This blog is inscribed by Gaurav Puri.
Introduction
India, even after seven decades of independence, is in a constant struggle to end the most ‘inhuman’ and ‘undignified’ practice of manual scavenging.[1] The Ministry of Social Justice and Empowerment has recorded the following statistics vis-à-vis Manual Scavengers and Dry Latrines.
- ‘6,76,009’ manual scavengers out of which ‘95% are dalits.’[2] (2002-2003)
- 11,000 manual scavengers are still employed and 4.15 lakh dry latrines still exist even if we consider only 7 states in India.[3]
- The Sub-Committee of the Task Force constituted by the Planning Commission in its report estimates ’72.05 lakh’ dry latrines in the country and ‘96% of these are being cleaned manually by scavengers.’[4]
The survey conducted by the National Commission for Safai Karamchari’s brings a different picture to light and shows the conservative figure of the Government. According to their survey ‘12 lakh manual scavengers’ exist in India.[5]
In 1993 the Government of India enacted Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 (hereinafter1993 act) [6] and yet there was no decline in the number of manual scavengers in India. The Act was not enacted by every state as it was left to the discretion of the states whether to enact the legislation or not.[7] Therefore, it was this backdrop that brought about the present petition to be filed in the Supreme Court.
The petitioners prayed to the court that the continuation of the inhuman practice of manual scavenging as well as the existence of dry latrines was illegal and ultra vires the Constitution of India as it is violative of Part III of the Constitution if tested against Art. 14, 17, 21 and 23 r/w Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 (hereinafter1993 act). The petitioners prayed to the Court to direct the Union to undertake measures to completely eradicate the practice of manual scavenging along with making detailed and timely plans for the rehabilitation of people employed as manual scavengers and prohibition of construction of dry latrines.
The petitioners also prayed that the court direct all government bodies to take action against the violators of the provisions and those who employ individuals as manual scavengers. Further, to file reports to the Court mentioning the progress in combating manual scavenging.
Analysis
Contention on behalf of the Petitioners
The petitioner’s prayer and their case revolve around the implementation of the existing provisions of law. The court has treated the case as a ‘continuing mandamnus’, therefore implying that all directions of the Court since 2013 are part of the present matter. The statistics provided by the petitioners had brought the attention of the Court to the existing practice of manual scavenging and the presence of dry latrines in great numbers even after the legislative mandate to end both such practices.
Contention on behalf of the Respondents
The Union in reply took the court’s attention to the new 2013 act where the lacuna of law vis-à-vis the 1993 act was filled. The salient features of the 2013 act define ‘manual scavenger’[8], ‘insanitary latrine’[9] and ‘hazardous cleaning’[10]. Further the act directs the local authorities to survey “insanitary latrines and provides sanitary community latrines.” The act prohibits construction of dry latrines and employment of persons as manual scavengers.[11] The act also adds provision for rehabilitation of individuals formerly or currently employed as manual scavengers whose name is in the list under the act.[12]
Directions of the Court
The Court held that clearly the practice of manual scavenging and construction of dry latrines had not ended and was followed in huge numbers across the Country in this regard it held the following:
- Directions to the Government to rehabilitate in a timely manner manual scavengers mentioned in the List under the Act.
- Add to the act the following with regard to rehabilitation of manual scavengers:
b.1 Sewer Deaths
b.2 Railways using individuals as ‘Manual Scavengers’
b.3 Timely rehabilitation and compensation to Manual Scavengers
b.4 Provide support to women safai karamcharis with regard to livelihood based on their choice.
The compensation given by the Government according to the Court Must include
a. one-time cash assistance
b. scholarship to their children for education
c. Residential plot with financial assistance for construction
d. Job Training and monthly stipend
e. Subsidy and loan to one family member for taking alternative job on a sustainable basis.
f. Compensation of 10 lakhs to scavengers that have died during Sewer work.
g. Rehabilitation based on principles of natural justice.
The Government of States and Union territories were also further directed to ensure compliance to the provisions of the Act.
Critique
The practice of Manual Scavenging and having Dry Latrines is far from over even after many directions from the Court to the Government. In Delhi Jal Board v. National Campaign for Dignity & Rights of Sewerage& Allied Workers The Supreme Court observed that, “The workers are suffering from high mortality and morbidity due to exposure at workplace. 33 workers had died in last 2 years due to accidents while working on the blocked sewer lines…59% of the workers enter underground sewer manholes more than 10 times a month and half of them have to work more than 8hours a day… 41workers have reported syncope, and other 24reported temporary loss of consciousness. A little over 1/3 of the workers had been immunized against tetanus while none of them had been vaccinated against hepatitis B. Approximately 46 % of workers across all age group were found to be under weight according to Body Mass Index (BMI) calculation….All daily wagers were getting a wage of approximately 2950 rupees per months without any other benefit irrespective of service period.”[13]
Manual Scavenging leads to manifold diseases in humans and low mortality rate. It is also a very caste based occupation within which only the lowest strata is involved. The practice is in direct violation of Part III of the Indian Constitution. In 2018 the Ministry estimates around ‘13,657 manual scavengers in 13 states.’[14] Therefore the practice is far from over.
Recently, in the matter of Rajesh v. Delhi Jal Board[15] the Delhi High Court placed reliance on the above-mentioned cases to direct the State Government to pay speedy compensation to families of victims that died during cleaning sewers. In Lt. Col. BB Sharan v. MCD[16] the petitioner prayed to the court to take cognizance of the various deaths that are occurring due to manual scavenging practices and for implementation of the act, the Court in this regard clubbed various and cause(s) of action relating to death because of Manual Scavenging and directed the local authorities to compensate and improve their practices. Various writ petitions have been filed across the nation seeking directions to The Government to direct all the local bodies and local authorities to take strict compliance of the Act and the Resolutions as well as the policy decision of the Government.[17] The courts have also now become more active in granting quick and increased quantum’s of compensation to victims.[18]
Conclusion
The case serves as a landmark in recognising the rights of manual scavengers and the importance of destroying existing and prohibiting further construction of dry latrines. The Judicial Activism of the Court can be seen in the present case by virtue of adding the above-mentioned 4 heads to the existing cases for rehabilitation. The Court recognises the use of manual scavengers by Indian Railways and other public bodies and comes down heavily.
The second aspect of the Judgement is the rehabilitation measures to be taken by the Government which the Court directs should be done in a quick manner respecting the principles of natural justice and transformation.
The judgement requires political will now to completely eradicate the practice of manual scavenging in India. The law is very clear to the effect of prohibiting acts to prohibit the practice and prescribing penalty. For its implementation, it is pertinent that the various vigilance committees[19], local authorities and officers[20] along with the monitoring committee at the State and the Central level[21] work in tandem and periodically submit compliance reports to the Court as mandated. The Government must first itself stop the use of manual scavengers in Railways and various Departments such as the Jal Boards.
[1] Sameul Sathyaseelan, “Neglect of Sewer Workers: Concerns about new Act”, Economic and Political Weekly, Vol. 48, No. 49 (DECEMBER 7, 2013), pp. 33-37.
[2] Rashtriya Garima Abhiyan , “Report: Justice Denied: Death of workers engaged in manual scavenging while cleaning the Septic tank or Sewer”, pp. 37, available at: https://idsn.org/wp-content/uploads/2018/12/Report-Justice-Denied-Death-of-workers-engaged-in-manual-scavenging-while-cleaning-the-Septic-tank-or-Sewer2.pdf, (accessed 19th September, 2019).
[3] Narasimha Rao, “Employment of Manual Scavengers: A Curse on Human Dignity”, 2015, LawAsia, J., 77 (2015); see also Press Information Bureau, Government of India, ‘Review of the Implementation of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act by Minister of Social Justice and Empowerment,‘ 21 August 2014.
[4] Safai Karamchari Andolan v. Union of India, (2014) 11 SCC 224.
[5] Safai Karamchari Andolan v. Union of India, (2014) 11 SCC 224; See also, National Safai Karamcharis Finance & Development Corporation(NSKFDC),” Annual Report 2013-14”, available at: https://nskfdc.nic.in/en/content/home/home, (accessed 19th September, 2019).
[6] Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993.
[7] Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, ch. II (3)(1) read with ch. III (6)(1).
[8] Sec. 2(1) (g), Prohibition of Employment as Manual Scavengers and Their Rehabilitation, 2013.
[9] Sec. 2(1) (e), Prohibition of Employment as Manual Scavengers and Their Rehabilitation, 2013.
[10] Sec. 2(1) (d), Prohibition of Employment as Manual Scavengers and Their Rehabilitation, 2013.
[11] Sec. 5, Prohibition of Employment as Manual Scavengers and Their Rehabilitation, 2013.
[12] Sec 11 & 12 r/w Chapter IV, Prohibition of Employment as Manual Scavengers and Their Rehabilitation, 2013.
[13] Delhi Jal Board v. National Campaign for Dignity & Rights of Sewerage& Allied Workers, 2011 (8) SCC 568.; see also Centre for Education and Communication in collaboration with Occupational Health & Safety Management Consultancy Services on “Health & Safety Status of Sewage Workers in Delhi.”
[14]Press Information Bureau, Government of India, ‘Rehabilitation Of Manual Scavengers’, 31 July, 2018.
[15] Rajesh v. Delhi Jal Board, 2018 SCC OnLine Del 7497.
[16] Lt. Col. BB Sharan v. MCD, 2017 SCC OnLine Del 11352.
[17] Lok Adhikarsangh v. State of Gujarat, 2015 SCC OnLine Guj 2383; Chinamma v. State of Karnataka, ILR 2016 Kar 2116.
[18] Deenakandal v. State of Karnataka, 2018 SCC OnLine Kar 3188; Ramdevi v. State of Karnataka, 2015 SCCOnLine Kar 3188.
[19] Sec 24 & 25, Prohibition of Employment as Manual Scavengers and Their Rehabilitation, 2013.
[20] Sec 17, 18 and 19, Prohibition of Employment as Manual Scavengers and Their Rehabilitation, 2013.
[21] Sec 27, 28 and 30, 31, Prohibition of Employment as Manual Scavengers and Their Rehabilitation, 2013.
