Case BriefsSupreme Court

Supreme Court: A Division Bench of Hemant Gupta and A.S. Bopanna, JJ. disposed of a criminal appeal holding, inter alia, that if a prisoner has undergone more than 14 years of actual imprisonment, the State Government, as an appropriate Government, is competent to pass an order of premature release; but in case of the prisoner who has not undergone 14 years or more of actual imprisonment, the Governor has a power to grant pardon, reprieve, respite and remission of punishment or to suspend, remit or commute the sentence of any person.

Appeal

The parties before the Supreme Court were aggrieved by the order of the Punjab and Haryana High Court wherein it had, inter alia, directed the State to consider the feasibility of drafting a fresh policy for grant of remission to prisoners, particularly in respect of exercise of powers conferred under Article 161 of the Constitution.

The High Court referred to several policies circulated by the State Government. The first policy in connection with the premature release of prisoners was circulated in 1987. After that came the policies of 1988, 1991, 2000 and 2002 which contemplated that the case of premature release would be considered on individual basis to be reviewed by a State Committee and thereafter shall be put before the Governor. However, the latest policy of 2008 did not contemplate that individual cases will have to be placed before the Governor.

The issue in the instant appeals was regarding applicability of the 2002 policy or the 2008 policy to the prisoner convicted in March 2010. The proposition for the consideration of the Court was that the 2002 policy referred to exercise of powers under Article 161 of the Constitution (since it mandated placing of individual cases before the Governor), whereas the 2008 policy was in exercise of powers under Section 432 read with Sections 433 and 433-A CrPC.

Discussion and Decision

At the outset, the Court referred to Article 161 (Power of Governor to grant pardons etc., and to suspend, remit or commute sentences in certain cases) of the Constitution; and Sections 432 (Power to suspend or remit sentences), 433 (Power to commute sentence) and 433-A (Restriction on powers of remission or commutation in certain cases) of the Criminal Procedure Code. The former article refers to power of the Governor, while the latter three sections refer to power of the appropriate Government.

The Court noted that the power of an appropriate Government to issue general or special orders allowing remissions is traceable to Section 432 CrPC. The policies in question were framed in exercise of powers conferred on appropriate Government under Section 432, and hence were statutory in nature.

The High Court’s direction for the State to consider drafting a fresh policy for remission was particularly in respect of  exercise of powers conferred under Article 161. The Supreme Court noted that the power under Article 161 can be exercised by the State Governments, not by the Governor on his own. The advice of the appropriate Government binds the Head of the State. The Court was of the opinion that no separate order for each individual case is necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to the whole group. It was stated:

“Therefore, the policies of the State Government are composite policies encompassing both situations under Article 161 of the Constitution and Sections 432, 433 and 433-A of the Code.”

It was however clarified that the remission under Article 161 will override Section 433-A CrPC, if the State Government decides to be governed of its constitutional power.

The Court noted further that it has been a consistent view that the policy prevalent at the time of conviction shall be taken into consideration for considering the premature release of a prisoner. The 2008 policy for premature release was issued in the name of the Governor and was published in the official Gazette.  The 2008 policy which substituted the 2002 policy did not take over the discretion vested in the Governor to grant pardons, remissions or commute sentence in exercise of powers conferred under Article 161. Moreover,  the 2002 policy was also a statutory policy and cannot be put at a higher pedestal than the 2008 policy for the reason that it sought approval from the Governor. Such policy as was specifically superseded by the 2008 policy, ceased to be operative for the convicts who are convicted after 13-8-2008.

Coming to the restrictions on exercise of powers of remission under CrPC, the Court noted that Section 433-A starts with a non-obstante clause restricting the right of the appropriate Government to suspend the sentence of life imprisonment imposed on conviction of a person for an offence for which death is one of the punishments provided by law, that such person shall not be released from prison unless he has served at least 14 years of imprisonment. However, the power of the Governor under Article 161 to pardon or to commute sentence is independent of any such restriction or limitation.

As a necessary corollary, if a prisoner has undergone more than 14 years of actual imprisonment, the State Government is competent to pass an order of premature release, but if the prisoner has not undergone 14 years or more of actual imprisonment, the Governor has a power to grant pardons, reprieves, respites and remissions of punishment or to suspend, remit or commute the sentence of any person de hors the restrictions imposed under Section 433-A. The Court said that:

“Such power is in exercise of the power of the sovereign, though the Governor is bound to act on the aid and advice of the State Government.”

To conclude, the Supreme Court found that the impugned directions issued by the High Court were not sustainable “for the reason that the policies have to be read keeping in view the period of imprisonment undergone by a prisoner”.

On merits, it was noted that prisoner before the Court had completed 12 years and 25 days in prison. The prisoner was convicted in March 2010 and therefore as per his date of conviction, the 2008 policy was applicable to him. Accordingly, it was held that the case for premature release of the prisoner in terms of the State Government’s 2008 policy can be considered only after he completes 14 years of actual imprisonment. However, the State Government can consider the prisoner in question for premature release after undergoing imprisonment for less than 14 years only under Article 161 of the Constitution. [State of Haryana v. Raj Kumar, 2021 SCC OnLine SC 539, decided on 3-8-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Gauhati High Court: The Division Bench of Sudhanshu Dhulia, CJ. and Achintya Malla Bujor Barua, J., took up a PIL in relation to an earlier order dated 11-05-2021 wherein a list of female jail inmates which gave details of such female jail inmates who were either under trials or have been convicted and lodged in different jails in Assam and are having small children with them was sought for. The list contained the names of those inmates.

The Court on enquiry found that these children were not juvenile in conflict with law, but they were in jail since they were less than six years of age and as per the Jail Manual, they were allowed to stay with their mothers who were in jail.

The Court keeping in mind the strange and difficult times of second wave of COVID-19 pandemic proposed that in the best interest of everyone this list be forwarded to the High Powered Committee which shall look into this aspect and examine whether any of the inmates who are in the list can be released under these special circumstances of COVID-19 pandemic (2nd wave) as the Higher Powered Committee of this Court is already seized with the matter and which has drawn certain principles on which jail inmates have to be released on temporary bail for three months or so.

[xxx v. In Re State of Assam, 2021 SCC OnLine Gau 1074, decided on 19-05-2021]


Suchita Shukla, Editorial Assistant has put this report together 

Appearance:

Counsel for the petitioner: Mr T J Mahanta

Counsel for the respondents:  Mr P.P. Dutta, counsel for the Gauhati High Court, Mr D. Saikia, Senior Standing Counsel, Government of Assam assisted by Mr R. Dhar, Senior Government Advocate, Assam; Mr J. Payeng, Standing Counsel, Foreigners’ Tribunal and Ms S.s. Hazarika.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Dipankar Datta, CJ., and G. S. Kulkarni, J. had addressed a suo motu case on the issue of alarming rise in COVID-19 cases in prisons of the State of Maharashtra.

By an earlier order, the Bench had passed several directions to de-congest the correctional homes and to compel adherence to maintenance of COVID-19 protocol in such homes to ensure safety and well-being of the correctional home inmates as well as the staff.

Pursuant to the said order, a report had been submitted by the State asserting that sanitizers had been made available as well as appropriate briefing is given to the authorities for maintaining COVID-19 protocol inside the correctional homes. Additionally, only those staff, who are vaccinated, are being assigned duties and to interact with the inmates. The State had assured that urgent steps would be taken to ensure that the entire prison staff is vaccinated at the earliest.

Another major issue before the Court was, the particulars of medical officers as well as paramedical staff posted in the various central prisons and district prisons present a very dismal picture. In case of both medical officers and para-medical staff, nearly 1/3rd of the vacancies remain unfilled. That though Medical Officers belonging to Classes I, II and III are shown to have been posted at various correctional homes but the principle behind such posting had not been indicated in the brief note submitted by the state. Similarly, the Yerwada Central Prison was found not to have the service of a single Medical Officer Class I. The Bench asked the state how it proposes to deal with the problem of dearth of medical officers and para-medical staff at the various correctional homes. The state was directed to at least make efforts to fill up all the sanctioned posts and ensure zero vacancy qua such posts. The Bench said any omission or failure to deal with the concern at hand by the State in the near future may not be viewed lightly.

While noting the progress made in achieving compliance, the Bench further issued further directions:

  1. The authorities to whom the guidelines/ recommendations are issued by the High Power Committee in furtherance of the avowed object of reducing the problem of overcrowding in the correctional homes shall follow the same in letter and spirit.
  2. The second direction was with regard to devising ways and means to regulate the entry of staff in the correctional homes, since it was apprehended that such staff were the carriers of the virus and contributed to its spread among the inmates.
  3. It is revealed that pulse oximeter reading, temperature reading as well as tests for symptoms common to the infection in issue are required to be undergone by each staff. Such staff also has to wear appropriate masks, properly.
  4. The shall, as far as practicable, have all the prison staff vaccinated as early as possible.
  5. State shall not compel an inmate to obtain release either on interim bail or emergency parole, without his free will/volition.
  6. Ministry of Health and Family Welfare, Government of India has issued Standard Operating Procedure (SOP) on COVID-19 ~ Vaccination of Persons without Prescribed Identity Cards through CoWIN portal which stipulates that if a group of people is found not to have any of the 7 specified identity cards required for vaccination, such group of people may be registered on the CoWIN portal and further steps accordance with the SOP for vaccination. Accordingly, directions were issued to the State as well as the prison authorities not to insist on production of Aadhar Cards by correctional home inmates and to proceed for vaccination of those inmates, not having the specified identity cards, in the manner as laid down in the SOP without any delay.
  7. To ensure that the statutory mandate of the Maharashtra Prison (Prison Hospital) Rules, 2015 framed under the provisions of the Prison Act, 1894 are complied with as early as possible; also, if there be dearth of medical officers, a policy of rotation could be formulated and pressed into service.
  8. Noticing the news report regarding water shortage in Taloja correctional home, the Bench directed the authorities to take immediate steps to restore the water supply.

Lastly, observing the rising number of Covid positive inmates and jail staff, the Bench opined that much is required at the end of the prison authorities to arrest the spread of the pandemic in the correctional homes. Hence, the Court asked the state to take appropriate steps within the limits of its capacity.

[Suo Motu v. State of Maharashtra, 2021 SCC OnLine Bom 715, order dated 12-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Counsel for the State: Deepak Thakare and Akshay Shinde

Counsel for People’s Union for Civil Liberties (Intervenor): Mihir Desai with Vijay Hiremath, Devyani Kulkarni and Mihir Joshi

For Centre for Criminology and Justice (TISS): Professor Vijay Raghavan

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of NV Ramana, CJ and L. Nageswara Rao and Surya Kant, JJ has issued directions to contain the spread of coronavirus in the overcrowded prisons of India.

The Court said,

“… the requirement of decongestion is a matter concerning health and right to life of both the prison inmates and the police personnel working. Reduction of impact of Covid-19 requires this Court to effectively calibrate concerns of criminal justice system, health hazards and rights of the accused. From limiting arrests to taking care of Covid-19 Patients, there is a requirement for effective management of pandemic from within the prison walls so as to defeat this deadly virus.”

Anticipating the spread of Covid19 virus in overcrowded prisons, on 23.03.2020, the Court had directed the State Governments, Union Territories to constitute High Powered Committees to determine the class of prisoners who can be released on parole or on interim bail for appropriate periods. The High-Powered Committees were constituted in all the States, except a few.

On the basis of recommendations made by the High-Powered Committees, a large number of prisoners were released either on interim bail or on parole. Due to the reduction of the number of active cases, the released prisoners were directed to report back to prisons. Almost 90% of the prisoners who have been released last year have returned to prisons in February and March, 2021.

However, the unprecedented surge in Covid¬19 during the last few weeks has caused a serious concern about the spread of Covid-19 in overcrowded prisons where there is lack of proper sanitation, hygiene and medical facilities.

The Court, hence, directed that,

  1. There should be strict control and limit on the authorities from arresting accused in contravention of guidelines laid down in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, during pandemic.
  2. The rapid proliferation of the virus amongst the inmates of congested prisons is a matter of serious concern. The High-Powered Committees constituted by the State Governments/Union Territories shall consider release of prisoners by adopting the guidelines followed by them last year, at the earliest. Those States which have not constituted High Powered Committees last year need to do so immediately. Commissioner of Police Delhi shall also be a member of the High-Powered Committee, Delhi.
  3. The High Powered Committee, in addition to considering fresh release, should forthwith release all the inmates who had been released earlier pursuant to our order 23.03.2020, by imposing appropriate conditions. Such an exercise is mandated in order to save valuable time.
  4. Those inmates who were granted parole, pursuant to earlier orders, should be again granted a parole for a period of 90 days in order to tide over the pandemic.
  5. Prison occupancy must be updated on websites by all States as is being done in Delhi and should be adopted as good practice. Moreover, all the decisions of High-Powered Committees need to be published on respective State Legal Service Authorities/State Governments/High Courts websites in order to enable effective dissemination of information.

“The fight against the pandemic is greatly benefitted by transparent administration.”

The Court, however asked the authorities to be considerate of the concerns of the prisoners who might not be willing to be released in view of their social background and the fear of becoming victims of the deadly virus.

Further, the authorities are directed to ensure that proper medical facilities are provided to all prisoners who are imprisoned.

The spread of Covid¬19   virus should be controlled in the prisons by regular testing being done of the prisoners but also the jail staff and immediate treatment should be made available to the inmates and the staff. Further, levels of daily hygiene need to be maintained and sanitation required to be improved.

The Court also directed that appropriate steps shall be taken for transportation of the released inmates of the prisons, if necessary, in view of the curfews and lockdown in some States.

[IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS, 2021 SCC OnLine SC 376, order dated 07.05.2021]


Appearances before the Court by:

Attorney General KK Venugopal, Senior Advocate Colin Gonsalves

Hot Off The PressNews

The National Human Rights Commission issues notices to the Chief Secretary and the Inspector General of Prisons, Madhya Pradesh after taking suo motu cognizance of the matter and directs calling for a detailed report in the matter including the present health status of all the SIMI prisoners and their medical treatment records, within 4 weeks.

Six members of the banned Students’ Islamic Movement of India (SIMI) had begun a hunger strike inside the Central Jail, Bhopal a week ago and now they have been shifted to the jail hospital.

The prisoners who are found guilty of sedition, collecting arms and waging war against the government have been sentenced for life imprisonment in the years 2017 and 2018 by different courts including the NIA and CBI Special Courts. Apart from the present proceedings going on in the existing case, the Commission takes cognizance of the recent development with regard to the grievance of the prisoners and their health conditions. The prisoners have the right to Food and Dignity which is the basic human rights and the State, being their lawful custodian, cannot deny it to the inmates, in its lawful custody. The news report has revealed that all of them are demanding better food, exemption from regular frisking and freedom from the high-security block.

The Jail Superintendent, as mentioned in the news report, has stated that these prisoners are not allowed to come out of the special cell as they shout anti-national slogans and also disrespect the Constitution of India which leads to tension amongst the other inmates of the jail.

The Commission would like to mention here that amid spread of Covid-19 there had been a significant increase in the case of coronavirus amongst the inmates lodged in the jails, across the country. Hence, it is necessary that the prisoners are provided proper food so that their immunity level remains satisfactory which is also necessary as per guidelines issued by the WHO and ICMR.


National Human Rights Commission

[Press Release dt. 19-10-2020]

[Source: PIB]

Op EdsOP. ED.

Nelson Mandela once remarked, “Only free men can negotiate; prisoners cannot enter into contracts.” Freedom is, universally, considered as one of the most cherished human rights. It is necessary not only for basic sustenance of an individual, rather, indispensable for the progress of a society as a whole. History has witnessed numerous struggles for independence across the world, aimed against apartheid, oppression and several other forms of exploitation. At the same time, there are several illustrations woven into the fabric of time where human endurance and mass movements occasioned into the extermination of several social/societal evils. However, despite the consciousness of the concepts of liberty and independence, unfortunately, even in the present century, a certain section of our society continues to endure a form of slavery and abuse in the form of manual scavenging. This practice which owes its genesis to India’s repressive caste system continues to thrive, notwithstanding almost seventy-three years of our independence. In fact, independence and freedom have continued to remain a mere illusion for the individuals subjected to this archaic, tyrannical and forced form of heroics. Regrettably, such individuals, who are prisoners of their caste, poverty and illiteracy are not in a position to negotiate for their freedom and better lives from those in power and their ‘so-called superiors.’ As per the Ministry of Social Justice and Empowerment’s Survey of Manual Scavengers in Statutory Towns there are approximately[1] 15,000 (fifteen thousand) manual scavengers in India, though, the actual number is estimated to be much higher. Unfortunately, due to lack of proper rehabilitative measures and societal apathy, the size of this group is ever increasing.

Indian judiciary has repeatedly emphasised on the importance of a dignified form of life. In fact, it is a settled law[2] that right to dignity is one of the essential elements of the right to life as provided under Article 21[3] of the Constitution of India (“the Constitution”). In this regard, the Supreme Court in Gian Kaur v. State of Punjab[4], observed,

“[t]o give meaning and content to the word ‘life’ in Article 21, it has been construed as life with human dignity. Any aspect of life which makes it dignified may be read into it but not that which extinguishes it and is, therefore, inconsistent with the continued existence of life resulting in effacing the right itself.”

The Constitution further, inter alia, prohibits any forms of forced labor and employment of children in factories or mine or any other hazardous employment under Articles 23 and 24, thereof.  These constitutional provisions are meant to strike at the core of several unfair practices, which are prevalent in India and in particular, to eradicate slavery in any of its forms. It is trite law[5] that the word “force”, under Article 23 of the Constitution includes not only physical or legal force, rather, also the force arising from the compulsion of economic circumstances. In fact, as per the Supreme Court in People’s Union for Democratic Rights v. Union of India[6],

“where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words “forced labour” under Article 23.”

Unfortunately, despite these and several other constitutional safeguards, the practice of manual scavenging continues unabated across India. In fact, in an ever-enduring struggle against poverty and lack of free-will; in dingy and poorly lit dungeons, several lives are silently sacrificed and fed to quench the hunger of the ‘manual-scavenging dragon’.

Manual scavenging is generally understood[7] as a process of physical removal of human excreta from dry latrines and sewers. A person so engaged in or employed for manually carrying human excreta is termed as a manual scavenger under Section 2(j) of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993[8] (“the 1993 Act”). Pertinently, under the 1993 Act it has been acknowledged that despite concerted efforts made to eliminate the dehumanising practice of employing persons for carrying human excreta on their heads or likewise, “the practice still persists in certain parts of the country”. Accordingly, the said Act was enacted, inter alia, with an object to prohibit “employment of manual scavengers as well as construction or continuance of dry latrines”.[9] Significantly, Section 3 of the 1993 Act empowers the State Government to issue notification prohibiting the engagement or employment of any person for manually carrying human excreta or for the construction or maintenance of a dry latrine. Further, Section 5 of the 1993 Act empowers the State Government(s) to appoint a District Magistrate or a Sub-Divisional Magistrate as an Executive Authority to ensure compliance of the provisions of the said enactment. The State Governments have been further empowered to make and notify, inter alia, one or more schemes for regulating conversion of dry latrines into, or construction and maintenance of, water-seal latrines, rehabilitation of the persons who were engaged in or employed for as manual scavengers, under Section 6 of the 1993 Act. Significantly, under Section 14 of the said enactment, failure to comply with or contravention of any of the provisions of the 1993 Act, or the rules or schemes made or orders or directions issued thereunder have been declared to be punishable[10] with imprisonment for a term which may extend to one year or with fine, which may extend to two thousand rupees, or with both. In turn, the provisions relating to the nature of offences, jurisdiction and limitation of prosecution are provided under Sections 16, 17 and 18, respectively of the 1993 Act.

Subsequently, noting that the existing laws, “have not proved adequate in eliminating the twin evils of insanitary latrines and manual scavenging”, Parliament enacted the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 (“the 2013 Act”). The said Act, inter alia, aims towards the “prohibition of employment as manual scavengers, rehabilitation of manual scavengers and their families.” The 2013 Act provides for an exhaustive definition of manual scavenger, under Section 2(1)(g) thereof, as

“a person engaged or employed, at the commencement of this Act or at any time thereafter, by an individual or a local authority or an agency or a contractor, for manually cleaning, carrying, disposing of, or otherwise handling in any manner, human excreta in an insanitary latrine or in an open drain or pit into which the human excreta from the insanitary latrines is disposed of, or on a railway track or in such other spaces or premises, as the Central Government or a State Government may notify, before the excreta fully decomposes in such manner as may be prescribed.”

Significantly, persons engaged or employed to clean excreta with the help of such devices and using such protective gear, as the Central Government may notify in this behalf, are exempted from the definition of manual scavenger(s). Provisions regarding prohibition of insanitary latrines and employment and engagement of manual scavenger are provided under Section 5 of the 2013 Act. Section 5(2) thereof further obliges every occupier, at his own cost, to demolish or convert into sanitary latrine; every insanitary latrine existing on the date of commencement of this Act within the notified period[11]. As per Section 6 of the 2013 Act,

“[a]ny contract, agreement or other instrument entered into or executed before the date of commencement of this Act, engaging or employing a person for the purpose of manual scavenging shall, on the date of commencement of this Act, be terminated and such contract, agreement or other instrument shall be void and inoperative and no compensation shall be payable therefor.”

Further, Section 7 of the said enactment prohibits engagement or employment of any person for hazardous cleaning of sewers and septic tanks. Significantly, the contravention of the provisions under Sections 5 and 6 are punishable under Section 8 of the 2013 Act, “with imprisonment for a term which may extend to one year or with fine which may extend to fifty thousand rupees or with both, and for any subsequent contravention with imprisonment which may extend to two years or with fine which may extend to one lakh rupees, or with both.”

Similarly, contravention of Section 7 of the 2013 Act is punishable in terms of Section 9[12] of the said enactment. Pertinently, as per Section 10 of the 2013 Act, all such offences are punishable only on a complaint, “made by a person in this behalf within three months from the date of the occurrence of the alleged commission of the offence.” Procedure of trial of such offences, in turn, is provided under Chapter VI (Sections 21 till 23) of the said enactment. Significantly, the offences under the 2013 Act are declared as cognizable and non-bailable under Section 22 thereof, which, in terms of Section 21 of the 2013 Act, may be tried summarily by the Executive Magistrate, duly empowered.

Chapter IV of the 2013 Act deals with the provisions relating to the identification of manual scavengers in urban and rural areas and for their rehabilitation. Provisions relating to the survey of manual scavengers in urban areas by Municipalities and application by an urban manual scavenger for identification are provided under Sections 11 and 12, respectively, of the 2013 Act. Section 13 of the said enactment, in turn, deals with a few of the measures which may be adopted for the rehabilitation of the manual scavengers. Significantly, such measures may, inter alia, include; issuance of photo-identity card and one-time cash assistance within one month of identification; allotment  a residential plot and financial assistance for house construction; issuance of training in livelihood skills, subsidy and concessional loan for taking up an alternative occupation on a sustainable basis, etc. Implementation and compliance[13] of the provisions of the said Act, including the supervision of the economic and social rehabilitation of manual scavengers may be carried out, inter alia, by the Vigilance Committee, State and Central Monitoring Committee, National Commission for Safai Karamcharis, etc., established in terms of the provisions of the 2013 Act. Pertinently, despite law in place, the practice of manual scavenging has not been eliminated completely, till date.

The judiciary has played a proactive role towards the eradication of manual scavenging practice in India and to ensure rehabilitation of the persons engaged in such tasks. As early as the year 2005, the Supreme Court[14], directed the Union and State Governments to file affidavits regarding the prevalence of manual scavenging in their respective departments or corporations. It was further directed to the said authorities that in case, “manual scavenging is still being resorted to, then that department or corporation to indicate with details what scheme it has for eliminating it and for rehabilitating the persons concerned and within what time-frame.” This order was subsequently[15] clarified to the effect that the “Secretary of Health; Secretary, Ministry of Social Welfare and Justice; Secretary, Ministry of Urban Development and the Department concerned which deals with manual scavenging shall file detailed affidavit after collecting information from the Municipality/corporation concerned or other local department where manual scavenging is carried on in any of the States/corporation/municipality/department.” However, the said directions were elucidated to be not applicable to banks, other public sector undertakings and financial institutions.

Subsequently, considering the material brought on record pursuant to the said directions, the Court[16] observed that “the practice of manual scavenging continues unabated. Dry latrines continue to exist notwithstanding the fact that the 1993 Act was in force for nearly two decades. States have acted in denial of the 1993 Act and the constitutional mandate to abolish untouchability.” Accordingly, the Supreme Court, while acknowledging the need for extermination of the problem of manual scavenging, directed all the State Governments and the Union Territories to fully implement the provisions of the 2013 Act and to “take appropriate action for non-implementation as well as violation of the provisions”.

In another instance, the Supreme Court[17] duly acknowledged that the State and its agencies/instrumentalities cannot absolve themselves of the responsibility to put in place effective mechanism for ensuring safety of the workers employed for maintaining and cleaning the sewage system. As per the Court, “no one would like to enter the manhole of sewage system for cleaning purposes, but there are people who are forced to undertake such hazardous jobs with the hope that at the end of the day they will be able to make some money and feed their family. They risk their lives for the comfort of others” Accordingly, the  Supreme Court, while observing that the human beings who are employed for doing the work in the sewers cannot be treated as mechanical robots, sought compliance from the State instrumentality, of previous directions of the  High Court of Delhi[18]. Pertinently, the High Court of Delhi vide its said order had directed, inter alia, for free medical examination and medical treatment to sewer workers; payment of compensation by State authorities to the family members of deceased sewage workers; placing on record by the said authorities of proposals and plans to phase out manual work and replace it with mechanised sewer cleaning; etc. Regrettably, even such directions have not proved adequate to uproot the weed of manual scavenging, till date.

Significantly, even under the Universal Declaration of Human Rights and the Convention on the Rights of Persons with Disabilities, provisions for eradication of slavery, degrading human treatment, exploitation, etc. and promotion of equality, liberty, non-discrimination, etc., are provided. However, these provisions have not proved to be deterrent enough to exterminate the manual scavenging evil. The High Court of Delhi in Metro Waste Handling v. Delhi Jal Board[19], has observed,

“[u]nseen and forgotten for generations, our society has marginalised manual scavengers to its darkest corners. They are trapped in an eternal caste embrace, with no voice in the society or in any meaningful participation; their children are doomed to the same stereotypical roles assigned to them. The promise of equality, dignity and egalitarianism has eluded them altogether in the march and progress witnessed by the rest of our citizens.”

Regrettably, despite all the judicial directives and law in place, nothing substantial has changed in the years for these marginalised individuals. Irony is such that despite being involved in integral activities for the society, these individuals and their destinies are flushed down the drains without consideration or empathy. A society and the State like ours, which boasts of being a welfare State can no longer feign indifference towards these individuals; for the works that they do, is in no manner menial.

As Gandhi once remarked, “[t]he true measure of any society can be found in how it treats its most vulnerable members.” Therefore, time is ripe to acknowledge and work towards the emancipation towards such individuals. Further, complacency on mere eradication of few societal issues is not a solution where grave issues like manual scavenging persist even in the present century. In fact, it is incumbent to eradicate this social evil for once and for all in order to achieve the overall development of our country.


* Managing Associate, L&L Partners Law Offices

[1] http://mssurvey.nic.in/Private/Report/SurveyReportLocal.aspx (last accessed on 31.07.2020)

[2] National Legal Services Authority v. Union of India, (2014) 5 SCC 438

[3]“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

[4] (1996) 2 SCC 648

[5] People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235

[6] (1982) 3 SCC 235

[7]UN rights chief welcomes movement to eradicate manual scavenging in India -UN News – 31.01.2013 (https://news.un.org/en/story/2013/01/431022-un-rights-chief-welcomes-movement-eradicate-manual-scavenging-india)

[8] As per Section 1(2) of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, the provisions of this enactment, “in the first instance to the whole of States of Andhra Pradesh, Goa, Karnataka, Maharashtra, Tripura and West Bengal and to all the Union Territories and it shall also apply to such other State which adopts this Act by resolution passed in that behalf under clause (1) of Article 252 of the Constitution”     

[9] Section 2(c) of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 ‘“dry latrine” means a latrine other than a water-seal latrine;” and Section 2(i) of Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 “latrine” means a place set apart for defecation together with the structure comprising such place, the receptacle therein for collection of human excreta and the fittings and apparatus, if any, connected therewith;

[10] With an enhanced punishment for continued contravention i.e. “an additional fine which may extend to one hundred rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention.” (Section 14 of Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993)

[11] Section 4(1)(b) of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013

[12]“Whoever contravenes the provisions of Section 7 shall for the first contravention be punishable with imprisonment for a term which may extend to two years or with fine which may extend to two lakh rupees or with both, and for any subsequent contravention with imprisonment which may extend to five years or with fine which may extend to five lakh rupees, or with both.”

[13] Chapter VII of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013

[14] Safai Karamchari Andolan v. Union of India, (2011) 15 SCC 611; order dated 29.04.2005.

[15] Safai Karamchari Andolan v. Union of India, (2011) 15 SCC 609; dated 14.11.2005.

[16] Safai Karamchari Andolan v. Union of India, (2014) 11 SCC 224; dated 27.03.2014

[17] Delhi Jal Board v. National Campaign for Dignity & Rights of Sewerage & Allied Workers, (2011) 8 SCC 568

[18] National Campaign for Dignity & Rights of Sewerage & Allied Workers v. MCD,  2008 SCC OnLine Del 948

[19] 2018 SCC OnLine Del 9319 

Case BriefsHigh Courts

Delhi High Court: Jyoti Singh, J., addressed an issue with regard to revised wages for prisoners in Delhi Prisons.

Purpose of the present petition was to seek directions in order to make payment of wages to the prisoners at revised rates in terms of communication issued by Government of NCT of Delhi.

Sanjay Ghose, ASC appearing for the respondents submitted that an order for the approval of revised wages was passed by the Office of Director General (Prisons) on 23-07-2020, hence the payment shall be made thereof.

On perusal of the above-mentioned Order, Court stated that the convicts would be paid revised wages in terms of the Order passed on 20-06-2019, enhancing the wages and the arrears shall also be disbursed.

Additionally, 25% deduction from wages of the convicts meant for Victim Welfare Fund, has also been suspended till further Orders.

In view of the above, petition was disposed of. [Nitin Verma v. GNCTD, 2020 SCC OnLine Del 870 , decided on 24-07-2020]

COVID 19

Functioning of courts

Supreme Court issues guidelines on functioning of courts through video conferencing


Release of prisoners

Ensure that prisoners released on parole are not left stranded due to lockdown: SC to Centre

No prisoner shall be released without taking appropriate steps if he/she has suffered from coronavirus disease

SC refuses to pass blanket order for release of prisoners above 50 years of age on parole

Agusta Westland VVIP chopper scam middleman Christian Michel seeks bail; SC asks him to approach HC


Children and women in Protection & shelter homes

SC issues extensive directions to protect children in Protection Homes from spread of coronavirus

SC suggests Centre to extend directions to protect children in Protection Homes from spread of coronavirus to Nari Niketans as well


Migrant workers

SC refuses to entertain plea seeking requisition of private properties to provide shelter to migrant workers

SC seeks Centre’s response on plea seeking payment of basic minimum wages to migrant workers

Centre submits affidavit on plea seeking minimum wages for migrant workers during lockdown

SC leaves issue of payment of minimum basic wages to migrant workers to Centre


Healthcare professionals, testing kits, masks, etc.

Doctors and healthcare professionals are “warriors”; protect them: SC issues directions

Don’t charge exorbitant fees from public for Coronavirus testing: SC asks Centre

SC seeks Centre’s response on PIL calling for WHO-approved protection kits for health care professionals

We are making masks, sanitisers, etc available to public at reasonable price: Govt. tells SC

Everyone not eligible for free testing kits; To be made free only to the economically weaker sections of society

SC refuses to pass order on petition seeking changes in the treatment guidelines; Asks ICMR to look into the matter


Other orders

Ration to people without ration cards: SC refuses to pass order on ‘policy issue’

Not appropriate to impose a financial emergency right now; SC adjourns the matter

This institution is not hostage of government: Furious SC tells advocate Prashant Bhushan during migrant workers hearing

Case BriefsCOVID 19Supreme Court

Supreme Court: After the Court  had, on March 23, 2020, directed each State/Union Territory to constitute a High Powered Committee to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate, the 3-judge bench of SA Bobde, CJ and L. Nageswara Rao and MM Shantanagoudar, JJ has further directed that no prisoner shall be released if he/she has suffered from coronavirus disease in communicable form hereafter.

The said direction came after Attorney General KK Venugopal submitted before the Court that the release and transportation of the prisoners would itself result in transmission of coronavirus from prisons or detention centres to locations where the released prisoners have to reach.

Directions on release of prisoners suffering from Coronavirus

  • No prisoner shall be released if he/she has suffered from coronavirus disease in communicable form hereafter. For this purpose, appropriate tests will be carried out.
  • If it is found that a prisoner who has been released is suffering from coronavirus after the release, necessary steps will be taken by the concerned authority by placing him/her in appropriate quarantine facility.
  • Transportation shall be done in full compliance of the Rules and Norms of social distancing. For instance, no transportation shall be allowed in excess of half or one fourth capacity of the bus as may be found appropriate to ensure that the passengers who have been found to be free of coronavirus disease are at a distance from each other.
  • The order dated 23.03.2020 shall be applicable to correctional homes, detention centres and protection homes.

On compulsory release of prisoners by all States/UTs

On being informed that the State of Bihar has not found it appropriate to release the prisoners for complete absence of any patient suffering from coronavirus within the prisons and also for the reason that the prisons are not overcrowded, the Court made it clear that it has not directed the States/ Union Territories to compulsorily release the prisoners from their respective prisons.

It was brought to the Court’s notice that a prisoner who was “accused” of suffering from coronavirus was murdered in Bihar. The Court, however, said,

“The purpose of our aforesaid order was to ensure the States/Union Territories to assess the situation in their prisons having regard to the outbreak of the present pandemic in the country and release certain prisoners and for that purpose to determine the category of prisoners to be released.”

On release of prisoners declared as foreigners under the Foreigners Act, 1946

The Court accepted the prayer that the period of three years for release of prisoners declared as foreigners be reduced to one year so that detenues who have completed 7 more than two years may be release.

The Court had, on  10.05.2019, in Supreme Court Legal Services Committee v. Union of India directed that the release of detenues who have served long period of detention in the detention centres awaiting their deportation is concerned, we are of the view that detenues who have completed more than three years may be released.

The Court, modifying it’s earlier order, held,

“we see no reason why the period should not be reduced from three years to two years, that is to say, the prisoners or detenues who have been under detention for two years shall be entitled to be released on the same terms and conditions as those laid down in the aforesaid order dated 10.05.2019, except that they shall not be required to furnish a bond in the sum of Rs.1,00,000/- (Rupees one lakh only). Instead they shall be required to furnish a bond in the sum of Rs.5,000/- (Rupees five thousand only) with two sureties of the 8 like sum of Indian citizens.”

[IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS, 2020 SCC OnLine SC 365, order dated 13.04.2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: A bench of Chief Justice S A Bobde and Justices L Nageswara Rao has refused to pass any blanket order directing the Centre and states to consider granting parole or interim bail to prisoners above 50 years of age as also to those suffering from diabetes, high blood pressure, respiratory problem and other life threatening diseases in view of coronavirus pandemic. The Court said it doesn’t know what the government thinks about the issue but in the court’s view it should be case by case.

“We will not pass any blanket order. You make an individual representation before the government about your case.”

The court said it was allowing the petitioner in-person advocate Amit Sahni to withdraw the petition with liberty to advise the individual prisoners, who are suffering from any diseases to make a representation to the authorities for their release.

“The petitioner in person seeks leave to withdraw this writ petition with liberty to advise individual prisoners who are suffering from any serious ailment to make a representation to the authorities for their release. Such a decision can be taken case by case. We see no justification in passing a general order.”

Sahni said in the plea that as per World Health Organisation (WHO), older persons and those suffering from pre-existing medical conditions like high blood pressure, diabetes, heart and lung diseases can be seriously affected by the virus, also called Covid-19. The plea said the court has already taken cognisance on its own about overcrowding in jails following the virus outbreak but the issue of vulnerability of certain category of persons including those above 50 years was not brought to its notice earlier.

On March 23, the court had directed all the states and Union Territories to constitute high-level committees to consider releasing on parole or interim bail prisoners and undertrials for offences entailing up to seven-year jail term to decongest prisons in the wake of coronavirus pandemic.

Sahni, in his plea, has said that persons over 50 years of age are “at more risk” if affected with coronavirus.

“Persons with diabetes, respiratory problems, renal disease and other life threatening illness are also prone to Covid-19 and impact of the same can be severe in such persons,”

It said since the issue was not brought up before the apex court earlier, no directions were passed regarding jail inmates above 50 years of age and those having medical conditions and the authorities were not considering them for release on parole or interim bail.

On March 16, the court had taken suo motu cognisance of overcrowding of prisons across the country and said it is difficult for jail inmates to maintain social distancing to prevent the spread of coronavirus.

[Amit Sahni v. Union of India, 2020 SCC OnLine SC 359, order dated 07.04.2020]

(With inputs from PTI)

Case BriefsCOVID 19Supreme Court

Supreme Court: The bench of SA Bobde, CJ and L. Nageswara Rao, J has asked the Union of India to ensure that all the prisoners having been released by the States/Union Territories are not left stranded and they are provided transportation to reach their homes or given the option to stay in temporary shelter homes for the period of lockdown.

The said direction of the Court came after amicus curiae Senior advocate Dushyant Dave submitted before the Court that the prisoners who have been released according to the guidelines framed by the High Powered Committees in various States are stranded because they have no means to reach their homes or their places of residence. The Court, hence, directed that

“the Union of India may issue appropriate directions under the Disaster Management Act, 2005 or any other law for the time being in force.”

The Court, further, directed the States/Union Territories to ensure through Directors General of Police to provide safe transit to the prisoners who have been released so that they may reach their homes.

“They shall also be given an option for staying in temporary shelter homes during the period of lockdown.”

The Court had, on March 23, 2020, directed each State/Union Territory to constitute a High Powered Committee to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate. It had said,

Having regard to the provisions of Article 21 of the Constitution of India, it has become imperative to ensure that the spread of the Corona Virus within the prisons is controlled.”

[IN RE: CONTAGION OF COVID 19 VIRUS IN PRISONS, 2020 SCC OnLine SC 356 , order dated 07.04.2020]

Case BriefsCOVID 19Supreme Court

“Having regard to the provisions of Article 21 of the Constitution of India, it has become imperative to ensure that the spread of the Corona Virus within the prisons is controlled.”

Supreme Court: Noticing that the issue of overcrowding of prisons is a matter of serious concern particularly in the present context of the pandemic of Corona Virus (COVID – 19), the 3-judge bench of SA Bobde, CJ and L. Nageswara Rao and Surya Kant, JJ has directed each State/Union Territory to constitute a High Powered Committee to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate.

The said committee would comprise of:

  • Chairman of the State Legal Services Committee,
  • Principal Secretary (Home/Prison) by whatever designation is known as,
  • Director General of Prison(s)

Giving example, the Court said that the State/Union Territory could consider the release of prisoners who have been convicted or are undertrial for offences for which prescribed punishment is up to 7 years or less, with or without fine and the prisoner has been convicted for a lesser number of years than the maximum.

The Court, however, left it open for the High Powered Committee to determine the category of prisoners who should be released as aforesaid, depending upon the nature of offence, the number of years to which he or she has been sentenced or the severity of the offence with which he/she is charged with and is facing trial or any other relevant factor, which the Committee may consider appropriate.

The Court, further, directed,

  • prison specific readiness and response plans must be developed in consultation with medical experts. “Interim guidance on Scaling-up COVID-19 Outbreak in Readiness and Response Operations in camps and camp like settings” jointly developed by the International Federation of Red Cross and Red Crescent (IFRC), International Organisation for Migration (IOM), United Nations High Commissioner for Refugees (UNHCR) and World Health Organisation (WHO), published by Inter-Agency Standing Committee of United Nations on 17 March, 2020 may be taken into consideration for similar circumstances.
  • monitoring team must be set up at the state level to ensure that the directives issued with regard to prison and remand homes are being complied with scrupulously.
  • the physical presence of all the undertrial prisoners before the Courts must be stopped forthwith and recourse to video conferencing must be taken for all purposes.

“Looking into the possible threat of transmission and fatal consequences, it is necessary that prisons must ensure maximum possible distancing among the prisoners including undertrials.”

  • the transfer of prisoners from one prison to another for routine reasons must not be resorted except for decongestion to ensure social distancing and medical assistance to an ill prisoner.
  • there should not be any delay in shifting sick person to a Nodal Medical Institution in case of any possibility of infection is seen.

[IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS,  2020 SCC OnLine SC 344, order dated 23.03.2020]


Also read:

Coronavirus (COVID-19)| No in-person hearings in SC till further notice; Extremely urgent matters to be heard via video conference

Coronavirus (COVID-19)| SC restricts it’s functioning to avoid mass gatherings in Courts; Only urgent matters to be heard

Coronavirus (COVID-19)| SC extends limitation period for filing petitions/applications/suits/appeals, etc.

COVID-19| SC takes suo motu cognisance of nonavailability of mid-day meals for children due to Coronavirus shutdown

COVID-19| SC takes suo motu cognisance of overcrowding and infrastructure of prisons in the wake of Coronavirus

Case BriefsHigh Courts

National Human Rights Commission: NHRC has taken suo motu cognizance of a media report that twenty-four prisoners have tested positive for HIV in the last four months at Gorakhpur District Jail in Uttar Pradesh. They include 21 undertrials and three convicts, including a woman. Reportedly, during the tests conducted by the Uttar Pradesh State AIDS Control Society in 70 jails of the State, 265 prisoners were tested HIV positive till December last year. These cases have been reported from the jails in Bareilly, Allahabad, Gorakhpur, Lucknow, Faizabad, Agra, Meerut, Varanasi and Kanpur.

The Commission has issued notices to the Chief Secretary and IG (Prisons) of Uttar Pradesh calling for detailed reports in the matter within six weeks along with the steps taken to deal with the menace.

It has also observed that the contents of the news report, if true, indicate towards sorry state of affairs in the jails of Uttar Pradesh. Seemingly, there is an urgent need to conduct a probe into the matter to determine the cause of the spread of HIV infection among prisoners. It is also necessary to take immediate preventive measures so that other prisoners do not fall prey to the infection and those, who are suffering are provided necessary medical treatment.

According to the media report, carried on the 28th February, 2018, the jail administration has claimed that the disease did not spread inside the jail and the prisoners were already infected when they arrived. Most of them have been jailed under the Narcotic Drugs and Psychotropic Substances Act. As reported, in the month of October last year, on the initiative of Uttar Pradesh State AIDS Control Society, a camp was started to conduct blood tests on the prisoners to detect HIV in which, more than half of the prisoner lodged in the jail were tested.

National Human Rights Commission