Image courtesy: The Indian Express
The Karnataka High Court (Bengaluru Bench) has issued several directions to the State Government over proper implementation of the provisions of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013.
A Division Bench of Chief Justice Abhay Oka and Justice S Vishwajith Shetty, while hearing a petition filed by All India Council of Trade Unions (AICTU) and High Court Legal Services Committee has directed the State Government:
·To place on record the details about the number of FIR’s registered for the offences punishable under the Manual Scavengers Act and all other details of the cases
·To call for the data from all the Districts for ascertaining whether the District Level Survey Committees have conducted surveys of manual scavengers and whether the Committees have published the final list of Manual Scavengers of the respective Districts
·To place on record comprehensive data about the survey of insanitary latrines throughout the State and the details about the conversion/demolition of insanitary latrines
·To place on record the details relating to final publication of the District-wise final lists and State level final list of Manual Scavengers
·To call for reports from the authorities/authorized officers specified for implementing the provisions of the Act and to ensure that the directions are issued to authorized officers/authorities to comply with the requirements of Section 19 (duty of District Magistrates and authorised officers)
·To place on record the details about number of meetings held at the Districts, Sub-Divisional and the State level Vigilance Committees
·To issue directions to all the Local Authorities to implement the provisions of the Manual Scavengers Act and the Rules by specifically referring to the obligations and duties under various provisions
·To direct all the Local Authorities to comply with the obligations under subsections (2) and (3) of Section 4 and to immediately ascertain the requirement of number of sanitary community latrines within their respective jurisdictions and thereafter, make construction of such latrines
·To immediately initiate awareness campaigns on a large scale for elimination of the practice of open defecation and ensure that all Local Authorities comply and also take help of NGOs and the Karnataka State Legal Services Authority to conduct the campaigns in rural areas.
·To place on record the steps taken for rehabilitation of manual scavengers as provided in Section 13 by stating whether there are any Schemes of Central and State Government for rehabilitation of the manual scavengers
The Union of India was also directed to place on record the copies of the notifications, (if any), issued in exercise of the powers under explanation (b) to clause (g) of Section 2 of the Manual Scavengers Act.
Explanation (b) provides that if a person is engaged to clean excreta with the help of such devices, using such protective gear, as the Central Government may notify in this behalf, he would not fall under the category of a manual scavenger.
The High Court has directed the Karnataka State Government to file compliance affidavits on or before January 30, 2021.
Matter before the Court
Two writ petitions were filed by AICTU and High Court Legal Services Committee praying to discontinue the practice of allowing/forcing sanitary workers to physically enter manholes, sewer lines, septic tanks etc and to direct the State and Union Government to give a report on the action taken by them for removal of the inhuman practice and the implementation of the provisions of the Act.
The petitions also concerned itself with the incident of three manual scavengers who died due to suffocation, while cleaning a pit in an apartment complex at Bengaluru. A writ of mandamus has been sought in the said petition for implementation of the directions issued by the Apex Court in the case of Safai Karamchari Andolan and others vs Union of India and other (2014) 11 SCC 224.
This was one of the landmark decisions of the Supreme Court after the 2013 Act which laid down further guidelines on rehabilitation of manual scavengers and compensation payment of rupees 10 lakh to the family of the deceased. The case was filed by Safai Karamchari Andolan, an NGO working for the rights of manual scavengers and to bring an end to this practice. It was filed against the flouting of the provisions of the 1993 Act as well as to recognize the practice of manual scavenging as violative of Article 21 of the Indian Constitution.
Karnataka HC’s observations
After hearing the submissions of both parties, the court opined that continuous monitoring will be necessary and the power of issuing continuing mandamus will have to be exercised in this matter.
The Bench said, “We have found that there is hardly any implementation of the provisions of the Manual Scavengers Act and the Rules in the State of Karnataka.” Further, they said, “There can be no dispute that our Constitutional philosophy does not permit any form of manual scavenging. Right of a citizen to live with dignity is an integral part of the fundamental rights guaranteed to the citizens under Article 21 of the Constitution of India.
The preamble of the Constitution shows that the Constitution seeks to protect the dignity of an individual. There can be no dispute that manual scavenging is most inhuman and it infringes the fundamental rights guaranteed under Article 21.”
The Division Bench also observed that, “If any citizen is forced to do manual scavenging, it will be a gross violation of his fundamental right conferred under Article 21 of the Constitution of India. Under Article 47 of the Constitution of India which is a part of Directive Principles of the State Policy, the State is under an obligation to endeavour to improve the standard of living of its people.”
The court also highlighted the major difference between the old act (Employment of Manual Scavengers and Construction of Dry Latrines [Prohibition] Act, 1993) and the Act of 2013. It said that the definition of ‘manual scavenger’ in the Manual Scavengers Act is much wider than the definition of manual scavenger defined under clause (j) of Section 2 of the old Act.
“Under sub-section (1) of Section 5 of the Manual Scavengers Act, there is a complete prohibition on manual scavenging. Under Section 3 of the old Act, the State Government was required to issue a notification for prohibiting engagement or employment of any person for manual scavenging,” said the Court, adding, “Thus, under the old Act, the prohibition was not automatic. The provisions of the new Act are more comprehensive.”
The court further looked at the Preamble of the Manual Scavengers Act and added emphasis on points, “And Whereas the right to live with dignity is also implicit in the fundamental rights guaranteed in part III of the Constitution. And whereas it is necessary to correct the historical injustice and indignity suffered by the manual scavengers, and to rehabilitate them to a life of dignity.”
Finally, the court issued the above-mentioned directions and posted the matter for February 2, 2021.
The order dated December 9, 2020 may be read here: