The Supreme Court on Monday observed that it cannot compel States to file their replies on the issue of manual scavenging, and said it will proceed with the hearing on the plea related to it. A Bench of Chief Justice SA Bobde and Justices AS Bopanna and V Ramasubramanian listed the matter for further hearing in the third week of August.
During the brief hearing, advocate Ashima Mandla, appearing for a NGO ‘Criminal Justice Society of India’ headed by senior advocate KTS Tulsi, said that one manual scavenger dies every five days and the issue has also come up in the Rajya Sabha.
Ms. Mandla said in February 2019, notice was issued in the matter and there are over 40 respondents but only 13 have so far filed their counter affidavit.
The Bench observed, “We can't compel people to file counter affidavit. We will proceed and draw adverse inference against them”.
On February 8, 2019, the Supreme Court had asked the Chief Secretaries of all States and Union Territories (UTs) to place a record status report on the number of manual scavengers employed directly or indirectly since 1993 when the law prohibiting the practice was enacted.
It had observed that the matter was “serious” and asked all the States and the UTs to file their reply within four weeks. The plea, filed by a NGO through advocate Fuzail Ahmad Ayyubi has sought the number of manual scavengers who have died since 1993.
It has also sought a direction to all the States, UTs and the Indian Railways to investigate the death of manual scavengers and initiate criminal proceedings under IPC Section 304 (punishment for culpable homicide not amounting to murder) against authorities, agencies, contractors or any other official, who have directly or indirectly employed manual scavengers.
The death of persons under these circumstances cannot be attributed to mere negligence as these persons are engaged either directly or indirectly to carry out acts which are prohibited under the law and are exposing them to deplorable and hazardous conditions which have proved to be fatal in numerous instances, it said.
"Hence, it is the plea of the petitioner that the said contractors, officials, agencies or any other persons shall face criminal proceedings under section 304 of the Penal Code including the cases of agency wherein vicarious liability applies," the plea said.
Manual scavenging was declared illegal in 1993.
It said that the Act penalises construction of insanitary latrine and direct or indirect employment of persons as manual scavengers and provides for up to two years imprisonment to authorities employing a person directly or indirectly for hazardous cleaning of a septic tank or sewer. The plea said that Rule 4 of the Prohibition of Employment as Manual Scavengers Rehabilitation Rules, 2013 mandates that anyone engaged in cleaning of sewers or septic tanks shall be provided protective gear and safety devices by his employer.
"The subsisting infrastructure does not purport towards the safety and security of manual scavengers, resulting in accidents, diseases, injuries and fatalities suffered by them.
"Hence, inaction on behalf of the respondents despite knowledge of the above mentioned amounts to willful negligence and disregard to fundamental rights and needs of certain weaker sections of the society in its entirety," the plea said.