REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION   

CIVIL APPEAL NO.5322  OF 2011 (Arising out of Special Leave Petition (Civil) No. 12345 of 2009)  

Delhi Jal Board ……Appellant

Versus

National Campaign for Dignity and Rights of Sewerage and Allied Workers & others  ……Respondents

J U D G M E N T

G.S. Singhvi, J.

1. Leave granted.

2. This appeal filed by Delhi Jal Board for setting aside an interlocutory  

order passed by the Division Bench of the Delhi High Court whereby it has  

been directed to deposit Rs.79,000/- with Delhi High Court Legal Services  

Committee in addition to Rs.1.71 lacs already paid to the families of the

deceased worker, namely, Rajan is one of the several thousand cases filed by  

the State and/or its agencies/instrumentalities to challenge the orders passed  

by  the  High  Courts  for  ensuring  that  the  goal  of  justice  set  out  in  the  

preamble to the Constitution of India is fulfilled, at least in some measure,  

for the  disadvantaged sections of the society who have been deprived of  

fundamental rights to equality, life and liberty for last more than 6 decades.  

The appeal is also illustrative of how the State apparatus is insensitive to the  

safety  and  well  being  of  those  who  are,  on  account  of  sheer  poverty,  

compelled to work under most unfavourable conditions and regularly face  

the threat of being deprived of their life.

3. The  laws  enacted  by  Parliament  and  State  legislatures  provide  for  

payment of compensation to the legal representatives of those killed in air,  

rail or motor accident.  The legal representatives of a workman, who dies  

while on duty in a factory/industry/establishment get a certain amount of  

compensation.  Even those who are killed in police action get compensation  

in the form of ex-gratia announced by the political apparatus of the State.  

However, neither the law makers nor those who have been entrusted with the  

duty  of  implementing  the  laws  enacted  for  welfare  of  the  unorganized  

workers have put in place appropriate mechanism for protection of persons  

2

employed by or through the contractors to whom services meant to benefit  

the  public  at  large  are  outsourced  by  the  State  and/or  its  

agencies/instrumentalities  like  the  appellant  for  doing  works,  which  are  

inherently hazardous and dangerous to life nor made provision for payment  

of reasonable compensation in the event of death.    

4. Since the legal representatives of the persons who work in the sewers  

laid or maintained by the State and/or its agencies/instrumentalities on their  

own or through the contractors and who get killed due to negligence of the  

employer do not have the means and resources for seeking intervention of  

the judicial apparatus of the State, the National Campaign for Dignity and  

Rights of Sewerage and Allied Workers, which is engaged in the welfare  of  

sewage workers filed Writ Petition No.5232/2007 in the Delhi High Court to  

highlight the plight of sewage workers many of whom died on account of  

contemptuous  apathy  shown  by  the  public  authorities  and  contractors  

engaged by them and even private individuals/enterprises in the matter of  

providing  safety  equipments  to  those  who  are  required  to  work  under  

extremely odd conditions.  In paragraphs 4 to 6 and 8 of the petition, the  

petitioner made the following averments:

3

“4. That  the  Petition  seeks  to  highlight  the  plight  of  sewage workers in Delhi.  Delhi generates large quantities of  sewage.  At present, the total quantity of sewage generated  is 2871 mld. Delhi Jal Board is responsible for treatment and  disposal of wastewater through a network of about 5600 km  of  internal,  peripheral  and  trunk  sewers,  for  which  approximately  5500  sewage  workers  are  employed  with  Delhi Jal Board for maintenance of the sewage system and  other  related  works.   The  working  conditions  for  sewage  workers are such that they are not only exposed to maximum  risk against numerous toxic and harmful substances, but also  they face suffocation and accidental deaths, while working.  These workers suffer from high morality and morbidity due  to such exposure at workplace.  Hereto marked and annexed  as Annexure P-1 are the photographs showing the sewage  workers of Delhi as photographed by Indian Express.  These  photographs tell the sad story of the plight of these workers  as of today.

5. Scores of sewage/manhole workers die every year doing  this work in Delhi.  These deaths are rarely documented.  On  7.5.07  it  was  reported  by  Navbharat  Times  that  in  2003 the  following deaths of manhole workers took place:

Date Place Number  of Deaths.

22 March Brahmpuri 1 23 March Shahdara 2 11 April Shaktinagar 3 25 June Rithala STP 5 July Connaught  

Place 3

July Okhla 1 October Uttamnagar 4

4

In 2004 the following deaths took place:

Date Place Number  of Deaths.

24 May Vazirpur 3 25 May Gautampuri 1 11 June Samaypur 2 July Vazirpur 2 October Rohini 2 October Padpadur 2

Hereto annexed an (Annexure P-2 is the translated copy of the  news article titled ‘Thekedaron Ki Laparwahi se ho rahi hain  mauten’ appearing in Navbharat Times on 7.05.07.

6. Even  in  year  2007,  on  6.5.07  three  sewage  workers  Ramemsh, Santosh and Ashish while working inside the sewer  inhaled  poisonous  gases  and  died  of  suffocation.   Hereto  marked  and  annexed  as  Annexure  P-3  is  the  news  report  appearing in the Times of India dated 7.5.2007.  The accident  took place near Madrasi Nallah in front of Vijay Enclave, Dabri  (South  West  Delhi).   The claiming work  was  being  done  in  complete violation of the National Human Rights Commission  guidelines.   The  victims  worked  without  any  helmet  or  gas  masks, which are mandatory, as stated by NHRC, for the kind  of work, they were doing.  Neither there was any first aid kit  with the workers nor artificial respirators and portable ladders  were made available to them by the contractors.   Apparently  contractors violated all the rules and guidelines.

8.     That, a report has been prepared by Centre for Education  and Communication in collaboration with Occupational Health  &  Safety  Management  Consultancy  Services  on  "Health  &  Safety  Status  of  Sewage  Workers  in  Delhi".  The  report  concludes:  

5

"...The workers are suffering from high mortality  and morbidity  due to  exposure  at  workplace.  33  workers had died in last 2 years due  to   accidents  while   working    on   the    blocked    sewer  lines...Fifty-nine  per  cent  of  the  workers  enter  underground sewer manholes more than 10 times a  month and half of them have to work more than 8  hours  a  day.   While  working  in  underground  pipelines, an overwhelming majority of them have  had cuts or injuries, experienced irritation of eyes  and suffered from skin  rash.   Forty-one workers  have  reported  syncope,  and  other  24  reported  temporary loss of consciousness. A little over one- third of the workers had been immunized against  tetanus while  none of  them had been vaccinated  against hepatitis B.

Approximately 46 per cent  of workers across all  age group were found to be underweight according  to Body Mass Index (BMI) calculation. 37 per cent  have less hemoglobin than the normal range. More  than 65 per cent have higher eosin Phil count (6  per  cent)  in  spite  of  having  normal  leukocyte  counts (91 per cent).  None of the samples tested  for HBsAg were tested  positive. Results of  urine  examination pointed to  irreversible damaged done  to the body organ system.

More than 50 per cent of the pulmonary function  tests  results  were abnormal.  Chest X-rays results  further confirmed the loss of functional capacity of  the respiratory system of the workers.

None  of  the  worker  has  been  given  any  formal  communication by the employer about the hazard  present during the work. None has been trained to  provide  first  aid  during  any  miss- happening.....usage  of  other  protective  gears  like  gloves, mask, and shoes were bare minimum. Even  

6

supply of necessary safety gears was not adequate  to meet the requirements.

All  daily  wagers  were  getting  a  wage  of  approximately  2950  rupees  per  months  without  any other benefit irrespective of service period."”

The petitioner then referred to order dated 15.6.2006 passed by the  

Gujarat High Court in Special Civil Application No. 8989/2001 – Kamdar  

Swasthya Suraksha Mandal and Special Civil Application No.11706/2004 –  

the  Manhole  Workers  Union and  Lok  Adhikar  Sangh  and made  various  

prayers including issue of a mandamus directing the respondents to provide  

every  sewage  worker  with  protective  gears,  clothing  and  equipments  in  

terms of the order passed by the Gujarat High Court in the two Civil Special  

Applications, pay compensation of Rs.10 lacs to the families of the workers  

who died after entering the manhole for sewage cleaning and make provision  

for comprehensive medical checkup of all the sewage workers and provide  

them medical treatment free of cost along with full wages for the period of  

illness.

5. After  taking  cognizance  of  the  averments  contained  in  the  writ  

petition,  the  Division  Bench  of  the  High  Court  issued  notice  to  the  

respondents and also made a request to one of the Judges – Dr. Justice S.  

7

Muralidhar,  to  make  an  attempt  to  find  out  workable  solution  to  the  

problems  faced  by  sewage  workers.   The  learned  Judge  heard  the  

representatives of the writ petitioner, appellant and other instrumentalities of  

the State, examined the documents produced by them and passed order dated  

5.4.2008  incorporating  therein  several  suggestions  for  protection  of  the  

workers engaged in cleaning of manhole etc..  The Division Bench of the  

High Court, considered the suggestions made by Dr. Justice S. Muralidhar,  

the  affidavits  and  documents  filed  by  the  appellant  and  the  New  Delhi  

Municipal Council and passed detailed order dated 20.8.2008, paragraphs 9  

and 10 of which read as under:

“9. Having  considered  the  various  reports  made  by  the  concerned  agencies  and  also  the  submissions  made  by  the  concerned agencies and also the submissions made at the bar,  we pass the following interim directions pending final disposal  of this writ petition:

(a) The  medical  examination  and  medical  treatment  will  be given free of charge to sewer workers  and the  treatment will continue for all such workers found to be  suffering  from  an  occupational  disease,  ailment  or  accident until the workman is cured or until death.

(b) The services of  the sewer workers  are not  to be  terminated, either by the respondents or the contractors  engaged by them, during the period of illness and they  shall be treated as if on duty and will be paid their wages.

(c) Compensation shall be paid by the respondents and  recoverable from the contractors, if permissible in law, to  all the workmen suffering from any occupational disease,  

8

ailment or accident in accordance with the provisions of  the Workmen's Compensation Act, 1923.

(d) The  respondents  shall  pay  on  the  death  of  any  worker, including any contract worker, an immediate ex- gratia solatium of Rs. One lac with liberty to recover the  same from contractors, if permissible in law.

(e) The respondents shall pay / ensure payment of all  statutory  dues  such  as  Provident  Fund,  Gratuity  and  Bonus  to  all  the  sewer  workers,  including  contract  workers, as applicable in law.

(f) The respondents shall provide as soon as possible  modern protective equipments to all the sewer workers in  consultation with the petitioner organization.

(g) The respondents shall provide soap and oil to all  the  workmen  according  to  the  present  quota,  but  on  monthly basis and not at the end of the year.

(h) The  respondents  shall  provide  restrooms  and  canteens,  in  accordance  with  the  DJB  model  rules,  including therein first-aid facilities, safe drinking water,  washing facilities,  latrines and urinals,  shelters, crèches  and canteens as set out in the model rules. There are to be  provided at what is known as 'stores' which are the places  where the workers assemble to give their attendance and  from where they depart to their respective work sites.

(i) The  respondents  shall  provide  all  workman,  including contract workmen, with an accident-card-cum- wage-slip as set  out in clause 8 of the C.P.W.D./PWD  (DA)/Delhi  Jal  Board  Contractors  Labour  Regulations  (for short "Labour Regulations").

(j) The  respondents  shall  provide  all  workers,  including contract workers, employment cards as set out  in clause 9 of the Labour Regulations and, on termination  of services provide the contract workers and others with a  

9

service certificate as set out in clause 10 of the Labour  Regulations.

(k) The respondents shall authenticate by signing the  payment of wages register for contract workers in terms  of clause 5 of the Labour Regulations.

(l) The respondents shall submit to this court and to  the petitioner within four weeks from today the full list of  contract  workers  and  contractors  engaged  for  work  relating  to  the  sewers  together  with  the  wages  paid to  such workmen and the number of years of employment  of the workers.

(m) The DJB is  directed  to  ensure  that  the  ex-gratia  payment  in  case  of  deaths  of  sewer  workers  has  been  paid to the  families  of  deceased workmen and in  case  such compensation is not paid, release the same within a  period of eight weeks.

(n) NDMC is directed to pay ex gratia payment of Rs.  one lac each in respect of the accident of 7th December,  2003  where  three  persons  working  under  the  NDMC  contractors died, with liberty to recover the same from  the contractor, if permissible in law.

(o) The  DJB  and  NDMC  are  directed  to  hold  an  inquiry  into  deaths  of  sewer  workers  referred  to  in  paragraphs 15 and 16 of the written submission of the  petitioner dated 22nd July,  2008 and submit a report  to  this Court within a period of eight weeks. If it is found  that the contract workers in question were working under  the  contractors  employed  by  NDMC/DJB,  ex-gratia  compensation of Rs. One lac shall be released forthwith  to the families of the victims subject to right of recovery  from contractors in accordance with law.

(p) The respondents shall place on record a map showing  the areas within the NCD (1) where no sewage facilities  are available (2) where modern machinery cannot enter  due to narrow lanes or otherwise (3) the areas serviced by  

10

modern machinery and (4) critical  area where frequent  deaths,  accidents and blockages occur,  it  shall  be done  within three months from today.

(q) Lastly, the respondents are directed to place on record  the proposals and plans to phase out manual  work and  replace it with mechanized sewer cleaning, as envisaged  by DJB as well as NDMC, which shall be done within  three months.

10. In order to ensure the compliance of the above directions,  we constitute a Committee consisting of:

(i) Mr. S.R. Shankaran, IAS retired Chief Secretary to  the Government of Tripura, Chairman:

(ii) One officer each to be nominated by NDMC, DDA  and DJB respectively, who shall not be less than the rank  of Under Secretary to the Government of India.

(iii) Joint Secretary of the Social Welfare Department, Government of  NCT of  Delhi  to  be nominated  by  the Secretary of that Department who shall be the Convener of the committee.

(iv) One representative of the petitioner organization.”

6. While the Committee constituted by the High Court was examining  

various  issues  concerning  the  sewage  workers  including  their  health  and  

safety,  Hindustan Times (Metro edition) dated 26.3.2009 reported that  as  

many as 6 sewage workers had died in Delhi in the month of March 2009  

due to inhaling of toxic gasses in the manholes because they did not have  

protective gears.  Two of the workers died in the area of Alipur (Narela),  

11

two in the area of Bawana and one each in Sector 6, Narela and Delhi Zoo,  

Sunder  Nagar,  New  Delhi.   Four  of  these  deaths  occurred  within  the  

jurisdiction of appellant – Delhi Jal Board, Delhi Development Authority  

and  Delhi  State  Industrial  Development  Corporation  and  two  deaths  

occurred in private farm house – Katyal Farm House, Bakhtawarpur Road,  

Narela.

7. After taking cognizance of the aforesaid report, the Division Bench of  

the  High  Court  directed  appellant  -  Delhi  Jal  Board  and  the  Delhi  

Development Authority to file their respective affidavits.  Notices were also  

issued  to  Delhi  State  Industrial  Development  Corporation,  the  owners  of  

private farm house and the police department.

8. In the affidavit filed by him, Sri Sukhai Ram, Chief Engineer, Delhi  

Jal Board claimed that the person who died on 15.3.2009 was a painter and  

not a sewage beldar.  He gave out that the victim was engaged by a sub-

contractor, namely, Kanta Prasad who, in turn, had been engaged by M/s.  

AARSELF Michigan-JV, to whom contract was awarded for rehabilitation  

of sewer in the zoo area.  According to Shri Sukhai Ram, the victim fell into  

the sewer because he became unconscious after inhaling the fumes of epoxy.  

He also stated that a sum of Rs.1.71 lacs was paid to the family of the victim  

12

by the contractor.  In the affidavits filed on behalf of the Delhi Development  

and the Delhi State Industrial Development Corporation, it was claimed that  

the deceased workers were not employed by or through them.  However,  

during the course of hearing,  learned counsel appearing on behalf  of  the  

appellant and other authorities conceded that as per the FIRs., the workers  

had died because they were not provided with protective gears before being  

asked to work in the manholes.   

9. After considering the affidavits  filed by the State agencies  and the  

arguments  made before it,  the  Division Bench of  the High Court  passed  

order dated 21.4.2009 (impugned order), the relevant portions of which read  

as under:

“On going through the FIR, however, it is clearly seen that the  affidavit filed on behalf of DJB is completely misleading. It is  seen from the FIR that the victim Rajan and another workman,  namely, Raj Kumar went inside the sewer through stairs. Before  going down they had asked the official  of the contractor  for  safety  equipments  and oxygen masks,  but  the  official  of  the  contractor did not pay heed to their requests. It is further seen  from the FIR that they were working in the same manner for the  last  one  week  but  despite  repeated  requests  made  to  the  contractor they were not provided with safety equipments and  oxygen masks.  It  is  further  seen  that  they  were  painting  the  sewer and due to presence of toxic gases and lack of oxygen in  the sewer, Rajan became unconscious and ultimately declared  to  be  dead  when  he  was  taken  to  the  hospital.  The  other  workman  was  feeling  giddy  and  fell  down  and  sustained  injuries on his face.

13

Learned  counsel  appearing  for  the  DJB  conceded  that  protective equipments were not provided by the DJB in spite of  the directions issued by this Court vide order dated 20th August,  2008. According to him the responsibility was of the contractor  to provide safety equipments as per the contract. It is clear that  the sewage workers were left at the mercy of the contractor who  failed to take basic precautions resulting in death of workman  Rajan.

Insofar as the death that occurred within the jurisdiction  of DDA, it has been stated in its affidavit that no work of de- silting  of  sewage  lines  or  otherwise  was  in  progress  in  the concerned division of DDA in which the accident took place. It  was  stated  that  possibly  some  local  residents  had employed a person by the name Rakesh Kumar on their own to  check  the  particular  manhole,  in  which  the  incident  took place.  During  the  course  of  arguments,  however,  learned counsel for DDA conceded that the affidavit  does not reflect the  correct  position.  He  admitted  that  Rakesh  Kumar  Saini was entrusted with the work of desilting of the sewage lines, but  according  to  him  the  contract  was  completed  in December,  2008.  Further,  according  to  him  though  the contract  provided  for  a  warranty  period  six  months,  the contractor could not have  carried  out any further work in the sewage  line  without  prior  permission  of  the  DDA.  Counsel  states  that  the  DDA  had  not  provided  protective  gears  and  equipments as directed by this Court because under the contract  it  was  the  responsibility  of  the  contractor  to  provide  the  protective gears and equipments.

 Insofar as DSIDC is concerned, it is seen from the FIR  that four workers were involved in the incident. Two workers namely, Manpal and Ram Braj Yadav died while two others  namely,  Shyambir  Sarvesh  and  Brajpal  Yadav  were  injured.  They were working under the contractor engaged by the DSIDC  i.e.  M/s  Arun Kumar  Goel.  It  is  seen from the FIR that  the  workers  were  not  provided  with  protective  gears  and  safety  equipments.

14

As already noted, two deaths occurred in Katyal Farms  House, Bhaktwarpur Road, Narela. It is seen from the FIR that  the workers who died while carrying out the work of cleaning  the  sewer  were  employees  of  the  contractor  by  name  Sunil,  engaged by the Farm House owners. Learned counsel appearing  for the farm house owners state that the owners have paid a sum  of Rs. 1 Lac in ex-gratia to the families of each of the victims.

At the outset it must be stated that both DJB and DDA  have not complied with the directions issued by this Court on  20  August,  2008,  particularly  directions  for  providing  protective  gears  and  equipment  and  for  issuing  employment  cards to the contractor's  workers.  Let  notice be issued to the  CEO, DJB and the Vice Chairman, DDA to show cause as why  action for contempt should not be initiated against them under  the Contempt of Courts Act for violating the directions issued  by this Court vide order dated 20th August, 2008. Notice shall  be returnable on 27th August, 2009.

DDA and DSIDC are directed to deposit the amount of  compensation of Rs.2.5 lacs per worker with the High Court  Legal  Services  Committee  (DHCLSC)  for  being  paid  to  the  families of the victims within four weeks.  It will be open to the  DDA/DSIDC  to  adjust/recover  the  amount  paid  from  the  contractor.  According to the DJB, the contractor has already  paid a  sum of Rs.1.71 lacs  to the victims’ families.   DJB is  directed  to  deposit  the  balance  amount  to  compensation  i.e.  Rs.79,000/-  with  the  DHCLSC within  four  weeks.  DHCLSC  will  ascertain  whether  the  amount  of  Rs.1.71  lacs  has  been  received by the victims’ families  as stated by the DJB.  The  owners of Katyal Farm House shall deposit a sum of Rs.1.5 lacs  per worker, i.e., in all Rs.3 lacs, with DHCLSC.  DHCLSC will  ascertain  whether  the  victims’  families  have  received  the  amount of Rs. 1 lac as claimed by the farm house owners.

The CEO of DJB, Vice Chairman of DDA and Managing  Director of DSIDC are directed to file their respective affidavits  before the Committee within four weeks confirming that their  respective affidavits before the Committee within four weeks  confirming that their organizations have complied with all the  

15

directions issued by this Court from time to time and if there  are  any  shortcomings,  to  specify  them  and  also  to  give  an  undertaking in writing before the Committee that all shortfalls  shall be rectified within a period to be fixed by the Committee.  All the three organizations are directed to file documents before  the Committee indicating:

(i) That all the muster  roll workers and the contract  workers have been provided with protective gears.

(ii) That all the muster  roll workers and the contract  workers have been provided provident fund.

(iii) That all the muster roll workers have been given  employment card.

(iv) That  medical  examination,  as  directed  by  this  Court, is being conducted in respect of contract workers  fee of cost and copies of the medical records may also be  furnished to the petitioner union.”

10. Learned counsel for the appellant, who had the tacit  support of the  

learned counsel representing the Government of National Capital Territory  

of  Delhi,  New  Delhi  Municipal  Council  and  the  Delhi  Development  

Authority, argued that the impugned order is liable to be set aside because  

by entertaining the writ petition filed by respondent No.1 in the name of  

public interest litigation and passing orders dated 20.8.2008 and 21.4.2009,  

the High Court transgressed the limits of its jurisdiction under Article 226 of  

the Constitution and usurped the legislative power of the State.   Learned  

counsel referred to the directions contained in the two orders and argued that  

16

the High Court does not have the jurisdiction to directly or indirectly alter  

the terms of agreement entered into between the appellant and the contractor  

– M/s. AARSELF Michigan-JV.  Learned counsel further argued that the  

High  Court  committed  serious  error  by  directing  the  appellant  to  pay  

compensation to the family of the worker ignoring that he was employed by  

M/s.  AARSELF Michigan-JV to  whom the  contract  for  rehabilitation  of  

sewer in the zoo area had been awarded.  Learned counsel emphasized that  

as per the terms of the agreement, it was the duty of the contractor to provide  

safety  equipments  to  the  workers  engaged  in  sewage  operations  and  the  

appellant cannot be made liable for the negligence, if any, of the contractor.  

Learned  counsel  then  referred  to  affidavit  dated  18.4.2009  filed  by  the  

contractor to show that necessary safety equipments were put in place and  

argued that the appellant and other public authorities cannot be held liable  

for the accidental  deaths.   Learned counsel  lastly argued that  even if  the  

High  Court  felt  that  it  was  the  responsibility  of  the  appellant  and  other  

public  authorities  to  compensate  the  victims  of  accident,  there  was  no  

occasion  for  directing  issue  of  notice  to  the  higher  functionaries  of  the  

appellant and the Delhi Development Authority to show cause against the  

proposed initiation of proceedings under the Contempt of Courts Act, 1971  

(for  short,  ‘the  1971  Act’)  on  the  ground  of  alleged  violation  of  the  

17

directions contained in order dated 20.8.2008.   

11. Shri Colin Gonsalves, learned senior counsel appearing for respondent  

No.1 supported the impugned order and the directions given by the High  

Court  for  ensuring  safety  of  the  persons  employed  by  or  through  the  

appellant and other State agencies for doing hazardous work by asserting  

that they cannot be absolved of their liability to compensate the victims of  

accidents merely because the work of laying and maintaining the sewage  

system has  been  outsourced.   Learned  senior  counsel  submitted  that  the  

appellant  is  really  not  aggrieved  by  the  direction  given  for  payment  of  

compensation, but is bothered by the notice issued to its Chief Executive  

Officer for initiation of proceedings under the 1971 Act.  He submitted that  

this  Court  should  not  entertain  the  appellant’s  grievance  against  such  

directions because the concerned functionary can show to the High Court  

that he has not committed contempt within the meaning of Section 2(b) of  

the 1971 Act.

12. In  the  light  of  the  arguments  made  by  the  learned  counsel,  the  

following three questions arise for our consideration:

(1) Whether the High Court was justified in entertaining the writ  

petition filed by respondent No.1 by way of public interest litigation  

18

for compelling the respondents to take effective measures for safety of  

sewage  workers  and  ordering  payment  of  compensation  to  the  

families  of  the  victims  of  accidents  taking  place  during  sewage  

operations,

(2) Whether  the  directions  given  by  the  High  Court  amount  to  

usurpation of the legislative power of the State, and

(3) Whether the High Court was entitled to issue interim direction  

for payment of compensation to the families of deceased workers.

Re: Question No.1:

13. At the threshold, we deem it necessary to erase the impression and  

misgivings  of  some  people  that  by  entertaining  petitions  filed  by  social  

action groups/activists/workers and NGOs for espousing the cause of those  

who, on account of poverty,  illiteracy and/or  ignorance and similar other  

handicaps,   cannot  seek protection  and vindication  of  their  constitutional  

and/or legal rights and silently suffer due to actions and/or omissions of the  

State apparatus and/or agencies/instrumentalities of the State or even private  

individuals,  the  superior  Courts  exceed the  unwritten  boundaries  of  their  

jurisdictions. When the Constitution of India was adopted, the people of this  

country resolved to constitute India into a Sovereign Democratic Republic.  

19

They also resolved to secure to all its citizens justice, social, economic and  

political; liberty of thought, expression, belief, faith and worship; equality of  

status and of opportunity; and to promote among them all fraternity assuring  

the dignity of the individual and the unity and integrity of the nation.

14. For achieving the goals set out in the preamble,  the framers of the  

Constitution identified and recognized certain basic rights of the citizens and  

individuals and pooled them in Part III,  which has the title `Fundamental  

Rights’ and simultaneously incorporated Directive Principles of State Policy  

which, though not enforceable by any Court are fundamental in governance  

of the country and the State is under obligation to comply with the principles  

embodied in Part-IV in making laws.  Article 38, which was renumbered as  

Clause (1) thereof by the Constitution (Forty-fourth Amendment) Act, 1978  

declares that the State shall strive to promote the welfare of the people by  

securing  and protecting  as  effectively  as  it  may a  social  order  in  which  

justice, social, economic and political, shall inform all the institutions of the  

national life.  Clause (2) of this Article, which was inserted by the same  

Amending Act declares that State shall, in particular, strive to minimize the  

inequalities  in  income,  and  endeavour  to  eliminate  inequalities  in  status,  

facilities and opportunities, not only amongst individuals, but also amongst  

20

groups  of  people  residing  in  different  areas  or  engaged  in  different  

vocations.  Article 39(e) mandates that the State shall, in particular, direct its  

policy towards securing that the health and strength of workers, men and  

women, and the tender age of children are not abused and that citizens are  

not forced by economic necessity to enter avocations unsuited to their age or  

strength.  Article 39A which was inserted by the Constitution (Forty-second  

Amendment)  Act,  1976  lays  down  that  the  State  shall  secure  that  the  

operation  of  the  legal  system  promotes  justice,  on  a  basis  of  equal  

opportunity,  and  shall,  in  particular,  provide  free  legal  aid,  by  suitable  

legislation or schemes or in any other way, to ensure that opportunities for  

securing justice are not denied to any citizen by reason of economic or other  

disabilities.   Article 42 enjoins the State to make provision for securing just  

and humane conditions of work and for maternity relief.   

15. In  last  63  years,  Parliament  and  State  Legislatures  have  enacted  

several  laws  for  achieving  the  goals  set  out  in  the  preamble  but  their  

implementation  has  been  extremely  inadequate  and  tardy  and  benefit  of  

welfare measures enshrined in those legislations has not reached millions of  

poor, downtrodden and disadvantaged sections of the society and the efforts  

to bridge the gap between the haves and have-nots have not yield the desired  

21

result.  The most unfortunate part of the scenario is that whenever one of the  

three  constituents  of  the  State  i.e.,  judiciary,  has  issued  directions  for  

ensuring that the right to equality, life and liberty no longer remains illusory  

for those who suffer from the handicaps of poverty, illiteracy and ignorance  

and  directions  are  given  for  implementation  of  the  laws  enacted  by  the  

legislature for the benefit of the have-nots, a theoretical debate is started by  

raising the bogey of judicial activism or judicial overreach and the orders  

issued  for  benefit  of  the  weaker  sections  of  the  society  are  invariably  

subjected to challenge in the higher Courts.  In large number of cases, the  

sole  object  of  this  litigative  exercise  is  to  tire  out  those  who  genuinely  

espouse the cause of the weak and poor.

16. This  Court  has  time  and  again  emphasized  the  importance  of  the  

petitions filed pro bono publico for protection of the rights of less fortunate  

and vulnerable sections of the society.  In People’s Union for Democratic  

Rights v. Union of India (1982) 3 SCC 235, this Court said:

“We wish to point out with all the emphasis at our command  that  public  interest  litigation  which  is  a  strategic  arm of  the  legal  aid  movement  and  which  is  intended  to  bring  justice  within  the reach of  the poor  masses,  who constitute  the  low  visibility  area  of  humanity,  is  a  totally  different  kind  of  litigation  from  the  ordinary  traditional  litigation  which  is  essentially of an adversary character where there is a dispute  between  two  litigating  parties,  one  making  claim or  seeking  

22

relief against the other and that other opposing such claim or  resisting such relief.  Public interest litigation is brought before  the  court  not  for  the  purpose  of  enforcing  the  right  of  one  individual against another as happens in the case of ordinary  litigation,  but  it  is  intended  to  promote  and vindicate  public  interest which demands that violations of constitutional or legal  rights of large numbers of people who are poor, ignorant or in a  socially or economically disadvantaged position should not go  unnoticed and unredressed.  That  would be destructive  of  the  rule of law which forms one of the essential elements of public  interest in any democratic form of Government. The rule of law  does not mean that the protection of the law must be available  only to a fortunate few or that the law should be allowed to be  prostituted by the vested interests for protecting and upholding  the status quo under the guise of enforcement of their civil and  political rights. The poor too have civil and political rights and  the rule of law is meant for them also, though today it exists  only on paper and not in reality. If the sugar barons and the  alcohol  kings  have  the  fundamental  right  to  carry  on  their  business and to fatten their purses by exploiting the consuming  public,  have  the  chamars belonging  to  the  lowest  strata  of  society no fundamental right to earn an honest living through  their sweat and toil? The former can approach the courts with a  formidable army of distinguished lawyers paid in four or five  figures per day and if their right to exploit is upheld against the  Government under the label of fundamental right, the courts are  praised for their boldness and courage and their independence  and  fearlessness  are  applauded  and  acclaimed.  But,  if  the  fundamental right of the poor and helpless victims of injustice  is  sought  to be enforced by public  interest  litigation,  the so- called champions of human rights frown upon it  as waste of  time of the highest court in the land, which, according to them,  should  not  engage  itself  in  such  small  and  trifling  matters.  Moreover,  these self-styled  human rights  activists  forget  that  civil and political rights, priceless and invaluable as they are for  freedom and democracy, simply do not exist for the vast masses  of our people. Large numbers of men, women and children who  constitute  the bulk of  our population are today living a sub- human existence in conditions of abject poverty; utter grinding  poverty  has  broken  their  back  and  sapped  their  moral  fibre.  

23

They have no faith in the existing social and economic system.  

Public  interest  litigation,  as  we  conceive  it,  is  essentially  a  cooperative or collaborative effort on the part of the petitioner,  the State or public authority and the court to secure observance  of  the  constitutional  or  legal  rights,  benefits  and  privileges  conferred upon the vulnerable sections of the community and to  reach  social  justice  to  them.  The  State  or  public  authority  against whom public interest litigation is brought should be as  much interested in ensuring basic human rights, constitutional  as well as legal, to those who are in a socially and economically  disadvantaged position, as the petitioner who brings the public  interest litigation before the court. The State or public authority  which is  arrayed  as  a  respondent  in  public  interest  litigation  should, in fact, welcome it, as it would give it an opportunity to  right a wrong or to redress an injustice done to the poor and  weaker sections of the community whose welfare is and must  be the prime concern of the State or the public authority.

There  is  a  misconception  in  the  minds  of  some  lawyers,  journalists and men in public life that public interest litigation is  unnecessarily cluttering up the files of the court and adding to  the already staggering arrears of cases which are pending for  long years  and it  should not  therefore  be encouraged  by the  court. This is, to our mind, a totally perverse view smacking of  elitist  and  status  quoist  approach.  Those  who  are  decrying  public interest litigation do not seem to realise that courts are  not meant only for the rich and the well-to-do, for the landlord  and  the  gentry,  for  the  business  magnate  and  the  industrial  tycoon, but they exist also for the poor and the down-trodden,  the have-nots and the handicapped and the half-hungry millions  of our countrymen. So far the courts have been used only for  the  purpose  of  vindicating  the  rights  of  the  wealthy  and the  affluent. It is only these privileged classes which have been able  to approach the courts for protecting their vested interests. It is  only the moneyed who have so far had the golden key to unlock  the  doors  of  justice.  ………No  State  has  a  right  to  tell  its  citizens that because a large number of cases of the rich and the  well-to-do are pending in our courts, we will not help the poor  

24

to come to the courts  for seeking justice until  the staggering  load of cases of people who can afford, is disposed of. The time  has now come when the courts must become the courts for the  poor  and struggling masses  of  this  country.  They must  shed  their  character  as  upholders  of  the  established  order  and the  status quo. They must be sensitised to the need of doing justice  to the large masses of people to whom justice has been denied  by a cruel and heartless society for generations. The realisation  must come to them that social justice is the signature tune of  our  Constitution  and  it  is  their  solemn  duty  under  the  Constitution to enforce the basic human rights of the poor and  vulnerable sections of the community and actively help in the  realisation of the constitutional goals.”

(emphasis supplied)

17. In  Hussainara Khatoon (IV) v. State of Bihar (1980) 1 SCC 98,  

P.N. Bhagwati, J. (as he then was) observed:

“..… Today, unfortunately, in our country the poor are priced  out of the judicial system with the result that they are losing  faith in the capacity of our legal system to bring about changes  in their life conditions and to deliver justice to them. The poor  in their contact with the legal system have always been on the  wrong side of the line. They have always come across ‘law for  the poor’ rather than ‘law of the poor’.  The law is regarded by  them as something mysterious and forbidding—always taking  something  away  from  them  and  not  as  a  positive  and  constructive  social  device  for  changing  the  social  economic  order and improving their life conditions by conferring rights  and benefits on them. The result is that the legal system has lost  its credibility for the weaker sections of the community.”

18. In  Municipal Council,  Ratlam v. Vardhichan (1980) 4 SCC 162,  

Krishna Iyer, J. said:

25

“…  The  truth  is  that  a  few  profound  issues  of  processual  jurisprudence of great strategic significance to our legal system  face us and we must zero-in on them as they involve problems  of access to justice for the people beyond the blinkered rules of  ‘standing’ of British-Indian vintage. If the centre of gravity of  justice is to shift, as the Preamble to the Constitution mandates,  from  the  traditional  individualism  of  locus  standi  to  the  community orientation of public interest litigation, these issues  must be considered.…

xxx xxx xxx

. … Why drive common people to public interest action? Where  directive principles have found statutory expression in do's and  don'ts  the  court  will  not  sit  idly  by  and  allow  municipal  government  to  become  a  statutory  mockery.  The  law  will  relentlessly be enforced and the plea of poor finance will  be  poor alibi when people in misery cry for justice.”

19. In  State of Uttaranchal v. Balwant Singh Chaufal (2010) 3 SCC  

402), this Court examined various facets of public interest litigation in the  

backdrop  of  criticism  from  within  and  outside  the  system.   Dalveer  

Bhandari, J. made lucid analysis of the concept and development of public  

interest litigation in the following three phases:

“Phase I.—It deals with cases of this Court where directions and  orders were passed primarily to protect fundamental rights under  Article 21 of the marginalised groups and sections of the society  who because of extreme poverty, illiteracy and ignorance cannot  approach this Court or the High Courts.

Phase  II.—It  deals  with  the  cases  relating  to  protection,  preservation of ecology, environment, forests, marine life, wildlife,  mountains, rivers, historical monuments, etc. etc.

26

Phase  III.—It  deals  with  the  directions  issued  by the  Courts  in  maintaining the probity, transparency and integrity in governance.”

While dealing with the first phase of development, the Court referred  

to large number of precedents and recorded its conclusion in the following  

words:

“We would not like to overburden the judgment by multiplying  these cases, but a brief resume of these cases demonstrates that  in  order  to  preserve  and  protect  the  fundamental  rights  of  marginalised,  deprived  and  poor  sections  of  the  society,  the  courts relaxed the traditional rule of locus standi and broadened  the  definition  of  aggrieved  persons  and  gave  directions  and  orders. We would like to term cases of this period where the  Court relaxed the rule of  locus standi as the first phase of the  public  interest  litigation.  The  Supreme  Court  and  the  High  Courts earned great respect and acquired great credibility in the  eyes of public because of their innovative efforts to protect and  preserve the fundamental rights of people belonging to the poor  and marginalised sections of the society.”

20. These judgments are complete answer to the appellant’s objection to  

the maintainability of the writ petition filed by respondent No.1.  What the  

High Court has done by entertaining the writ petition and issuing directions  

for  protection  of  the  persons  employed  to  do  work  relating  to  sewage  

operations is part  of its  obligation to do justice to the disadvantaged and  

poor sections of the society.  We may add that the superior Courts will be  

failing in their constitutional duty if they decline to entertain petitions filed  

27

by genuine social groups, NGOs and social workers for espousing the cause  

of those who are deprived of the basic rights available to every human being,  

what to say of fundamental rights guaranteed under the Constitution.  It is  

the duty of the judicial constituent of the State like its political and executive  

constituents to protect the rights of every citizen and every individual and  

ensure that everyone is able to live with dignity.  Given the option, no one  

would like to enter the manhole of sewage system for cleaning purposes, but  

there are people who are forced to undertake such hazardous jobs with the  

hope that at the end of the day they will be able to make some money and  

feed  their  family.   They  risk  their  lives  for  the  comfort  of  others.  

Unfortunately,  for  last  few  decades,  a  substantial  segment  of  the  urban  

society has become insensitive to the plight of the poor and downtrodden  

including those, who, on account of sheer economic compulsions, undertake  

jobs/works which are inherently dangerous to life.  People belonging to this  

segment do not want to understand why a person is made to enter manhole  

without safety gears and proper equipments.  They look the other way when  

the body of a worker who dies in the manhole is taken out with the help of  

ropes and cranes.  In this scenario, the Courts are not only entitled but are  

under constitutional obligation to take cognizance of the issues relating to  

the lives of the people who are forced to undertake jobs which are hazardous  

28

and dangerous to life.  It  will be a tragic and sad day when the superior  

Courts will shut  their doors for those, who without any motive for personal  

gain  or  other  extraneous  reasons,  come  forward  to  seek  protection  and  

enforcement of the legal and constitutional rights of the poor, downtrodden  

and disadvantaged sections of the society.  If the system can devote hours,  

days  and  months  to  hear  the  elitist  class  of  eminent  advocates  who  are  

engaged by those who are accused of evading payment of taxes and duties or  

otherwise  causing  loss  to  public  exchequer  or  who  are  accused  of  

committing  heinous  crimes  like  murder,  rape,  dowry  death,  kidnapping,  

abduction  and  even  acts  of  terrorism  or  who  come  forward  with  the  

grievance that their fundamental right to equality has been violated by the  

State and/or its agencies/instrumentalities in contractual matters, some time  

can always be devoted for hearing the grievance of vast majority of silent  

sufferers whose cause is espoused by bodies like respondent No.1.

Re: Question No.2:

21. There have been instances in which this Court has exercised its power  

under Article 32 read with Article 142 and issued guidelines and directions  

to  fill  the  vacuum.  Vishaka v.  State  of  Rajasthan (1997) 6  SCC 241,  

Vineet Narain v. Union of India (1998) 1 SCC 226 and Union of India v.  

29

Association for Democratic Reforms (2002) 5 SCC 294 are illuminating  

examples of the exercise of this Court’s power under Article 32 for ensuring  

justice to the common man and effective exercise of fundamental rights by  

the  citizens.   In  Vishaka  v.  State  of  Rajasthan (supra),  the  Court  

entertained  the  petition  filed  by  certain  social  activists  and  NGOs  for  

effective protection of fundamental rights of working women under Articles  

14, 19 and 21.  In paragraph 11 of the judgment, the Court made a note of its  

obligation under Article 32 of the Constitution in the following words:

“11. The  obligation  of  this  Court  under  Article  32  of  the  Constitution for the enforcement of these fundamental rights in  the absence of legislation must be viewed along with the role of  judiciary envisaged in the Beijing Statement of Principles of the  Independence of the Judiciary in the LAWASIA region. These  principles were accepted by the Chief Justices of Asia and the  Pacific at Beijing in 1995 as those representing the minimum  standards  necessary  to  be  observed  in  order  to  maintain  the  independence  and effective  functioning of  the  judiciary.  The  objectives of the judiciary mentioned in the Beijing Statement  are:

“Objectives of the Judiciary: 10. The objectives and functions of the Judiciary include the  following: (a) to ensure that all persons are able to live securely under  

the rule of law; (b) to  promote,  within  the  proper  limits  of  the  judicial  

function,  the  observance  and  the  attainment  of  human  rights; and

(c) to  administer  the  law  impartially  among  persons  and  between persons and the State.”

30

22. In Vineet Narain v. Union of India (supra), the Court observed:

“The powers conferred on this  Court  by the Constitution are  ample to remedy this defect and to ensure enforcement of the  concept of equality.

There are ample powers conferred by Article 32 read with  Article  142 to make orders  which have the effect  of  law by  virtue of Article 141 and there is mandate to all authorities to  act in aid of the orders of this Court as provided in Article 144  of the Constitution.  In a catena of decisions of this Court, this  power has been recognised and exercised, if need be,   by issuing    necessary  directions  to  fill  the  vacuum  till  such  time  the  legislature steps in to cover the gap or the executive discharges  its role  .  ”

      (emphasis supplied)

23. In Union of India v. Association for Democratic Reforms (supra),  

this Court was called upon to examine the correctness of the directions given  

by  the  Division  Bench  of  Delhi  High  Court  for  implementation  of  the  

recommendations made by the Law Commission in its 170th Report.  While  

modifying the directions given by the High Court, the Court observed:

“45. Finally, in our view this Court would have ample power to  direct the Commission to fill the void, in the absence of suitable  legislation covering the field and the voters are required to be  well informed and educated about contesting candidates so that  they can elect a proper candidate by their own assessment. It is  the duty of the executive to fill the vacuum by executive orders  because its field is coterminous with that of the legislature, and  where there is inaction by the executive, for whatever reason,  the  judiciary  must  step  in,  in  exercise  of  its  constitutional  

31

obligations to provide a solution till such time the legislature  acts to perform its role by enacting proper legislation to cover  the field. The adverse impact of lack of probity in public life  leading to a high degree of corruption is manifold. Therefore, if  the  candidate  is  directed  to  declare  his/her  spouse's  and  dependants' assets —immovable, movable and valuable articles  — it would have its own effect. This Court in Vishaka v. State  of Rajasthan dealt with the incident of sexual harassment of a  woman  at  work  place  which  resulted  in  violation  of  fundamental right of gender equality and the right to life and  liberty and laid down that in the absence of legislation, it must  be viewed along with the role of the judiciary envisaged in the  Beijing Statement of Principles of Independence of Judiciary in  the  LAWASIA  region.  The  decision  has  laid  down  the  guidelines and prescribed the norms to be strictly observed in  all work places until  suitable legislation is enacted to occupy  the field. In the present case also, there is no legislation or rules  providing for  giving necessary  information  to  the  voters.  As  stated earlier, this case was relied upon in Vineet Narain case  where the Court has issued necessary guidelines to CBI and the  Central  Vigilance  Commission  (CVC)  as  there  was  no  legislation  covering  the  said  field  to  ensure  proper  implementation of the rule of law.”

24. In view of the principles laid down in the aforesaid judgments, we do  

not have any slightest hesitation to reject the argument that by issuing the  

directions, the High Court has assumed the legislative power of the State.  

What  the  High  Court  has  done  is  nothing  except  to  ensure  that  those  

employed/engaged  for  doing  work  which  is  inherently  hazardous  and  

dangerous to life are provided with life saving equipments and the employer  

takes  care  of  their  safety  and  health.   The  State  and  its  

agencies/instrumentalities cannot absolve themselves of the responsibility to  

32

put  in  place  effective  mechanism  for  ensuring  safety  of  the  workers  

employed for  maintaining  and cleaning  the  sewage  system.   The  human  

beings who are employed for doing the work in the sewers cannot be treated  

as mechanical robots, who may not be affected by poisonous gases in the  

manholes.   The State  and its  agencies/instrumentalities  or  the contractors  

engaged by them are under a constitutional obligation to ensure the safety of  

the persons who are asked to undertake hazardous jobs.  The argument of  

choice and contractual freedom is not available to the appellant and the like  

for contesting the issues raised by respondent No.1.

Re: Question No.3:

25. We  shall  now  consider  whether  the  High  Court  was  justified  in  

issuing interim directions for payment of compensation to the families of the  

victims.  At the outset, we deprecate the attitude of a public authority like  

the appellant,  who has used the judicial  process  for frustrating the effort  

made by respondent No.1 for getting compensation to the workers, who died  

due to negligence of the contractor to whom the work of maintaining sewage  

system was outsourced.  We also express our dismay that the High Court has  

thought  it  proper to direct  payment of a paltry amount of  Rs.1.5 to 2.25  

lakhs to the families of the victims.  Rudul Sah v. State of Bihar (1983) 4  

33

SCC 141 is  the  lead  case  in  which the  Court  exercised  its  power  under  

Article 32 for compensating a person who was unlawfully detained for 14  

years.  Paragraphs 9 and 10 of the judgment, which contain the reasons for  

making a departure from the old and antiquated rule that a person, who has  

suffered due to the negligence of a public authority, can claim damages by  

filing suit, are extracted below:

“9. It is true that Article 32 cannot be used as a substitute for  the  enforcement  of  rights  and  obligations  which  can  be  enforced efficaciously through the ordinary processes of courts,  civil and criminal. A money claim has therefore to be agitated  in and adjudicated upon in a suit instituted in a Court of lowest  grade competent to try it.  But the important question for our  consideration is whether in the exercise of its jurisdiction under  Article  32,  this  Court  can  pass  an  order  for  the  payment  of  money  if  such  an  order  is  in  the  nature  of  compensation  consequential upon the deprivation of a fundamental right…… ……...

10. We cannot resist this argument. We see no effective answer  to it save the stale and sterile objection that the petitioner may,  if  so  advised,  file  a  suit  to  recover  damages  from the  State  Government.  Happily,  the  State's  counsel  has  not  raised that  objection.  The  petitioner  could  have  been  relegated  to  the  ordinary  remedy of  a  suit  if  his  claim to  compensation  was  factually controversial,  in the sense that a civil  court  may or  may not have upheld his claim. But we have no doubt that if the  petitioner  files  a  suit  to  recover  damages  for  his  illegal  detention, a decree for damages would have to be passed in that  suit,  though it  is  not possible to predicate,  in the absence of  evidence,  the precise amount which would be decreed in his  favour. In these circumstances, the refusal of this Court to pass  an order  of  compensation  in  favour of  the  petitioner  will  be  doing mere lip-service to his fundamental right to liberty which  the State Government has so grossly violated. Article 21 which  

34

guarantees the right to life and liberty will be denuded of its  significant content if the power of this Court were limited to  passing  orders  of  release  from illegal  detention.  One  of  the  telling ways in which the violation of that right can reasonably  be prevented and due compliance with the mandate of Article  21 secured, is to mulct its violators in the payment of monetary  compensation.  Administrative  sclerosis  leading  to  flagrant  infringements of fundamental rights cannot be corrected by any  other  method  open  to  the  judiciary  to  adopt.  The  right  to  compensation  is  some  palliative  for  the  unlawful  acts  of  instrumentalities which act in the name of public interest and  which present for their protection the powers of the State as a  shield. If civilisation is not to perish in this country as it  has  perished in some others too well known to suffer mention, it is  necessary to educate ourselves into accepting that, respect for  the  rights  of  individuals  is  the  true  bastion  of  democracy.  Therefore, the State must repair the damage done by its officers  to  the  petitioner's  rights.  It  may have  recourse  against  those  officers.”

    26. In Nilabati Behera v. State of Orissa (1993) 2 SCC 746, this Court  

awarded compensation to the mother of a young man who was beaten to  

death  in  police  custody.   The  Court  held  that  its  powers  to  enforce  

fundamental rights carries with it an obligation to forge new tools for doing  

justice.  In Paschim Banga Khet Mazdoor Samity v. State of W.B. (1996)  

4 SCC 37, this Court examined the issue whether a victim of apathy of the  

staff of government hospital is entitled to compensation and answered the  

same in the following words:

“The  Constitution  envisages  the  establishment  of  a  welfare  State  at  the  federal  level  as  well  as  at  the  State  level.  In  a  

35

welfare State the primary duty of the Government is to secure  the welfare of the people. Providing adequate medical facilities  for the people is an essential part of the obligations undertaken  by  the  Government  in  a  welfare  State.  The  Government  discharges  this  obligation  by  running  hospitals  and  health  centres  which provide  medical  care  to  the  person seeking to  avail of those facilities. Article 21 imposes an obligation on the  State to safeguard the right to life of every person. Preservation  of human life is thus of paramount importance. The government  hospitals run by the State and the medical officers employed  therein  are  duty-bound  to  extend  medical  assistance  for  preserving  human  life.  Failure  on  the  part  of  a  government  hospital to provide timely medical treatment to a person in need  of  such  treatment  results  in  violation  of  his  right  to  life  guaranteed  under  Article  21.  In  the  present  case  there  was  breach  of  the  said  right  of  Hakim  Seikh  guaranteed  under  Article  21  when  he  was  denied  treatment  at  the  various  government hospitals which were approached even though his  condition was very serious at that time and he was in need of  immediate medical attention. Since the said denial of the right  of Hakim Seikh guaranteed under Article 21 was by officers of  the State, in hospitals run by the State, the State cannot avoid its  responsibility  for  such  denial  of  the  constitutional  right  of  Hakim Seikh.  In  respect  of  deprivation  of  the  constitutional  rights guaranteed under Part III of the Constitution the position  is well settled that adequate compensation can be awarded by  the court for such violation by way of redress in proceedings  under Articles 32 and 226 of the Constitution. (See: Rudul Sah  v. State of Bihar; Nilabati Behera v. State of Orissa; Consumer  Education  and  Research  Centre  v.  Union  of  India.)  Hakim  Seikh should, therefore, be suitably compensated for the breach  of  his  right  guaranteed  under  Article  21  of  the  Constitution.  Having regard to the facts and circumstances of the case, we fix  the amount of such compensation at Rs 25,000. A sum of Rs  15,000  was  directed  to  be  paid  to  Hakim  Seikh  as  interim  compensation under the orders of this Court dated 22-4-1994.  The balance amount should be paid by Respondent 1 to Hakim  Seikh within one month.

36

It  is  no  doubt  true  that  financial  resources  are  needed  for  providing  these  facilities.  But  at  the  same time it  cannot  be  ignored that  it  is  the constitutional  obligation of  the State  to  provide adequate medical services to the people. Whatever is  necessary for this purpose has to be done. In the context of the  constitutional  obligation  to  provide  free  legal  aid  to  a  poor  accused  this  Court  has  held  that  the  State  cannot  avoid  its  constitutional obligation in that regard on account of financial  constraints. [See: Khatri (II) v. State of Bihar, SCC at p. 631.]  The said observations would apply with equal,  if not greater,  force in the matter of discharge of constitutional obligation of  the State to provide medical aid to preserve human life. In the  matter  of  allocation  of  funds  for  medical  services  the  said  constitutional obligation of the State has to be kept in view. It is  necessary that a time-bound plan for providing these services  should be chalked out keeping in view the recommendations of  the  Committee  as  well  as  the  requirements  for  ensuring  availability  of  proper  medical  services  in  this  regard  as  indicated  by  us  and steps  should  be  taken  to  implement  the  same.  The  State  of  West  Bengal  alone  is  a  party  to  these  proceedings. Other States, though not parties, should also take  necessary steps in the light of the recommendations made by  the Committee, the directions contained in the memorandum of  the  Government  of  West  Bengal  dated  22-8-1995  and  the  further directions given herein.”

27. In Chairman, Railway Board v. Chandrima Das (2000) 2 SCC 465,  

this Court considered the question whether the High Court could entertain  

the petition filed by the respondent by way of Public Interest Litigation and  

award  compensation  of  Rs.10  lakhs  to  Hanuffa  Khatoon,  a  national  of  

Bangladesh,  who  was  sexually  assaulted  by  the  employees  of  Eastern  

Railway.  While rejecting the argument of the appellant that the victim of  

rape could have availed remedy by filing suit in a Civil Court, the two-Judge  

37

Bench referred to the distinction made between “public law” and “private  

law” in Common Cause, A Registered Society v. Union of India (1999) 6  

SCC 667 and other cases in which compensation was awarded for violation  

of different rights and observed:

“Having regard to what has been stated above, the contention  that  Smt Hanuffa  Khatoon should  have  approached  the  civil  court  for  damages  and  the  matter  should  not  have  been  considered in a petition under Article 226 of the Constitution,  cannot  be  accepted.  Where  public  functionaries  are  involved  and the matter relates to the violation of fundamental rights or  the  enforcement  of  public  duties,  the  remedy  would  still  be  available under the public law notwithstanding that a suit could  be filed for damages under private law.”

The Court then referred to the fundamental rights guaranteed under  

Articles 20 and 21 of the Constitution and proceeded to observe:

“The  word  “LIFE”  has  also  been  used  prominently  in  the  Universal Declaration of Human Rights, 1948. (See Article 3  quoted above.) The fundamental rights under the Constitution  are  almost  in  consonance  with  the  rights  contained  in  the  Universal Declaration of Human Rights as also the Declaration  and  the  Covenants  of  Civil  and  Political  Rights  and  the  Covenants of Economic, Social and Cultural Rights, to which  India is a party having ratified them, as set out by this Court in  Kubic Darusz v. Union of India. That being so, since “LIFE” is  also  recognised  as  a  basic  human  right  in  the  Universal  Declaration of Human Rights,  1948, it  has to have the same  meaning and interpretation as has been placed on that word by  this Court in its various decisions relating to Article 21 of the  Constitution.  The  meaning  of  the  word  “life”  cannot  be  narrowed down. According to the tenor of the language used in  

38

Article 21, it will be available not only to every citizen of this  country, but also to a “person” who may not be a citizen of the  country.

Let  us  now  consider  the  meaning  of  the  word  “LIFE”  interpreted by this Court from time to time. In Kharak Singh v.  State of U.P. it was held that the term “life” indicates something  more  than  mere  animal  existence.  (See  also  State  of  Maharashtra v. Chandrabhan Tale.) The inhibitions contained in  Article 21 against its deprivation extend even to those faculties  by which life is enjoyed. In Bandhua Mukti Morcha v. Union of  India it was held that the right to life under Article 21 means the  right  to  live  with  dignity,  free  from  exploitation.  (See  also  Maneka Gandhi v. Union of India and Board of Trustees of the  Port of Bombay v. Dilipkumar Raghavendranath Nadkarni.)

On  this  principle,  even  those  who  are  not  citizens  of  this  country  and  come  here  merely  as  tourists  or  in  any  other  capacity  will  be  entitled  to  the  protection  of  their  lives  in  accordance with the constitutional provisions. They also have a  right to “life” in this country. Thus, they also have the right to  live, so long as they are here, with human dignity. Just as the  State is under an obligation to protect the life of every citizen in  this country, so also the State is under an obligation to protect  the life of the persons who are not citizens.”

The question whether the Central Government can be held vicariously  

liable for the offence of rape committed by the employees of the Railways  

was  answered  in  negative  by  relying  upon  the  judgments  in  State  of  

Rajasthan v. Vidhyawati AIR 1962 SC 933, State of Gujarat v. Memon  

Mahomed Haji Hasam AIR 1967 SC 1885, Basavva Kom Dyamangouda  

Patil  v.  State  of  Mysore (1977)  4  SCC  358,  N.  Nagendra  Rao  and  

39

Company v. State of A.P. (1994) 6 SCC 205 and State of Maharasthra v.  

Kanchanmala Vijaysing Shirke (1995) 5 SCC 659.

28. In M.S. Grewal v. Deep Chand Sood (2001) 8 SCC 151, this Court  

examined the question whether the High Court of Himachal  Pradesh was  

justified in entertaining the writ petition filed by the parents of 14 children,  

who died due to drowning in a river when they were on picnic organised by  

the school authorities.  While rejecting the objection to the maintainability of  

the writ petition, the Court referred to Rudul Sah v. State of Bihar (supra),  

Nilabati Behera v. State of Orissa (supra) and D.K. Basu v. State of W.B.  

(1997) 1 SCC 416 and observed:

“Next is the issue “maintainability of the writ petition” before  the  High  Court  under  Article  226  of  the  Constitution.  The  appellants though initially very strongly contended that while  the  negligence  aspect  has  been  dealt  with  under  penal  law  already,  the claim for compensation cannot but  be left  to be  adjudicated  by  the  civil  law  and  thus  the  civil  court's  jurisdiction ought to have been invoked rather than by way of a  writ petition under Article 226 of the Constitution. This plea of  non-maintainability of the writ petition though advanced at the  initial stage of the submissions but subsequently the same was  not pressed and as such we need not detain ourselves on that  score, excepting however recording that the law courts exist for  the  society  and  they  have  an  obligation  to  meet  the  social  aspirations of citizens since law courts must also respond to the  needs of the people. In this context, reference may be made to  two decisions of this Court: the first in line is the decision in  Nilabati  Behera v. State of Orissa wherein this Court relying  upon the decision in Rudul Sah (Rudul Sah v. State of Bihar)  

40

decried the illegality and impropriety in awarding compensation  in a proceeding in which the court's power under Articles 32  and 226 of the Constitution stands invoked and thus observed  that  it  was  a  clear  case  for  award  of  compensation  to  the  petitioner for custodial death of her son. It is undoubtedly true,  however, that in the present context, there is no infringement of  the  State's  obligation,  unless  of  course  the  State  can also  be  termed to be a joint tortfeasor, but since the case of the parties  stands  restricted  and  without  imparting  any  liability  on  the  State, we do not deem it expedient to deal with the issue any  further except noting the two decisions of this Court as above  and without expression of any opinion in regard thereto.”

On the question of quantum of damages, the Court made the following  

observations:

“Be it placed on record that in assessing damages, all relevant  materials should and ought always to be placed before the court  so as to enable the court to come to a conclusion in the matter  of affectation of pecuniary benefit by reason of the unfortunate  death. Though mathematical nicety is not required but a rough  and  ready  estimate  can  be  had  from  the  records  claiming  damages since award of damages cannot be had without any  material evidence: whereas one party is to be compensated, the  other party is to compensate and as such there must always be  some materials  available therefor.  It  is not a fanciful item of  compensation  but  it  is  on  legitimate  expectation  of  loss  of  pecuniary  benefits.  In  Grand  Trunk  Rly.  Co.  of  Canada v.  Jennings this well-accepted principle stands reiterated as below:

“In assessing the damages, all circumstances which may  be  legitimately  pleaded  in  diminution  of  the  damages  must be considered. It is not a mere guesswork neither is  it the resultant effect of a compassionate attitude.”

As  noticed  above,  a  large  number  of  decisions  were  placed  before  this  Court  as  regards  the  quantum  of  compensation  varying between 50,000 to one lakh in regard to the unfortunate  

41

deaths of the young children. We do deem it fit to record that  while judicial precedents undoubtedly have some relevance as  regards the principles  of law, but the quantum of assessment  stands dependent on the fact situation of the matter before the  court,  than  judicial  precedents.  As  regards  the  quantum,  no  decision as  such can be taken to be of  binding precedent  as  such, since each case has to be dealt with on its own peculiar  facts and thus compensation is also to be assessed on the basis  thereof,  though  however,  the  same  can  act  as  a  guide:  placement in the society, financial status differs from person to  person and as such assessment  would also differ.  The whole  issue is to be judged on the basis of the fact situation of the  matter concerned though however, not on mathematical nicety.”

29. Reference also deserves to be made to MCD v.  Assn. of Victims of  

Uphaar  Tragedy  and  others  (2005)  9  SCC  586  whereby  this  Court  

entertained the appeal filed against the order passed by the Delhi High Court  

for payment of compensation to the families of those who died in Uphaar  

tragedy and directed the appellants to deposit Rs.3,01,40,000/- with a further  

direction that 50% of the amount shall be available for distribution to the  

claimants.

30. In view of the law laid down in the afore-mentioned judgments, the  

appellant’s challenge to the interim directions given by the High Court for  

payment  of  compensation  to  the  families  of  the  workers  deserves  to  be  

rejected.  However, that is not the end of the matter.  We feel that the High  

Court  should  have taken  cue  from the judgment  in  Chairman, Railway  

42

Board v. Chandrima Das (supra) and awarded compensation which could  

be treated as reasonable.   Though, it  is not possible to draw any parallel  

between the trauma suffered by a victim of rape and the family of a person  

who dies due to the negligence of others, but the High Court could have  

taken  note  of  the  fact  that  this  Court  had  approved  the  award  of  

compensation of Rs.10 lacs in 1998 to the victim of rape as also increase in  

the cost of living and done well to award compensation of atleast Rs.5 lacs  

to the families of those who died due to negligence of the public authority  

like the appellant who did not take effective measures for ensuring safety of  

the sewage workers.  We may have remitted the case to the High Court for  

passing  appropriate  order  for  payment  of  enhanced  compensation  but  

keeping in view the fact that further delay would add to the miseries of the  

family of the victim, we deem it proper to exercise power under Article 142  

of the Constitution and direct the appellant to pay a sum of Rs.3.29 lakhs to  

the  family  of  the  victim through  Delhi  High Court  State  Legal  Services  

Committee.  This would be in addition to Rs.1.71 lakhs already paid by the  

contractor.

31. In the result, the appeal is dismissed subject to the aforesaid direction  

regarding the amount of compensation to be paid by the appellant.   It  is  

needless to say that the appellant shall be entitled to recover the additional  

43

amount from the contractor.  Respondent No.1 shall also be entitled to file  

appropriate  application  before  the  High  Court  for  payment  of  enhanced  

compensation to the families of other victims and we have no doubt that the  

High Court will entertain such request.

32. With  a  view  to  obviate  further  delay  in  implementation  of  the  

directions  contained  in  the  first  order  passed  by  the  High  Court  on  

20.8.2008, we direct the appellant to ensure compliance of clauses (a), (b),  

(d), (e), (f), (g), (i), (k), (m) and (n) within a period of two months from  

today and submit a report to the High Court.  The appellant shall also ensure  

that these directions are complied with by the contractors engaged by it for  

execution of work relating to laying and maintenance of sewer system within  

the area of its jurisdiction.   A report to this effect be also submitted to the  

High Court within two months.  Additionally, we direct that in future the  

appellant shall ensure that the directions already given by the High Court  

and which may be given hereafter are made part of all agreements which  

may be executed with contractors/private enterprises for doing work relating  

to sewage system.   

33. The directions contained in the preceding paragraph do not imply that  

the  appellant  and  other  agencies/instrumentalities  of  the  State  like  New  

Delhi  Municipal  Council,  Municipal  Corporation  of  Delhi,  Delhi  State  

44

Industrial  Development  Corporation  are  not  required  to  comply  with  the  

directions given by the High Court.  Rather, they too shall have to submit  

similar reports.

34. As regards the other clauses of paragraph 9 of order dated 20.8.2008,  

the High Court may give necessary directions so that they are complied with  

and implemented by the State and its agencies/instrumentalities without any  

delay.

35. The case be listed before the Division Bench of the High Court in the  

third week of September, 2011 for further orders.

…..…..…….………………….…J. [G.S. Singhvi]

…..…..……..…..………………..J.                          [Asok Kumar Ganguly]

New Delhi July 12, 2011.

45