Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013 – Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 – Directions by Supreme Court – Eradication of manual scavenging in a phased manner – Rehabilitation measures – Compensation for sewer deaths etc.:

Held: The Union should take appropriate measures and frame policies and issue directions, to all statutory bodies to ensure that manual sewer cleaning is completely eradicated in a phased manner, and also issue guidelines and directions that any sewer cleaning work outsourced, or required to be discharged, by or through contractors or agencies, do not require individuals to enter sewers, for any purpose whatsoever – States and Union Territories to ensure that all departments, agencies, corporations ensure that guidelines and directions framed by the Union are embodied in their own guidelines and directions – States to ensure that such directions are applicable to all municipalities, and local bodies functioning within their territories – The Union, State and Union Territories to ensure that full rehabilitation (including employment to the next of kin, education to the wards, and skill training) measures are taken in respect of sewage workers, and those who die – Compensation for sewer deaths shall be Rs.30 lakhs – Compensation stated in the case of sewer victims suffering disabilities, depending upon the severity of disabilities – Mechanism be devised to ensure accountability, especially wherever sewer deaths occur in the course of contractual or outsourced work – A model contract to be devised, to be used wherever contracts are to be awarded and in the event of any mishap, the agency would lose its contract, possibly blacklisting – Modalities be drawn for the conduct of a National Survey – NALSA shall be part of the consultations, toward framing the policies as directed – The Union, State and Union Territories to ensure coordination with all the commissions like National Commission for Safai Karamcharis (NCSK), State Commission for Safai Karamcharis (NCSC) for setting up of state level, district level committees and commissions, in a time bound manner – NCSK, NCSC, National Commission for Scheduled Tribes (NCST) and the Union government to coordinate and prepare training and education modules, for information and use by district and state level agencies, under the 2013 Act – A portal and a dashboard, containing all relevant information, including the information relating to sewer deaths, victims and the status of compensation disbursement, as well as rehabilitation measures taken, and existing and available rehabilitation policies be developed and launched – Prohibition of Employment as Manual Scavengers and Their Rehabilitation Rules, 2013– National Commission for Safai Karamchari Act, 1993 – Constitution of India – Articles 15(2), 17, 23, 24 – Civil Rights Act, 1955 – Contract Labour (Prohibition and Regulation Act), 1970. [Para 96]

Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013 – s.11 – Interpretation of – Plea of the Union that s.11 requires localized surveys by local bodies and not a national survey:

Held: 2013 Act is not a regular statute, it is emancipatory in character and is a manifestation of the constitutional code of upliftment – The groundbreaking purpose of the 2013 Act is to ensure that manual scavengers are rehabilitated – Rehabilitation is a step after identification – Without a survey, rehabilitation is not workable – The statutory scheme cannot be undermined through an interpretation that would leave the implementation of the 2013 Act solely with the local bodies, without any guidance from the Governments, State and Central – The Central and State Governments were and are, duty-bound to lay down the parameters under which a local body was mandated to conduct a survey – While the methodology of the Survey is provided under the 2013 Rules, the trigger for conducting the Survey is conspicuously absent from both the 2013 Rules as well as the 2013 Act – The absence of a trigger cannot render the 2013 Act and its constitutional commitments otiose by non-implementation – Local bodies must be guided by the central and state governments by laying down guidelines on when a survey must be conducted, and which local bodies must conduct a survey – Without a policy of this nature, a local body cannot be expected to implement the 2013 Act in a proper manner – while local governments must conduct surveys, it was for the appropriate authorities, at both the central and state levels, to lay down parameters for the surveys to be conducted – Prohibition of Employment as Manual Scavengers and Their Rehabilitation Rules, 2013 – Constitution of India – Article 17 – Civil Rights Act, 1955. [Paras 53, 54 and 56]

Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013 – s.11 – Prohibition of Employment as Manual Scavengers and Their Rehabilitation Rules, 2013 – r.11 – Insufficiency of the previous Surveys:

Held: Neither the 2013 nor the 2018 surveys could have been conducted as prescribed under the scheme of the 2013 Rules and the 2013 Act for the reason that the institutions entrusted with duties to conduct the Surveys were either not constituted or were not functioning – Where the Act and Rules prescribe a particular method and manner of survey, that method and manner only ought to have been followed and no other method or manner could have been followed – No provisional list u/s.11(4) was prepared; no objections were called for and decided u/s.11(5) and no final list was published u/s.11(6) – In the absence of following, the contention that there was a valid survey conducted cannot be accepted – Also, this Court in Safai Karamchari Andolan case had noticed the short-comings of the survey of 2013 – Hence, when this Court had already found that the survey was insufficient, the Union cannot possibly rely on the same survey once again. [Paras 57, 60, 66]

Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013 – Short-coming in the implementation – Non-constitution of various institutions required for implementation of the Act:

Held: A major short-coming in the implementation of the 2013 Act is the fact that the State and the Central Governments have not even constituted the various institutions required to implement the Act– Implementation of the statute depends on the effective functioning of the institutions like National Commission for Safai Karamcharis, State Commission for Safai Karamcharis, Central Monitoring Committee, State Monitoring Committee, Vigilance Committees, State/District Level Survey Committee – Unfortunately, these institutions have not been constituted by the States and the Union and where they have been constituted, the institutions are not functioning at all – The Act has created the institutions to ensure a check and balance on the implementation of the statute – However, instead of being a check on the implementation, the lack of institutions has effectively brought the implementation of the Act to a total stand-still – Functioning of each of the institutions dealt with specifically. [Paras 67, 68]

Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013 – Manual scavenging and hazardous cleaning, separately treated under the 2013 Act – Plea that this violates Article 14 as there is no rational differentiation between the two:

Held: This court is not faced with a challenge to the statute – Without a challenge to the provisions, the differentiation cannot be held unconstitutional – Constitution of India – Article 14. [Para 82]

Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013 – Prohibition of Employment as Manual Scavengers and Their Rehabilitation Rules, 2013 – rr.3, 5 – Mechanization of hazardous cleaning through ‘cleaning devices’ and ‘protective gear’ – Exceptions – Discussed.

Constitution of India – Article 23 – Status of hazardous cleaning u/Article 23 – Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013:

Held: Article 23 prohibits forced labour and makes it an offence punishable in accordance with law – The expression ‘other forms of forced labour’ in Article 23 strike at all forms of labour which offend human dignity – This would include not just remuneration but would also include all labour where the absolute minimum standards of safe employment are not met – Where minimum protective gear and cleaning devices are not provided to hazardous workers, the employment of hazardous workers amounts to forced labour and is thus prohibited under the Constitution – The provisions for protective gear and cleaning devices are not mere statutory rights or rules, but are entitlements and it is due to these entitlements that the provisions of the 2013 Act are in consonance with the Constitution – A contract for employment of a hazardous cleaner without protective gear and cleaning devices would violate Article 23 even if it were voluntary because such an agreement would violate human dignity. [Paras 88, 90, 91]