Full Judgment Text
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PETITIONER:
FERTILIZER CORPORATION KAMGAR UNION (REGD.), SINDRI ANDOTHER
Vs.
RESPONDENT:
UNION OF INDIA AND OTHERS
DATE OF JUDGMENT13/11/1980
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BHAGWATI, P.N.
KRISHNAIYER, V.R.
FAZALALI, SYED MURTAZA
KOSHAL, A.D.
CITATION:
1981 AIR 344 1981 SCR (2) 52
1981 SCC (1) 568
CITATOR INFO :
RF 1981 SC1722 (3)
R 1982 SC 149 (22,25,608,966)
F 1982 SC1107 (17,19)
MV 1983 SC 75 (46)
RF 1985 SC1147 (15)
R 1986 SC 157 (8,11)
1986 SC 847 (40)
R 1989 SC1988 (18)
RF 1991 SC1902 (36)
ACT:
Constitution of India-Article 19(1)(g)-Sale of
redundant/retired plants & equipment-Occupation of an
industrial worker-Whether affected by such sale-Article 14-
Whether violated-Article 43A-Wrongs committed by management
in public sector whether can be remedied-Article 32-Access
to Justice-Public Property dissipated by sale-When and by
whom can the sale be set aside.
HEADNOTE:
The petitioners (workers) challenged the legality of
the sale of certain plants and equipment of the Sindri
Fertilizer Factory, whereby the highest tender submitted by
respondent No. 4 was accepted by the Tender Committee and
approved by the Board of Directors. The petitioners, amongst
others, contended that (i) that the decision to sell the
plants and equipment of the Factory was taken without
calling for any report;(ii) the original tender of Rs. 7.6
crores was unaccountably reduced to Rs. 4.25 crores; (iii)
the price of the plants and equipment, which was ultimately
realised in the sale was manipulated with ulterior purposes;
(iv) the decision to restrict fresh offers, in respect of
the reduced equipment, to the tenderers who had submitted
tenders for more than Rs. 4 crores was unfair and
arbitrary; (v) the said decision resulted in a huge loss to
the public exchequer and (vi) the sale had jeopardised the
employment of 11000 odd workers who faced retrenchment as a
result of the sale.
On behalf of petitioners 3 and 4 it was further
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contended that the sale will deprive them of their
fundamental right under Article 19(1) (g) to carry on their
occupation as industrial workers and that the sale is in
violation of the provisions of Article 14 of the
Constitution being arbitrary and unfair. The respondents
raised a preliminary objection to the maintainability of the
writ petition on the ground that the petitioners have no
locus standi and that the impugned sale did not violate any
of the fundamental rights of the petitioners.
Dismissing the petition:
^
HELD (By the Court)
The petitioners’ right under Art. 19(1)(g) to carry on
their occupation as industrial workers was not affected by
the sale, nor was their fundamental right, if any, under
Article 14 of the Constitution violated. [60 A]
(Per Chandrachud, C.J., Fazal Ali & Koshal, JJ.)
1. The violation of a fundamental right is the sine qua
non of the exercise of the right conferred by Article 32.
53
The jurisdiction conferred on the Supreme Court by
Article 32 is an important and integral part of the basic
structure of the Constitution because it is meaningless to
confer fundamental rights without providing an effective
remedy for their enforcement, if and when they are violated.
A right without a remedy is a legal conundrum of a most
grotesque kind. [59 E-F]
2. Whereas the right guaranteed by Article 32 can be
exercised for the enforcement of fundamental rights only,
the right conferred by Article 226 can be exercised not only
for the enforcement of fundamental rights but for any other
purpose. [59 E]
3(i). There is no substance in the grievance that the
petitioners’ right under Article 19(1)(g) is violated or is
in the imminent danger of being violated by the impugned
sale, since not only did the sale not affect the employment
of the workers employed in the Factory, but those of them
who were rendered surplus from time to time on account of
the closure of the plants were absorbed in alternate
employment in the same complex. [60 C, F-G]
(ii) The right of petitioners 3 and 4 and of the other
workers is not, in any manner, affected by the impugned
sale. The right to pursue a calling or to carry on an
occupation is not the same thing as the right to work in a
particular post under a contract of employment. If the
workers are retrenched consequent upon and on account of the
sale, it will be open to them to pursue their rights and
remedies under the Industrial Laws. The closure of an
establishment in which a workman is for the time being
employed does not by itself infringe his fundamental right
to carry on an occupation which is guaranteed by Article
19(1)(g) of the Constitution. [60 G-H, 61 A]
4. Article 19(1)(g) confers a broad and general right
which is available to all persons to do work of any
particular kind and of their choice. It does not confer the
right to hold a particular job or to occupy a particular
post of one’s choice. Even under Article 311 of the
Constitution, the right to continue in service falls with
the abolition of the post in which the person is working.
The workers in the instant case can no more complain of the
infringement of their fundamental right under Article
19(1)(g) than can a Government servant complain of the
termination of his employment on the abolition of his post.
The choice and freedom of the workers to work as industrial
workers is not affected by the sale. The sale may at the
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highest affect their locum, but it does not affect their
locus, to work as industrial workers. [61 B-D]
5. In the instant case, it is quite difficult to hold
that the decision to sell the plants and equipment of the
Factory was arbitrary, unreasonable or mala fide. The real
drive of the petition is against the decision of the Board
to sell the plants and equipment. It is that decision which
is stated to furnish the cause to complain of the violation
of the right conferred by Article 14, fairness, justness and
reasonableness being its implicit assumptions. [64 D-F]
6. As far as possible, sales of public property, when
the intention is to get the best price, ought to take place
publicly. The vendors are not necessarily bound to accept
the highest or any other offer, but the public at least gets
the satisfaction that the Government has put all its cards
on the table. One cannot exclude the possibility here that a
better price might have been realised in a fresh public
auction but such possibilities cannot vitiate the sale or
justify the allegation of mala fides. [64 G-H, 65 A-B]
54
7. It cannot be held that the petitioners’ rights, if
any, under Article 14 are violated, in view of the fact that
neither the decision to sell nor the sale proceedings were
unreasonable, unjust or unfair. But if and when a sale of
public property is found to be vitiated by arbitrariness of
mala fides, it would be necessary to consider the larger
question as to who has the right to complain of it. [65C, D-
E]
8.(i) The maintainability of a writ petition which is
correlated to the existence and violation of a fundamental
right is not always to be confused with the locus to bring a
proceeding under Article 32. These two matters often mingle
and coalesce with the result that it becomes difficult to
consider them in water-tight compartments. The question
whether a person has the locus to file a proceedings depends
mostly and often on whether he possesses a legal right and
that right is violated. But, in an appropriate case, it may
become necessary in the changing awareness of legal rights
and social obligations to take a broader view of the
question of locus to initiate a proceeding, be it under
Article 226 or under Article 32 of the Constitution. [65 E-
G]
(ii) The Court might not have refused relief to the
workers if it had found that the sale was unjust, unfair or
mala fide. If a public property is dissipated, it would
require a strong argument to convince the Court that
representative segments of the public or at least a section
of the public which is directly interested and affected
would have no right to complain of the infraction of public
duties and obligations. Public enterprises are owned by the
people and those who run them are accountable to the people.
The accountability of the public sector to the Parliament is
ineffective because the parliamentary control of public
enterprises is "diffuse and haphazard". [65 G-H, 66 A]
(Per Bhagwati and Krishna Iyer, JJ. concurring)
1. Public law, as part of the panorama of the
developmental process, must possess the specific techniques
of public sector control within well-defined parameters
which will anathematise administration by court writ and
interdict public officials handling public resources in
disregard of normatice essentials and constitutional
fundamentals. In a society in which the State had thrust
upon it the imperative of effectuating massive
transformation of economy and social structure the demands
upon the legal order to inhibit administrative evils and
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engineer developmental progress are enormous, though novel.
[68 E & 69 A-B]
2. It is important to underscore the vital departure
from the pattern of judicial review in the Anglo-American
legal environment because the demands of development
obligated by Part IV compel creative extensions to control
jurisprudence in many fields, including business
administrative law, contract law, penal law, fiscal law and
the like. [69 C-D]
3. Judicial interference with the Administration cannot
be meticulous. The court cannot usurp or abdicate, and the
parameters of judicial review must be clearly defined and
never exceeded. If the Directorate of a Government company
has acted fairly, even if it has faltered in its wisdom, the
court cannot, as a super-auditor, take the Board of
Directors to task. This function is limited to testing
whether the administrative action has been fair and free
from the taint of unreasonableness and has substantially
complied with the norms of procedure set for it by rules of
public administration. [71 A-C]
55
4. Locus Standi must be liberalized to meet the
challenges of the time. Ubi jus ibi remedium must be
enlarged to embrace all interests of public-minded
citizens or organisations with serious concern for
conservation of public resources and the direction and
correction of public power so as to promote justice in its
triune facets. [71 D-E]
5. An officious busybody picking up a stray dispute or
idle peddlar of blackmail-litigation through abuse of the
process of the court cannot be permitted to pollute the
court instrumentality, for private objectives. Public
justice is always and only at the service of public good,
never the servant or janitor of private interest or personal
motive. [72 B-C]
6. Public interest litigation is part of the process to
participate justice and ’standing’ in civil litigation of
that pattern must have liberal reception at the judicial
door-steps. [74 E-F]
7. Certainly, it is not part of the judicial process to
examine entrepreneurial activities to ferret out flaws. The
court is least equipped for such oversights, Nor, indeed, is
it a function of the judges under the constitutional scheme.
The internal management, business activity or institutional
operation of public bodies cannot be subjected to inspection
by the Court. To do so, is incompetent and improper and,
therefore, out of bounds. Nevertheless, the broad parameters
of fairness in administration, bona fides in action, and the
fundamental rules of reasonable management of public
business, if breached will become justiciable. [77 A-C]
8. Article 43A of the Constitution confers, in
principle, partnership status to workers in industry and
therefore technical considerations of corporate personality
cannot keep out those who seek to remedy wrongs committed in
the management of the public sector. [76 G]
Municipal Council, Ratlam v. Shri Vardhichand and Ors.
[1981] 1 S.C.R. 97 Wisconsin Law Review, Vol. 1966: 999 at
P. 1064 and M. Cappelletti, Rabels Z (1976) 669 at 672
referred to.
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 3804 of 1980.
(Under Article 32 of the Constitution).
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R. K. Garg, Sunil K. Jain, D. K. Garg, Sukumar Sahu and
V. J. Francis for the Petitioners.
L. N. Sinha, Att. General of India, M. M. Abdul Khader,
T.V.S. Narasimhachari and M. N. Shroff for Respondent No. 1.
M. K. Banerjee, Addl. Sol. Genl., J. B. Dadachanji, C.
M. Oberoi and K. J. John for Respondent No. 2.
A. K. Sen, S. S. Ray, R. S. Narula, Anindya Mitra,
Parijat Sinha N. P. Agarwala, C. K. Jain, Bardar Ahmad, Mrs.
R. Dhariwal and M. C. Dhingra for Respondent No. 4.
56
The Judgment of Y. V. Chandrachud, C.J., S. Murtaza
Fazal Ali and A. D. Koshal, JJ. was delivered by,
Chandrachud. C.J. V. R. Krishna Iyer J. gave a concurring
Opinion of his own and on behalf of P.N. Bhagwati, J.
CHANDRACHUD, C.J. By this petition under Article 32 of
the Constitution, the petitioners challenge the legality of
the sale of certain plants and equipment of the Sindri
Fertilizer Factory, whereby the highest tender submitted by
Respondent 4 in the sum of Rs. 4.25 crores was accepted on
May 30, 1980. The relief sought by the petitioners is that
the respondents should be directed not to sell away the
plant and equipment, that they should be asked to withdraw
their decision to sell the same and that the said decision
should be quashed as being illegal and unconstitutional.
Petitioner 1 is a Union of the Workers of the Factory,
Petitioner 2, Shri A. K. Roy, a Member of Parliament from
Dhanbad, is the President of that Union, while Petitioners 3
and 4 are workers employed in the Factory. Respondent 1 to
the Writ Petition is the Union of India, Respondent 2 is the
Fertilizer Corporation of India, (’FCI’), Respondent 3 is
the Sindri Fertilizer Factory, while the added Respondent 4,
Ganpatrai Agarwal, is the highest tenderer. Respondent 2, a
Government of India Undertaking, is a Company incorporated
under the Companies Act 1956 and is a ’Government Company’
within the meaning of Section 617 of that Act. It
established the Respondent 3 Factory, which was commissioned
in 1951. By article 66(1) of the Articles of Association of
respondent 2, its directors are appointed by the President
of India.
On January 4, 1980 the Board of Directors of respondent
2, (FCI), decided that tenders should be invited for the
sale of ’Redundant/retired plants and equipment of
respondent 3. In pursuance of that decision, an
advertisement was inserted in the newspapers on February 25,
1980 inviting tenders for the sale of nine units of the
"closed down chemical plants" of the Factory on "as is where
is" basis. The advertisement gave to the intending
purchasers the option to quote for four alternatives, one of
which was the quotation for individual equipment such as
pumping sets and compressors. Each tenderer was required to
submit three separate envelopes: Envelope No. 1 relating to
the payment of earnest money; envelope No. 2 relating to the
terms and conditions of the sale; and envelope No. 3
relating to the amount of bid offered by the tenderer. The
offers were to be valid until June 19, 1980.
On March 20, 1980 when the envelopes bearing No. 1 were
opened, it was found that two tenderers had not complied
with the
57
term as to the payment of the earnest money. As a result,
the number of valid tenders was reduced to nine. Discussions
took place thereafter between the tenderers and the
authorities, as a result of which an agreed formula was
evolved regarding the exclusion of the weights of foundation
and the exclusion of sales-tax from the bids offered. A few
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items were also excluded from the list of articles
advertised for sale. In the light of these modifications,
the tenderers were asked to submit fresh quotations in a
separate envelope marked ’No. 4’.
On March 21, 1980 envelopes bearing No. 3 which
contained the original offers and those bearing No. 4 which
contained the modified offers, were opened in the presence
of the tenderers. The highest original offer was that of
respondent 4 in the sum of Rs. 7.6 crores. The highest
modified offer of Rs. 6.2 crores was also made by respondent
4. The sale was thereafter adjourned.
On March 31, 1980 a letter was received by Respondent 2
that a part of the plants and equipment which were
advertised for sale were needed by the Fertilizer (Planning
and Development) India Ltd. for the purposes of experiment
and research. On April 10, 1980 a similar request was
received from the Ramagundam Division of Respondent 2. On
May 14, 1980 the Board of Directors decided that only those
items should be offered for sale which remained after
meeting the requirements of the Fertilizer (Planning and
Development) and the Ramagundam Division and that fresh
offers should be invited for the reduced stock, restricted
to the tenderers who had submitted modified tenders in sums
exceeding Rs. 4 crores. There were six such tenders amongst
the nine valid tenders. A week later, the six tenderers who
had submitted those tenders were called to Sindri and a
fresh list of reduced items was furnished to them. They
submitted their revised tenders in sealed covers on May 23,
1980. On May 24, the Tender Committee considered the offer
made by Respondent 4 in the sum of Rs. 4.25 crores as the
best, that being the highest amongst the fresh reduced
offers. The Tender Committee referred the matter to the
Board on the same date and on May 29, the Board gave its
approval to the acceptance of respondent 4’s offer. On May
30, a letter of Intent was issued by Respondent 2 in the
name of Respondent 4 who paid the security deposit of Rs. 50
lakhs on June 13, 1980. An order of sale in favour of
Respondent 4 was issued by Respondent 2 on July 7, 1980
whereupon Respondent 4 started dismantling the machinery and
equipment which he had purchased. This Writ Petition was
filed on August 14, 1980. On August 25, the Court issued a
show cause notice on the writ petition and stayed the sale.
58
The petitioners challenge the sale, inter alia, on the
following grounds:
(1) that the decision to sell the plants and
equipment of the Factory was taken without
calling for any report, expert or otherwise;
(2) that the original tender of Rs. 7.6 crores
was unaccountably reduced to Rs. 4.25 crores;
(3) that the price of the plants and equipment,
which was ultimately realised in the sale was
manipulated with ulterior purposes;
(4) that the decision to restrict the fresh
offers, in respect of the reduced equipment,
to the tenderers who had submitted tenders
for more than Rs. 4 crores was unfair and
arbitrary;
(5) that the said decision resulted in a huge
loss to the public exchequer since, if the
sale was readvertised, an appreciably higher
price would have been realised; and
(6) the sale has jeopardised the employment of
11000 odd workers who face retrenchment as a
result of the sale.
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Petitioners 3 and 4 support this petition under Article
32 of the Constitution by contending that the sale will
deprive them of their fundamental right under Article
19(1)(g) to carry on their occupation as industrial workers.
They contend further that the sale is in violation of the
provisions of Article 14, since it is arbitrary and unfair.
The learned Attorney General, who appears on behalf of
the Union of India, has raised a preliminary objection to
the maintainability of the writ Petition on the ground that
in the first place, the petitioners have no locus standi to
file the petition and secondly, that the impugned sale does
not violate any of the fundamental rights of the
petitioners. We must decide this objection before
considering the contentions raised by Shri R. K. Garg on
behalf of the petitioners.
Article 32 of the Constitution which guarantees by
clause (1) the right to move the Supreme Court by
appropriate proceedings for the enforcement of the rights
conferred by Part III, provides by clause (2) that:
"The Supreme Court shall have power to issue directions
or orders or writs, including writs in the nature of
habeas
59
corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this
Part".
It is manifest that the jurisdiction conferred on this Court
by Article 32 can be exercised for the enforcement of the
rights conferred by Part III and for no other purpose.
Clause (1) as well as clause (2) of Article 32 bring out
this point in sharp focus. As contrasted with Article 32,
Article 226 (1) of the Constitution provides that:
"Notwithstanding anything in article 32 every High
Court shall have power, throughout the territories in
relation to which it exercises jurisdiction, to issue
to any person or authority, including in appropriate
cases, any Government, within those territories
directions, orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III
and for any other purpose". (emphasis supplied).
The difference in the phraseology of the two Articles brings
out the marked difference in the nature and purpose of the
right conferred by these Articles. Whereas the right
guaranteed by Article 32 can be exercised for the
enforcement of fundamental rights only, the right conferred
by Article 226 can be exercised not only for the enforcement
of fundamental rights but for any other purpose.
The jurisdiction conferred on the Supreme Court by
Article 32 is an important and integral part of the basic
structure of the Constitution because it is meaningless to
confer fundamental rights without providing an effective
remedy for their enforcement, if and when they are violated.
A right without a remedy is a legal conundrum of a most
grotesque kind. While the draft Article 25, which
corresponds to Article 32, was being discussed in the
Constituent Assembly, Dr. Ambedkar made a meaningful
observation by saying:
"If I was asked to name any particular article in this
Constitution as the most important-an article without
which this Constitution would be a nullity-I could not
refer to any other article except this one. It is the
very soul of the Constitution and the very heart of it
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and I am glad that the House has realised its
importance". (Constituent Assembly Debates, December 9,
1948, Vol. VII, p. 953).
60
But though the right guaranteed by Article 32 is one of the
highly cherished rights conferred by the Constitution, the
purpose for which that right can be enforced is stated in
the very article which confers that right. The violation of
a fundamental right is the sine qua non of the exercise of
the right conferred by Article 32.
That makes it necessary to consider whether any of the
fundamental rights of the petitioners is violated or is in
the imminent danger of being violated by the sale of the
plants and equipment of the Factory. The grievance of the
petitioners is that two of their fundamental rights are
violated by the sale, one under Article 19(1) (g) and the
other under Article 14 of the Constitution.
We find no substance in the grievance that the
petitioners’ right under Article 19(1)(g) is violated or is
in the imminent danger of being violated by the sale. That
Article confers on all citizens the right to practise any
profession or to carry on any occupation trade or business.
The right of the petitioners to carry on an occupation is
not infringed by the sale mediately or immediately, actually
or potentially, for two reasons. In the first place, Shri R.
C. Malhotra, who is the Chief Engineer of the Sindri Unit,
says in paragraph 5 of the counter-affidavit filed by him on
behalf of the FCI, that although the old plants and
equipment had to be shut down from 1976 to 1979 because they
had become redundant, unsafe or unworkable, no employee was
deprived of his employment on that account. Shri Malhotra
says further in the same paragraph and in paragraph 6 of the
counter-affidavit, that the management of the FCI had
decided to deploy the workmen working in the plants that had
to be shut down in various other plants set up under the
scheme of modernisation and rationalisation and in the
various facilities that had been renovated in the Sindri
complex itself. Thus, not only did the sale not affect the
employment of the workers employed in the Factory, but those
of them who were rendered surplus from time to time on
account of the closure of the plants were absorbed in
alternate employment in the same complex.
Secondly, the right of Petitioners 3 and 4 and of the
other workers to carry on the occupation of industrial
workers is not, in any manner affected by the impugned sale.
The right to pursue a calling or to carry on an occupation
is not the same thing as the right to work in a particular
post under a contract of employment. If the workers are
retrenched consequent upon and on account of the sale, it
will be open to them to pursue their rights and remedies
under the Industrial Laws. But the point to be noted is that
the closure of an establishment in
61
which a workman is for the time being employed does not by
itself infringe his fundamental right to carry on an
occupation which is guaranteed by Article 19(1)(g) of the
Constitution. Supposing a law were passed preventing a
certain category of workers from accepting employment in a
fertiliser factory, it would be possible to contend then
that the workers have been deprived of their right to carry
on an occupation. Even assuming that some of the workers may
eventually have to be retrenched in the instant case, it
will not be possible to say that their right to carry on an
occupation has been violated. It would be open to them,
though undoubtedly it will not be easy, to find out other
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avenues of employment as industrial workers. Article 19(1)
(g) confers a broad and general right which is available to
all persons to do work of any particular kind and of their
choice. It does not confer the right to hold a particular
job or to occupy a particular post one’s choice. Even under
Article 311 of the Constitution, the right to continue in
service falls with the abolition of the post in which the
person is working. The workers in the instant case can no
more complain of the infringement of their fundamental right
under Article 19(1)(g) than can a Government servant
complain of the termination of his employment on the
abolition of his post. The choice and freedom of the workers
to work as industrial workers is not affected by the sale.
The sale may at the highest affect their locum, but it does
not affect their locus, to work as industrial workers. This
is enough unto the day on Art. 19(1)(g).
In regard to the infringement of the right under
Article 14, the contention of the petitioners is that the
plants and equipment of the factory were sold without the
benefit of any expert report, that the decision to effect
the sale was taken arbitrarily, that it was actuated by an
ulterior motive, and that the sale is vitiated by the
violation of the principles of natural justice since the
ultimate bid was restricted to a select group of persons.
The petitioners contend that the arbitrariness and
unfairness of the sale is reflected in the circumstance that
the original bid of Rs. 7.6 crores came down to Rs. 4.25
crores. If the sale was readvertised after there was a
material variation in its terms, the plants and equipment,
according to the petitioners, would have fetched a much
higher price.
A clear and satisfactory answer to this contention is
provided by the learned Additional Solicitor General, who
appears on behalf of Respondent 2, FCI. He has pointed out
to us numerous circumstances from which it would appear that
the grievance of the petitioners that the sale was unfair
and arbitrary is not justified.
62
The affidavits filed on behalf of the respondents,
particularly those of Shri R. C. Malhotra, Chief Engineer of
the Sindri Unit and of Shri K. V. Krishna Ayyar, Under
Secretary in the Department of Chemicals and Fertilisers,
Government of India, show that the Sindri Plant, which was
commissioned in 1951 and was expanded in 1959 and 1969 by
providing certain extra facilities, had outlived its use.
Various schemes were considered from time to time for
improving the economics of the Sindri Unit in order to
ensure continued employment to the workers. The first of
such schemes was the Sindri Rationalisation Scheme, which
was approved by the Government in 1967. This scheme was
completed in October 1979 at a cost of Rs. 60.77 crores
While the Rationalisation Scheme was under implementation,
it transpired that the Ammonia manufacturing facilities
based on coke were fast deteriorating and unless the
equipment was renovated substantially or was replaced with
modern equipment, it was impossible to expect stability in
the production of Nitrogenous fertilisers from the plant.
Different alternatives were before the Government in this
behalf, and, finally, the Sindri Modernisation Scheme was
approved by it in November 1973. This Scheme envisaged the
shutting down of the old Ammonia plant based on coke and the
setting up of a modern Ammonia plant producing 900 tonnes a
day of Ammonia with low sulphur heavy stock as food-stock.
This scheme was completed in October 1979 at a cost of Rs.
183.19 crores. Thus, the long term plan of the Government
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was to retain the Ammonium Sulphate plant after renovating
it and to shut down the old coke-based Ammonia plant. The
plant operations with the old plant showed considerable
deterioration in 1975-76. A team of engineers of the Sindri
Unit as well as of the Planning and Development Division of
the Fertiliser Corporation, in association with the
engineers of the Central Mechanical Engineering Research
Institute, Durgapur, undertook Survey, examination and
inspection of the plants with a view to determining their
status and condition. A committee of Directors was also
appointed for the same purpose. One of the main criteria
which the Directors kept before themselves in view of the
reported unsafe working condition of the plant was the
safety of the personnel and the workmen. The matter was
thereafter kept under constant review and parts of the plant
were retired or closed down from time to time as and when
their operation became unsafe and uneconomical. The running
of the old plant had indeed become so uneconomical that as
against the cost of production of Rs. 787.23 per ton of
Ammonia in 1971-72, the cost of production in 1978-79 was
approximately Rs. 6296/- per ton. An additional circumstance
which compelled the closure of a part of the plant is the
fact that the raw material required for the old plant
comprised special high quality coal which is in short
supply.
63
On the question of arbitrariness of the sale, the
following facts and circumstances are particularly relevant:
(1) The decision of the Board of Directors in
respect of the sale relates only to the
redundant or retired plants and equipment;
(2) The Board is authorised by article 68(20) of
the Articles of Association of the
Corporation to sell even the whole of the
undertaking with the prior approval of the
President of India. Such approval was taken
before the sale was finalised in favour of
Respondent 4;
(3) The decision of the Board was restricted to a
small part of the assets of the Sindri
Factory. The balance sheet for 1954-55 of the
erstwhile Sindri Fertiliser & Chemicals Ltd.
shows that the assets of the said Factory
were of the value of Rs. 22,82,99,086/- as on
April 1, 1954, out of which plants,
equipment, machinery, etc. were of the value
of Rs. 14,68,59,502/-. The original cost of
the plants and equipment, which have now been
sold, was about Rs. 10 crores, of which the
written-down value as on March 31, 1980 was
about Rs. 50 lakhs. The present outlay on the
Sindri Unit is in the region of Rs. 220
crores;
(4) The decision to sell the redundant or retired
plants became necessary for the reason that
they had out lived their life, having run for
a period ranging from 18 to 28 years. It had
also become unsafe, hazardous and uneconomic
to run such plants and equipment; and
(5) Although the old plants had to be shut down
on account of the sale, no employee at all
was retrenched or is likely to be retrenched
on account of the sale.
The answer which the Minister for Petroleum and
Chemicals gave on the floor of the House to the question put
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by respondent 2 is, if we may say so, strictly
’parliamentary’. The question was whether there was any
report justifying the sale. The answer was ’NO’ because
there were reports which preceded the sale and which advised
the sale. But they did not ’justify’ the sale, which is an
ex post facto matter. In fact
64
many a report had suggested the disbanding of worn out,
uneconomical and hazardous plants of Fertilizer undertakings
like:
1. Report of the Fertilizer Mission to India of
the International Bank for the Reconstruction
and Development published July, 1969.
2. Techno economic study of Alternative schemes
for Sindri Modernisation Project prepared by
Planning and Development Division of
Fertilizer Corporation of India and published
May 1971.
3. Techno economic Feasibility Report of Sindri
Modernisation Project published by Planning
and Development Division 1973 of Fertilizer
Corporation of India.
4. Appraisal of Sindri Fertilizer Project India-
Report of the International Bank for
Reconstruction & Development, International
Development Association, published November,
1974.
5. Report on Works Transformation and
Environmental Study by M/s UNICO
International Corporation of Japan, published
July 1975.
In view of these facts and circumstances, it is quite
difficult to hold that the decision to sell the plants and
equipment of the Factory was arbitrary, unreasonable or mala
fide. It has to be emphasized that the real drive of the
petition is against the decision of the Board to sell the
plants and equipment. It is that decision which is stated to
furnish the cause to complain of the violation of the right
conferred by article 14, fairness, justness and
reasonableness being its implicit assumptions.
There is only one other aspect of the matter and that
we are unable to view with any great equanimity. It is clear
from the proceedings that the plants which were initially
advertised for sale went through variation on two occasions.
The first variation which was made on March 20, 1980 may not
be regarded as substantial. But after the sale was adjourned
to March 31, 1980, the requests received by the FCI from the
other public sector undertakings stating, that they were in
need of a part of the equipment which was advertised for
sale, led to a substantial reduction in the goods advertised
for sale. The authorities then sent for the nine tenderers
and negotiated with them across the table. We want to make
it clear that we do not doubt the bonafides of the
authorities, but as far as possible, sales of public
property, when the intention is to get the best price, ought
to take place publicly. The vendors are not necessarily
bound to accept the highest or any other
65
offer, but the public at least gets the satisfaction that
the Government has put all its cards on the table. In the
instant case, the officers who were concerned with the sale
have inevitably, though unjustifiably, attracted the
criticism that during the course of negotiations the
original bid was reduced without a justifying cause. We had
willy-nilly to spend quite some valuable time in satisfying
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ourselves that the reduction in the price was a necessary
and fair consequence of the reduction in the quantity of the
goods later offered for sale on March 31, 1980. One cannot
exclude the possibility that a better price might have been
realised in a fresh public auction but such possibilities
cannot vitiate the sale or justify the allegation of mala
fides.
In view of the fact that neither the decision to sell
nor the sale proceedings were unreasonable, unjust or
unfair, it cannot be held that the petitioner’s rights, if
any, under Article 14 are violated. The learned Attorney
General contended that arbitrariness would be actionable
under Article 32, only if it causes injury to the
fundamental rights of the petitioner, and that the
petitioners in the instant case have no fundamental right in
the exercise of which they can challenge the sale. We
consider it unnecessary to examine this contention because
the sale is not vitiated by any unfairness or arbitrariness.
If and when a sale of public property is found to be
vitiated by arbitrariness or mala fides, it would be
necessary to consider the larger question as to who has the
right to complain of it.
That disposes of the question as regards the
maintainability of the writ petition. But, we feel concerned
to point out that the maintainability of a writ petition
which is correlated to the existence and violation of a
fundamental right is not always to be confused with the
locus to bring a proceeding under Article 32. These two
matters often mingle and coalesce with the result that it
becomes difficult to consider them in water-tight
compartments. The question whether a person has the locus to
file a proceeding depends mostly and often on whether he
possesses a legal right and that right is violated. But, in
an appropriate case, it may become necessary in the changing
awareness of legal rights and social obligations to take a
broader view of the question of locus to initiate a
proceeding be it under Article 226 or under Article 32 of
the Constitution. If public property is dissipated, it would
require a strong argument to convince the Court that
representative segments of the public or at least a section
of the public which is directly interested and affected
would have no right to complain of the infraction of public
duties and obligations. Public enterprises are owned by the
people and those who run them are accountable to the people.
The accountability of the public sector to the Parliament is
66
ineffective because the parliamentary control of public
enterprises is "diffuse and haphazard". We are not too sure
if we would have refused relief to the workers if we had
found that the sale was unjust, unfair or mala fide.
Several decisions were cited before us by the learned
Attorney General, the learned Additional Solicitor General,
Shri A. K. Sen and Shri R. K. Garg on the question of the
maintainability of the writ petition. We consider it
unnecessary to discuss them in view of the fact that we have
come to the conclusion that the petitioner’s fundamental
right under Article 19 (1) (g) to carry on the occupation of
an industrial worker is not affected by the sale, and
similarly, that his fundamental right, if any, under Article
14 of the Constitution has not been violated.
The question as regards ’access to justice’.
particularly under Article 226 of the Constitution, has been
dealt with by Brother Krishna Iyer, at some length, for
which reason I do not consider it necessary to dwell upon
that topic.
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In the result, we dismiss the petition and discharge
the rule. There will be no order as to costs.
KRISHNA IYER, J. This Writ Petition which, in the
forensic unfolding through oral submissions, has exceeded
our expectations, bristles with profound issues of deep
import one of which is the citizen’s legal standing vis a
vis illegal handling of public resources a jurisprudential
area of critical importance but of precedential barrenness
and, therefore, all the more demanding in the developmental
setting and social justice imperatives of Law India. The
learned Chief Justice has considered with care some of the
profound questions covered in the course of the arguments
and it may be supererogation to tread the same territory.
The general factual presentation and legal conclusions of
the learned Chief Justice have our concurrence. Equally, the
approach to Arts. 14 and 32, with its fascinating
expansionism, is of strategic significance, viewed in the
perspective of Third World jurisprudence. Maybe, that while
we broadly agree, our emphasis may differ, our shades of
meaning may vary and, in some places, even our processes of
reasoning may lead us to other destinations. Even so, a
general consensus suffices and we desist from dealing with
all the points discussed by our learned brothers.
Nevertheless, some problems of seminal significance
affecting the adjectival law are of such compelling
futuristic impact that we shall examine them alone in our
separate opinion.
67
The facts have been stated, the arguments have been
indicated and that helps us to plunge straight into the
points we propose to consider. Briefly, a Government company
has gone through the long exercise of selling and allegedly
obsolescent steel plant for junk price, after receiving
tenders, holding discussions, making modifications and
ultimately settling the sale in favour of Ganpatrai Aggarwal
of Calcutta. In this process, two decisions were taken; the
first was a policy decision to sell a substantial plant,
part of which could have been salvaged, as if the entire
material were scrap; the second question which the company
decided was to call for tenders but to settle the sale, not
exactly as originally intended, but with many changes,
negotiations and alterations, so much so, while the maximum
offer in the first round was for over Rs. 7 crores the
actual offer which was accepted was for Rs. 4 crores and
odd, the difference being explained by the respondents on
the score that many items included in the original proposal
to sell had since been withdrawn.
When a plant is shut down, as in this case, it has
been, for reasons the merits of which we do not propose to
scrutinise, the workers employed in it are ordinarily thrown
out of employment. Assuming some patch-work arrangement to
give lingering employment for some time more were offered as
a measure of alleviation, that certainly is not equal to the
steady and assured service in a public sector undertaking
which is a Government company owned entirely by the
President of India. Their economic fortunes and employment
status are affected by the amputation of a limb of the
company. These workers have invoked the jurisdiction of this
Court under Art. 32 of the Constitution and sought to
demolish through the writ of this Court, both the decision
to sell the plant on the score of obsolescence and the
dubious manner of sale which, in their submission, has
resulted in colossal loss to the public exchequer and,
vicariously, to the citizenry of the country, including, a
fortiori, the workers in the enterprise. Two questions
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incidentally arise: Have the workers locus standi under Art.
32, which is a special jurisdiction confined to enforcement
of fundamental rights ? What, if any, are the fundamental
rights of workmen affected by the employer’s sale of
machinery whose mediate impact may be conversion of
permanent employment into precarious service and eventual
exit ? Lastly, but most importantly, where does the citizen
stand, in the context of the democracy of judicial remedies,
absent an ombudsman? In the face of (rare, yet real) misuse
of administrative power to play ducks and drakes with the
public exchequer, especially where developmental expansion
necessarily involves astronomical expenditure and
concomitant corruption, do public bodies enjoy immunity from
challenge save through the post
68
mortem of parliamentary organs. What is the role of the
judicial process, read in the light of the dynamics of legal
control and corporate autonomy ? This juristic field is
virgin but is also heuristic challenge, so that law must
meet life in this critical yet sensitive issue. The active
co-existence of public sector autonomy, so vital to
effective business management, and judicial control of
public power tending to berserk, is one of the creative
claims upon functional jurisprudence.
The Court cannot wait and, despite allergy to minimal
decisional law-making in vacant spaces, the rule of law in
this virgin area cannot leave the fertile field fallow.
Judicial, though interstitial, law-making is needed in
this field. "Many of the judges of England have said that
they do not make law. They only interpret it. This is an
illusion they have fostered. But it is notion which is now
being discarded everywhere. Every new decision- on every new
situation-is a development of the law. Law does not stand
still. It moves continually." We have no doubt that public
law, as part of the panorama of the developmental process,
must possess the specific techniques of public sector
control within well defined parameters which will
anathematise administration by court writ and interdict
public officials handling public resources in disregard of
normative essentials and constitutional fundamentals.
The functional future of the rule of law in our country
depends on the fulfillment of the words of Chief Justice
Earl Warren: Our Judges are not monks or scientists, but
participants in the living stream of national life . Our
system faces no theoretical dilemma, but a single continuous
problem; how to apply to ever-changing conditions the never-
changing principles of freedom". The Indian citizen does
expect some cybernetic system or ombudsman Mechanism whereby
power geared to public good does not betray the goals of
social engineering. The jural postulates which are an
imperative of our Independence and planned development
assume this command function of the law It is good that we
state the inter-action between planning and law in the words
of Prof. Berman:
"Plan is that aspect of the social process which
is concerned with the maximum utilization of
institutions and resources from the point of view of
economic development; law is that aspect of the social
process which is concerned
69
with the structuring and enforcing of social policy
(plan) in terms of the rights and duties therefrom".
Our national reconstruction involves an enormous
increase in public sector operations in fulfillment of the
paramount directives of Part IV of the Constitution. In a
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society in which the State had thrust upon it the imperative
of effectuating massive transformation of economy and social
structure the demands upon the legal order to inhibit
administrative evils and engineer developmental progress are
enormous, though novel. The present case, whatever the
merits and the ultimate conclusion, does raise the deeper
issue of the dynamics of social justice vis-a-vis the role
of the Rule of Law where the public sector occupies the
commanding heights of the national economy and yet asserts a
right to be free from judicial review. That cannot be. While
it is unnecessary for us to spell out in greater detail the
emergence of a new branch of administrative law in relation
to the national plan and the public sector of the economy.
It is important to underscore the vital departure from the
pattern of judicial review in the Anglo American legal
environment because the demands of development obligated by
Part IV compel creative extensions to control jurisprudence
in many fields, including business administrative law,
contract law, penal law, fiscal law and the like.
Robert Siedmann, dealing with the law of economic
development in Sub-Saharan Africa has dealt with the
maintenance of legality in a developmental setting with
focus on stability and change and the evolution of new norms
of constitutional and administrative law. He rightly
stresses what applies to India as well:
"If there are to be some reasonable norms for
administrative behaviour in Africa, the formulation of
codes of administrative law is desirable. But such
codes are not self-enforcing; without institutional
devices to support them, they become meaningless."
He continues to make certain observations on the enforcement
on the regime of legality and their importance for the
Indian scene:
"If the tone of public life is sufficiently honest
and fair-minded, formal norms are relatively unneeded.
That is not the position in Africa; on the contrary,
there is a notable lack of restraints upon the exercise
of state power. This betrays itself most blatantly in
the widespread corruption that seems
70
to exist, especially in West Africa. When corruption
permeates the entire fabric of government, legality is
the first sufferer, for state power is exercised on
grounds unrelated to its nominal purposes.
In English-speaking Africa, the devices for the
enforcement of the few standards of administrative
probity that exist are in the common-law tradition. In
some cases there are internal administrative appeals.
Resort to the courts for relief is theoretically
available if an ascertainable norm has been violated.
Relief can be sought in a civil action brought by the
extreme cases, in a criminal action brought by the
director of public prosecutions.
The civil remedies for administrative wrongdoing
thus depend upon the action of individual citizens. In
such an action, the individual is pitted against the
State-always an unequal contest. The individual does
not have even the few procedural devices that the
common law imports into criminal actions to try to
redress the balance. At his own expense, he must
challenge the vast panoply of State power with all its
resources in personnel, money, and legal talent, by a
civil action for a declaratory judgment or for an
extraordinary remedy-injunction, writ of mandamus, or
writ of prohibition. Aside from the manifold technical
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insufficiencies of these forms of action, the financial
impediments to such an action are staggering. As a
result of these impediments, in the United States,
where almost the sole institutional protection against
administrative error or arbitrariness is such an
action, usually only great corporations or individuals
who are supported by large voluntary associations have
been able to carry through litigation. To rely upon
such individual actions as the primary means of
policing administrative action in Africa is to rely
upon what is nonexistent."
A pragmatic approach to social justice compels us to
interpret constitutional provisions, including those like
Arts. 32 and 226, with a view to see that effective policing
of the corridors of power is carried out by the court until
other ombudsman arrangements a problem with which Parliament
has been wrestling for too long-emerges. I have dwelt at a
little length on this policy aspect and the court process
because the learned Attorney General challenged the
petitioners locus standi either qua worker or qua citizen to
question
71
in court the wrong doings of the public sector although he
maintained that what had been done by the Corporation was
both bona fide and correct.
We certainly agree that judicial interference with the
Administration cannot be meticulous in our Montesquien
system of separation of powers. The court cannot usurp or
abdicate, and the parameters of judicial review must be
clearly defined and never exceeded. If the Directorate of a
Government company has acted fairly, even if it has faltered
in its wisdom, the court cannot, as a super-auditor, take
the Board of Directors to task. This function is limited to
testing whether the administrative action has been fair and
free from the taint of unreasonableness and has
substantially complied with the norms of procedure set for
it by rules, of public administration.
Assuming that the Government-company has acted mala
fide, or has dissipated public funds, can a common man call
into question in a court the validity of the action by
invocation of Arts. 32 or 226 of the Constitution.? Here, we
come up on the crucial issue of access to justice and the
special limitations of Art. 32 which is the passport to this
Court.
We have no doubt that in a competition between courts
and streets as dispenser of justice, the rule of law must
win the aggrieved person for the law court and wean him from
the lawless street. In simple terms, locus standi must be
liberalised to meet the challenges of the times. Ubi just
ibi remedium must be enlarged to embrace all interests of
public-minded citizens or organisations with serious concern
for conservation of public resources and the direction and
correction of public power so as to promote justice in its
triune facets. Lord Scarman’s warning in his Hamlyn Lectures
lend strength to our view :
"I shall endeavour to show that there are in the
contemporary world challenges, social, political and
economic, which, if the system cannot meet them, will
destroy it. These challenges are not created by
lawyers; they certainly cannot be suppressed by
lawyers: they have to be met either by discarding or by
adjusting the legal system. Which is to be ?"
Lest there should be misapprehension, we wish to keep
the distinction clear between the fundamental right to
enforce fundamental rights and the interest sufficient to
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claim relief under Art. 226 and even under other
jurisdictions. The learned Attorney General almost
72
agreed, under pressure of compelling trends in the
contemporary law of procedure, that Art. 226 may probably
enable the petitioner to seek relief if the facts suggested
by the court hypothetically existed. Shri A. K. Sen also
took up a similar position. I will put aside Art. 32 for a
moment and scan the right under Art. 226. There is nothing
in the provision (unlike under Art. 32) to define ’person
aggrieved’, ’standing’ or ’interest’ that gives access to
the court to seek redress.
The argument is, who are you to ask about the wrong
committed or illegal act of the Corporation if you have
suffered no personal injury to property, body, mind or
reputation ? An officious busybody picking up a stray
dispute or idle peddlar of blackmail-litigation through
abuse of the process of the court cannot be permitted to
pollute the court instrumentality, for private objectives.
Public justice is always and only at the service of public
good, never the servant or janitor of private interest or
personal motive.
Law as I conceive it, is a social auditor and this
audit function can be put into action only when some one
with real public interest ignites the jurisdiction. We
cannot be scared by the fear that all and sundary will be
litigation-happy and waste their time and money and the time
of the court through false and frivolous cases. In a society
where freedoms suffer from atrophy and activism is essential
for participative public justice, some risks have to be
taken and more opportunities opened for the public-minded
citizen to rely on the legal process and not be repelled
from it by narrow pedantry now surrounding locus standi.
Schwartz and H.W.R. Wade wrote in Legal Control of
Government:
"Restrictive rules about standing are in general
inimical to a healthy system of a administrative law.
If a plaintiff with a good case is turned away, merely
because he is not sufficiently affected personally,
that means that some government agency is left free to
violate the law, and that is contrary to the public
interest. Litigants are unlikely to expend their time
and money unless they have some real interest at stake.
In the rare cases where they wish to sue merely out of
public spirit, why should they be discouraged?"
They further observed:
"The problem of standing, or locus standi is
inherent in all legal systems...... But in the United
States, perhaps
73
because of the constitutional basis which the subject
has acquired in federal law it can be discussed as a
single topic. In Britain it is a thing of shreds and
patches, made up of various differing rules which apply
to various different remedies and procedures. It is a
typical product of the untidy system of remedies, each
with its own technicalities, which all British
administrative lawyers would like to see reformed."
We have no doubt that having regard to the conditions in
Third World countries, Cappelletti is right in his stress on
the importance of access:
"The right of effective access to justice has
emerged with the new social rights. Indeed, it is of
paramount importance among these new rights since,
clearly, the enjoyment of traditional as well as new
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social rights presupposes mechanisms for their
effective protection. Such protection, moreover, is
best assured by a workable remedy within the framework
of the judicial system. Effective access to justice can
thus be seen as the most basic requirement-the most
basic ’human right’-of a system which purports to
guarantee legal rights."
The need for a radical approach has been underscored in
New Zealand by Black:
".......today it is unreal to suggest that a
person looks to the law solely to protect his interests
in a narrow sense. It is necessary to do no more than
read the newspapers to see the breadth of the interests
that today’s citizen expects the law to protect-and he
expects the court where necessary to provide that
protection. He is interested in results, not procedural
niceties."
India is an a fortiori case, especially as it suffers
from the pathology of mid Victorian concepts about cause of
action. The Australian Law Reform Commission in its
discussion paper No. 4 has considered the pros and cons and
strongly supported the wider basis for access to justice.
Class-actions will activise the legal process where
individuals cannot approach the court for many reasons. I
quote from the Discussion Paper No. 4 :
74
"Widened standing rules may assist consumers in
attaining relevant injunctive or declaratory relief but
they do not assist in recovering losses inflicted by
illegal trading practices, nor do they threaten the
illegal trader where he is mot hurt, his pocketbook.
The most potent legal instrument in that regard so far
devised is the modern class action, to some an ’engine
of destruction’, to others a mighty force for good.
Consider the New York Commissioner of Consumer Affairs
giving evidence before a United States Senate Committee
in 1970.
’A federal class action law will have more impact
on the market places of the nation than all the myriads
of laws and ordinances against fraud and deception
which are hidden away, in the statute books of the 50
States and their various sub-divisions, put together.
All these laws make fraud illegal. But they have not
made fraud unprofitable. Many of these laws can only be
invoked by administrative agencies, which long ago lost
their concern for the consumer and their appetite for
action.
A Federal class action law...... will put the
power to seek justice in court where it belongs-beyond
the reach of campaign contributors, industry lobbyists,
or Washington lawyers-and it will put power in the
hands of the consumers themselves and in the hands of
their own lawyers, retained by them to represent their
interests alone.’ "
Public interest litigation is part of the process of
participate justice and ’standing’ in Civil litigation of
that pattern must have liberal reception at the judicial
doorsteps. The flood-gates argument has been nailed by the
Australian Law Reforms Commission :
"The idle and whimsical plaintiff, a dilettante
who litigates for a lark, is a specter which haunts the
legal literature, not the courtroom.
A major expressed reason for limiting standing
rights is fear of a spate of actions brought by
busybodies which will unduly extend the resources of
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the courts. No argument is easier put, none more
difficult to rebut. Even if the fear be justified it
does not follow that present restrictions should
75
remain. If proper claims exist it may be necessary to
provide resources for their determination. However, the
issue must be considered.
. . . . Over recent years successive decisions of the
United States Supreme Court have liberalised standing
so as to afford a hearing to any person with a real
interest in the relevant controversy. Surveying the
result in 1973 Professor Scott commented :
’When the floodgates of litigation are opened to
some new class of controversy by a decision it is
notable how rarely one can discern the flood that the
dissentors feared.
Professor Scott went on to point out that the
liberalised standing rules had caused no significant
increase in the number of actions brought, arguing that
parties will not litigate at considerable personal cost
unless they have a real interest in a matter."
We agree with the conclusion of the Commission:
"The moral, perhaps, applies; if the courts
cannot, or will not, give relief to people who are in
fact concerned about a matter then they will resort to
self-held, with grave results for other persons and the
rule of law. Some may reply that if there is no
evidence of a great increase in numbers there is no
evidence of need for enlarged standing rights. The
reply would overlook two considerations. One case may
have a dramatic effect on behaviour in hundreds of
others; this is the whole notion of the legal ’test
case’. Secondly, the mere exposure to possible action
is likely to affect the behaviour of persons who
presently feel themselves immune from legal control".
In the Municipal Council, Ratlam, a bench of this Court
observed:
" ’It is procedural rules’ as this appeal proves,
’which infuse life into substantive rights, which
activate them to make them effective’ .... 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 tradi-
76
tional individualism of locus standi to the community
orientation of public interest litigation, these issues
must be considered. In that sense, the case before us
between the Ratlam Municipality and the citizens of a
ward, is a pathfinder in the field of people’s
involvement in the justicing process, sans which as
Prof. Sikes points the system may ’crumble under the
burden of its own insensitibity’...........
Our judicial system has been aptly described as
follows:
Admirable though it may be, (it) is at once
slow and costly. It is a finished product of great
beauty, but entails an immense sacrifice of time,
money and talent.
This ’beautiful’ system is frequently a luxury; it
tends to give a high quality of justice only when, for
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one reason or another, parties can surmount the
substantial barriers which it erects to most people and
to many types of claims.
Why drive common people to public interest action
? Where Directive Principles have found statutory
expression in Do’s and Dont’s the court will not sit
idly by.......
After all (Australian, 16 November, 1977) was right. We
quote as a concluding thought of benign import for us:-
"Under a banner ’Easier Access to Courts of Law’
the Australian, 16 November 1977 declared:
’Perhaps-and it is only a perhaps-there was once
some justification for restricting access to the courts
to prevent their being bogged down in a morass of
ineffectuality. But today’s better informed, better
educated, more literate and more politically aware
citizens should certainly not be barred from the courts
by tradition. The law can no longer be a closed shop."
In the present case a worker, who, clearly, has an
interest in the industry, brings this action regarding an
alleged wrong-doing by the Board of Management. Article 43A
of the Constitution confers, in principle, partnership
status to workers in industry and we cannot, therefore, be
deterred by technical considerations of corporate
personality to keep out those who seek to remedy wrongs
committed in the management of public sector. Locus standi
and justiciability are different issues, as I have earlier
pointed out. This takes us to the
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question of justiciability of questions like sale of public
property by public bodies. Certainly, it is not part of the
judicial process to examine entrepreneurial activities to
ferret out flaws. The court is least equipped for such
oversights. Nor, indeed, is it a function of the judges in
our constitutional scheme. We do not think that the internal
management, business activity or institutional operation of
public bodies can be subjected to inspection by the Court.
To do so, is incompetent and improper and, therefore, out of
bounds. Nevertheless, the broad parameters of fairness in
administration, bona fides in action, and the fundamental
rules of reasonable management of public business, if
breached, will become justiciable.
If a citizen is no more than a wayfarer or officious
intervener without any interest or concern beyond what
belongs to any one of the 660 million people of this
country, the door of the court will not be ajar for him. But
he belongs to an organisation which has special interest in
the subject matter, if he has some concern deeper than that
of a busybody, he cannot be told off at the gates, although
whether the issue raised by him is justiciable may still
remain to be considered. I, therefore, take the view that
the present petition would clearly have been permissible
under Article 226.
The learned Attorney General drew our attention to Art.
32 and cited decisions to support his contention that only
the petitioner’s fundamental rights could be agitated under
that Article. As the rulings now stand, he is right,
although the question still survives as to whether a
worker’s fundamental right under Art. 14 is not affected
when arbitrary action of the enterprise in which he is
employed ha an impact on his well-being.
The democratisation of judicial remedies which is the
thrust of our separate opinion, induces us to conclude with
a quote :
It was the boast of Augustus that he found Rome of
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brick and left it of marble. But how much nobler will
be the sovereigns boast when he shall have it to say
that he found law dear and left it cheap; found it a
sealed book and left it a living letter; found it the
patrimony of the rich and left it the inheritance of
the poor; found it the two-edged sword of craft and
oppression and left it the staff of honesty and the
shield of innocence.
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Having sought to illumine the half-lit zone of access
jurisprudence, we wish to make it clear that we are not
dealing with the likely application Art. 19(1) (f) or of
Art. 14 which have been raised in the present case because
the learned Chief Justice has held that on the merits the
action of the Corporation is above board. The question which
we reserve may well be considered when an appropriate
occasion arises.
N. K. A. Petition dismissed.
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