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’), - Apex court gave directions =
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.=
we issue the following
directions:-
(i) 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 Part 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.
(ii) 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 gears 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.
(iii) 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.
(iv) Rehabilitation must be based on the principles of justice and
transformation.
15) 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 2013 Act. Inasmuch as
the Act 2013 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.
16) With the above direction, the writ petition is disposed of. No order
is required in the contempt petition.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
1 WRIT PETITION (CIVIL) NO. 583 OF 2003
Safai Karamchari Andolan & Ors. .... Petitioner (s)
Versus
Union of India & Ors. .... Respondent(s)
2
3 WITH
4
5
6 CONTEMPT PETITION (C) NO. 132 OF 2012
7 IN
8 WRIT PETITION (CIVIL) NO. 583 OF 2003
J U D G M E N T
P.Sathasivam, CJI.
1) 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.
2) Brief facts:
(i) 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-
organizations 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.
(ii) The sub-Committee of the Task Force constituted by the Planning
Commission in 1989 estimated that there were 72.05 lakhs 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.
(iii) 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.
(iv) 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 1989-90 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.
(v) With a view to eliminate manual scavenging, a Scheme known as
‘National Scheme of Liberation and Rehabilitation of Scavengers and their
Dependents’ was launched in March 1992 for identification, liberation and
rehabilitation of scavengers and their dependents by providing alternative
employment after giving the requisite training.
(vi) 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.2,500/-.
(vii) In the year 1993, the Parliament enacted the Employment of Manual
Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 and it
received the assent of the President on 5th June, 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.
(viii) 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, Maharashta, 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 3rd and 4th Reports (combined)
submitted to the Parliament, noted 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.
(ix) 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 Dependents’. 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 underutilized.
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 conceptualization and operationalization of the Scheme was its
failure to employ the law that prohibited the occupation…the law was rarely
used”.
(x) In December, 2003 the Safai Karamchari Andolan along with six other
civil society organizations 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.
3) We have heard the arguments advanced by learned counsel for the
parties and perused the records.
Relief sought for:
4) 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 Union of India and 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:
5) 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:
“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.”
6) 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 7A 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.
7) Apart from the provisions of the Constitution, there are various
international conventions and covenants to which India is a party, which
prescribe the inhuman practice of manual scavenging. These are the
Universal Declaration of Human Rights (UDHR), Convention on Elimination of
Racial Discrimination (CERD) and the Convention for Elimination of all
Forms of Discrimination Against Women (CEDAW). The relevant provisions of
the UDHR, CERD and CEDAW are hereunder:
“Article 1 of UDHR
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 spirit of brotherhood.
Article 2(1) of UDHR
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
Everyone who works has a right to just and favourable remuneration
enduring 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
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 prejudices 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
Article 2(1)(c)
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 his 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 on
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 organization.”
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.
8) 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.
9) 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.
10) 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 No. 1, the survey has shown remarkably little progress. State
records in the “Progress Report of Survey of Manual Scavengers and their
Dependents” dated 27.02.2014 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 27.02.2014 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 27.02.2014 has
identified only 46.
11) 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. 12) 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 18.09.2013.
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 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
persons cleaning human excreta on railway tracks.
13) Learned Additional Solicitor General has brought to our notice
various salient features of the Act which are as under:-
(i) The above-said 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.
(ii) 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.
(iii) 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.”
(iv) 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 convert
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.”
(v) 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.
(vi) 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 concerned local authority;
(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 concerned local authority;
(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 concerned Municipality.”
(vii) 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…”
(viii) 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 co-ordinate the functions of all concerned agencies 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 co-ordinate the functions of all concerned agencies;
(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 concerned
authorities 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.”
(ix) 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, makes
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.
14) 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:-
(i) 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 Part 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.
(ii) 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 gears 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.
(iii) 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.
(iv) Rehabilitation must be based on the principles of justice and
transformation.
15) 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 2013 Act. Inasmuch as
the Act 2013 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.
16) With the above direction, the writ petition is disposed of. No order
is required in the contempt petition.
……….…………………………CJI.
(P. SATHASIVAM)
………….…………………………J.
(RANJAN GOGOI)
………….…………………………J.
(N.V. RAMANA)
NEW DELHI;
MARCH 27, 2014.
-----------------------
24
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’), - Apex court gave directions =
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.=
we issue the following
directions:-
(i) 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 Part 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.
(ii) 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 gears 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.
(iii) 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.
(iv) Rehabilitation must be based on the principles of justice and
transformation.
15) 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 2013 Act. Inasmuch as
the Act 2013 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.
16) With the above direction, the writ petition is disposed of. No order
is required in the contempt petition.
2014 (March . Part) judis.nic.in/supremecourt/filename=41346
P SATHASIVAM, RANJAN GOGOI, N.V. RAMANAREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
1 WRIT PETITION (CIVIL) NO. 583 OF 2003
Safai Karamchari Andolan & Ors. .... Petitioner (s)
Versus
Union of India & Ors. .... Respondent(s)
2
3 WITH
4
5
6 CONTEMPT PETITION (C) NO. 132 OF 2012
7 IN
8 WRIT PETITION (CIVIL) NO. 583 OF 2003
J U D G M E N T
P.Sathasivam, CJI.
1) 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.
2) Brief facts:
(i) 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-
organizations 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.
(ii) The sub-Committee of the Task Force constituted by the Planning
Commission in 1989 estimated that there were 72.05 lakhs 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.
(iii) 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.
(iv) 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 1989-90 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.
(v) With a view to eliminate manual scavenging, a Scheme known as
‘National Scheme of Liberation and Rehabilitation of Scavengers and their
Dependents’ was launched in March 1992 for identification, liberation and
rehabilitation of scavengers and their dependents by providing alternative
employment after giving the requisite training.
(vi) 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.2,500/-.
(vii) In the year 1993, the Parliament enacted the Employment of Manual
Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 and it
received the assent of the President on 5th June, 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.
(viii) 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, Maharashta, 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 3rd and 4th Reports (combined)
submitted to the Parliament, noted 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.
(ix) 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 Dependents’. 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 underutilized.
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 conceptualization and operationalization of the Scheme was its
failure to employ the law that prohibited the occupation…the law was rarely
used”.
(x) In December, 2003 the Safai Karamchari Andolan along with six other
civil society organizations 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.
3) We have heard the arguments advanced by learned counsel for the
parties and perused the records.
Relief sought for:
4) 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 Union of India and 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:
5) 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:
“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.”
6) 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 7A 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.
7) Apart from the provisions of the Constitution, there are various
international conventions and covenants to which India is a party, which
prescribe the inhuman practice of manual scavenging. These are the
Universal Declaration of Human Rights (UDHR), Convention on Elimination of
Racial Discrimination (CERD) and the Convention for Elimination of all
Forms of Discrimination Against Women (CEDAW). The relevant provisions of
the UDHR, CERD and CEDAW are hereunder:
“Article 1 of UDHR
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 spirit of brotherhood.
Article 2(1) of UDHR
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
Everyone who works has a right to just and favourable remuneration
enduring 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
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 prejudices 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
Article 2(1)(c)
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 his 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 on
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 organization.”
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.
8) 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.
9) 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.
10) 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 No. 1, the survey has shown remarkably little progress. State
records in the “Progress Report of Survey of Manual Scavengers and their
Dependents” dated 27.02.2014 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 27.02.2014 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 27.02.2014 has
identified only 46.
11) 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. 12) 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 18.09.2013.
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 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
persons cleaning human excreta on railway tracks.
13) Learned Additional Solicitor General has brought to our notice
various salient features of the Act which are as under:-
(i) The above-said 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.
(ii) 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.
(iii) 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.”
(iv) 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 convert
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.”
(v) 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.
(vi) 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 concerned local authority;
(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 concerned local authority;
(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 concerned Municipality.”
(vii) 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…”
(viii) 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 co-ordinate the functions of all concerned agencies 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 co-ordinate the functions of all concerned agencies;
(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 concerned
authorities 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.”
(ix) 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, makes
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.
14) 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:-
(i) 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 Part 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.
(ii) 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 gears 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.
(iii) 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.
(iv) Rehabilitation must be based on the principles of justice and
transformation.
15) 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 2013 Act. Inasmuch as
the Act 2013 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.
16) With the above direction, the writ petition is disposed of. No order
is required in the contempt petition.
……….…………………………CJI.
(P. SATHASIVAM)
………….…………………………J.
(RANJAN GOGOI)
………….…………………………J.
(N.V. RAMANA)
NEW DELHI;
MARCH 27, 2014.
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