Moot Memo Essay

Constitution – Maintainability – Applications were filed by Delhi Legal Aid & A ; Advice Board and Delhi Bar Association for award of compensation to individuals who had suffered injury on history of flight of oleum gas from workss of Shriram Foods and Fertiliser Industries – However. as issues raised involved significant inquiries of jurisprudence associating to reading of Articles 21 and 32 of Constitution. instance was referred to larger Bench of five Judges – Hence. this Appeal – Whether. under Article 32 Applications for compensation sought could be maintained – Held. under Article 32 ( 1 ) . Court was free to invent any process appropriate for peculiar intent of continuing – However. power of Court was non merely injunctive in scope. that is. forestalling violation of cardinal right. but was besides remedial in range and provided alleviation against breach of cardinal right already committed – Thus. Court had power to allow such remedial alleviation and could include power to present compensation in appropriate instances – Hence. it was unfair to individual whose cardinal right was violated. to necessitate him to travel to Civil Court for claiming compensation – Appeal disposed of. Ratio Decidendi: “Courts shall order governments for enforcement of cardinal rights of citizens and to protect cardinal rights of people. ”JUDGMENTP. N. Bhagwati. CJ. 1. This writ request under Article 32 of the Constitution has come before us on a mention made by a Bench of three Judges.

The mention was made because certain inquiries of seminal importance and high constitutional significance were raised in the class of statements when the writ request was originally heard. The facts giving rise to the writ request and the subsequent events have been set out in some item in the Judgment given by the Bench of three Judges on 17th February 1986. and it is hence non necessary to repeat the same. Suffice it to province that the Bench of three Judges permitted Shriram Foods and Fertiliser Industries ( hereinafter referred to as Shriram ) to re-start its power works as besides workss for industry of acerb Cl including its byproducts and recovery workss like soap. glycerol and proficient difficult oil. topic to the conditions set out in the Judgment.

That would hold normally set an terminal to the chief contention raised in the writ request which was filed in order to obtain a way for closing of the assorted units of Shriram on the land that they were risky to the community and the lone point in difference which would hold survived would hold been whether the units of Shriram should be directed to be removed from the topographic point where they are soon situate and relocated in another topographic point where at that place would non be much human habitation so that there would non be any existent danger to the wellness and safety of the people. But while the writ request was pending at that place was flight of oleum gas from one of the units of Shriram on 4th and 6th December. 1985 and applications were filed by the Delhi Legal Aid & A ; Advice Board and the Delhi Bar Association for award of compensation to the individuals who had suffered injury on history of flight of oleum gas.

These applications for compensation raised a figure of issues of great constitutional importance and the Bench of three Judges hence formulated the issues and asked the suppliant and those back uping him as besides Shriram to register their several written entries so that the Court could take up the hearing of these applications for compensation. When these applications for compensation came up for hearing it was felt that since the issues raised involved significant inquiries of jurisprudence associating to the reading of Articles 21 and 32 of the Constitution. the instance should be referred to a larger Bench of five Judges and this is how the instance has now come before us. 2. Mr. Diwan. learned Counsel looking on behalf of Shriram raised a preliminary expostulation that the Court should non continue to make up one’s mind these constitutional issues since there was no claim for compensation originally made in the writ request and these issues could non be said to originate on the writ request.

Mr. Diwan conceded that the flight of oleum gas took topographic point subsequent to the filing of the writ request but his statement was that the suppliant could hold applied for amendment of the writ request so as to include a claim for compensation for the victims of oleum gas but no such application for amendment was made and therefore on the writ request as it stood. these constitutional issues did non originate for consideration. We do non believe this preliminary expostulation raised by Mr. Diwan is sustainable. It is doubtless true that the suppliant could hold applied for amendment of the writ request so as to include a claim for compensation but simply because he did non make so. the applications for compensation made by the Delhi Legal Aid & A ; Advice Board and the Delhi Bar Association can non be thrown out. These applications for compensation are for enforcement of the cardinal right to life enshrined in Article 21 of the Constitution and while covering with such applications. we can non follow a hyper-technical attack which would get the better of the terminals of justness.

This Court has on legion occasions pointed out that where there is a misdemeanor of a cardinal or other legal right of a individual or category of individuals who by ground of poorness or disablement or socially or economically deprived place can non near a Court of jurisprudence for justness. it would be unfastened to any public spirited single or societal action group to convey an action for exoneration of the cardinal or other legal right of such single or category of persons and this can be done non merely by registering a regular writ request but besides by turn toing a missive to the Court. If this Court is prepared to accept a missive complaining of misdemeanor of the cardinal right of an person or a category of persons who can non near the Court for justness. there is no ground why these applications for compensation which have been made for enforcement of the cardinal right of the individuals affected by the oleum gas leak under Article 21 should non be entertained. The Court while covering with an application for enforcement of a cardinal right must look at the substance and non the signifier. We can non therefore sustain the preliminary expostulation raised by Mr. Diwan. 3.

The first inquiry which requires to be considered is as to what is the range and scope of the legal power of this Court under Article 32 since the applications for compensation made by the Delhi Legal Aid and Advice Board and the Delhi Bar Association are applications sought to be maintained under that Article. We have already had juncture to see the scope and coverage of Article 32 in the Bandhua Mukti Morcha v. Union of India and Ors. MANU/SC/0051/1983: [ 1984 ] 2SCR67 and we entirely endorse what has been stated by one of us viz. . Bhagwati. J. as he so was in his judgement in that instance in respect to the true range and scope of that Article. It may now be taken every bit good settled that Article 32 does non simply confer power on this Court to publish a way. order or writ for enforcement of the cardinal rights but it besides lays a constitutional duty on this Court to protect the cardinal rights of the people and for that intent this Court has all incidental and accessory powers including the power to hammer new redresss and manner new schemes designed to implement the cardinal rights.

It is in realization of this constitutional duty that this Court has in the yesteryear innovated new methods and schemes for the intent of procuring enforcement of the cardinal rights. peculiarly in the instance of the hapless and the disadvantaged who are denied their basic human rights and to whom freedom and autonomy have no significance. 4. Thus it was in S. P. Gupta v. Union of India MANU/SC/0080/1981: [ 1982 ] 2SCR365 that this Court held that “where a legal wrong or a legal hurt is caused to a individual or to a determinate category of individuals by ground of misdemeanor of any constitutional or legal right or any load is imposed in dispute of any constitutional or legal proviso or without authorization of jurisprudence or any such legal wrong or legal hurt or illegal load is threatened. and any such individual or determinate category of individuals is by ground of poorness or disablement or socially or economically deprived place unable to near the tribunal for alleviation. any member of the populace or societal action group can keep an application for an appropriate way. order or writ in the High Court under Article 226 and in instance of breach of any cardinal right of such individual or category of individuals. in this Court under Article 32 seeking judicial damages for the legal wrong or hurt caused to such individual or determinate category of individuals. ”

This Court besides held in S. P. Gupta’s instance ( supra ) as besides in the People’s Union for Democratic Rights and Ors. v. Union of India MANU/SC/0038/1982: ( 1982 ) IILLJ454SC and in Babdhua Mukti Morcha’s instance ( supra ) that process being simply a hand-maden of justness it should non stand in the manner of entree to justness to the weaker subdivisions of Indian humanity and hence where the hapless and the disadvantaged are concerned who are hardly eking out a suffering being with their perspiration and labor and who are victims of an exploited society without any entree to justness. this Court will non take a firm stand on a regular writ request and even a missive adressed by a populace spirited single or a societal action group moving probono populace would do to light the legal power of this Court. We entirely endorse this statement of the jurisprudence in respect to the widening of venue standi and what has come to be known as epistolatory legal power. 5. We may indicate out at this phase that in Bandhua Mukti Morcha’s instance ( supra ) some of us groking that letters addressed to single justnesss may affect the tribunal in frivolous instances and that perchance the position could be taken that such letters do non raise the legal power of the tribunal as a whole. observed that such letters should non be addressed to single justnesss of the tribunal but to the Court or to the Chief Justice and his comrade Judgess.

We do non believe that it would be right to reject a missive addressed to an single justness of the tribunal simply on the land that it is non addressed to the tribunal or to the Chief Justice and his comrade Judges. We must non bury that letters would normally be addressed by hapless and deprived individuals or by societal action groups who may non cognize the proper signifier of reference. They may cognize merely a peculiar Judge who conies from their State and they may therefore reference the letters to him. If the Court were to take a firm stand that the letters must be addressed to the tribunal. or to the Chief Justice and his comrade Judges. it would except from the judicial cognizance a big figure of letters and in the consequence deny entree to justness to the deprived and vulnerable subdivisions of the community. We are hence of the position that even if a missive is addressed to an single Judge of the tribunal. it should be entertained. provided of class it is by or on behalf of a individual in detention or on behalf of a adult female or a kid or a category of deprived or disadvantaged individuals.

We may indicate out that now there is no trouble in entertaining letters addressed to single justness of the tribunal. because this Court has a Public Interest Litigation Cell to which all letters addressed to the Court or to the single justnesss are forwarded and the staff attached to this Cell examines the letters and it is merely after scrutiny by the staff members attached to this Cell that the letters are placed before the Chief Justice and under his way. they are listed before the Court. We must therefore clasp that letters addressed to single justness of the tribunal should non be rejected simply because they fail to conform to the preferable signifier of reference. Nor should the tribunal adopt a stiff stance that no letters will be entertained unless they are supported by an affidavit. If the tribunal were to take a firm stand on an affidavit as a status of entertaining the letters the full object and intent of epistolatory legal power would be frustrated because most of the hapless and deprived individuals will so non be able to hold easy entree to the Court and even the societal action groups will happen it hard to near the Court.

We may indicate out that the tribunal has so far been entertaining letters without an affidavit and it is merely in a few rare instances that it has been found that the allegations made in the letters were false. But that might go on besides in instances where the legal power of the Court is invoked in a regular manner. 6. So far as the power of the tribunal under Article 32 to garner relevant stuff bearing on the issues originating in this sort of judicial proceeding. which we may for the interest of convenience call societal action judicial proceeding. and to name Committees for this intent is concerned. we endorse. what one of us viz. . Bhagwati. J. . as he so was. has said in his Judgment in Bandhua Mukti Morcha’s instance ( supra ) . We need non reiterate what has been stated in that judgement. It has our full blessing. 7. We are besides of the position that this Court under Article 32 ( 1 ) is free to invent any process appropriate for the peculiar intent of the proceeding. viz. . enforcement of a cardinal right and under Article 32 ( 2 ) the Court has the inexplicit power to publish whatever way. order or writ is necessary in a given instance. including all incidental or accessory power necessary to procure enforcement of the cardinal right.

The power of the Court is non merely injunctive in scope. that is. forestalling the violation of a cardinal right. but it is besides remedial in range and provides alleviation against a breach of the cardinal right already committed vide Bandhua Mukti Morcha’s instance ( supra ) . If the Court were powerless to publish any way. order or writ in instances where a cardinal right has already been violated. Article 32 would be robbed of all its efficaciousness. because so the state of affairs would be that if a cardinal right is threatened to be violated. the Court can injunct such misdemeanor but if the lawbreaker is speedy plenty to take action conflicting the cardinal right. he would get away from the cyberspace of Article 32. That would. to a big extent. castrate the cardinal right guaranteed under Article 32 and render it impotent and ineffectual. We must. therefore. keep that Article 32 is non powerless to help a individual when he finds that his cardinal right has been violated.

He can in that event seek remedial aid under Article 32. The power of the Court to allow such remedial alleviation may include the power to present compensation in appropriate instances. We are intentionally utilizing the words “in appropriate cases” because we must do it clear that it is non in every instance where there is a breach of a cardinal right committed by the lawbreaker that compensation would be awarded by the Court in a request under Article 32.

The violation of the cardinal right must be gross and patent. that is. irrefutable and antique facie glaring and either such violation should be on a big graduated table impacting the cardinal rights of a big figure of individuals. or it should look unfair or unduly rough or oppressive on history of their poorness or disablement or socially or economically deprived place to necessitate the individual or individuals affected by such violation to originate and prosecute action in the civil tribunals. Normally. of class. a request under Article 32 should non be used as a replacement for enforcement of the right to claim compensation for violation of a cardinal right through the ordinary procedure of civil tribunal. It is merely in exceeding instances of the nature indicated by us above. that compensation may be awarded in a request under Article 32. This is the rule on which this Court awarded compensation in Rudul Shah v. State of Bihar. MANU/SC/0380/1983: 1983CriLJ1644.

So besides. this Court awarded compensation to Bhim Singh. whose cardinal right to personal autonomy was grossly violated by the State of Jammu and Kashmir. If we make a fact analysis of the instances where compensation has been awarded by this Court. we will happen that in all the instances. the fact of violation was patent and irrefutable. the misdemeanor was gross and its magnitude was such as to floor the scruples of the tribunal and it would hold been soberly unfair to the individual whose cardinal right was violated. to necessitate him to travel to the civil tribunal for claiming compensation. 8. The following inquiry which arises for consideration on these applications for compensation is whether Article 21 is available against Shriram which is owned by Delhi Cloth Mills Limited. a public company limited by portions and which is engaged in an industry vital to public involvement and with possible to impact the life and wellness of the people.

The issue of handiness of Article 21 against a private corporation engaged in an activity which has possible to impact the life and wellness of the people was vehemently argued by advocate for the appliers and Shriram. It was decidedly contended by advocate for the appliers. with the analogical assistance of the American philosophy of State Action and the functional and command trial enunciated by this Court in its earlier determinations. that Article 21 was available. as Shriram was transporting on an industry which. harmonizing to the Government’s ain declared industrial policies. was finally intended to be carried out by itself. but alternatively of the Government instantly shiping on that industry. Shriram was permitted to transport it on under the active control and ordinance of the Government.

Since the Government intended to finally transport on this industry and the manner of transporting on the industry could vitally impact public involvement. the control of the Government was linked to modulating that facet of the operation of the industry which could vitally impact public involvement. Particular accent was laid by advocate for the appliers on the regulative mechanism provided under the Industries Development and Regulation Act. 1951 where industries are included in the agenda if they vitally affect public involvement. Regulatory steps are besides to be found in the Bombay Municipal Corporation Act. the Air and Water Pollution Control Acts and now the recent Environment Act. 1986. Counsel for the appliers besides pointed to us the ample assistance in loans. land and other installations granted by the Government to Shriram in transporting on the industry.

Taking assistance of the American State Action philosophy. it was besides argued before us on behalf of the appliers that private activity. if supported. controlled or regulated by the State may acquire so entwined with governmental activity as to be termed State action and it would so be capable to the same constitutional restraints on the exercising of power as the State. 9. On the other manus. advocate for Shriram cautioned against spread outing Article 12 so as to convey within its scope private corporations. He contended that control or ordinance of a private corporation’s maps by the State under general statutory jurisprudence such as the Industries Development and Regulation Act. 1951 is merely in exercising of constabulary power of ordinance by the State. Such ordinance does non change over the activity of the private corporation into that of the State. The activity remains that of the private corporation. the State in its constabulary power merely regulates the mode in which it is to be carried on.

It was emphasised that control which deems a corporation. an bureau of the State. must be of the type where the State controls the direction policies of the Corporation. whether by ample representation on the board of direction or by necessity of anterior blessing of the Government before any new policy of direction is adopted. or by any other mechanism. Counsel for Shriram besides pointed out the in-appositeness of the State action philosophy to the Indian state of affairs. He said that in India the control and map trial have been evolved in order to find whether a peculiar authorization is an instrumentality or bureau of the State and therefore ‘other authority’ within the significance of Article 12. Once an authorization is deemed to be ‘other authority’ under Article 12. it is State for the intent of all its activities and maps and the American functional duality by which some maps of an authorization can be termed State action and others private action. can non run here.

The erudite Counsel besides pointed out that those rights which are specifically intended by the Fundamental law shapers to be available against private parties are so provided in the Constitution specifically such as Articles 17. 23 and 24. Therefore. to so spread out Article 12 as to convey within its scope even private corporations would be against the strategy of the Chapter on cardinal rights. 10. In order to cover with these rival contentions we think it is necessary that we should follow that portion of the development of Article 12 where this Court embarked on the way of germinating standards by which a corporation could be termed ‘other authority’ under Article 12. 11. In Rajasthan Electricity Board v. Mohan Lal MANU/SC/0360/1967: ( 1968 ) ILLJ257SC this Court was called upon to see whether the Rajasthan Electricity Board was an ‘authority’ within the significance of the look ‘other authorities’ in Article 12. Bhargava. J. who delivered the judgement of the bulk pointed out that the look ‘other authorities’ in Article 12 would include all constitutional and statutory governments on whom powers are conferred by jurisprudence.

The learned Judge besides said that if any organic structure of individuals has authorization to publish waies. the dis-obedience of which would be publishable as a condemnable offense. that would be an indicant that the concerned authorization is ‘State’ . Shah. J. . who delivered a separate judgement holding with the decision reached by the bulk. preferred to give a somewhat different significance to the look ‘other authorities’ . He said that governments. constitutional or statutory. would fall within the look “other authorities” merely if they are invested with the autonomous power of the State. viz. . the power to do regulations and ordinances which have the force of jurisprudence. The ratio of this determination may therefore be stated to be that a constitutional or statutory authorization would be within the look “other authorities” if it has been invested with statutory power to publish adhering waies to 3rd parties. the noncompliance of which would imply penal effects or it has the autonomous power to do regulations and ordinances holding the force of jurisprudence. 12.

This trial was followed by Ray. CJ. in Sukhdev v. Bhagat Ram MANU/SC/0667/1975: ( 1975 ) ILLJ399SC. Mathew. J. nevertheless. in the same instance propounded a broader trial. The erudite Judge emphasised that the construct of ‘State’ had undergone drastic alterations in recent old ages and today ‘State’ could non be conceived of merely as a coercive machinery exerting the bolt of lightning of authorization ; instead it has to be viewed chiefly as a service corporation. He expanded on this pronouncement by saying that the emerging rule appears to be that a public corporation being an instrumentality or bureau of the ‘State’ is capable to the same constitutional restrictions as the ‘State’ itself. The stipulations of this are two. viz. . that the corporation is the creative activity of the ‘State’ and that there is being of power in the corporation to occupy the constitutional rights of the person. This Court in Ramanna Shetty v. International Airport Authority MANU/SC/0048/1979: ( 1979 ) IILLJ217SC accepted and adopted the rational of instrumentality or bureau of State put frontward by Mathew. J. . and spelt out certain standards with whose assistance such an illation could be made.

However. before we come to these standards we think it necessary to mention to the concern runing behind the expounding of the broader trial by Justice Mathew which is of equal relevancy to us today. particularly sing the fact that the definition under Article 12 is an inclusive and non an thorough definition. That concern is the demand to control arbitrary and unregulated power wherever and howsoever reposed. 13. In Ramanna D. Shetty v. International Airport Authority ( supra ) this Court considering on the standards on the footing of which to find whether a corporation is moving as instrumentality or bureau of Government said that it was non possible to explicate an all inclusive or thorough trial which would adequately reply this inquiry.

There is no out and dried expression which would supply the right division of corporations into those which are instrumentalities or bureaus of Government and those which are non. The Court said whilst explicating the standards that analogical assistance can be taken from the construct of State Action as developed in the United States wherein the U. S. Courts have suggested that a private bureau if supported by extra-ordinary aid given by the State may be capable to the same constitutional restrictions as the State. It was pointed out that the State’s general common-law and statutory construction under which its people carry on their private personal businesss. ain belongings and enter into contracts. each basking equality in footings of legal capacity. is non such aid as would transform private behavior into State Action. “But if extended and unusual fiscal aid is given and the intent of such aid coincides with the intent for which the corporation is expected to utilize the aid and such intent is of public character. it may be a relevant circumstance back uping an illation that the corporation is an instrumentality or bureau of the Government” .

14. On the inquiry of State control. the Court in R. D. Shetty’s instance ( supra ) clarified that some control by the State would non be deciding of the inquiry. since the State has considerable step of control under its constabulary power over all types of concern administrations. But a determination of State fiscal support plus an unusual grade of control over the direction and policies of the corporation might take to the word picture of the operation as State Action. 15. Whilst considering on the functional standards viz. . that the corporation is transporting out a governmental map. the Court emphasised that categorization of a map as governmental should non be done on earlier twenty-four hours perceptual experiences but on what the State today positions as an indispensable portion of its activities. for the State may hold it as indispensable to its economic system that it owns and run a railway. a factory or an irrigation system as it does to have and run Bridgess street visible radiations or a sewerage disposal works. The Court besides reiterated in R. D. Shetty’s instance ( supra ) what was pointed out by Mathew. J. in Sukhdev v. Bhagatram that “Institutions engaged in affairs of high public involvement or public maps are by virtuousness of the nature of the maps performed authorities bureaus. Activities which are excessively cardinal to the society are by definition excessively of import non to be considered authorities maps. ”

16. The above treatment was rounded off by the Court in R. D. Shetty’s instance ( supra ) by reciting the undermentioned five factors viz. . ( 1 ) fiscal aid given by the State and magnitude of such aid ( 2 ) any other signifier of aid whether of the usual sort or extraordinary ( 3 ) control of direction and policies of the corporation by the State-nature and extent of control ( 4 ) State conferred or State protected monopoly position and ( 5 ) maps carried out by the corporation. whether public maps closely related to governmental maps. as relevant standards for finding whether a corporation is an instrumentality or bureau of the State or non. though the Court took attention to indicate out that the numbering was non thorough and that it was the sum or cumulative consequence of all the relevant factors that must be taken as controlling.

17. The standards evolved by this Court in Ramanna Shetty’s instance ( supra ) were applied by this Court in Ajay Hasia v. Khalid Mujib MANU/SC/0498/1980: ( 1981 ) ILLJ103SC where it was further emphasised that: Where constitutional basicss vital to the care of human rights are at interest. functional pragmatism and non facial cosmetics must be the diagnostic tool for constitutional jurisprudence must seek the substance and non the signifier. Now it is obvious that the Government may through the instrumentality or bureau of natural individuals or it may use the instrumentality or bureau of judicial individuals to transport out its maps. It is truly the Government which acts through the instrumentality or bureau of the corporation and the jural head covering of corporate personality worn for the intent of convenience of direction and disposal can non be allowed to kill the true nature of the world behind which is the Government ( for if the Government moving through its officers is capable to certain constitutional restrictions it must follow a fortiorari that the Government moving through the instrumentality or bureau of a corporation should be equality capable to the same restrictions.

On the canon of building to be adopted for construing constitutional warrants the Court pointed out: …constitutional warrants … should non be allowed to be emasculated in their application by a narrow and constructed judicial reading. The Courts should be dying to enlarge the range and breadth of the cardinal rights by conveying within their expanse every authorization which is an instrumentality or bureau of the Government or through the corporate personality of which the Government is moving. so as to subject the Government in all its myriad activities. whether through natural individuals or through corporate entities to the basic duty of the cardinal rights. In this instance the Court besides set at remainder the contention as to whether the mode in which a corporation is brought into being had any relevancy to the inquiry whether it is a State instrumentality or bureau.

The Court said that it is immaterial for the intent of finding whether a corporation is an instrumentality or bureau of the State or non whether it is created by a Statute or under a legislative act: “the enquiry has to be non as to how the jural individual is born but why it has been brought into being. The corporation may be a statutory corporation created by legislative act or it may be a Government company or a company formed under the Companies Act. 1956 or it may be a society registered under the Societies Registration Act. 1860 or any other similar statute” . It would come within the scope of Article 12. if it is found to an instrumentality or bureau of the State on a proper appraisal of the relevant factor. 18. It will therefore be seen that this Court has non permitted the corporate device to be utilised as a barrier throw outing the constitutional control of the cardinal rights.

Rather the Court has held: It is unsafe to acquit corporations from the demand to hold constitutional scruples. and so that reading. linguistic communication permitting. which makes governmental bureaus whatever their chief conformable to constitutional restrictions must be adopted by the tribunal as against the option of allowing them to boom as an empire in imperio” . Som Prakash v. Union of India: ( 1981 ) ILLJ79SC. 19. Taking the above expounding as our guideline. we must now continue to analyze whether a private corporation such as Shriram comes within the scope of Article12 so as to be conformable to the subject of Article 21. 20. In order to measure the functional function allocated to private corporation engaged in the industry of chemicals and fertilizers we need to analyze the Industrial Policy of the Government and see the public involvement importance given by the State to the activity carried on by such private corporation. 21. Under the Industrial Policy Resolution 1956 industries were classified into three classs holding respect to the portion which the State would play in each of them. The first class was to be the sole duty of the State.

The 2nd class comprised those industries which would be increasingly State owned and in which the State would therefore by and large take the enterprise in set uping new projects but in which private endeavor would besides be expected to supplement the attempt of the State by advancing and development projects either on its ain or with State engagement. The 3rd class would include all the staying industries and their hereafter development would by and large be left to the enterprise and endeavor of the private sector. Agenda B to the Resolution enumerated the industries. 22. Appendix I to the Industrial Policy Resolution. 1948 covering with the job of State engagement in industry and the conditions in which private endeavor should be allowed to run stated that there can be no uncertainty that the State must play a increasingly active function in the development of industries. However under the present conditions. the mechanism and resources of the State may non allow it to work forthwith in Industry every bit widely as may be desirable.

The Policy declared that for some clip to come. the State could lend more rapidly to the addition of national wealth by spread outing its present activities wherever it is already runing and by concentrating on new units of production in other Fieldss. 23. On these considerations the Government decided that the industry of weaponries and ammo. the production and control of atomic energy and the ownership and direction of railroad conveyance would be the sole monopoly of the Cardinal Government. The constitution of new projects in Coal. Iron and Steel. Aircraft industry. Ship edifice. industry of telephone telegraph and radio setup and mineral oil were to be the sole duty of the State except where in national involvement the State itself finds it necessary to procure the co-operation of private endeavor topic to control of the Cardinal Government. 24. The policy declaration besides made reference of certain basic industries of importance the planning and ordinance of which by the Cardinal Government was found necessary in national involvement.

Among the 18 industries so mentioned as necessitating such Central control. heavy chemicals and fertilizers stood included. 25. In order to transport out the aim of the Policy Resolution the Industries ( Development and Regulation ) Act of 1951 was enacted which. harmonizing to its objects and grounds. brought under cardinal control the development and ordinance of a figure of of import industries the activities of which affect the state as a whole and the development of which must be governed b y economic factors of all India import. Section 2 of the Act declares that it is expedient in the public involvement that the Union should take under its control the industries specified in the First Schedule. Chemicals and Fertilisers find a topographic point in the First Schedule as Items 19 and 18 severally. 26. If an analysis of the declarations in the Policy Resolutions and the Act is undertaken. we find that the activity of bring forthing chemicals and fertilizers is deemed by the State to be an industry of critical public involvement. whose public import necessitates that the activity should be finally carried out by the State itself. in the interim period with State support and under State control. private corporations may besides be permitted to supplement the State attempt.

The statement of the appliers on the footing of this premiss was that in position of this declared industrial policy of the State. even private corporations fabricating chemicals and fertilizers can be said to be engaged in activities which are so cardinal to the Society as to be needfully considered authorities maps. Sukhdev v. Bhagat Ram. Ramanna Shetty and Ajay Hasia ( supra ) . 27. It was pointed out on behalf of the appliers that as Shriram is registered under the Industries Development and Regulation Act 1951. its activities are capable to extended and elaborate control and supervising by the Government. Under the Act a license is necessary for the constitution of a new industrial project or enlargement of capacity or industry of a new article by an bing industrial set abouting transporting on any of the Scheduled Industries included in the First Schedule of the Act. By declining license for a peculiar unit. the Government can forestall over concentration in a peculiar part or over-investment in a peculiar industry. Furthermore. by its power to stipulate the capacity in the license it can besides forestall over-development of a peculiar industry if it has already reached mark capacity.

Section 18G of the Act empowers the Government to command the supply. distribution. monetary value etc. of the articles manufactured by a scheduled industry and under Section 18A Government can presume direction and control of an industrial project engaged in a scheduled industry if after probe it is found that the personal businesss of the project are being managed in a mode damaging to public involvement and under Section 18AA in certain emergent instances. take-over is allowed even without probe. Since Shriram is transporting on a scheduled industry. it is capable to this rigorous system of enrollment and licensing.

It is besides conformable. to assorted waies that may be issued by the Government from clip to clip and it is capable to the exercising of the powers of the Government under Sections 18A. and 18G. 28. Shriram is required to obtain a license under the Factories Act and is capable to the waies and orders of the governments under the Act. It is besides required to obtain a license for its fabrication activities from the Municipal governments under the Delhi Municipal Act. 1957. It is capable to extensive environment ordinance under the Water ( Prevention and Control ) of Pollution Act. 1974 and as the mill is situated in an air pollution control country. it is besides capable to the ordinance of the Air ( Prevention and Control of Pollution ) Act. 1981. It is true that control is non exercised by the Government in relation to the internal direction policies of the Company.

However. the control is exercised on all such activities of Shriram which can endanger public involvement. This functional control is of particular significance as it is the potency of the fertiliser industry to adversely impact the wellness and safety of the community and its being impregnated with public involvement which possibly dictated the policy determination of the Government to finally run this industry entirely and invited functional control. Along with this extended functional control. we find that Shriram besides receives ample aid in the form of loans and overdrafts running into several crores of rupees from the Government through assorted bureaus. Furthermore. Shriram is engaged in the industry of acerb sodium carbonate. Cl etc. Its assorted units are set up in a individual composite surrounded by thickly populated settlements. Chlorine gas is true unsafe to life and wellness. If the gas escapes either from the storage armored combat vehicle or from the filled cylinders or from any other point in the class of production. the wellness and wellbeing of the people populating in the locality can be earnestly affected. Thus Shriram is engaged in an activity which has the possible to occupy the right to life of big subdivisions of people.

The inquiry is whether these factors are cumulatively sufficient to convey Shriram within the scope of Article 12. Prima facie it is arguable that when the States’ power as economic agent. economic enterpriser and allocater of economic benefits is capable to the restrictions of cardinal rights. ( Vide Eurasian Equipment and Chemicals Ltd. v. State of West Bengal MANU/SC/0061/1974: [ 1975 ] 2SCR674. Rashbehari Panda v. State [ 1983 ] 3 SCR 374. Ramanna Shetty v. International Airport Authority. ( supra ) and Kasturilal Reddy v. State of Jammu & A ; Kashmir MANU/SC/0079/1980: [ 1980 ] 3SCR1338 why should a private corporation under the functional control of the State engaged in an activity which is risky to the wellness and safety of the community and is imbued with public involvement and which the State finally proposes to entirely run under its industrial policy. non be capable to the same restrictions. But we do non suggest to make up one’s mind this inquiry and do any definite dictum upon it for grounds which we shall indicate out subsequently in the class of this
judgement.

29. We were during the class of statements. addressed at great length by advocate on both sides on the American philosophy of State action. The erudite Counsel intricately traced the development of this philosophy in its parent state. We are cognizant that in America since the Fourteenth Amendment is available merely against the State. the Courts. in order to queer racial favoritism by private parties. devised the theory of State action under which it was held that wherever private activity was aided. facilitated or supported by the State in a important step. such activity took the coloring material of State action and was capable to the constitutional restrictions of the Fourteenth Amendment.

This historical context in which the philosophy of State action evolved in the United States is irrelevant for our intent particularly since we have Article 15 ( 2 ) in our Fundamental law. But it is the rule behind the philosophy of State assistance. control and ordinance so infusing a private activity as to give it the coloring material of State action that is of involvement to us and that besides to the limited extent to which it can be Indianised and harmoniously blended with our constitutional law. That we in no manner see ourselves bound by American expounding of constitutional jurisprudence is good demos- trated by the fact that in Ramanna Shetty. ( supra ) this Court preferred the minority sentiment of Douglas. J. in Jackson v. Metropolitan Edison Company. 42 L. erectile dysfunction. ( 2d ) 477 as against the bulk sentiment of Rehnquist. J. And once more in Air India v. Nargesh Mirza MANU/SC/0688/1981: ( 1981 ) IILLJ314SC this Court whilst preferring the minority position in General Electric Company Martha v. Gilbert. 50 L. erectile dysfunction. ( 2d ) 343 said that the commissariats of the American Constitution can non ever be applied to Indian conditions or to the commissariats of our Fundamental law and whilst some of the rules adumbrated by the American determinations may supply a utile usher. close attachment to those rules while using them to the commissariats of our Constitution is non to be favoured. because the societal conditions in our state are different.

The erudite Counsel for Shriram stressed the inaptness of the philosophy of State action in the Indian context because. harmonizing to him. one time an authorization is brought within the horizon of Article 12. it is State for all purposes and intents and the functional duality in America where certain activities of the same authorization may be charaterised as State action and others as private action can non be applied here in India. But so far as this statement is concerned. we must except to it and indicate out that it is non right to state that in India one time a corporation is deemed to be ‘authority’ . it would be capable to the constitutional restriction of cardinal rights in the public presentation of all its maps and that the denomination of ‘authority’ would lodge to such corporation. irrespective of the functional context.

30. Before we portion with this subject. we may indicate out that this Court has throughout the last few old ages expanded the skyline of Article 12 chiefly to shoot regard for human-rights and societal scruples in our corporate construction. The intent of enlargement has non been to destruct the raison d’eter of making corporations but to progress the human rights law. Prima facie we are non inclined to accept the apprehensivenesss of erudite advocate for Shriram as tenable when he says that our including within the scope of Article 12 and therefore subjecting to the subject of Article 21. those private corporations whose activities have the potency of impacting the life and wellness of the people. would cover a decease blow to the policy of promoting and allowing private entrepreneurial activity.

Whenever a new progress is made in the field of human rights. apprehensiveness is ever expressed by the position quosits that it will make tremendous troubles in the manner of smooth operation of the system and impact its stableness. Similar apprehensiveness was voiced when this Court In Ramanna Shetty’s instance ( supra ) brought public sector corporations within the range and scope of Article 12 and subjected them to the subject of cardinal rights. Such apprehensiveness expressed by those who may be affected by any new and advanced enlargement of human rights need non discourage the Court from widening the range of human rights and spread outing their range scope. if otherwise it is possible to make so without making force to the linguistic communication of the constitutional proviso. It is through originative reading and bold invention that the human rights law has been developed in our state to a singular extent and this forward March of the human rights motion can non be allowed to be halted by baseless apprehensivenesss expressed by position quoists. But we do non suggest to make up one’s mind eventually at the present phase whether a private corporation like Shriram would fall within the range and scope of Article 12. because we have non had sufficient clip to see and reflect on this inquiry in deepness.

The hearing of this instance before us concluded merely on 15th December 1986 and we are called upon to present our judgement within a period of four yearss. on 19th December 1986. We are hence of the position that this is non a inquiry on which we must do any definite dictum at this phase. But we would go forth it for a proper and elaborate consideration at a ulterior phase if it becomes necessary to make so. 31. We must besides cover with one other inquiry which was earnestly debated before us and that inquiry is as to what is the step of liability of an endeavor which is engaged in an risky or inherently unsafe industry. if by ground of an accident happening in such industry. individuals die or are injured. Does the regulation in Rylands v. Fletcher apply or is at that place any other rule on which the liability can be determined? The regulation in Rylands v. Fletcher was evolved in the twelvemonth 1866 and it provides that a individual who for his ain intents being on to his land and collects and supports at that place anything likely to make mischief if it escapes must maintain it at his hazard and. if he fails to make so. is leading facie apt for the harm which is the natural effect of its flight.

The liability under this regulation is rigorous and it is no defense mechanism that the thing escaped without that person’s willful act. default or disregard or even that he had no cognition of its being. This regulation laid down a rule of liability that if a individual who brings on to his land and collects and supports at that place anything likely to make injury and such thing flights and does damage to another. he is apt to counterbalance for the harm caused. Of class. this regulation applies merely to non-natural user of the land and it does non use to things of course on the land or where the flight is due to an act of God and an act of a alien or the default of the individual injured or where the thing which escapes is present by the consent of the individual injured or in certain instances where there is statutory authorization.

Vide Halsbury Laws of England. Vol. 45 parity 1305. Considerable instance jurisprudence has developed in England as to what is natural and what is non-natural usage of land and what are exactly the fortunes in which this regulation may be displaced. But it is non necessary for us to see these determinations puting down the parametric quantities of this regulation because in a modem industrial society with extremely developed scientific cognition and engineering where risky or inherently unsafe industries are necessary to transport out portion of the developmental programme. This regulation evolved in the nineteenth Century at a clip when all these developments of scientific discipline and engineering had non taken topographic point can non afford any counsel in germinating any criterion of liability consistent with the constitutional norms and the demands of the present twenty-four hours economic system and societal construction. We need non experience inhibited by this regulation which was evolved in this context of a wholly different sort of economic system.

Law has to turn in order to fulfill the demands of the fast changing society and maintain abreast with the economic developments taking topographic point in the state. As new state of affairss arise the jurisprudence has to be evolved in order to run into the challenge of such new state of affairss. Law can non afford to stay inactive. We have to germinate new rules and put down new norms which would adequately cover with the new jobs which arise in a extremely industrialized economic system. We can non let our judicial thought to be constricted by mention to the jurisprudence as it prevails in England or for the affair of that in any other foreign state. We no longer necessitate the crutches of a foreign legal order. We are surely prepared to have visible radiation from whatever beginning it comes but we have to construct up our ain law and we can non permit an statement that simply because the new jurisprudence does non recognize the regulation of strict and absolute liability in instances of risky or unsafe liability or the regulation as laid down in Rylands v. Fletcher as is developed in England recognises certain restrictions and duties. We in India can non keep our custodies back and I venture to germinate a new rule of liability which English tribunals have non done.

We have to develop our ain jurisprudence and if we find that it is necessary to build a new rule of liability to cover with an unusual state of affairs which has arisen and which is likely to originate in future on history of risky or inherently unsafe industries which are concommitant to an industrial economic system. there is no ground why we should waver to germinate such rule of liability simply because it has non been so done in England. We are of the position that an endeavor which is engaged in a risky or inherently unsafe industry which poses a possible menace to the wellness and safety of the individuals working in the mill and residing in the environing countries owes an absolute and non-delegable responsibility to the community to guarantee that no injury consequences to anyone on history of risky or inherently unsafe nature of the activity which it has undertaken.

The endeavor must be held to be under an duty to supply that the risky or inherently unsafe activity in which it is engaged must be conducted with the highest criterions of safety and if any injury consequences on history of such activity. the endeavor must be perfectly apt to counterbalance for such injury and it should be no reply to the endeavor to state that it had taken all sensible attention and that the injury occurred without any carelessness on its portion. Since the individuals harmed on history of the risky or inherently unsafe activity carried on by the endeavor would non be in a place to insulate the procedure of operation from the risky readying of substance or any other related component that caused the injury must be held purely apt for doing such injury as a portion of the societal cost for transporting on the risky or inherently unsafe activity.

If the endeavor is permitted to transport on an risky or inherently unsafe activity for its net income. the jurisprudence must assume that such permission is conditional on the endeavor absorbing the cost of any accident originating on history of such risky or inherently unsafe activity as an appropriate point of its over-heads. Such risky or inherently unsafe activity for private net income can be tolerated merely on status that the endeavor engaged in such risky or inherently unsafe activity indemnifies all those who suffer on history of the transporting on of such risky or inherently unsafe activity regardless of whether it is carried on carefully or non. This rule is besides sustainable on the land that the endeavor entirely has the resource to detect and guard against jeopardies or dangers and to supply warning against possible jeopardies. We would therefore clasp that where an endeavor is engaged in a risky or inherently unsafe activity and injury consequences to anyone on history of an accident in the operation of such risky or inherently unsafe activity ensuing. for illustration. in flight of toxic gas the endeavor is purely and perfectly apt to counterbalance all those who are affected by the accident and such liability is non capable to any of the exclusions which operate counterpart the tortious rule of rigorous liability under the regulation in Rylands v. Fletcher ( supra ) .

32. We would besides wish to indicate out that the step of compensation in the sort of instances referred to in the predating paragraph must be co-related to the magnitude and capacity of the endeavor because such compensation must hold a regardful consequence. The larger and more comfortable the endeavor. the greater must be the sum of compensation collectible by it for the injury caused on history of an accident in the transporting on of the risky or inherently unsafe activity by the endeavor.

33. Since we are non make up one’s minding the inquiry as to whether Shriram is an authorization within the significance of Article 12 so as to be subjected to the subject of the cardinal right under Article 21. we do non believe it would be justified in puting up a particular machinery for probe of the claims for compensation made by those who allege that they have been the victims of oleum gas flight. But we would direct that Delhi Legal Aid and Advice Board to take up the instances of all those who claim to hold suffered on history of oleum gas and to register actions on their behalf in the appropriate tribunal for claiming compensation against Shriram.

Such actions claiming compensation may be filed by the Delhi Legal Aid and Advice Board within two months from today and the Delhi Administration is directed to supply the necessary financess to the Delhi Legal Aid and Advice Board for the intent of filing and prosecuting such actions. The High Court will put up one or more Judges as may be necessary for the intent of seeking such actions so that they may be efficiently disposed of. So far as the issue of resettlement and other issues are concerned the writ request will come up for hearing on 3rd February. 1987. © Manupatra Information Solutions Pvt. Ltd. |

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MANU/SC/0380/1973Equivalent Citation: AIR1974SC555. 1974LabIC427. ( 1974 ) ILLJ172SC. ( 1974 ) 4SCC3. [ 1974 ] 2SCR348IN THE SUPREME COURT OF INDIAWrit Petition No. 284 of 1972Decided On: 23. 11. 1973Appellants: E. P. Royappa Vs.

Respondent: State of Tamil Nadu and Anr. Hon’ble Judges:
A. N. Ray. C. J. . D. G. Palekar. P. N. Bhagwati. V. R. Krishna Iyer and Y. V. Chandrachud. JJ. Advocates: For Appellant/Petitioner/Plaintiff: A. K. Sen. S.
J. Rama. U. N. R. Rao. V. Selvaraj and R. R. Agarwala. AdvsFor Respondents/Defendant: S. Govind Swaminathan and S. V. Gupte. Advs. Subject: ServiceCatch WordsMentioned INActs/Rules/Orders: Indian Administrative Service ( Cadre ) Rules. 1954 – Rule 4. Indian Administrative Service ( Cadre ) Rules. 1954 – Rule 4 ( 1 ) . Indian Administrative Service ( Cadre ) Rules. 1954 – Rule 4 ( 2 ) . Indian Administrative Service ( Cadre ) Rules. 1954 – Rule 4 ( 4 ) ; Indian Administrative Service ( Pay ) Rules. 1954 – Rule 9 ( 1 ) . Indian Administrative Service ( Pay ) Rules. 1954 – Rule 9 ( 2 ) ; Constitution of India – Article 14. Fundamental law of India – Article 16. Fundamental law of India – Article 32. Fundamental law of India – Article 311Citing Mention:

Mentioned 2Case Note:

Service – question – request for directing respondents to retreat and call off Order and inquire for way to re-post suppliant to station of Chief Secretary – file refering to count throughout in ownership of Government – absence of file could non hold stood in manner of telling an question – intuition can non take topographic point of cogent evidence – grounds bring forthing judicial cocksureness in up-holding supplication of mala fides non on record – request dismissed. JUDGMENTRay. C. J. 1. The suppliant in this writ request under Article 32 of the Constitution asks for a mandamus or any other appropriate writ. way or order directing the respondents to retreat and call off the order dated 27 June. 1972. The suppliant farther asks for way to re-post the suppliant to the station of Chief Secretary in the State of Tamil Nadu. The respondents are the State of Tamil Nadu and the Chief Minister of Tamil Nadu. 2. The suppliant is a member of the Indian Administrative Service in the cell of the State of Tamil Nadu. On 2 August. 1968 the suppliant was confirmed in the Selection Grade of the Indian Administrative Service with consequence from 22 May. 1961. There were 8 Selection Grade stations in the State of Tamil Nadu.

The suppliant was No. 4 in that list. The suppliant in the old ages 1964. 1965. 1966. 1968 and 1969 was posted to move as Fifth Member. Board of Revenue ; Fourth Member. Board of Revenue ; Third Member. Board of Revenue ; Second Member. Board of Revenue. On 5 April. 1969 the suppliant was posted to move as Second Member. Board of Revenue. On 11 July. 1969 the suppliant was posted to move as Extra Chief Secretary. 3. On 11 July. 1969 the station of Additional Chief Secretary was temporarily created in the class of Chief Secretary for one twelvemonth.

The State Government farther directed that the station of Chief Secretary to Government. Additional Chief Secretary to Government and the First Member. Board of Revenue were deemed to be in the same class and they were inter-changeable choice stations. 4. On 7 August. 1969 the State of Tamil Nadu wrote to the Cardinal Government to amend Schedule III-A of the Indian Administrative Service ( Pay ) Rules. 1954. so that the stations of Chief Secretary to Government. Additional Chief Secretary to Government and First Member. Board of Revenue could be of the same cell transporting the same wage. The Government of India by a missive dated 26 September. 1969 stated that the position of Chief Secretary as the caput of the Secretariat administration in the State should stay undisputed. The position of the Cardinal Government was that the position of Chief Secretary should non be allowed to be diluted by the creative activity of the station of Additional Chief Secretary transporting the same position and emoluments as the Chief Secretary.

The Central Govt. besides stated that the station of Additional Chief Secretary was non a cell station. The Cardinal Government. nevertheless. expressed the position that the station of First Member. Board of Revenue in the State should transport pay as admissible to the Chief Secretary. 5. On 13 November. 1969 the suppliant was posted to move as Chief Secretary to Government with consequence from the afternoon of 13 November. 1969 frailty C. A. Ramakrishnan whose day of the month of old-age pension was 14 November. 1969 who has been granted refused degree with consequence from 14 November. 1969. 6. On 7 April. 1971 the suppliant was appointed Deputy Chairman of the State Planning Commission. That station was created temporarily for a period of one twelvemonth in the class of Chief Secretary to Government.

The suppliant did non fall in the station. The suppliant went on leave from 13 April. 1971 to 5 June. 1972. When the suppliant was on leave Raja Ram. the First Member. Board of Revenue was by an order dated 18 August. 1971 asked to keep the extra charge of the station of Deputy Chairman for. one twelvemonth with consequence from 13 August. 1971. On 6 June. 1972 the suppliant returned from leave. He was once more posted as Deputy Chairman. State Planning Commission on a wage of Rs. 3500/- per month. The suppliant did non fall in that station. The suppliant pointed out that the station of Deputy Chairman which was created for one twelvemonth did non be after 13 April. 1972. 7. By an order dated 27 June. 1972 the Government of Tamil Nadu accorded countenance to the creative activity of a impermanent station of Officer on Special Duty in the class of Chief Secretary to Government for a period of one twelvemonth from the day of the month of assignment or till the demand for it ceased whichever was earlier. By the same order the suppliant was transferred and appointed as Officer on Special Duty in the station sanctioned aforesaid. The suppliant did non fall in that station. The suppliant in the month of July. 1972 filed this request. 8.

The suppliants contentions were these. First. the suppliant is appointed to a station or transferred to a station which is non validly created. The station of Officer on Special Duty is said to be non a station transporting responsibilities and duties of a similar nature to cadre stations within the significance of Rule 4 of the Indian Administrative Service ( Cadre ) Rules. 1954. Second. under Rule 9 of the Indian Administrative Service ( Pay ) Rules. 1954 no member of the Service shall be appointed to a station other than a station specified in Schedule III unless the State Government concerned in regard of stations under its control or the Cardinal Government in regard of stations under its control. as the instance may be. do a declaration that the said station is tantamount in position and duty to a station specified in the said Schedule. It is. therefore. said that the suppliant who is a cadre station holder. viz. . keeping the station of Chief Secretary can non be posted to a non-scheduled station without a declaration that the non-scheduled station is equal in position and duties to a scheduled station.

Third. the suppliant is posted to an office which is inferior in position and office to that of the Chief Secretary. Therefore. the order is a hostile favoritism piquing Articles 14 and 16. Fourth. the creative activity of the station every bit good as the assignment and transportation of the suppliant to the station is malafide. 9. In this context it is to be ascertained as to whether the suppliant was appointed to the substantial station of Chief Secretary to the State of Tamil Nadu. The suppliant relied on bill of exchange order of the Chief Minister dated 13 November. 1969 which stated that the suppliant “is promoted and posted as Chief Secretary” . The suppliant besides relied on the undermentioned note of the Chief Minister at the clip of the passing of the order. There were 11 senior I. C. S. /I. A. S. Officers borne on the Tamil Nadu State Cadre.

The petitioner’s place was No. 10 in the list of Senior I. C. S. /I. A. S. Officers borne on the Tamil Nadu State Cadre. Ramakrishnan. the so Chief Secretary was No. 1 in the list. Kaiwar. Subramanyam. Mani. Govindan Nair. Vaidyanathan. Ramachandran. Raman. Raja Ram were above the suppliant in the list. Ramakrishnan and Kaiwar were retiring from service in the month of November. 1969. Subramanyam and Govindan Nair were moving as Secretaries to the Government of India. Vaidyanathan was off fr