Petition challenging the constitutionality of a ban on non-owner rickshaw drivers; Whether the opportunity to own a rickshaw is a protected right; Whether negative bans promoted social justice sufficient under Article 38 of the constitution; Whether judicial engineering promotes social justice better than strict legal interpretation; Whether the state has a duty to provide access to rickshaw ownership; Right to Access Justice; Right to Work; Judicial Engineering.
The state of Punjab enacted a law to prevent rickshaw pullers from being exploited by middlemen. It created a program whereby rickshaw pullers would be given an interest-free loan to buy their own rickshaws, and the state issued licenses to the owners to make sure the law was enforced. Only the owners could pull the newly purchased rickshaws, and licenses would not be issued or would be revoked if the state learned that someone else was pulling the rickshaw. The Supreme Court of India stated that it would uphold any state law that expanded the ideal of social justice as found in Article 38 of the Constitution. The Court did note that while the law appeared to be constitutional, non-owners could not drive rickshaws without a license. Also, the Punjab law was a negative ban, rather than a law that combined a ban with alternatives to reach the desired goal. Rather than decide the constitutionality of the law, the Court chose to engineer a solution because it found that judicial engineering is a better solution than strictly interpreting the law. The parties worked together to come up with a plan that would help rickshaw pullers afford to buy rickshaws.
The scheme engineered by the court is meant to change the law from a negative ban into a policy that addresses and supports the economic needs of rickshaw pullers. The new policy provides that every rickshaw puller licensed in the last year can obtain a new license. Then the puller can go to the Credit Guarantee Corporation and ask that corporation to guarantee to the bank an advance for a loan for the rickshaw, which will be used as a deposit towards the loan. The balance will be guaranteed by the CGC and the bank will forward the money to the rickshaw puller to purchase a new rickshaw. The rickshaw puller has one week from delivery of the rickshaw to present corroborating documentation to the state officials. The loan has to be repaid in 15 months, and if there are any late payments the bank may raise the interest rate. The interest payments will be made by the state government, at a rate agreed upon between the bank and the state. The rickshaw will be collateral for the loan, and the bank shall have title. The scheme also allows rickshaw unions to have service shops, and the issuance of licenses to temporary, non-owner rickshaw pullers during the rainy season. Finally, the court ruled, the state has a duty to try to provide insurance to rickshaw pullers, and incrementally replace rickshaws with scooters.
Keywords: Azad Rickshaw Pullers Union (regd.) Ch. Town Hall, Amritsar V. State of Punjab & Ors 1981 AIR 14 1981 SCR (1) 366, Enforceability, ESCR
On the same date the Supreme Court of India decided Azad, the Court extended the engineered scheme to Delhi, in Nanhu & ors vs. Delhi Administration & ors. (See Secondary Literature for the decision.) States across the country are implementing similar programs, including Bhopal, however, a large number of programs are run by NGOs, not the state. In Jharkand, the police department and a local bank decided to create a similar program without legislative prodding. (See Secondary Literature for more information.)
This case was an effort by the courts to devise a proactive policy for ensuring rickshaw pullers in India are not exploited by rickshaw owners. As is done often by the Indian judiciary, the court drew on the principles of equality embodied by the Indian Constitution to give it the mandate to design policy schemes which support human rights. There have been some critics, however, which do not believe this particular scheme in practice, is improving the issue of exploitation of the rickshaw pullers.
For the Petitioner: V.M. Tarkunde, E.C. Agarwala, R.S. Sharma, S.M. Ashri. For the Respondents: O.P. Sharma, R.C. Bhatia (1); Naunit Lal (2)
