Supreme Court: In a writ petition seeking directions to Union of India and all the States and Union Territories to implement provisions, inter alia, of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 (‘Act, 1993’) and Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 (‘Act, 2013’), the division bench of S. Ravindra Bhat* and Aravind Kumar, JJ. gave the following directions:
- The Union was directed 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. Further, directed them to issue guidelines and directions 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.
- The States and Union Territories were directed to ensure that all departments, agencies, corporations and other agencies ensure that guidelines and directions framed by the Union are embodied in their own guidelines and directions. The States were specifically directed to ensure that such directions are applicable to all municipalities, and local bodies functioning within their territories.
- The Union, State and Union Territories were 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 died.
- The compensation for sewer deaths was increased from Rs. 10 lakhs to Rs. 30 lakhs. Further, in the case of sewer victims suffering disabilities, depending upon the severity of disabilities, compensation was directed to be disbursed. However, the minimum compensation was directed to be not less than 10 lakhs. If the disability is permanent, and renders the victim economically helpless, the compensation was directed to be not less than 20 lakhs.
- The Union, State or Union Territories were directed to devise a suitable mechanism to ensure accountability, especially wherever sewer deaths occur during contractual or “outsourced” work. This accountability to be in the form of cancellation of contract, and imposition of monetary liability, aimed at deterring the practice.
- The Union was directed to device a model contract, to be used wherever contracts are to be awarded, by it or its agencies and corporations, in the enactment concerned , 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. In the event of any mishap, the agency would lose its contract, and possibly be blacklisted. This model was directed to be used by all States and Union Territories.
- The National Commission for Safai Karamcharis (‘NCSK’), National Commission for Scheduled Caste (‘NCSC’) , National Commission for Scheduled Tribes (‘NCST’) and the Secretary, Union Ministry of Social Justice and Empowerment, were directed to draw modalities for the conduct of a National Survey within 3 months from the date of this judgment, and must be ideally complete the survey in the next one year. Further, it directed that appropriate models to be prepared to educate and train all committees concerned.
- The Union, State and Union Territories were directed to set up scholarships to ensure that the dependents of sewer victims, who have died, or might have suffered disabilities are given meaningful education.
- The National Legal Services Authority (NALSA) was directed also be part of the consultations, toward framing the aforesaid policies. Further, it was directed to frame appropriate models for easy disbursement of compensation.
- The Union, State and Union Territories were directed to ensure co-ordination with all the commissions for setting up of state level, district level committees and commissions, in a time bound manner.
- NCSK, NCSC, NCST and the Union government were directed to co-ordinate and prepare training and education modules, for information and use by district and state level agencies, under the 2013 Act.
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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 was directed to be developed and launched at an early date.
The Court said that in the unforgettable annals of our history, there were large masses of people, who were nearly invisible. They were trapped in the thralldom of solitude from which there was no liberation. That was 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. To address this kind of social practice the constitution framers ensured three important provisions, which stare at us like beacons, assuring not only equality but fraternity amongst all people: the prohibition of untouchability; the outlawing of forced or involuntary labour and the freedom against exploitation. To flesh out and give shape to the objects of these provisions, Parliament intervened and enacted several legislations. In that ensuring full economic freedom and true emancipation were two enactments, the Act 1993 and the Act 2013.
The Court noted that in 1993 India took a significant step by prohibiting the employment of manual scavengers responsible for the daily manual emptying of certain types of dry toilets. Subsequently, the Parliament enacted the Act, 2013 which extended and clarified its scope to include insanitary latrines, ditches and pits. However, the petitioner claimed that the Government have not implemented essential provisions of these statutes. Regrettably, manual scavenging persists despite these legislations. Petitioner prayed that Act of 1993 and 2013 should be implemented in letter and spirit and to do so, it is necessary to impose a blanket ban on manual scavenging, while simultaneously ensuring adequate rehabilitation and employment opportunities for those currently engaged in these practices.
The Bench said that the 2013 Act not only criminalizes 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.
Interpretation of Section 11 of the 2013 Act
Concerning the Government’s contention that the 2013 Act does not contemplate a national survey but mandates a localized 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. The groundbreaking purpose of the 2013 Act is to ensure that manual scavengers are rehabilitated. Rehabilitation is a step after identification, and without a survey, rehabilitation is not workable. The statutory scheme cannot be undermined through an interpretation that would leave the implementation of the 2013 Act solely with the local bodies, without any guidance from the Central and State Governments. Thus, the salutary commitment made by the 2013 Act must be fulfilled by the local bodies in accordance with a policy-framework laid down by the Central or State Government. The Central and State Governments were and are duty-bound to lay down the parameters under which a local body was mandated to conduct a survey.
Further, the Bench said that while the methodology of the Survey is provided under the 2013 Rules, the trigger for conducting the Survey is conspicuously absent from both the 2013 Rules as and the 2013 Act. The absence of a trigger cannot render the 2013 Act and its constitutional commitments otiose by non-implementation. The implementation of the Act cannot be left to the whims and fancies of local bodies.
Thus, the Court, while rejecting this argument of the Union, said that while local governments must conduct surveys, it was for the appropriate authorities, at both the central and state levels, to lay down parameters for the surveys to be conducted. It was also incumbent on these authorities to ensure that proper implementation of the 2013 Act had taken place.
Insufficiency of the previous Surveys
Regarding the insufficiency of the previous 2013 and 2018 surveys, 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. The Court also noted that no provisional list under Section 11(4) was prepared; no objections were called for and decided under Section 11(5) and no final list was published under Section 11(6). Thus, no valid surveys were conducted in 2013 and 2018. Further, it stated that where the Act and Rules prescribe a particular method and manner of survey, that method and manner only ought to have been followed and no other method or manner could have been followed.
Institutions
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.
Hazardous cleaning
The Court took note of the definition of ‘manual scavenger’, ‘hazardous cleaning’, ‘septic tank’ and ‘sewer’ under the 2013 Act and said that a person employed for hazardous cleaning has nexus to a sewer or septic tank. Further, 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 penalizes hazardous cleaning and does not provide for subsequent steps for rehabilitation of hazardous cleaners. However, the Court said that without a challenge to the provisions, the differentiation cannot be held unconstitutional.
The Court said that while the statutory scheme does not provide for rehabilitation of hazardous workers, especially those who work in sewers, the constitutional underpinnings of the 2013 Act and the prohibition of untouchability must inure to their benefit. Hazardous cleaning, like manual scavenging, is a manifestation of untouchability, and has been abolished by the adoption of Article 17 of the Constitution. The Civil Rights Act, 1955 also specifically proscribes scavenging under Section 7A, as being an instance of untouchability. Further, it noted that the 2013 Act and 2013 Rules provide for mechanization of hazardous cleaning through ‘cleaning devices’ and ‘protective gear’. Thus, it is intended that no person should have to come in direct contact with human excreta and that protective gear and cleaning devices must be provided to ensure this.
After taking note of the affidavits submitted by the Union, the Court said that it reveals a significant lack of mechanization to clean sewer lines or septic tanks. Such a situation is against the statutory as well as constitutional mandate. Cleaning devices as well as protective gear must be provided to ensure that manual cleaning of sewers and septic tanks is not done.
Thus, the Court held that where minimum protective gear and cleaning devices are not provided to hazardous workers, the employment of hazardous workers amounts to forced labour and is thus prohibited under the Constitution. Further, it said that the provisions for protective gear and cleaning devices are not mere statutory rights or rules but are entitlements and it is due to these entitlements that the provisions of the 2013 Act are in consonance with the Constitution. Therefore, a contract for employment of a hazardous cleaner without protective gear and cleaning devices would, similarly, violate Article 23 even if it is voluntary because such an agreement would violate human dignity.
On rehabilitation of hazardous workers, the Court said that the dignity of the individual, guaranteed by law under Article 21, must be ensured through rehabilitative processes. Mere economic measures would not suffice in the uplifting of the family. Rehabilitation would require elements of long-term and short-term socio-economic measures such as scholarships, etc.
To this end, the Court suggested that entitlements which are akin to those given to manual scavengers must be granted to families of hazardous workers who had died in sewers and septic tanks. Further, endeavors must be made to rehabilitate such people who continue to be employed as hazardous workers without any protective gear or cleaning devices. States must suitably frame policies to ensure that all hazardous workers are given access to rehabilitative entitlements.
[Balram Singh v. Union of India, 2023 SCC OnLine SC 1386, decided on 20-10-2023]
*Judgment Auhtored by: Justice Ravindra Bhat
A Legal Luminary Extraordinaire, Justice Shripathi Ravindra Bhat bids farewell to the Supreme Court
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