The ongoing battle with Covid-19 seems to be an unending one. As the world grapples with the pandemic, there happen to be those ready to take the fight to the virus itself. Our health professionals, policemen, delivery boys, etc. have constantly been working night in and night out to keep the country up and running in such grave times. Over 200 nations have been affected by the pandemic and despite taking the best possible measures the number of patients and lives lost to the disease only keeps increasing. WHO’s guidelines suggest that one should practice social distancing and wash hands at regular intervals with soap to help prevent the spread of the virus. However, the ones really prone to catching this virus are not the ones who are under a lockdown rather the ones providing essential services such as sanitation workers/safai karamcharis.

We come across sanitation workers almost on a daily basis. The services they provide us with are very crucial but are often ignored as not enough emphasis is laid on the kind of environment they have to work in just so that the others can live and breathe in a healthier environment which prioritises hygiene. Our doctors, nurses and policemen are lauded for their work but the efforts of our sanitation workers often go unnoticed. Recently in Dharavi, a sanitation worker tested positive for the virus as a consequence of which his wife and son-in-law were infected too which then led to his wife’s death. Masks, gloves and hand soaps are often a luxury to them. They are forced by their employers; in this case primarily municipal corporations and contractors to either work and be paid or be left unemployed.

Article 46 of the Constitution mandates that the State is under an obligation to work for the upliftment of the weaker sections of the society keeping in mind their educational and economic interests but when incidents like that of Dharavi come to light, we realise that only so much has been done and that they are deprived of their basic human rights.

Judicial approach

This issue was highlighted when a plea was filed in Supreme Court on 9-4-2020 highlighting the plight of migrant workers amidst Covid-19. The petitioner, Harnam Singh in his PIL[1] prayed to the Court to issue necessary directions to the State for sanitation workers to be provided with proper kit like gloves, masks, and boots etc., to wear while on duty. Instead of our health workers who work in closed protected environments, they have to deal with what has been discarded by the society at large as waste. Considering that the virus can survive for days on various surfaces if not sanitised, the possibility of these workers contracting the virus from such places increases dramatically. Article 21 of the Constitution of India provides for right to life. It encompasses within itself all such rights necessary for one to live his life with human dignity for example right to health, right to shelter, etc.

Right to Health: In Consumer Education and Research Centre v. Union of India [2], the Supreme Court laid down that:

“Social justice which is a device to ensure life to be meaningful and liveable with human dignity requires the State to provide to workmen facilities and opportunities to reach at least minimum standard of health, economic security and civilized living. The health and strength of worker, the court said, was an important facet of right to life. Denial thereof denudes the workmen the finer facets of life violating Article 21.”

The plea also states that Sections 2(1)(d), 7 and 9 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 should be strictly complied with. It implies that if any worker is employed in cleaning of hazardous waste i.e. manual cleaning without any protective gear or any other necessary kit, then the employer can be punished for a period of up to two years and will also be liable to pay a fine of up to two lakh rupees. It may also extend for up to five years of imprisonment or five lakh rupees or both.

Even after the enactment of the Prohibition of Employment of Manual Scavengers and their Rehabilitation Act, 2013, the unsanitary and dehumanising practice of cleaning waste manually still continues to this day. The pandemic has changed nothing as even prior to this outbreak they led a life which posed risk to their lives every single day. Addressing the issue of working conditions of sanitary workers/manual scavengers, the Supreme Court in Safai Karamchari Andolan v. Union of India[3] held that the practice of hazardous cleaning is dehumanising and risks the lives of the people cleaning potholes and picking up garbage with bare hands and hence, issued a few guidelines in the concerning issue.

  • Entering sewer lines without proper safety gear should be a criminal liability on part of the employer. Also, in case of death of a worker, his/her family shall be provided a compensation of Rs. 10 lakhs.
  • Railways should take responsibility of eradicating the practice of manual scavenging on tracks.
  • Persons liberated from the practice should not have to wait to receive what is their legitimate due under the law.
  • Provide support for dignified livelihood to women safai karamchari.

The Punjab and Haryana High Court also taking suo motu cognizance in Court on its own motion v. Union of India[4] suggested that for improving the working conditions of sanitation workers they should be provided with proper uniforms and be given brooms with sufficiently long handles with the length of the broom being 80-85 cm. The Court also suggested that the solid waste can be treated by composting or by incineration and/or by deploying bio-methanation process as well as Pyrolysis methodology.

ILO Guidelines

The responsibility falls on not just the shoulders of the Government but on us as a society too to ensure that our workers are being taken care of considering how crucial their role is and we should all come together to work towards their upliftment; be socially or economically. The Government in this regard should try and push for the implementation of recommendations made by the International Labour Organization on the technical advancement, health and hygiene and good working conditions for such workers; and other concerning issues [5].

The International Labour Organization issued certain guidelines for employer and employees on 27-3-2020  so as to serve the interest of both the parties on the subject. ILO suggests that the onus should be on employers to ensure that all preventive measures are being taken care of so as to reduce the risk of occupational hazards by providing the employees with better protective equipment and clothing[6]. However, in India considering the conditions these workers are employed in, the future seems bleak wherein their lives would hold the same meaning as that of our doctors and nurses.

ILO has set International Labour Standards wherein guidance is provided for decent work in such crisis. The Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205) is among one such standard and elaborates crisis responses ensuring human rights, including respect for fundamental principles and rights at work and for International Labour Standards[7]. The Recommendation provides for a robust strategy to crisis response that includes immediate employment and social protection measure, and it suggests that Governments all around the globe shall seek to ensure basic income security for individuals whose lives have been disrupted by the ongoing crisis.

Concluding remarks

According to a Report by the National Commission for Safai Karamcharis; a statutory body set up by an Act of Parliament for the welfare of sanitation workers, between 2015 and 2019, one person died every five days on an average while manually cleaning sewers and septic tanks across India. This data is from a time when the world wasn’t dealing with a pandemic at large. Considering how contagious and deadly the virus is, it is only going to add to the number of deaths of our sanitation workers if appropriate measures are not taken.

The Indian Government in this regard has undertaken innumerable number of initiatives to improve the working and living conditions of our sanitation workers but the implementation of all such policies has been very poor. And in times like these when the government is busy trying to contain the virus by promoting social distancing and is suggesting people to wear masks and gloves, wash hands, etc. to prevent its spread, it begs the question whether any of this is of use if any one particular community remains deprived of these facilities.

It is now a known fact that the virus is spreading through respiratory water droplets and from surfaces on which it can survive for hours on end if not for days. Hence, it becomes equally important for the Government to ensure that anybody dealing with household or medical waste is well equipped so as to not come in contact with the disease while handling its disposal as even a single case of a worker contracting the virus while on duty could prove to be catastrophic.

*Fourth Year students, BA LLB (Hons), Dr. Ram Manohar Lohiya National Law University

[1] Harnam Singh v. Union of India, 2020 SCC OnLine SC 449

[2] (1995) 3 SCC 42 

[3] (2014) 11 SCC 224 

[4] Court on its own motion v. Union of India , CWP-PIL-191-2019, order dated  03.10.2019

[5] R097- Protection of Workers’ Health Recommendation, 1953 (No. 97)

[6] Article 16(3) of the Occupational Safety and Health Convention, 1981 (No. 155) 

[7] Preamble and Paras 7(b) and 43 of the Employment and Decent Work for Peace and Resilience  Recommendation, 2017 (No. 205)

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Case BriefsHigh Courts

Karnataka High Court: B. Veerappa, J. dismissed the writ petition filed under Articles 226 and 227 of the Constitution of India,  by a Public Works Department Contractor.

In this petition Section 6 of the Karnataka Transparency in Public Procurements (KTTP) Act, 1999, was upheld by this Court. It enabled to make reservations in the process of Tenders for Scheduled Castes and Scheduled Tribes.

The facts of the case are as follows:

The Karnataka Transparency in Public Procurements Act, 1999 came into force w.e.f. 04-10-2000. The main intent behind coining this Act was that it streamlined the procedure in public procurement and also ensured accountability. The State Government made it mandatory for all the procurement agencies under the Government to follow the tendering process in public procurement.

Section 6 of the KTTP Act, says that no tender shall be invited, processed or accepted by a Procurement Entity after the commencement of this Act except in accordance with the procedure laid down in this Act or the Rules made thereunder. The KTTP rules are made by the Government of Karnataka, exercising the powers conferred under sub-section (1) of Section 23. The Government by the impugned amendments amended the provisions of Section 6 of the KTTP Act by the KTTP (Amendment) Act, 2016 and also inserted Rule 27(A) in the KTTP Rules by the Karnataka Transparency in Public Procurements (Amendment) Rules 2017.

Transparency in Public Procurements (Amendments) Rules, 2017, resulted in certain reservations created in the process of Tender, for the benefit of the Scheduled Castes and Scheduled Tribes. According to the Amendment, the Tender Inviting Authority has to reserve 17.15% of the works to the Scheduled Castes category and 6.95% of works to the Scheduled Tribes Category in the construction works. The value of such work should not exceed Rs 50,00,000. Hence, the petitioner challenged the said amendments.

The counsel for the petitioner, S.M. Chandrashekhar, contends that while making the reservations, the Constitution of India provided social, economic and educational and cultural safeguards to the Scheduled Caste and Scheduled Tribe under Articles 17, Article 46 and Article 15(4) of the Constitution of India. The Constitution of India also provides for political safeguards under Article 243D, Article 243T, Article 330 and Article 332. Service safeguards are covered under Article 16(4), Article 16(4A) and Article 16(4B). Article 164 of the Constitution of India provided other safeguards to the Scheduled Castes and Scheduled Tribes.

Further, Article 19(1)(g) of the Constitution of India states that every citizen has a right to practice any profession or to carry on any occupation, trade or business. The Amendment made by the State Government violated Article 19(1)(g) of the Constitution of India. Hence, it was contended by the petitioner that the amendment was ultra vires of the Constitution of India and should be struck down. It was brought to notice that the amendment was in violation of the Fundamental Rights and does not conform to constitutional principles and is discriminatory. It was also contended that the amendment is discriminatory and arbitrary, hence it is in violation of Article 14 of the Constitution of India on the same ground.

Still, further, Article 14 of the Constitution of India guarantees Equality, and the Right to Equality includes the prohibition of discrimination on grounds of religion, race, caste, sex or place of birth and equality of opportunity in matters of employment. Both the insertion of proviso to Section 6 of the KTTP Act and insertion of Rule 27(A) in KTTP Rules are arbitrary and unconstitutional and hence they should be struck as per the contentions of the petitioner.

The counsel for the respondent, R. Nataraj, Additional Advocate General, contended that the petition filed by the petitioner is not maintainable either in law or on facts and there it should be dismissed. The counsel further states that the Legislation is based on the principle of distributive justice, protect the interests of weaker sections of the people under Article 42 of the Constitution of India. The said Article protects the Scheduled Castes and Scheduled Tribes and protects them from social injustice and all the forms of the exploitation. The counsel further contends that the impugned Legislation was brought to minimize the inequalities, distributive its largess to the weaker sections and to make life worth living with dignity. It was said that providing reservation in Government contracts to the persons belonging to the above-mentioned group would also achieve the constitutional objectives of rendering socio-economic justice, which in turn improve their economic status so that their economic development is improved.

Further, it elaborated that Economic empowerment is a basic human right and a fundamental right as part of the right to live, equality and status and dignity to the poor, weaker sections, Dalits and tribe.

The two questions framed by the Court were:

  1. is the amendment of inserting proviso 6 in the KTTP Act and inserting Rule 27(A) in the rules are justified?
  2. I the amendment in violation of the Constitution of India?

The Court on considering these arguments mentioned for the first issue that the reservation shall only apply for education, employment and not in any other subjects including the Tender process and Part III of the Constitution does not provide such reservation for Scheduled Castes and Scheduled Tribes and therefore the impugned reservation is in utter violation of the provisions of Articles 14, 15(1), 16(1) and 19(1)(g) of the Constitution of India. Court held that though the argument is attractive the Court is not in the position to accept the same as the impugned reservation does not abrogate or abridges rights guaranteed by Part III of the Constitution and it is not violative of the basic structure.

It was observed that equal status is to be provided to those communities which are backward and is depressed. Along with that, it is for them on whom injustice has been perpetrated. It was the growth of the country and so that many parties in the country may not mislead the poor. Hence, the prayer of the petitioner was not accepted.

The first issue raised was answered in affirmative. The 2nd issue was answered in the negative holding that the impugned amendments were not violative of the Articles 14, 15, 16, 19(1)(g) and 21 of the Constitution of India and are reasonable and in consonance with the right and spirit of the Constitution of India. [Vishwanath H.M. v Govt. of Karnataka, 2019 SCC OnLine Kar 2671, decided on 20-12-2019]