case laws under article 21
In Pt. Paramanand Katara vs. Union of India & Ors., 1989 (4) SCC 286. this Court in the context of medico-legal cases. has emphasized the need for rendering immediate medical aid to injured persons to preserve life and the obligations of the State as well as doctors in that regard. This petition filed under Article 32 of the Constitution raises this issue in the context of availability of facilities in Government-hospitals for treatment of persons sustaining serious injuries.
Supreme Court of India
Paschim Banga Khet Mazdoorsamity ... vs State Of West Bengal & Anr on 6 May, 1996
During the pendency of this writ petition in this Court the State Government decided to make a complete and thorough investigation of the incident and take suitable departmental action against the persons responsible for the same and to take suitable remedial measures in order to prevent recurrence of similar incidents. The State Government appointed an Enquiry Committee headed by Shri Justice Lilamoy Ghose, a retired Judge of the Calcutta High Court. The terms and reference of the said Committee were :
"A. Enquiry into the circumstances under which the said Shri Hakim Seikh was denied admission to the State Government hospitals.
B. Fixing responsibilities for dereliction of duties if any, on the part of any Government official in this respect.
C. Recommendations on actions against the Government officials who have found wanting in the discharge of their official duties in this respect.
D. Recommendations on actions that should be taken by the State Government to rule out the recurrence of such incident in future and to ensure immediate medical attention and treatment to patients in real need."
The Committee submitted its report dated March 21, 1995. In the said report, the Committee, after examining the relevant record at the various hospitals, has found :
i) The Primary Health Centre at Mathurapur was not very much equipped to deal with such types of serious patients and the nurses at the Centre attended on Hakim Seikh and gave some treatment.
ii) At the N.R.S. Medical College Hospital Hakim Seikh was registered, Registration No. 63649, but no time was mentioned. The admission register of the said hospital shows that one patient was admitted at 12.15 A.M. on July 9, 1992 and another patient was admitted at 4.20 A.M. on July 9, 1992. There could not have been any discharge during the odd hours i.e. between the time when Hakim Seikh was taken to the said hospital and 4.20 A.M. on July 9, 1992. If two other patients were admitted after Hakim Seikh was taken there and it was not understandable why Hakim Seikh was not admitted since it is not disputed that the condition of Hakim Seikh was grave. Even in excess of the sanctioned beds some patients were kept on the trolley beds in the morning and that even if it was dangerous to keep a patient with head injuries on trolley bed he could very well be kept for the time being on the floor and could be transferred to the cold ward, as the situation demanded, temporarily. The Emergency Medical Officer concerned should have taken some measure to admit Hakim Seikh and he is, therefore, responsible for his non-admission in the said Hospital. The Superintendent of the hospital should have taken some measures to give guidelines to the respective medical officers so that a patient is not refused admission although his condition is grave and the Superintendent of the N.R.S. Medical College is also, to some extent, responsible in a general way.
(iii) Hakim Seikh should not have been refused admission in the Medical College Hospital, Calcutta when the condition was so grave. In not accommodating Hakim Seikh the Emergency medical Officer of the said Hospital is responsible. He should have contacted the superior authority over the telephone if there was any stringency as to the beds available and admit the patient inspite of total sanctioned beds not having been available. The Superintendent should have given guidelines to the respective medical officers for admitting serious cases under any circumstances and thus in a way the Superintendent was responsible for this general administration.
(iv) At the National Medical College Hospital, Calcutta the relevant admission register was missing and in the absence of the same the responsibility could not be fixed on the Emergency Medical Officer concerned. The then Superintendent of the Hospital must be held responsible for this general state of affairs that no provision was made for admitting any patient even if his condition was serious.
(v) The hospital authorities have submitted that Hakim Seikh did not attend the Shambhu Nath Pandit Hospital at all. From the out-door patient ticket it cannot be definitely Said that Hakim Seikh was taken to the said Hospital.
(vi) No responsibility could be fixed on any officer of the Bangur Institute of Neurology because the said Institute does not deal with neuro-surgery emergency cases and it is meant for cold cases only.
(vii) At SSKM Hospital, no record is maintained as to the condition of the patient and the steps taken with regard to his treatment. It is necessary that such record is maintained. Even though the patients inside the ward were in excess of the limit of the sanctioned beds but still some arrangements could be made and admission should not have been refused when the condition was so grave. The Emergency Medical Officer who attended Hakim Seikh should be held responsible for not admitting the patient in the said Hospital and that the Surgeon Superintendent is also in a general way responsible for this unhappy state of affairs and he should have given specific guidelines in that regard.
The Committee has suggested remedial measures to rule out recurrence of such incidents in future and to ensure immediate medical attention and treatment to patients in real need. We will advert to it later. We will first examine whether the failure to provide medical treatment to Hakim Seikh by the Government hospitals in Calcutta has resulted in violation of his rights and, if so, to what relief he is entitled.
The Constitution envisages the establishment of a welfare state at the federal level as well as at the state level. In a welfare state the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare state. The Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Government hospitals run by the State and the medical officers employed therein are duty bound to extend medical assistance for preserving human life. Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21. In the present case there was breach of the said right of Hakim Seikh guaranteed under Article 21 when he was denied treatment at the various Government hospitals which were approached even though his condition was very serious at that time and he was in need of immediate medical attention. Since the said denial of the right of Hakim Seikh guaranteed under Article 21 was by officers of the State in hospitals run by the State the State cannot avoid its responsibility for such denial of the constitutional right of Hakim Seikh. In respect of deprivation of the constitutional rights guaranteed under Part III of the Constitution the position is well settled that adequate compensation can be awarded by the court for such violation by way of redress in proceedings under Articles 32 and 226 of the Constitution. [See : Rudal Sah v. State of Bihar, 1983 (3) SCR 508 Nilabati Behara v. State of Orissa. 1993 (2) SCC 746: Consumer Education and Research Centre v. Union of India, 1995 (3) SCC 42]. Hakim Seikh should, therefore, be suitably compensated for the breach of his right guaranteed under Article 21 of the Constitution. Having regard to the facts and circumstances of the case, we fix the amount of such compensation at Rs. 25,000/-. A sum of Rs. 15,000/- was directed to be paid to Hakim Seikh as interim compensation under the orders of this Court dated April 22, 1994. The balance amount should be paid by respondent No. 1 to Hakim Seikh within one month.
We may now come to the remedial measures to rule out recurrence of such incidents in future and to ensure immediate medical attention and treatment to persons in real need. The Committee has made the following recommendations in this regard :
(i) The Primary Health Centres should attend the patient and give proper medical aid, if equipped.
(ii) At the hospitals the emergency Medical Officer, in consultation with the Specialist concerned on duty in the Emergency Department, should admit a patient whose condition is moribund/serious. If necessary the patient concerned may be kept on the floor or on the trolley beds and then loan can be taken from the cold ward. Subsequent necessary adjustment should be made by the hospital authorities by way of transfer/discharge.
(iii) A Central Bed Bureau should be set up which should be equipped with wireless or other communication facilities to find out where a particular emergency patient can be accommodated when a particular hospital finds itself absolutely helpless to admit a patient because of physical limitations. In such cases the hospital concerned should contact immediately the Central Bed Bureau which will communicate with the other hospitals and decide in which hospital an emergency moribund/serious patient is to be admitted.
(iv) Some casualty hospitals or Traumatology Units should be set up at some points on regional basis.
(v) The intermediate group of hospitals, viz., the district, the sub-division and the State General Hospitals should be upgraded so that a patient in a serious condition may get treatment locally.
The recommendations of the Committee have been accepted by the State Government and memorandum dated August 22, 1995 has been issued wherein the following directions have been given for dealing with patients approaching health centres/OPD/Emergency Departments of hospitals :
(1) Proper medical aid within the scope of the equipments and facilities available at Health Centres and Hospitals should be provided to such patients and proper records of such aid provided should be preserved in office. The guiding principle should be to see that no emergency patient is denied medical care. All possibilities should be explored to accommodate emergency patients in serious condition.
(2) Emergency Medical Officers will get in touch with Superintendent/Deputy Superintendent/ Specialist Medical Officer for taking beds on loans from cold wards for accommodating such patients as Extra-temporary measures.
(3) Superintendents of hospitals will issue regulatory guidelines for admitting such patients on internal adjustments amongst various wards and different kinds of beds including cold beds and Will hold regular weekly meetings for monitoring and reviewing the situation. A model of such guidelines is enclosed with this memorandum which may be suitably amended before issue according to local arrangements prevailing in various establishments.
(4) If feasible, such patients should be accommodated in trolley- beds and, even, on the floor when it is absolutely necessary during the exercise towards internal adjustments as referred to at (3) above.
Having regard to the drawbacks in the system of maintenance of admission registers of patients in the hospitals it has been directed that the Superintendents and Medical Officers of the hospitals should take the following actions to regularize the system with a view to avoiding confusion in respect of Admission/Emergency Attendance Registers :
" (a) Clear recording of the name, age, sex, address, disease of the patient by the attending medical officers;
b) Clear recording of date and time of attendance/examination/admission of the patient;
(c) Clear indication whether and where the patient has been admitted, transferred, referred:
(d) Safe custody of the Registers;
(e) Periodical inspection of the arrangement by the Superintendent;
(f) Fixing of responsibility of maintenance and safe custody of the Registers."
With regard to identifying the individual medical officers attending to the individual patient approaching Out Patients' Department/Emergency Department of a hospital on the basis of consulting the hospital records, it has been directed that the following procedure should be followed in future :
"A. A copy of the Duty Roaster of Medical Officers should be preserved in the office of the Superintendent incorporating the modifications done for unavoidable circumstances;
B. Each Department shall maintain a register for recording the signature of attending medical officers denoting their arrival and departure time;
C. The attending medical officer shall write his full name clearly and put his signature in the treatment document;
D. The Superintendent of the hospital shall keep all such records in safe custody;
E. A copy of the ticket issued to the patient should be maintained or the relevant data in this regard should be noted in an appropriate record for future guidance.
It is appreciated that Hospital Superintendent/Medical Officers-in-charge may have difficulty in implementing these guidelines due to various constraints at the ground level and, as such, feed back is vital to enable Government to refine and modify the order as will ensure a valid working plan to regulate admission on a just basis. Detailed comments and, therefore, requested with constructive suggestions."
Shri Muralidhar, the learned counsel appearing for the petitioners, and Shri Rajeev Dhavan, the learned senior counsel appearing for the intervenors, in the course of their submissions, have, however, made certain further suggestions in this regard. Shri Dhavan has submitted that in order to have proper and adequate emergency health services and to create infra-structure for that purpose it is necessary to bear in mind the high risk occasions such as festivals and high risk seasons when there is a greater need for such services. It has also been submitted that the medical facilities available at the Primary Health Centres should be upgraded and the hospitals at the district level should be suitably provided to deal with serious cases and that the number of beds in the hospitals should be increased to meet the growing needs of the population. Shri Dhavan has also suggested that a centralized ambulance service may be created for all the hospitals and that the ambulance should have all the facilities necessary for giving primary medical aid and treatment to the patient. Shri Dhavan has submitted that the emergency units at the hospital should be fully equipped to manage all the emergency cases and the medical officer should be available there round the clock. Shri Dhavan has urged that the denial of treatment to a patient should be specifically made a cognizable Offence and further it should also be made actionable as a tort. In this context Shri Dhavan has invited our attention to the recent developments that have taken place in this field in the United States. There it was found that private hospitals were turning away uninsured indigent persons in need of urgent medical care and these patients were often transferred to, or dumped on public hospitals and the resulting delay or denial of treatment had sometimes disastrous consequences. To meet this situation the U.S.Congress has enacted the Consolidated Omnibus Budget Reconciliation Act of 1986 [for short 'COBRA'] to prevent this practice of dumping of patients by private hospitals. By the said Act all hospitals that receive medicare benefits and maintain emergency rooms are required to perform two tasks before they may transfer or discharge any individual;
(i) the hospital must perform a medical screening examination of all prospective patients, regardless of their ability to pay; (ii) if the hospital determines that a patient suffers from an emergency condition. the law requires the hospital to stabilized that condition and the hospital cannot transfer or discharge an unstabilized patient unless the transfer or discharge an appropriate as defined by the statute. Provision is made for imposing penalties against hospitals or physicians that negligently violate COBRA. In addition the individual who suffers personal harm as a direct result of a participating hospital's violation can bring a civil suit for damages against that hospital. According to Shri Dhavan the standard of care in emergency cases implies three obligations, viz.
(i) screening the patient (ii) stabilizing the patient's condition and (iii) transfer or discharge of the patient for better treatment. The submission of Shri Dhavan is that emergency health services in our country must be provided keeping An view these three requirements.
We have considered the aforesaid submissions urged by Shri Dhavan. A part from the recommendations made by the Committee in that regard and action taken by the State Government in the memorandum dated August 22, 1995 on the basis of the recommendations of the Committee, we are of the view that in order that proper medical facilities are available for dealing with emergency cases it must be that :
1. Adequate facilities are available at the Primary Health Centres where the patient can be given immediate primary treatment so as to stabilize his condition;
2. Hospitals at the district level and Sub-Division level are upgraded so that serious case can be treated there;
3. Facilities for giving specialist treatment are increased and are available at the hospitals at District level and Sub-Division level having regard to the growing needs.
4. In order to ensure availability of bed in an emergency at State level hospitals there is a centralized communication system so that the patient can be sent immediately to the hospital where bed is available in respect of the treatment which is required.
5. Proper arrangement of ambulance is made for transport of a patient from the Primary Health Centre to the District hospital or Sub-Division hospital and from the District hospital or Sub Division hospital to the State hospital.
6. The ambulance is adequately provided with necessary equipment and medical personnel.
7. The Health Centres and the hospitals and the medical personnel attached to these Centres and hospitals are geared to deal with larger number of patients needing emergency treatment on account of higher risk of accidents on certain occasions and in certain seasons.
It is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done. In the context of the constitutional obligation to provide free legal aid to a poor accused this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. [See : Khatri (II) v. State of Bihar, 1981 (1) SCC 627 at p. 631]. The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional obligation of the State to provide medical aid to preserve human life. In the matter of allocation of funds for medical services the said constitutional obligation of the State has to be kept in view. It is necessary that a time-bound plan for providing these services should be chalked out keeping in view the recommendations of the Committee as well as the requirements for ensuring availability of proper medical services in this regard as indicated by us and steps should be taken to implement the same. The State of West Bengal alone is a party to these proceedings. Other States, though not parties, should also take necessary steps in the light of the recommendations made by the Committee, the directions contained in the Memorandum of the Government of West Bengal dated August 22, 1995 and the further directions given herein.
The Union of India is a party to these proceedings. Since it is the joint obligation of the Centre as well as the States to provide medical services it is expected that the Union of India would render the necessary assistance in the improvement of the medical services in the country on these lines.
As regards the medical officers who have been found to be responsible for the lapse resulting in denial of immediate medical aid to Hakim Seikh it is expected that the State Government will take appropriate administrative action against those officers.
After the decision of a Constitution Bench of the Supreme Court in Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, wherein the following observations were made by Chandrachud, C.J. speaking for the Court in paragraph 32 : --
"If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation......... Deprive a person of his right to livelihood and you shall have deprived him of his life.........".
Supreme Court of India
Delhi Development Horticulture ... vs Delhi Administration, Delhi And ... on 4 February, 1992
There is no doubt that broadly interpreted and as a necessary logical corollary, right to life would include the right to livelihood and, therefore, right to work. It is for this reason that this Court in Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors., AIR 1986 SC 180, while considering the consequences of eviction of the pavement dwellers had pointed out that in that case the eviction not merely resulted in deprivation of shelter but also deprivation of livelihood inasmuch as the pavement dwellers were employed in the vicinity of their dwellings. The Court had, therefore, emphasised that the problem of eviction of the pavement dwellers had to be viewed also in that context. This was, however, in the context of Article 21 which seeks to protect persons against the deprivation of their life except according to procedure established by law. This country has so far not found it feasible to incorporate the right to livelihood as a fundamental right in the Constitution. This is because the country has so far not attained the capacity to guarantee it, and not because it considers it any the less fundamental to life. Advisedly, therefore, it has been placed in the Chapter on Directive Principles Article 41 of which enjoins upon the State to make effective provision for securing the same "within the limits of its economic capacity and development". Thus even while giving the direction to the State to ensure the right to work, the Constitution-makers thought it prudent not to do so without qualifying it.
Supreme Court of India
Vikram Deo Singh Tomar vs State Of Bihar on 2 August, 1988
India is a welfare State governed by a Constitution which holds the pride of place in the hearts of its citizens. It lays special emphasis on the protection and well-being of the weaker sections of society and seeks to improve their economic and social status on the basis of constitutional guarantees spelled out in its provisions. It shows a particular regard for women and children, and notwithstanding the pervasive ethos of the doctrine of equality it contemplates special provision being made for them by law. This is only to be expected when an enlightened constitutional system takes charge of the political and socio-economic governance of a society, which has for centuries witnessed the relegation of women to a place far below their due. We live in an age when this Court has demonstrated, while interpreting Article 21 of the Constitution, that every person is entitled to a quality of life consistent with his human personality. The right to live with human dignity is the fundamental right of every Indian citizen. And. so, in the discharge of its responsibilities to the people, the State recognises the need for maintaining establishments for the care of those unfortunates, both women and children, who are the castaways of an imperfect social order and for whom, therefore, of necessary provision must be made for their protection and welfare. Both common humanity and considerations of law and order require the State to do so. To abide by the constitutional standards recognised by well-accepted principle, it is incumbent upon the State when assigning women and children to these establishments, euphemistically described as "Care Home", to provide at least the minimum conditions ensuring human dignity. What we see before us in the instant case is a crowded hovel, in which a large number of human beings have been thrown together, compelled to subsist in conditions of animal survival, conditions which blatantly deny their basic humanity. How else shall we describe an establishment where women are detained in miserable conditions, compelling most of them to sleep on broken floors, in damp and dank conditions, with no covering whatever to protect them from the chill wind and near freezing temperatures of the north Indian winter, who are fed a wretched health-denying diet, are denied the basic amenities of convenient toilets and a private bathing place, who, if they complain, are beaten up, and although attacked by disease and illness are unable to find timely medical relief. It is clear that the Welfare Department of the State Government of Bihar views its responsibilities in regard to these women with a lightness which ill befits its existence and the public funds appropriated to it. The name of "Care Home" given to these establishments is an ironic misnomer. The primitive conditions in which the inmates are compelled to live shock the conscience.
In the circumstances, we think it necessary to direct the State Government to provide suitable alternative accommodation expeditiously for housing the inmates of the present "Care Home". It is said that the State Government has given two acres of land near the Ganga bridge at Patna to the Welfare Department for putting up a complex as a "Care Home" and for shifting to it such inmates as are also housed in a Government building. It is stated that the Welfare Department has sanctioned 31.10 lakhs for establising a Care Home in the building and that Rs. 12 lakhs have been allocated for constructing the building. We do not know how long it will take for the new building to be ready. It is necessary meanwhile to put the existing building, in which the inmates are presently housed, into proper order immediately, and for that purpose to renovate the building and provide sufficient amenities by way of living rooms, bathrooms and toilets within the building, and also to provide adequate water and electricity. A suitable range of furniture including Cots must be provided at once, and an adequate number of blankets and sheets, besides clothing, must be supplied to the inmates. We note that the Welfare Department has stated that the allowance of the inmates is being increased from Rs. 150 per month to Rs. 200 per month and that besides they will be provided such amenities as Soap, oil and other toilet requisites. The Welfare Department of the State Government will take immediate steps to comply with the directions we have framed for the welfare of the inmates of the Care Home. We direct the Welfare Department further to appoint a full time Superintendent to take care of the Home, and to ensure that a Doctor visits the Home daily.
We are constrained to note also that the inmates have been committed to the care of this Home under orders issued by various Courts in Bihar or by different Executive authorities. The Welfare Department will submit a report within one month from today detailing the particulars of these cases and mentioning the judicial or executive authority concerned to the High Court, and the High Court will thereupon issue necessary instructions to the pertinent District authority for taking appropriate steps in the different cases for their early disposal.
Supreme Court of India
Consumer Education & Research ... vs Union Of India & Others on 27 January, 1995
24. The expression 'life' assured in Art.21 of the Constitution does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to livelihood, better standard of life, hygienic conditions in work place and leisure. In Olga Tellis v. Bombay Municipal Corporation, 1985(3) SCC 545, this Court held that no person can live without the means of living i.e. means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content of meaningfulness but it would make life impossible to live, leave aside what makes life liveable. The right to life with human dignity encompasses within its fold, some of the finer facets of human civilisation which makes life worth living. The expanded connotation of life would mean the tradition and cultural heritage of the persons concerned. In State of H.P. v. Umed Ram Sharma, (1986)2 SCC 68, this Court held that the right to life includes the quality of life as understood in its richness and fullness by the ambit of the constitution. Access to road was held to be an access to life itself in that state.
25.In Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, considering the effect of solitary confinement of a prisoner sentenced to death and the meaning of the word 'life' enshrined under Article 21, the Constitution Bench held that the quality of-life covered by Article 21 is something more than the dynamic meaning attached to life and liberty. The same view was reiterated in Board of Trustees of the port of Bombay v. D.R. Nadkarni, (1983) 1 SCC 124, Vikrant Deo Singh Tomar v. State of Bihar, (1988) Suppl.SCC 734, R. Autyanuprasi v. Union of India, (1989)1 Suppl. SCC 251. In Charles Sobraj v. Supdt. Central Jail, Tihar, AIR 1978 SC 1514, this Court held that the right to life includes right to human dignity. The right against torture, cruel or unusual punishment or degraded treatment was held to violate the right to life. In Bandhua Mukti Morcha v. Union of In- dia, (1984) 3 SCC 161 at 183-84, this Court held that the right to live with human dignity, enshrined in Article 21, derives its life-breath from the directive principles of the State policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42. In C.E.S.C. Ltd. & Ors. v. Subhash Chandra Bose, 1992(1) SCC 441, considered the gamut of operational efficacy of Human Rights and the constitutional rights, the right to medical aid and health and held that the right to social justice are fundamental rights. Right to free legal aid to the poor and indigent worker was held to be a fundamental right in Khatri (11) v. State of Bihar, (1981)1 SCC 627. Right to education was held to be a fundmental right vide Maharashtra State B.O.S. & H.S. Education v. K.S. Gandhi, 1991(2) SCC 716. and Unni Krishnan v. State of A.P., (1993)1 SCC 645.
26. The right to health to a worker is an integral facet of meaningful right to life to have not only a meaningful existence but also robust health and vigour without which worker would lead life of misery. Lack of health denudes his livelihood. Compelling economic necessity to work in an industry exposed to health hazards due to indigence to bread-winning to himself and his dependents, should not be at the cost of the health and vigour of the workman. Facilities and opportunities, as enjoined in Article 38, should be provided to protect the health of the workman. Provision for medical test and treatment invigorates the health of the worker for higher production or efficient service. Continued treatment, while in service or after retirement is a moral, legal and constitutional concomitant duty of the employer and the State. Therefore, it must be held that the right to health and medical care is a fundamental right under Article 21 read with Articles 39(c), 41 and 43 of the Constitution and make the life of the workman meaningful and purposeful with dignity of person. Right to life includes protection of the health and strength of the worker is a minimum requirement to enable a person to live with human dignity. The State, be it Union or State government or an industry, public or private, is enjoined to take all such action which will promote health, strength and vigour of the workman during the period of employment and leisure and health even after retirement as basic essentials to live the life with health and happiness. The health and strength of the worker is an integral facet of right to life. Denial thereof denudes the workman the finer facets of life violating Art.21. The right to human dignity, development of personality, social protection, right to rest and leisure are fundamental human rights to a workman assured by the Charter of Human Rights, in the Preamble and Arts.38 and 39 of the Constitution. Facilities for medical care and health against sickness ensures stable manpower for economic development and would generate devotion to duty and dedication to give the workers' best physically as well as mentally in production of goods or services. Health of the worker enables him to enjoy the fruit of his labour, keeping him physically fit and mentally alert for leading a successful life, economically, socially and culturally. Medical facilities to protect the health of the workers are, therefore, the fundamental and human rights to the workmen.
27. Therefore, we hold that right to health, medical aid to protect the health and vigour to a worker while in service or post retirement is a fundamental right under Article 21, read with Articles 39(e), 41, 43, 48A and all related Articles and fundamental human rights to make the life of the workman meaningful and purposeful with dignity of person.
28. In M. C. Mehta v. Union of India, (1987) 4 SCC 463, when tanneries were discharging effluents into the river Ganges, this Court, in a public interest litigation, while directing to implement Water (Prevention and Control of Pollution) Act or Environment (Protection) Act, prevented the tanneries etc. by appropriate directions from discharging effluents into the river Ganga, directed establishment of primary treatment plants etc. and such of these industries that did not comply with the directions were ordered to be closed. when ecological balance was getting upset by destroying forest due to working the mines, this Court directed closer of the mines. In Pt Parmanand Katara v. Union of India, (1989)4 SCC 286, Ohs court directed even private doctors or hospitals to extend ser- vices to protect the life of the patient, be an innocent or a criminal liable for punishment in accordance with law. In National Textile Workers' Union v. P.R. Ramakrishnan, 1983(1) SCR 922, the Constitution Bench, per majority, held that the role of a company in modem economy and their increasing impact of individuals and groups through the ramifications of their activities, began to be increasingly recognised. The socio-economic objectives set out in Part IV of the constitution guide and shape the new corporate phi-
losophy. "Today social scientists and thinkers regard a company as a living vital and dynamic social organism with firm and deep rooted affiliations with the rest of the community in which it functions. It would be wrong to look upon it as something belonging to the shareholders." It was further held that "it is not only the shareholders who have supplied capital who are interested in the enterprise which is being run by a company but the workers who supply labour are also equally, if not, more interested because what is produced by the enterprise is the result of labour as well as capital. In fact, the owners of capital bear only limited financial risk and otherwise contribute nothing to production while labour contributes a major share of the product. While the former invest only a part of their moneys, the latter invest their sweat and toil, in fact their life itself. The workers, therefore, have a special place in a socialist pattern of society. They are not mere vendors of toil, they are not a marketable commodity to be purchased by the owners of capital. They are producers of wealth as much as capital nay very much more. They supply labour without which capital would be impotent and they, at the least, equal partners with capital in the enterprise. Our constitution has shown profound concern for the workers and given them a pride of place in the new socioeconomic order envisaged in the Preamble and the Directive Principles of State Policy. The Preamble contains the profound declaration pregnant with meaning and hope for millions of peasants and workers that India shall be a socialist demo- cratic republic where social and economic justice will inform all the institutions of national life and there will be equality of status and opportunity for all and every endeavour shall be made to promote fraternity ensuring the dignity of the individual. " In that case, the question was whether the labour is entitled to be heard before a company is closed and liquidator is appointed. In considering that question vis-a-vis Article 43-A of the constitution, this Court, per majority, held that they are entitled to be heard before appointing a liquidator in a winding up proceedings of the company.
29. In Workmen of Meenakshi Mills Lid v. Meenakshi Mills Ltd. (1992) 3 SC(: 3 36, a Bench of three Judges considered the vires of Section 25-N of the Industrial Disputes Act on the anvil of Article 19(1)(f) of the Constituion. It was held that the right of the Management under Article 19(1)(f) is subject to the mandates contained in Articles 38, 39-A, 41 and 43. Accordingly, the fundamental right, under Article 19(1)(g) was held to be subject to the directive principles and s.25-N does not suffer from the vice of unconstitutionality.
30. It would thus be clear that in an appropriate case, the Court would give appropriate directions to the employer, be it the State or its undertaking or-private employer to make the right to life meaningful; to prevent pollution of work place; protection of the environment; protection of the health of the workman or to preserve free and unpolluted water for the safety and health of the people. The authorities or even private persons or industry are bound by the directions issued by this Court under Article 32 and Article 142 of the Constitution.
31. Yet another contentions of the petitioners is that the workman affected by asbestosis are suffering from lung cancer and related ailments and they were not properly diagnosed. They be sent to national institute and such of those found suffering from diseases developed due to asbestos, proper compensation paid. It is needless to reiterate that they need to be re-examined and cause for the disease and the nature of the disease diagnosed. Thereon each one of them whether entitled to damages? The employer is vicariously liable to pay damages is unquestionable. The award of compensation in proceedings under Article 32 or 226 is a remedy available in public law. In Rudul Sah v. State of Bihar, 1983(3) SCR 508, it was held that this Court under Article 32 can grant compensation for the deprivation of personal liberty, though ordinary process of court, may be available to enforce the right and money claim could be granted by this Court. Accordingly compensation was awarded. This view was reiterated in Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 and awarded monetary com- pensation for custodial death lifting the State immunity from the purview of public law. It is, therefore, settled law that in public law claim for compensation is a remedy available under Article 32 or 226 for the enforcement and protection of fundamental and human rights. The defence of sovereign immunity is inapplicable and alien to the concept of guarantee of fundamental rights. Them is no question of de fence being available for constitutional remedy. It is a practical and inexpensive mode of redress available for the contravention made by the State, its servants, it instrumentalities, a company or a person in the purported exercise of their powers and enforcement of the rights claimed either under the statutes or licence issued under the statute or for the enforcement of any right or duty under the constitution or the law.
32. The Government of India issued model Rule 123-A under the Factories Act for adoption. Under the directions issued by this Court from time to time, all the State governments have by now amended their respective rules and adopted the same as part of it but still there are yearning gaps in their effective implementation in that behalf. It is, therefore, necessary to issue appropriate directions. In the light of the rules "All Safety in the Use of Asbestos" issued by the I.L.O., the same shall be binding on all the industries. As a fact, the 13th respondent-Ferodo Ltd admitted in its written submissions that all the major industries in India have formed an association called the "Asbestos Information Centre" (AIC) affiliated to the As- bestos International Association(AIA), London. The AIA has been publishing a code of conduct for its members in accor- dance with the international practice and all the members of AIC have been following the same. In view of that admission, they are bound by the directions issued by the ILO referred to in the body of the judgment. In that view, it is not necessary to issue any direction to Union or State Governments to constitute a committee to convert the dry process of manufacturing into wet process but they are bound by the rules not only specifically referred to in the judg- ment but all the rules in that behalf in the above I.L.O. rules. The Employees State Insurance Act and the Workmen's Compensation Act provide for payment of mandatory compensation for the injury or death caused to the workman while in employment. Since the Act does not provide for payment of compensation after cessation of employment, it becomes necessary to protect such persons from the respective dates of cessation of their employment till date. Liquidated damages by way of compensation are accepted principles of compensation. In the light of the law above laid down and also on the doctrine of tortuous liability, the respective factories or companies shall be bound to compensate the workmen for the health hazards which is the cause for the disease with which the workmen are suffering from or had suffered pending the writ petitions. Therefore, the factory or establishment shall be responsible to pay liquidated damages to the concerned workmen.
RIGHT TO SHELTER - CONSTITUTIONAL PERSPECTIVES
In a catena of decisions, the Supreme Court has enlarged the meaning of life under Article 21 of the Constitution to include within its ambit, the right to shelter. In some of the cases upholding the right to shelter the Court looked at differentiating between a man animal-like existence and a decent human existence thereby emphasizing the need for respected life.
Upholding the importance of the right to a decent environment and a reasonable accommodation, in Shantistar Builders v. Narayan Khimalal Totame, (1990) 1 SCC 520 the Court held that, (para 9) "The right to life would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body, for a human being it has to be a suitable accommodation, which would allow him to grow in every aspect - physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well-built comfortable house but a reasonable home particularly for people in India can even be mud-built thatched house or a mud-built fireproof accommodation."
In PG Gupta v. State of Gujarat and Ors, 1995 Supp. (2) SCC 182, in 1994, the Court went further holding that the Right to shelter in Article 19(1) (g) read with Articles 19(1) (e) and 21 included the right to residence and settlement. Protection of life guaranteed by Article 21 encompasses within its ambit the right to shelter to enjoy the meaningful right to life. The right to residence and settlement was seen as a fundamental right under Article 19(1)(e) and as a facet of inseparable meaningful right to life as available under Article 21.
In Chameli Singh V. State of U.P., (1996) 2 SCC 549 a Bench of three Judges of Supreme Court had considered and held that the right to shelter is a fundamental right available to every citizen and it was read into Article 21 of the Constitution of India as encompassing within its ambit, the right to shelter to make the right to life more meaningful. It has been held thus: (para 8) "In any organized society, right to live as a human being is not ensured by meeting only the animal need of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions, which inhibit his growth. All human rights are designed to achieve this object. Right to life guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilized society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights."
Emphasizing further on the right to shelter, the Court in this case held that, (para 8) "Shelter for a human being, therefore, is not a mere protection of his life and limb. It is however where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one‟s head but right to all the infrastructure necessary to enable them to live and develop as a human being. Right to shelter when used as an essential requisite to the right to live should be deemed to have been guaranteed as a fundamental right. As is enjoined in the Directive Principles, the State should be deemed to be under an obligation to secure it for its citizens, of course subject to its economic budgeting. In a democratic society as a member of the organized civic community one should have permanent shelter so as to a physically, mentally and intellectually equip oneself to improve his excellence as a useful citizen as enjoined in the Fundamental Duties and to be a useful citizen and equal participant in democracy. The ultimate object of making a man equipped with a right to dignity of person and equality of status is to enable him to develop himself into a cultural being. Want of decent residence, therefore, frustrate the very object of the constitutional animation of right to equity, economic justice, fundamental right to residence, dignity of person and right to live itself."
In Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan (supra) (relevant paras 10, 12, 25) Supreme Court observed:
"... It would, therefore, be clear that though no person has a right to encroach and erect structures or otherwise on footpaths, pavements or public streets or any other place reserved or earmarked for a public purpose, the State has the constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter over their heads to make the right to life meaningful, effective and fruitful ........ The deprivation of the right to life in that context would not only denude life of effective content and meaningfulness but if would make life miserable and impossible to live. It would, therefore, be the duty of the State to provide right to shelter to the poor and indigent weaker sections of the society in fulfillment of the constitutional objectives."
Supreme Court of India
State Of Himachal Pradesh & Anr vs Umed Ram Sharma & Ors on 11 February, 1986
It appears to us that in the facts of this case, the controversy lies within a short compass. It is well-settled that the persons who have applied to the High Court by the letter are persons affected by the absence of usable road because they are poor Harijan residents of the area, their access by communication, indeed to life outside is obstructed and/or prevented by the absence of road. The entire State of Himachal Pradesh is in hills and without workable roads, no communication is possible. Every person is entitled to life as enjoined in article 21 of the Constitution and in the facts of this case read in conjunction with article 19(1)(d) of the Constitution and in the background of article 38(2) of the Constitution every person has right under Article 19(1)(d) to move freely throughout the territory of India and he has also the right under article 21 to his life and that right under article 21 embraces not only physical existence of life but the quality of life and for residents of hilly areas, access to road is access to life itself. These propositions are well-settled. We accept the proposition that there should be road for communication in reasonable conditions in view of our Constitutional imperatives and denial of that right would be denial of the life as understood in its richness and fullness by the ambit of the Constitution. To the residents of the hilly areas as far as feasible and possible society has constitutional obligation to provide roads for communication.
The expression 'budget' does not appear as such in the Constitution. It is one of the terms sanctified by usage. So far as the provision for public expenditure is concerned, this must be in consonance with the requirements of the Constitution. The directions of the Court cannot and should not run counter to the specific provisions of the Constitution. In other words, the court cannot arrogate to itself any function which is left to the domain of the other two branches namely, the executive and the legislature.
The provisions regarding the central allocation of funds are contained in articles 112 to 117 of the Constitution with which we are, in the facts of this case, not concerned. We are concerned here with the procedural and financial matters in the State which are dealt with in articles 202 to 207 of the Constitution. It is not necessary to refer in detail to the said articles. It suffices to say that certain expenses are charged on the consolidated fund of the State. Discussions regarding these though take place in the assembly, these are not subject to alterations by the assemblies. It is necessary in this connection to bear in mind the item contained in article 202(3)(e) namely, 'any sums required to satisfy any judgment, decree or award of any court or arbitral tribunal'. Such an expenditure is a charge on the consolidated fund. Therefore, it would have required elaborate consideration, which fortunately in view of the nature of the directions of the court in this case these cannot be termed as decree or judgment of the court for any specific amount. Had it been otherwise it would have required delicate handling, because how far and to what extent the court can be permitted, if at all, to have its order sanctified by making it a charge on the consolidated fund is a matter of some importance and requires serious consideration.
The recommendations apart from those under article 203 (2) shall be submitted in the form of demands for grants to the Legislative Assembly, and the Legislative Assembly shall have power to assent, or to refuse to assent, to any demand, or the assent to any demand subject to any reduction of the amount specified therein. Sub-article (3) of article 203 atipulates that no demand for a grant shall be made except on the recommendation of the Governor.
Under our constitutional set up, the said demand by the Governor in terms of sub-article (3) of Article 203 must be on the recommendation of Council of Ministers. Article 204 deals with the Appropriation Bills. After the passing of the Appropriation Bill, making provision for grants for money which are charged on the consolidated funds should be sanctioned by the Legislature. In case of supplementary, additional or excess grants, these must be in compliance with article 205 of the Constitution which in a sence provides that if any fund is found insufficient for a particular purpose of the year or need has arisen then the Governor i.e. the Government must get sanction to another statement showing the estimated amount of the additional expenditure and such would be the demand for excess grant and would be passed in accordance with the provisions contained in the other articles of the Constitution.
In this case as appears from the Financial Hand-Book of the Himachal Pradesh Budget Manual which provides by paragraph 2.12 the 'Detailed Estimates', in paragraph 2.13 'Demand for Grant', in paragraph 2.15 'Detailed Head' is a division of p minor head which provides that provision should not ordinarily be made under a new detailed head without the prior approval of the Accountant General. men 'Major Head' and 'Minor Head' are defined. Paragraph 2.38 stipulates for 'Supplementary appropriation' which means an addition to the amount included in the schedule of authorised expenditure.
The Budget is presented under Chapter 7 of the said Hand-Book, paragraph 7.4 to the Legislature and as soon as the budget is presented, it is either passed or not in accordance with the detailed requirements contained and stipulated. The power of appropriation out of the allotments is contained in paragraph 10.2.. Chapter 12 deals with the expenditure not provided for in budget estimates - Reappropriations - Supplementary estimates and excess grants. Paragraph 12.1 of Chapter 12 provides that no expenditure shall be incurred which may have the effect of exceeding the total grant of appropriation authorised by the Appropriation Act. In case of additional expenditure, a supplementary Appropriation Bill have to be presented to the Legislature.
There are detailed instructions regarding the preparation, submission etc. Of applications, for re- appropriation. The sum and substance of the said requirements are that total sanction of bill for a project is within the domain of the legislature and the executive has no power to exceed the total sanction without the consent of the legislature and the court cannot impinge upon the field of legislature. me executive, however, on the appreciation of the priorities determine the manner of priorities to be presented to the legislature. The court cannot also, in our opinion, impinge upon the judgment of the executives as to the priorities.
We were taken to the budget allocation in the instant case in the further affidavit filed which provides for instructions for the preparation of re-appropriation as well as appropriation of grants and the High Court was quite conscious of the same. m e High Court has noted that the Superintending Engineer has stated that a sum of Rs. 90,000 would be required for the completion of the widening of the road between 3/060 Kms. and 3/886 Kms. The High Court has suggested that the Superintending Engineer may make a proposal to this effect to the appropriate Government. me High Court has not directed the State Government, as we read the order, to spend Rs.90,000 which clearly in view of the system of budgeting and the budget in this case would be in excess of the annual statement of income and expenditure sanctioned by the legislature. The court could not direct the State Government to spend beyond the sanctioned amount which is in the domain of the legislature in view of the provisions of articles 202 to 207 of the Constitution so far as the State expenditures are concerned. As we read the order, the superintending Engineer as the administrative authority has been directed to carry out the directions of the court for the widening of the road subject to funds being available during the time limit. The financial period has expired. Whatever sum remaining for this financial year, the State Government has assured us that they will carry out such direction. So far as the additional grant of the sum was required, it is entirely in the domain of the legislature to sanction it or not. The members of the legislature know the needs of the people. Under the Constitution, they are authorised and entitled to fix the priorities for the expenditure to satisfy the basic needs of the people, upon the judgment and recommendation of the Executive.
Affirmative action in the form of some remedial measure, in public interest, in the background of the constitutional aspirations as enshrined in article 38 read with articles 19 and 21 of the Constitution by means of judicial directions in cases of executive inaction or slow action is permissible within the limits. me way we read the High Court's order with the clarification indicated does not transgress that limit.
It is necessary to bear in mind that interference with the administration cannot be meticulous in our Constitutional system of separation of power. It is not necessary to express our opinion in this case whether our Constitution is truly based on Montesquien system of separation of power. We accept the position that court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded.
Supreme Court of India
Vishaka & Ors vs State Of Rajasthan & Ors on 13 August, 1997
This Writ Petition has been filed for the enforcement of the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India in view of the prevailing climate in which the violation of these rights is not uncommon. With the increasing awareness and emphasis on gender justice, there is increase in the effort to guard such violations; and the resentment towards incidents of sexual harassment is also increasing. The present petition has been brought as a class action by certain social activists and NGOs with the aim of focussing attention towards this societal aberration, and assisting in finding suitable methods for realisation of the true concept of 'gender equality'; and to prevent sexual harassment of working women in all work places through judicial process, to fill the vacuum in existing legislation.
The GUIDELINES and NORMS prescribed herein are as under:-
HAVING REGARD to the definition of 'human rights' in Section 2(d) of the Protection of Human Rights Act, 1993, TAKING NOTE of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that enactment of such legislation will take considerable time, It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women:
1. Duty of the Employer or other responsible persons in work places and other institutions:
It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
2. Definition:
For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
a) physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical verbal or non-verbal conduct of sexual nature.
Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim's employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.
3. Preventive Steps:
All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
4. Criminal Proceedings:
Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.
In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
5. Disciplinary Action:
Where such conduct amounts to mis-conduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
6. Complaint Mechanism:
Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer's organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
7. Complaints Committee:
The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.
The Complaints Committee should be headed by a woman and not less than half of its member should be women.
Further, to prevent the possibility of any under pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the government department concerned of the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.
8. Workers' Initiative:
Employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.
9. Awareness:
Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in suitable manner.
10. Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.
12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.
Accordingly, we direct that the above guidelines and norms would be strictly observed in all work places for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field. These Writ Petitions are disposed of, accordingly.