The Supreme Court, in a judgement passed on October 20, came down heavily on the Union and state governments for not taking adequate steps towards the implementation of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013. While pronouncing the judgement, a bench of Justices S Ravindra Bhat and Aravind Kumar also passed 14 directions and categorically directed the Union and state governments to implement the directions to completely eradicate manual scavenging, including manual sewer cleaning. It also increased the compensation paid to manual scavenging deaths from Rs 10 lakhs to Rs 30 lakhs, and extended it to include all sewer deaths. The judge was hearing a Public Interest Litigation (PIL) filed by Balram Singh against the employment of manual scavengers. The case has been posted for February 1, 2024 for further hearing and monitoring.
Justice Bhat observed that the 2013 Act not only criminalises manual scavenging but also provides for rehabilitation mechanisms to ensure that manual scavengers are emancipated, According to the Act, the first step towards rehabilitation is the identification of manual scavengers through a survey. He also observed that the Union and state governments are duty-bound to lay down parameters for the survey. The judge also negated the contention of the Union government that the 2013 Act only mandates localised survey. The Union government has stated that two national surveys were conducted in 2013 and 2018 and a continuous self-declaring survey is taking place on a mobile application. The court observed that the data collected by the government is “inconsistent and contradictory”.
“Different numbers have also been stated by the Government in the Rajya Sabha on different dates and the Union’s Affidavit before this Court. It is also unclear and inconsistent on the number of manual scavengers identified,” the court observed.
Read: Union govt says no manual scavenging deaths in 2023, activists slam misleading data
Justice Bhat further added that a “major short-coming” in the implementation of the 2013 Act is that Union and state governments have not even constituted the institutions that are required to implement the Act, including Union and state level monitoring committees. “The Act has created the institutions to ensure a check and balance on the implementation of the statute. However, instead of being a check on the implementation, the lack of institutions has effectively brought the implementation of the Act to a total stand-still. This systematic neglect of the statute and inaction by the executive would reduce it to a dead letter,” the court said.
The court also held that not providing minimum protective gear and cleaning devices to hazardous workers amounts to forced labour, which is prohibited under the Constitution. It added that provisions for protective gear and cleaning devices in the Act are not mere statutory rights or rules, but entitlements. Further, the court ruled that entitlements akin to that given to manual scavengers must be granted to families of hazardous workers who died in sewers and septic tanks.
The judge also quoted the definitions of manual scavenging, hazardous cleaning, septic tank, and sewer from the Act and said that the definitions would reveal that a person employed for hazardous cleaning has “nexus to a sewer or septic tank”, and definitions of septic tank and sewer show that they are concerned with human excreta and other wastes. The court also took notice of the fact that hazardous cleaning is permitted if protective gear and cleaning devices are provided. “Even though both a hazardous cleaner and a manual scavenger deal with human excreta, the statute only penalises hazardous cleaning and does not provide for subsequent steps for rehabilitation of hazardous cleaners,” the court observed.
Senior advocate Jayna Kothari, who appeared for an intervenor, argued that the difference in the treatment between manual scavenging and hazardous cleaning violates Article 14 (equality before the law). The advocate sought the court to provide a wider interpretation to the definition of manual scavenger, so that anyone engaged in manual cleaning, whether in sewers or septic tanks, will be covered as manual scavengers for rehabilitation and relief. However, the court ruled that it cannot do this without a challenge to the particular provision of the Act. “This court is not faced with a challenge to the statute in this case. Without a challenge to the provisions, the differentiation cannot be held unconstitutional,” the court said.
The court had impleaded the Ministry of Social Justice and Empowerment, the National Commission for Scheduled Castes (NCSC), and the National Commission for Scheduled Tribes (NCST) as respondents in the case.
Directions to Union and state governments
> The Union should take appropriate measures, 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. The Union should also issue guidelines and directions that no sewer cleaning work is outsourced by any contractors or agencies, and that no individuals should enter sewers, for any purpose.
> All states and Union Territories are directed to ensure that all departments, agencies, corporations, and other agencies ensure that guidelines and directions framed by the Union government 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.
> The Union, states, and Union Territories are directed to ensure that full rehabilitation, including employment to the next of kin, education to the wards, and skill training, ensured for sewage workers and those who die.
> Union and state governments should ensure that the compensation for sewer deaths is increased to Rs 30 lakhs.
> In 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 Rs 10 lakhs. If the disability is permanent and renders the victim economically helpless, the compensation shall not be less than Rs 20 lakhs.
> The appropriate government should 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 and imposition of monetary liability, aimed at deterring the practice.
> The Union should devise a model contract that can be used by the agencies and corporations complying to the 2013 Act and rules. In the event of any mishap, the agency would lose its contract, and possibly be blacklisted. This model of contract shall also be used by all states and Union Territories.
> The National Commission for Safai Karamcharis (NCSK), National Commission for Scheduled Castes (NCSC), National Commission for Scheduled Tribes (NCST), and the Secretary, Union Ministry of Social Justice and Empowerment, shall, within three months from the issue of the court order, draw modalities for the conduct of a national survey. The survey shall be ideally conducted and completed in the next one year. To ensure that it does not suffer the same fate as the previous ones, appropriate models shall be prepared to educate and train all concerned committees.
> The Union, states, and Union Territories are hereby required to set up scholarships to ensure that the dependents of sewer victims are given meaningful education.
> The National Legal Services Authority (NALSA) shall also be part of the consultations toward framing the aforesaid policies. It shall also be involved, in coordination with state and district legal services committees, for the planning and implementation of the survey. The NALSA shall also frame appropriate models for easy disbursement of compensation.
> The Union, states, and Union Territories should ensure coordination with all the commissions (NCSK, NCSC, NCST) for setting up of state and district level committees and commissions in a time bound manner. Constant monitoring of vacancies and their filling up shall take place.
> A portal and a dashboard containing all relevant information, including information relating to sewer deaths and victims, the status of compensation disbursement, rehabilitation measures taken, and existing and available rehabilitation policies shall be developed and launched at an early date.
‘Need political will to prevent manual scavenging deaths’
Reacting to the judgement, activist Bezwada Wilson said that the judgement is a fair one. However, he recalled that the court had passed a similar judgement in 2014 asking the government to take steps to eradicate manual scavenging in a phased manner. “After a decade, again we are at the same place. Why has it not started for the past ten years? And even now, the quantum of the problem is not assessed by the Union government. The sewage and septic tank deaths in the country are rapidly increasing. The reason for that is that while the construction of toilets has rapidly grown, mechanisation of cleaning tanks has not started,” he said. Wilson added that the root causes are not properly reported to the court by the authorities.
Stating that Union and state governments lack a political will in the matter, he said, “In order to take the court order forward, we need political will. That is really missing. The implementation cannot be done by court alone, it has to be done by the elected government and court together. The court’s monitoring is definitely valuable, they have to monitor. Along with that, the Union and state governments must monitor the implementation agencies.”
Further, he said that the Union government has not taken a single step to mechanise the scavenging process. “[The Union government] is expecting some universities, IITs, or some students to develop machines. Those machines only have limited technology. The Union government has to establish sanitation technological institutions and they should keep evolving according to changing problems, in order to resolve the issue,” he explained.
“However, one good thing is that the petition has not been disposed of, but has been posted to February. Let us see how the state and Union governments will respond to this,” Wilson said, adding that he hopes for some action from the government’s side this time.