P. Sathasivam, C.J— The above writ petition has been filed by the petitioners as a public interest litigation under Article 32 of the Constitution of India praying for issuance of a writ of mandamus to the respondent, Union of India, State Governments and Union Territories to strictly enforce the implementation of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 (in short “the Act”), inter alia, seeking for enforcement of fundamental rights guaranteed under Articles 14, 17, 21 and 47 of the Constitution of India.
Brief facts
2. The inhuman practice of manually removing night soil which involves removal of human excrements from dry toilets with bare hands, brooms or metal scrappers; carrying excrements and baskets to dumping sites for disposal is a practice that is still prevalent in many parts of the country. While the surveys conducted by some of the petitioner organisations estimate that there are over 12 lakh manual scavengers undertaking the degrading human practice in the country, the official statistics issued by the Ministry of Social Justice and Empowerment for the year 2002-2003 puts the figure of identified manual scavengers at 6,76,009. Of these, over 95% are Dalits (persons belonging to the Scheduled Castes), who are compelled to undertake this denigrating task under the garb of “traditional occupation”. The manual scavengers are considered as untouchables by other mainstream castes and are thrown into a vortex of severe social and economic exploitation.
3. The Sub-Committee of the Task Force constituted by the Planning Commission in 1989 estimated that there were 72.05 lakh dry latrines in the country. These dry latrines have not only continued to exist till date in several States but have increased to 96 lakhs and are still being cleaned manually by scavengers belonging to the Scheduled Castes.
4. National Scheduled Castes and Scheduled Tribes Finance and Development Corporation was set up in February 1989 as a government company to provide financial assistance to all the Scheduled Castes and Scheduled Tribes including safai karamcharis for their economic development.
5. The Government of India formulated a scheme known as “Low Cost Sanitation for Liberation of Scavengers” which is a Centrally Sponsored Scheme being implemented in 1989-1990 for elimination of manual scavenging by converting existing dry latrines into low-cost water pour-flush latrines and also for construction of new sanitary latrines.
6. With a view to eliminate manual scavenging, a scheme known as “National Scheme of Liberation and Rehabilitation of Scavengers and their Dependants” was launched in March 1992 for identification, liberation and rehabilitation of scavengers and their dependents by providing alternative employment after giving the requisite training.
7. Based on earlier experience and keeping in view the recommendations of the National Seminar on Rural Sanitation held in September 1992, a new strategy was adopted by the Government of India in March 1993. The emphasis was now on providing sanitary latrines including the construction of individual sanitary latrines for selected houses below the poverty line with subsidy of 80% of the unit cost of Rs 2500.
8. In the year 1993, Parliament enacted the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 and it received the assent of the President on 5-6-1993. The long title of the Act describes it as an Act to provide for the prohibition of employment of manual scavengers as well as construction or continuance of dry latrines and for the regulation of construction and maintenance of water-seal latrines and for matters connected therewith or incidental thereto.
9. The Act, which was enacted in June 1993, remained inoperative for about 3½ years. It was finally brought into force in the year 1997. In the first instance, the Act applied to the States of Andhra Pradesh, Goa, Karnataka, Maharashtra, Tripura and West Bengal and to all the Union Territories. It was expected that the remaining States would adopt the Act subsequently by passing appropriate resolution under Article 252 of the Constitution. However, as noted by the National Commission for Safai Karamcharis, a statutory body, set up under the National Commission for Safai Karamcharis Act, 1993, in its Third and Fourth Reports (combined) submitted to Parliament, that the 1993 Act was not being implemented effectively and further noted that the estimated number of dry latrines in the country is 96 lakhs and the estimated number of manual scavengers identified is 5,77,228. It further noted that manual scavengers were being employed in the military engineering works, the army, public sector undertakings, Indian Railways, etc.
10. In 2003, a report was submitted by the Comptroller and Auditor General (CAG) which evaluated the “National Scheme for Liberation and Rehabilitation of Scavengers and their Dependants”. The conclusion of the report was that this Scheme “has failed to achieve its objectives even after 10 years of implementation involving investment of more than Rs 600 crores”. It further pointed out that although funds were available for implementation of the Scheme, much of it were unspent or underutilised. The committees set up for monitoring the Scheme were non-functional. It further noted that there was “lack of correspondence between ‘liberation’ and ‘rehabilitation’” and that “there was no evidence to suggest if those liberated were in fact rehabilitated”. It concluded that “the most serious lapse in the conceptualisation and operationalisation of the Scheme was its failure to employ the law that prohibited the occupation … the law was rarely used”.
11. In December 2003 the Safai Karamchari Andolan along with six other civil society organisations as well as seven individuals belonging to the community of manual scavengers filed the present writ petition under Article 32 of the Constitution on the ground that the continuation of the practice of manual scavenging as well as of dry latrines is illegal and unconstitutional since it violates the fundamental rights guaranteed under Articles 14, 17, 21 and 23 of the Constitution of India and the 1993 Act.
12. We have heard the arguments advanced by the learned counsel for the parties and perused the records.
Relief sought for
13. The petitioners have approached this Court by way of writ petition in 2003, inter alia, seeking:
(i) to ensure complete eradication of dry latrines;
(ii) to declare continuance of the practice of manual scavenging and the operation of dry latrines violative of Articles 14, 17, 21 and 23 of the Constitution and the 1993 Act;
(iii) to direct the respondents to adopt and implement the Act and to formulate detailed plans, on time-bound basis, for complete eradication of practice of manual scavenging and rehabilitation of persons engaged in such practice;
(iv) to direct the Union of India and the State Governments to issue necessary directives to various municipal corporations, municipalities and nagar panchayats (all local bodies) to strictly implement the provisions of the Act and initiate prosecution against the violators; and
(v) to file periodical compliance reports pursuant to various directions issued by this Court.
Discussion
14. The practice of untouchability in general and of manual scavenging in particular was deprecated in no uncertain terms by Dr B.R Ambedkar, Chairman of the Drafting Committee of the Constitution of India. Accordingly, in Chapter III of the Constitution, Article 17 abolished untouchability which states as follows:
“17. Abolition of untouchability.—‘Untouchability’ is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of ‘untouchability’ shall be an offence punishable in accordance with law.”
15. Article 17 of the Constitution was initially implemented through the enactment of the Protection of Civil Rights Act, 1955 [formerly known as the Untouchability (Offences) Act, 1955]. Section 7-A of the said Act provides that whoever compels any person on the ground of untouchability to do any scavenging shall be deemed to have enforced a disability arising out of untouchability which is punishable with imprisonment. While these constitutional and statutory provisions were path-breaking in themselves, they were found to be inadequate in addressing the continuation of the obnoxious practice of manual scavenging across the country, a practice squarely rooted in the concept of the caste system and untouchability.
16. Apart from the provisions of the Constitution, there are various international conventions and covenants to which India is a party, which proscribe the inhuman practice of manual scavenging. These are the Universal Declaration of Human Rights (UDHR), the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention on the Elimination of All Forms of Discrimination Against Women (Cedaw). The relevant provisions of UDHR, CERD and Cedaw are hereunder:
Article 1 of UDHR
“1. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”
Article 2 of UDHR
“2. Everyone is entitled to all the rights and freedom set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Article 23(3) of UDHR
“23. (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.”
Article 5(a) of Cedaw
“5. States parties shall take all appropriate measures—
(a) to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudice and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;”
Article 2 of CERD
“2. (1) States parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end—
***
(c) each State party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;
(d) each State party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organisation;”
The above provisions of the International Covenants, which have been ratified by India, are binding to the extent that they are not inconsistent with the provisions of the domestic law.
17. From 2003 till date, this writ petition was treated as a continuing mandamus. Several orders have been passed by this Court having far-reaching implications. The petitioners have brought to focus the non-adoption of the Act by various States which led to ratification of the Act by State Assemblies (including the Delhi Assembly which ratified the Act as late as in 2010). The Union Government, State Governments as well as the petitioners have filed affidavits from time to time as per the directions of this Court and also as to the compliance of those orders.
18. This Court has, on several occasions, directed the Union and State Governments to take steps towards the monitoring and implementation of the Act. Various orders have gradually pushed the State Governments to ratify the law and appoint executive authorities under the Act. Under the directions of this Court, the States are obligated by law to collect data and monitor the implementation of the Act.
19. Due to mounting pressure of this Court, in March 2013, the Central Government announced a “Survey of Manual Scavengers”. The survey, however, was confined only to 3546 statutory towns and did not extend to rural areas. Even with this limited mandate, as per the information with Petitioner 1, the survey has shown remarkably little progress. State records in the “Progress Report of Survey of Manual Scavengers and their Dependants” dated 27-2-2014 show that they have only been able to identify a miniscule proportion of the number of people actually engaged in manual scavenging. For instance, the petitioners, with their limited resources, have managed to identify 1098 persons in manual scavenging in the State of Bihar. The Progress Report dated 27-2-2014 claims to have identified only 136. In the State of Rajasthan, the petitioners have identified 816 manual scavengers whereas the Progress Report of the State dated 27-2-2014 has identified only 46.
20. The aforesaid data collected by the petitioners makes it abundantly clear 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.
21. For over a decade, this Court issued various directions and sought for compliance from all the States and Union Territories. Due to effective intervention and directions of this Court, the Government of India brought an Act called “the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013” for abolition of this evil and for the welfare of manual scavengers. The Act got the assent of the President on 18-9-2013. The enactment of the aforesaid Act, in no way, neither dilutes the constitutional mandate of Article 17 nor does it condone the inaction on the part of the Union and State Governments under the 1993 Act. What the 2013 Act does in addition is to expressly acknowledge Article 17 and Article 21 rights of the persons engaged in sewage cleaning and cleaning tanks as well as persons cleaning human excreta on railway tracks.
22. The learned Additional Solicitor General has brought to our notice various salient features of the Act which are as under:
22.1 The abovesaid Act has been enacted to provide for the prohibition of employment as manual scavengers, rehabilitation of manual scavengers and their families, and for matters connected therewith or incidental thereto.
22.2 Chapter I of the Act inter alia provides for the definitions of “hazardous cleaning”, “insanitary latrine” and “manual scavenger” as contained in Sections 2(1)(d), (e) and (g) thereof respectively.
22.3 Chapter II of the Act contains provisions for identification of insanitary latrines. Section 4(1) of the Act reads as under:
“4. Local authorities to survey insanitary latrines and provide sanitary community latrines.—(1) Every local authority shall—
(a) carry out a survey of insanitary latrines existing within its jurisdiction, and publish a list of such insanitary latrines, in such manner as may be prescribed, within a period of two months from the date of commencement of this Act;
(b) give a notice to the occupier, within fifteen days from the date of publication of the list under clause (a), to either demolish the insanitary latrine or convert it into a sanitary latrine, within a period of six months from the date of commencement of this Act:
Provided that the local authority may for sufficient reasons to be recorded in writing extend the said period not exceeding three months;
(c) construct, within a period not exceeding nine months from the date of commencement of this Act, such number of sanitary community latrines as it considers necessary, in the areas where insanitary latrines have been found.”
22.4 Chapter III of the Act contains provisions for prohibition of insanitary latrines and employment and engagement as manual scavenger. Sections 5, 6 and 7 of the Act read as under:
“5. Prohibition of insanitary latrines and employment and engagement of manual scavenger.—(1) Notwithstanding anything inconsistent therewith contained in the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 (46 of 1993), no person, local authority or any agency shall, after the date of commencement of this Act—
(a) construct an insanitary latrine; or
(b) engage or employ, either directly or indirectly, a manual scavenger, and every person so engaged or employed shall stand discharged immediately from any obligation, express or implied, to do manual scavenging.
(2) Every insanitary latrine existing on the date of commencement of this Act, shall either be demolished or be converted into a sanitary latrine, by the occupier at his own cost, before the expiry of the period so specified in clause (b) of sub-section (1) of Section 4: Provided that where there are several occupiers in relation to an insanitary latrine, the liability to demolish or convert it shall lie with—
(a) the owner of the premises, in case one of the occupiers happens to be the owner; and
(b) all the occupiers, jointly and severally, in all other cases:
Provided that the State Government may give assistance for conversion of insanitary latrines into sanitary latrines to occupiers from such categories of persons and on such scale, as it may, by notification, specify:
Provided further that non-receipt of State assistance shall not be a valid ground to maintain or use an insanitary latrine, beyond the said period of nine months.
(3) If any occupier fails to demolish an insanitary latrine or converts it into a sanitary latrine within the period specified in sub-section (2), the local authority having jurisdiction over the area in which such insanitary latrine is situated, shall, after giving notice of not less than twenty-one days to the occupier, either convert such latrine into a sanitary latrine, or demolish such insanitary latrine, and shall be entitled to recover the cost of such conversion or, as the case may be, of demolition, from such occupier in such manner as may be prescribed.
6. Contract, agreement, etc., to be void.—(1) Any 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.
(2) Notwithstanding anything contained in sub-section (1), no person employed or engaged as a manual scavenger on a full-time basis shall be retrenched by his employer, but shall be retained, subject to his willingness, in employment on at least the same emoluments, and shall be assigned work other than manual scavenging.
7. Prohibition of persons from engagement or employment for hazardous cleaning of sewers and septic tanks.—No person, local authority or any agency shall, from such date as the State Government may notify, which shall not be later than one year from the date of commencement of this Act, engage or employ, either directly or indirectly, any person for hazardous cleaning of a sewer or a septic tank.”
22.5 Sections 8 and 9 of the Act provide for penal provisions which read as under:
“8. Penalty for contravention of Section 5 or Section 6.—Whoever contravenes the provisions of Section 5 or Section 6 shall for the first contravention be punishable 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.
9. Penalty for contravention of Section 7.—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.”
22.6 Chapter IV of the Act contains provisions with respect to identification of manual scavengers in urban and rural areas and also provides for their rehabilitation. Section 13 of the Act reads as under:
“13. Rehabilitation of persons identified as manual scavengers by a Municipality.—(1) Any person included in the final list of manual scavengers published in pursuance of sub-section (6) of Section 11 or added thereto in pursuance of sub-section (3) of Section 12, shall be rehabilitated in the following manner, namely—
(a) he shall be given, within one month—
(i) a photo identity card, containing, inter alia, details of all members of his family dependent on him, and
(ii) such initial, one time, cash assistance, as may be prescribed;
(b) his children shall be entitled to scholarship as per the relevant scheme of the Central Government or the State Government or the local authorities, as the case may be;
(c) he shall be allotted a residential plot and financial assistance for house construction, or a ready-built house, with financial assistance, subject to eligibility and willingness of the manual scavenger, and the provisions of the relevant scheme of the Central Government or the State Government or the local authority concerned;
(d) he, or at least one adult member of his family, shall be given, subject to eligibility and willingness, training in a livelihood skill, and shall be paid a monthly stipend of not less than three thousand rupees, during the period of such training;
(e) he, or at least one adult member of his family, shall be given, subject to eligibility and willingness, subsidy and concessional loan for taking up an alternative occupation on a sustainable basis, in such manner as may be stipulated in the relevant scheme of the Central Government or the State Government or the local authority concerned;
(f) he shall be provided such other legal and programmatic assistance, as the Central Government or State Government may notify in this behalf.
(2) The District Magistrate of the district concerned shall be responsible for rehabilitation of each manual scavenger in accordance with the provisions of sub-section (1) and the State Government or the District Magistrate concerned may, in addition, assign responsibilities in his behalf to officers subordinate to the District Magistrate and to officers of the Municipality concerned.”
22.7 Chapter V of the Act provides for the implementing mechanism. Sections 17 to 20 read as under:
17. Responsibility of local authorities to ensure elimination of insanitary latrines.—Notwithstanding anything contained in any other law for the time being in force, it shall be the responsibility of every local authority to ensure, through awareness campaign or in such other manner that after the expiry of a period of nine months, from the date of commencement of this Act—
(i) no insanitary latrine is constructed, maintained or used within its jurisdiction; and
(ii) in case of contravention of clause (i), action is taken against the occupier under sub-section (3) of Section 5.
18. Authorities who may be specified for implementing provisions of this Act.—The appropriate Government may confer such powers and impose such duties on local authority and District Magistrate as may be necessary to ensure that the provisions of this Act are properly carried out, and a local authority and the District Magistrate may, specify the subordinate officers, who shall exercise all or any of the powers, and perform all or any of the duties, so conferred or imposed, and the local limits within which such powers or duties shall be carried out by the officer or officers so specified.
19. Duty of District Magistrate and authorised officers.—The District Magistrate and the authority authorised under Section 18 or any other subordinate officers specified by them under that section shall ensure that, after the expiry of such period as specified for the purpose of this Act—
(a) no person is engaged or employed as manual scavenger within their jurisdiction;
(b) no one constructs, maintains, uses or makes available for use, an insanitary latrine;
(c) manual scavengers identified under this Act are rehabilitated in accordance with Section 13, or as the case may be, Section 16;
(d) persons contravening the provisions of Section 5 or Section 6 or Section 7 are investigated and prosecuted under the provisions of this Act; and
(e) all provisions of this Act applicable within his jurisdiction are duly complied with.
20. Appointment of inspectors and their powers.—(1) The appropriate Government may, by notification, appoint such persons as it thinks fit to be inspectors for the purposes of this Act, and define the local limits within which they shall exercise their powers under this Act.”
22.8 Chapter VII of the Act provides for the establishment of Vigilance and Monitoring Committees in the following terms:
“24. Vigilance Committees.—(1) Every State Government shall, by notification, constitute a Vigilance Committee for each district and each sub-division.
(2) Each Vigilance Committee constituted for a district shall consist of the following members, namely—
(a) the District Magistrate—Chairperson, ex officio;
***
25. Functions of Vigilance Committee.—The functions of Vigilance Committee shall be—
(a) to advise the District Magistrate or, as the case may be, the Sub-Divisional Magistrate, on the action which needs to be taken, to ensure that the provisions of this Act or of any rule made thereunder are properly implemented;
(b) to oversee the economic and social rehabilitation of manual scavengers;
(c) to coordinate the functions of all agencies concerned with a view to channelise adequate credit for the rehabilitation of manual scavengers;
(d) to monitor the registration of offences under this Act and their investigation and prosecution.
26. State Monitoring Committee.—(1) Every State Government shall, by notification, constitute a State Monitoring Committee, consisting of the following members, namely—
(a) the Chief Minister of State or a Minister nominated by him— Chairperson, ex officio;
***
27. Functions of the State Monitoring Committee.—The functions of the State Monitoring Committee shall be—
(a) to monitor and advise the State Government and local authorities for effective implementation of this Act;
(b) to coordinate the functions of all agencies concerned;
(c) to look into any other matter incidental thereto or connected therewith for implementation of this Act.
***
29. Central Monitoring Committee.—(1) The Central Government shall, by notification, constitute a Central Monitoring Committee in accordance with the provisions of this section.
(2) The Central Monitoring Committee shall consist of the following members, namely—
(a) The Union Minister for Social Justice and Empowerment—Chairperson, ex officio;
***
30. Functions of the Central Monitoring Committee.—The functions of the Central Monitoring Committee shall be—
(a) to monitor and advise the Central Government and State Government for effective implementation of this Act and related laws and programmes;
***
31. Functions of National Commission for Safai Karamcharis.—(1) The National Commission for Safai Karamcharis shall perform the following functions, namely—
(a) to monitor the implementation of this Act;
(b) to enquire into complaints regarding contravention of the provisions of this Act, and to convey its findings to the authorities concerned with recommendations requiring further action; and
(c) to advise the Central and the State Governments for effective implementation of the provisions of this Act.
(d) to take suo motu notice of matter relating to non-implementation of this Act.”
22.9 Chapter VIII of the Act contains miscellaneous provisions. Section 33 of the Act provides for duty of local authorities and other agencies to use modern technology for cleaning of sewers, etc. Section 36 of the Act provides that the appropriate Government shall, by notification, make rules for carrying out the provisions of the Act within a period not exceeding three months. Section 37 of the Act provides that the Central Government shall, by notification, publish model rules for the guidance and use of the State Governments.
23. We have already noted various provisions of the 2013 Act and also in the light of various orders of this Court, we issue the following directions:
23.1 The persons included in the final list of manual scavengers under Sections 11 and 12 of the 2013 Act, shall be rehabilitated as per the provisions of Chapter IV of the 2013 Act, in the following manner, namely:
(a) such initial, one-time cash assistance, as may be prescribed;
(b) their children shall be entitled to scholarship as per the relevant scheme of the Central Government or the State Government or the local authorities, as the case may be;
(c) they shall be allotted a residential plot and financial assistance for house construction, or a ready-built house with financial assistance, subject to eligibility and willingness of the manual scavenger as per the provisions of the relevant scheme;
(d) at least one member of their family shall be given, subject to eligibility and willingness, training in livelihood skill and shall be paid a monthly stipend during such period;
(e) at least one adult member of their family shall be given, subject to eligibility and willingness, subsidy and concessional loan for taking up an alternative occupation on sustainable basis, as per the provisions of the relevant scheme;
(f) shall be provided such other legal and programmatic assistance, as the Central Government or State Government may notify in this behalf.
23.2 If the practice of manual scavenging has to be brought to a close and also to prevent future generations from the inhuman practice of manual scavenging, rehabilitation of manual scavengers will need to include:
(a) Sewer deaths — Entering sewer lines without safety gear should be made a crime even in emergency situations. For each such death, compensation of Rs 10 lakhs should be given to the family of the deceased.
(b) Railways — Should take time-bound strategy to end manual scavenging on the tracks.
(c) Persons released from manual scavenging should not have to cross hurdles to receive what is their legitimate due under the law.
(d) Provide support for dignified livelihood to safai karamchari women in accordance with their choice of livelihood schemes.
23.3 Identify the families of all persons who have died in sewerage work (manholes, septic tanks) since 1993 and award compensation of Rs 10 lakhs for each such death to the family members depending on them.
23.4 Rehabilitation must be based on the principles of justice and transformation.
24. In the light of various provisions of the Act referred to above and the Rules in addition to various directions issued by this Court, we hereby direct all the State Governments and the Union Territories to fully implement the same and take appropriate action for non-implementation as well as violation of the provisions contained in the Act 2013. Inasmuch as the 2013 Act occupies the entire field, we are of the view that no further monitoring is required by this Court. However, we once again reiterate that the duty is cast on all the States and the Union Territories to fully implement and to take action against the violators. Henceforth, persons aggrieved are permitted to approach the authorities concerned at the first instance and thereafter the High Court having jurisdiction.
25. With the above direction, the writ petition is disposed of. No order is required in the contempt petition.
Comments