Holding

An enterprise engaged in a hazardous or inherently dangerous activity is absolutely liable to compensate victims, and Article 32 empowers the Court to award such compensation in appropriate cases, while the question of Shriram's status under Article 12 is left for later determination.

Summary

The petitioners filed a writ under Article 32 seeking the closure of Shriram Foods & Fertilizers' hazardous units. During the proceedings oleum gas escaped, prompting the Delhi Legal Aid Board and Delhi Bar Association to file applications for compensation on behalf of victims. The Court examined the scope of Article 32, the applicability of Article 21 to a private corporation engaged in a vital public‑interest industry, and the appropriate liability standard for hazardous enterprises. It held that Article 32 includes remedial powers, can award compensation in exceptional cases, and that letters addressed to individual judges are maintainable. The Court declined to apply the strict liability rule in Rylands v Fletcher, instead imposing absolute liability on the enterprise for any harm caused, with compensation measured by the enterprise's capacity. It directed the Legal Aid Board to pursue compensation claims and provided funds, while postponing a definitive ruling on whether Shriram falls within Article 12.

Issues considered

The scope and ambit of Supreme Court jurisdiction under Article 32 for compensation applications
Whether Article 21 is enforceable against a private corporation (Shriram) engaged in a hazardous industry
Applicability of the Rylands v Fletcher rule of strict liability to hazardous industrial activities in India
The appropriate measure of compensation for injuries caused by such activities
Maintainability of public‑interest litigation letters addressed to individual judges
The Court's power to devise new remedies and award compensation under Article 32

Legislation cited

Subjects

Article 32Article 21Public Interest LitigationStrict LiabilityHazardous IndustryCompensationState Action DoctrineEpistolary JurisdictionEnvironmental LawCorporate Liability

Judgment

M.C. MEHTA AND ANR.
A
v.
UNION OF INDIA & ORS.

DECEMBER 20. 1986

[P.N. BHAGWATI. CJ, RANGANATH MISRA. G.L. OZA, B
M.M. DUTT AND K.N. SINGH, JJ.]

Constitution of India 195()-Artic/es 12 & 21-Private corpora-
tion-Engaged in industry vital to public interest with potential to affect
life and health of people-Whether 'other authority'-Extent of availa-
bility of Article 21.
c
Article 32-Jurisdiction and Power of Court-Not only injunctive
in ambit-Remedial ·in scope and provides relief for infringement of
fundamental right-Power to award compensation.

Public Interest Litigation-Maintainability of-Whether letters D
addressed even to an individual judge entertainable-Whether preferred
form of address applicable-Whether letters to· be supported by
affidavits-Hyper-technical approach to be avoided by the Court-
Court must look at the substance and not the form-Court's power to
collect relevant material and to appoint commissions.
E
Law of Torts-Liability of an enterprise engaged in a hazardous
and inherently dangerous industry for occurrence of accident-Strict
and absolllfe-Quantum of compensation payable for harm caused-
Determination of-Rule laid in Rylands v. Fletcher-Whether applic-
able in India.
F
Jurisprudence-Law-Should 1 keep pace ivith changing socio-
economic norms--Where a law of the past does not fit in to the present
context, Court should evolve new law.

Interpretation of Constitution-Creative and innovative interpre-
tation in consonance with human rights jurisprudence emphasised. G

Interpretation of statutes-Foreign case /a1v-Supre1ne Court of
India not bound to follow.

The petitioners, in this writ petition under Art. 32, sought a direc-
tion for closure of the various units of Shriram Foods & Fertilizers ' H

819
820 SUPREME COURT REPORTS [1987] 1 S.C.R.
'
A Industries on the ground that they were hazardous to the community.
During the pendency of the petition, there was escape of oleum gas from
one of the units of Shriram. The Delhi Legal Aid and Advice Board and
the Delhi Bar Association filed applications for award of compensation
to the persons who had suffered harm on account of escape of oleum
B gas.

A Bench of three Hon'ble Judges while permitting Shriram to
restart its power plant as also other plants subject to certain conditions,
referred the applications for compensation to a larger Bench of five
Judges because issues of great constitutional importance were involved,
namely, (I) What is the scope and ambit of the jurisdiction of the
C Supreme Court under Art. 32 since the applications for compensation
are sought to be maintained under that Article; (2) Whether Art. 2 I is
available against Shriram which is owned by Delhi Cloth Mills Limited,
i
a public company limited by shares and which is engaged in an industry
vital to public interest and with potential to affect the life and health of
0 the people; and (3) What is the measure of liability of an enterprise
which is engaged in an hazardous or inherently dangerous industry, if
by reason of an accident occurring in such industry, persons die or are
injured. Does the rule in Rylands v. Fletcher, (1866 Law Report 1
Exchequer 265) apply or is there any other principle on which the
liability can be determined. -"!'

Disposing of the applications,

HELD: I. The question whether a private corporation like
Shriram would fall within the scope and ambit of Art. 12 so as to be
amenable to the discipline of Art. 21 is left for proper and detailed
F consideration at a later stage if it becomes necessary to do so. [844F-G I

Rajasthan Electricity Board v. Mohan Lal, [1967] 3 SCR 377;
Sukhdev v. Bhagwat Ram, [1975] l SCC 421; Ramanna Shetty v. Inter-
national Airport Authority, [1979] 3 SCR 1014; Ajay Hasia v. Khalid
Mujib, [1981] 2 SCR 79; Som Prakash v. Union of India, [1981] 1
G S.C.C. 449; Appendix I to Industrial Policy Resolution, 1948; Indus-
tries (Development and Regulation) Act, 1951; Delhi Municipal Act,
1957 Water (Prevention and Control of PoUution) Act, 1974; Air (Preven-
tion and Control of PoUution) Act, 1981; Eurasian Equipment and
Chemicals ltd. v. State of West Bengal, [1975] 2 SCR 674; Rasbehari
Panda v. State, [1969] 3 SCR 374; Kasturi Lal Reddy v. State of Jammu
H & Kashmir, [1980] 3 SCR 1338, referred to.
M.C. MEHTA v. UNION OF INDIA 821

2. The Delhi Legal Aid and Advice Board is directed to take up
the cases of all those who claim to have suffered on account of oleum gas A
and to file actions on their behalf in the appropriate Court for claiming
compensation and the Delhi Administration is directed to provide
neces..ary funds to the Board for the purpose. [844G-H; 84SA]

3.(i) Where there is a violation of a fundamental or other legal B
right of a person or class of persons who by reason of poverty or disabi-
lity or socially or economically disadvantaged position cannot approach
a Court of law for justice, it would be open to any public-spirited
individual or social action group to bring an action for vindication of
the fundamental or other legal right of such individual or class of indi-
viduals and this can be done not only by filing regular writ petition
c
... under Art. 226 in the High Court and under Art. 32 in this Court, hut
also by addressing a letter to the Court. [828B-C; E-F]

3.(ii) Even if a letter is addressed to an individual Judge of the
Court, it should be entertained, provided of course it is by or on behalf
of a person in custody or on behalf of a woman or a child or a class or o
deprived or disadvantaged persons. [8298-C)

3.(iii) Letters addressed to individual Justices of this Court
should not be rejected merely because they fail to conform to the prefer-
red form of address nor should the Court adopt a rigid stance that no
letters will be entertained unless they are supported by an affidavit. If E
the Court were to insist on an affidavit as a condition of entertaining the
letters the entire object and purpose of epistolary jurisdiction would be
frustrated because most of the poor and· disadvantaged persons will
then not be able to have easy access to the Court and even the social
action groups will find it difficult to approach the Court. [828H; 829B)

' Bandhua Mukti Morcha v. Union of India & Ors .• [!984) 2 SCR
67; S.P. Gupta v. Union of India, [1981) (Suppl) SCC 87 and Union for
Democratic Rights & Ors. v. Union of India, [1983) I SCR 456, relied
upon.
F

4.(i) Article 32 does not merely confer power on this Court to G
issue direction, order or writ for enforcement of the fundamental rights
but it also lays a constitutional obligation on this Court to protect the
fundamental rights of the people and for that purpose this Court has all
incidental and ancillary powers including the power to forge new re-
medies and fashion new strategies designed to enforce the fundamental
rights. It is in realisation of this constitutional obligation that this Court H
822 SUPREME COURT REPORTS [1987) 1 S.C.R.
)
A has, in the past, innovated new methods and strategies for the purpose
of securing enforcement of the fundamental rights, particularly in the
case of the poor and the disadvantaged who are denied their basic human
rights and to whom freedom and liberty have no meaning. [827F-828A]

4.(ii) The power of the Court is not only injunctive in ambit, that
B
is, preventing the infringement of fundamental right but it is also reme-
dial in scope and provides relief against a breach of the fundamental
right already committed. [830A-B]

4.(iii) The power of the Conrt to grant such remedial relief may
inclnde the power to award compensation in appropriate cases. The
C infringement of the fnndamental right must be gross and patent, that is
incontrovertible and exfacie glaring and either such infringement
should be on a large scale affecting the fundamental rights of a large
number of persons or it should appear unjust or unduly harsh or
oppressing on account of their poverty or disability or socially or
-economically disadvantaged position to require the person or persons
D affected by such infringement to initiate and pursue action in the Civil
Courts. [830D; E-F]

4. (iv) Ordinarily a petition under Art. 32 should not be used as a
substitute for enforcement of the right to claim compensation for in-
fringement of a fundamental right through the ordinary process of Civil
E Court. It is only in exceptional cases that compensation may be awar-
ded in a petition under Art. 32. [830F-G]

4.(v) The applications for compensation in the instant writ peti-
tion are foi' enforcement of the fundamental right to life enshrined in
Art. 21 of the Constitution and while dealing with such applications the
F Court cannot adopt a hyper-technical approach which would defeat the
ends of justice. The Court must look at the substance and not the form.
Therefore, the instant applications for compensation are maintainable
under Art. 32. [827A-B]

Bandhua Mukti Morcha v. Union of India & Ors., (1984] 2 SCR
G 67; S.P. Gupta v. Union of India, (1981] (Suppl.) SCR 87; Union for
Democratic Rights & Ors. v. Union of India, [1983] I SCR 456 and
Rudul Shah v. State of Bihar, AIR 1983 SC 1086, relied upon.

5. The rule in Rylands v. Fletcher (snpra) laid down a principle
of liability that if a person who brings on to his land and collects and
H keeps there anything likely to do harm and such thing escapes and does
M.C. MEHTA v. UNION OF INDIA 823
~
damage to another, he is liable to compensate for the damage caused.
A
This rule applies only to non-natural user of the land and it does not
apply to things naturally on the land or where the escape is due to an act
of God and an act of a stranger or the default of the person injured or
where the thing which escapes is present by the consent of the person
~ injured or in certain cases where there is statutory authority. This rule
evolved in the 19th century at a time when all tbese developments of B
science and technology had not taken place cannot afford any guidance
in evolving any standard of liability consistent with the constitutional
norms and the needs of the present day economy and social structure.
J"' In a modern industrial society with highly developed scientific know-
ledge and technology where hazardous or inherently dangerous indus-
tries are necessary to carry on as part of developmental programme,
·t the Court need not feel inhibited by this rule merely because the new
law does not recognise the rule of strict and absolute liability in case of
c
an enterprise engaged in hazardous and dangerous activity. [842D-G]

Halsburry Laws of England, Vol. 45 Para 1305, relied upon.
D
6.(i) Law has to grow in order to satisfy the needs of the fast
changing society and keep abreast with the economic developments
taking place in the country. Law cannot .afford to remain static. The
--i-- Court cannot allow judicial thinking to be constricted by reference to
the law as it prevails in England or in any other foreign country.
Although this Court should be prepared to receive light from whatever E
source it comes, but it has to build up its own jurisprudence, evolve new
principles and lay down new norms which would adequately deal with
the new problems which arise in a highly industrialised economy. If it is

~
found that it is necessary to construct a new principle of law to deal with
an unusual situation which has arisen and which is likely to aris~ in
future on account of hazardous or inherently dangerous industries F
which are concommitant to an industrial economy the Court should not
hesitate to eYolve such principles of liability merely because it has not
been so done in England. [843A-E]
'
6(ii) This Court has throughout the last few years expanded the
horizon of Art. 12 primarily to inject respect for human-rights and G
social conscience in corporate structure. The purpose of expansion has
not been to destroy the raison d'etre of creating corporations but to
advance the human rights jurisprudence. The apprehension that in-
eluding within the ambit of Art. 12 and thus subjecting to the discipline
of Art. 21 those private corporations whose activities have the potential
of affecting the life and health of the people, would deal a death blow to H
.· 824 SUPREME COURT REPORTS [1987) 1 S.C.R .

A the policy of encouraging and permitting private enterpreneurial acti-
vity is not well founded. It is through creative interpretation and bold
innovation. that the human-rights jurisprudence has been developed in
--_India to a remarkable extent and this forward march of the human-
rights movement cannot be allowed to be halted by unfounded appre-
hensions expressed by status quoists. [841C-E]
B
· 7 .(i) An enterprise which is engaged in a hazardous or inherently
dangerous industry which poses a potential threat to the health and
safety of the persons wo~kin~ in the factory and residing in the sur·
rounding areas owes an absolute non-delegable duty to the community
to ensure that if any harm results to anyone, the enterprise must be held
C to be under an obligation to provide that the hazardous or inherently
dangerous activity must be conducted with the highest standards of
safety and if any harm results on account of such activity the enterprise
must he absolutely liable to compensate for such harm irrespective of
the fact that the enterprise had taken all reasonable care and that the
harm occurred without any negligence on its part. [843E-G)
D r

7.(ii) If the enterprise is permitted to carry on an hazardous or
inherently dangerous activitiy for its profit, the law must presume that
such permission is Conditional on the enterprise absorbing the cost or
any accident arising on account of such activity as an appropriate item
of its overheads. The enterprise alone has the resource to discover and
.E guard against hazards or dangers and to provide warning against po-
. hazards.
tenhal ' [844A-B]

7 .(iii) The measure of c~mpensation in such kind of cases must be
co-related to the magnitude and capacity of the enterprise because such
compensation must have a deterrent effect. The larger and more
F prosperous the. enterprise, the greater must be the amount of compen-
sation payable by it for the harm caused on account of an accident in
carrying on of the hazardous or· inherently dangerous activity by the

I
eri!erprise. [844E-F]

G 8. The historical context in which the American doctrine of State '
action evolved in the united States is irrelevant for the purpose of
Indian Courts, especially in view of Art. 15(2) of the Indian Constitu-
tion. But, it is the principle behind the doctrine of State aid, control and
regulation so impregnating a private activity as to give it the colour of
State action which can be applied to the limited extent to which it can be I

H lndianised and harmoniously blended with Indian constitutional
M.C. MEHTA >. UNION OF INDIA (BHAGWATI, CJ.] 825

jurisprudence. Indian Courts are not bound by the Ai.1erican exposi-
tion of constitutional law. The provisions of American Constitution A
cannot always be applied to Indian conditions or to the provisions of
Indian Constitution and whilst some of the principles adumberated by
the American decisions may provide a useful guide, close adherence to
those principles while applying them to the provisions of the Indian
Constitution is not to be favoured, because the social conditions in India B
are different. [840D-H]

Ramanna Shetty v. International Airport Authority, (1979] 3 SCR
1014; Jackson v. Metropolitan Edison Co., 42 L.ed. (2d) 477; Air India
v. Nargesh Mirza, [1982] l SCR 438 and General Electric Co. Maratha
v. Gilbert, 50 L.ed (2d) 343, relied upon.
c
ORIGINAL JURISDICTION: Writ Petition (Civil) No. 12739
of 1985.

(Under Article 32 of the Constitution of India.)
D
Petitioner-in-person.

B. Datta, Additional Solicitor General, A.B. Diwan, F.S.
Nariman, B.R.L. Iyengar, Hardev Singh, Hemani Sharma, C.V.S.
Rao, R.D. Aggarwal, Ms. S. Relan, R.S. Sodhi, S. Sukumaran,
Ravinder Narain, D.N. Mishra, Aditya Narayan, Ms. Lira Goswami, E
S. Kachwaha, Mohan, Raviilder Bana, K.C. Dua, K. Kumaraman-
galam, O.C. Jain and K.R.R. Pilai for the Respondents.

Raju Ramachandran for the Intervener.

Soli J. Sorabji for Citizens Action Committee. F

The Judgment of the Court was delivered by

BHAGWATI, CJ. This writ petition under Article 32 of the
Constitution has come before us on a reference made by a Bench of
three Judges. The reference was made because certain questions of G
seminal importance and high constitutional significance were raised in
the course of arguments when the writ petition was originally heard.
The facts giving rise to the writ petition and the subsequent events
have been set out in some detail in the Judgment given by the Bench of
three Judges on 17th February 1986, and it is therefore not necessary
to reiterate the same. Suffice it to state that the Bench of three Judges fI
826 SUPREME COURT REPORTS [1987] 1 S.C.R.

A permitted Shriram Foods and Fertiliser Industries (hereinafter referred
to as Shriram) to restart its power plant as also plants for manufacture
of caustic chlorine including its by-products and recovery plants like
soap, glycerine and technical hard oil, subject to the conditions set out
in the Judgment. That would have ordinarily put an end to the main
controversy raised in the writ petition which was filed in order to
I3 obtain a direction for closure of the various units of Shriram on the .>-
ground that they were hazardous to the community and the only point
in dispute which would have survived would have been whether the
units of Shriram should be directed to be removed from the place
where they are presently situate and relocated in another place where
there would not be much human habitation so that there would not be
any real danger to the health and safety of the people. But while the
C writ petition was pending there was escape of oleum gas from one of the
units of Shriram on 4th and 6th December, 1985 and applications were
filed by the Delhi Legal Aid & Advice Board and the Delhi Bar
Association for award of compensation to the persons who had
suffered harm on account of escape of oleum gas. These applications
D for compensation raised a number of issues of great constitutional
importance and the Bench of three Judges therefore formulated the
issues and asked the petitioner and those supporting him as also
Shriram to file their respective written submissions so that the Court
could take up the hearing of these applications for compensation.
When these applications for compensation came up for hearing it wa• felt
E that since the issues raised involved substantial questions of law rela-
ting to the interpretation of Articles 21 and 32 of the Constitution, the
case should be referred to a larger Bench of five Judges and this is how
the case has now come before us.

Mr. Diwan, learned counsel appearing on behalf of Shriram
F raised a preliminary objection that the Court should not proceed to
decide these constitutional issues since there was no claim for compen-
sation originally made in the writ petition and these issues could not be
said to arise on the writ petition. Mr. Diwan conceded that the escape
of oleum gas took place subsequent to the filing of the writ petition but
his argument was that the petitioner could have applied for amend-
G ment of the writ petition so as to include a claim for compensation for
the victims of oleurn gas but no such application for amendment was
made and hence on the writ petition as it stood, these constitutional
issues did not arise for consideration. We do not think this preliminary
objection raised by Mr. Diwan is sustainable. It is undoubtedly true that
the petitioner could have applied for amendment of the writ petition
H so as to include a claim for compensation but merely because he did
,. M.C. MEHTA v. UNION OF INDIA [BHAGWATI, CJ.)

not do so, the applications for compensation made by the Delhi Legal
Aid & Advice Board and the Delhi Bar Association cannot be thrown
827

A
out. These applications for compensation are for enforcement of the
fundamental right to life enshrined in Article 21 of the Constitution
and while dealing with such applications, we cannot adopt a hyper-
technical approach which would defeat the ends of justice. lbis Court
~
has on numerous occasions pointed out that where there is a violation B
of a fundamental or other legal right of a person or class of persons
who by reason of poverty or disability or socially or economically
disadvantaged position cannot approach a Court of law for justice, it
~ would be open to any public spirited individual or social action group
to bring an action for vindication of the fundamental or other legal

• right of such individual or class of individuals and this can be done not
only by filing a regular writ petition but also by addressing a letter to c
the Court. If this Court is prepared to accept a letter complaining of
violation of the fundamental right of an individual or a class of indi-
victuals who cannot approach the Court for justice, there is no reason
why these applications for compensation which have been made for
enforcement of the fundamental right of the persons affected by the D
oleum gas leak under Article 21 should not be entertained. The Court
while dealing with an application for enforcement of a fundamental
right must look at the substance and not the form. We cannot there-
Y- fore sustain the preliminary objection raised by Mr. Diwan.

The first question which requires to be considered is as to what is E
the scope and ambit of the jurisdiction of this Court under Article 32
since the applications for compensation made by the Delhi Legal Aid
and Advice Board and the Delhi Bar Association are applications
sought to be maintained under that Article. We have already had
occasion to consider the ambit and coverage of Article 32 in the
Bandhua Mukli Morcha v. Union of India & Ors., [1984] 2 SCR 67 and F
we wholly endorse what has been stated by one of us namely,
Bhagwati, J. as he then was in his judgment in that case in regard to
the true scope and ambit of that Article. It may now be taken as well
settled that Article 32 does not merely confer power on this Court to
issue a direction, order or writ for enforcement of the fundamental
rights but it also lays a constitutional obligation on this Court to protect G
~ the fundamental rights of the people and for that purpose this Court
has all incidental and ancillary powers including the power to forge
new remedies and fashion new strategies designed to enforce the
fundamental rights. It is in realisation of this constitutional obligation
that this Court has in the past innovated new methods and strategies
for the purpose of securing enforcement of the fundamental rights, H
828 SUPREME COURT REPORTS [1987] 1 S.C.R.
--;.,
A
particularly in the case of the poor and the disadvantaged who are
denied their basic human rights and to whom freedom and liberty have
no meaning.

Thus it was in S.P. Gupta v. Union of India, [1981] Supp. SCC
87 that this Court held that "where a legal wrong or a legal injury is ,..
B caused to a person or to a determinate class of persons by reason of
violation of any constitutional or legal right or any burden is imposed
in contravention of any constitutional or legal provision or without
authority of law or any such legal wrong or legal injury or illegal
burden is threatened, and any such person or determinate class of
persons is by reason of poverty or disability or socially or economically
disadvantaged position unable to approach the court for relief, any
c member of the public or social action group can maintain an applica-
tion for an appropriate direction, order or writ in the High Court
i
under Article 226 and in case of breach of any fundamental right of
such person or class of persons, in this Court under Article 32 seeking
judicial redress for the legal wrong or injury caused to such person or
D determinate class of persons." This Court also held in S.P. Gupta's case
(supra) as also in the People's Union for Democratic Rights and Ors. v.
Union of India, [ 1983] 1SCR456 and in Babdhua Mukti Morcha's case
(supra) that procedure being merely a hand-maden of justice it should
not stanc! in the way of access to justice to the weaker sections of
Indian humanity and therefore where the poor and the disadvantaged
E are concerned who are barely eking out a miserable existence with
,
their sweat and toil and who are victims of an exploited society without
any access to justice, this Court will not insist on a regular writ petition
and even a letter adressed by a public spirited individual or a social
action group acting probono publico would suffice to ignite the jurisdic-
tion of this Court. We wholly endorse this statement of the law in

~
F regard to the broadening of locus standi and what has come to be
known as epistolary jurisdiction.

We may point out at this stage that in Bandhua Mukti Morcha's
case (supra) some of us apprehending that letters addressed to indi-
victual justices may involve the court in frivolous cases and that possi-
G bly the view could be taken that such letters do not invoke the jurisdiction
of the court as a whole, observed that such letters should not be addres- l
I
sed to individual justices of the court but to the Court or to the Chief
Justice and his companion judges. We do not think that it would be
right to reject a letter addressed to an individual justice of the court
merely on the ground that it is not addressed to the court or to the
H Chief Justice and his companion Judges. We must not forget that
M.C. MEHTA v. UNION OF INDIA [BHAGWATI, CJ.] 829

letters would ordinarily be addressed by poor and disadvantaged
persons or by social action groups who may not know the proper form A
of address. They may know only a particular Judge who comes from
their State and they inay therefore address the letters to him. If the
Court were to insist that the letters must be addressed to the court, or
to the Chief Justice and his companion Judges, it would exclude from
the judicial ken a large number of letters and in the result deny access B
to justice to the deprived and vulnerable sections of the community.
We are therefore of the view that even if a letter is addressed to an
individual Judge of the court, it should be entertained, provided of
)- course it is by or on behalf of a person in custody or on behalf of a
woman or a child or a class of deprived or disadvantaged persons. We
may point out that now there is no difficulty in entertaining letters
addressed to individual justice of the court, because this Court has a c
Public Interest Litigation Cell to which all letters addressed to the
Court or to the individual justices are forwarded and the staff attached
to this Cell examines the letters and it is only after scrutiny by the staff
members attached to this Cell that the letters are placed before the
Chief Justice and under his direction, they are listed before the Court. D
We must therefore hold that letters addressed to individual justice of
the court should not be rejected merely because they fail to conform to
the preferred form of address. Nor should the court adopt a rigid
stance that no letters will be entertained unless they are supported by
an affidavit. If the court were to insist on an affidavit as a condition of
entertaining the letters the entire object and purpose of epistolary E
jurisdiction would be frustrated because most of the poor and disad·
vantaged persons will then not be able to have easy access to the
Court and even the social action groups will find it difficult to
approach the Court. We may point out that the court has so far been ·
entertaining letters without an ·affidavit and it is only in a few rare
cases that it has been found that the allegations made in the letters F
were false. But that might happen also in cases where the jurisdiction
of the Court is invoked in a regular way,

So far as the power of the court under Article 32 to gather rele·
vant material bearing on the issues arising in this kind of litigation,
which we may for the sake of convenience call.social action litigation, G
and to appoint Commissions for this purpose is concerned, we endorse.
what one of us namely, Bhagwati, J., as he then was, has said in his
Judgment in Bandhua Mukti Morcha's case (supra). We need not
repeat what has been stated in that judgment. It has our full approval.

We are also of the view that this Court under Article 32(1) is free H
830 SUPREME COURT REPORTS [1987) 1 S.C.R.

A to devise any procedure appropriate for the particular purpose of the
proceeding, namely, enforcement of a fundamental right and under
Article 32(2) the Court has the implicit power to issue whatever direc-
tion, order or writ is necessary in a given case, including all incidental
or ancillary power necessary to secure enforcement of the fundamental
right. The power of the Court is not only injunctive in ambit, that is,
B preventing the infringement of a fundamental right, but it is also reme-
dial in scope and provides relief against a breach of the fundamental
right already committed vide Bandhua Mukti Morcha's case (supra). If
the Court were powerless to issue any direction, order or writ in cases
where a fundamental right has already been violated, Article 32 would
be robbed of all its efficacy, because then the situation would be that if
a fundamental right is threatened to be violated, the Court can injunct
C such violation but if the violator is quick enough to take action infring-
ing the fundamental right, he would escape from the net of Article 32.
That would, to a large extent, emasculate the fundamental right
guaranteed under Article 32 and render it impotent and futile. We
must, therefore, hold that Article 32 is not powerless to assist a person
D when he finds that his fundamental right has been violated. He can in
that event seek remedial assistance under Article 32. The power of the
Court to grant such remedial relief may include the power to award
compensation in appropriate cases. We are deliberately using the
words "in appropriate cases" because we must make it clear that it is
not in every case where there is a breach of a fundamental right com-
E mitted by the violator that compensation would be awarded by the
Court in a petition under Article 32. The infringement of the funda-
mental right must be gross and patent, that is, incontrovertible and ex
facie glaring and either such infringement should be on a large scale
affecting the fundamental rights of a large number of persons, or it
should appear unjust or unduly harsh or oppressive on account of their
F poverty or disability or socially or economically disadvantaged posi-
tion to require the person or persons affected by such infringement to
initiate and pursue action in the civil courts. Ordinarily, of course, a
petition under Article 32 should not be used as a substitute for
enforcement ·of the right to claim compensation for infringement of a
fundamental right through the ordinary process of civil court. It is only
G in exceptional cases of the nature indicated by us above, that compen-
sation may be awarded in a petition under Article 32. This is the
principle on which this Court awarded compensation in Rudul Shah v.
State of Bihar, (AIR 1983 SC 1086). So also, this Court awarded
compensation to Bhim Singh, whose fundamental right to personal
liberty was grossly violated by the State of Jarnmu and Kashmir. If we
H make a fact analysis of the cases where compensation has been
M.C. MEHTA v. UNION OF INDIA (BHAGWATI, CJ.] 831

awarded by this Court, we will find that in all the cases, the fact of A
infringement was patent and incontrovertible, the violation was gross
and its magnitude was such as to shock the conscience of the court and
it would have been gravely unjust to the person whose fundamental
right was violated, to require him to go to the civil court for claiming
-+ compensation.
B
The next question which arises for consideration on these appli-
cations for compensation is whether Article 2 J is available against
Shriram which is owned by Delhi Cloth Mills Limited, a public com-
}
, pany limited by shares and which is engaged in an industry vital to
public interest and with potential to affect the life and health of the
people. The issue of availability of Article 21 against a private corpora-
tion engaged in an activity which has potential to affect the life and c
health of the people was vehemently argued by counsel for the applica-
nts and Shriram. It was emphatically contended by counsel for. the
applicants, with the analogical aid of the American doctrine of State
Action and the functional and control test enunciated by this Court in
its earlier decisions, that Article 21 was available, as Shriram was D
carrying on an industry which, according to the Government's own
declared industrial policies, was ultimately intended to be carried out
by itself, but instead of the Government immediately embarking on
that industry, Shriram was permitted to carry it on under the active
control and regulation of the Governn;ient. Since the Government
intended to ultimately carry on this industry and the mode of carrying E
on the indu$try could· vitally affect public interest, the control of the
Government was linked to regulating that aspect of the functioning of
the industry which could vitally affect public interest. Special emphasis
was laid by counsel for the applicants on the regulatory mechanism
provided under the Industries Development and Regulation Act, 1951
where industries are included in the schedule if they vitally affect F
public interest. Regulatory measures are also to be found in the
Bombay Municipal Corporation Act, the Air and Water Pollution
Control Ajrts and now the recent Environment Act, 1986. Counsel for
the applicants also pointed to us the sizable aid in loans, land and other
facilities granted by the Government to Shriram in· carrying on the
industry. Taking aid of the American State Action doctrine, it was also G
argued before us on behalf of the applicants that private activity, if
supported, controlled or regulated by the State may get so entwined
with governmental activity as to be termed State action and it would
then be subject to the same constitutional restraints on the exercise of
power as the State.
H
832 SUPREME COURT REPORTS (1987] 1 S.C.R.

On the other hand, counsel for Shriram cautioned against
A expanding Article 12 so .as to bring within its ambit private corpora-
tions. He contended that control or regulation of a private corpora-
tion's functions by the State under general statutory law such as the
Industries Development and Regulation Act, 1951 is only in exercise
of police power of regulation by the .State. Such regulation does not
B convert the activity of the private corporation into that of the State.
The activity remains that of the private corporation, the State in its
police power only regulates the manner in which it is to be carried on.
It was emphasised that control which deems a corporation, an agency
of the State, must be of the type where the State controls the manage- --(
ment policies of the Corporation, whether by sizable representation on
the board of management or by necessity of prior approval of the
C Government before any new policy of management is adopted, or by
any other mechanism. Counsel for Shriram also pointed out the in:
appositeness of the State action doctrine to the Indian situation. He
said that in India the control and function test have been evolved in
order to determine whether a particular authority is an instrumentality
D or agency of the State arid hence 'other authority' within the meaning
of Article 12. Once an authority is deemed to be 'other authority'
under Article 12, it is State for the purpose of all its activities and
functions and the American functional dichotomy by which some func-
tions of an authority can be termed State action and others private
action, cannot operate here. :rhe learned counsel also pointed out that
E those rights which are specifically intended by the Constitv.tion makers
to be available against private parties are so provided in the Constitu-
tion specifically such as Articles 17, 23 and 24. Therefore, to so expand
Article 12 as to bring within its ambit even private corporations would
be against the scheme of the Chapter on fundamental rights.

F In order to deal with these rival contentions we think it is neces-
sary that we should trace that part of the development of Article 12
where this Court embarked on the path of evolving criteria by which a
corporation could be termed 'other authority' under Article 12.

In Rajasthan Electricity Board v. Mohan Lal, [i967] 3 SCR 377
G this Court was called upon to consider whether the Rajasthan Electri-
city Board was an 'authority' within the meaning of the expression
'other authorities' in Article 12. Bhargava, J. who delivered the judg-
ment of the majority pointed out that the expression 'other authorities'
in Article 12 would include all constitv.tional and statutory authorities
on whom powers are conferred by law. The learned Judge also said
H that if any body of persons has authority to issue directions, the dis-
M.C. MEHJ'A •:UNION OF INDIA !BHAGWATI, CJ.I 833
-~
. '
obedience of which would be publishable as a criminal offence, that
would be an indication that the concerned authority is 'State'. Shah, A
J., who delivered a separate judgment agreeing with the conclusion
reached by the majority, preferred to give a slightly different me!ning
to the expression 'other authorities'. He said that authorities, constitu-
tional or statutory, would fall within the expression "other autho-
rities" only if they are invested with the sovereign power of the State, B
namely, the power to make rules and regulations·which have the force
of law. The ratio of this decision may thus be stated to be .that a
constitutional or statutory authority would be within the expression
"other authorities" if it has been invested with statUtory power to issue
binding directions to third parties, the disobedience of which would
entail penal consequences or it has the sovereigo power to make rules
and regulations having the force of law. c
This test was followed by Ray, CJ, in Sukhdev v. Bhagat Ram,
(1975] 1SCC421. Mathew, J. however, in the same case propounded a
broader test. The learned Judge emphasised that the concept bf 'State'
had undergone drastic changes in recent years and today 'State' could o
not be conceived of simply as a coercive machinery wielding the
thunderbolt of authority; rather it has to be viewed mainly as a service
corporation. He expanded on this dictum by stating that the emerging
principle appears to be that a public corporation being an instrumen-
tality or agency of the 'State' is subject to the same constitutional
limitations as the 'State' itself. The preconditions of this are two, E
namely, that the corporation is the creation of the 'State' and that
there is existence of power in the corporation to invade the constitu-
tional rights of the individual. This Court in Ramanna Shetty v. Inter-
national Airport Authority, [1979] 3 SCR 1014 accepted and adopted
the rational of instrumentality or agency of State put forward by
Mathew, J., and spelt out certain criteria with whose aid such an F
inference could be made. However, before we come to these criteria
we think it necessary to refer to the concern operating behind the
exposition of the broader test by Justice Mathew which is of equal
relevance to us today, especially' considering the fact that the defini-
tion under Article 12 is an inclusive and not an exhaustive definition.
That concern is the need to curb arbitrary and unregulated power G
wherever and howsoever reposed.

In Ramanna D. Shitty v. International Airport Authority
(supra) this Court deliberating on the criteria on the basis of which to
determine whether a corporation is acting as instrumentality or agency
of Government said that it was not possible to formulate an all inclu- H
834 SUPREME COURT REPORTS [1987) 1 S.C.R.

A sive or exhaustive test which )Would adequately answer this question.
There is no out and dried formula which would provide the correct
division of corporations into those which are instrumentalities or
agencies of Government and those which are not. The Court said
whilst formulating the criteria that analogical aid can be taken from the
concept of State Action as developed in the United States wherein the
B U.S. Courts have suggested that a private agency if supported by
extra-ordinary assistance given by the State may be subject to the same
constitutional limitations as the State. It was pointed out that the
State's general common-law and statutory structure under which its
people carry on their private affairs, own property and enter into
contracts, each enjoying equality in terms of legal capacity, is not such
C assistance as would transform private conduct into State Action. "But
if extensive and unusual financial assistance is given and the purpose of ~-
such assistance coincides with the purpose for which the corporation is
expected to use the assistance and such purpose is of public character,
it may be a relevant Circumstance supporting an inference that the
corporation is an instrumentality or agency of the Government".
D
On the question of State control, the Court in R.D. Shetty's case
(supra) clarified that some control by the State would not be deter-
minative of the question, since the State has considerable measure of
control under its police. power over all types of business organisations. ~
But a finding of State financial support plus an unusual degree of
E control over the management and policies of the corporation might
lead to the characterisation of the operatio~ as State Action.

Whilst deliberating on the functional criteria namely, that the
corporation is carrying out a governmental function, the Court em-
phasised that classification of a function as governmental should not be
F done on earlier day perceptions but on what the State today views as j
an indispensable part of its activities, for the St~te may deem it as 1
essential to its economy that it owns and operate a railroad, a mill or an
irrigation system as it does to-own and operate bridges street lights or .a
sewage disposal. plant. The Court also reiterated in R.D. Shetty's case
(supra) what was pointed out by Mathew, J. in Sukhdev v. Bhagatram
G. that "Institutions engaged in matters of high public interest or public
functions are by virtue of the nature of the functions performed
government agencies. Activities which are too fundamental to the
society are by definition too important not to be considered govern-
ment functions."

H The above discussion was rounded off by the Court in R.D.
M.C. MEHTA v. UNION OF INDIA IBHAGWATI, CJ.) 835

Shetty's case (supra) by enumerating the following five factors namely, A
( 1) financial assistance given by the State and magnitude of such assis·.
lance (2) any other form of assistance whether of the usual kind or
extraordinary (3) control of management and policies of the corpora·
lion by the State-nature and extent of control (4) State conferred or
State protected monopoly status and (5) functions carried out by the
corporation, whether public functions closely related to governmental B
functions, as relevant criteria for determining whether a corporation is
an instrumentality or agency of the State or not, though the Court took
we to point out that the enumeration was not exhaustive and that it
was the aggregate or cumulative effect of all the relevant factors that
must be taken as controlling.

The criteria evolved by this Court in Ramanna Shetty's case
c
(supra) were applied by this Court in Ajay Hasia v. Khalid Mujib,
[ 1981] 2 SCR 79 where it was further emphasised that:

"Where constitutional fundamentals vital to the mainte-
nance of human rights are at stake, functional realism and D
not facial cosmetics must be the diagnostic tool for con·
stitutional law must seek the substance and not the form.
Now it is obvious that the Government may through the
instrumentality or agency of natural persons or it may
employ the instrumentality or agency of judicial persons to
carry out its functions. It is really the Government which E
acts through the instrumentality or agency of the corpora-
tion and the juristic veil of corporate personality worn for
the purpose of convenience of management and adminis-
tration cannot be allowed to obliterate the true nature of
the reality behind which is the Government ..... (for if
the Government acting through its officers is subject to F
certain constitutional limitations it must follow a fortiorari
that the Government acting through the instrumental·
ity or agency of a corporation should be equality subject to.
the same limitations".

On the canon of construction to be adopted for interpreting constitu· G
tional guarantees the Court pointed out:

" .... constitutional guarantees ... should not be allowed
to be emasculated in their application by a narrow and

r
constructed judicial interpretation. The Courts should be
anxious to enlarge the scope and width of the fundamental H
836 SUPREME COURT REPORTS [1987] 1 S.C.R.

rights by bringing within their sweep every authority which
A
is an instrumentality or agency of the Government or
through the corporate personality of which the Govern-"
ment is acting, so as to subject the Government in all its
myriad activities, whether through natural persons or
through corporate entities to the basic obligation of the
B · fundamental rights."

In this case the Court also set at rest the controversy as to whether the
manner in which a corporation is brought into existence had any rele-
vance to the question whether it is a State instrumentality or agency.
The Court said that it is immaterial for the purpose of determining
whether a corporation is an instrumentality or agency of the State or
C not whether it fs created by a Statute or under a statute: "the inquiry -(
has to be not as to how the juristic person is born but why it has been.
brought into existeno,. The corporation may be a statutory corpora-
tion created by statute or it may be a Govemrrtent company or a
company formed undf:r the Companies Act, 1956 or it may be a society
D registered under the Societies Registration Act, 1860 or any other
similar statute". It would come within the ambit of Article 12, if it is
found to an instrumentality or agency of the State on a proper assess-
ment of the relevant factors.
J
It will thus be se'en that this Court has not permitted the corpo-
.E rate device to be utilised as a barrier ousting the constitutional control
of the fundamental rights. Rather the Court has held:

"It is dangerous to exonerate corporations from the need
to have constitutional conscience, and so that interpreta-
tion, language permitting, which makes governmental
F agencies whatever their main amenable to constitutional
limitations must be adopted by the court as against the
alternative of permitting them to flourish as an imperium
in imperio". Som Prakash v. Union of India, [1981]
1 SCC-:449.

G Taking the above exposition as our guideline, we must now pro-
ceed to examine whether a private corporation such as Shriram comes
within the ambit of Article 12 so as to be amenable to the discipline of
Article 21.

In order to assess the functional role allocated to private corpo-
H ration engaged in the manufacture of chemicals and fertilisers we need
M.C. MEHTA v. UNION OF INDIA [BHAGWATI, CJ.] 837

to examine the Industrial Policy of the Government and see the public
interest importance given by the State to the activity carried on by such A
private corporation.

Under the Industrial Policy Resolution 1956 industries were clas-
sified into three categories having regard to the part which the State
• + would play in each of them. The first category was to be the exclusive B
responsibility of the State. The second category comprised those in-
dustries which would be progressively State owned and in which the
State would therefore generally take the initiative in establishing new
undertakings but in which private enterprise would also be expected to
supplement the effort of the State by promoting and development
undertakings either on its own or with State participation. The third
category would include all the· remaining industries and their future c
development would generally be left to the initiative and enterprise of
the private sector. Schedule B to the Resolution enumerated the
industries.
'
Appendix I to the Industrial Policy Resolution, 1948 dealing with D
the problem of State participation in industry and the conditions in
which private enterprise should be allowed to operate stated that there
can be no doubt that the Staie must play a progressively active role in
the development of industries. However under the present conditions,
the mechanism and resources of the State may not permit it to function
forthwith in Industry as widely as may be desirable. The Policy E
declared that for some time to come, the State could contribute more
quickly to the increase of national wealth by expanding its present
activities wherever it is already operating and by concentrating on new
_J. units of production in other fields.

• dn these consideration~ the Government decided that the manu- F
facture of arms and ammunition, the production and control of atomic
energy and the ownership and management of railway transport would
be the exclusive monopoly of the Central Government. The establish-
ment of new undertakings in Coal, Iron and Steel, Aircraft manu-
facture, Ship building, manufacture of telephone telegraph and wire-
less apparatus and mineral oil were to be the exclusive responsibility of G
the State except where in national interest the State itself finds it
necessary to secure the co-operation of private enterprise subject to
control of the Central Government.

The policy resolution also made mention of certain basic indus-
tries of importance the planning and regulation of which by the Cent- H
838 SUPREME COURT REPORTS [1987] 1 S.C.R.

ral Government was found necessary in national interest. -Among the
j-
A eighteen industries so mentioned as requiring such Central control,
heavy chemicals and fertilisers stood included.

In order to carry out the objective of the Policy Resolution the
Industries (Development and Regulation) Act of 1951 was enacted
B which, according to its objects and reasons, brought under central
control the development and regulation of a number of important
industries the activities of which affect the country as a whole ru,td the
development of which must be governed by economic factors of all
India import. Section 2 of the Act declares that it is expedient in the
public interest that the Union should take under its control the in-
dustries specified in the First Schedule. Chemicals and Fertilisers find
C a place in the First Schedule as Items 19 and 18 respectively.

If an analysis of the declarations in the Policy Resolutions and
the Act is undertaken, we find that the activity of producing chemicals
and fertilisers is deemed by the State to be an industry of vital public
D interest, whose public import necessitates that the activity should be
ultimately carried out by the State itself, in the interim period with
State support and under State control, private corporations may also
be permitted to supplement the State effort. The argument of the
applicants on the basis of this premise was that in view of this declared
industrial policy of the State, even private corporations manufacturing
E chemicals and fertilisers can be said to be engaged in activities which
are so fundamental to the Society as to be necessarily considered
government functions. Sukhdev 'v. Bhagat Ram, Ramanna Shetty and
Ajay Hasia (supra).

It was pointed out on behalf of the applicants that as Shriram is
F registered under the Industries Development and Regulation Act
1951, its activities are subject to extensive and detailed control and
supervision by the Government. Under the Act a licence is necessary
for the establishment of a new industrial undertaking or expansion of
capacity or manufacture of a new article by an existing industrial
•
undertaking carrying on any of the Scheduled Industries included in
G the First Schedule of the Act. By refusing licence for a particular unit,
the Government can prevent over concentration in a particular region
or over-investment in a particular industry. Moreover, by its power to
specify the capacity in the licence it can also prevent over-developmenl
of a particular industry if it has already reached target capacity. Sec-
tion 18 G of the Act empowers the Government to control the supply,
H distribution, price etc. of the articles manufactured by a scheduled
M.C. MEHTA v. UNION OF INDIA (BHAGWATI, CJ.) 839

industry Md under Section 18A Government can assume management
A
and control of an industrial undertaking engaged in a scheduled in-
dustry if after investigation it is found that the affairs of the un\lertak-
ing are being managed in a manner detrimental to public interest and
under Section 18AA in certain emergent cases, take-over is allowed
even without investigation. Since Shriram is carrying on a scheduled
industry, it is subject to this stringent system of registration and licens- B
ing. It is also amenable. to various directions that may be issued by the
Government from time to time and it is subject to the exercise of the
powers of the Government under Sections 18A, and J8G.

Shrira!n is required to obtain a licence under the Factories Act
and is subject to the directions and orders of the authorities under the
Act. It is also required to obtain a licence for its manufacturing c
activities from the Municipal authorities under the Delhi Municipal
Act, 1957. It is subject to extensive environment regulation under the
Water (Prevention and Control) of Pollution Act, 1974 and as the
factory is situated in an air pollution control area, it is also subject to
the regulation of the Air (Prevention and Control of Pollution) Act, D
1981. It is true that control is not exercised by the Government in
relation to the internal management policies of \he Companf. How-
ever, the control is exercised on all such activities of Shriram which can
jeopardize public interest. This functional control is of special signi-
ficance as it is the potentiality of the fertilizer industry to adversely
affect the health and safety of the community and its being impre- E
gnated with public interest which perhaps dictated the policy decision
of the Government to ultimately operate this industry exclusively and
invited functional control. Along with this extensive functional con-
trol, we find that Shriram also receives sizable assistance in the shape
of loans and overdrafts running into several crores of rupees from the
Government through various· agencies. Moreover, Shriram is engaged F
in the manufacture of caustic soda, chlorine etc. Its various units are
set up in a single complex surrounded by thickly populated colonies.
Chlorine gas is admittedly dangerous to life and· health. If the gas
escapes either from the storage tank or from the filled cylinders or
from any other point in the course of production, the health and well-
being of the people living in the vicinity can be seriously affected. Thus G
Shriram is engaged in an activity which has the potential to invade the
-~ right to life of large sections of people. The question is whether these
factors are comulatively sufficient to bring Shriram within the ambit of
Article 12. Prima fade it is arguable that when the States' power as
economic agent, economic entrepreneur and allocater of economic
benefits is subject to the limitations of fundamental rights. (Vide H
840 SUPREME COURT REPORTS (1987] 1 · S.C.R.

A Eurasian Equipment and Chemicals Ltd. v. State of West Bengal,
(1975) 2 SCR 674, Rashbehari Panda v. State, [1983] 3 SCR 374,
Rama~na Shelly v. International Airport Authority, (supra) and
Kasturi/al Reddy v. State of Jammu & Kashmir, [1980] 3 SCR 1338)
why should a private corporation under the functional control of the
State engaged in an activity which is hazardous to the health and safety
B of the community and is imbued with public interest and which the
State ultimately proposes to exclusively run under its industrial policy,
not be subject to the same limitations. But we do not propose to decide
this question and make any definite pronouncement upon it for
reasons which we shall point out later in the course of this judgment.

We were during the co11rse of arguments, addressed at great
C length by counsel on both sides on the American doctrine of State
action. The' learned counsel elaborately traced the evolution of this
doctrine in its parent country. We are aware that in America since the
Fourteenth Amendment is available only against the State, the Courts,
in order to thwart racial discrimination by private parties, devised the
O theory of State action under which it was held that wherever private
activity was aided, facilitated or supported by the State in a significant
measure, such activity took the colour of State action and was subject
to the constitutional limitations of the Fourteenth Amendment. This
historical context in which the doctrine of State action evolved in the
United States is irrelevant for our purpose especially since we have
E Article 15(2) in our Constitution. But it is the principle behind the
doctrine of State aid, control and regulation so impregnating a private
activity ai to give it the colour of State action that is of interest to us
and that also to the limited extent to which it can be Indianized and
harmoniously blended. with our constitutional jurisprudence. That we
in no way consider ourselves bound by American exposition of con-
F stitutional law is well demostrated by the fact that in Ramanna Shelly,
(supra) this Court preferred the minority opinion of Douglas, J. in
Jackson v. Metropolitan Edison Company, 42 L.ed. (2d) 477 as against
the majority opinion of Rehnquist, J. And again in Air India v.
Nargesh Mirza, [1982] I SCR 438 this Court whilst preferring the
minority view in General Electric Company Martha v. Gilbert, 50 L.ed.
() (2d) 343 said that the provisions of the American Constitution cannot
always be applied to Indian conditions or to the provisions of our
Constitution and whilst some of the principles adumbrated by the
American decisions may provide a useful guide, close adherence to
those principles while applying them to the provisions of our Constitu-
tion is not to be favoured, because the social conditions in our country
H are different. The learned counsel for Shriram stressed the inapposit•=-
M.C. MEIITA v. UNION OF INDIA [BHAGWATI, CJ.] 841

ness of the doctrine of State action in the Indian context because,
according to him, once an authority is brought within the purview of A
Article 12, it is State for all intents and purposes and the functional
dichotomy in America where certain activities of the same authority
may be charaterised as State action and others as private action cannot
be applied here in India. But so far as this argument is concerned, we
must demur to it and paint out that it is not correct to say that in India B
once a corporation is deemed to be 'authority', it would be subject to
the constitutional limitation of fundamental rights in the performance
of all its functions and that the appellation of ;authority' would stick to
such corporation, irrespective of the functional context.

Before we part with this topic, we may point out that this Court
has throughout the last few years expanded the horizon of Article 12 C
primarily to inject respect for human-rights and social oonscience in
our corporate structure. The purpose of expansion has not been to
destroy the raison d'eter of creating corporations but to advance the
human rights jurisprudence. Primafacie we are not inclined to accept
the apprehensions of learned cousel for Shriram as well-founded when o
he says that our including within the ambit of Article 12 and thus
subjecting to the discipline of Article 21, those private coporations
whose activities have the potential of affecting the life and health of
the people, would deal a death blow to the policy of encouraging and
permitting private entrepreneurial activity. Whenever a new advance
is made in the field of human rights, apprehension is always expressed E
by the status quosits that it will create enormous difficulties in the way
of smooth functioning of the system and affect its stability. Similar
apprehension was voiced when this Court In Ramanna Shetty's case
(supra) brought public sector corporations within the scope and ambit
of Article 12 and subjected them to the discipline of fundamental
rights. ·such apprehension expressed by those who may be affected by F
any new and innovative expansion of human rights need not deter the
Court from widening the scope of human rights and expanding their
reach ambit, if otherwise it is possible to do so without doing violence
to the language of the constitutional provision. It is through creative
interpretation and bold innovation that the human rights jurispru-
dence has been developed in our country to a remarkable extent and G
this forward march of the human rights movement cannot be allowed
to be halted by unfounded apprehensions expressed by status quoists.
But we do not propose to decide finally at the present stage whether a
private corporation like Sbriram would fall within the scope and ambit
of Article 12, because we have not had sufficient time to consider and
reflect on this question in depth. The hearing of this case before us H
842 SUPREME COURT REPORTS [1987) 1 S.C.R.

concluded only on 15ih December 1986 and we are called upon to
'f
A
deliver our judgment within a period of four days, on 19th December
1986. We are therefore of the view that this is not a question on which
we must make any definite pronouncement at this stage. But we would
leave it for a proper and detailed consideration at a later stage if it
becomes necessary to do so. ·
~·
B
We must also deal with one other question which was seriously
debated before us and that question is as to what is the measure of
liability of an enterprise which is engaged in an hazardous or in-
herently dangerous industry, if by reason of an accident occurring in
such industry, persons die or ~e injured. Does the rule in Rylands v.
Fletcher apply or is there any other principle on which the liability can
c be determined? The rule in Rylands v. Fletcher was evolved in the ye31· ·-{
1866 and it provides that a person who for his own purposes being on
to his land and collects and keeps there anything likely to do mischief if
it escapes must keep it at his peril and, if he fails to do so, is prima facie
liable for the damage which is the natural consequence of its escape.
D The liability under this rule is strict and iris no defence that the thing
escaped without that person's wilful act, default or neglect or even that
he had no knowledge of its existence. This rule laid down a principle of
liability that if a person who brings on to his land and collects and
keeps there anything likely to do harm and such thing escapes and does _j
damage to another, he is liable to compensate for the damage caused.
E Of course, this rule applies only to non-natural user of the land and it
does not apply to things naturally on the land or where the escape is
due to an act of God and an act of a stranger or the default of the
person injured or where the thing which escapes is present by the con-
sent of the person injured or in certain cases where there is statutory
authority. Vide Halsbury Laws of England, Vol. 45 para 1305. Con-
F siderable case law has developed in England as to what is natural and
what is non-natural use of land and what are precisely the circum-
stances in which this rule may be displaced. But it is not necessary for
1
us to consider these decisions laying down the parameters of this rule
because in a modern industrial society with highly developed scientific
knowledge and technology where hazardous or inherently dangerous
0 industries are necessary to carry out part of the developmental prog-
ramme. This rule evolved in the 19th Century at a time when all these )
developments of science and technology had not taken place cannot '
afford any guidance in evolving any standard of liability consistent
with the constitutional norms and the needs of the present day
economy and social structure. We need not feel inhibited by this rule
H which was evolved in this context of a totally different kind df
"M.C. MEHTA v. UNION OF INDIA [BHAGWATI, CJ.] 843

economy. Law has to grow in order to satisfy the needs of the fast
changing society and keep abreast with the economic developments
A
taking place in the country. As new situations arise the law has to be
evolved in order to meet the challenge of such new situations. Law
cannot afford to remain static. We have to evolve new principles and
fay down new norms which would adequately deal with the new prob-
lems which arise in a highly industrialised economy. We cannot allow B
our judicial thinking to be constricted by reference to the law as it
prevails in England or for the matter of that in any other foreign
country. We no longer need the crutches of a foreign legal order. We
) are certainly prepared to receive light from whatever source it comes
but we have to build up our own jurisprudence and we cannot counte-
nance an· argument that merely because the new law does not recog-
nise the rule of strict and absolute liability in cases of hazardous or c
dangerous liability or the rule as laid down in Rylands v. Fletcher as is
developed in England recognises certain limitations and responsibili-
ties. We in India cannot hold our hands back and I venture to evolve a
new principle of liability which English courts have not done. We have
to develop our own law and if we find that it is necessary to construct a D
new principle of liability to deal with an unusual situation which has
arisen and which is likely to arise in future on accout of hazardous or
inherently dangerous industries which are concommitant to an indust-
-J- rial economy, there is no reason why we should hesitate to evolve such
principle of liability merely because it has not been so done in
England. We are of the view that an enterprise which is engaged in a E
hazardous or inherently dangerous industry which poses a potential
threat to the health aitd safety of the persons working in the factory
and residing in the surrounding areas owes an absolute and non-
delegable duty to the community to ensure that no harm results to
anyone on account of hazardous or inherently dangerous nature of the
activity which it has undertaken. The enterprise must be held to be f
under an obligation to provide that the hazardous or inherently
dangerous activity in which it is engaged must be conducted with the
highest standards of safety and if any harm results on account of such
activity, the enterprise must be absolutely liable to compensate for
such harm and it should be no answer to the enterprise to say that it
had taken all reasonable care and that the harm occurred without any G
negligence on its part. Since the persons hanhed on account of the
hazardous or inherently dangerous activity carried on by the enter-
prise would not be in a position to isolate the process of operation
from the hazardous preparation of substance or any other related ele-
ment that caused the harm must be held strictly liable for causing such
harm as a part of the social cost for carrying on the hazardous or H
844 SUPREME COURT REPORTS [1987] 1 S.C.R.

A inherently dangerous activity. If the enterprise is pennitted to carry on
an hazardous or inherently dangerous activity for its profit, the law
must presume that such pennission is conditional on the enterprise
absorbing the cost of any accident arising on account of such hazard-
ous or inherently dangerous ictivity as an appropriate item of its
over-heads. Such hazardous or inherently dangerous activity for pri-
B vate profit can be tolerated only on condition.that the enterprise en-
gaged in such hazardous or inherently dangerous activity indemnifies
all those who suffer on account of the carrying on of such hazardous or
inherently dangerous activity regardless of whether it is carried on
carefully or not. This principle is also sustainable on the ground that
the enterprise alone has the resource to discover and guard ·against
hazards or dangers and to provide warning against potential hazards.
C We would therefore hold that where an enterprise is engaged in a
hazardous or inherently dangerous activity and hann results to any-
one on account of an accident in the operation of such hazardous or
inherently dangerous activity resulting, for example, in escape of
toxic gas the enterprise is strictly and absoJutely liable to compensate
D all those who are affected by the accident and such liability is not
subject to any of the exceptions which operate vis-a-vis the tortious
principle of strict liability under the rule in Rylands v. Fletcher
(supra).
j.
We would also like to point out that the measure of compensa-
E lion in the kind of cases referred to in the preceding paragraph must be
co-related to the magnitude and capacity of the enterprise because
such compensation must have a deterent effect. The larger and more
prosperous the enterprise, the greater must be the amount of compen-
sation payable by it for the hann caused on account of an accident in
the carrying on of the hazardous or inherently dangerous activiiy by
F the enterprise.

Since we are not deciding the question as to whether Shriram is
an authority within the meaning of Article 12 so as to be subjected to
the discipline of the fundamental right under Article 21, we do not
think it would be justified in setting up a special machinery for investi·· ·
G gation of the claims for compensation made by those who allege that
they have been the victims of oleum gas escape. But we would direct
that Delhi Legal Aid and Advice Board to take up the cases of all
those who claim to have suffered on account of oleum gas and to file
actions on their behalf in the appropriate court for claiming compensa-
tion against Shriram. Such actions claiming compensation may be filed
H by the Delhi Legal Aid and Advice Board. within two months from
M.C. MElITA v. UNION OF INDIA (BHAGWATI, CJ.J 845

today and the Delhi Administration is directed to provide the neces· A
sary funds to the Delhi Legal Aid and Advice Board for the purpose of
filing and prosecuting such actions. The High Court will nominate one
or more Judges as may be necessary for the purpose of trying such
actions so that they may be expeditiously disposed of. So far as the
-i. issue of relocation and other issues are concerned the writ petition will B
come up for hearing on 3rd February, 1987. '

A.P.J. Petition disposed of.