
has a right to develop his or her potential. In fact a right to development is a basic human
right. The respondent-mother cannot be asked to choose between her child and her
career. It is clear that the child is very dear to her and she will spare no pains to ensure
that the child gets proper education and training in order to develop his faculties and
ultimately to become a good citizen. If the custody of the child is denied to her, she may
not be able to pursue her career in Australia and that may not be conducive either to the
development of her career or to the future prospects of the child. Separating the child
from his mother will be disastrous to both. Insofar as the father is concerned, heis
already established in India and he is financially solvent. His visitation rights have
been ensured in the impugned orders of the High Court. His rights have been varied but
have not been totally ignored. The appellant-father, for all these years, lived without the
child and got used to it.In the application dated 9.5.2008 filed before the Additional
District Judge, Delhi, the mother made it clear in paragraph 12 that she is ready to
furnish any undertaking or bond in order to ensure her return to India and to make
available to the father, his visitation rights subject to the education of the child.

This Court finds that as far as the order, which had been passed by the High Court,
affirming the order of the Trial Court, the visitation rights of the appellant-father, have
been so structured as to be compatible with the educational career of the child. This Court

113
finds that in this matter judicial discretion has been properly balanced between the rights
of the appellant and those of the respondent. In that view of the matter, this Court refuses
to interfere with the order passed by the High Court. The appeal is dismissed with the
direction that the respondent-mother, before taking the child to Australia, must file an
undertaking to the satisfaction of the Court of Additional District Judge-01, (West), Delhi
within a period of four weeks from date. No order as to costs.

INTRODUCTION ABOUT POVERTY

114
Overcoming poverty is not a gesture of charity. It is an act of justice. It is the protection
of a fundamental human right, the right to dignity and a decent life. While poverty
persists, there is no true freedom----Nelson Mandela,

Satisfaction of human needs is widely accepted as a characteristic of any just society.

However, in view of the stages of development and ideological preferences there may be
marked difference between one society and another on the issue of perception of human
needs, priorities of human needs and the techniques deployed for securing them. Though
human needs issues have been traditionally explored by disciplines like Economics,
Political Science, Anthropology and Psychology but in recent times human need have
started receiving the attention of legal scholars, who have made human needs their
starting points for more meaningful enquiries in the fields of human rights, social justice,
individual liberty, equality, etc. In this context the food need has acquired a distinct status
in some of the recent researches and studies in the field of International Law and
Jurisprudence. Justice is an idea that affirms social equality against any kind of
discrimination or abuse out of social class or any other reason. It is a concept involving
fair, moral and impartial treatment of all people who faces injustice in some or the other
way. Identification of Human Needs urge or drive may be understood as a physiological
or social requirement of the body or the mind which is considered essential for the
maintenance of human life. In respect of physiological or homeostatic needs the
biological sciences are more unanimous in producing scientific information regarding the
essential needs relating to general hunger and specific food appetites, thirst, respiration,
constant internal temperature and sleep, rest after fatigue and work after rest, etc. Though
the social categorization of the 'needy' on the basis of caste, landlessness, working class,
gender and juvenile status may prove a useful criteria for fulfilling basic needs of
particular type such as the need to remove social stigma and access to social resources in
case of Scheduled Caste or women, etc., but the criterion of poverty line provides a
generally acceptable basis. It can be assumed safely that the below poverty line
population would also suffer for want of multifarious needs.

DEFINITION AND KINDS OF POVERTY

Problem of Poverty:

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Poverty is an age-old social malaise and global problem. The problems of how to define
and measure poverty cannot proceed until we clarify the conception of poverty we wish
to employ. Three broad concepts of poverty can be identified. According to Martin Rein,
poverty may be regarded as subsistence, inequality or externality. Subsistence is
concerned with the minimum of provision needed to maintain health and working
capacity. Its terms of reference are the capacity to survive and to maintain physical
efficiency. Inequality is concerned with the relative position of income groups to each
other. Poverty cannot be understood by isolating the poor and treating them as a special
group. Society is seen as a series of stratified income layer and poverty is concerned with
how the bottom layers fare relative to the rest of society. Hence, the concept of poverty
must be seen in the context of society as a whole. Poverty consists of social problems
correlated with lowincome.

Definitions of Poverty:
Oppenheim says, ‘Poverty means going short materially, socially and emotionally. It
means spending less on food, on heating and on clothing than someone on the average
income… Above all, poverty takes away the tools to build the blocks for the future your
‘life chances’. It seals away the opportunity to have a life unmarked by sickness, a decent
education, a secure home and a long retirement.”
According to Goodard, “Poverty is insufficient supply of those things which are requisite
for an individual to maintain himself and those depend upon him in health and vigour.”
According to Gillin and Gillin, “Poverty is that condition in which a person, either
because of inadequate income or unwise expenditures, does not maintain a scale of living
high enough to provide for his physical and mental efficiency and to enable him and his
natural dependents to function usefully according to the standards of society of which he
is a member.”
According to Adam Smith, “Man is rich or poor according to the degree in which he can
afford to enjoy the necessaries, the conveniences and the amusements of life.”
John L. Gillin says that poverty is “a condition in which a person cannot maintain himself
in accordance with the living standards of his groups and hence is unable to achieve the
mental and physical efficiency to function usefully in it.”

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Townsend defines poverty as inequalities in the distribution of five resources including
income, capital assets, occupational fringe benefits, current public services andcurrent
private services. In the worlds of Townsend “Individuals, families and groups in the
population cab be said to be in poverty when they lack the resources to obtain the type of
diet, participate in the activities and have the living conditions and amenities which
arecustomary…. in the societies to which they belong.”
Poverty in India has been defined as that situation in which an individual fails to
earnincome sufficient to buy him bare means of subsistence. Poverty in India context is
defined interms of both ‘minimum needs’ and ‘ability’ to satisfy the wants. Ability to
satisfy needs ismeasured in terms of critical level of money income regardless of living
conditions.
Corresponding to economists concept of poverty as inadequate command overresources
relative to needs, poverty is defined in two quite different ways: as a question
ofsubsistence level, and as a question of relative deprivation (interpreted in an objective
andnot, as by some sociologists, a subjective sense). The sociologists, who consider the
subjectof poverty-like that of crime, mental illness, family life-within the context of
social problems,proceed on the assumption that others – economists and/or policy-
makers, have already performed the task of defining the poverty level or the size of the
poor population. Yeteven when they conceptualize and explain poverty in terms of the
pattern of behavior andvalues, they adopt two quite different perspectives: according to
the cultural perspective, thepoor are seen as manifesting patterns of behavior and values
characteristically different fromthose of the dominant society and culture; according to
the situational perspective, thebehavior patterns of the poor are not derived from a unique
value system but reflect thedominant social structure which restricts the opinions of the
poor.
Prof. UpendraBaxi preferred to substitute the word ‘poverty’ with ‘impoverishment’and
the word ‘poor’ with the word ‘impoverished’ because people are not naturally poor
butare made poor, that impoverishment is a dynamic process of public decision-making
in whichit is considered just, right and fair that some people may become or stay
impoverished. Prof.Baxi says, “Impoverishment of people is a matter of conscious
planning by those who are notimpoverished. Both state policies and our innumerable
daily actions decide who, how many,to what extent, for how long and with what cost

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shall become or remain impoverished. Boththe State and society are equal partners in
India in generating the strata or under-class of theimpoverished.”
Subsistence-level Definition of Poverty (Need-based Concept of Poverty)
Destitution is extreme hardship or misery. It is conscious suffering which can occur inany
society. But it is often taken to mean the problems of starvation, destruction of home
andcommunity and, for some, early death, which are associated with poverty on a global
scale.This is an acute and catastrophic problem, which attracts immediate international
action.Destruction is the poverty of the whole community.A definition of poverty in
terms of subsistence levels of living has had wideacceptance because it seems to accord
with common sense and appears to be divorced frompersonal values of either harshness
or compassion. It seeks to describe poverty objectively aslack of the income needed to
acquire the minimum necessities of life.
Adam Smith wrote that customary standards also determine what a necessity is. Tohave
no shoes in England is to be deprived of a necessity, though this is not so for women in
Scotland, and for either men or women in France. But the shame that the shoeless feel
whenappearing in public in a society in which wearing shoes is part of social custom is
notrelative; they are not more ashamed than others. It is an absolute deprivation. Peter
Townsendreports that it may be impossible to avoid shame in the 1980s in London if one
cannot giveone’s children treats. These feelings might in turn derive from a sense of lack
of participationin community life, or lack of self-respect.
Subsistence is the minimum needed to sustain life, and so being below subsistencelevel is
to be experiencing absolute poverty because one does not have enough to live on.Ifpeople
are not provided with enough for subsistence, they will starve.
A definition of poverty is in terms of minimum provisions needed to survive and
tomaintain efficiency. A pure biological definition of necessity would exclude, except
forreproduction, almost everything except food and water. Yet, there is no extrinsic
standard fordetermining even food adequacy so that reliance has to be placed on a
judgment of nutritionneed, which takes into, account both actual levels and patterns of
living and nutritionalrequirements as estimated by experts. The lack of basic needs of
life, criterion of poverty isalso essentially relative because the things thought to be
necessary vary widely from societyto society and from period to period. As Adam Smith
recognized, ‘By necessaries Iunderstand not only, the commodities which are

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indispensably necessary for the support oflife, but whatever the custom of the country
renders it indecent for creditable people, even ofthe lower order, to be without. A linen
shirt, for example, is strictly speaking not a necessityof life. But in the present time, a
creditable day labourer would be ashamed to appear inpublic without a linen shirt.’
According to J. Murray Luck, “The wants to be considered here are the
recognizedbiological necessities – food and drink. Little will be said about housing. The
need for sheltervaries according to locale and to social custom: it cannot be accurately
measured. Fuel isessential for survival in a cold environment, but this too is a regional
and variable necessity.
A similar consideration applies to clothing. The conventional biological definition of
anecessity…. excludes, except for reproduction, almost everything except food and
water.”
Rowntree, who was the first to attempt a rigorous definition of poverty in
subsistenceterm, included ‘non-necessities’ such as tea in his subsistence measures. In a
second study in1936, he also included the cost of radio, a newspaper, and presents for
children and holidays.
This is not only a recognition that subsistence standards may not be the same thing
asavoidance of starvation, but also that the standards do change over time. Fiegchen
noted thatsubsistence definition too allows raising minimum levels as living standards
improve.Subsistence poverty is largely what Rowntree understood by poverty; not
havingenough to get by, or not having enough to meet one’s needs. It is also what
Beveridge meantby the evil of ‘want’, which although it implies some element of choice
was intended toconvey the notion of needs which had to be fulfilled and which it was the
responsibility of theState, through social security, to meet.
The fact that the subsistence-level definition of poverty is arbitrary (because of a lackof
extrinsic standard), relative (because it changes as the overall level of affluence
change),and circular (because to take account of the customary behavior requires that the
populationhas already been divided between the poor and the non-poor) his two
consequences: (1) the number of the poor being sensitive to poverty standard, the same
data can make povertyeither a significant or a trivial problem, depending upon whether
the standard is generous orstringent. The refinements in the technique of operational zing

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the subsistence-leveldefinition of poverty in fact introduce grater possibilities of
significant variation in theestimated extent of poverty.

DIMENSIONS OF POVERTY

"Poverty as a lived experience is often characterized not just by low income, but by ill
health, insecurity, discomfort, isolation, and lack of agency," Poverty is a multi-
dimensional concept. Poverty is not the same as inequality. While poverty is concerned
with the absolute standard of living of a part of the society - the poor; inequality refers to
relative living standards across the whole society. At maximum, inequality one person
has everything and clearly, poverty is high.
There are five main findings. First, many factors converge to make poverty a complex,
multidimensional phenomenon. Second, as expected, poverty is routinely defined as the
lack of what is necessary for material well-being — especially food but also housing,
land, and other assets. Poverty is the lack of multiple resources leading to physical
deprivation. Third, poor people’s definitions reveal important psychological aspects of
poverty. Poor people are acutely aware of their lack of voice, power, and independence,
which subject them to exploitation. Their poverty also leaves them vulnerable to
rudeness, humiliation, and inhumane treatment by both private and public agents of the
state from whom they seek help. Poor people also speak about the pain brought about by
their unavoidable violation of social norms and their inability to maintain cultural identity
through participating in traditions, festivals, and rituals. Their inability to fully participate
in community life leads to a breakdown of social relations. Fourth, the absence of basic
infrastructure — particularly roads, transport, water, and health facilities — emerged as
critical. While literacy is viewed as important, schooling receives mixed reviews,
occasionally highly valued but often notably irrelevant in the lives of poor people.
Finally, poor people focus on assets rather than income and link their lack of physical,
human, social, and environmental assets to their vulnerability and exposure to risk.
There are two broad concepts of poverty: relative poverty and absolute poverty. While
relative poverty is measured in terms of inequality in the distribution of income, absolute
poverty is reckoned in terms of some kind of notion of subsistence considered
appropriate to the circumstances ofthe country (or group of countries) concerned. In

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developing countries where incomes are low, absolute poverty is generally reflected
mainly in inadequacy of food intake and the consequent undernourishment on a mass
scale, though the definition of subsistence appropriate to such countries might (in fact
should) also include essential minimum needs such as clothing, housing, fuel, light,
education, health, etc. Thus, any measure ofrelative poverty is, therefore, inextricably
embedded in the measure of inequality, whereas a measure of absolute poverty primarily
depends on an exogenously determined standard of poverty line, which represents a
socially acceptable minimum level of living.
The problem of rural poverty in India is a problem of low per capita income, income
inequalities resulting from unequal distribution of income, low growth rate of the
economy and inequitable distribution of even the small gains of development. Economic
growth in aggregate, has limited relevance from the point of view of economic welfare,
which is very much reflected by the reduction in the incidence of poverty and
unemployment. Reduction in the incidence of rural unemployment and underemployment
and eradication of poverty has been the major thrusts of India’s successive Five Year
Plans.The incidence of rural poverty is also reflected by the rapid growth in the number
of marginal and smallholdings. Per capita income is one of the important indicators of
poverty.
The basic objective of planning has been to initiate the process of development which
will raise the living standards and open out to the people new opportunities for a richer
and more varied life. This objective varied from Plan to Plan. To initiate the process of
development which would ensure a steady rise in the national income and the standard of
living over a period was one of the basic objectives of the First Five Year Plan.
The basic objective of development programmes during the Third Five Year Plan was to
provide the masses ofthe Indian people the opportunity to lead a good life by combating
the course of poverty, with all the ills that it produces and it is recognized that this can
only be done through socio-economic advance, so as to build up a technologically mature
society and a social order which offers equal opportunities to all citizens. The first
condition for securing equality of opportunity and achieving a national minimum is
assurance of gainful employment for everyone who seeks work.
According to the Fourth Five Year Plan, “In the implementation of the programme, the
weakest are looked after and the benefits of development are made to flow by planned

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investment in the under-developed regions and among the more backward sections ofthe
community.
INTELLECTUAL POVERTY
Poverty has been known to be a major risk factor for adverse life outcomes for decades.
However, these issues were generally seen as more issues of ‘state’ than ‘trait’ and thus
presumed to be transient in nature. This gave rise to the idea that lifting someone out of
poverty or giving them the appropriate moralistic prod, would be sufficient to solve the
problem. Some, as indicative of moral deficiency… or racial inferiority, therefore, have
cast the persistence of poverty,. However, work this century is increasingly pointing to
the long lasting impacts on the size and shape (morphology) of the brain, of being raised
in poverty. Because the brain is the organ from which all cognition and emotion
originates, healthy human brain development represents the foundation of our
civilization. Accordingly, there is perhaps nothing more important that a society must do
than foster and protect the brain development of our children.
A group of neglected infections is emerging as important causes of psychiatric and
mental illness among vulnerable populations living in extreme poverty in the United
States. These chronic infections may partially account for the achievement gap noted
among socioeconomically disadvantaged students.

MENTAL DISABILITY

Mental health is an integral and essential component of health. The WHO constitution
states: "Health is a state of complete physical, mental and social well-being and not
merely the absence of disease or infirmity." An important implication of this definition is
that mental health is more than just the absence of mental disorders or disabilities.

Mental health is a state of well-being in which an individual realizes his or her own
abilities, can cope with the normal stresses of life, can work productively and is able to
make a contribution to his or her community.Mental health is fundamental to our
collective and individual ability as humans to think, emote, interact with each other, earn
a living and enjoy life. On this basis, the promotion, protection and restoration of mental
health can be regarded as a vital concern of individuals, communities and societies
throughout the world.

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 Determinants of mental health

Multiple social, psychological, and biological factors determine the level of mental health
of a person at any point of time. For example, violence and persistent socio-economic
pressures are recognized risks to mental health. The clearest evidence is associated with
sexual violence.

Poor mental health is also associated with rapid social change, stressful work conditions,
gender discrimination, social exclusion, unhealthy lifestyle, physical ill-health and human
rights violations.There are specific psychological and personality factors that make
people vulnerable to mental health problems. Biological risks include genetic factors.

Mental health promotion and protection

Mental health promotion involves actions that improve psychological well-being. This
may involve creating an environment that supports mental health.

An environment that respects and protects basic civil, political, socio-economic and
cultural rights is fundamental to mental health. Without the security and freedom
provided by these rights, it is difficult to maintain a high level of mental health.

National mental health policies should be concerned both with mental disorders and, with
broader issues that promote mental health. Mental health promotion should be
mainstreamed into governmental and nongovernmental policies and programmes. In
addition to the health sector, it is essential to involve the education, labour, justice,
transport, environment, housing, and welfare sectors.

Specific ways to promote mental health include:early childhood interventions (e.g.

providing a stable environment that is sensitive to children’s health and nutritional needs,
with protection from threats, opportunities for early learning, and interactions that are
responsive, emotionally supportive and developmentally stimulating);

• support to children (e.g. life skills programmes, child and youth development
programmes);

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 • socio-economic empowerment of women (e.g. improving access to education and
microcredit schemes);
• social support for elderly populations (e.g. befriending initiatives, community and day
centres for the aged);
• programmes targeted at vulnerable people, including minorities, indigenous people,
migrants and people affected by conflicts and disasters (e.g. psycho-social interventions
after disasters);
• mental health promotional activities in schools (e.g. programmes involving supportive
ecological changes in schools);
• mental health interventions at work (e.g. stress prevention programmes);
• housing policies (e.g. housing improvement);
• ·violence prevention programmes (e.g. reducing availability of alcohol and access to arms);
• community development programmes (e.g. integrated rural development);
• poverty reduction and social protection for the poor;
• anti-discrimination laws and campaigns;
• promotion of the rights, opportunities and care of individuals with mental disorders.

Mental health care and treatment

In the context of national efforts to develop and implement mental health policy, it is vital to not
only protect and promote the mental well-being of its citizens, but also address the needs of
persons with defined mental disorders.

Knowledge of what to do about the escalating burden of mental disorders has improved
substantially over the past decade. There is a growing body of evidence demonstrating both the
efficacy and cost-effectiveness of key interventions for priority mental disorders in countries at
different levels of economic development. Examples of interventions that are cost-effective,
feasible, and affordable include:

• treatment of depression with psychological treatment and, for moderate to severe cases,
antidepressant medicines;
• treatment of psychosis with antipsychotic medicines and psychosocial support;
• taxation of alcoholic beverages and restriction of their availability and marketing.

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A range of effective measures also exists for the prevention of suicide, prevention and treatment
of mental disorders in children, prevention and treatment of dementia, and treatment of
substance-use disorders. The mental health Gap Action Programme (mhGAP) has produced
evidence based guidance for non-specialists to enable them to better identify and manage a range
of priority mental health conditions.

WHO:

WHO supports governments in the goal of strengthening and promoting mental health. WHO has
evaluated evidence for promoting mental health and is working with governments to disseminate
this information and to integrate effective strategies into policies and plans.

In 2013, the World Health Assembly approved a "Comprehensive Mental Health Action Plan for
2013-2020". The Plan is a commitment by all WHO’s Member States to take specific actions to
improve mental health and to contribute to the attainment of a set of global targets.

The Action Plan’s overall goal is to promote mental well-being, prevent mental disorders,
provide care, enhance recovery, promote human rights and reduce the mortality, morbidity and
disability for persons with mental disorders. It focuses on 4 key objectives to:

• strengthen effective leadership and governance for mental health;

• provide comprehensive, integrated and responsive mental health and social care services in
community-based settings;
• implement strategies for promotion and prevention in mental health; and
• strengthen information systems, evidence and research for mental health.

Particular emphasis is given in the Action Plan to the protection and promotion of human rights,
the strengthening and empowering of civil society and to the central place of community-based
care.

In order to achieve its objectives, the Action Plan proposes and requires clear actions for
governments, international partners and for WHO. Ministries of Health will need to take a
leadership role, and WHO will work with them and with international and national partners,
including civil society, to implement the plan. As there is no action that fits all countries, each
government will need to adapt the Action Plan to its specific national circumstances.

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Determinants of mental health and mental disorders include not only individual attributes such as
the ability to manage one's thoughts, emotions, behaviours and interactions with others, but also
social, cultural, economic, political and environmental factors such as national policies, social
protection, standards of living, working conditions, and community support.

Stress, genetics, nutrition, perinatal infections and exposure to environmental hazards are also
contributing factors to mental disorders. An overwhelming majority of people with mental and
psychosocial disabilities are living in poverty, poor physical health, and are subject to human
rights violations. Mental health issues cannot be considered in isolation from other areas of
development, such as education, employment, emergency responses and human rights capacity
building. Development stakeholders - including governments, civil society, bilateral
development agencies, research institutions and others - need to ensure that people with mental
and psychosocial disabilities benefit from development efforts, just like any other group.

People with mental and psychosocial disabilities are a vulnerable group as a result of the way
they are treated by society. They are subjected to stigma and discrimination on a daily basis,
and they experience extremely high rates of physical and sexual victimization. Frequently,
people with mental disabilities encounter restrictions in the exercise of their political and civil
rights, and in their ability to participate in public affairs. They also are restricted in their ability
to access essential health and social care, including emergency relief services. Most people
with mental disabilities face disproportionate barriers in attending school and finding
employment. As a result of all these factors, people with mental disability are much more
likely to experience disability and die prematurely, compared with the general population.

Vulnerable groups often targeted by development groups also have high rates of mental
disabilities. For instance, up to two thirds of people with HIV/AIDS have depression, while
rates of mental disability among the homeless can be greater than 50%, but their mental health
needs are commonly not addressed.

People with mental disabilities are not only missed by development programmes, but can be
actively excluded from these programmes. This is in spite of the fact that an explicit goal of
development is to reach the most vulnerable.

A number of principles and actions, consistent with the Convention on the Rights of People
with Disabilities, will substantially improve the lives of people with mental and psychosocial

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 disabilities and thus improve development outcomes for these individuals, their families, and
their communities.

These evidence-based strategies should be integrated into national development and sectoral
strategies and plans. Specific actions include:

• Mental health services should be integrated systematically into all health services including
primary level care.
• Mental health issues should be integrated into broader health policies, programmes, and
partnerships.
• Mental health should be included in services during and after emergencies.
• Mental health issues should be taken into account within social services and housing
development.
• Mental health issues should be mainstreamed into education, and children with mental and
psychosocial disabilities should be supported to access schooling.
• Employment and income generating opportunities must be created for people with mental and
psychosocial disabilities.
• Human rights should be strengthened by developing policies and laws that protect the rights of
people with mental and psychosocial disabilities.
• There should be investment in developing the capacity of people with mental and psychosocial
disabilities to participate in public affairs, including the support of service user-led
movements.
• Development actors should create mechanisms to involve people with mental and
psychosocial disabilities in decision-making processes.
Child & Home:
Home influence plays a very important role inshaping the lifeof every child. Influence of a happy
homewhere the children are brought up under the affectionateguidance of their parents and
other relations, all concernedwith the welfare of the children no doubt, enables thechildren to
lead a normal healthy life and materially contributes to their welfare. In a happy home, the
childrenare free from any kind of unhappy tension and psychologicalstrain and they grow up in a
healthy environment where theirinterests andwelfare are properlylooked afterby their parents. In
such a case, the court is normally not called upon to interfere and to consider the welfare
of thechildren and the welfare of the children is well taken careof by their parents whose

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primary concern is to see their interest and welfare. It is also no doubt truethat the children who
stay at home with their parents and do not go to boarding school may also be very well
disciplinedin life and may have a very healthy happy and normal growth,while staying at home.
Therefore, in the interest of thechildren whom they have brought into existence and who
areinnocent, every husband and wife should try to compose theirdifferences which are bound to
be in any house. Even whenany husband and wife who are not in a position to reconciletheir
differences and are compelled to part, they shouldpart in a way as will cause s least possible
mischief to thechildren. When the atmosphere in a house vitiated and rendered surcharged with
tension as a result of bitter squabblesbetween husband and wife, causes misery and
unhappiness to achild, who has to live in constant psychological strain in such a broken
home in view of thebitterrelationshipbetween her parents of each of whom she has great
affection,the healthy and normal growth of their child is to be seriously affected. In the
interest and for the welfare ofthe child in such a case, the child is necessarily to beremoved from
suchunhealthy environmentof a broken homesurcharged with tension. In such a case, the proper
and bestway or serving the interest and the welfare of the childwill be to remove the child from
such atmosphere of acrimonyand tension and to put the child in a place where the embittered
relationship between her parents does not easilyand constantly affect her tender mind. The
question of the custody of the child mustnecessarily be considered from the only viewpoint of
the welfare of the child. The person to whom the custody of thechild has to be entrusted will
necessarily be answerable tothe school for payment of all charges and expenses of thechild and
alsoin relation to any matter concerning thechild in her school life.
Matrimonial discards & Poverty:
Irreconcilable differences between the father and the mother and embittered relationship between
the two have resulted in a sad protracted litigation. Unfortunately, in the various proceedings in
Court between the father and the mother, the child had become the central figure and the child
had appeared in Court on occasions for being interviewed by the learned Judges. The unfortunate
litigation between the father and the mother appears to have badly affected the normal and
healthy growth of the child. The situation appears to be even more unfortunate, as the father and
the mother both love the child dearly and the child is fond of both her parents. It is, indeed, said
that the parents who are both genuinely fond of their daughter and have her welfare in their
hearts, could not compose their differences and work out a solution which would be most
conducive to the welfare of the child.

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 POOR & BAIL

What is contemplated by bail is to “procure the release of a person from legal custody, by
undertaking that he/she shall appear at the time and place designated and submit him/herself to
the jurisdiction and judgment of the court.”

By reading the above definition of bail, it is evident that money and bail are not connected. In the
case of India, a large number of the population does not have money to buy food and clothing,
yet they are expected to pay money even for the cases in which they have the legal right to bail
i.e in the case of bailable offense. As a result of not having enough money a person who is poor
is subjected to the atrocities of the authorities of the jail and he has to remain behind the bars.

The Legal Position in India: The Criminal Procedure Code, 1973 does not define bail or the
amount of security that is necessary to be paid by the accused for securing his release. Therefore,
the amount to be paid for the bail is the matter of discretion of the court. But, it is usually seen
that the courts of India are not sensitive towards criminals with petty offenses and poor
household, as the courts demands a sum that is unreasonable for bail. Their economic plight is
not taken into consideration.

According to the 78th report of the Law Commission, nearly 55% of the prison population is of
under-trials, the reason for such a large number of people still behind the bars is that they are
poor and thus unable to pay the amount that is demanded from them.

Judicial Trend

The only reason that one is denied justice and is kept behind prison is that he is poor. India has a
highly unsatisfactory bail system. The bail system in India is a property-oriented approach which
gives only one way out of this justice system – money.

The bail system is very harsh on poor, as only a person with money and property is capable of
getting a bail, and when they are unable to pay for the bail, they have to remain in jail for a
greater period. This results in these people incurring huge amounts of debts that they take for
their release. This may also lead in:

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Even though they are innocent, they have to go through physical and psychological deprivations
of jail life,They are prevented from contributing to the preparation of their defense andWhen
they are under-trial, they tend to lose their job and thus are unable to support their family.This is
the very reason that a large number of populations in India find this system of bail oppressive.

Justice Krishna Iyer raised his voice against the unfair bail system in India in the case of State of
Rajasthan v Balchand , He said that the time has come to rethink the traditional system of
pecuniary bail. It may well be that in most cases an undertaking would serve the purpose.

In Moti Ram and Ors. v State of M.P, where the accused was ordered to give the amount of Rs.
10000 as security for the bail, the case went for appeal, Justice Krishna Iyer condemned the act
of the CJM, and demanded that the judges should be more inclined towards bail and not jail.

Further in HussainaraKhatoon and others v. Home Sec, State of Bihar, the Court laid down the
ratio that when the man is in jail for a period longer than the sentence, he is liable for then he
should be released.

Refuse to give Bail- against the Fundamental Right

Article 21 of the Constitution provides us the right to life and liberty. Such right guarantees
everyone in the territory of India, life with all the freedom to enjoy one’s life and liberty. But, the
refusal of the right to bail or demanding the amount that a person is unable to pay is said to be an
infringement of article 21 of the Constitution.

As Iyer puts it with the full authority of the Supreme Court: “Personal liberty is deprived when
bail is refused, is too precious a value of our constitutional system, that the crucial power to
negate it is a great trust exercisable not casually but judicially with lively concern for the cost to
the individual and the community”. The constitutional emphasis was made clear in Balchand
(1977): “The basic rule may perhaps be tersely put as bail, not jail”.

From this, three things are clear: (i) Bail is a fundamental right (ii) The norm is bail not jail (iii)
Good reasons, with full explanation in writing must exist for denying bail. By following these
norms, it can be said that if a person is denied the right to bail due to any reason, it is the
infringement of his right to life and liberty.[1]

A right to bail was not inserted as a right in the constitution of India, but it is quite implicit that it
has been devolved as a right under Article 21 as a component of personal liberty. But, the system
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of bail in India is a property-oriented approach, and it is erroneous on the part of anyone to think
that if one has money he can flee from the justice system. Thus, the focus of judicial discretion in
bail should always be upon the aspects of personal liberty and equality of the individual provided
under Articles 14,19 and 21 of the Constitution of India.

Conclusion

A perusal of the above cases highlights the strong anti-poor bias of the Indian criminal justice
system. Courts in many cases have laid down guidelines to be followed in deciding the amount
of bail, but nothing has been done about it. There is an urgent need to review the bail system in
the country so that even the economic condition of the criminal is kept in mind and it is
important for the court to behave compassionately. Following facts can be taken into account
before granting bail to a person:

(1) The nature of the offense committed by the accused.

(2) His financial condition and employment history.

(4) His character, reputation and economic conditions.

(5) Prior criminal records, if any.

(6) The identity of those who vouch for his reliability.

(7) Any other factors, taking into consideration the risk of the criminal’s failure to appear.

In 1996, when a Delhi Police team bundled him into a car in Kathmandu, Nepal, Mohammad Ali
Bhat was just 25. Bhat, who hailed from Kashmir, was working as a shawl trader in the Nepalese
capital. From there, he was taken to Delhi, made an accused in the Lajpat Nagar blast case, and
later taken to Rajasthan and named as an accused in the Samlethi blast case. This ensured that he
spent years in jails in Delhi and Rajasthan.

On July 22 this year, the Rajasthan High Court declared Bhat to be innocent. Found "not guilty"
at 48, Bhat has lost 23 prime years of his life to prison due to India's lethargic justice delivery
system.

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In another case, a lower court in Delhi in 2010 concluded that Mohammad Maqbool Shah was
innocent. By then, he had languished in jail for 14 years. Like Bhat, Shah too was arrested in
1996 as an accused in the Lajpat Nagar blast case.

He was arrested as a teenager, spent 14 years in jail, and at the age of 29, was told that he was
actually innocent. When he returned home in Kashmir, he found out that his father and sister
were dead.

"If this justice was delivered at the right time, my career would not have been ruined. My home
is destroyed. My father and my sister are dead," he was quoted as saying by NDTV.

In 2017, police in Bijnor, Uttar Pradesh, found that for 10 years, they had imprisoned a man for a
murder he never committed. The murder was committed by his brother who was at large. The
cops arrested Bala Singh, even though his mother, a daily-wage labourer, pleaded that the police
were mistaking Bala for her other son. When he was set free, he told reporters he had only one
wish: the official who arrested him should be punished.

HOW COMMON IS THIS?

What's common in the stories of Bhat, Shah and Singh is that they were all arrested by police;
accused of crime(s); and languished in jails for years before they were judged innocent.

But are these exceptions?

Statistics on Indian prisons reveal that 68 per cent of prisoners in India are those who have not
been convicted by any court for a crime. Many among them have to wait for years before the
trial court even begins hearing their cases.

Analysis of the latest reports of the National Crime Records Bureau (NCRB) shows that jails in
India are mostly flooded with young men and women who are illiterate or semi-literate and come
from socio-economically weaker sections of society. More than 65 per cent of undertrial
prisoners belong to the SC, ST and OBC categories. Most of them are too poor to even afford the
bail fee.

This isn't new. Indian jails have a history of such cases. Making a scathing observation 40 years
ago, the Supreme Court had said the high prevalence of undertrials in jails is a "crying shame on

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the judicial system" as it permits imprisonment of people for long periods even without trial
commencing in many cases.

Terming such prisoners as "unfortunate forgotten specimens of humanity", the Supreme Court
had said it was "high time" the government and judiciary began to realise that "in the dark cells
of our prisons there are large number of men and women who are waiting patiently, impatiently
perhaps, but in vain for justice".

The court said for these people law has become an "instrument of injustice" and they are the
helpless victims of the "callousness of the legal and judicial system".

YEARS CHANGED, BUT INDIAN JAILS DIDN'T

Much has changed in the last 40 years but the plight of undertrials in Indian jails has only
worsened as their number continues to swell.

In 1978, 54 per cent of India's inmate population consisted of undertrials. By 2017, this figure
rose to 68 per cent. What has also not changed is the socio-economic profile of undertrial
prisoners - a majority of them continue to be young, barely literate and poor.

This perpetuating ignominious situation is reflected in the latest report of the National Crime
Records Bureau (NCRB) which shows that by the end of 2017, at least 3.08 lakh people were
lodged in Indian jails even though they had not been held guilty by any court. This figure was
much more than the number of convicts in India.

This high number of undertrial prisoners comes as a paradox as the Indian judicial system claims
to work on the principle that a person is presumed to be innocent until proven guilty. And, even
the Supreme Court has held that bail to an undertrial prisoner is a right.

The NCRB report shows that 70 per cent of undertrial prisoners in India are illiterate and semi-
literate, indicating that that they belong to economically backward sections of society. The
NCRB report also shows that 48 per cent of undertrials fall in the age group of 18-30 years.

In the past, the Law Commission of India in multiple reports outlined that most undertrial
prisoners in India are so poor that they can't even afford to pay the money required to secure bail.

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In its 268th report the Law Commission had said it has become a norm in India that the
"powerful, rich and influential obtain bail promptly and with ease, whereas the masses/the
common/the poor languish in jails". It said this prevalence puts "human dignity at stake".

Illiteracy, youth and socio-economic backwardness are thus the defining characteristics of an
average Indian prisoner.

MONEY, NOT CRIME DECIDES PERIOD IN JAIL

A direct consequence of most undertrials being economically backward is that the period they
spend inside jails is not determined by the crime they are accused of having committed, but by
their ability, or the lack of it, to pay the bail fee or avail a good lawyer.

The double whammy of being poor and barely literate means that most prisoners in India hardly
know and understand the legal mechanism to exercise their fundamental right to a speedy trial
and freedom from undue detention.

The end result of this is people (mostly young) languishing in jails for years, waiting for that one
day when a court will hear their case. Many a time, this first hearing in the case is listed after
years of incarceration.

For example, as on November 14, 2019, there were 18,46,741 criminal cases that were pending
for more than 10 years in various lower courts in India. Add to this 2,45,657 criminal cases that
were pending for more than 10 years in various high courts.

Way back in 1979, the Supreme Court has observed that some of the undertrial prisoners have
been in jail for 5-10 years and some even more, without their trial even having begun.

The court had wondered if there is any hope for these "lost souls" in a judicial system that for
years denies them even a trial and "keeps them behind bars, not because they are guilty, but
because they are too poor to afford bail and the courts have no time to try them".

In HussainaraKhatoon versus Home Secretary, State of Bihar, the Supreme Court had observed
that undertrial prisoners languish in jail "because they (are) downtrodden and poor, and not
because they are guilty".

BUT WHO'S RESPONSIBLE?

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There is no pin-pointed answer to the problem which lies in the structure and functioning of the
entire justice delivery system, right from the police to the courts and jails. The system somehow
lacks accountability for miscarriage of justice which leaves the victims in the lurch.

Countries like the US, the UK and Germany have enacted laws under which the State is made to
compensate a person for miscarriage of justice.

In May this year, a court in the US announced a compensation of $1.5 million after it was found
that a man was made to spend 46 years in jail for a murder he had not committed.

While courts in India have acknowledged the flaws in the system, for an innocent person who is
set free by a court years after being lodged in a jail, the sense of justice perhaps remains elusive
forever. In the eyes of society, the person (even though an undertrial) is no different than a
convict once he spends years in a jail.

In Thana Singh versus Central Bureau of Narcotics, the Supreme Court itself had observed that
for the prisoner, imprisonment as an undertrial is as dishonourable as imprisonment for being a
convict because the "damning finger and opprobrious eyes of society draw no difference between
the two".

The International Covenant on Civil and Political Rights (ICCPR) calls upon countries to enact
laws to compensate people for miscarriage of justice. India ratified ICCPR in 1968 but is yet to
comply with its obligations and enact a law that awards compensation to victims of miscarriage
of justice.

In 2018, the Law Commission in its report on wrongful prosecution and legal
remedies recommended enacting a legal provision that would provide relief to victims of
wrongful prosecution in terms of monetary and non-monetary compensation (such as
counselling, mental health services, vocational/employment skills development etc).

The report stressed, "There needs to be recompense for the years lost, for the social stigma, the
mental, emotional and physical harassment, and for the expenses incurred etc."

The Commission's report is a step forward in the right direction. But it will be of little value
unless implemented in letter and spirit.

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Forty years ago the Supreme Court remarked that long incarceration of undertrials is a "crying
shame on the judicial system". It remains the guiding principle to repair the system and fix
accountability to bring a positive change.

The Supreme Court said on Friday that the poverty of a person who has been granted bail should
not come in the way of his release from incarceration merely because one is unable to furnish the
bail bond.

"Poverty can't be a ground for keeping in custody an accused who is unable to furnish the bail
bond" on account of his poverty, said the social justice bench of Justice Madan B. Lokur and
Justice Uday Umesh Lalit as it noted that a large number of persons were languishing in the jail
as they could not furnish bail bonds after the grant of bail.

Stating the law has to be carried out in its spirit, the court asked the State Legal Aid Authorities
to ask lawyers on their penal to "urgently" move necessary applications for securing the release
of such people.

The court noted that in Uttar Pradesh alone there are 530 accused languishing in custody as they
could not satisfy the condition of bail.

The court order came in the course of the hearing of reference on inhuman conditions in 1382
jails in the country.

Describing as "very high" that the 67 percent of the jail inmates were under trial, the court
referring to the union home ministry's affidavit said that as on December 31, 2013 there were
2,78,000 persons in the jails across the country.

The court also said that prisoners accused of compoundable offences too should be taken up by
the state legal service authorities and the under trial prisoners who have completed half of the
sentence that they would undergo if convicted of the offences they have been charged with
should be considered by a committee for release in accordance with Section 436A of the Code of
Criminal Procedure.

The court said that the Committee comprising the district judge, district magistrate and district
superintendent of police will hold its meeting on June 30, 2015, to review all such cases.

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The court further said that in case a person is accused of more than one crime, then to meet the
requirement of Section 436A the charge that involves less punishment should be considered for
examining the question of releasing him from the custody.

Asking the Bureau of Public Research and Development to review its 12 year old Model Prison
Manual with an eye on latest technological changes, the court asked the union Home Ministry to
look into the Prison Management System software being used in Delhi's high security central
prison at Tihar.

Noting that BPRD was already reviewing the Model Prison Manual, the court gave it three-
month time to complete the exercise.

Supreme Court of India

Moti Ram &Ors vs State Of M.P on 24 August, 1978

Equivalent citations: 1978 AIR 1594, 1979 SCR (1) 335

Author: V Krishnaiyer

MOTI RAM & ORS.Vs.STATE OF M.P.

ACT:

Bail jurisprudence-Enlargement on bail with or without sureties-Scope of Ss. 440(1), 441,

445 read with s. 389(1) of the Code of Criminal Procedure, 1973 -Criteria to guide in quantifying
the amount of bail and acceptance of surety whose estate is situate in a different district or
State, explained.

HEADNOTE:

Pursuant to the directions of the Supreme Court for releasing the petitioner-appellant "on
hail to the satisfaction of the Chief Judicial Magistrate," the Magistrate ordered that a surety
in a sum of Rs. 10,000/- be produced. When the petitioner produced one. the magistrate made an
odd order refusing to accept the suretyship of the petitioner's brother because he and his
asset were in another district. Frustrated by magisterial intransigence the prisoner moved, this
Court again to modify the original order "to the extent that the petitioner be released on

137
furnishing surety to the tune of Rs. 2,000/- or on executing a personal bond or pass any other
order or direction as this Hon'ble Court may deem fit and proper". Directing the Magistrate to
release the petitioner on his own bond in a sum of Rs. 1,000/- the Court,

HELD: (1) Social Justice is the signature tune of our Constitution and the little man in
peril of losing his liberty is the consumer of social justice. And the grant of bail can be
stultified or made impossibly inconvenient and expensive if the Court is powerless to dispense
with surety or to receive an Indian bailor across the district borders as good or the sum is so
excessive that to procure a wealthy surety may be both exasperating and expensive. The
problem is plainly one of human rights, especially freedom vis-a-vis, the lowly and
necessitates the Supreme Court to interdict judicial arbitrariness deprivatory of liberty and
ensure "fair procedure" which has a creative connotation after Maneka Gandhi [1978] 2 SCR
621. [338 C-F. 339 A-B]

(2) Bail covers release on one's own bond with or without sureties, as the legal literature,
Indian and Anglo-American on bail jurisprudence lends countenance and the need for liberal
interpretation in areas of social justice, individual freedom and indigent's rights justifies. When
sureties should be demanded and what sum should be insisted on are dependent on variables.
[344 G, 347 C]

(3) A semantic smog overlays the provisions of bail in the Code and prisoners' rights, when
cast in ambiguous language become precarious. [345 C]

(a).'Bail' in s. 436 of the Criminal Procedure Code suggests 'with or without sureties.
And, 'bail bond` ins.436(2) covers own bond. [345 E]

(b) 'Bail' in s. 437 (2) suggests release, the accent being on undertaking to appear. when
directed, not on the production of sureties. But s. 137(2) distinguishes between bail and
bond, without sureties. [345 F-G] 336

(c) Section 445 suggests, especially read with the marginal note that deposit of money
will do duty for bond 'with or without sureties'. [345 G]

(d) Superficially viewed, s. 441( 1 ) uses the words 'bail' and 'own bond' as antithetical, if
the reading is liberal. Incisively understood, Section 441(1) provides for both the bond of the
accused and the undertaking of the surety being conditioned in the manner mentioned in

138
the sub-section. To read "ail" as including only cases of release with sureties will stultify the
sub-section, for then, an accused released on his own bond without bail, i.e. surety, cannot be
conditioned to attend at the appointed place.

Section 441(2) uses the word 'bail' to include 'own bond' loosely as meaning one or the other or
both. Moreover, an accused, in judicial custody, actual or potential, may be released by the
Court to further the ends of justice and nothing in s 441(1) compels a contrary meaning. S.441(2)
and (3) use the word 'bail' generically because the expression is intended to cover bond with
or without sureties; [345 H, 346 A-C]

(e) When the Court of appeal as per the import of s.389(1) may release a convict on his own
bond without sureties, surely, it cannot be that an undertrial is worse off than a convict or that
the power of the Court to release increases when the guilt is established. It is not the Court's
status but the applicant guilt status that is germane. That a guilty man may claim judicial
liberation pro tempore without sureties while an undertrial cannot, is reductio ad
absurdum. [346 D-E]

(5) The Supreme Court's powers to enlarge a prisoner, as the wide words of order 21 Rule 27
(Supreme Court Rules 1966) show, contain no limitation based on sureties, which means that a
murderer, concurrently found to be so, may. theoretically be released on his own bond without
sureties while a suspect, presumed to be innocent cannot be. Such a strange anomaly could not
be, even though it is true that the Supreme Court exercises wider powers with greater
circumspection. [346 F-G]

(6) If sureties are obligatory even for juveniles, females and sickly accused while they
can be dispensed with. after being found guilty, if during the trial when the presence to District
lawyers is more necessary, an accused must buy release only with sureties while at the appellate
level, suretyship is expendable, there is unreasonable restriction on personal liberty with
discrimination writ on the provisions. The hornet's nest of Part III need not be provoked if the
Court reads 'bail' to mean that it popularly does. and lexically and in American Jurisprudence is
stated to mean, viz. a generic expression used to describe under release from custodia juris. [347
A-B]

(7) Art. 14 protects all Indians qua Indians, within the territory of India. Art. 350 sanctions
representation to any authority, including a Court, for redress of grievances in any language used

139
in the Union of India. Equality before the law implies that even a vakalat or affirmation made in
and State language according to the law in that State must be accepted everywhere in the
territory of India, same where a valid legislation to the contrary exists. Otherwise, an Adivasi
will be unfree in Free India, and likewise many other minorities. The process of making Indians
aliens in their own homeland should be inhibited. Swaraj is made out of united stuff. The best
guarantee of presence in Court is the reach of law, not the money tag. [347 G-H, 348 A-B, D]
The Court left open to the Parliament to consider-whether in our socialist republic with social
justice as its hallmark, monetary superstition, not other relevant consideration like family ties,
roots in the community, membership of stable organisations should prevail or bail bonds to
ensure that the 'bailee' does not flee justice.]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Misc. Petition 1649 of 1978. Application

for bail.

S. S. Khanduja for the Appellant.

I. N. Shroff and S. K. Gambhir for the Respondent. V. M. Tarkunde, K. T. HarinderNath, R. K.

Jain and H.K. Puri for the Intervener The order of the Court was delivered by KRISHNA IYER,
J.-'The law. in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to
beg in the streets, and to steal bread", lampooned Anatole France. The reality of this caricature of
equal justice under the law, whereby the poor are priced out of their liberty in the justice market,
is the grievance of the petitioner. His criminal appeal pends in this Court and he has obtained an
order for bail in his favour "to the satisfaction of the Chief Judicial Magistrate". The direction of
this Court did not spell out the details of the bail, and so, the magistrate ordered that a surety hl a
sum of Rs. 10,000/- be produced which, in actual impact, was a double denial of the bail benefit.
For one thing the miserable mason. the petitioner before us, could not afford to procure that huge
sum or manage a surety of sufficient prosperity. Affluents do not befriend indigents. For another,
the magistrate made an odd order refusing to accept the suretyship of the petitioner's brother
because he and his assets were in another district.

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If mason and millionaire were treated alike, egregious inegality is an inevitability. Likewise,
geographic allergy at the judicial level makes mockery of equal protection of the laws within the
territory of India. India is one and not a conglomeration of districts, untouchably apart.

When this Court's order for release was thus frustrated by magisterial intransigence the prisoner
moved this Court again to modify the original order "to the extent that petitioner be released on
furnishing surety to the tune of Rs. 2,000/- or on executing a personal bond or pass any other
order or direction as this Hon'ble Court may deem fit and proper". From this factual matrix three
legal issues arise ( 1 ) Can the Court, under the Code of Criminal Procedure, enlarge, on his own
bond without sureties, a person undergoing incarceration for a non-bailable offence either as
undertrial or as convict who has appealed or sought special leave ? (2) If the Court decides to
grant bail with sureties, what criteria should guide it in quantifying the amount of bail, and (3) Is
it within the power of The court to reject a surety because he or his estate is situate in a different
district or State ?

This formulation turns the focus on an aspect of liberty bearing on bail jurisprudence. The
victims, when suretyship is insisted on or heavy sums are demanded by way of bail or local
bailors alone are presona grata, may well be the weaker segments of society like the proletariat,
the linguistic and other minorities and distant denizens from the far corners or our country with
its vast diversity. In fact the grant of bail can be stultified or made impossibly inconvenient and
expensive if the court is powerless to dispense with surety or to receive an Indian bailor across
the district borders as good or the sum is so excessive that to procure a wealthy surety may be
both exasperating and expensive. The problem is plainly one of the human rights, especially
freedom vis-a-vis the lowly. This poignant import of the problem persuaded the Chamber Judge
to invite the Supreme Court Bar Association and the Citizens for Democracy to assist the Court
in decoding the Code and its provisions regarding bail. The Kerala State Bar Federation was
permitted to intervene and counsel for the parties also made submissions. We record our
appreciation of the amici curiae for their services and proceed to discuss the triple issues
formulated above.

There is already a direction for grant of bail by this Court in favour of the petitioner and so the
merits of that matter do not have to be examined now. It is a sombre reflection that many little
Indians are forced into long cellular servitude for little offences because trials never conclude
and bailors are beyond their meagre means. The new awareness about human rights imparts to

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what might appear to be a small concern relating to small men a deeper meaning. That is why we
have decided to examine the question from a wider perspective bearing in mind prisoner's rights
in an * Justice V. R. Krishna Iyer.

international setting and informing ourselves of the historical origins and contemporary trends in
this branch of law. Social Justice is the signature tune of our Constitution and the little man in
peril of losing his liberty is the consumer of Social Justice.

There is no definition of bail in the Code although offences are classified as bailable and non-
bailable. The actual Sections which deal with bail, as we will presently show, are of blurred
semantics. We have to interdict judicial arbitrariness deprivatory of liberty and ensure 'fair
procedure' which has a creative connotation after Maneka Gandhi. (1) Before we turn to the
provisions of the Code and dwell on the text of the Sections we may as well remember what
Justice Frankfurter said:

"there is no surer way to misread a document than to read it literally."2 Speaking generally, we
agree with the annotation of the expression 'bail' given in the American Jurisprudence (2nd Edn.
Vol. 8, Art. 2, p. 783):

"The term 'bail bond' and 'recognizance' are used inter changeably in many bail statutes, and
quite generally without distinction by the courts, and are given a practically identical effect."

According to the American Jurisprudence, Art. 6, p. 785, there is power in the court to release
the defendant without bail or on his own recognizance. Likewise, the definition of bail as given
in Webster's Third New International Dictionary:

"The process by which a person is released from custody."

The concept of bail has a long history briefly set out in the publication on 'Programme in
Criminal Justice Reform':

"The concept of bail has a long history and deep roots in English and American law. In medieval
England, the custom grew out of the need to free untried prisoners from disease-ridden jails
while they were waiting for the delayed trials conducted by travelling justices. Prisoners were
bailed, or 'delivered, to reputable third parties of

(l) [1978] 2 S.C.R. 621 [1978] 1 S C.C. 248.

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(2) Massachusetts B. and Insurance Co. v. U S, 352 U.S. 128

138. their own choosing who accepted responsibility for assuring their appearance at trial. If the
accused did not appeal, his bailor would stand trial in his place. Eventually it became the practice
for property owners who accepted responsibility for accused persons to forfeit money when their
charges failed to appear for trial. From this grew the modern practice of posting a money bond
through a commercial bondsman who receives a cash premium for his service, and usually
demands some col lateral as well. In the event of non- appearance the bond is forfeited, after a
grace period of a number of days during which the bondsman may produce the accused h
court."(1) It sounds like a culture of bonded labour, and yet are we to cling to it !of course, in the
United States, since then, the bondsman emerged as a commercial adjunct to the processes of
criminal justice, which, in turn, bred abuses and led to reform movements like the Manhattan
Bail Project. This research project spurred the National Bail Conference, held in 1964, which in
its crucial chain reaction provided the major impetus to a reform of bail law across the United
States. The seminal statutory outcome of this trend was the enactment of the Bail Reform Act of
1966 signed into law by President Lyndon B. Johnson. It is noteworthy that Chief Justice Earl
Warren, Attorney General Robert Kennedy and other legal luminaries shared the view that bail
reform was necessary. Indeed, this legislative scenario has a lesson for India where a much
later Criminal Procedure Code 1973 has largely left untouched ancient provisions on this subject,
incongruous with the Preamble to the Constitution.

An aside. Hopefully, one wishes that socio-legal research projects in India were started to
examine our current bail system. Are researchers and jurists speechless on such issues because
pundits regard these small men's causes not worthwhile ? Is the art of academic monitoring of
legislative performance irrelevant for India ?

The American Act of 1966 has stipulated, inter alia, that release should be granted in non-capital
cases where there is reasonable assurance that the individual will reappear when required; that
the Courts should make use of a variety of release options depending on the circumstances; that
information should be developed about the individual on which intelligent selection, of
alternatives should be based.

(1) Vera Institute of Justice Ten-year Error 1961-71 r. 20.

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The Manhattan Bail Project, conducted by the Vera Foundation and the Institute of Judicial
Administration at New York University School of Law, found that about sixty- five percent of all
felony defendants interviewed could be recommended for release without bail. Of 2.195
defendants released in this way less than one percent failed to appear when required. In short,
risk of financial loss is all insubstantial deterrent to flight for a large number of defendants whose
ties with the community are sufficient to bring them to court.

The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected
to the psychological and physical deprivations of jail life, usually under more onerous conditions
than are imposed on convicted defendants. The jailed defendant loses his job is he has one and is
prevented from contributing to the preparation of his defence. Equally important, the burden of
his detention frequently falls heavily on the innocent members of his family.

It is interesting that American criminological thinking and research had legislative response and
the Bail Reforms Act, 1966 came into being. The then President, Lyndon B. Johnson made
certain observations at the signing ceremony:

"Today, we join to recognize a major development in our system of criminal justice: the reform
of the bail system.

This system has endued-archaic, unjust and virtually unexamined-since the Judiciary Act of
1789.

The principal purpose of bail is to insure that an accused person will return for trial if he is
released after arrest.

How is that purpose met under the present system ? The defendant With means can afford to pay
bail. He can afford to buy his freedom. But the poorer defendant cannot pay the price He
languishes in jail weeks, months and perhaps even years before trial.

He does not stay in jail because he is guilty. He does not stay in jail because any sentence has
been passed.

He does not stay in jail because he is any More likely to flee before trial.

He stays in jail for one reason only-because he is poor...."

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(emphasis added) Coming to studies made in India by knowledgeable Committees we find the
same connotation of bail as including release on one's own bond being treated as implicit in the
provisions of the Code of Criminal Procedure. The Gujarat Committee from which we quote
extensively, dealt with this matter in depth:

"The bail system, as we see it administered in the criminal courts to-day, is extremely
unsatisfactory and needs drastic change. In the first place it is virtually in possible to translate
risk of non- appearance by the accused into precise monetary terms and even its basic premise
that risk of financial loss is necessary to prevent the accused from fleeing is of doubtful validity.
There are several considerations which deter an accused from running away from justice and risk
of financial loss is only one of them and that too not a major one. The experience of enlightened
Bail Projects in the United States such as Manhattan Bail Project and D. C. Bail Project shows
that even without monetary bail it has been possible to secure the presence of the accused at the
trial in quite a large number of cases. Moreover, the bail system causes discrimination against the
poor since the poor would not be able to furnish bail on account of their poverty while the
wealthier persons otherwise similarly situate would be able to secure their freedom because they
can afford to furnish bail. This discrimination arises even if the amount of the bail fixed by the
Magistrate is not high, for a large majority of those who are brought before the Courts in
criminal cases are so poor that they would and it difficult to furnish bail even in a small amount."

(emphasis added) The vice of the system is brought out in the Report: "The evil of the bail
system is that either the poor accused has to fall back on touts and professional sureties for
providing bail or suffer pre-trial detention. Both these consequences are fraught with great
hardship to the poor. In one case the poor accused is fleeced of his moneys by touts and
professional sureties and sometimes has even to incur debts to make payment to them for
securing his release;

in the other he is deprived of his liberty without trial and conviction and this leads to grave
consequences, namely: (1) though presumed innocent he is subjected to the psychological and
physical deprivations of jail life; (2) he loses his job, if he has one, and is deprived of an
opportunity to work to support himself and his family with the result that burden of his detention
falls heavily on the innocent members of the family, (3) he is prevented from contribution to the
preparation of his defence; and (4) the public exchequer has to bear the cost of maintaining him

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in the jail.(1) The Encyclopaedia Britannica brings out the same point even in more affluent
societies:

"bail, procedure by which a judge or magistrate sets at liberty one who has been arrested or
imprisoned, upon receipt of security to ensure the released prisoner's later appearance in court for
further proceedings .. Failure to consider financial ability has generated much controversy in
recent years, for bail requirements may discriminate against poor people and certain minority
groups who are thus deprived of an equal opportunity to secure their free dom pending trial.
Some courts now give special consideration to indigent accused persons who, because of their
community standing and past history, are considered likely to appear in court."(') "We should
suggest that the Magistrate must always bear in mind that monetary bail is not a necessary
element of the Criminal process and even if risk of monetary loss is a deterrent against fleeing
from justice, it is not the only deterrent and there are other factors which are sufficient deterrents
against flight. The Magistrate must abandon the antiquated concept under which pre-trial release
could be ordered only against monetary bail. That concept is out-dated and experience has shown
that it has done more harm than good. The new insight into the subject of pre-trial release which
has now been developed in socially advanced countries and particularly the United State should
now inform the decisions of the Magistrates in regard to pre-trial release. Every other feasible
method of (1) Report of the Legal Aid Committee appointee. by the Govt. Of Gujarat 1971, and
headed by the then Chief Justice of the State, Mr. Justice P.N. Bhagwati p 185.

(2) Encyclopaedia. Britannica, Vol. I, P. 736 (15th Edn) Micro edn.

pre-trial release should be exhausted before resorting lo monetary bail. The practice which is
now being followed in the United States is that the accused should ordinarily be released on
order to appear or on his own recognizance unless it is shown that there is substantial risk it is
appearance or there are circumstances justifying imposition of conditions on release ..If a
Magistrate is Satisfied after making an enquiry into the condition and background of the accused
that the accused has his roots in the community and is nor likely to abscond, he can safely release
the accused on order to appear or on his own recognizance ......"(1) (emphasis added) A latter
Committee with Judges, lawyers, members of Parliament and other legal experts.came to the
same conclusion and proceeded on the assumption that release on bail included release on the
accused's own bond:

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" .... We think that a liberal policy of conditional re lease without monetary sureties or financial
security and release on one's own recognizance with punishment provided for violation will go a
long way to reform the bail system and help the weaker and poorer sections of the community to
get equal justice under law. Conditional release may take the form of entrusting the accused to
the care his relatives or releasing him on supervision. The court or the authority granting bail
may have to use the discretion judiciously. When the accused is too poor to find sureties, there
will be no point in insisting on his furnishing bail with sureties, as it will only compel him to be
in custody with the consequent handicaps in making his defence."(2) Thus, the legal literature,
Indian and Anglo-American, on bail jurisprudence lends countenance to the contention that bait.
loosely used, is comprehensive enough to cover release on ones own bond with or without
sureties.

We have explained later that the power of the Supreme Court to enlarge a person during the
pendency of a Special Leave Petition or of an appeal is very wide, as order 21 Rule 27 of the
Supreme Court Rules discloses. In that sense, a consideration of the question (1) Report of the
Legal Aid Committee appointed by the Govt. Of Gujarat 1971. P. 185.

(2) Report of the Expert Committee on Legal Aid-Processual Justice to the People, May 1973.

as to whether the High Court or the subordinate courts have powers to enlarge a person on his
own bond without sureties may not strictly arise. Even so, the guidelines which prevail with the
Supreme court when granting suspension of sentence must, in a broad sense, have relevance to
what the Code indicates except where special circumstances call for a different course.
Moreover, the advocates who participated- many of them did-covered the wider area of release
under the Code, whether with or without sureties, and that is why we consider the relevant
provisions of the Code in some detail.

Let us now examine whether there is anything in the Provisions of the Code which make this
meaning clearly untenable.

A semantic smog overlays the provisions of bail in the Code and prisoners' rights, when cast in
ambiguous language become precarious. Where doubts arise the Gandhian talisman becomes a
tool of interpretation: "Whenever you are in doubt.... apply the following test. Recall the face of
the poorest and the weakest man whom you may have seen, and ask yourself, if the step you

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contemplate is going to be of any use of him." Law, at the service of life, must respond
interpretatively to raw realities and make for liberties.

Primarily Chapter XXXIII is the nidus of the law of bail. Sec. 436 of the Code speaks of bail but
the proviso makes a contradistinction between 'bail' and 'own bond without sureties'. Even here
there is an ambiguity, because even the proviso comes in only if, as indicated in the substantive
part, the accused in a bailable offence is prepared to give bail'. Here, 'bail' suggests 'with or
without sureties'. And, 'bail bond' in Sec. 436(2) covers own bond. Sec. 437(2) blandly speaks of
bail but speaks of release on bail of persons below 16 years o age, sick or infirm people and
women. It cannot be that a small boy or sinking invalid or pardanashin should be refused release
and suffer stress and distress in prison unless sureties are haled into a far-off court with
obligation for frequent appearance ! 'Bail' there suggests release, the accent being on undertaking
to appear when directed, not on the production of sure- ties. But Sec. 437(2) distinguishes
between bail and bond without sureties.

Sec. 445 suggests, especially read with the marginal note that deposit of money will do duty for
bond 'with or without sureties. Sec. 441(1) of the Code may appear to be a stumbling block in the
way of the liberal interpretation of bail as covering own bond with and without sureties.
Superficially viewed, it uses the words 'bail' and 'own bond' as antithetical, if the reading is
literal. Incisively understood, Sec. 441(1) provides for both the bond of the accused and the
undertaking of the surety being conditioned in the manner mentioned in the sub-section. To read
'bail' as including only cases of release with sureties will stultify the sub-section; for then, an
accused released on his own bond without bail, i.e., surety, cannot be conditioned to attend at the
appointed place. Sec. 441(2) uses the word 'bail' to include 'own bond' loosely as meaning one or
the other or both. Moreover, an accused in judicial custody, actual or potential, may be released
by the court to further the ends of justice and nothing in Sec. 44 1( 1 ) compels a contrary
meaning.

Sec. 441(2) and (3) use the word 'bail' generically because the expression is intended to cover
bond with or without sureties.

The slippery aspect is dispelled when we understand the import of Sec. 389(1) which reads:

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389 (1): Pending any appeal by a convicted person the Appellate Court may, for reasons to be
recorded by it in writing, order that the execution of the sentence or order appealed against be
suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.

The court of appeal may release a convict on his own bond without sureties. Surely. it cannot be
that an under-trial is worse of than a convict or that the power of the court to release increases
when the guilt is established. It is not the court's status but the applicant's guilt status that is
germane. That a guilty man may claim judicial liberation pro tempore without sureties while an
undertrial cannot is a reduetioadabsurdam.

Likewise, the Supreme Court's powers to enalage a prisoner, as the wide words of order 21 Rule
27 (Supreme Court Rules) show, contain no limitation based on sureties. Counsel for the State
agree that this is so, which means that a murderer, concurrently found to be so may theoretically
be released on his own bond without sure- . ties while a suspect, presumed to be innocent, cannot
be. Such a strange anomaly could not be, even though it is true that the Supreme Court exercises
wider powers with grater circumspection.

The truth, perhaps, is that indecisive and imprecise language is unwittingly used, not knowing
the draftsman's golden rule:

"In drafting it is not enough to gain a degree of precision which a person reading in good faith
can understand, but it is necessary to attain if possible to a degree of precision which a person
reading in bad faith cannot misunderstand." (Lux Genthum Lex-Then and Now 1799-1974, p.
7) If sureties are obligatory even for juveniles, females and sickly accused while they can be
dispensed with, after being found guilty if during trial when the presence to instruct lawyers is
more necessary, an accused must buy release only with sureties while at the appellate level,
suretyship is expendable, there is unreasonable restriction on personal liberty with discrimination
writ on The, provisions. The hornet's nest of Part 111 need not be provoked it read 'bail' to mean
that it popularly docs, and lexically and in American Jurisprudence is stated to Mean, viz., a
generic expression used to describe judicial release from Custodia. Bearing in mind the need for
liberal interpretation in areas of social justice, individual freedom and indigent's rights, we hold
that bail covers both-release on one's own bond, with or without sureties.

When sureties should be demanded and what sum should be insisted on are dependent on
variables.

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Even so, poor men-Indians in monetary terms indigents young persons infirm individual and
women are weak categories and courts should be liberal in releasing them on their own
recognisances put whatever reasonable condition you may.

It Shocks one conscience to ask a mason like the petitioner to Furnish sureties for Rs. 100,000/-
The magistrate must be given the benefit of doubt for not fully appreciating that our Constitution.
enacted by 'We the People of India'' is meant for the butcher , the baker and the candle - stick
maker - shall we add , the bonded labour and pavement dweller.

To add insult to injury, the magistrate has demanded sureties from his own district. (We assume
the allegation in the petition). What is a Malayalee, Kannadiga, Tamilian or Andhra to do if
arrested for alleged misappropriation or them or criminal trespass in Bastar , Port Blair ,Port
Blair . Pahalgaam of ChandniChowk? He cannot have sureties owning properties in these distant
places. He may not know any one there and might have come in a batch or to seek a job or in a
morcha . Judicial disruption of Indian unity is surest achieved buy such provincial allergies.
What law prescribes sureties from outside or non- regional linguistic, some times legalistic.
applications? What law prescribes the geographical discrimination implicit in asking for sureties
from the court district? This tendency takes many forms, sometimes, geographic , sometimes
linguistic, some times legalistic. Art 14 protects all Indians qua Indians, within the territory of
India. Art 350 sanctions representation to any authority. including a court, for redress of
grievances in any language used in the Union of India . Equality before the law implies theat
even a vakalat 6-526 SCI/78 or affirmation made ill any State language according to the law in
that State must be accepted everywhere in the territory of India save where a valid legislation to
the contrary exists. Otherwise, an adivasi will be unfree in Free India, and likewise many other
minorities. This divagation has become necessary to still the judicial beginnings, and to inhibit
the process of making Indians aliens in their own homeland. Swaraj is made of united stuff.

We mandate the magistrate to release the petitioner on his own bond in a sum of Rs. 1,000/-.

An After word We leave it to Parliament to consider whether in our socialist republic, with social
justice as its hallmark, monetary superstition, not other relevant considerations like family ties,
roots in the community, membership of stable organizations, should prevail for bail bonds to
ensure that the 'bailee' does not flee justice. The best guarantee of presence in court is the reach
of the law, not the money tag. A parting thought. If the indigents are not to be betrayed by the
law including bail law re-writing of many processual laws is in urgent desideratum; and the
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judiciary will do well to remember that the geo-legal frontiers of the Central Codes cannot be
disfigured by cartographic dissection in the name of language of province.

The Indian bail system is afflicted with the problem of inequality where the people with deep
pockets get to purchase their freedom while the destitute class is jailed as it fails the means to
raise the money. This raises the question if the ability or capacity to pay can be regarded as the
sole mean of granting freedom and whether such a practice should be followed?

The dark reality and the negative effect of this system was shown in the case of Rudal Shah v.
State of Bihar[1], which showcases the worst example of apathy of the State executives towards
the plight of indigent persons. In spite acquittal of all charges by the competent criminal court on
3.6.1968, he was released from jail only after 14 years, i.e., on 16 September 1982.

Concept of bail in India

Sections 440 to 450 of Cr.P.C. set out conditions for releasing someone who is otherwise
determined to be eligible for bail. The notion behind these provisions is that it requires the
person accused of an offence to provide monetary assurance that he will appear before the court
as and when required and observe other bail conditions, or forfeit the assurance amount.

Thus, before being released, a person who is granted bail would be required to execute a bond
agreeing to adhere to the conditions of bail[2].This bond is for a certain sum of money as set by
the Court, if the person defaults on a bail condition, the Court will forfeit the bond and require
the person to pay the money as penalty[3] . On failure to do so, the penalty will be recovered in a
similar manner as a fine imposed by the Court. If the penalty amount cannot be recovered then
the person shall be liable for a civil imprisonment upto 6 months[4]. At this stage, it is required to
be noted that failure to appear, without sufficient cause, before the court on the date designated
as part of the bail condition, is an offence under section 229A, IPC.

In addition to the monetary requirement, it also requires that the person should also provide a
surety to stand as an assurance that the accused person will follow the conditions of the bail
otherwise the surety amount will be forfeited.

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Criticism of the bail process

Prejudicial to the interest of destitute and indigent members of the society

In report titled Processual Justice to the people[5] by the experts on Legal Aid and headed by
Justice Krishna Iyer, he observed that the bail system causes discrimination against the poor
since the poor would not be able to furnish bail on account of their financial inability while the
wealthier persons, would be able to secure their freedom because they can afford to furnish
bail.[6]

The report categorically stated that the evil of the bail system is that either the impoverished have
to fall back on touts and professional sureties for providing bail or suffer pre-trial detention. Both
these consequences are fraught with great hardship to the poor. On one hand they are fleeced by
touts and professional sureties and sometimes even have to incur debts to make payments to
them for securing their release; on the other hand they are deprived of their liberty without trial
and conviction; all this leads to grave consequences.

Property based nature of bail system

The Court commented on the property based nature of the bail system in the case
of HussainaraKhatoon[7] and stated that it is based upon the erroneous assumption that the risk
of monetary loss is the only deterrent against fleeing from justice. The Court highlighted that
even where an person accused of an offence is to be released on personal bond, the law requires
the person to be placed under financial obligation to appear in court through the execution of a
bond to that effect.[8] Moreover, the courts mechanically insist that the accused person should
produce sureties who would furnish bail for him and, these sureties must again establish their
solvency to be able to pay the amount of bail in case such accused fails to appear to answer the
charge.

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Alternatives to the money bail system

Conditional release and leniency in conditions

It is stated that a liberal policy of conditions for release without monetary sureties or financial
security and release on one’s own recognizance with punishment provided for violation will go a
long way to reform the bail system and help the weaker and poorer sections of the community to
get equal justice under the law. Conditional release may take the form of entrusting the person
accused of an offence to the care of their relatives or in supervision. The court or the authority
granting bail may have to use the discretion judiciously. When the accused person is unable to
find sureties, there will be no point in insisting on bail with sureties, as it will only compel them
to be in custody with the consequent handicaps in providing their defense.[9]

Expanding the ambit of Bailable offences

Enlarging the category of bailable offences as classified in Cr.P.C., and insisting on expeditious
completion of pre-trial procedures that might lead to minimizing the period of confinement. It
has also noted that a person accused of an offence would need access to a lawyer to make an
application for bail.[10] As per law, it is required to ensure that legal aid is provided but, in
practice, this occurs only after the charge-sheet is filed. Therefore, access to lawyers in the
crucial pre-charging stages is often limited for those who cannot afford a lawyer, and who are
likely therefore to also not be able to afford bail.

Under trial Prisoners

In the case of Supreme Court Legal Aid Committee Representing Undertrial Prisoners [11] the
Supreme Court held that unduly long periods of under-trial incarceration violates Articles 14 and
21 of the Constitution.

An amendment was made in 2005, by which s. 436A was added to the Code. This section
provides that if the accused person has undergone detention for half the maximum period of
imprisonment specified for the offence that he has been charged with, such an accused shall be
released by the court on personal bond with or without sureties. Persons charged with offences
punishable with death do not get the benefit of this provision. The proviso to the section states

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that the court, upon hearing the public prosecutor, may order the continued detention of the
accused person for a term longer than half of the said period, or release the person accused of an
offence on bail instead of personal bond with or without sureties. The court shall record reasons
for this in writing. The second proviso to the section states that no accused person shall be
detained for a period longer than the maximum period of imprisonment for the offence.

For successful implementation of this provision, the Supreme Court of India laid down
guidelines in Bhim Singh v. Union of India[12]. It directed the jurisdictional Magistrate/Chief
Judicial Magistrate/Sessions Judge to hold one sitting per week in each jail/prison for two
months from October 1, 2014 to identify under-trials eligible for bail under sec. 436-A of Cr.P.C
and to pass an appropriate order with respect to sec. 436-A of Cr.P.C in the jail itself. It directed
the Jail Superintendent of each jail/prison to facilitate the process.

Moreover in the case of R.D. Upadhyay v. State of Andhra Pradesh[13] the Supreme Court had
held that under-trials charged with attempt to murder should be released on bail if their case has
been pending for 2 years or more; and that persons charged with comparatively minor offences
like theft, cheating, etc., should be released if they have been in prison for more than a year. The
Court added two important instructions: (1) the trial courts were obligated to consider such
persons for bail. The court clarified that it was not necessary for under-trials to move an
application for bail. (2) The Court directed that where an under-trial is not in a position to furnish
sureties, the court should examine whether the person can be released on furnishing a personal
bond. In the current system of money bail and release under sec. 436A Cr.P.C., after serving half
of the maximum sentence, it must be considered whether, given the duration of maximum
imprisonment in many offences, release after serving half the duration serves the cause of justice.

Conclusion

Hence, there is a dire need to a reform the current bail process as it not only prejudicial to the
destitute as well as cause a problem on the state in form of under trial prisoners, over congestion
in jails and a new alternatives should be suggested which can be used as a deterrent for assuring
the compliance of the bailed offender instead of the current money based system.

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 DOWRIES TRAP POOR PEOPLE IN DEBT

Dowries often force poor families to take out loans with steep interest rates, sell off their land to
raise money, promise to pay dowries in installments, and other scenarios that can lead to
crippling debt.
“Families from his income group often go begging in order to give marriageable daughters a
dowry,” Haji Mumtaz Ali, who heads an anti-dowry campaign told The Guardian. “Other parents
sell their farmland to come up with a dowry. And some parents take out high-interest loans from
money lenders and get trapped with huge debts.Dowries also deepen class hierarchies. Wealthy
families who expect higher dowries essentially exclude poor families from asking for a
marriage.

The Relationship Between Dowry and Poverty:

As stipulated in the Dharmasasthra, Kanyadan is a meritorious act and it is not complete until a
bridegroom is givenDakshina while performing and solemnizing the ceremony. However, in the
course of time, the voluntary element associated with Varadakshina during Kanyadan has
disappeared and the coercive element has crept in. It has taken deep roots not only in the
marriage ceremony but also extended to the post-marital relationship. The concept of dowry has
therefore evolved into a completely different notion than tradition once prescribed.

Research has shown that moderately poor families struggle to raise dowry through several
different mechanisms, including taking multiple loans from micro finance institutions or by
selling their assets. In comparison, the extreme poor adopt a different set of coping mechanisms
such as child labour, informal loans on high interest etc. The fact that it is related to capability
approach and capability deprivation in a broader sense cannot be neglected. To gain a better
understanding of the same, the study of relationship between dowry and poverty therefore
become essential.

No doubt, that the women are at helm of life and enjoy equal liberties with men in every sphere
of life, yet there is a connotation of the feeling of hatred towards them. Inspite of the fact that
they enjoy prestigious positions in government offices, educational institutions, business
organizations, the armed forces etc. they are the victims of many evil practices in the society.

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When we talk about the evil practices the first thing, which has to be taken into consideration, is
that -it has evolved from the society. The same society which we are part of! Dowry has become
a major social evil against women and it is spreading as fast as a communicable disease in the
society. Day and night, we hear and read news of one or more young women burnt to death
because she could not bring sufficient amount of dowry with her. There seems to be no end to
the practice of torture of young brides because of failure to bring dowry wherein they are forced
to commit suicide. This is the problem of dowry and in this project I will basically deal with how
practice of giving and taking dowry leads to poverty and vice-versa.

Law alone cannot help in this respect; to curb such social evil, social effort is required. Only a
determined and co operative effort can solve this problem.For every single reason government
cannot be blamed, there are anti-dowry laws but it is time for “We the people” to take action.
Each one has to take up this fight by creating awareness in the family, communities and society
at large. Constant and alert actions against people practicing this evil will slowly help in getting
rid of this evil.

Dowry it is nothing but exchange of wealth between the bride’s family and the groom’s family.
Scholars have loosely defined today’s notion of dowry to be “movable or immovable property
that a bride’s father or guardian gives to the bridegroom, his parents, or his relatives as a
condition to the marriage, and under duress, coercion or pressure”, or “cash, consumer goods,
and jewellery that a wife brought with her to her husband’s household.”

The concept of dowry has evolved into a completely different notion than tradition once
prescribed. A brief background on the evolution of dowry will help us spotlight on the modern
status of women in Indian society and the society’s efforts to control this status. No blame game
is going to help at this juncture. The problems must be identified and a solution has to be worked
upon positively!

The system of dowry had its origin in the Vedic period which began only as a formal rite in the
institution of marriage. Among the various types of Hindu marriages, ‘Kanyadan’ played a
significant role in the evolution of the dowry system. During Kanyadan, a bride was given as a
gift to a bridegroom by her father. As stipulated in the Dharmasasthra, Kanyadan is a meritorious
act and it is not complete until a bridegroom is given a Dakshina while performing and
solemnizing the ceremony of Kanyadan. However, in the course of time, the voluntary element

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associated with Varadakshina during Kanyadan marriage has disappeared and the coercive
element has crept in. It has taken deep roots not only in the marriage ceremony but also extended
to the post-marital relationship.

Thus, what was originally intended as a token Dakshina for the bridegroom has now gone out of
proportions and has assumed the modern nomenclature ‘dowry’. Considering its ramifications
and the impact it created in the society, the dowry system has grown into a greedy monster,
which is constantly looking out for hapless preys especially from feminine gender.

Another scholar explains the origins of dowry exchange as a response to Muslim invasions and
Muslim rule that occurred during the thirteenth and fourteenth centuries. Hindus among higher
classes may have started to implement more customs protective of their culture such as the caste
system, to keep marriage confined within their communities. During an economic downturn after
invasions, it became difficult to find bridegrooms who were financially established. As a result,
those who were well off were the object of a fierce bidding war by prospective brides’ families.
As a result, dowry became the dominant feature in negotiations of arranged marriages, because
bridegrooms would demand them.

Impact of dowry

Today situation is such that the fact is before fixing a marriage or engagement, dowry is
demanded as a precondition. When the demand for dowry is not accepted, a disagreement is
reached and the marriage proposal gets foiled even at the preliminary stage. The personality of a
bride or bridegroom, their willingness for the proposed marriage etc which are normally
considered as the essential prerequisites of a marriage take the backstage.

Another salient feature of the dowry system is that it is always associated with the status of the
parties to the marriage. In particular, in the arranged marriages, the bridegroom’s parents demand
a sum in cash or in kind, in the form of jewelry, material things like household articles, car and
house etc.

The irony is such demands are made befitting the economic status of the bridegroom’s family or
the position held by the bridegroom or the actual amount that he earns as salary or in his business
or profession. If the agreed amount of cash or kind is not paid before the marriage, it even leads
to the termination of the contract of marriage and the marriage is not solemnized.
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The system of dowry has also become a primary source of post-marital disputes. When the
agreed amount of dowry is not paid or it is partly paid and partly promised, sometimes the
marriage is solemnized and even consummated. When the bride’s family is not able to fulfill the
promise of dowry due to poverty, the conflict begins at the marital home, in which the entire
family members of the bridegroom is pitted against the bride. Going further, the bride, for no
fault of her, is verbally abused in a vituperative language, assaulted or violently beaten by her
husband, in extreme cases the bride is strangled to death or put to flame using petrol or kerosene.
The bride is not spared even when she is pregnant or a mother of a baby.

Unable to fulfill the dowry demands of the marital home, the bride is mostly driven back to her
parent’s home. Somehow or other, the bride’s parents should fulfill the demands for dowry, so as
to ensure a better future for their daughters at their marital homes. As a result, the bride’s parents
become heavily indebted and wallow in poverty or struggle to have their both ends meet
throughout their life.

Sometimes, it so happens that hapless men are being harassed by women misusing the
provisions of Dowry Prohibition Act, preferring false complaints against their husbands. Hence,
courts have begun to consider such cases sympathetically and even issued instructions
accordingly. If a woman prefers a complaint against her husband on the ground of harassment for
dowry, the police authorities need not automatically arrest him unless a prima facie case is made
out on enquiry. But this situation mainly occurs in the rural areas, as uneducated women over
there are not aware of enforcement of any legal rights and therefore suffer to a large extend. Thus
the dowry system creates a chaos in the society, by promoting violence and strife among the
members of the families and thereby dismembering the families.

Dowry harassment today has become a money making scheme for bridegrooms and their
families. Modern urbanization, industrialization and consumerism have created a society where
money and status have become central to the negotiations for marriage. British rule introduced
the concepts of monetization, and materialism to Indian society. Historians suggest that the
introduction under British rule of a capitalist economy resulted in the imposition of heavy land
taxes so that families were pressured to find large sums of cash or lose their lands.

The “market” for brides and grooms is often reflected in newspapers, which abound with
advertisements of potential spouses possessing “eligibility and social prowess, usually using their

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caste as a bargaining chip”. Professionals such as doctors, engineers and accountants, especially
ones living abroad in developed countries, expect the highest amount of dowries because
educated men are the ticket to high social status and wealth. Yet a paradox occurs when educated
women are married. The more educated the woman, the more dowries the husband can extract
from her because she is viewed as less able to focus on household matters. In many cases, she is
expected to give her entire pay check to her new family and to bring even more money from her
parents as dowry. This cultural paradox reflects the tension between patriarchal norms and the
resistance to women’s struggling rise in economic status.

Dowry demands from bride’s families are never ending list which turns as an obligation for them
to fulfill not only in the middle class or upper middle class but the worst condition can be seen in
the poor section of the society. When a female child is born in the family, particularly in
Northern India, the faces of all the members of the family fall. The very expression of joy
disappears from their visage. It looks as if they had come under the ellipse to sorrows and
miseries. Even the mother who has given birth to the child looks sullen and sometimes becomes
the object of taunts and ironical remark of her in-laws.

Do you know why it happens so? It is because of the dowry system prevalent in our society. The
very moment a female child is born, the picture of dowry with the demand of a huge amount of
money in cash or kind comes before their eyes. Now people have gone a step further to avoid
this unhappy situation. They go to nursing homes for pre-natal determination of the sex of the
unborn child, resulting in undesirable practices. Whether a woman wishes to or not, she has to
follow the dictates of her in-laws.

All these things are happening simply because of the dowry system which is a stigma on the fair
name of the Indian society and a curse for women. Dowry is generally found in societies with
more complex societal structures. These societies appear to exhibit substantial socioeconomic
differentiation and class stratification.

Poverty is a state in which people are unable to enjoy the necessities of life i.e. food clothing and
shelter. The distinguishing feature of chronic poverty is extended duration in absolute poverty.
Therefore, chronically poor people always, or usually, live below a poverty line, which is
normally defined in terms of a money indicator (e.g. consumption, income, etc.), but could also
be defined in terms of wider or subjective aspects of deprivation. This is different from the

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transitorily poor, who move in and out of poverty, or only occasionally fall below the poverty
line.

It is not uncommon for development practitioners to compare the impacts of dowry with those of
cyclones, floods and other forms of natural disasters. Although dowry is not a natural and
unpredictable incident, it is something that has become engrained into the culture of our country
over period of time. The cycle of poverty is further entrenched through this continuing practice,
which in turn is distorting the effectiveness of existing and continuing poverty reduction
programmes.[ii]

It has been recognised that dowry in South Asia hinders women’s empowerment and can serve
as a cause of violence against women. A recent study in Bangladesh highlights that dowries also
have serious economic repercussions, with families identifying dowry payment as a leading
cause of impoverishment. This policy brief also looks at the need for public policy aimed at
ameliorating the negative social effects of dowry to take the economic consequences of
unaffordable dowry into account, and dowry-focused policies should feature as part of broader
poverty reduction strategies. There is a need to go beyond official policy and find innovative
ways of addressing the negative socio-economic effects of dowry, both at the local and national
levels.

Research cited dowry as the leading cause of poverty despite the in progress efforts of numerous
NGOs to curb the practice. Dowry has been traditionally analysed as a part of expanding
personal rights of women within the broader poverty agenda, however, further work is required
to understand its linkages with extreme poor groups. This need for further understanding is
gaining increasing importance as, over the last few years, the government, supported by donors,
has undertaken a number of programmes tasked with eradicating extreme poverty.

These programmes can be, roughly, separated between distributing fixed assets to households or
increasing awareness on individual rights and entitlements. Both of types of model attempt to
improve household income generating capabilities and ultimately lift their beneficiaries out of
poverty. These programmes have proved fruitful in the short-run, but a failure to seize the
debilitating effect of dowry may lead to critical long-term implications. In rural areas, dowry is
often the most important aspect of the marriage. Parents of young men and women spend a
considerable amount of time negotiating the “right” amount before the start of the ceremony.

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Families struggle to raise this often large sum, as many people believe that it impossible to get
married without dowry.

Research has shown that moderately poor families struggle to raise dowry through several
different mechanisms, including taking multiple loans from micro finance institutions or by
selling assets including land. In comparison, the extreme poor adopt a different set of coping
mechanisms as by definition they have no land, limited assets, low levels of income and no
access to micro-finance. The extreme poor are dependent on the humanity and charity of the
local community, where dowry is collected through a number of mechanisms like high interest
informal loans, and engaging in child labour.

Without stronger actions and efforts to mitigate dowry, programmes aiming to lift the extreme
poor out of poverty may actually increase the vulnerability of households, with the potential to
push them deeper into extreme poverty than ever before. Dowry is not a natural phenomenon,
and we should not treat it like one.

Dowry, a widely practised social malaise, forces many families deeper into poverty and it is one
of the main reasons behind violence against women, Education, economic empowerment of
women, women’s equal rights to property and social awareness can help eliminate dowry
system, they added. The study revealed that although dowry is illegal under the law, it is a
widely practised social custom. It is one of the main reasons for child marriage, domestic
violence, divorce and polygamy in the country. In rural Bangladesh, many families are forced to
sell out valuable items and property or take loans with high interest rate to fulfil the dowry
demands, which in many cases forces them deeper into poverty. Dowry demands have different
forms such as money, valuables, property and promise of employment. The problem arises
because -In our society, men are considered asset while women are considered as liability. As
long as women remain burden in the eyes of everyone, the practice of dowry will continue.

After 65 years of independence, millions of people are still not able to have a square meal a day.
A lot of progress has been made but the fact still remains that we have too many poor people
even now. Hence, poverty is affecting more than corruption and dowry and I feel that the root
cause of this poverty is corruption. Otherwise, like many other countries, it should have been
possible to eradicate poverty by now.

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Early marriages and dowry system are entrenched problems of south Asian countries. According
to a research “Dowry payments of more than 200 times the daily wage and costly medical
expenses are major causes of this chronic poverty.”

The results of the research showed that illiterate people with less income had hard time escaping
poverty because they had to take loans for marriages of their children and younger siblings.
Though dowry system is illegal still it is practiced in rural areas, also in city areas. Moreover,
medical expenses for the elderly members of family are also another cause for poverty in rural
areas. Government has encouraged enrolment of girls in school to end the practice of dowry
system. On the basis of their research, the researchers have said that proper education,
employment and health facilities could play vital role in alleviating poverty in families of rural
areas.[iii]

Now it is very clear that dowry is strongly linked to women’s poverty. Poverty makes women
more vulnerable. They remain dependent with an undignified status. The exchange of wealth in
the form of dowry in a way turns women into a commodity.

Empowerment of women is the key to getting rid of dowry. Women can become successful in
many fields if they get opportunities. In general, I think education plays a major role in ending
dowry system. If girls are educated, they can be independent and early marriage and abuses from
husband after marriage are also prevented. I believe education is the best dowry any parent can
give to their daughters. To conclude, ending dowry system not only uproots an evil system from
our societies but also assists in alleviating poverty.

Best education is the best dowry. Parents are advised to educate daughters the best as the time
has changed and it is time that education has more value in the employment market and fields
have been opened for women to become entrepreneurs. Amount of dowry may be invested for
her secured future.

Girl’s parents should help reporting Governments or concerned authorities about the dowry
demand by groom parents. Marriage with such boys should be discouraged as demand of
excessive dowry means they do not want girl but money this would result to extortion after
marriage by torture. Besides arresting, blacklisting in communities of dowry extorters most

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essentials. Will help not only to discourage, will also help other girl parents to keep away from
such people. [iv]

All dowry receipts and payments as dowry need to be recorded with marriage registration
authority to help during unwanted incidents or separation. Girl’s parents should not hesitate to
get registered of payments. Even in ancient societies was maintained of all transactions. It has
been recognized that dowry hinders women’s empowerment and can serve as a cause of violence
against women. A study highlights that dowries also have serious economic repercussions, with
families identifying dowry payment as a leading cause of impoverishment there is a need to go
beyond official policy and find innovative ways of addressing the negative socio-economic
effects of dowry, both at the local and national levels.

When I connect the problem of dowry with the subjects of – law, poverty and development, it is
related to capability approach and capability deprivation in a broader sense. In capability
approach as it is believed that every individual’s primary goal is to achieve wealth, and dowry is
a way of getting prosperity and wealth, it is immoral but still people choose this path for making
quick money.In case of capability deprivation it is believed that one is deprived from his
capabilities because of certain factors such as age, gender etc, being a women makes an
individual deprived from his capabilities and every the if!

If she was given good education, she would have generated income out of her capabilities, if she
was forced to stop working or if she did not had any family pressure she would have generated
income. If she was not a woman, she would have generated income and would not have been
deprived from her capabilities.

Simply by raising questions we cannot come up with solutions. The need for us is to understand
that we must change our mentality with the changing society, a full stop should be put on such a
social evil and we must take a step forward to bring a change in this static mentality.

Education is the solution for curbing dowry in our society.

POVERTY IS ONE OF THE MAIN DRIVERS OF CHILD MARRIAGE

Child brides are more likely to be poor and to remain poor. Where poverty is acute, giving a
daughter in marriage allows parents to reduce their expenses: one less person to feed, clothe and
educate.

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In communities where economic transactions are integral to the marriage process, a dowry or
“bride price” is often welcome income for poor families. Families sometimes marry their
daughters at a younger age to avoid more expensive dowries which the marriage of older girls
often demands.

CHILD MARRIAGE TRAPS GIRLS AND THEIR FAMILIES IN A CYCLE OF POVERTY

Girls who marry young are less likely to receive the education they need to live a healthy and
empowered life. Without an education, they are less able to earn an income to lift themselves and
their families out of poverty.

In many communities, economic opportunities are severely limited, especially for girls and
women. Families therefore see little value in educating their daughters and instead marry them
off to fulfil the role of a wife and mother.

Child brides also have to perform much unpaid work in the home, such as cleaning, cooking and
caring for their husbands, in-laws and children.

THIS CYCLE OF POVERTY IS NOT INEVITABLE

By not marrying early and staying in school, a girl is more likely to be healthier and wealthier –
and to reinvest her income into her family.

An extra year of primary education for girls boost their future earnings by 15%, a figure that only
increases with the level of education.

STRATEGIES TO END CHILD MARRIAGE AND BOOST ECONOMIC GROWTH

Contexts where girls and women are valued and productive members of society have lower rates
of child marriage. Keeping girls in school and building their life and livelihood skills can not
only reduce child marriage, but also increase the economic productivity of married girls.

Here are some ways to simultaneously address child marriage and boost economic growth:

Provide families with financial incentives to keep girls in school and not marry them

Allow girls to make the transition from primary to secondary school so they have the potential to
earn a safe and adequate income later on in life

Teach girls how to be financially literate for example, how to be financially savvy,
entrepreneurial, budget and save

Target girls at risk of child marriage and already married adolescent in youth workforce
development programmes

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 POVERTY ALLEVIATION PROGRAMMES

Poverty alleviation programs would be formulated and implemented in a decentralized manner

with the participation of the people at the grassroots level through village panchayats and
panchayat samithies, zillaparishads, etc. Such an approach will contribute to the selection of
projects suited to local conditions, and to the integration of poverty alleviation programs with
area development. This framework will also help in the timely provision of services in their
appropriate sequence and in ensuring that the benefits of the program really reach those for
whom they are intended.
Large number of programs through multiple organizations has led to the duplication of
management efforts. The effective implementation of the programs would call for better
planning at the district level. It was proposed to take up during the Seventh Plan measures for
strengthening, proper training and orientation of the local administrative machinery within the
framework of an integrated administrative organization.
Keeping in view the limited absorptive capacity of the poorest households, the approach to the
Seventh Plan has also emphasized the need for taking up group-oriented activities for 61
beneficiaries, to the extent possible, through the promotion of co-operatives, registered societies,
informal groups, etc. Further, voluntary agencies would be increasingly involved in the
formulation as well as implementation of poverty alleviation programs during the Seventh Plan,
especially for ensuring greater participation of the people. Thus the Seventh Plan strategy of
development is to achieve overall economic growth which in turn automatically ensures
generation of employment and income of the people. The Eighth Plan states that elimination of
poverty continues to be a major concern of development planning. Expansion of employment
opportunities, augmentation of productivity and income levels of both the underemployed and
unemployed poor would be the main instrument for achieving this objective during the Eighth
Plan.

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 ANTI POVERTY MEASURES

1. Integrated Rural Development Programme (IRDP):

The Integrated Rural Development Programme (IRDP), which was introduced in 1978-79
and universalized from 2nd October, 1980, aimed at providing assistance to the rural poor
in the form of subsidy and bank credit for productive employment opportunities through
successive plan periods. On 1st April, 1999, the IRDP and allied programmes were
merged into a single programme known as Swarnajayanti Gram SwarozgarYojana
(SGSY). The SGSY emphasizes on organizing the rural poor into self-help groups,
capacity-building, planning of activity clusters, infrastructure support, technology, credit
and marketing linkages.

2. JawaharRozgarYojana/Jawahar Gram SamriddhiYojana:

Under the Wage Employment Programmes, the National Rural Employment Programme
(NREP) and Rural Landless Employment Guarantee Programme (RLEGP) were started
in Sixth and Seventh Plans. The NREP and RLEGP were merged in April 1989 under
JawaharRozgarYojana (JRY). The JRY was meant to generate meaningful employment
opportunities for the unemployed and underemployed in rural areas through the creation
of economic infrastructure and community and social assets. The JRY was revamped
from 1st April, 1999, as Jawahar Gram SamriddhiYojana (JGSY). It now became a
programme for the creation of rural economic infrastructure with employment generation
as the secondary objective.

3. Rural Housing – Indira AwaasYojana:

The Indira AwaasYojana (LAY) programme aims at providing free housing to Below
Poverty Line (BPL) families in rural areas and main targets would be the households of
SC/STs. It was first merged with the JawaharRozgarYojana (JRY) in 1989 and in 1996 it
broke away from JRY into a separate housing scheme for the rural poor.

4. Food for Work Programme:

The Food for Work Programme was started in 2000-01 as a component of EAS full
form??. It was first launched in eight drought-affected states of Chhattisgarh, Gujarat,
Himachal Pradesh, Madhya Pradesh, Orissa, Rajasthan, Maharashtra and Uttaranchal. It

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 aims at enhancing food security through wage employment. Food grains are supplied to
states free of cost, however, the supply of food grains from the Food Corporation of India
(FCI) godowns has been slow.

5. SampoornaGraminRozgarYojana (SGRY):
The JGSY, EAS and Food for Work Programme were revamped and merged under the
new SampoornaGraminRozgarYojana (SGRY) Scheme from 1st September, 2001. The
main objective of the scheme continues to be the generation of wage employment,
creation of durable economic infrastructure in rural areas and provision of food and
nutrition security for the poor.

6. Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) 2005:

It was launched on February 2, 2005. The Act provides 100 days assured employment
every year to every rural household. One-third of the proposed jobs would be reserved for
women. The central government will also establish National Employment Guarantee
Funds. Similarly, state governments will establish State Employment Guarantee Funds
for implementation of the scheme. Under the programme, if an applicant is not provided
employment within 15 days s/he will be entitled to a daily unemployment allowance.

Salient features of MGNREGA are:

I. Right based framework

II. Time bound guarantee of employment

III. Labour intensive work

IV. Women empowerment

V. Transparency and accountability

VI. Adequate funding by central government

7. National Food for Work Programme:

It was launched on November 14, 2004 in 150 most backward districts of the country.
The objective of the programme was to provide additional resources available under

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 SampoornaGrameenRojgarYojna. This was 100% centrally funded programme. Now this
programme has been subsumed in the MGNREGA from Feb....... 2, 2006.

8. National Rural Livelihood Mission: Ajeevika (2011)

It is the skill and placement initiative of Ministry of Rural development. It is a part of
National Rural Livelihood Mission (NRLM)–the mission for poverty reduction is
calledAjeevika (2011). It evolves out the need to diversify the needs of the rural poor and
provide them jobs with regular income on monthly basis. Self Help groups are formed at
the village level to help the needy.

9. Pradhan MantriKaushalVikasYojna:
The cabinet on March 21, 2015 cleared the scheme to provide skill training to 1.4 million
youth with an overall outlay of Rs. 1120 crore. This plan is implemented with the help of
Ministry of Skill Development and Entrepreneurship through the National Skill
Development Corporation. It will focus on fresh entrant to the labour market, especially
labour market and class X and XII dropouts.

10. National Heritage Development and Augmentation Yojna (HRIDAY):

HRIDAY scheme was launched (21 Jan. 2015) to preserve and rejuvenate the rich
cultural heritage of the country. This Rs. 500 crore programme was launched by Urban
Development Ministry in New Delhi. Initially it is launched in 12 cities: Amritsar,
Varanasi, Gaya, Puri, Ajmer, Mathura, Dwarka, Badami, Velankanni, Kanchipuram,
Warangal and Amarvati.
These programmes played/are playing a very crucial role in the development of the all
sections of the society so that the concept of holistic development can be ensured in the
real sense.

Lamented George Bernard Shaw in his preface, entitled 'Preface on Bosses', written for
his play The Millionaires'. 'The law is equal before all of us, but we are not all equal

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 before the law'. Lest this epitaph on the justice delivery system does not turn into an
absolute reality or becomes a permanent feature of the judicial administration, imperative
it is that justice delivery system be one, which ensures to its people reasonable, fair and
just procedure. Can a Justice delivery system be regarded fair, just and reasonable, if the
Advocates, as a class, are excluded, as a whole, from the justice delivery system itself
The answer to this question has to be an unhesitant and emphatic 'no', for when
Advocates are regarded as Officers of the Court the Advocates, as a class, become an
integral and in severable part of the judicial system, which we have adopted under our
Constitution. The exclusion of the Advocates, as a class, from the real of judicial justice'
can be on the strength of specific legislation or by creating, without support of law, such
situations, which may, in effect, remove the Bar, as a whole, from the entire justice
delivery system.

ECONOMIC, SOCIAL AND CULTURAL RIGHTS

Part III of the Indian Constitution guarantees “fundamental rights” to all citizens, and some of
these, like the right to life (art. 21) and the right to equality (art.14), to all persons. The fun-
damental rights are enforceable in the High Courts and the Supreme Court. In writ petitions
before these courts, a person or a citizen can seek enforcement of fundamental rights and redress
for their breach. Judicial review of executive action as well as of legislation and judicial and
quasi-judicial orders is recognized as part of the “basic structure” of the Constitution which
cannot be taken away even by an amendment to the Constitution. The Supreme Court has the
final word on the interpretation of the Constitution, and its orders, being law, are binding and
enforceable by all authorities—executive, legislative and judicial.

The Directive Principles of State Policy (DPSP) are contained in part IV, articles 36 to 50, of the
Indian Constitution. Many of the provisions correspond to the provisions of the ICESCR. For
instance, article 43 provides that the state shall endeavor to secure, by suitable legislation or
economic organization or in any other way, to all workers, agricultural, industrial or otherwise,
work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of
leisure and social and cultural opportunities, and in particular the state shall endeavor to promote
cottage industries on an individual or cooperative basis in rural areas. This corresponds more or
less to articles 11 and 15 of the ICESCR. However, some of the ICESCR rights, for instance, the
right to health (art. 12), have been interpreted by the Indian Supreme Court to form part of the

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right to life under article 21 of the Constitution, thus making it directly enforceable and
justiciable. As a party to the ICESCR, the Indian legislature has enacted laws giving effect to
some of its treaty obligations and these laws are in turn enforceable in and by the courts.

Article 37 of the Constitution declares that the DPSP “shall not be enforceable by any court, but
the principles therein laid down are nevertheless fundamental in the governance of the country
and it shall be the duty of the state to apply these principles in making laws.” It is not a mere
coincidence that the apparent distinction that is drawn by scholars between the ICCPR rights and
ESC rights holds good for the distinction that is drawn in the Indian context between
fundamental rights and DPSP. Thus the bar to justiciability of the DPSP is spelled out in some
sense in the Constitution itself.

However, the Indian judiciary has overcome this apparent limitation by a creative and inter-
pretative exercise. In what context that happened and how is what is proposed to be examined in
this case study. After briefly tracing the development of this interpretative exercise through case
law in the first three decades of the working of the Constitution, I propose to examine the
response of the judiciary in the context of justiciability and enforceability of specific ESC rights.

Fundamental Rights versus DPSP

When the tussle for primacy between fundamental rights and DPSP came up before the Supreme
Court first, the court said, “The directive principles have to conform to and run subsidiary to the
chapter on fundamental rights.” Later, in the Fundamental Rights Case (referred to above), the
majority opinions reflected the view that what is fundamental in the governance of the country
cannot be less significant than what is significant in the life of the individual. Another judge
constituting the majority in that case said: “In building up a just social order it is sometimes
imperative that the fundamental rights should be subordinated to directive principles.” This view,
that the fundamental rights and DPSP are complementary, “neither part being superior to the
other,” has held the field since.

The DPSP have, through important constitutional amendments, become the benchmark to
insulate legislation enacted to achieve social objectives, as enumerated in some of the DPSP,
from attacks of invalidation by courts. This way, legislation for achieving agrarian reforms, and
specifically for achieving the objectives of articles 39(b) and (c) of the Constitution, has been

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immunized from challenge as to its violation of the right to equality (art. 14) and freedoms of
speech, expression, etc. (art. 19). However, even here the court has retained its power of judicial
review to examine if, in fact, the legislation is intended to achieve the objective of articles 39(b)
and (c), and where the legislation is an amendment to the Constitution, whether it violates the
basic structure of the constitution. Likewise, courts have used DPSP to uphold the constitutional
validity of statutes that apparently impose restrictions on the fundamental rights under article 19
(freedoms of speech, expression, association, residence, travel and to carry on a business, trade
or profession), as long as they are stated to achieve the objective of the DPSP.

The DPSP are seen as aids to interpret the Constitution, and more specifically to provide the
basis, scope and extent of the content of a fundamental right. To quote again from
the Fundamental Rights case:

Fundamental rights have themselves no fixed content; most of them are empty vessels into which
each generation must pour its content in the light of its experience. Restrictions, abridgement,
curtailment and even abrogation of these rights in circumstances not visualised by the
constitution makers might become necessary; their claim to supremacy or priority is liable to be
overborne at particular stages in the history of the nation by the moral claims embodied in Part
IV.11

Judicial Activism and Public Interest Litigation

The internal emergency that was in force between 1975 and 1977 and its aftermath contributed
significantly to the change in the judiciary’s perception of its role in the working of the
Constitution. The period of the emergency witnessed large-scale violations of basic rights of life
and liberty. There were also blatant violations of the right to freedom of speech and
expression. The end of the emergency saw the emergence of a realignment of political
forces. Nevertheless, the popularly elected government was weak and in trying to find its feet, it
did not last very long. It was already collapsing by 1978/1979, which was when the judiciary
initiated the public-interest litigation (PIL) movement. The development of the jurisprudence of
ESC rights is also inextricably linked to this significant development.

The lifting of the emergency and the realignment of political forces had not resulted in any
dramatic change in the social imbalances or executive excesses that had by then become en-

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demic. The post emergency period then provided the right environment for the judiciary to
redeem itself as a protector and enforcer of the rule of law. Judges woke up to this need and PIL
was the tool the judiciary shaped to achieve this end. PIL was entirely a judge-led and judge-
dominated movement.

What made PIL unique was that it acknowledged that a majority of the population, on account of
their social, economic and other disabilities, was unable to access the justice system. The
insurmountable walls of procedure were dismantled and suddenly the doors of the Supreme
Court were open to people and issues that had never reached there before. By relaxing the rules
of standing and procedure to the point where even a postcard could be treated as a writ petition,
the judiciary ushered in a new phase of activism where litigants were freed from the stranglehold
of formal law and lawyering.

TheManeka Gandhi Case and Thereafter

Simultaneously, the judiciary took upon itself the task of infusing into the constitutional pro-
visions the spirit of social justice. This it did in a series of cases of which Maneka Gandhi v.
Union of India was a landmark. The case involved the refusal by the government to grant a
passport to the petitioner, which thus restrained her liberty to travel. In answering the question
whether this denial could be sustained without a predecisional hearing, the court proceeded to
explain the scope and content of the right to life and liberty. In a departure from the earlier
view,14 the court asserted the doctrine of substantive due process as integral to the chapter on
fundamental rights and emanating from a collective understanding of the scheme underlying
articles 14 (the right to equality), 19 (the freedoms) and 21 (the right to life). The power the
court has to strike down legislation was thus broadened to include critical examination of the
substantive due process element in statutes.

Once the court took a broader view of the scope and content of the fundamental right to life and
liberty, there was no looking back. Article 21 was interpreted to include a bundle of other
incidental and integral rights, many of them in the nature of ESC rights.

In Francis Coralie Mullin the court declared:

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“The right to life includes the right to live with human dignity and all that goes with it, namely,
the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for
reading, writing and expressing oneself in diverse forms, freely moving about and mixing and
comingling with fellow human beings. The magnitude and components of this right would
depend upon the extent of economic development of the country, but it must, in any view of the
matter, include the bare necessities of life and also the right to carry on such functions and
activities as constitute the bare minimum expression of the human self.”

The combined effect of the expanded interpretation of the right to life and the use of PIL as a
tool led the court into areas where there was a crying need for social justice. These were areas
where there was a direct interaction between law and poverty, as in the case of bonded labor and
child labor, and crime and poverty, as in the case of undertrials in jails. In reading several of
these concomitant rights of dignity, living conditions, health into the ambit of the right to life, the
court overcame the difficulty of justiciability of these as economic and social rights, which were
hitherto, in their manifestation as DPSP, considered nonenforceable. A brief look at how some
of these ESC rights were dealt with by the court in four specific contexts will help understand the
development of the law in this area.

Right to Work

Article 41 of the Constitution provides that “the State shall within the limits of its economic
capacity and development, make effective provision for securing the right to work, to education
and to public assistance in cases of unemployment, old age, sickness and disablement, and in
other cases of undeserved want.” Article 38 states that the state shall strive to promote the
welfare of the people and article 43 states it shall endeavor to secure a living wage and a decent
standard of life to all workers. One of the contexts in which the problem of enforceability of
such a right was posed before the Supreme Court was of large-scale abolition of posts of village
officers in the State of Tamil Nadu in India. In negating the contention that such an abolition of
posts would fall foul of the DPSP, the court said:

It is no doubt true that Article 38 and Article 43 of the Constitution insist that the State should
endeavour to find sufficient work for the people so that they may put their capacity to work into
economic use and earn a fairly good living. But these articles do not mean that everybody
should be provided with a job in the civil service of the State and if a person is provided with one

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he should not be asked to leave it even for a just cause. If it were not so, there would be
justification for a small percentage of the population being in Government service and in receipt
of regular income and a large majority of them remaining outside with no guaranteed means of
living. It would certainly be an ideal state of affairs if work could be found for all the able-
bodied men and women and everybody is guaranteed the right to participate in the production of
national wealth and to enjoy the fruits thereof. But we are today far away from that goal. The
question whether a person who ceases to be a government servant according to law should be
rehabilitated by being given an alternative employment is, as the law stands today, a matter of
policy on which the court has no voice.

But the court has since then felt freer to interfere even in areas which would have been con-
sidered to be in the domain of the policy of the executive. Where the issue was of regularizing
the services of a large number of casual (nonpermanent) workers in the posts and telegraphs
department of the government, the court has not hesitated to invoke the DPSP to direct such
regularization. The explanation was:

Even though the above directive principle may not be enforceable as such by virtue of Article 37
of the Constitution of India, it may be relied upon by the petitioners to show that in the instant
case they have been subjected to hostile discrimination. It is urged that the State cannot deny at
least the minimum pay in the pay scales of regularly employed workmen even though the
Government may not be compelled to extend all the benefits enjoyed by regularly recruited
employees. We are of the view that such denial amounts to exploitation of labour. The
Government cannot take advantage of its dominant position, and compel any worker to work
even as a casual labourer on starvation wages. It may be that the casual labourer has agreed to
work on such low wages. That he has done because he has no other choice. It is poverty that has
driven him to that state. The Government should be a model employer. We are of the view that
on the facts and in the circumstances of this case the classification of employees into regularly
recruited employees and casual employees for the purpose of paying less than the minimum pay
payable to employees in the corresponding regular cadres particularly in the lowest rungs of the
department where the pay scales are the lowest is not tenable . . . It is true that all these rights
cannot be extended simultaneously. But they do indicate the socialist goal. The degree of
achievement in this direction depends upon the economic resources, willingness of the people to

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produce and more than all the existence of industrial peace throughout the country. Of those
rights the question of security of work is of utmost importance.

In Bandhua Mukti Morcha v. Union of India, a PIL by an NGO highlighted the deplorable
condition of bonded laborers in a quarry in Haryana, not very far from the Supreme Court. A
host of protective and welfare-oriented labor legislation, including the Bonded Labour
(Abolition) Act and the Minimum Wages Act, were being observed in the breach. In giving
extensive directions to the state government to enable it to discharge its constitutional obligation
towards the bonded laborers, the court said:

The right to live with human dignity enshrined in Article 21 derives its life breath from the
Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Article
41 and 42 and at the least, therefore, it must include protection of the health and strength of
workers, men and women, and of the tender age of children against abuse, opportunities and
facilities for children to develop in a healthy manner and in conditions of freedom and dignity,
educational facilities, just and humane conditions of work and maternity relief. These are the
minimum requirements which must exist in order to enable a person to live with human dignity
and no State has the right to take any action which will deprive a person of the enjoyment of
these basic essentials. Since the Directive Principles of State Policy contained in clauses (e) and
(f) of Article 39, Articles 41 and 42 are not enforceable in a court of law, it may not be possible
to compel the State through the judicial process to make provision by statutory enactment or
executive fiat for ensuring these basic essentials which go to make up a life of human dignity,
but where legislation is already enacted by the State providing these basic requirements to the
workmen and thus investing their right to live with basic human dignity, with concrete reality
and content, the State can certainly be obligated to ensure observance of such legislation, for
inaction on the part of the State in securing implementation of such legislation would amount to
denial of the right to live with human dignity enshrined in Article 21, more so in the context of
Article 256 which provides that the executive power of every State shall be so exercised as to
ensure compliance with the laws made by Parliament and any existing laws which apply in that
State.

Thus the court converted what seemed a non-justiciable issue into a justiciable one by invoking
the wide sweep of the enforceable article 21. More recently, the court performed a similar

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exercise when, in the context of articles 21 and 42, it evolved legally binding guidelines to deal
with the problems of sexual harassment of women at the work place.

The right of workmen to be heard at the stage of winding up of a company was a contentious
issue. In a bench of five judges that heard the case the judges that constituted the majority that
upheld the right were three. The justification for the right was traced to the newly inserted article
43-A, which asked the state to take suitable steps to secure participation of workers in
management. The court observed:

It is therefore idle to contend 32 years after coming into force of the Constitution and particularly
after the introduction of article 43-A in the Constitution that the workers should have no voice in
the determination of the question whether the enterprises should continue to run or be shut down
under an order of the court. It would indeed be strange that the workers who have contributed to
the building of the enterprise as a centre of economic power should have no right to be heard
when it is sought to demolish that centre of economic power.

Right to Shelter

Unlike certain other ESC rights, the right to shelter, which forms part of the right to an adequate
standard of living under article 11 of the ICESCR, finds no corresponding expression in the
DPSP. This right has been seen as forming part of article 21 itself. The court has gone as far as
to say, “The right to life . . . would take within its sweep the right to food . . . and a reasonable
accommodation to live in.” However, given that these observations were not made in a petition
by a homeless person seeking shelter, it is doubtful that this declaration would be in the nature of
a positive right that could be said to be enforceable. On the other hand, in certain other contexts
with regard to housing for the poor, the court has actually refused to recognize any such absolute
right.

In Olga Tellis v. Bombay Municipal Corporation, the court held that the right to life included the
right to livelihood. The petitioners contended that since they would be deprived of their
livelihood if they were evicted from their slum and pavement dwellings, their eviction would be
tantamount to deprivation of their life and hence be unconstitutional. The court, however, was
not prepared to go that far. It denied that contention, saying:

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No one has the right to make use of a public property for a private purpose without requisite
authorisation and, therefore, it is erroneous to contend that pavement dwellers have the right to
encroach upon pavements by constructing dwellings thereon . . . If a person puts up a dwelling
on the pavement, whatever may be the economic compulsions behind such an act, his use of the
pavement would become unauthorised.

Later benches of the Supreme Court have followed the Olga Tellis dictum with approval. In
Municipal Corporation of Delhi v. Gurnam Kaur, the court held that the Municipal Corporation
of Delhi had no legal obligation to provide pavement squatters alternative shops for
rehabilitation as the squatters had no legal enforceable right. In Sodan Singh v. NDMC a
constitution bench of the Supreme Court reiterated that the question whether there can at all be a
fundamental right of a citizen to occupy a particular place on the pavement where he can squat
and engage in trade must be answered in the negative. These cases fail to account for
socioeconomic compulsions that give rise to pavement dwelling and restrict their examination of
the problem from a purely statutory point of view rather than the human rights perspective.

Fortunately, a different note has been struck in a recent decision of the court. In Ahmedabad
Municipal Corporation v. Nawab Khan Gulab Khan, in the context of eviction of encroachers in
a busy locality of Ahmedabad city, the court said:

Due to want of facilities and opportunities, the right to residence and settlement is an illusion to
the rural and urban poor. Articles 38, 39 and 46 mandate the State, as its economic policy, to
provide socio-economic justice to minimise inequalities in income and in opportunities and
status. It positively charges the State to distribute its largesse to the weaker sections of the
society envisaged in Article 46 to make socio-economic justice a reality, meaningful and fruitful
so as to make life worth living with dignity of person and equality of status and to constantly
improve excellence. Though no person has a right to encroach and erect structures or otherwise
on footpaths, pavements or public streets or any other place reserved or earmarked for a public
purpose, the State has the constitutional duty to provide adequate facilities and opportunities by
distributing its wealth and resources for settlement of life and erection of shelter over their heads
to make the right to life meaningful.

Right to Health

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The right to health has been perhaps the least difficult area for the court in terms of justiciability,
but not in terms of enforceability. Article 47 of DPSP provides for the duty of the state to
improve public health. However, the court has always recognized the right to health as being an
integral part of the right to life. The principle got tested in the case of an agricultural laborer
whose condition, after a fall from a running train, worsened considerably when as many as seven
government hospitals in Calcutta refused to admit him as they did not have beds vacant. The
Supreme Court did not stop at declaring the right to health to be a fundamental right and at
enforcing that right of the laborer by asking the Government of West Bengal to pay him
compensation for the loss suffered. It directed the government to formulate a blue print for
primary health care with particular reference to treatment of patients during an emergency.

In Consumer Education and Research Centre v. Union of India the court, in a PIL, tackled the
problem of the health of workers in the asbestos industry. Noticing that long years of exposure
to the harmful chemical could result in debilitating asbestosis, the court mandated compulsory
health insurance for every worker as enforcement of the worker’s fundamental right to health. It
is again in PIL that the court has had occasion to examine the quality of drugs and medicines
being marketed in the country and even ask that some of them be banned.33

A note of caution was struck when government employees protested against the reduction of
their entitlements to medical care. The court said:

No State or country can have unlimited resources to spend on any of its projects. That is why it
only approves its projects to the extent it is feasible. The same holds good for providing medical
facilities to its citizens including its employees. Provision on facilities cannot be unlimited. It
has to be to the extent finances permit. If no scale or rate is fixed then in case private clinics or
hospitals increase their rate to exorbitant scales, the State would be bound to reimburse the
same. The principle of fixation of rate and scale under the new policy is justified and cannot be
held to be violative of article 21 or article 47 of the Constitution.

Right to Education

Article 45 of the DPSP, which corresponds to article 13(1) of the ICESCR, states, “The State
shall endeavour to provide, within a period of ten years from the commencement of this Con-
stitution, for free and compulsory education for all children until they complete the age of

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fourteen years.” Thus, while the right of a child not to be employed in hazardous industries was,
by virtue of article 24, recognized to be a fundamental right, the child’s right to education was
put into the DPSP in part IV and deferred for a period of ten years.

The question whether the right to education was a fundamental right and enforceable as such was
answered by the Supreme Court in the affirmative in Mohini Jain v. State of Karnataka. The
correctness of this decision was examined by a larger bench of five judges in Unnikrishnan J.P.
v. State of Andhra Pradesh.36The occasion was the challenge, by private medical and engineering
colleges, to state legislation regulating the charging of “capitation” fees from students seeking
admission. The college management was seeking enforcement of their right to business. The
court expressly denied this claim and proceeded to examine the nature of the right to
education. The court refused to accept the nonenforceablity of the DPSP. It asked:

It is noteworthy that among the several articles in Part IV, only Article 45 speaks of a time-limit;
no other article does. Has it no significance? Is it a mere pious wish, even after 44 years of the
Constitution? Can the State flout the said direction even after 44 years on the ground that the
article merely calls upon it to endeavour to provide the same and on the further ground that the
said article is not enforceable by virtue of the declaration in Article 37. Does not the passage of
44 years—more than four times the period stipulated in Article 45—convert the obligation
created by the article into an enforceable right? In this context, we feel constrained to say that
allocation of available funds to different sectors of education in India discloses an inversion of
priorities indicated by the Constitution. The Constitution contemplated a crash programme being
undertaken by the State to achieve the goal set out in Article 45. It is relevant to notice that
Article 45 does not speak of the “limits of its economic capacity and development” as does
Article 41, which inter alia speaks of right to education. What has actually happened is more
money is spent and more attention is directed to higher education than to—and at the cost of—
primary education. (By primary education, we mean the education which a normal child
receives by the time he completes 14 years of age.) Neglected more so are the rural sectors, and
the weaker sections of the society referred to in Article 46. We clarify, we are not seeking to lay
down the priorities for the Government—we are only emphasising the constitutional policy as
disclosed by Articles 45, 46 and 41. Surely the wisdom of these constitutional provisions is
beyond question.37

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The court then proceeded to examine how this right would be enforceable and to what extent. It
clarified the issue thus:

The right to education further means that a citizen has a right to call upon the State to provide
educational facilities to him within the limits of its economic capacity and development. By
saying so, we are not transferring Article 41 from Part IV to Part III—we are merely relying
upon Article 41 to illustrate the content of the right to education flowing from Article 21. We
cannot believe that any State would say that it need not provide education to its people even
within the limits of its economic capacity and development. It goes without saying that the
limits of economic capacity are, ordinarily speaking, matters within the subjective satisfaction of
the State.38

More caution followed. The court’s apprehension clearly was that recognition of such a right
might open the flood gates for other claims. It clarified:

We must hasten to add that just because we have relied upon some of the directive principles to
locate the parameters of the right to education implicit in Article 21, it does not follow
automatically that each and every obligation referred to in Part IV gets automatically included
within the purview of Article 21. We have held the right to education to be implicit in the right
to life because of its inherent fundamental importance. As a matter of fact, we have referred to
Articles 41, 45 and 46 merely to determine the parameters of the said right.39

In fact, the court had broken new ground in the matter of justiciability and enforceability of the
DPSP. The decision in Unnikrishnan has been applied by the court in formulating broad
parameters for compliance by the government in the matter of eradication of child labor. This it
did in a PIL where it said:

Now, strictly speaking a strong case exists to invoke the aid of Article 41 of the Constitution
regarding the right to work and to give meaning to what has been provided in Article 47 relating
to raising of standard of living of the population, and Articles 39 (e) and (f) as to non-abuse of
tender age of children and giving opportunities and facilities to them to develop in a healthy
manner, for asking the State to see that an adult member of the family, whose child is in
employment in a factory or a mine or in other hazardous work, gets a job anywhere, in lieu of the
child. This would also see the fulfilment of the wish contained in Article 41 after about half a

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century of its being in the paramount parchment, like primary education desired by Article 45,
having been given the status of fundamental right by the decision in Unnikrishnan. We are,
however, not asking the State at this stage to ensure alternative employment in every case
covered by Article 24, as Article 41 speaks about right to work “within the limits of the
economic capacity and development of the State”. The very large number of child labour in the
aforesaid occupations would require giving of job to a very large number of adults, if we were to
ask the appropriate Government to assure alternative employment in every case, which would
strain the resources of the State, in case it would not have been able to secure job for an adult in a
private sector establishment or, for that matter, in a public sector organization. We are not
issuing any direction to do so presently. Instead, we leave the matter to be sorted out by the
appropriate Government. In those cases where it would not be possible to provide job as above
mentioned, the appropriate Government would, as its contribution/grant, deposit in the aforesaid
Fund a sum of Rs.5000/- for each child employed in a factory or mine or in any other hazardous
employment.40

The court, while recognizing the importance of declaring the child’s negative right against
exploitation and positive right to education, chose a pragmatic approach when it came to en-
forceability. Earlier the court would have shrugged off the whole issue as not being within its
domain. That has now changed as is clear from the recent trend of cases.

Conclusion

This much is clear from the above narration—that ESC rights are no less important than fun-
damental rights in the constitutional scheme. They are enforceable when they are projected as
supplying the content of a fundamental right,41 but not just by themselves.42

The judiciary will not be fettered by any apparent injunction in the Constitution against non-
enforceability of the DPSP. It will, on the other hand, pin the state to its obligations towards the
citizens by referring to the DPSP. Such obligation, the court has explained in the context of right
to environment, can confer corresponding rights on the citizen:

It need hardly be added that the duty cast on the State under Articles 47 and 48-A in particular of
Part IV of the Constitution is to be read as conferring a corresponding right on the citizens and,
therefore, the right under Article 21 at least must be read to include the same within its ambit. At

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this point of time, the effect of the quality of the environment on the life of the inhabitants is
much too obvious to require any emphasis or elaboration.43

The ESC rights that the DPSP symbolize can demonstrably be read as forming part of an
enforceable regime of fundamental rights. What then is crucial is the will of the state to im-
plement this constitutional mandate. The agenda of the state can be shaped to a considerable
extent by a creative and activist judiciary. The state has to be constantly reminded of its ob-
ligations and duties. The actual realization of ESC rights may be a long-drawn affair, but
keeping it on the agenda is more than half that effort. The Indian judiciary has through a
combination of strategies done just that. That is the Indian experience.

PROTECTION OF HUMAN RIGHTS IN INDIA: A REVIEW

The State maintains the framework of social order by implementation of various laws without
which well-ordered social life would not be possible. Various philosophers of social contract
theory are of the view that object of the creation of state is to maintain and protect the rights of
individuals. According to Aristotle, State came into existence out of
basenecessitiesoflifeandcontinuesforthesakeofgoodlife.1 Prof. Laski expressed that State is
known by the rights it maintains.2 Similarly Locke was of the view that end of state is to remove
the obstacles that hinder the development of an individual.3Thus, the existence of the state is
recognized with the protection of rights and liberties of individual which is the main object of
state.

Protection of the dignity of an individual is essential for harmony in the society, as its violation
can have grave impact on individual in particular and on society in general. Each individual is
entitled to some rights which are inherent to human existence. Such rights should not be violated
on the grounds of gender, race, caste, ethnicity, religion etc. these are called human rights.
Human rights are also known a basic rights, fundamental rights, natural rights or inherent rights.
The concept of human right is not a new phenomenon, ‘Human Rights’ is a twentieth century
term but its notion is as old as humanity. It has gone through various stages of development and
has taken long time to become the concept of present day. These rights had place in all ancient
societies though referred by different names4, it includes civil rights, liberties and social cultural
and economic rights. These rights are essential for all individual as these are consonant with the
freedom and dignity and ultimately contribute to social welfare.5

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Protection of human rights is a necessity for the development and growth of an
individualpersonality,whichultimatelycontributesinthedevelopmentofthenationas a whole. It is an
internationally recognized issue and various international instruments have been established for
the protection of human rights.
Protection of Human Rights in India is dynamic and adapts to the needs of the nation and its
people. The ultimate purpose of the national as well as international law is to safeguards the
human rights of the people.
At international level various efforts have been made for the protection of human rights. The
United Nations through its charter represents a significant advancement in the direction for the
promotion as well as protection of human rights. International bill on human rights has been
incorporated in the UN Charter. The UN Charter contains various provisions for the promotion
of human rights and fundamental freedoms in the Preamble and in various Articles 1, 13(b), 55,
56, 62 (2), 68 and 76(c).6 Apart from UN Charter there are four international instruments created
under the auspices of the United Nations known as International Bill of Human Rights, which
include the Universal Declaration of Human Rights 1948, the International Covenant on Civil
and Political Rights 1966, and the International Covenant on Economic, Social, and Cultural
Rights 1966, the Optional Protocol to the International Covenant on Civil and Political Rights,
1966.7 The international human rights regime is continuously growing with the passage of time,
it provides certain accepted legal standards which all the nations should accept and implement in
their domestic laws. The Governments of all the nations must work to promote the welfare of
people by eliminating all forms of discriminations and provide right to equality and justice to all.
2.HumanRightsinIndia India is the biggest democracy in the world. Being a democratic country
one of the main objectives is the protection of the basic rights of the people. Government of India
has given due consideration to the recognition and protection of human rights. The Constitution
of India recognizes these rights of the people and shows deep concern towards them.
The Universal Declaration of Human Rights contains civil, political, economic, social and
cultural rights. Constitution guarantees most of the human rights contained in Universal
Declaration of Human Rights. Part III of the constitution contains civil and political rights,
whereas economic, social and cultural rights have been included in Part IV of the Constitution.
All the statutes have to be in concurrence of the provisions of the Constitution.

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The philosophy and objective of the Constitution of India is enshrined in the preamble which
include the protection of the dignity of an individual. For the fulfillment of this objective Part III
of the constitution guarantees fundamental rights to people which are essential for the
development of an individual personality, these rights include right to equality, the right to
freedom, the right against exploitation, the right to freedom of religion, cultural and educational
rights and the right to constitutional remedies. It is the duty of the central as well as state
Governments to provide adequate conditions to each individual to enjoy their human rights. The
constitution through Directive Principles of State Policy enshrined in the Part IV of the
Constitution, ascertains the duties on the government to work for the welfare of the people and
protection of human rights of the people. These are guiding principles for the state to make
policies regarding distributive justice, right to work, right to education, social security, just and
humane conditions of work, for promotion of interest of weaker section, raise the standard of
nutrition and standard of living and to improve public health, protection and improvement of
environment and ecology etc. so that each individual can enjoy rights to the fullest.

***THANK YOU***

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