How courts have expanded jurisprudence for Manual Scavengers High Courts have largely contributed in getting justice to litigants in such cases

14, Feb 2022 | Manav Bhatt

In Part 3 we look at orders passed by High Courts of Delhi, Gujarat, Telangana, Allahabad and Kerala. Most of these cases remain pending before the courts but in each, the courts have passed interim orders to keep matters afloat for litigants.

In Part 2 we looked at orders of High Courts of Madras, Karnataka, Orissa and Punjab & Haryana. In Part 1 we looked at various ground realities with the implementation of the Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013 [ hereinafter the 2013 Act] such as no mention of the same in FIRs filed in manual scavenging deaths, low conviction rates in such offences, states not complying with the provisions of other rehabilitation measures under the Act and delay or non-issuance of compensation.

Here, we have elaborated upon important orders passed by high courts in a bid to implement the law effectively. Intervention of courts and in many cases, continuous monitoring has helped deliver justice to some aggrieved/affected persons and families.

Delhi High Court

Amit Sahni v. Govt. of NCT. Of Delhi

After Advocate Amit Sahni came across a Facebook video posted by MLA from Sultanpur Majra, showing Delhi Government Public Works Department employed manual scavengers cleaning the main road near Neta Ji Subhash Place in the ShakurpurVidhan Sabha area of New Delhi, he filed a PIL in the Delhi High Court seeking ban on manual scavenging. The bench of the Court asked him to share the CDs of the recordings with the respondents impleaded:

  1. Delhi government’s Public Works Department,
  2. the Social Welfare Department
  3. Delhi Jal Board

The petition was scheduled to be heard with a similar other on April 26, 2019.

In the application filed, the petitioner mentioned Union minister Ramdas Athawale’s statement in Rajya Sabha that no manual scavenging deaths have been reported in the last 5 years and that the State’s liability is founded by the fact as it has set-up State Channeling Agencies (SCAs) in various states and Union territories to monitor manual scavenging. Interestingly, despite this the number of cases have only increased, thus hinting towards non-compliance of the 2013 Act.

Thus, the Court allowed the application to implead Union of India as a party and thus ordered the Centre to file an affidavit.

PIL filed by National Campaign for Dignity and Rights of Sewerage and Allied Workers

As reported by Live Law, in a PIL filed by National Campaign for Dignity and Rights of Sewerage and Allied Workers alleging that:

  1. Indirect hiring of manual scavengers through contractors have increased after the 2013 Act
  2. Municipal bodies still not being mechanised, employ scavengers
  3. Direction issued by Delhi government to identify manual scavengers has not been completed by local bodies
  4. Basement of many hotels having septic tanks, manual scavengers are hired
  5. There being absence of safeguards against hiring of manual scavengers by private societies, even the Delhi Jal Board lawyer accepting the same, expressed the need for proper certification of contractors who need to provide licenses and protective devices to the manual scavengers hired. It has also been observed by a division bench that many private persons not being aware of the act, thus engage in these illegal hiring of manual scavengers.

The Court stating “if people are dying, someone has to go to jail”, thus ordered 10 local bodies including the Delhi Jal Board, New Delhi Municipal Corporation and Municipal Corporation of Delhi to file affidavits regarding:

  1. If manual scavengers are being employed directly or indirectly through contractors
  2. Whether this employment is for short or long term, part or full time.
  3. The procedures there to supervise these contractors
  4. Steps taken in order to provide safety kit and protective gear
  5. Steps taken for rehabilitation

Bombay High Court

Abha Singh v. State of Maharashtra,[Crim. Public Interest Litigation [St] No. 26 of 2019]

Order dated Jan 29, 2020

With regards to the application of charges, it was argued by Adv. Isha Singh that the FIR at Govandi Police station only registered offences under Section 304 A IPC and despite the victim dying while cleaning a septic tank, the Sections 7 and 9 of the PEMSR Act have not been applied.

The petitioner wanting to file an additional affidavit with regards to non-compliance of the provisions of the act, the Court allowed it.

While the Thane Municipal corporation addressed saying that:

  1. It does not permit constructing insanitary latrines and septic tanks, whereas it maybe present in old buildings.
  2. The PEMSR Act is being implemented by the Corporation and sought time to submit an affidavit in the matter.

The matter was then listed for 26th March, 2020 and is pending before the court for final decision.

The order may be read here:

 

Vimla Govind Chorotiya&Ors. V. State of Maharashtra &Ors., [Writ petition (L) NO.15651 OF 2021]

Three widows filed a petition after their husbands died in December 2019, while cleaning a septic tank in a private housing society in Govandi. The state’s strict liability was also pleaded by the petitioner’s lawyers under article 17 of the Constitution, even though death had taken place in private society.

While state lawyers pleaded that according to government resolutions, they are supposed to ensure compensation from private party, they were willing to undertake other measures under Section 13 of the 2013 Act.

Reflecting upon the case as an eye-opener, the Court laid the following directions:

  1. 10 lakh compensation to be given to petitioners within 4 weeks
  2. Rehabilitation to widows.
  3. State to furnish information regarding those who died in Maharashtra as manual scavengers since 1993, also the manual scavengers identified and compensation given.
  4. The State to inform whether survey as per S.11 and 12 of the 2013 Act, conducted or not.
  5. The Court will monitor the case in order to ensure compliance with the 2013 Act.

It will decide whether 2009 Maharashtra Government resolution with regards to compensation is in lines with the previous Supreme Court order.

The order may be read here:

 

Gujarat High Court

In a 2016 PIL filed by the NGO Manav Garima, the same was initially filed for ensuring compensation for affected families, but the Court has supervised and ordered the implementation of the 2013 Act. Taking almost 6 months, the report ordered by Court regarding the existence of manual scavenging and the employment of manual scavengers by various municipalities and municipal corporations in the state in violation of the Act that prohibits the practice was submitted by the State.

Manav Garima v. State of Gujarat,[R/WRIT PETITION (PIL) NO. 225 of 2016]

Order dated November 28, 2018

Court ordered the government to file detailed report including:

  1. Employment of manual scavengers by Municipalities and Municipal Corporations despite the act
  2. Should include activity that is outsourced or on contract basis

The authorities be drawn attention to Government resolution dated 16.12.2016

The order may be read here:

 

Order dated June 26, 2019

While the government counsel sought time to file affidavit and the Court was not happy with the response filed, the petitioner pointed out the non-application of the 2013 act provisions and rather being under accidental death. The Court asked the government to include reply to it in their response.

Order dated July 8, 2019

The petitioner brought up that compliance with 2013 act does not only include eradication of scavenging, but also rehabilitation, the Court said that the same be borne in mind so that this minimum requirement from the State side need not be time and again reminded to them.

Order dated September 19, 2019

While the petitioner drew attention to number of manual scavenging cases and pointed out to a FIR whereby the provisions of the 2013 Act were not invoked, the government sought time till 24th September.

Order dated September 24, 2019

As also reported by DNA India, criticizing the Gujarat Government for submitting a poor affidavit in reply to the previous order to take measures to end manual scavenging, the Court stated:

“We are at pain to record that the last affidavit placed on record does not reveal any tangible, concrete, reckonable steps taken for radical manual scavenging prevalent in this part”

While the Court had asked concrete steps taken to implement the 2013 law which could be examined and tested, the State rather submitted its proposed measures.

The Government having sought time till October 9, the Court granting the same said that the reply should definitely:

  1. list out the nodal officers appointed to ensure the compliance
  2. contain the minutes of the monitoring committee meeting if any held.
  3. The state to also clarify as to what actions are taken and why the provisions under the act are not invoked in the reported deaths.

The order may be read here:

 

Order dated October 10, 2019

The Government side having submitted the affidavit, and have said with regards to the representation placed previously that no action has been taken on the death of a person by forcing him to enter a gutter, the Court said:

“We are of the view that the fact mentioned therein, if it is correct, it is deplorable and betrays lack of required action on the part of the concerned.” 

The State was asked to file affidavit regarding the action taken against the person.

The order may be read here:

 

Order dated October 21, 2019

The Court expressed its dissatisfaction by stating:

“It appears that, despite pendency of the matter and assurances to the Court, the unfortunate situation still prevails under which on one pretext or the other the workmen will have to risk their lives. We are at pain to note that there is absolute lack of sensitivity qua the issue, else this would not have happened.”

The order may be read here:

 

Order dated October 22, 2019

The Court reiterated that no stone be left unturned to avoid any further instances and for maintain of sewerage pipelines, strict compliance with the act is to be ensured. With regards to the deaths occurred during pendency of the petition, it should be seen that compensation is awarded to victim’s family.

The order may be read here:

 

Order dated December 10, 2019

The High Court expressed its dissatisfaction as Justice SR Brahmbhatt stated:

“We record our utter dissatisfaction qua the situation so far as manual scavenging is concerned.”

The order may be read here:

 

Order dated December 11, 2019

Reiterated the need of compliance with the 2013 Act in letter and spirit and those responsible for implementation need to be sensitized.

The order may be read here:

 

Order dated January 30, 2020

The State asked the filing of a detailed compliance report and the time needed for such compliance with the 2013 act and if not complied than the reasons why.

Order dated February 11, 2020

Compliance report was placed on record.

Matter was adjourned till Feb 27, 2020.

Telangana High Court

In November 2019, in a programme the Telangana Chief Justice handed over Rs. 75 lakhs to families of 9 manual scavengers who had died between 2003-17, a move that came after the Chief Justice also patron in chief of Telangana Legal Services Authority(TSLSA), had directed it to gather information regarding the person died in the process and subsequently the TSLSA got the compensation sanctioned from Greater Hyderabad Municipal Corporation and the Hyderabad Metro Water Supply and Sewage Board, which sanctioned the compensation. The compensation given to a family, ranges from 8 to 10 lakhs.

As reported by the New Indian Express, Justice Ujjal Bhuyan based on a newspaper report in the New Indian Express whereby two workers had died while cleaning a septic tank in Hyderabad, sent a note to the judicial registrar of the High Court, that expressed his deep anguish with regards to the state allowing manual scavenging despite the 2013 enactment prohibiting it.

The points of paying compensation of Rs. 10 lakhs as per the SC judgement, survey of manual scavengers as mandated by the SC and the rehabilitation measures being recalled, the Court issued notices to authorities asking them to file a reply listing the case for 04.01.2022.

Allahabad High Court

Anupriya Yadav and 7 others v. Union of India and Ors. , [Public Interest Litigation (PIL) No. – 681 of 2021],

Order dated March 25, 2021

In a PIL filed by Law students who had under taken a systematic survey with regards to objective condition for scavenging in Allahabad and the State, also concluding that no safety equipment is provided and thus working manually in contradiction to the 2013 Act.

The petitioner put forth the following suggestions which were contended to be in lines with the 2013 Act:

  1. Technology like suction machines be used
  2. Local bodies and sanitation inspectors be trained about the act, safety procedures, technical information about cleaning device
  3. Awareness about the 2013 Act and its ground implementation as well as sensitization of authorities
  4. Authorities to be monitored to:

– Ensure compensation to families

– Penalize implementing agencies who defaulted

5. Comprehensive rehabilitation i.e. one adult family member to be given adequate skill training and employment opportunity

6. Scholarship scheme implementation

7. Proper penalties for those who engage in the offence

8. Sufficient budget allocation for Scheme for Rehabilitation of Manual Scavengers (SRMS)

9. Regulation of sanitation work

10. The High Court directed the Uttar Pradesh Government to file its response to the same.

The order may be read here:

 

Kerala High Court

BaisilAttippety (Died) vs Kerala Water Authorty,WP(C).No.11185 OF 2014(S), Order dated Feb 18, 2021

In a 2014 PIL filed seeking compensation for two men who died in a manhole in a sewerage pipeline operated by the Kerala Water Authority (KWA), who also did not give them safety equipment and oxygen masks due to which they died.

Relying upon the Supreme Court judgement in Safai Karamchari Andolan case, the Court ordered Rs. 10 lakh compensation to be given to the family member and said that rehabilitation must be done on the principles of justice and transformation.

The order may be read here:

 

Image Courtesy: thewire.in

Related:

The Manual Scavengers Act: Jurisprudence so far

Manual scavenger deaths: How effective is the law in preventing them?

Death by excreta: The cursed lives of India’s manual scavengers

Manual Scavenging: Why the gov’t’s conscience is not clean about the Swachh Bharat Mission

 

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