Image: The Indian Express
A city sessions court in Ahmedabad has recently acquitted three people charged in relation with the death due to asphyxiation of Dalsukhbhai Chavariya, a sanitation worker who had entered a manhole at Jamalpur Chakla on the night of June 12, 2018 in order to clean it.
While Dalsukhbhai worked for Darpan Valmiki Samiti on a contractual basis and the organization had the Ahmedabad Municipal Corporation’s (AMC) sewage cleaning contract, a 2018 DNA India report states that the CCTV footage shows him entering the manhole to clean it, while other sources also state the presence of a civic body employee at the occasion.
Mukesh Gadhvi, deputy municipal commissioner had then stated, “The matter is under investigation. On primary level, the contractor has been found guilty. When we give a contract to private players, we seek their written assurance that they will take life insurance policy of the employees worth Rs 10 lakh as per the judicial guidelines.”
As alleged, there was criminal negligence on the part of the contractor and AMC officials, the action being a violation of the 2007 Government Resolution (GR) prohibiting the compelling of any person to enter a manhole and also not providing with safety equipment for such persons. Accordingly, Altafhussain Thakor, the Samiti’s contractor, as well as AMC officials Girishbhai Chauhan and Amrutbhai Prajapati, were booked by the police under Section 304 (culpable homicide not amounting to murder) and for violating the Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013. The family members of the victim asked for the immediate suspension of the supervisor who compelled him to enter the manhole as well as the compensation and job for a family member.
According to Times of India, the brother and family of the complainant (Dalsukhbhai’s elder brother) did not render support to the prosecutors during the trial. Further, as reported that the grounds of acquittal being that the police did not have any evidence with regards to his employment with the above-mentioned agency, the worker’s ID card and PF details were not placed on record and even the agency’s contract with the AMC for sewage cleaning work was not produced, thus not establishing the compulsion to make the worker enter the manhole.
What the Law says
Section 5 states that no person, local authority or any agency is to:
Construct an insanitary latrine
Employ any person as manual scavenger either directly or indirectly
All such people engaged are discharged of the duties
Further, as defined under Section 2(g), ‘manual scavenger’ is a person engaged or employed by an individual /local authority/ agency / 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, and the expression ‘manual scavenging’ shall be construed accordingly.
According to the exceptions of the Section, employed/ engaged may also cover employment on regular or on contractual basis. Further, those who have such devices and use protective gear cannot be deemed to be a ‘manual scavenger’.
Section 7 prohibits engaging a person for hazardous cleaning by stating that:
“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”
Under Section 2(d), ‘hazardous cleaning’ is defined as such manual cleaning by employee of any sewer or septic tank without being supplied protective gear and other cleaning devices and observing safety precautions.
Section 8 further laying the punishment for engaging a person to clean septic tanks and sewer with imprisonment for a term extendable to one year or with fine extendable to fifty thousand rupees or with both. In cases of violating again, with imprisonment extendable upto two years or with fine extendable upto one lakh rupees, or with both.
Section 3(j) of the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 as amended up till 2016 states that if a member of the SC/ST community is made to do manual scavenging or if a person employs or allows to employ such members for such purpose, they shall be liable for imprisonment not less than 6 months and extendable upto 5 years with fine.
Charges to be applied
While the 2013 act remains silent on which provisions of the Penal Code apply to such cases, the Courts have dealt with it and demanded the filing of cases against the supervisors and officials. Previously as reported by The Hindu, when two people had died in Bengaluru out of asphyxiation while being forced to clean a well where sewage had accumulated, the police had charged the accused under the 2013 Act as well as with Section 304, IPC i.e., culpable homicide not amounting to murder, a non-bailable offence instead of Section 304-A i.e., causing death by negligence. As reported by Caravan magazine, Bhasha Singh who has written a book on manual scavenging opines that the law and the precedents clearly establish that the cases amount to culpable homicide and not death due to negligence and thus an FIR needs to be filed against all the accused who force people to clean manholes without safety gears.
In 2019, social justice and empowerment secretary Nilam Sawhney while elaborating on the draft National Action plan to eliminate manual scavenging by 2022 and admitting the fact that 776 deaths took place while sewer and septic tank cleaning, as reported by TOI, stated that not a single conviction has taken place in cases such sewer deaths while cleaning without safety gear.
According to as reported by The MilliGazette, even after the reported 620 deaths since 1993, the Government not realizing its responsibility to end the draconian practice, in reply to a question, Social Justice and Empowerment Minister of State Ramdas Athawale had briefed the LokSabha that –
445 cases had been paid compensation
58 cases were settled partially settled
117 cases were pending.
Further, it was also stated that 53,598 manual scavengers had been identified from December 6, 2013 till June 30, 2019 and while the 2013 Act prohibits employing persons for manual scavenging, there were no conviction reports filed by the State/Union territory. While being asked whether the 2013 Act was to be amended to make such reporting compulsory, the minister expressed no plans for the same.
The report by Scroll.in also highlighted this issue of under-reporting as evident from the data that was shown by the ministry that elucidated the registered deaths in such cases in the last five years till 2020, to be:
52 in Uttar Pradesh
42 in Tamil Nadu
36 in Delhi
34 in Maharashtra
31 each in Haryana and Gujarat
However, while the Tamil Nadu state government itself shows the deaths to be at 145, the Centre only stating 43 in the State cannot be understood with such a wide difference.
As reported by Hindustan Times, in a PIL filed before the Karnataka HC, it was held that in 21 cases of manual scavenging in the state since 2015, 43 people have died. The petitioner also states that such deaths are usually given the name of death by accident and thus put such worker’s lives at danger. Supplementing the arguments is the data from Karnataka State Commission for Safai Karamcharis that showing 36 manual scavenging incidents since 2008, resulting in 72 deaths, police cases were filed in all such instances but not leading to conviction. The details were:
In 4 cases, B-report was filed implying that there was not enough evidence.
5 cases registered as unnatural death
15 under trials
2 under investigation
In 12 cases, the accused were acquitted.
Manual scavenging work led to death of 1,013 people
FIRs were file in only 462 cases
In most of these cases, specifically, 418, only negligence by death under Section 304, IPC was invoked
44 cases registered as accidental deaths
37 FIRs that amount to less than 1% mention the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act
Non- application of the 2013 Act:
Further, elaborating upon the non-application of the 2013 Act, Scroll.in reported the case of two poverty struck brothers from the Paraiyar Dalit community who worked as manual scavengers for contractors in Chennai. When they were called upon urgently at night by a contractor to clean the septic tank so that the mall could be opened in the morning, the brothers along with three others started the cleaning work. Further throwing light on the malpractice by the contractors, one of the brothers Ranjit said that the like usual, the Contractor clicked pictures of the workers with safety gears (as reported- masks, gloves and boots provided by Express Avenue Mall) and then asked them to remove it before entering, thus a custom only in order to show that the rules are complied with. While they were in the septic tank and sewer water was released, Ranjith being overcome by fumes, his brother Arun managed to pull him up but himself slipped and fell into the waist high sewage water due to which he was affected by the fumes and died. Tracking the case, it was found that not a single arrest was made and the FIR only listing Section 304, IPC (negligence by death), the 2013 Act does not find any mention. The Chennai corporation paid Rs. 10 lakh compensation to the victims after which the general reluctance by the victim’s family to pursue the case due to its futility was seen.
Suo-motu cognisance by police and case of culpable homicide
As reported by the Caravan magazine, in a particular instance from May 2021, two Muslim workers died after being forcibly made to enter a manhole at the site of the Central Government’s Namami Gange project for an urgent work. A Murshidabad based contractor Nayan Raza sub-contracted by Larsen &Toubro had brought 25 labourers including these brothers for the work on sewage lines for Namami Gange project that aims at the improvisation of sewage infrastructure, removing sludge, etc.
The legally required safety precautions not being complied with in the hurry of completing the project, even till mid-September, neither was any case of culpable homicide registered against the employer/ contractors, nor did the families of the victims receive any compensation. The reason given by the police was that it had taken sou-moto cognisance of the death and thus filed a case of unnatural death rather than that of culpable homicide as it did not have the power to register a FIR by taking suo-motu cognisance. Saying so and that post- mortem indicated “suffocation due to gas” as the cause of death, the SHO as reported also stated, “I am still waiting for someone to come and file a case of culpable homicide. We will investigate it. Many NGOs came after the incident, a committee of Patna High Court had also come, but no one lodged a complaint. If the relatives of the deceased also come and complain, we will register the complaint.”
Further, a report by the fact-finding team of human rights organisation also alleged the reluctance of the police in investigating the case and acting in favour of the contract and the company and that circumstantial evidence hold both of them directly responsible for the deaths. It was also argued that in light of the powers under Section 174, CrPC, to determine cause of death and support same by eyewitnesses after which the police may register a case of culpable homicide. When such suo-motu cognisance was taken to file case of unnatural death, the same could be done for culpable homicide.
It was further reported, as per Bezwada Wilson, the national convenor of Safai Karamchari Andolan, deaths often not being recorded, if in case FIR is filed, the same is not done willingly and the 2013 act as well as The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are not mentioned. He further said, “Often, the authorities are not even to accept the death was caused by manual scavenging but instead put the blame on the labourers for being drunk and negligent.”
As reported by The Hindustan Times, according to a study by the Rashtriya Garima Abhiyan, only one out of three cases see a police complaint being filed and none are brought to trial while only three of ten cases result in compensation being allotted to victim’s families. Thus, despite arrest, prosecution stage is never reached. Further other deterrents to such action being taken are that-
Most of the people are from marginalised sections (SC/ST/OBCs)
The partial prohibition that the manual scavenging law lays thus limiting the scope
Compensation and rehabilitation
The 2014 Supreme Court Judgement of Safai Karamchari Andolan v. Union of India, (2014) 11 SCC 224 laid down that families of all the workers who died in the process of sewer cleaning were to be given Rs. 10 Lakh as compensation. It further also laid for rehabilitation.
As reported by The Wire, in an RTI filed before the National Commission for Safai Karamcharis (NCSK), it was shown that in 814 officially reported cases since 1993 up till 2019, only 455 cases were granted full compensation i.e. only in 50 % cases whereby workers had died cleaning sewers, their families received the compensation of Rs. 10 lakhs. In many cases the compensation paid was Rs.2 to Rs. 5 Lakh and not the mandated Rs. 10 lakhs. Further, the report discussing the number of cases compensated state-wise, the most shocking data was revealed that in the 25 sewer deaths in Maharashtra, none actually received the compensation!
While this remains to be the situation of arrears, many High Courts including the Madras HC have issued directions to the State governments to compensate the victim’s family and in some cases even asked for payment of interest for the delay in paying compensation. The Courts have also asked the government to consider enhancing this limit of Rs. 10 Lakh earlier set as per the Status quo in 2014 and the cost of living having been increased substantially since then.
(Part 2 will elaborate upon such various instances that came up before the High Courts with regards to gross violation of these essential requirements under the 2013 act and the efforts of the Judiciary to tackle these issues)