Is There Any CAG Report On Implementation Of Manual Scavengers Act? Supreme Court Asks Centre

The details of the previous hearing can be seen here.

At the outset, Centre, represented by Additional Solicitor General (ASG) Aishwarya Bhati, placed before the Bench several relevant documents, including the surveys carried out concerning the manual scavengers. Further, the documents demonstrating steps taken under PM-DAKSH Yojana were also placed. The scheme is a National Action Plan for skilling marginalized persons covering SCs, OBCs, EBCs, DNTs, Sanitation workers, and waste pickers.

However, Justice Bhat inquired, “Where is the CAG report? This Act has been in force for ten years. Many schemes have come. Do you have any CAG report after 2013 on any aspect?”

To this, ASG answered that a note had been finalized and would be placed on record.

Post this, Advocate K Parameshwar, amicus curiae, commenced his submissions by taking the Bench through his proposed directions.

At the outset, he submitted that the constitutional question involved in the present case is not merely about compensation; it is about emancipation. He pointed out that the Apex Court has talked about fundamental rights but has seldom talked about Articles 15, 17, 23, and 24 of the Indian Constitution as a whole. He went on to submit that these Articles are transformative provisions as they address historical injustices. “It is about citizen and citizen," he said.

It breaks the idea that fraternity is not enforceable, and thus, any rehabilitation measure that flows from the Act should be interpreted in the backdrop of these provisions.

Exceptions Carved out in the Act and Need for Proper Mechanism

Moving forward, he took the Bench through certain definitions in the Act, starting with 'hazardous cleaning’ (Section 2(d) of the Act). It states:

“hazardous cleaning” by an employee, in relation to a sewer or septic tank, means its manual cleaning by such employee without the employer fulfilling his obligations to provide protective gear and other cleaning devices and ensuring observance of safety precautions, as may be prescribed or provided in any other law, for the time being in force or rules made thereunder;."

He highlighted that there is no mechanism. He averred that the said definition should be interpreted restrictively and in a manner by which the dignity of any individual is not offended.

Further, he referred to the definition of manual scavenger (Section 2(g) of the Act) and its explanation. The explanation states:

“(b) a person engaged or employed to clean excreta with the help of such devices and using such protective gear, as the Central Government may notifyin this behalf, shall not be deemed to be a 'manual scavenger';”

Based on these above-mentioned provisions, he pleaded before the Bench that this could not be the intent as the same is against the constitutional provisions. Pertinently, Justice Bhat also pointed out that the protective gears can be loose as well.

Pursuant to this, Justice Kumar asked Parameshwar: “What if they give complete suit”?

Adding to that, Justice Bhat inquired about what is being done in Countries where such practice is not prevalent. He cited the example of Europe.

Parameshwar replied that these countries have opted for the mechanism.

However, Justice Kumar rebutted by saying that there is a need for resources for mechanisms and the same cannot be done overnight.

Justice Bhat asked: “What is the ideal standard?…window dressing should not take place."

Subsequently, the Counsel referred to certain relevant rules of The Prohibition of Employment as Manual Scavengers and their Rehabilitation Rules, 2013 (Rules). Intra-alia, advocate stressed upon the starting line of Rule 3. It starts with:

“No person shall be allowed to clean a sewer manually, with protective gear and safety devices under these rules except”

He highlighted how no one is allowed to clean a sewer even with protective gear.

Justice Bhat acceded and said, "No, actually, rule 3 is very important. So, in that sense it truly carries the Act's intent.”

It is worth mentioning that during the proceedings, Justice Bhat also pointed out the news of the death of Sulabh International founder and social activist Bindeshwar Pathak that took place yesterday.

Parameshwar also averred that the entire stress in the Rules is on hazardous cleaning and not on manual scavenging, while in the Act the issue of hazardous cleaning is totally unregulated.

Reports of Surveys Are Inadequate

Regarding the surveys of manual scavengers, he submitted that several commissions have flagged this issue and stated that these surveys are inadequate. Parameshwar argued that a comprehensive survey is required.

To bolster his argument, he emphasized that the Supreme Court pointed out that the National Survey of Manual Scavengers, 2013, was not conducted in rural areas. Moreover, Niti Ayog member, also stated that we need a fresh survey. He elucidated the same by emphasizing that except five states, no state-level survey committee is constituted by other states.

Parameshwar also brought to attention that no survey has been carried out regarding sewer deaths. In 2014, Supreme Court ordered a survey of sewer deaths since 1993. However, no survey was carried out, and there is a legislative void for this. He went on to submit that there is a need for the same in order to compensate and properly rehabilitate the victims adequately. He suggested that State Legal Services Authority must take action on this.

On being asked about the data, he replied that post the enforcement of the Act, 1 Sewer death takes place every five days. One of his proposed directions was that the municipal body pay first and recover later from sewer death.

Case Title: DR. BALRAM SINGH V. UNION OF INDIA AND ORS, W.P.(C) No. 324/2020