ARTICLE 14- RIGHT TO EQUALITY

Air India v/s Nergesh Meerza (1981) 4 SCC 335

Facts: Under the relevant regulation of Air India Corporation (AIC, hereafter) Act and Indian
Airlines Corporation (IAC) Act, there was a discrimination made between the conditions of
retirement and termination of service pertaining to air hostesses (AH) and those of male
pursers (MP) forming part of the same cabin crew and performing similar duties. These
conditions were that an AH under AIC retired from service:

i)                    on attaining the age of 35 years, or

ii)                   on marriage, if it took place within four years of service, or
iii)                 on first pregnancy

Fact in Issue: whether this amounts to violation of Article 14 (right to equality) and Article 15
and 16 (no discrimination on basis of s*x) of the Constitution.

1. Contentions of the AH on the grounds of violation of Article 14 were two fold:

a) Discrimination made between the AH & MP who are similarly circumstanced is

violative of Article 14.

Held: Article 14 prohibits only hostile discrimination and not reasonable classification;
unequals may be treated unequally. AH, though forming the part of the same cabin crew as
MP, formed a different class in respect of qualifications for entry into service, in grades of
salary, number of posts, and promotional avenues. They may therefore be treated differently
without violating the spirit of article 14.

i. conditions of retirement and termination of services are manifestly and patently

unreasonable and arbitrary and therefore violative of article 14.

Held: Stating that it is settled law that article 14 strikes at arbitrariness in state action and that
the principle of reasonableness "pervades article 14 like a brooding omnipresence", the court
examined all the three conditions separately.

i. so far as condition (ii) was concerned, this condition was held to be constitutionally valid.
Having regard to the difficulties faced by both the parties, the court could not find any
constitutional infirmity in the provision requiring the AH to serve the corporation with
complete dedication for the first 4 years.

ii. So far as condition (iii) was concerned the court took strong exception to it and held it to
be "grossly unethical" and as smacking of "deep rooted sense of utter selfishness at the cost
of all human values". Having taken the AH in service and after utilising her services for 4
years, to terminate her services if she becomes pregnant would amount to compelling her not
to have any children. The ability / capacity to continue to work after having children is an
individual matter and whether she would find it difficult to look after the children or not is
her personal matter which affects the AH concerned and not the airline. Pregnancy is not a
disability; it is a "natural consequence of marriage" and any distinction made on the ground
of pregnancy is extremely unreasonable and manifestly arbitrary. This condition was held to
be unconstitutional as violative of article 14 and was struck down.

iii. In respect of condition (i) the court held that the age of retirement is to be fixed by the
management after taking into account various factors such as the nature of work, prevailing
conditions, practice prevailing in other establishment, etc.. Without deciding whether 35
years is the correct age for retirement, the court went on to strike at regulation 47. Under this
regulation the managing director (MD) had an uncontrolled and unguided discretionary
power to grant yearly extensions to the AH till the age of 45. This unguided discretion vested
with the MD could easily result in his treating similarly placed AH differently and was
therefore struck down. The result was that unless the management amended the provision, all
AH would continue to retire at 45 years of age and the MD would be bound to grant yearly
extension as a matter of course, if the AH was medically fit.

b) Whether there was violation of article 15 (1) and 16 (2)?

Contention of AH: AH were particularly selected for hostile discrimination on the ground of
s*x or disabilities arising from s*x.

Held: what article 15 (1) and 16 (2) prohibit is that the discrimination should not be made
only and only on the ground of s*x. Discrimination on the basis of s*x coupled with other
considerations is not prohibited.

ARTICLE 15-PROHIBITION OF DISCRIMINATION

In M.R. Balaji v. State of Mysore, it was held that the caste of a group of persons cannot be
the sole or even predominant factor though it may be a relevant test for ascertaining whether
a particular class is backward or not. The two tests should be conjunctively applied in
determining backward classes: one, they should be comparable to the Schedule Castes and
Schedule Tribes in the matter of their backwardness; and, two, they should satisfy the means
test, that is to say, the test of economic backwardness laid down by the State government in
the context of the prevailing economic conditions. Poverty, caste, occupation and habitation
are the principal factors contributing to social backwardness
In Indira Sawhney and Ors. Vs. Union of India and Ors. , the Court observed that:-

# The meaning of the expression “backward classes of citizens” is not qualified or restricted
by saying that it means those other backward classes who are situated similarly to Scheduled
Caste and/or Scheduled Tribes. Backwardness being a relative term must in the context be
judged by the general level of advancement of the entire population of the country or the
State, as the case may be.

# There is adequate safeguard against misuse by the political executive of the power u/Art.
16(4) in the provision itself. Any determination of backwardness is neither a subjective
exercise nor a matter of subjective satisfaction. The exercise is an objective one. Certain
objective social and other criteria have to be satisfied before any group or class of citizens
could be treated as backward. If the executive includes, for collateral reasons, groups or
classes not satisfying the relevant criteria, it would be a clear case of fraud on power.

# ‘Caste’ neither can be the sole criterion nor can it be equated with 'class' for the purpose of
Article 16 (4) for ascertaining the social and educational backwardness of any section or
group of people so as to bring them within the wider connotation of 'backward class'.
Nevertheless 'caste' in Hindu society becomes a dominant factor or primary criterion in
determining the backwardness of a class of citizens.

# Unless 'caste' satisfies the primary test of social backwardness as well as the educational
and economic backwardness which are the established and accepted criteria to identify the
'backward class', a caste per se without satisfying the agreed formulae generally cannot fall
within the meaning of 'backward class of citizens' under Article 16 (4), save in given
exceptional circumstances such as the caste itself being identifiable with the traditional
occupation of the lower strata - indicating the social backwardness. And ‘Class’ has
occupation and Caste nexus; it is homogeneous and is determined by birth. It further
approved Chitralekha case.

ARTICLE 16-EQUAL OPPURTUNITY IN PUBLIC EMPLOYMENT

In Devadasan case the Supreme Court was required to adjudge the validity of the carry
forward rule. The carry forward rule envisaged that in a year, 17½ per cent posts were to be
reserved for Scheduled Castes/Tribes; if all the reserved posts were not filled in a year for
want of suitable candidates from those classes, then the shortfall was to be carried forward to
the next year and added to the reserved quota for that year, and this could be done for the next
two years. The result of the rule was that in a year out of 45 vacancies in the cadre of section
officers, 29 went to the reserved quota and only 16 posts were left for others. This meant
reservation upto 65% in the third year, and while candidates with low marks from the
Scheduled Castes and Scheduled Tribes were appointed, candidates with higher marks from
other classes were not taken.

Basing itself on the Balaji principle, the Supreme Court declared that more than 50 per cent
reservation of posts in a single year would be unconstitutional as it per se destroys Art. 16(1).
The Court emphasized that in the name of advancement of backward communities, the
Fundamental Rights of other communities should not be completely annihilated. The Court
held that as Article 16(4) was a proviso or an exception to Art. 16(1), it should not be
interpreted so as to nullify or destroy the main provision, as otherwise it would in effect
render the guarantee of equality of opportunity in the matter of public employment under Art.
16(1) wholly illusory and meaningless.

The overriding effect of Cl. (4) of Art. 16 on Cls. (1) and (2) could only extend to the making
of a reasonable number of reservations of appointments and posts in certain circumstances. A
‘reasonable number’ is one which strikes a reasonable balance between the claims of the
backward classes and those of other citizens.

The Court emphasized that each year of recruitment has to be considered by itself and the
reservation for backward communities should not be so excessive as to create a monopoly or
to disturb unduly the legitimate claims of other communities.

In State of Kerala V. N.M. Thomas, the Supreme Court held that it was permissible to give
preferential treatment to Scheduled Castes/Tribes under Art. 16(1) outside Art. 16(4). In this
case in a dissenting opinion, Subba Rao, J., had express the opinion that Art. 16(4) was not an
exception to Art. 16(1), but was a legislative device by which the framers of the Constitution
had sought to preserve a power untrammeled by the other provisions of the Article. It was a
facet of Art. 16(1) as “it fosters and furthers the idea of equality of opportunity with special
reference to under privileged and deprived classes of citizens.

The majority accepted this view of Subba Rao, J. Accordingly, the Court observed: Art. 16(4)
is not in the nature of an exception of Art. 16(1). It is a facet of Art. 16(1) which fosters and
furthers the idea of equality of opportunity with special reference to an under privileged and
deprived class of citizens. Thus, Art. 16(1) being a facet of the doctrine of equality enshrined
in Art. 14 permits reasonable classification just as Art. 14 does. The majority ruled that Art.
16(4) is not an exception to Art. 16(1). Art. 16(1) itself permits reasonable classification for
attaining equality of opportunity assured by it.

Thomas marks the beginning of a new judicial thinking on Art. 16 and leads to greater
concessions to SC, ST and other backward persons. If the Supreme Court had stuck to the
view propagated in earlier cases that Art. 16(4) was an exception to Art. 16(1), then no
reservation for any other class, such as army personnel, freedom fighters, physically
handicapped, could have been made in services.

The fact situated in Thomas was that the Kerala Government made rules to say that
promotion from the cadre of lower division clerks to the higher cadre of upper division clerks
depended on passing a test within two years. For SCs and STs, exemption could be granted
for a longer period. These classes were given two extras years to pass the test. This
exemption was challenged as discriminatory under Art. 16(1) on the ground that Art. 16
permitted only reservation in favour of backward classes but it was not a case of reservation
of posts for SCs and STs under Article 16(4) and that these persons were not entitled to any
favoured treatment in promotion outside Art. 16(4).

By majority, the Supreme Court rejected the argument. It ruled that Art. 16(1) being a facet
of Art. 14, would permit reasonable classification and, thus, envisaged equality between the
members of the same class of employees but not equality between members of a separate,
independent class. Classification on the basis of backwardness did not fall within Art. 16(2)
and was legitimate for the purposes of Art. 16(1). Giving preference to an under-represented
backward community was valid and would not contravene Arts. 14, 16(1) and 16(2). Art.
16(4) removes any doubt in this respect. The classification of employees belonging to SC and
ST for allowing them an extended period of two years for passing the special tests for
promotion is a just and reasonable classification having rational nexus to the object of
providing equal opportunity for all citizens in matters relating to employment or appointment
to public office.

The majority adopted a very liberal attitude in Thomas as regards SCs and STs and backward
classes. The result of the pronouncement is to enable the state to give the backward classes a
preferential treatment in many different ways other than reservation of posts as envisaged in
Art. 16(4). Preferential treatment for one is discriminatory treatment for another and,
therefore, it is necessary to draw a balance between the interests of the backward classes and
the other classes. The Supreme court has shown consciousness of this danger and, therefore,
has laid down a few criteria which a classification must fulfil, viz.:

i. the basis of the classification has to be backwardness;

ii. the preferential treatment accorded to backward classes has to be reasonable and must
have a rational nexus to the object in view, namely, adequate representation of the
under-represented backward classes;
 iii. the overall consideration of administrative efficiency should be kept in view in giving
preferential treatment to the backward classes.

It is obvious that in Thomas, the Court has taken a more flexible view of Art. 16(1) than had
been taken by it is earlier cases. It is now clearly established that Art. 16(4) does not cover
the entire field covered by Arts. 16(1) and (2) and some of the matters relating to
employment in respect of which equality of opportunity is guaranteed by Arts. 16(1) and (2)
do not fall within Art. 16(4).

In Akhil Bhartiya Soshit Karamchari Sangh (Railway) V. Union of India, the Supreme Court
again went into the question of reservation in public services vis-à-vis Art. 16. The Court
upheld reservation of posts at various levels and making of various concessions in favour of
the members of the SC and ST.

The Court reiterated the Thomas proposition that under Art. 16(1) itself, the state may
classify, “based upon substantial differentia, groups or classes” for recruitment to public
services and “this process does not necessarily spell violation of Article 14 to 16”
Art. 1692) expressly forbids discrimination on the basis of ‘caste’. SC and ST are not castes
within the ordinary meaning of caste. These are backward human groups. There is a great
divide between these persons and the rest of the community.

Thus, reservation in selection posts in railways for SC and St was held valid. The quantum of
reservation (17½%) in railway services for SC and ST was held not excessive and the field of
eligibility was not too unreasonable. The carry forward rule for three years was held not bad.
Under the Carry forward rule, the quota for SC and ST could go up to a maximum of 66% of
posts. This was upheld with the remark that figures on paper were not so important as the
facts and circumstances in real life which showed that the quota was never fully filled. But
this fixation was subject to the rider that, as a fact, in any particular year, there would not be a
substantial increase over 50% in induction of reserved candidates. Here the Court took the
actual facts, rather than the paper rules, into consideration.

In Indra Sawhney, the Supreme Court has taken cognizance of many complex but very
momentous questions having a bearing on the future welfare and stability of the Indian
Society. The Supreme Court has delivered a very thoughtful, creative and exhaustive opinion
dealing with various aspects of the reservation problem. Basically reservation in government
services, is anti-meritocracy, because when a candidate is appointed to a reserved post it
inevitably excludes a more meritorious candidate. But reservation is now a fact of life and it
will be the ruling norm for years to come. The society may find it very difficulty to shed the
reservation rule in the near future. But the Court’s opinion has checked the system of
reservation from running riot and has also mitigated some of its evils.

Three positive aspects of the Supreme Court’s opinion may be highlighted.

One, the over-all reservation in a year is now limited to a maximum of 50%.

Two, amongst the classes granted reservation, those who have been benefited from
reservation and have thus improved their social status (called the ‘creamy layer’ by the
Court), should not be allowed to benefit from reservation over and over again. This means
that the benefit of reservation should not be misappropriated by the upper crust but that the
benefit of reservation should be allowed to filter down to the lowliest so that they may benefit
from reservation to improve the position.
Three, an element of merit has now been introduced into the scheme of reservation. This has
been done in several ways, e.g.:
(a) promotions are to be merit-based and are to be excluded from the reservation rule;
(b) certain posts are to be excluded from the reservation rule and recruitment to such
posts is to be merit based;
(c) minimum standards have to be laid down for recruitment to the reserved posts.

IN facts, the Courts has insisted that some minimum standards must be laid down even
though the same may be lower than the standards laid down for the non-reserved posts.
In his opinion in Indra Sawhney, Jeevan Reddy,J., has emphasized upon the member of a
backward class reaching an “advanced social level or status”, he would no longer belong to
the backward class and would have to be weeded out. The Court has opined that exclusion of
creamy layer, i.e., socially advanced members, will make the class a truly backward class and
would more appropriately serve the purpose and object of Art. 16(4). Jeevan Reddy, J., has
stated that there are sections among the backward classes who are highly advanced socially
and educationally, and they constitute the forward section of the community. These advanced
sections do not belong to the true backward class. “After excluding them alone, would be the
class be a compact class. In fact, such exclusion benefits the truly backward.”
Accordingly to Jeevan Reddy, J., the exclusion of the creamy layer must be on the basis of
social advancement and not on the basis of economic interest alone. It is difficult to draw a
line where a person belonging to the backward class ceases to be so and becomes part of the
‘creamy layer’.

In Ashoka Kumar Thakur V. State of Bihar, the Supreme Court has assessed the validity of
unrealistically high levels of income or holdings of other conditions prescribed by the
Legislatures of UP and Bihar as criteria to identify the creamy layer. For example, while the
Supreme Court in the Mandal case has categorically said that the Chiildren of IAS or IPS, etc.
without anything more could not avail the benefit of reservation, in the scheme drawn in UP
and Bihar, a few more conditions were added for falling in the creamy layer, such as, he/she
should be getting a salary or Rs. 10,000/- p.m. or more; the wife or husband to be a graduate
and owing a house in an urban area. OR, if a professional doctor, surgeon, lawyer, architect,
etc., he should be having an income not less than Rs. 10 lakh, his/ her spouse is a graduate
and having family property worth Rs. 20 Lakhs. Similar conditions were added in case of
others, such as, traders, artisans, etc.

The Supreme Court has quashed these conditions as discriminatory. The Court has ruled that
these conditions laid down by the two States have no ‘nexus’ with the object sought to be
achieved. The criterion laid down by the two States to identify the creamylayer are violative
of Art. 16(4), wholly arbitrary, violative or Art. 14, and against the law laid down by the
Supreme Court in the Mandal case, where the Court has expressed the view that a member of
the All India Service without anything more ought to be regarded as belonging to the
“creamy layer”

ARTICLE 19-RIGHT TO FREEDOM 19(1)a

The appellants-three children belong to a sect called Jehovah's Witnesses who worship only
Jehovah-the Creator and none other. They refused to sing the National Anthem: 'Jana Gana
Mana' because, according to them, it is against the tenets of their religious faith-not the
words or the thoughts of the National Anthem-but the singing of it.
They desisted from actual singing only because of their aforesaid honest belief and
conviction but they used to stand up in respectful silence daily, during the morning
assembly when the National Anthem was sung.

A Commission was appointed to enquire and report, and it reported that the children were
"law abiding" and that they showed no disrespect to the National Anthem. However, under
the instructions of Deputy Inspector of Schools, the Head Mistress expelled the appellants
from school from July 26, 1985.

A representation by the father of the children to the Education Authorities requesting that
the children may be permitted to attend the 519 school pending orders from the Government
having failed, the appellants filed a Writ Petition in the High Court seeking an order
restraining the authorities from preventing them from attending the school. A single
judge and then a Division Bench rejected the prayer of the appellants.

HELD: 1.1 The Fundamental Rights of the appellants under Art. 19(1)(a) and 25(1) have
been infringed and they are entitled to be protected. The expulsion of the three children
from the school for the reason that because of their conscientiously held religious faith,
they do not join the singing of the National Anthem in the morning assembly though they
do stand respectfully when the National Anthem is sung, is a violation of the fundamental
right to freedom of conscience and freely to profess, practice and propagate religion.
Therefore, the judgment of the High Court is set aside and the respondent authorities are
directed to re-admit the children into the school, to permit them to pursue their studies
without hindrance and to facilitate the pursuit of their studies by giving them the
necessary facilities. [538D-E; 539-C-D]

1.2 There is no provision of law which obliges anyone to sing the National Anthem nor is it
disrespectful to the National Anthem if a person who stands up respectfully when the
National Anthem is sung does not join the singing. Proper respect is shown to the National
Anthem by standing up when the National Anthem is sung. It will not be right to say that
disrespect is shown by not joining in the singing.

Standing up respectfully when the National Anthem is sung but not singing oneself clearly
does not either prevent the singing of the National Anthem or cause disturbance to an
assembly engaged in such singing so as to constitute the offence mentioned in s. 3 of the
Prevention of Insults to National Honour Act

ARTICLE 21-PROTECTION OF LIFE &PERSONAL LIBERTY

Maneka Gandhi v. Union of India

A great transformation in the judicial attitude towards the safeguard of personal liberty has
been noticed after the horrible experiences of the infamous 1975 national emergency. The
judicial pronouncement before the case of Maneka Gandhi Vs Union of India (1978) were not
satisfactory in providing adequate protection to the ‘right to life and personal liberty’
guaranteed under Article 21 of the constitution of India . Maneka Gandhi Vs Union of India
(AIR 1978 SC 597) is a landmark judgment and played the most significant role towards the
transformation of the judicial view on Article 21 of the constitution of India so as to imply
many more fundamental rights from Article 21.
The factual summary of Maneka Gandhi case is as follows; Maneka Gandhi was issued a
passport on 1/06/1976 under the Passport Act 1967. The regional passport officer , New
Delhi issued a letter dated 2/7/1977 addressed to Maneka Gandhi , in which she was asked to
surrender her passport under section 10(3)(c ) of the Act in public interest, within 7 days from
the date of receipt of the letter. Maneka Gandhi immediately wrote a letter to the Regional
passport officer New Delhi seeking in return a copy of the statement of reasons for such
order. However the government of India, Ministry of External Affairs refused to produce any
such reason in the interest of general public.

Maneka Gandhi then filed a writ petition under Article 32 of the constitution in the Supreme
Court challenging the order of the government of India as violating her fundamental rights
guaranteed under Article 21 of the constitution.

The main issues before the court in this case were as follows;
– whether right to go abroad is a part of right to personal liberty under Article 21.
– Whether the Passport Act prescribes a ‘procedure’ as required by Article 21 before
depriving a person from the right guaranteed under the said Article.
– Whether section 10(3) (c) of the Passport Act is violative of Article 14, 19(1) (a) and
21 of the constitution.
– Whether the impugned order of the regional passport officer is in contravention of the
principles of natural justice.

The Supreme Court in this case reiterated the proposition that the fundamental rights under
the constitution of India are not mutually exclusive but are interrelated. According to Justice
K. Iyer, ‘a fundamental right is not an island in itself’. The expression “personal liberty” in
Article 21 was interpreted broadly to engulf a variety of rights within itself. The court further
observed that the fundamental rights should be interpreted in such a manner so as to expand
its reach and ambit rather than to concentrate its meaning and content by judicial
construction. Article 21 provides that no person shall be deprived of his life or personal
liberty except in accordance with procedure established by law but that does not mean that a
mere semblance of procedure provided by law will satisfy the Article , the procedure should
be just , fair and reasonable. The principles of natural justice are implicit in Article 21 and
hence the statutory law must not condemn anyone unheard. A reasonable opportunity of
defense or hearing should be given to the person before affecting him, and in the absence of
which the law will be an arbitrary one.

One of the significant interpretation in this case is the discovery of inter connections between
Article 14, 19 and 21. Thus a law which prescribes a procedure for depriving a person of
“personal liberty” has to fulfill the requirements of Article 14 and 19 also. Moreover the
‘procedure established by law’ as required under Article 21 must satisfy the test of
reasonableness in order to conform with Article 14.

Justice Krishna Iyer in this case observed that, “the spirit of man is at the root of Article 21”,
“personal liberty makes for the worth of the human person” and “travel makes liberty
worthwhile”.

The court finally held that the right to travel and go outside the country is included in the
right to personal liberty guaranteed under Article 21. Section 10(3) (c) of the Passport Act is
not violative of Article 21 as it is implied in the provision that the principles of natural justice
would be applicable in the exercise of the power of impounding a passport . The defect of the
order was removed and the order was passed in accordance with procedure established by
law.

The hon’ble Supreme Court in this case laid down a number of other propositions which
made ‘the right to life’ or ‘personal liberty’ more meaningful. Maneka Gandhi case has a
great significance in the development of Constitutional law of India.

ARTICLE 23RIGHT AGAINST EXPLOITATION

Public Union for Civil Liberties Vs State of Tamil Nadu and Others
K. S. Radhakrishnan, J.

1. Through this Public Litigation, the petitioner has brought to the notice of this Court tell-
tale miseries of bonded labourers in our country and their exploitation and the necessity
of identifying and checking the practice of bonded labour in this country and to
rehabilitate those who are victims of this practice.

2. This Court, while interpreting the provision of the Bonded Labour System (Abolition)
Act, 1976, (for short ‘the BLS (A) Act) in the light of the constitutional provision like
Article 23, ,The Minimum Wages Act 1948, Contract Labour (Regulation and Abolition)
Act 1970, Inter-State Migrant Workmen (Regulation of Employment and Conditions of
Service) Act 1979, The Mines Act 1952 gave various directions including the setting up
of Vigilance Committees, District Magistrates, etc. for the purpose of identifying and
freeing bonded labourers and to draw up a scheme or programme for a better and more
meaningful rehabilitation of the freed bonded labourers and to ensure implementation of
the BLS (A), Act, 1976. In Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161,
Neerja Chaudhary v. State of M.P. (1984) 3 SCC 243 this Court took the view that failure
to rehabilitate freed bonded labourers would violate Articles 21 and 23 of the
Constitution. In P. Sivaswamy v. State of Andha Pradesh (1988) 4 SCC 466 this Court
held that the grant of financial assistance by the States of Rs.738/- per family of the
released bonded labourers was inadequate for rehabilitation. Court held that the States,
employers have a duty to rehabilitate the released bonded labourers.

3. This Court, dealing while dealing with this case, passed an interim order dated 13th May,
1994, (reported in (1994) 5 SCC 116) and gave various directions which are as under:

1) To identify the bonded labourers and update the existing list of such bonded labourers
as well as to identify the villages where this practice is prevalent.
2) To identify the employers exploiting the bonded labourers and to initiate appropriate
criminal proceedings against such employers.
3) To extinguish/discharge any existing debt and or bonded liability and to ensure them
an alternative means of livelihood.
4) To appoint an independent body such as a local non-political social action group to
collect independent information and details of— (a) the prevalence of the exploitative
practice of bonded labour and (b) employers or their agents perpetrating the wilful
violation of the law by encouraging and abetting the practice of bonded labour.
5) To provide employment to such bonded labourers as agricultural workers at the
prescribed minimum wage rate and/or provide the landless bonded labourers with
agricultural land, with a view to ensure an alternative means of livelihood.
 6) To provide adequate shelter, food, education to the children of the bonded labourers
and medical facilities to the bonded labourers and their families as part of a
rehabilitation package.
7) To ensure—
(a) regular inspection by the Labour Commissioner concerned to keep the contractors
who have in the past employed bonded labourers under watch,
(b) setting up of Vigilance Committees in each district,
(c) the District Magistrates concerned to send quarterly reports to the Supreme Court
Legal Aid Committee or to any Commissioner appointed by the court for this
purpose,
(d) the setting up of rural credit facilities such as grameen banks, cooperatives etc.
from which short-term interest free loans can be availed without security, since
the root cause of bonded labour seems to be the lack of availability of funds
(credit through an institutional network).
8) To initiate criminal prosecution against the contractors/employers or their agents who
engage bonded labour and employ children below the age of 14 without adequate
monetary compensation by paying wages below the minimum wage rate, as
prescribed under the Minimum Wages Act.
9) To initiate criminal prosecution against those employers, contractors or their agents
who make part payment of wages by way of Khesri dal which is known to cause
permanent disability — lathyrites.

2. With specific reference to the State of Madhya Pradesh, this Hon'ble Court gave the
following additional directions:
(i) To provide data to this Hon'ble Court in respect of prosecutions launched against
various employers already identified in proceedings before this Hon'ble Court as
having employed bonded labourers in the context of Harwaha System.
(ii) To investigate and provide data to this Hon'ble Court in respect of the fate of those
bonded labourers identified and allegedly freed from the Harwaha System.
(iii) To report the present extent of cultivation of Khesri dal within Rewa and Satna
districts as well as such other districts in which it may also be cultivated.
(iv) To report the steps taken by the State Government to prohibit the cultivation and
consumption of Khesri dal.
(v) To report the fate of persons already identified as suffering from lathyrites and the
steps taken by the State Government to provide free medical aid and facilities to
such persons.
(vi) To provide the steps taken, if any, for the rehabilitation of bonded labourers freed
from the Harwaha System and the rehabilitation of persons suffering from
lathyrites within the State of Madhya Pradesh.”
3. All the State Governments should issue directions forthwith to the Collector and District
Magistrate of each district for making the necessary compliance. We also direct that all the
State Governments would file a detailed report supported by an affidavit of a Senior Officer
indicating the manner and the extent to which these directions have been complied with and
also indicating therein the programme drawn up for full implementation of these directions.
The report of the State Governments should also contain the detailed information required to
be furnished in accordance with these directions. These reports be filed by each State
Government by the end of August 1994. The matter be listed in the first week of September
1994.
4. The Registry to ensure that a copy of this order is made available to each State
Government through their standing counsel, in addition to Mr Kapil Sibal, Senior Advocate
and the other learned counsel appearing in these matters.”

4. The National Human Rights Commission (for short the ‘NHRC’) has been entrusted with
the responsibility of monitoring and over-seeing the implementation of its directions as well
as provisions of the BLS (A) Act in all the States and Union Territories vide this Court’s
order dated 11.05.1997. The Expert Group constituted by the NHRC submitted its Action
Taken Report (ATR) on 6.6.2001 and this Court vide order dated 5.5.2004 reported in Public
Union for Civil Liberties v. State of Tamil Nadu & Ors. (2004) 12 SCC 381 gave the
following directions:
“1. All States and Union Territories must submit their status report in the form prescribed by
NHRC every six months.

2. All the State Governments and Union Territories shall constitute Vigilance Committees at
the district and sub-divisional levels in accordance with Section 13 of the Act, within a period
of six months from today.

3. All the State Governments and Union Territories shall make proper arrangements for
rehabilitating released bonded labourers. Such rehabilitation could be on land-based basis or
non-land basis or skilled/craft-based basis depending upon the choice of bonded labourer and
his/her inclination and past experience. If the States are not in a position to make
arrangements for such rehabilitation, then it shall identify two philanthropic organisations or
NGOs with proven track record and good reputation, with basic facilities for rehabilitating
released bonded labourers within a period of six months.

4. The State Governments and Union Territories shall chalk out a detailed plan for
rehabilitating released bonded labourers either by itself or with the involvement of such
organisations or NGOs within a period of six months.

5. The Union and State Governments shall submit a plan within a period of six months for
sharing the money under the modified Centrally Sponsored Scheme, in the case where the
States wish to involve such organisations or NGOs.

6. The State Governments and Union Territories shall make arrangements to sensitise the
District Magistrate and other statutory authorities/committees in respect of their duties under
the Act.”

5. The NHRC later submitted yet another report on 10.8.2009 high- lighting the remedial
steps to be taken for eradication of bonded labour and child labour in the country. The NHRC
in its report stated that its officials had been conducting detailed reviews on the status of the
implementation of the Act in the various States/Union Territories (UTs). The report stated
that these reviews were forwarded by the NHRC to the respective States/UTs for the
necessary follow up action, and they were required to submit ATR to the NHRC. The NHRC
has stated as follows:

“ATRs have been received from most of the State Governments but as they were incomplete
they had to be returned for clarification and furnishing additional information before they
could be accepted by the Commission. These States are being reminded and this will continue
till follow up action is completed. Repeat visits to a few States (Orissa, M.P., Chattisgarh,
Jharkhand, Punjab, Rajasthan, Karnataka and Bihar) have to be undertaken as the track record
of compliance with the directions issued by the Commission is considered to be
unsatisfactory by these States.”

6. A review noticed that the States/UTs were supposed to receive assistance to the tune of
Rs.2 Lakh per district once every 3 years for conducting surveys. However surveys had been
conducted only a few States, that too in respect of only a few selected areas. Further, it was
also noted that in many instances bonded labourers were found and reported, the district
administration had relented and dropped the cases. The NHRC in its report cited the instances
of Tamil Nadu to the following effect:

“….. to illustrate, in Tamil Nadu, 25000 cases out of 38,886 (cases of ) bonded labourers
identified were dropped leaving only 13,886 bonded labourers;

….. in Malkangiri district (which falls in the KBK region) a survey was conducted in 2001-
02 with the help of NGO’s (where) 707 bonded labourers were identified but (the) district
administration dropped 688 cases leaving only 19 bonded labourers to be release.”

7. The NHRC further states that Investigation/inquiry into specific complaints about bonded
labourers were generally left by the States/UTs to be undertaken by the field officers of very
low ranks who lack both professionalism as well as sensitivity to conduct such inquires and
even existence of bonded labourers were detected in the States/UTs, States/UTs permitted
compromise or settlement though the Act itself does not contemplate such a measure. The
NHRC noted with concern that though one of the modes of identifying and detecting
existence of bonded labour was conducting raids on households and workplaces, this
however, had not been taken recourse to by most States, except the State of Maharashtra. The
NHRC in its report stated that even though the guidelines on the methodology of
identification of bonded labourers formulated by Shri S.R. Shankaran, Chairman of the
Expert Group constituted in the year 2001-02 had been circulated to all the States/UTs but
there was no evidence on the ground of them being adopted and implemented. The report
further pointed out that according to the Ministry of Labour the following features came out
clearly in the reports received from the States:

“a) No fresh surveys are being conducted in the States. Wherever surveys have been
conducted in the last few years, no bonded labourers could be found.

b) Whereabouts of about 20,000 bonded labourers are reported to be untraced. Registers

about bonded labourers identified, released and rehabilitated are not being maintained as
required under Rule 7 of the BLS (A) rules.

c) Budget provisions are not being made on the ground that there are no bonded labourers.

d) All the Union Territories have been reporting that they have no Bonded labourers.”

8. The NHRC accordingly requested this Court to give the following directions to the
States/UTs:
“a) Periodical conduct of survey in the affected areas is one of the measures which would
source eradication of bonded labour system in compliance with the BLS (A) Act. Section
14(e) of the Act casts a statutory responsibility on the Vigilance Committees constituted in
each district such surveys. It suggested that fresh survey be conducted by all States and
repeated once in three years.

b) The constitution of Vigilance Committees in all States at district and sub-divisional level
was a necessary step in the process of property conducting surveys. Further these committees
should be reconstituted once every 2 years.

c) Since there was a need for a proper methodology for conducting such surveys it also
suggests that the Guidelines issued by Shri S.R. Shanakaran, Chairman of the Expert
Committee constituted by the NHRC be adopted with suitable modifications to suit local
conditions.

d) While disposing of cases under the BLS (A) Act the trying Magistrate should have
recourse to the summary procedure as laid down in Section 21(2) of the Act in all cases
brought before him.

e) It was also suggested that to make the rehabilitation package under the Centrally
Sponsored Scheme more meaningful, there was a need for it not to be confined to the limit of
Rs.20,000, at which it stands at present.”

9. This Court, vide its order dated 9.7.2010, directed all the States/UTs to file their response
to the NHRC’s report. The States/UTs were required to respond at least on the following
aspects:

a) When was the last bi-annual report by the concerned State/UT submitted to the NHRC?

b) When was the last survey, as stipulated under the Act undertaken by the State/UT?

c) Whether the Vigilance Committee for the implementation of the Act has been constituted
in all the districts in the States/UTs?

10. This Court vide its order dated 1.10.2010, following the note submitted by the amicus
curiae on 27.9.2010, directed the Union of India to submit the data as to the amount which
the Centre is releasing to the States/UTs and whether they were, in fact, using the amount for
the purpose for which they were released.

11. In pursuance to that order, the Union of India filed its affidavit on 16.12.1010. It was
noticed that only five states had, till then, furnished utilization certificates to the Union of
India indicating utilization of central funds for survey. This Court, then, passed an order on
16.12.2010 directing the Union of India to call for the utilization certificates from all the
States. Union of India later in its affidavit on 25.4.2011 stated that the Ministry of Labour and
Employment has provided Rs.494 lakhs as Central Assistance for conducting surveys to the
various State Governments during the periods from 2001-2001 to 2009-2010. The Affidavit
revealed that, in majority of the States, no surveys have been conducted after the year 2002-
2003, namely, Punjab, Rajasthan, Karnataka, Orissa, Bihar, Jharkhand, Arunachal Pradesh,
Chhattisgarh, Uttrakhand. It was stated that only a handful of States have conducted surveys
in subsequent years, and that in many instances, the Survey Reports were still awaited.

12. This Court then passed an order dated 25.4.2011 directing the States of Haryana and
Andhra Pradesh to explain what steps they have taken to implement the provisions of 1976
Act. Noticing that those States were not taking effective steps, this Court passed another
order dated 26.8.2011 directing them to submit their Accounts to the Ministry of Labour,
Government of India with regard to disbursement of amounts by Central Government for
survey and rehabilitation of bonded labour. The responses from those States are far from
satisfactory.

13. The NHRC submitted its revised report dated 3.9.2011 before this Court. We notice that
the response from the States to the said report is also not satisfactory. The revised report of
the NHRC reiterated that the analysis of the half yearly report sent by the States/UTs reveals
the following aspects:

“(i) The reports appear to have been prepared in a very casual and stereotype manner. (ii)
They contain mostly nil information as far as conducting fresh surveys for identification of
bonded labourers is concerned.
(iii) In some States like UP nearly 700 released bonded labourers have been awaiting
rehabilitation for years due to no provision of funds in the budget needed for rehabilitation.
(iv) The outcome of legal and penal action against the offending employers or bonded labour
keepers is nil.
(v) Not a single case has been reported so far which goes to show that an offending employer
had been convicted by way of imprisonment.
(vi) It is almost confirmed beyond doubt that (a) efforts at identification of bonded labourers
through fresh surveys are lackadaisical and the outcome of such surveys is nil (b) there is
inordinate delay in securing rehabilitation of released labourers and (c) the penalties awarded
are not proportional to the judicial severity of the crime.”

14. The NHRC further stated that while examining about 400 cases, only in one case, the
Commission found that the ground level situation confirmed to fulfillment of all requirements
under the Minimum Wages Act, that the employer paid wages according to the law and has
not detained anyone. Report states that workmen are usually recruited to brick kilns by
middlemen on payment of an advance or other allurements, but at the close of the brick kilns
operations, the advances paid at the time of recruitment are adjusted with wages due to the
workmen in an arbitrary manner, to the disadvantage of the worker. It is unnecessary to dilate
the matter further.

Suffice it to say that on 30.6.2011, in all 2780 cases involving about 1 lakh bonded labourers
have been registered in the Commission and presently 841 cases are under consideration of
the Commission. The NHRC also specifically brought to the knowledge of this Court, two
specific complaints, which are pending for compliance before the Government of Andhra
Pradesh and with the Governments of West Bengal, Jharkhand, Bihar and NCT of Delhi. The
NHRC has sought proper directions from this Court so that the concerned States would take
steps for reporting compliance to NHRC at the earliest. It is useful to refer to the situations in
the States of Andhra Pradesh, West Bengal, Jharkhand, Bihar and NCT of Delhi, which are as
follows:

“RE: ANDHRA PRADESH

22. The first complaint is with respect to the State of Andhra Pradesh and pertains to the
plight of labourers working in stone quarries on National Highway No. 9 at a distance of
about 22 kms from Vijaywada. The issue was brought to light in 2005. However, despite
repeated efforts when no results were forthcoming, the NHRC constituted a team to interact
with the labourers and submit a detailed report. The team accordingly submitted its report
“confirming the allegation that as many as 5000 quarry workers at the time of the visit
[i.e.30.06.09 to 5.07.09] were living and working under conditions of debt bondage.”
Pursuant to the report “even though the Chief Secretary appeared in person before the
Commission on 5.10.09 and gave an assurance about the implementation of labour laws and
provision of basic facilities, till date that action on the part of the State Government and the
District Administration, Krishna remains incomplete and the State Government is seeking
time again and again.

RE: WEST BENGAL, JHARKHAND, BIHAR AND NCT OF DELHI

23. The second complaint of then NHRC pertains to the plight of bonded children from West
Bangal, Jharkhand and Bihar working under bonded conditions in certain Zari Factories of
Kotlamubarakpur Police Station area of Delhi had been released and rescured through raids
“no steps have been taken by the administration of NCT of Delhi for issue of release
certificates to the victims and for their rehabilitation. Instead of handing over the release
certificates to the victims, these were sent to the Resident Commissioners of the three
originating States namely West Bengal, Jharkhand and Bihar.” The NHRC has further
pointed out that “in the process more than 2 years lapsed and the children who were supposed
to have been rehabilitated by now could not be rehabilitated due to acts of negligence both of
the part of Government of NCT of Delhi [as] also [the] Government[s] of Bihar, West Bengal
and Jharkhand.” Even though the complaint dates back to 2005 and proceedings were
initiated by the NHRC in 2006, “till date there is no confirmation from the” States concerned
“as to whether all the 129 working children who were rescued and released from work in the
Zari making units of NCT of Delhi have been fully rehabilitated.”

15. Shri A.K. Ganguly, learned senior counsel who assisted the Court as Amicus Curiae,
submitted that in the light of the NHRC report dated 10.8.2009 and the affidavits filed by the
States/UTs and the Union of India and subsequent revised report of NHRC dated 3.9.2011, it
is imperative that certain directions are to be issued to the various States/UTs for proper
implementation of the provisions of the 1976 Act.

16. After hearing the amicus curiae and other learned counsel appearing in these proceedings
and also taking note of the previous orders passed by this Court, we are inclined to give the
following directions, apart from the directions already issued:

1) Fresh surveys be conducted periodically once in three years in all the States/UTs in
accordance with the provisions of the Act and the revised report, the findings of the survey
should be made a part of a computerized data base available on the websites of all concerned.

2) The responsibility of conducting the surveys is on the District Level Vigilance Committees
and Sub Divisional Vigilance Committees of the States/UTs and such committees should
submit their reports to the NHRC. This should be done in every three years and Committees
also should be reconstituted in every three years.

3) Bonded labour, it may be noticed, is rampant in brick kilns, stone quarries, crushing mines,
beedi manufacturing, carpet weaving, construction industries, agriculture, in rural and urban
unorganized and informal sector, power looms and cotton handlooms, fish processing etc.
The Vigilance Committees are directed to give more attention to these areas and take prompt
action in case violation is noticed.
4) Large numbers of children are working as domestic help in the urban, town and rural areas
with no chance to go to schools even though the education from standard I to VIII is
compulsory under the Right of Children to Free and Compulsory Education Act, 2009. Local
Panchayats and local bodies should identify such children and ensure that they get proper
education. We are not unmindful of the fact that in some households they treat the domestic
help just like their children and give food, clothing and education but they are exception.

5) Many of the States/UTs reporting NIL status with respect to existence of Bonded
labourers. This might be due to the faulty methodology adopted by them for conducting such
surveys. Guidelines on the methodology of identification of bonded labourers formulated by
Shri SR Shankaran, Chairman of the Expert Group constituted by the NHRC be followed and
implemented by all the States/UTs with suitable modifications to suit local conditions.

6) All the States/UTs should calculate firm requirements of fund for rehabilitation of freed
bonded labourers and steps be taken to enhance the rehabilitation package from the present
limit of Rs.20,000.

7) The District Magistrates are directed to effectively implement Sections 10, 11 and 12 of
the Act and we expect them to discharge their functions with due diligence, with empathy and
sensitivity, taking note of the fact that the Act is a welfare legislation.

8) The District Magistrate and the State Government / UTs would see that the Minimum
Wages Act, the Workmen Compensation Act, the Inter- State Migrant Workmen Act, Child
Labour (Prohibition and Regulation) Act are also properly and effectively implemented.

9) Directions are issued to all Gram Panchayats, local bodies to report, in case they come
across any case of bonded labour, to the District Magistrate who will take appropriate follow
up action under the Act.

10) The States of Andhra Pradesh, West Bengal, Jharkhand, Bihar and the NCT of Delhi are
directed to ensure compliance with orders passed by the NHRC as highlighted in its revised
report.”

11) The States and the Union Territories should continue to submit 6 monthly reports to
NHRC.

12) All the States / UTs to constitute Vigilance Committee, if not already constituted within
six months.”

17. This Court has already given various directions in its order dated 5.5.2004 passed in
Public Union for Civil Liberties v. State of Tamil Nadu and Others (2004) 12 SCC 381,
authorizing the NHRC to monitor the implementation of the provisions of the 1976 Act
which we re-iterate and direct NHRC to effectively monitor and implement the provisions of
the Act. The orders passed by this Court, time to time, in writ petitions are to be duly
complied with the NHRC, Union of India, States and UTs.

18. The Writ Petition is accordingly disposed of so as to enable the NHRC to take appropriate
steps and effectively supervise for carrying out the directions issued by this Court and the
provision of BLS (A) Act. If the States/UTs are not implementing the directions given by this
Court, NHRC is free to move this Court for further orders. We record our deep appreciation
to the efforts made by learned senior counsel – Shri A.K. Ganguli and for sparing his
valuable time for a public cause. This Court is deeply indebted to him which we place on
record.

ARTICLE 24-PROHIBITION OF CHILD LABOUR

M.C. Mehta v. State of Tamil Nadu & Others 

Domestic Provisions:

Constitution of India: Articles 24, 32, 37, 39, 41, 45 and 47

Section 67 of Factories Act, Section 24 of Plantation Labour Act, Section 109 of Merchant
Shipping Act, Section 45 of Mines Act, Section 21 of Motor Transport Workers Act, Section
3 of Apprentices Act, Section 24 of Beedi and Cigar Workers Conditions of Employment
Act, Child Labour (Prohibition and Regulation) Act and the Shops and Commercial
Establishment Acts

Case Summary:

Background:
An activist lawyer filed a petition with the court claiming that the fundamental rights of
children were being grossly violated in contravention of Article 24 of the Constitution of
India, which provides that “[n]o child below the age of fourteen years shall be employed to
work in any factory or mine or engaged in any other hazardous employment.” The Court
noted that child labour is a “big problem” in India, and examined the history of child labour
laws in India, including a decision by the court in 1991 in which it gave certain directions as
to how the quality of life of children employed in factories in Sivakasi could be improved. 

Issue and Resolution:

Child labour. The court ordered that employers illegally employing children must pay Rs.
20,000 into a fund known as the “Child Labour Rehabilitation-cum-Welfare Fund” to be used
only for the benefit of that child. The court also ordered the government to either (a) provide
employment for an adult member of every family with a child who is employed in a factory
or mine or other hazardous work or, if not possible to provide an adult family member with a
job, (b) contribute Rs. 5,000 to the Child Labour Rehabilitation-cum-Welfare Fund for each
child employed in a factory or mine or other hazardous employment. Adults who are offered
jobs in this way would also have a duty to ensure that their children entered full-time
education and did not continue to work.

Court reasoning:

Under the national Constitution and international instruments, including the Convention on
the Rights of the Child, the Indian government is required to ensure that children do not
engage in hazardous work. Looking to the causes of child labour, poverty is the basic reason
that compels parents to employ their children, and unless alternative income is assured to
families, these children will continue to work. Because the fines imposed on employers
would not be enough to prevent a poor parent from having to put their child to work, the
government owes these parents a duty of assistance to help remove their children from
hazardous employment.
Excerpts Citing CRC and Other Relevant Human Rights Instruments:

15. It would be apposite to apprise ourselves also about our commitment to world
community. For the case at hand it would be enough to note that India has accepted the
Convention on the Rights of the Child, which was concluded by the UN General Assembly
on 20th November, 1989. This Convention affirms that children's right require special
protection and it aims, not only to provide such protection, but also to ensure the continuous
improvement in the situation of children all over the world, as well as their development and
education in conditions of peace and security. Thus, the Convention not only protects the
child's civil and political right, but also extends protection to child's economic, social, cultural
and humanitarian rights.

16. The Government of India deposited its instrument of accession tot he above-mentioned
conventions on December 11, 1992 with the United Nation's Secretary-General. That
instrument contains the following declaration "While fully subscribing to the objectives and
purposes of the Convention, realising that certain of the rights of the child, namely those
pertaining to the economic, social and cultural rights can only be progressively implemented
in the developing countries, subject to the extent of available resources and within the
framework of international co-operation; recognising that the child has to be protected from
exploitation of all forms including economic exploitation; nothing that for several reasons
children of different ages do work in India; having prescribed minimum ages for employment
in hazardous occupations and in certain other areas; having made regulatory provisions
regarding hours and conditions of employment; and being aware that it is not practical
immediately to prescribe minimum ages for admission to each and every area of employment
in India-the Government of India undertakes to take measures to progressively implement the
provisions of Article 32, particularly paragraph 2(a), in accordance with its national
legislation and relevant international instruments to which it is a State Party."

17. Article 32 of which mention has been made in the instrument of accession reads as below:

"1. States Parties recognise the right of the child to be protected from economic exploitation
and from performing any work that is likely to be hazardous or to interfere with the child's
education, or to be harmful to the child's health or physical, mental, spiritual, moral or social
development.

2. States Parties shall take legislative, administrative, social and educational measures
to ensure the implementation of the present article. To this end, and having regard to
the relevant provisions of other international instruments, States Parties shall in
particular:
(a) Provide for a minimum age or minimum ages for admission to employment'
(b) Provide for appropriate regulation of the hours and conditions of employment;
(c) Provide for appropriate penalties or other sanctions to ensure the effective
enforcement of the presen