The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 (hereinafter ‘the 1993 Act’) and Prohibition of Employment As Manual Scavengers and their Rehabilitation Act, 2013 (hereinafter ‘ the 2013 Act’) were enacted to abolish caste-based discrimination related to manual scavenging.
The 1993 Act declared the employment of manual scavengers and construction of dry toilets to be punishable with fines and imprisonment. Overriding the 1993 Act (but not repealing), the 2013 Act goes beyond prohibitions on dry latrines, and outlaws all manual cleaning of insanitary latrines, open drains, or pits (Sec.2(1)(g) read with Sec 3). The 2013 Act further recognizes a constitutional obligation to correct the historical injustice and indignity suffered by manual scavenging communities by providing extensive rehabilitation assistance to them and to their families.
Under Sec. 5 of the 2013 Act, any person, local authorities and agencies are prohibited from constructing insanitary latrines or to employing or engaging manual scavengers for manual scavenging. Sec. 5 also stipulates that all existing insanitary latrines as identified by the local authorities should be demolished and/or converted to sanitary latrines within the prescribed period under the Act. Under Sec. 6 of the 2013 Act any contract, agreement or instrument made before or after the 2013 Act, for engaging a person for the purpose of manual scavenging, has been made void and inoperative and such person cannot be retrenched and ought to be given work other than manual scavenging.
The 2013 Act under Sec. 7 read with Sec. 22 has made such activities (Sec.5-6) a cognizable and non-bailable offence punishable with maximum 1 year imprisonment or maximum fine of Rs.50,000 or both. Repeated offences have been made punishable with maximum 2 years imprisonment or maximum fine of Rs. 1 Lakh or both.
Sec. 7 read with Sec. 9 has made engaging a person for hazardous cleaning (i.e. Sec 2(1)(d) without providing protective gear) of a sewer or septic tank a cognizable and non-bailable offence punishable with maximum 2 years imprisonment or maximum Rs.2 Lakhs of fine or both. Repeated offence has been made punishable with maximum 5 years imprisonment or maximum fine of Rs. 5 Lakhs or both.
Every State Government under Sec. 21 has been given power to appoint an Executive Magistrate with power of Judicial Magistrate of First Class under the Code of Criminal Procedure, 1973, to conduct trial of offences under the 2013 Act, which are to be tried summarily. Further, Sec. 35 bars the jurisdiction of any civil court in relation to any action done under this 2013 Act. Extensive provision has been made under the 2013 Act for the rehabilitation of manual scavengers, including by providing initial financial assistance for alternative occupation and livelihood skill training with stipend, to one adult member of the family, financial assistance for residential plot or house (Sec. 13).
The 2013 Act has created a strict implementation mechanism for the 2013 Act, and the District Magistrate, Municipal Corporations and Panchayats have been given implementation roles. The implementation mechanism is overseen by the Vigilance Committee, Central Monitoring Committee, State Monitoring Committees, and National Commission of Safai Karmacharis (which was created under the 1993 Act).
Judgments on Manual Scavenging:
Safai Karamchari Andolan And Ors. v. Union Of India (Uoi) And Ors., 2014 (11) SCC 224 [Supreme Court of India, 3 Judge Bench]
This is a landmark judgment that provides for strict implementation of the Acts and prescribed compensation of 10 lakhs in case of death due to manual scavenging.
Facts: This writ petition had been filed in 2003 by the Petitioners as a PIL praying for issuance of a writ of mandamus to the Respondent-Union of India, State Governments and Union Territories to strictly enforce the implementation of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 (the ‘Act 1993’) seeking for enforcement of fundamental rights guaranteed under Articles 14, 17, 21 and 47 of the Constitution of India.
Decision: The Supreme Court of India observed that in this Writ Petition that the Court has given several interim directions to States and Union Territories to submit data on employment of manual scavengers and deaths due to manual scavenging. The data indicates very poor implementation and prevalence of manual scavenging and dry latrines even after two decades of enactment of Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993. In the meanwhile, during the pendency of this Writ, Prohibition of Employment As Manual Scavengers and Their Rehabilitation Act, 2013 (the ‘2013 Act’) has been enacted and brought into force by the Government. The Court held that 2013 Act, in no way, neither dilutes the constitutional mandate of Article 17 nor does it condone the inaction on the part of Union and State Governments under the 1993 Act. What the 2013 Act does in addition to 1993 Act, is to expressly acknowledge Article 17 and Article 21 rights of persons engaged in sewage cleaning and cleaning tanks as well persons cleaning human excreta on railway tracks. Further the Court also held that the 2013 Act has a comprehensive scheme of implementation and the Court need not take any additional step to monitor and what is needed is the strict implementation of the 2013 Act. In light of the 2013 Act, the Supreme Court issued following directions to the States and Union Territories:
a) that the persons included in the final list of manual scavengers Under Sections 11 and 12 of the 2013 Act, shall be rehabilitated as per the provisions of Part IV of the 2013 Act.
b) Rehabilitation must be based on the principles of justice and transformation. Rehabilitation of manual scavengers will also need to include:
i) Sewer deaths-entering sewer lines without safety gears should be made a crime even in emergency situations. For each such death, compensation of Rs. 10 lakhs should be given to the family of the deceased.
ii) Railways-should take time bound strategy to end manual scavenging on the tracks.
iii) Persons released from manual scavenging should not have to cross hurdles to receive what is their legitimate due under the law.
iv) Provide support for dignified livelihood to safai karamchari women in accordance with their choice of livelihood schemes.
v) Identify the families of all persons who have died in sewerage work (manholes, septic tanks) since 1993 and award compensation of Rs. 10 lakhs for each such death to the family members depending on them.
Change India v. Government of Tamilnadu and Ors., MANU/TN/2579/2018 [Madras High Court, Division Bench]
This judgment directed payment of interest in addition to the compensation of Rs 10 lakhs as directed by Supreme Court in Safai Karmachari Andolan case.
Facts: This writ petition (PIL), has been filed seeking orders on the State to pay interest for delay in release of compensation, to the heirs of the identified manual scavengers, who had lost their lives in course of manual scavenging.
Decision: The High Court of Madras observed that in Safai Karmachari Andolan Case that the Supreme Court was not concerned only with manual scavengers engaged by the State and/or State authorities, but manual scavengers engaged by private persons and/or entities, who had lost their lives in course of sewerage work. It also clarified that Section 11 (4) of the 2013 Act contemplates a provisional list of persons found to be working as manual scavengers within the jurisdiction of the municipality and fulfilling the eligibility conditions as might be prescribed. The list is not to be just of manual scavengers engaged by a municipality, but manual scavengers engaged within the jurisdiction of a municipality.
The High Court of Madras recognized the delay on part of the Governmental authorities in dispensing compensation of 10 Lakhs to the family of the deceased who died due to manual scavenging in compliance with the direction of the Supreme Court in Safai Karmachari Andolan case.
The High Court therefore directed the State Authorities to pay interest to the identified heirs of manual scavengers who lost their lives in course of manual scavenging and/or sewerage work at the rate of 8% per annum, being the rate of interest paid by nationalised banks to senior citizens, from 01.10.2014 till the date of payment of compensation of Rs. 10 lakhs to the concerned heirs. Also clarified that interest shall be computed as per reducing balance in cases where compensation has been released in tranches.
M/s Metro Waste Handling v. Delhi Jal Board, MANU/DE/2055/2018 [Delhi High Court, Division Bench]
Facts: The Petitioner is aggrieved by a few conditions in the tender issued by the Respondent (the Delhi Jal Board, hereafter “DJB”) inviting bids for mechanized cleaning of sewers in the city of Delhi. The petitioner particularly challenged two conditions of the tender, i) only one sewer cleaning machine will be awarded to each bidder who qualifies the technical bid (& agrees to execute the work on the rates finalised by DJB and and ii) The preference shall be given to the bidders who belong to Scheduled Caste and Scheduled Tribe communities who engaged in the manual scavenging and their dependent as per Article 46 of the Constitution as mentioned in The Prohibition of Employment as Manual Scavengers And Their Rehabilitation Act, 2013. The petitioner attacks the conditions as arbitrary; and DJB defended the conditions stating that they constitute a first attempt at rehabilitating the curse of manual scavenging and its stigmatic effect on those who have been forced to practice the profession, by dictates of the entrenched caste system.
Decision: The High Court of Delhi held that as far as the first impugned condition is concerned, the right of the petitioners to deploy more than one vehicle is not impacted generally. They are free to enter into any number of contracts, deploying any number of vehicles and personnel; all that the tender condition states is that each bidder can offer only one vehicle. Therefore, the Court dismissed the challenge of the Petitioner on the first impugned condition of the tender.
On the question of legal validity of the second condition the Court upheld the submission of the DJB that the tender and its system of preferences for manual scavengers of SC/ST community aims at improving the status and living condition of all those who have hitherto been vocationally stigmatized because of the caste roles they have been consigned into. Invisible and forgotten, those who have performed manual scavenging tasks have worked day in and day out for a society, which has studiously turned away its face from them and denied their very existence. It is this class of citizens – more than anyone else, who deserves the fulfillment of the promise of dignity and equality.
The Court affirmed that it is for such sections of society that the Constitution makers enacted Articles 15(3), 15(4) and 16(4) which are specific provisions that enable the State to make “special provisions” for certain classes in the interest of securing equality amongst the people. and hoped that the state (and all its departments and agencies) would make “special provisions”. That provision “enables” the State (a comprehensive term, including all wings of the Union and State government and its legislatures) to take action in the interests of disadvantaged classes. Once made, such provisions are legally enforceable. The Court further held that the tender conditions are not meant to exclude the “general” class of citizens. They afford an opportunity to an utterly marginalized section, a “step up” or to “catch up” with the other citizens. The object of such preference is plainly to enable the meaningful participation of the most marginalized section, i.e. workers involved in manual scavenging, and scheduled caste/scheduled tribe communities (who are so chosen, having regard to what the Constitution framers stated as “a backward section of the Hindu community who were handicapped by the practice of untouchability”). The state, i.e., DJB, in the opinion of the Petitioner, had a compelling interest in promoting the welfare of these class of citizens, while conceiving and implementing this system of preferences, in the impugned tender.
Chinnamma and Ors. v. State of Karnataka and Ors., MANU/KA/0118/2016 [Karnataka High Court, Single Judge]
This judgment enforced the timelines prescribed under the 2013 Act for rehabilitation measures.
Facts: Petitioners were dependent family members of the deceased who died while cleaning a drain in 2014. The Writ Petition was filed due to the delay in disbursing entitlements of rehabilitation to the dependant family members.
Decision: The High Court of Karnataka observed that even after the concerned State Authority recommending for payment of compensation of 10 Lakhs in 2014, still the Respondent which is the concerned State Department did not take decision on the matter to disburse the compensation in spite of this Court passing interim order directing the Respondent to take time bound decision. The Court also observed that a matter of this nature cannot be made to wait indefinitely and just as development is inclusive, justice has also got to be inclusive. The dependents of the deceased manual scavenger cannot be perennially left to their fate. The Court intervened and directed the Respondent to pay balance 8 Lakhs and comply with all other rehabilitation entitlements as under 2013 Act and Safai Karmachari Andolan Case within 6 months from receipt of the certified copy of this order.
State of Karnataka & Ors. v. Ramadevi & Ors., MANU/KA/1256/2016 [Karnataka High Court, Division Bench]
This judgment recognized and upheld the compassionate appointment of a family member of a deceased open drain cleaner employed by the Municipal Corporation.
Facts: The present writ appeal were filed by the State of the Karnataka and Municipal Corporation of Raichur against the single judge order of directing them to give compassionate appointment and compensation to the family of the deceased who was a daily wage underground and open drainage cleaner (Scavenger) employed by the Municipal Corporation of Raichur and he died drowning into the canal while cleaning the canal. The Single Judge also gave direction to the Municipal Corporation to regularize the contractual daily wage sweepers, poura karmikars and scavengers and further directed granting compensation of Rs. 10 Lakh in case of death during course of employment.
Decision: The division bench of High Court of Karnataka upheld the direction of the single judge in terms of the compassionate appointment and payment of compensation as entitled under the 2013 Act to the Petitioner but set aside the general direction passed by the Single Judge in regard to the contractual sweepers in general. Moreover, the learned Single Judge while issuing the directions to the State to regularise all the daily wage sweepers, scavengers or poura karmikas, should have considered the fact that such a general direction has financial implications for the State.
P. Ayyaswami v. The Chief Secretary, Govt. of Tamil Nadu and Ors., MANU/TN/1129/2015 [Madras High Court, Single Judge]
This judgment holds that delay will not be a bar to claiming compensation.
Facts: The Petitioner in this Writ Petition seeks for issuance of a writ of mandamus to direct the Respondents to pay the enhanced amount of compensation of Rs.5 Lakhs from Rs.15,000/- and further to direct the first respondent to take disciplinary action against the erring officials and to file a case against the erring officials under section 302 IPC instead of 304-A of IPC. The Petitioner’s son by name Karthik was called by the Assistant Manager of the third Respondent club, requesting him to clean the Septic Tank of the club. Accordingly, the Petitioner’s son along with others had gone to the premises of the third respondent and due to poisonous gas, the petitioner’s son died. A case was registered in Crime No.306 of 2011, for the offences under section 304A of IPC and under sections 3, 14, 15 of the Employment of Manual Scavengers and Construction of Dry Latrine (Prohibition) Act, 1993. Rs.15,000/- was the amount sanctioned by the Government of Tamil Nadu towards compensation to the Petitioner which has been challenged in this writ for enhancement.
Decision: The High Court of Madras took note of the decision of the Hon’ble Supreme Court in the case of Safai Karamchari Andolan. In terms of the directions in that case, the State shall identify the families of all persons who have died in sewerage work (manholes, septic tanks) since 1993 and award compensation of Rs.10 lakhs for each such death to the family members depending on them. The Court held that considering the facts of the case, that the death occurred while the petitioner’s son was asked to clean the septic tank in the third respondent’s premises, there is no dispute as to the fact that the death was on account of drowning or poisonous gas in the septic tank. Therefore, the petitioner was held to be entitled to be compensated, which could only be an interim compensation, leaving it open to the petitioner to work out his remedy by filing appropriate petition for further compensation. Further, the Court held that considering the fact that the petitioner’s son was an unmarried person, aged about 21 years and has left behind his father and mother as his legal heirs, the Court awarded a sum of Rs.5 lakhs. Accordingly, the Court directed respondents 1 & 2 to pay a sum of Rs.5 lakhs to the petitioner on account of the death of his son.
National Institute Of Rock Mechanics v. Assistant Commissioner and Executive Magistrate, Kolar Sub- Division and Ors., 2017 (5) KarLJ 279 [Karnataka High Court, Single Judge]
This judgment holds that there is no bar to simultaneous proceedings before the Safai Karamchari Commission and pursuing an FIR.
Facts: The order of Commission of Safai Karmachari directing registration of FIR against manual scavenging, was challenged as it alleged the Commission does not have power to deal with complaints related to manual scavenging.
Decision: The following issues came before the High Court of Karnataka for consideration and the Court delivered the decision on each issue as follows:
Issue I: Whether the suspect/accused is entitled to be heard before registering the FIR?
The Court held that by Section 22 of the 2013 Act, every offence under the said Act is made cognizable. Therefore, it is mandatory for the Police Officer to register the FIR and conduct the investigation and the Petitioner has no right to resist registering of FIR. As held by the Supreme Court in several cases, the scheme of Criminal Procedure Code does not provide for any right of hearing at the time of registration of the FIR. The very purpose of fair and just investigation would get frustrated and make the provisions of law relating to investigation lifeless, absurd and self-defeating, if pre-registration hearing has to be granted to the suspect.
Issue II: Whether the Karnataka State Commission for Safai Karmacharis has the power to direct the Police to register the FIR in respect of the alleged acts of manual scavenging?
The Court held that Karnataka State Commission established under Safai Karmachari Act read with Sec. 31 and 32 of the 2013 Act, can take up the complaint of manual scavenging with the Police.
Issue III: Whether the complaint of manual scavenging has to be filed with the Executive Magistrate only?
It is held that since there is no explicit bar in the 2013 Act, unlike in the 1993 Act, on any other criminal court taking cognizance of the offence, it cannot be said that complaint of manual scavenging has to be filed with executive magistrate only.
Issue IV: Whether the non-filing of the application to the Chief Executive Officer of the Municipality for being identified as manual scavenger precludes the karmacharis from filing the complaint of manual scavenging?
Court held that even if a safai karmachari has not made any application to the Municipality, invoking Section 12 of Act for being identified as a manual scavenger, the karmacharis or their Union can still file a complaint of manual scavenging.
Issue V: Whether or not conducting the survey to identify manual scavengers comes in the way of filing the complaint of manual scavenging?
If the Chief Executive Officer of Municipality fails to cause a survey in that regard, it does not mean that no FIR can be lodged with the State Commission for Safai Karmacharis or with the Police.The failure to take affirmative action by the concerned authorities do not come in the way of the aggrieved persons or their Union seeking punitive action.
Issue VI: Whether the complaint is barred by limitation?
The Court held that the three months’ limitation period prescribed by Section 10 of the 2013 Act has no application, if the accused persons are to be tried under the SC/ST Act also. Hence, the complaint is not barred.
Rajesh And Ors. v. Delhi Jal Board And Ors., MANU/DE/0847/2018 [Delhi High Court, Single Judge]
This judgment reiterates the prohibition on hazardous cleaning of sewers, the liability for causing persons to engage in such acts, and compensation payable.
Facts: Present writ was filed by the Petitioners who are family members of deceased who died while cleaning sewer lines, for adequate compensation.
Decision: The High Court of Delhi held that the plea of Respondent that neither it nor any of its contractors had engaged the deceased persons for cleaning of the sewer lines would not absolve it of its obligation to pay the compensation in the eventuality that a person dies cleaning the same. Each of the respondents denied their obligation to pay compensation. The Court observed that the deceased persons would not have entered the sewer lines willingly unless someone had induced them to pay some money for cleaning it and the payment of money must have attracted them to earn livelihood for themselves and for their families. The compulsion of the dead persons was to earn some remuneration and having died in the course of earning remuneration, someone must be held responsible for the negligence, which resulted in their death. It observed that no doubt, an FIR has been filed but the families of the deceased persons cannot wait for compensation, which they are entitled to in view of the several judgments of the Supreme Court, till a decision in the FIR. That apart, there is a complete prohibition from engagement or employment for hazardous cleaning of a sewer or septic tanks under Sec. 7 of the 2013 Act.
In view of the prohibition, the Court held that the Respondent should have taken necessary steps to ensure that the sewers are not opened for cleaning purposes by anybody. Any mishap occurring surely would suggest a lapse on the part of the Respondent. Moreover, the Court held that the grant of compensation would not await a decision as to who was negligent to compel the deceased persons to go into the sewer lines. The liability being strict, this Court held that the Respondent shall pay an amount of Rs 10 Lakhs each to the Petitioners.
Delhi Jal Board v. National Campaign for Dignity and Rights of Sewage and Allied Workers & Ors., 2011 (8) SCC 568 [Supreme Court of India, 2 Judge Bench]
The Supreme Court reiterated its jurisdiction over PILs concerning manual scavengers.
Facts: Appeal was filed by Delhi Jal Board for setting aside an interlocutory order passed by the Division Bench of the Delhi High Court whereby it was directed to deposit Rs. 79,000/-with Delhi High Court Legal Services Committee in addition to Rs. 1.71 lacs already paid to the families of the deceased worker who died while cleaning drain without protective gear by inhaling toxic gases.This Writ Petition was filed in the Delhi High Court to highlight the plight of sewage workers many of whom died on account of contemptuous apathy shown by the public authorities and contractors engaged by them and even private individuals/enterprises in the matter of providing safety equipments to those who are required to work under extremely odd conditions. The Division Bench issued extensive guidelines and directives for the protection of the interest of sewage workers.
Decision: The Supreme Court of India observed that it is the duty of the judicial constituent of the State like its political and executive constituents to protect the rights of every citizen and every individual and ensure that everyone is able to live with dignity. Given the option, no one would like to enter the manhole of the sewage system for cleaning purposes, but there are people who are forced to undertake such hazardous jobs with the hope that at the end of the day they will be able to make some money and feed their family. It also observed that a substantial segment of the urban society has become insensitive to the plight of the poor and downtrodden including those, who, on account of sheer economic compulsions, undertake jobs/works which are inherently dangerous to life. In this scenario, the Courts are not only entitled, but are under constitutional obligation to take cognizance of the issues relating to the lives of the people who are forced to undertake jobs which are hazardous and dangerous to life. The Supreme Court dismissed the appeal by upholding the direction made by the Division Bench of the Delhi High Court for payment of compensation along with additional cost.