ition No 3804 of 1980
Under Article 32 of the Constitution
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 TVS Narasimhachari and M N Shroff for Respondent No 1
M K Banerjee Addl
Genl J B Dadachanji C M Oberoi and K J John for Respondent No 2 A K Sen section section Ray R section 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 CJ section Murtaza Fazal Ali and A D Koshal JJ was delivered by Chandrachud
CJ V R Krishna Iyer J gave a concurring Opinion of his own and on behalf of PN Bhagwati J CHANDRACHUD CJ
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 425 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 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 661 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 Redundantretired 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 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 76 crores
The highest modified offer of Rs 62 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 425 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 76 crores was unaccountably reduced to Rs 425 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
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 191g 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 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 191 g and the other under Article 14 of the Constitution
We find no substance in the grievance that the petitioners  right under Article 191g 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 191g 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 avenues of employment as industrial workers
Article 191 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 191g 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 article 191g
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 76 crores came down to Rs 425 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 6077 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 18319 crores
Thus the long term plan of the Government 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 78723 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 6820 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 228299086 as on April 1 1954 out of which plants equipment machinery etc
were of the value of Rs 146859502 
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 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
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
Techno economic Feasibility Report of Sindri Modernisation Project published by Planning and Development Division 1973 of Fertilizer Corporation of India
Appraisal of Sindri Fertilizer Project India Report of the International Bank for Reconstruction  Development International Development Association published November 1974
Report on Works Transformation and Environmental Study by Ms 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 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
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 articles 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 article 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 incidentally arise Have the workers locus standi under article 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 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 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 articles 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 articles 32 or 226 of the Constitution Here we come up on the crucial issue of access to justice and the special limitations of article 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 claim relief under article 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 article 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 article 32 for a moment and scan the right under article 226
There is nothing in the provision unlike under article 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 HWR 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 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 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 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 77 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 article 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 article 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 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
78 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 article 191 f or of article 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


Summary:
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 reportii the original tender of Rs 76 crores was unaccountably reduced to Rs 425 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 contended that the sale will deprive them of their fundamental right under Article 191 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 article 191g 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 CJ 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 3i
There is no substance in the grievance that the petitioners  right under Article 191g 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 191g of the Constitution
60 G H 61 A 4
Article 191g 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 191g 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
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 8i 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 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 vs Shri Vardhichand and Ors  Wisconsin Law Review Vol
1966 999 at P 1064 and M Cappelletti Rabels Z 1976 669 at 672 referred to