30, Oct 2023 | Tanya Arora
“Ours is a battle not for wealth of power. It is a battle for freedom. It is a battle for reclamation of human personality”
–words of Dr. B. R. Ambedkar,
(quoted by Justice Ravindra Bhat)
On October 20, a division bench of the Supreme Court issued a slew of directions for the Centre and the states to follow with the aim of eradicating manual scavenging from Indian society. The bench comprising of Justices S Ravindra Bhat (now retired) and Aravind Kumar has emphasised on the importance of implementing the provisions of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013. The comprehensive set of fourteen directives issued by the Supreme Court are aimed at eradicating the practice of manual scavenging across the nation as well as establishing robust rehabilitation measures for victims and their families. A pivotal aspect of these directives revolves around significantly raising compensation for injuries or fatalities endured by manual scavengers.
In the judgment, authored by former Justice Ravindra Bhat, the Supreme Court has shed light upon the plight of the large mass of people indulging in the practice of manual scavenging, which continued even after India became an Independent state, and who have remained nearly invisible. “That was (a) centuries old stigmatising social practices that led to their depravation, to such levels that they were not even recognised as human beings. Among these practices was one which generations of people, were made to perform the meanest task of manual scavenging,” the judgment states.
What were the prayers made in the petition filed?
The division bench of the Supreme Court was hearing a Public Interest Litigation (PIL), filed by Balram Singh under Article 32 of the Constitution, against the employment of manual scavengers. The petition had sought for the Supreme Court to issue directions to the Union of India as well as all the States and Union Territories in India to implement provisions of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 and the Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013.
- In February 2023, the Court had directed the Union of India to record the steps it had taken to prevent the employment of manual scavengers in accordance with the prohibition of employment as Manual Scavengers and Their Rehabilitation Act 2013. The court also ordered the Centre to record the steps taken by each state to abolish or demolish Dry Latrines, as well as the status of dry latrines and Safai Karamcharis in Cantonment Boards and Railways. During the previous hearing, the Court had further inquired whether the employment of Safai Karamcharis in Railways and Cantonments Boards were direct or indirect i.e. through contractors or otherwise.
- During the previous hearing, the court asked the Centre to inform it of the steps taken in accordance with the guidelines issued in the 2014 judgment “Safai Karamchari Andolan And Others vs. Union of India And Others.” In the aforementioned Safai Karamchari Andolan judgment, the Court issued an assortment of guidelines for the rehabilitation of manual scavengers, including cash assistance, scholarship for their children, allotment of residential plots, training in livelihood skill and monthly stipends, concessional loans, and so on. The judgment also established the minimum compensation in cases of sewer deaths and directed the railways to end manual scavenging on tracks.
- During the hearing on April 12, 2023, the Amicus, Advocate K Parameshwar informed the bench that the Indian Railways had employed cleaners for ‘insanitary latrine’ using protective gear. This does not fit the definition of manual scavenging, he had claimed.
“The Act says their engagement in Railway tracks is a problem. But then says employment under rules is allowed. The entire purpose of the Dry Latrines Act and earlier judgment was to have mechanised cleaning. But this brings it back,” said Advocate K Parameshwar, as reported by Livelaw. The Amicus Curiae said that the biggest culprit was the “Indian Railways in this instance”.
The Bench had then asked ASG (assistant solicitor general), Aishwarya Bhati regarding the measures that could be taken for states that had not formed the committees as directed by the Court. The Court also asked the Indian Railways to file a specific affidavit dealing with these aspects, and directed ASG Aishwarya Bhati to take instructions from the Railways.
- During the course of proceedings, on May 2, 2023, it was brought to notice of the court about irregular functioning of the Central Monitoring Committee envisaged under the Act of 2013.
Submissions made by Amicus Curiae in the case:
The Supreme Court had appointed advocate K Parmeshwar as the Amicus Curiae in the case. As per the Amicus, Article 15, 17, 23 and 24 of the Indian Constitution gave the right to the oppressed classes to break away from oppressive structures and move to alternative sources of dignified employment. Based upon these aforementioned rights guaranteed, the 2013 Act can be deemed to attain a constitutional status. During the course of the proceedings, the Amicus had brought the following issues to the notice of the court:
- Lack of government figures on manual scavengers in the country, rendering it difficult to conduct any exercise on identifying and rehabilitating manual scavengers. The amicus also pointed to the data provided by National Commission for Safai Karamcharis (NCSK) that has flagged the issue of slow and erratic identification of manual scavengers.
- On the aspect of sewer deaths, the Amicus highlighted the definitions of ‘hazardous cleaning’ under Section 2(d) of the 2013 Act as well as the definitions of ‘sewer’ and ‘septic tank’ under Sections 2(p) and 2(q). He stated that though the Act prohibits hazardous cleaning under Section 7 and 9, no specific bar is made to the manual cleaning of sewers and septic tanks as long as protective gear is given.
- The Amicus also argued that there is a legislative vacuum in so far as rehabilitation for hazardous workers is concerned. The sole rehabilitation, according to him, is by virtue of the judgment of this Court in Safai Karamchari Andolan (supra) where this Court granted compensation of Rs. 10 lakhs to the family of a person who died in a sewer.
- As per the Amicus, a narrow interpretation of ‘forced labour’ should not be taken as this would fail to address structural discrimination and would also render the phrase “other similar forms of forced labour” otiose.
- It was further submitted by the Amicus that “consent” given by the worker to perform hazardous cleaning would not mean that labour is not forced. The Amicus Curiae argued that if it is accepted by the Court that hazardous cleaning is violative of Article 23, then the question of persons engaged in sewage cleaning having practiced it on their own volition does not arise.
- It was further urged that the protective gear and devices referred to must be of such nature that they achieve substantial or near total mechanization of the process so that the dignity of the labourer is maintained and no structural discrimination is perpetuated.
- Regarding NCSK’s working, the Amicus also pointed out that the Commission is only manned by 2 people currently, when it should have 7 commission members. Subsequently, the State commission for Safai Karamcharis existed in only few states.
- Additionally, the amicus curiae highlighted a lack of segregated data for women manual scavengers, while most of the manual scavenging work is done by women.
Analysis by the Supreme Court:
The Bench held that the 2013 Act not only criminalises manual scavenging but also provides for rehabilitation mechanisms to ensure that manual scavengers are emancipated. The first step towards rehabilitation that the 2013 Act, is the identification of manual scavengers through a survey. After their identification by a survey, a final publication of the manual scavengers is to be published under Section 11(6). On publication of the list, the emancipatory provision under Section 11(7) read with Section 6(2) takes effect. It declares that the manual scavengers stand discharged from any obligation to work as manual scavengers. This provision is the heart of the law, this declaration frees manual scavengers from the clutches of their historically oppressive professions. The law consequently empowers them through the process of rehabilitation. Therefore, the 2013 Act, including the provisions, must be interpreted as being in furtherance of fraternity, assuring the dignity of the individual.
Concerning the Government’s contention that the 2013 Act does not contemplate a national survey but mandates a localised survey at the level of local bodies and that two national surveys have already been conducted in 2013 and 2018, the Court after interpreting Section 11, said that the 2013 Act is not a regular statute, it is emancipatory in character and is a manifestation of the constitutional code of upliftment. Furthermore, the Court said that that neither the 2013 nor the 2018 surveys could have been conducted as prescribed under the scheme of the 2013 Rules and the 2013 Act because the institutions entrusted with duties to conduct the Surveys were either not constituted or were not functioning.
Additionally, the Court pointed out that the major short-coming in the implementation of the 2013 Act is that the State and the Central Governments have not even constituted the institutions that are required to implement the Act. This systematic neglect of the statute and inaction by the executive would reduce it to a dead letter.
Directions issued by the Supreme Court:
The court analysed the submissions made by the petitioners and the respondents during the hearings as well as the issues highlighted by the Amicus Curiae and issued a series of directives to both the Union and state governments. The said directions focussed on the effective implementation of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act of 2013. They also encompassed active measures for rehabilitating victims and their families, providing scholarships, and offering skill development programs.
- Complete eradication of manual scavenging: The Court directed the Union to take appropriate measures and frame policies, and issue directions, to all statutory bodies, including corporations, railways, cantonments, as well as agencies under its control, to ensure that manual sewer cleaning is completely eradicated in a phased manner, and also issue such guidelines and directions as are essential, that any sewer cleaning work outsourced, or required to be discharged, by or through contractors or agencies, do not require individuals to enter sewers, for any purpose whatsoever;
- Ensure that directions issued for eradication are followed by states: All States and Union Territories are likewise, directed to ensure that all departments, agencies, corporations and other agencies (by whatever name called) ensure that guidelines and directions framed by the Union are embodied in their own guidelines and directions; the states are specifically directed to ensure that such directions are applicable to all municipalities, and local bodies functioning within their territories;
- Rehabilitation to include employment, education and skills training: The Union, State and Union Territories are directed to ensure that full rehabilitation (including employment to the next of kin, education to the wards, and skill training) measures are taken in respect of sewage workers, and those who die;
- Compensation of Rs. 30 lakhs to be paid in case of sewer death: The court hereby directs the Union and the States to ensure that the compensation for sewer deaths is increased (given that the previous amount fixed, i.e., 10 lakhs) was made applicable from 1993. The current equivalent of that amount is Rs. 30 lakhs. This shall be the amount to be paid, by the concerned agency, i.e., the Union, the Union Territory or the State as the case may be. In other words, compensation for sewer deaths shall be 30 lakhs. In the event, dependents of any victim have not been paid such amount, the above amount shall be payable to them. Furthermore, this shall be the amount to be hereafter paid, as compensation.
- Compensation in case of disability caused: Likewise, in the case of sewer victims suffering disabilities, depending upon the severity of disabilities, compensation shall be disbursed. However, the minimum compensation shall not be less than 10 lakhs. If the disability is ₹ permanent, and renders the victim economically helpless, the compensation shall not be less than 20 lakhs.
- Mechanism for accountability: The appropriate government (i.e., the Union, State or Union Territories) shall devise a suitable mechanism to ensure accountability, especially wherever sewer deaths occur in the course of contractual or “outsourced” work. This accountability shall be in the form of cancellation of contract, forthwith, and imposition of monetary liability, aimed at deterring the practice.
- Establish a model contract: The Union shall devise a model contract, to be used wherever contracts are to be awarded, by it or its agencies and corporations, in the concerned enactment, such as the Contract Labour (Prohibition and Regulation Act), 1970, or any other law, which mandates the standards – in conformity with the 2013 Act, and rules, are strictly followed, and in the event of any mishap, the agency would lose its contract, and possibly blacklisting. This model shall also be used by all States and Union Territories.
- Modalities for conducting a national survey: The NCSK, NCSC (National Commission for Schedule Caste), NCST (National Commission for Schedule Tribes) and the Secretary, Union Ministry of Social Justice and Empowerment, shall, within 3 months from today, draw modalities for the conduct of a National Survey. The survey shall be ideally conducted and completed in the next one year.
- Education and training of committees: To ensure that the survey does not suffer the same fate as the previous ones, appropriate models shall be prepared to educate and train all concerned committees.
- Scholarships for dependents of sewer victims: The Union, State and Union Territories are hereby required to set up scholarships to ensure that the dependents of sewer victims, (who have died, or might have suffered disabilities) are given meaningful education.
- Involvement of NALSA: The National Legal Services Authority (NALSA) shall also be part of the consultations, toward framing the aforesaid policies. It shall also be involved, in co-ordination with state and district legal services committees, for the planning and implementation of the survey. Furthermore, the NALSA shall frame appropriate models (in the light of its experience in relation to other models for disbursement of compensation to victims of crime) for easy disbursement of compensation.
- Coordination between commissions, states and union: The Union, State and Union Territories are hereby directed to ensure coordination with all the commissions (NCSK, NCSC, NCST) for setting up of state level, district level committees and commissions, in a time bound manner. Furthermore, constant monitoring of the existence of vacancies and their filling up shall take place.
- Training and education modules for agencies: NCSK, NCSC, NCST and the Union government are required to coordinate and prepare training and education modules, for information and use by district and state level agencies, under the 2013 Act.
- A portal with information on victims, compensation states and rehabilitation measures: A portal and a dashboard, containing all relevant information, including the information relating to sewer deaths, and victims, and the status of compensation disbursement, as well as rehabilitation measures taken, and existing and available rehabilitation policies shall be developed and launched at an early date.
Through the judgment, the Supreme Court realised the role that caste-based discrimination and social hierarchies play, and thus, have urged the Union, states and respective commission to works towards the complete eradication of manual scavenging. The judgment highlights how manual scavenging is compounded by deeply entrenched feudal and caste-based traditions, which largely lead manual scavengers to hail from marginalized caste groups relegated to the lowest rungs of the social hierarchy. These individuals are assigned occupations deemed deplorable by higher-caste groups, perpetuating social stigma, branding them as “unclean” or “untouchable,” and sustaining pervasive discrimination. Even after the Constitution prohibiting untouchability and discrimination based on caste, manual scavenging has still persisted.
Towards the end of the judgment, Justice Bhat deems it to be the duty of all citizens to realise true fraternity and the fundamental role that dignity and fraternity play in the Constitution. By issuing the aforementioned directions, the court has recognised that without these values, other liberties are mere illusions.
“Each of us owe it to this large segment of our population, who have remained unseen, unheard and muted, in bondage, systematically trapped in inhumane conditions,” Justice Bhat wrote in the judgment.
Justice Bhat called upon the citizens of the country to work towards dispelling the darkness that has plagued generations and to ensure that everyone can enjoy the freedoms and various forms of justice that are often taken for granted.
“Upon all of us citizens lie, the duty of realizing true fraternity, which is at the root of these injunctions. Not without reason does our Constitution place great emphasis on the value of dignity and fraternity, for without these two all other liberties are chimera, a promise of unreality,” the judgment stated
The hearing for monitoring progress in this matter has been scheduled for February 1, 2024.
The complete judgment can be read here: