The Manual Scavengers Act: Jurisprudence so far High Courts have repeatedly directed states to effectively implement the 2013 Act

09, Feb 2022 | Manav Bhatt

In Part 2 of our series related to Manual Scavengers, we elucidate how various High Courts have directed the state governments and the concerned authorities to take effective and meaningful steps for the implementation of the law. We list the desperate attempts of the Judiciary and the lackadaisical attitude adopted by some states in dealing with the issues at hand and ensuring compliance in order to ensure justice.

Part 1 of our series shed light on the various ground realities, especially challenges with the implementation of the Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013 [ hereinafter the 2013 Act]. These include serious issues 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.

In the following tables 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.

1. Madras High Court

Change India v. Government of Tamil Nadu, W.P.No.25726 of 2017

In a PIL seeking to enforce the 2014 Judgement, the Court establishing that the directions, not only applied to manual scavengers engaged by the state, but also the those employed by private entities falling under the jurisdiction of a municipality. It stated the State’s duty to prohibit manual scavenging. It further said that this liability to compensate for the lives of the manual scavengers lost cannot be avoided by the State by reason that it is not able to put an end to manual scavenging.

In this petition seeking interest due to delayed payment of the compensation to the family of the worker by the state, the same to be levied from the day of the death of the worker, the Court rejecting this ordered the State to pay the interest at 8% annum from October 1, 2014 till the Rs. 10 lakhs were paid to the heirs of the manual scavengers who lost their lives during the process of manual scavenging.

The order may be read here:

 

Safai Karmachari Andolan v. Union Of India, [WP/17380/2017 (PIL), WP/31345/2014 & WP(MD)/24243/2017]

Order dated 10.02.2020

In a batch of writ petitions filed before the Court, petitioners pointed out how the State failed to stop manual scavenging that in turn claimed lives in the Villupuram and Kumbakonam Municipalities, and that this was a violation of the 2013 Act. The Court asked the State Government to file a response within two months as to:

1.What steps were taken apart from compensation, to rehabilitate the families of manual scavengers?

2.What steps were taken to mechanise the process of scavenging throughout the state?

3.Asking the Commissioners of Villupuram and Kumbakonam Municipalities about inactivity despite such instances, or if any action taken what was its outcome?

4.The actions taken by the State against the person not complying with the directions and thus leading to such deaths.

In that case with regards to the death of a person, the State had contested that the deceased was engaged by a contractor employed by the municipality, and that he died while working outside the sewer despite the mechanized equipment and safety measures, the petitioner having objected to such representation.

Order dated 16.03.2021

While no response was submitted to the above orders and the State sought more time for collecting information from districts, the Court in return:

1.Highlighted that the petition being filed since 2017, it has time and again stressed on the need to do away with this practice and infliction of suffering on a class. Further throwing light on the seriousness of the issue it stated:

“Young men belonging to such communities, in desperation and the lure of quick bucks, undertake the risky exercise of entering underground pits and are quickly engulfed by carbon monoxide, hydrogen sulfide or like toxic fumes that leave them little scope to turn around and escape.”

2.Acknowledging the fact that the Municipalities may not directly employ the manual scavengers, the same may be done through contractors and thus the issue being continued.

3.Thus, expressing its opinion that its high time for the heads of Corporations and Municipalities to be held personally liable for manual scavenging deaths, the Court laid the following directive:

“It must be made clear by the appropriate department of the State to all heads of Municipal Corporations and Municipalities in the State that any manual scavenging death within the jurisdiction of the relevant Municipality or Corporation will result in the Commissioner or Chairperson or the like controlling authority of the relevant body to face criminal charges and be subjected to immediate arrest.”

The order may be read here:

 

Order dated 08.09.2021

Reiterating personal liability of the heads of Corporations and Municipalities for manual scavenging deaths, the Court directed the Commissioners of Municipal Corporations across the State and heads of the Municipalities to file written undertakings saying that no manual scavenging work will be allowed to be undertaken within their jurisdictions. If such work is found, the heads will be held personally liable. The Court also ordered that machine be procured for the same, and sewer lines be improved to ensure the problem does not continue.

The order may be read here:

 

Order dated 10.11.2021

1.Being convinced by the petitioner’s arguments that the cost of living having been enhanced considerably since 2014, the petitioner also seeking Rs. 50 lakhs as compensation in cases of deaths, the Court observed that the quantum of compensation being set as 10 lakhs in the year 2014 might be very low since substantial time has elapsed. Thus, the Court further stated that:

“State could consider 2014 as the base year and then peg the increase to the rise in wholesale price index or any other relevant index for determining the appropriate amount of compensation.”

Further, it was held that if states agreed, they could increase the rate every three years, also reviewing it every nine years.

2.With regards to the status report filed, the Court asked for the petitioner’s suggestions in writing as it pointed out:

i.There not being mentioned anything conferring employments to dependents of the worker who died

ii.Report mentions criminal action against contractors; Urban local body heads also suggested

iii.There being more than 3,000 manual scavengers while in 2014 only 436 of them being acknowledged, fresh enumeration under Section 11 of the 2013 Act to be taken up.

iv.While urban areas have been successful in not employing manual scavengers, for septic tanks owned by private individuals in semi-urban areas, light had not been thrown on the measures taken by the State. Further, also being suggested that registration of septic tanks be made mandatory.

It was also noticed that the State had complied with most of the requirements.

The order may be read here:

 

Order dated 08.12.2021

The government’s status report was filed in reply to the directions in the previous order and was submitted that:

i.All Municipal Commissioners had given undertaking that manual scavengers won’t be employed.

ii.Six weeks were needed to decide the quantum of compensation as in the meeting convened by chief secretary, there was consensus to increase but by what percent every three years was to be decided.

Thus, the Court directed the State to submit a report in four weeks on:

i.Quantum of compensation

ii.Rehabilitation measures for family of manual scavengers

After this, non-action on FIRs filed as pointed out, FIRs to be collected and analysed.

The petitions were listed for 19.01.2022

Order dated 9.02.2022

As a further development in this case, the Court, taking up the prayers of the petitioners one-by-one, highlighted that manual scavenging by urban local bodies employing them through contractors should be stopped and the tenders be terminated. When the Court asked the Government counsel whether he was aware regarding municipal corporations employing them in such a manner, he did not place any certain figures and was not aware of the situation.

The petitioner further furnished information that 44 deaths have taken place in Tamil Nādu recently and that in 2021 WMP 6849/ 2021, the reported deaths for the years 2019, 2020 and 2021 were listed. It was further contended that both persons and local bodies need to be prosecuted if the 2013 act not complied with. Though the state had adopted a zero tolerance policy, only two out of the total 34 people against whom an FIR was filed were municipal officials, as per a report in LiveLaw.

Thus, the Court had apprised the government counsel about the three lingering issues as follows:

1. Whether the local bodies had knowledge of employing manual scavengers?
2. Issue of compensation to be paid
3. The extent of action taken against contravention of the act and engaging in manual scavenging

It was submitted by the Government counsel that the zero-tolerance policy exists and that from 2015 no person had been engaged by the authorities for manual scavenging. 38 of the 44 people mentioned were paid the compensation and the other died due to other reasons or in private residencies. However, this was contested as the affidavits filed in the said petition had shown deaths taking place in 2019 because of hiring manual scavengers through contractors. It was further submitted that the writ also prayed that just filing FIRs not being important, number of chargesheet filed, stage of prosecution and successful conviction need to be given.

Thus, the state government was asked to file a reply on these allegations made against urban local bodies in the writ petition within 4 weeks.

The order may be read here:

 

2. Karnataka High Court

All India Council of Trade Unions v. UOI, [Writ Petition No. 8928 OF 2020 (LB-RES) PIL C/W, Writ Petition No. 3211 OF 2018, (GM-RES) PIL in Writ Petition No. 8928 OF 2020] & High Court Legal Services Committee v. The State of Karnataka, in Writ Petition No. 3211 OF 2018

Order dated 9. 12. 2020

In a plea filed by All India Council of Trade Unions (AICTU) and High Court Legal Services Committee,

1.The Court reiterated :

i.That the Constitutional scheme consisting of right to dignity under Article 21 does not allow manual scavenging in any form and the Preamble seeking to protect this dignity, manual scavenging infringes this right under article 21.

ii.Along with such violation, it also contradicts Article 47 of the Constitution that imposes a duty on the state to improve the standard of living of the people.

2.With regards to the definition of ‘Manual scavenger’ under the 1993 and the 2013 Act, the Court held the one under the latter to be wider in scope as S.5(1) completely prohibits manual scavenging while under S. 3 of the old act, the protection not being automatic, states were to remove a notification to prohibit the same.

3.Noticing the lack of implementation in Karnataka it was held to be a case where continuous examination being necessary, continuing mandamus is to be exercised.

4.The Court further laid down directions to implement the 2013 Act as follows:

i.To place details of the FIRs registered for offences under the Act and details of case with charge sheets, pending status, convictions and acquittals.

ii.Place compliance of decisions taken 23rd February 2018 meeting held under Chairmanship then Additional Chief Secretary

iii.Show that District Level Survey Committees mandated by the act have been constituted and if they conducted surveys and published final list of manual scavengers.

iv.Show details regarding:

a.constitution of the State Level Survey Committees

b.number of meetings held

c.gist of functions so far discharged

v.Show survey data of insanitary latrines in state, their demolition/conversion

vi.If any notification has been issued in exercise of power conferred by the second proviso of subsection (2) of Section 5 of the Manual Scavengers Act

vii.Show details of district and state -wise final lists of manual scavengers

viii.Call for reports from the authorities/authorized officers for implementing Section 18 of the act. Shall ensure that directions are issued to them to comply with the requirements of Section 19

ix.Show number of meetings held at the Districts, Sub-Divisional and the State level Vigilance Committees

x.Issue directions to all the Local Authorities to implement the provisions of the Manual Scavengers Act and the Rules. To specifically refer to their obligations and duties under various provisions. Local authority compliance to be monitored by State Level Monitoring Committee.

xi.Direct all the Local Authorities to –

a.comply with the obligations under subsections (2) and (3) of Section 4

b.ascertain how many sanitary community latrines required

c.number of such community sanitary latrine made to be placed on record

xii.Immediately initiate awareness campaign on a large scale for elimination of the practice of open defecation. Ensure that all Local Authorities comply with their obligation for eliminating it. Taking help of NGOs and the Karnataka State Legal Services Authority, conduct the campaigns in rural areas

xiii.Show steps taken for rehabilitation and the state and central schemes for the same.

xiv.Show copies of notification if any in exercise of  powers under explanation (b) to clause (g) of Section 2 of the act.

xv.Show Compliance details with directions contained in paragraph 23.3 of Safai Karamchari Andolan judgement of the Supreme Court.

5.The court also stated that the Karnataka High Court Legal Services Committee and all District Legal Services Authorities are entitled to convene meetings of all stakeholders helping them in compliance.

6.Finally, the Court asked the state to file compliance affidavits by Jan 30, 2021.

The order may be read here:

 

Order dated 17. 02. 2021

1.The High Court asked the State government to issue a general direction to all Urban and local authorities, agencies and instrumentalities of the State to implement Rule 3 of the 2013 Rules. Further, directions to also incorporate compliance of rule 3 in the contract of work when hiring a contractor to be issued.

2.While in the previous hearing with regards to the FIR registered in death of two labourers employed by Karnataka Urban Water Supply and Drainage Board (KUWSDB), the government was directed to submit the investigation report. A Forensic Science Laboratory report showing the cause of death still being awaited, direction to expedite the same was given, the result based on which Section 304 would have been applied. KUWSDB was ordered to record whether they have complied with the assurance out of compassion they gave to outsource employment of the spouse of the victim.

3.In the show cause notice with regards to the death of the worker, it was shown as accidental death, the man slipping into the manhole, the Court asking the authority for explanation on this.

Order dated  16. 03. 2021

1.Going through the compliance report filed by the government in reply to the orders of December 9, the Court concluded that:

“There is hardly any compliance by the State Government with the provisions of the said Act of 2013”

Thus, it laid the following directives:

i.State level Survey Committee to be constituted immediately by the State

ii.The Survey to be immediately done in true letter and spirit under Section 4(1) of converting insanitary latrines into sanitary latrines and the same to be completed in a time bound manner.

iii.The State government to decide within a month as to whether health inspectors to be appointed as inspectors under the act.

iv.The government to also place on record whether the schemes are implemented or not and also devise a plan for rehabilitation as under the act. It was to record who are the beneficiaries and how they are made aware of these benefits under the schemes.

2.Further Section 33 of the 2013 Act establishing the duty of the authorities to apply modern technology in scavenging projects, the State, the Court asked the Government to file an affidavit showing whether this duty has been fulfilled and promoting mechanization of sewer cleaning done or no.

3.It further directed State Governments to also consider giving notices to local authorities to comply with the duty under Section 33(2) of the Act.

The order may be read here:

 

Order dated 30.08.2021

The Court stated:

1.No manual scavenging to take place without complying with rules 3-8 of the 2013 Act.

2.Non-compliance with such provisions of the act will result in contempt of court proceedings against the district magistrates as they are responsible for rehabilitation under the 2013 act and it is their duty to create awareness among the officers of local bodies to ensure compliance with the act. Thus, the order directed the magistrates to ensure compliance.

3.With regards to the police investigation in the two incidents brought before the court earlier, 30 days were given to complete it. Further, in the Ramanagara incident Rs. 10 lakhs having being paid, other steps under Section 13 were not taken and thus, the Court ordered the district magistrates to file compliance memo and if not complied to be present before the Court.

Referring to Section 13, the Court stated:

“There are other steps which are also required to be undertaken by the state government. Except for granting 10 lakh and casual employment (daily wages) nothing is being done.”

The Section also lays for providing residential plots and financial assistance for making houses, scholarships to children, etc.

4.Asked the state as to why the survey is not complete despite the 2013 act being into force. Further, a detailed chart of the equipment provided under the rules and their availability with the local bodies was asked to be made, further also ensuring that if they are not available, they are provided with the same.

The order may be read here:

 

Order dated 04.10. 2021

1. The Court directed to complete the Survey for identification and rehabilitation of manual scavengers within two months.
2. Section 13(b) laying the requirement to provide scholarship as per the relevant scheme of the Central/State Government or local authority, the Court further stating that “The disparity in paying scholarship has to come to end and uniform policy has to be made in respect of the point of scholarship to be paid in all such cases”, the government was given a time of 30 days to formulate a scheme for scholarship grants and compassionate appointment as mandated under 2013 Act. As briefed to the Court while in the compliance report a Rs. 1000 Scholarship is mentioned, Rs. 10, 000 was given in some cases, further there being no clarity on whether such payment is monthly, yearly or one-time.
3. In Ramangara incident, employment to family member as under Section 13 was ordered to the government to be given within 30 days.

In Kalaburagi incident, casual appointment being given, the Court elaborating that Section 13 needs to train legal heirs for alternate vocation, the same to be done within 30 days.

The detailed chart on equipment not being filed, the state was given 30 days to do so.

The order may be read here:

 

3. Orissa High Court

In Re: Deaths of Sanitation Workers, SUO MOTU W.P.(C) No.14589 of 2021-PIL,

Order dated 19.04.2021

1.Newspaper reports showed death of two due to asphyxiation after a men entered a 15ft deep tank and 2 others rushed in to rescue after he fell unconscious. Another instance also showing death of 2 while maintaining septic tank in Bhubaneshwar, led the Court to take Suo-motu cognizance of such manual scavenging deaths and outright violations of the 2013 Act and the 2014 judgements and thus seeking to implement them.

2.Condemning the shameful practice and being abhorring its presence despite article 17 abolishing untouchability and the PEMSR Act, and the 2013 act prohibiting especially such acts, the Court:

i.Will examine the applicability of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Rules in such cases.

ii.Accordingly, notice was issued to the State and other instrumentalities

iii.State of Odisha was asked to file an affidavit for the steps taken to comply with the PEMSR Act and the 2013 act, manual scavenging deaths since 1993, compensation paid in such cases, whether identified scavengers were rehabilitated and those who violated the law punished.

3.Compensation of 10 lakh in the above incidents was ordered to be paid to victim’s families.

The order may be read here:

 

Order dated 31.05. 2021

In pursuance of the earlier order, the Court asked Water Corporation of Odisha (WATCO), to file an affidavit with regards to payment of compensation to the families of the victims of the two incidents previously discussed with proof of payment receipts.

The Court was also briefed by an amicus curiae Mrs. Pami Rath who raised additional issues resulting which the Court asked a response from the State and also about the death of two more workers in Kandhamal district.

The order may be read here:

 

Order dated 06.07.2021

1.As a further development, the Housing and Urban Development Department, Government of Odisha had issued an advisory dated 7.05.2021, to the 5 municipal corporations, 4 towns, municipality executives, NACs, urban local bodies, MD of WATCO, Member Secretary of Orissa Water Supply Sewerage Board (OWSSB, directing that no person/local authority/ agency was to engage/ employ any person for manual cleaning of a sewer/septic tank without providing protective gear and other cleaning devices and thus ensure safety precautions.

2.The Court held the same to be applicable to even sewer cleaners and sanitation workers as well.

3.Finally, the Court asked the State to file an affidavit confirming the functionality of these Emergency Response Sanitation Units” (ERSU) as under the circular and whether they are properly equipped. Further the OWSSB was asked to file response regarding the steps taken to implement the circular.

The order may be read here:

 

Order dated 04.12.2021

The Court being briefed by an amicus curiae showing photographs of sewer cleaning on Puri Beach Road as of 20.11.2021 whereby people working did not have protective gears and equipment, it asked the Collector at Puri for an explanation as to how was the same permitted.

Asking the State government to file an affidavit showing steps taken to implement the 2013 Act at least one week prior to the next hearing on January 20, 2022, the Court also asked the Collector at Puri whether there is awareness in local population regarding the 2013 and 1993 Acts.

The matter has been listed for 20.1.2022.

The order may be read here:

 

4. Punjab and Haryana High Court

Court on its own motion vs. Union of India & Ors. [CWP-PIL-191-2019]

Order dated October 03, 2019

 

1.Taking suo-motu cognizance of a news article on this matter, the Court identifying the fundamental right to a dignified life under article 21 and State’s responsibility under article 42 to provide just and humane conditions of work, reiterated such employment for manual scavenging and cleaning human excreta in sewer lines, septic tanks and manholes as violation of human rights and thus laid down directives to address both insanitary latrines and manual scavenging. Further manual scavenging was prohibited by the 2013 act which also prescribed rehabilitation.

2.The Court further establishing the duty of the State and Chandigarh U.T. to ensure that no person is engaged as manual scavengers and employed for such manual cleaning work either directly or indirectly and to ensure the cleaning of sewers through appropriate technological appliances.

3.Further, banning manual hazardous cleaning of sewers, septic tanks and manholes, the Court directed the State and U.T. to:

1.ensure no employment takes place for such cleaning. sewer lines, septic tanks, manholes to be cleaned mechanically by using technological appliances

2.give financial assistance and incentives within three months for using such modern technology.

3.demolish any existing insanitary latrines in the jurisdiction within three months apart from not allowing to construct such latrines.

4.that no person engaged/employed either directly or indirectly as manual scavenger.

5.contracts and agreements for manual scavenging declared void.

6.give monthly pension of Rs.35,000/- to legal heirs of persons engaged in private capacity who died cleaning  sewers, septic tanks and manholes till the age of 60 years.

7.provide Class IV jobs within 3 months to the legal heirs of those who died cleaning and were employed by the Municipal Corporations, Municipalities, Nagar Panchayats or by private persons for the same

8.institute criminal proceedings against those who violate Sections 5 ,6 & 7 of the Act.

9.Issue notification under Section 7, banning hazardous cleaning of sewer/septic tank manually within 15 days

10.implement Self Employment Scheme for Rehabilitation of Manual Scavengers.

11.ensure rehabilitation of the identified manual scavengers within three months. He needs to be given:

i.residential plot

ii.financial assistance for constructing house/ already built house

iii.training in livelihood skills to one adult family member

iv.subsidy and concessional loan for taking up an alternative occupation to one adult family member

Reiterated the duty of the District Magistrate to ensure rehabilitation of the manual scavengers.

12.The National Safai Karamcharis Finance & Development Corporation was directed by the Court to sanction loans to manual scavengers and their family as under various schemes.

 

4.The Court further issued directions for proper solid waste management.

The order may be read here:

 

Image Courtesy: livelaw.in

Related:

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