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GOVERNMENT OF TAMILNADU

DIRECTORATE OF LEGAL STUDIES

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BEFORE THE HON’BLE SUPREME COURT OF YAVANA

(UNDER ARTICLE 32 OF THE CONSTITUTION OF YAVANA)

IN THE MATTER OF:

WRIT PETITION NO. ______ OF 2022

DIGNITY ASSURANCE FOR YAVANIANS PETITIONER

VERSUS

UNION OF YAVANA RESPONDENT

ALONG WITH WRIT PETITION NO. ______ OF 2022

NATIONAL HUMAN RIGHTS COMMISSION & ORS. PETITIONER

VERSUS

UNION OF YAVANA & ANR. RESPONDENT

ALONG WITH WRIT PETITION NO. ______ OF 2022

SENGAI VALLEY DWELLER’S SOCIETY PETITIONER

VERSUS

STATE POLLUTION CONTROL BOARD & ANR. RESPONDENT

MEMORIAL ON BEHALF OF THE PETITIONERS

MOST RESPECTFULLY SUBMITTED BEFORE THE BENCH OF THIS HON’BLE COURT

TEAM CODE: KARUVEL

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TABLE OF CONTENTS

LIST OF ABBREVATIONS …………….……………….…….……….………………… 4

INDEX OF AUTHORITIES ……………………...…….…………….…………...……....

STATEMENT OF JURISDICTION …………………………….….………………….....

STATEMENT OF FACTS ………………………………………………...……...............

ISSUES RAISED ………………………………………………………..…………….…...

SUMMARY OF ARGUMENTS ………………………………………..………………..

ARGUMENTS ADVANCED …………………………….……...……..…………….…..

ISSUE 1: WHETHER THE PROHIBITION OF EMPLOYMENT AS

MANUAL SCAVENGER AND THEIR REHABILITATION ACT -

IS CONSTITUTIONALLY VALID? ..............................................................

1.1. THE PROVISIONS CONTAINED UNDER THE ACT ARE AGAINST THE SPIRIT

OF THE ACT

1.2. THE ACT FAILS TO FULFILL THE TEST OF STRICT SCRUTINY

1.3. THE ACT INDIRECTLY CAUSES MS – THEREBY VIOLATING ARTICLE 21

1.4. INFRINGEMENT OF ARTICLE 17

ISSUE 2: WHETHER THE GOVERNMENT HAS COMPLIED WITH

ITS INTERNATIONAL COMMITMENTS ?................................................ 20

2.1. UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948

2. 2 .THE COVENANT ON CIVIL AND POLITICAL RIGHTS 1966

2. 3 .THE COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS 1966

2. 4 .THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF

DISCRIMINATION AGAINST WOMEN

ISSUE 3: WHETHER THE DEPENDENTS OF THE DECEASED WERE

ENTITLED TO CLAIM COMPENSATION? ..............................................

3.1. THE GOVERNMENT IS RESPONSIBLE FOR COMPENSATION

3.2. THE DESCENDANTS OF THE DECEASED ARE ENTITLED TO CLAIM

COMPENSATION

3.3. VIOLATION OF ARTICLE 21

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ISSUE 4: WHETHER THE BIO-MEDICAL WASTE DISPOSAL

REGULATIONS ARE FULFILLING THE CONSTITUTIONAL

MANDATES? ........................................................................................... 26

4.1. FAILURE TO ENSURE PROPER DISPOSAL

4. 2. PUNISHMENTS FOR VIOLATION OF REGULATIONS

4. 3. DISEASES CAUSED DUE TO IMPROPER WASTE DISPOSAL – VIOLATION OF

ARTICLE 21 AND ARTICLE 47

4. 4. ARTICLES 47, 48A, 51A HAVE BEEN NEGLECTED BY THE STATE

PRAYER ………………………………………….…………………………………… 30

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LIST OF ABBREVATIONS

S.No. ABBREVIATIONS EXPANSION

1 & And

2 ¶ Paragraph

3 AIR All India Reporter

4 Anr Another

5 Art Article

7 Crl Criminal

8 et. Al And others

9 FIR First Information Report

10 GHS Global Health Services

11 i.e., That is

12 HC High Court

13 Hon’ble Honourable

14 No. Number

15 Ors. Others

16 Pg. Page

17 PEMSR Act Prohibition of Employment As Manual Scavenger And Their Rehabilitation Act

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18 SC Supreme Court

19 SCC Supreme Court Cases

20 SCR Supreme Court Reporter

21 Sec Section

22 SPCB State Pollution Control Board

23 UOI Union of India

24 u/s Under section

25 Vol Volume

26 Vs. Versus

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INDEX OF AUTHORITIES

CASES

1. Anuj Garg & Ors vs. Hotel Association of India & Ors, AIR 2008 SC 663
2. Naz Foundation vs. Government of NCT of Delhi, 160 Delhi Law Times 277
3. Subhash Chandra vs. Delhi Subordinate Services Selection Board, WP(C) No.507 of 2006
4. Suresh Kumar Koushal & Anr vs Naz Foundation & Ors, Civil appeal no.10972 of 2013 (Arising out of SLP (C) No.15436 of 2009)
5. State Punjab vs. Mahinder Singh Chawla, AIR 1997 SC 1225
6. Kirloskar Brothers vs. Employees State Insurance Corporation, (1996) 2 SCC 68
7. Consumer Education and Research Centre and others vs. Union of India and others, AIR 1995 SC 922
8. Builders Association Of India And Ors. Vs. Union Of India.1989 SCALE (2)
9. Francis Coralie Mullin vs. The Administrator, Union Territory of Delhi (1981) 2 SCR
10. Change India vs Government Of Tamilnadu ,W.P.No.25726 of 2017
11. Safai Karamchari Andolan And Ors vs Union Of India, W.P (Civil) NO. 583 OF 2003
12. P.Ayyaswami vs The Chief Secretary, W.P. No.25717 of 2012
13. B.Panju Selvarani vs The Secretary To Government, W.A.(MD) No.1029 of 2019
14. The Secretary To The Government vs Valaiyakka, W.A (MD) No.550 of 2016 and C.M.P(MD)No.3930 of 2016
15. Shalesh Kumar vs The State Of Bihar, W.P. 7312 of 2015
16. Union Of India And Ors. vs Bhanudas Krishna Gawde , 1977 AIR 1027, 1977 SCR (2)
17. Shubham Suresh Thorat vs. The State of Maharashtra, Crl bail Appl. No. 3242 of 2020
18. Mr. 'X' vs. Hospital 'Z', Appeal (civil) 4641 of 1998
19. Vincent vs. Union of India, 1987 AIR 990 1987 SCR (2) 4 68
20. Bandhua Mukti Morcha vs. Union of India, [1984] 3 SCC 161
21. Haat Supreme Wastech Pvt. Ltd. Ors vs State Of Haryana, Appeal No. 63/ 2013

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STATUTES, ACTS AND RULES

1. The Constitution of India, 1950
2. The Indian Penal Code, 1860.
3. The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013
4. The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 1993
5. The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993
6. Bio-Medical Waste Management Rules, 201 6
7. Bio-Medical Waste Management Rules, 1998
8. The Prohibition of Employment as Manual Scavengers and their Rehabilitation Rules, 2013

INTERNATIONAL INSTRUMENTS

1. Universal Declaration Of Human Rights, 1948
2. The Covenant On Civil And Political Rights 1966
3. The Covenant On Economic, Social And Cultural Rights 1966
4. The Convention On The Elimination Of All Forms Of Discrimination Against Women

BOOKS AND COMMENTARIES

1. M.P. Jain, Indian Constitutional Law , (6th Ed, 2010)
2. Durga Das Basu, Shorter Constitution Of India , (14th Ed, 2009)
3. V.N. Shukla, Constitution of India , (12th Ed, 2016)
4. R.P.Kataria and Salah Uddin, Commentary on Human Rights( 1st^ Ed,2011)

LEGAL DATABASE

1. http://www.indiakanoon.com
2. http://www.scconline.com
3. http://www.casemine.com
4. https://www.scconline.com/

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STATEMENT OF JURISDICTION

DIGNITY ASSURANCE FOR YAVANIANS V. UNION OF YAVANA

The Petitioner has approached the Hon'ble Supreme Court of Yavana under Art. 32 of the Constitution of Yavana, 1950, through a Public Interest Litigation.

NATIONAL HUMAN RIGHTS COMMISSION AND ORS. V. UNION OF YAVANA & ANR.

The Petitioner has approached the Hon'ble Supreme Court of Yavana under Art. 32 of the Constitution of Yavana, 1950, through a Writ Petition.

SENGAI VALLEY DWELLER'S SOCIETY V. STATE POLLUTION CONTROL BOARD & ANR.

The Petitioner has approached the Hon'ble Supreme Court of Yavana under Art. 32 of the Constitution of Yavana, 1950, through a Writ Petition.

The present memorandum sets forth the Facts, Contentions and Arguments.

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STATEMENT OF FACTS

Background:

Union of Yavana is the largest democracy in the World. It offers protection to the lives of every human being and accords them with equal opportunities. Moreover, the rights guaranteed under Article 14 and Article 21 makes no distinction between Yavanian citizens and others. The practice of manual scavenging is an age-old problem in the yavanian society and the efforts to abolish this custom have garnered momentum in the last three decades, particularly since the formation of the Safai Karamchari Andolan (SKA) in 1994.

Shortcoming of the Act:

‘Dignity Assurance for Yavanian’ is an NGO which crucially works to abolish the manual scavenging since its inception. It criticized the prohibition of employment as manual scavengers and their rehabilitation act, 2013, for having the provisions that indirectly causes the manual scavenging. Therefore, it has filed a PIL in the hon’ble supreme court challenging the constitutionality of the portion in the act which is against the act’s purpose. The Hon’ble Prime Minister of Yavana on 15th^ August 2022, stated of having no manual scavenging in the Yavana and it replaced by the machineries.

Death of Manual Scavengers:

The Global Healthcare Services is a multinational company which is situated in the city of Maruvai. Due to the unavailability of its regular sanitation service and the leakage of septic tank getting worse as an effect of continues rain; it hired 3 persons to clean the septic tank. However, all the indulged workers lost their life due to asphyxiation. This also included Jonila, who was a foreign national research student and she met with this fate in an attempt to rescue them. This resulted in a protest against the GHS. Subsequently, the PM also withdrew her statement regarding the Government’s success in complete abolishment of Manual Scavenging which was stated on 15th^ August 2022.

Suo Moto cognizance by NHRC:

As a result of this incident, the general manager of the GHS was arrested by Maruvai Police under sections 304, 107 and 109 of Yavanian Penal Code. The National Human Rights

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Commission of Yavana took suo moto cognizance on the issue and also moved the matter to the Supreme Court under Article 32 of the Yavanian Constitution. Also, an Intervention Application has been filed by Mrs.Mersina,the mother of Jonila to implead in the case along with the relatives of other three deceased for claiming compensation for the sewer deaths.

Fault in GHS’s incineration and negligence of SPCB:

The GHS which owns a Huge plant of incinerator for medical waste in suburban of Maruvai, is adjacent to the „Sengai Valley‟ gated community which consist of 500 residents. A short time ago, several cases were reported in and around Sengai Valley hospitals of the residents facing similar health issues. Eventually by understanding the seriousness of the hazardous situation, Society approached the GHS as their Incineration producing noxious fumes in the vicinity of Sengai Valley. However,the GHS totally ignored this issue. Aggrieved by this act of GHS the Society approached the State Pollution Control board of Poigai. Since, there were no satisfactory actions on the part of SPCB of Poigai the Society has filed a writ petition in the Apex Court of the Union of Yavana.

. On observing the multiplicity of proceedings which was in the larger public interest, the Apex Court of Yavana integrated all the above petitions and scheduled the matter for a hearing.

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ISSUES RAISED

ISSUE 1

WHETHER THE PROHIBITION OF EMPLOYMENT AS MANUAL SCAVENGER AND

THEIR REHABILITATION ACT 2013 IS CONSTITUTIONALLY VALID?

ISSUE 2

WHETHER GOVERNMENT HAS COMPLIED WITH ITS INTERNATIONAL

COMMITMENTS?

ISSUE 3

WHETHER THE DEPENDANTS OF THE DECEASED WERE ENTITLED TO CLAIM

COMPENSATION?

ISSUE 4

WHETHER THE BIO-MEDICALWASTE DISPOSAL REGULATIONS ARE

FULFILLING THE CONSTITUTIONAL MANDATES?

.

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SUMMARY OF ARGUEMENTS

1. WHETHER THE PROHIBITION OF EMPLOYMENT AS MANUAL

SCAVENGER AND THEIR REHABILITATION ACT, 2013 IS

CONSTITUTIONALLY VALID?

It is humbly submitted that the Prohibition of Employment as Manual Scavenger and their Rehabilitation Act, 2013 is constitutionally invalid. The provisions of the Act are in contradiction with the objective of the Act. By redefining manual scavenger to include those only without safety gear, the Act implicitly promotes the inhumane act.

2. WHETHER THE GOVERNMENT HAS COMPLIED WITH ITS INTERNATIONAL COMMITMENTS? It is submitted that the government has not complied with the International Commitments to which Yavana is a signatory. Particularly, The Covenant on Economic, Social and Cultural Rights 1966, The Convention on the Elimination of All Forms of Discrimination against Women.

3. WHETHER THE DEPENDENTS OF THE DECEASED WERE ENTITLED TO CLAIM COMPENSATION? The dependents of the deceased are entitled to compensation on the grounds that the government bears vicarious liability for the loss of the lives of three Yavanian citizens and the research scholar from Utopia. The right to life guaranteed by Article 21 of the Constitution for citizens and non-citizens in the Union of Yavana. Compensation for violation of fundamental rights is based on strict liability, which in this case exists.

4. WHETHER THE BIO-MEDICAL WASTE DISPOSAL REGULATIONS ARE FULFILLING THE CONSTITUTIONAL MANDATES? The Biomedical Waste Disposal Rules, 2016 do not fulfil the constitutional mandate to uphold the rights guaranteed in the Constitution.

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ARGUMENTS ADVANCED

1. WHETHER THE PROHIBITION OF EMPLOYMENT AS MANUAL SCAVENGER

AND THEIR REHABILITATION ACT, 2013 IS CONSTITUTIONALLY VALID?

[¶ 1 .] It is humbly submitted that the Prohibition of Employment as Manual Scavenger and their Rehabilitation Act, 2013 is not constitutionally valid since the act itself is having provisions which indirectly causes the practice of manual scavenging. 1.1. THE PROVISIONS CONTAINED UNDER THE ACT ARE AGAINST THE SPIRIT OF THE ACT 1.1.1. THE SECTION 2(1)(g) ALLOWS THE PRACTICE OF MANUAL SCAVENGING TO PERPETUATE RELYING ON THE PERMISSIBILITY OF PROTECTIVE GEAR AS A LEGAL EXCEPTION TO THE PROHIBITION. [¶2.] The section 2(1)(g) of the act defines “manual scavenger” as a person who is engaged or employed by an individual or a local authority or an agency or a 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. [¶3.] The Explanation to section 2(1)(g) attaches a condition to this definition where— (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 notify in this behalf, shall not be deemed to be a ‘manual scavenger’^1 ; [¶4.] This implies that manual scavenging is prohibited by this Act only if protective gear, equipment and devices are not provided to municipal employees and manual scavengers. The significance of this legislative exceptionalism and permissibility of manual scavenging is that the Act lacks tools to achieve its central objective—‘the prohibition of employment as manual scavengers, rehabilitation of manual scavengers, and their families’.

(^1) Section 2(1)(g) of PEMSR Act, 2013

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[¶5.] Where the legislation prohibits the employment in hazardous activities and manual scavenging on one hand, it permits carrying out these otherwise prohibited acts if such persons do so with protective gear, equipment and devices on the other hand.

[¶6.] Hence it is explicit from this provision that the legislative intent is thus not towards completely prohibiting any forms of engagement and employment in carrying human excreta, or entering sewers or septic tanks by persons, but to continue the practice of manual scavenging and hazardous cleaning by providing safety mechanisms to ensure engagement.

[¶7.] The purpose of an Act against manual scavenging must be to abolish manual scavenging, not merely disallow certain forms of it. By narrowing down the definition, the act fails to recognize that the work of manual scavenging is not one profession among others but is an inherent evil in our society. It is submitted that such a clause nullifies the strong strictures against manual scavenging, and renders it moot.

1.1.2. LIMITED SCOPE OF THE TERM “HAZARDOUS CLEANING” UNDER THE ACT

[¶8.] The Section 2(1) (d) of the Act, construes “hazardous cleaning” in relation to a sewer or septic tank as a manual cleaning by such employee without the usage of protective gear and other cleaning devices that ensures observance of safety precautions.^2 Where the aim of the Act is to prohibit any form of manual scavenging, it however vetoes hazardous cleaning, only on the condition when workers are not provided with protective gear.

[¶9.] Moreover, the Act fails to define “protective gear” which can be a detriment as, due to this ambiguity in definition, sometimes employers just give them gloves, which fulfils the criterion of protective gear. But merely providing gloves does not stop them from the exposure to health hazards. This further legitimizes the inhumane practice, and defeats the very purpose of the Act.

1.1.3. CONFLICT AMONG THE EXISTING PROVISIONS UNDER THE ACT

[¶10.] Section 2(1)(e) defines the term ‘insanitary latrine’ as a latrine which requires human excreta to be cleaned or otherwise handled manually, either in situ, or in an open drain or pit into which the excreta is discharged or flushed out, before the excreta fully decomposes in

(^2) Section 2(1)(d) of PEMSR Act, 2013

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such manner as may be prescribed. 3 However, it also leaves out an exception that a water flush latrine in a railway passenger coach, when cleaned by an employee with the help of such devices and using such protective gear shall not be deemed to be an insanitary latrine.

[¶11.] This exception seems to be conflicting with sections 5 of the same act. Because, the section 5 - "Prohibition of insanitary latrines and employment and engagement of manual scavenger" states in its sub clause 2 that every insanitary latrine existing on the date of commencement of this Act, shall either be demolished or be converted into a sanitary latrine.

[¶12.] Moreover, the Section 17 with regard to "Responsibility of local authorities to ensure elimination of insanitary latrines" clearly states that it shall be the responsibility of every local authority to ensure, through awareness campaign or in such other manner that no insanitary latrine is constructed, maintained or used within its jurisdiction.

[¶13.] The Yavanian railways being a local authority with an obligation to 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, rather it seeks protection to continue such prohibited practice through the exception provided.

[¶14.] There may be certain difficulties for the railway to avoid manual scavenging in case of small latrines constructed inside the railway compartments. Rather the Railway Authority should devise a method to clean the latrines by way of constructing portable/ removable small septic tanks beneath the small latrines inside the compartments, which may be cleared in the stations from time to time.

1.1.4. OTHER LOOPHOLES THAT DEFEAT THE ENTIRE PURPOSE OF THE ACT

[¶15.] Section 4(1) of the Act^4 says that every Local authority shall: (a) carry out a survey of insanitary latrines existing within its jurisdiction, and publish a list of insanitary latrines, in such manner as may be prescribed, within a period of two months from the date of commencement of this Act. 5

[¶16.] It is observed that the Act refers to identification of only insanitary latrines. But, the Act does not mention identification of spots where open defecation is done and consequently (^3) Section 2(1)(e) of PEMSR Act, 2013 (^4) Section 4(1) of PEMSR Act, 2013 (^5) Section 4(1)(a) of PEMSR Act, 2013

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someone has to clean manually human excreta from the open spaces in urban areas. Moreover, a period of two months is insufficient and seems to be an impossible task for carrying out surveys of such insanitary latrines.

[¶17.] The section 39(1) of the Act states that the appropriate Government may, by a general or special order published in the Official Gazette, for the reasons to be recorded, and subject to such conditions as it may impose, exempt any area, category of building or class of persons from any provisions of this Act or from any specified requirement contained in this Act or any rule, order, notification, bye – laws or scheme made there under or dispense with the observance of any such requirement in a class or classes of cases, for a period not exceeding six months at a time;^6 This is a major gap in the Act as it empowers the Government to exempt the provisions of the Act and thereby creating a major gap that can defeat the entire purpose behind passing this piece of legislation.

[¶18.] Hence it is most humbly submitted that the act itself is having provisions which may indirectly cause the manual scavenging. Hence, by applying the doctrine of severability, such contradictory provisions should be held unconstitutional and must be removed from the act.

1.2. THE ACT FAILS TO FULFIL THE TEST OF STRICT SCRUTINY

[¶19.] The term “strict scrutiny” refers to a test by which statutes are pronounced unconstitutional unless they are “necessary” or “narrowly drawn” or “closely tailored” to serve a “compelling governmental interest”. So, to pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest^7. Here, "Compelling government interest" refers to a fundamental state purpose, which must be shown before the law can limit some freedoms or treat some groups of people differently.

[¶20.] Application of the test to the present case- Even though the government’s ultimate aim through the PEMSR act is to completely prohibit the practice of manual scavenging, however its inbuit provisions does not support its object. The narrowly tailored definition of

(^6) Section 39(1) of PEMSR Act, 2013 (^7) Anuj Garg & Ors vs. Hotel Association of India & Ors, AIR 2008 SC 663; Naz Foundation vs. Government of NCT of Delhi, 160 Delhi Law Times 277; Subhash Chandra vs. Delhi Subordinate Services Selection Board, WP(C) No.507 of 2006

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“manual scavenger” under section 2(1)(g) appears discriminatory in nature since it contains an unnecessary exception. Because, such an exception can possibly end up in violating the fundamental rights as guaranteed under the Yavanian constitution.

1.3. THE ACT INDIRECTLY CAUSES MS – THEREBY VIOLATING ARTICLE 21

[¶21.] The Act implicitly promotes MS, insofar as the workers are provided with the necessary “protective gear and devices”. Furthermore, the Act does not list out the protective gear necessary for those who do choose to employ a worker for manual scavenging. Such an omission makes it convenient for such employers to provide merely the minimum protective gear to escape liability in case of death or injury. Due to this ambiguity in definition, sometimes employers just give them gloves, which fulfil the criterion of protective gear. But merely providing gloves does not stop them from the exposure to health hazards. Hence, this type of provision can lead to the infringement of the implicit rights guaranteed under Article

21.^8

1.3.1. RIGHT TO HEALTH

[¶22.] The Constitution is a living document and it should remain flexible to meet newly emerging problems and challenges. So, the Fundamental rights are be interpreted in an expansive and purposive manner so as to enhance the dignity of the individual and worth of the human person.^9

[¶23.] 'Right to life' in Article 21 of the Constitution of India includes protection of the health of every person and medical care^10. It has a much wider meaning which includes the right to a better standard of life and hygienic conditions at the workplace.^11

[¶24.] It is explicit from the aforementioned ground that certain provisions of the PEMSR Act are not completely prohibiting the practice of manual scavenging and instead they are

(^8) Article 21 Constitution of India, 1949 (^9) Suresh Kumar Koushal & Anr vs Naz Foundation & Ors(civil appeal no.10972 of 2013 (Arising out of SLP (C) No.15436 of 2009)

(^10) State Punjab vs. Mahinder Singh Chawla, AIR 1997 SC 1225; Kirloskar Brothers vs. Employees State Insurance Corporation, (1996) 2 SCC 68 (^11) Consumer Education and Research Centre and others vs. Union of India and others, AIR 1995 SC 922

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against the objective of the act. Thus, such ambiguity can lead to the legal indulgence of workers into such practice. And this can cause a severe threat to such workers due to the consequence of the health hazard it causes.

[¶25.] At this point it is pertinent to note that permitting such a practice despite it being voluntary will be degrading of human dignity. Moreover the Article 47 of the Yavanian constitution states that it is the duty of the state to ensure just and humane conditions of work; and improve the standard of living and consider improvement of public health as its primary duty.

[¶26.] Hence, it is humbly submitted that certain choices are prohibited by the Constitution itself and the abolishment of MS enhances the Fundamental Rights, by emancipating such workers from a social condition which is below human dignity.

1.3.2. VIOLATION OF RIGHT TO LIVE WITH HUMAN DIGNITY

[¶27.] The right to life embraces not only physical existence but the quality of life as understood in its richness and fullness by the ambit of the Constitution. Also, it is not confined to the protection of any faculty or limb through which life is enjoyed or the soul communicates with the outside world but it also includes 'the right to live with human dignity'^12 free from exploitation.^13

[¶28.] The practice of manual scavenging is the most degrading and inhumane practice in the world and a blot on human dignity. Therefore, manual scavenging will continue to be the most dehumanizing form of work irrespective of governing it under the umbrella of protective gear and other equips.

1.4. INFRINGEMENT OF ARTICLE 17

[¶29.] Art 17 of the constitution of Yavana states that untouchability is abolished and its practice in any form is forbidden.^14 It also specifies that any violation arising out shall be an offence punishable under the law.

(^12) Builders Association Of India And Ors. Vs. Union Of India.1989 SCALE (2) (^13) Francis Coralie Mullin vs. The Administrator, Union Territory of Delhi (1981) 2 SCR 516. (^14) Article 17 Constitution of India, 1949

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[¶30.] A recent manifestation of the government data has revealed that 97.25% percent of manual scavengers in Yavana belong to Dalit community under the category of Scheduled caste and tribes.^15 The obnoxious practice of manual scavenging is rooted in the concept of the caste-system and untouchability across the country of Yavana. Hence, if such practice of manual scavenging continues to exist through the exceptions under the PEMSR act, then it would end up in infringement of the right guaranteed under Article 17 of the Yavanian constitution.

[¶31.] In the present case, even if there is a legitimate state interest in enacting the PEMSR act, it lacks proper implementation and application due to the loopholes present in the act. This is well evident from the fact that even after 9 years of implementation of PEMSR act, the manual scavengers and their practice are still recorded throughout the country till date.

[¶32.] Hence, it is humbly submitted that the Prohibition of Employment as Manual Scavenger and their Rehabilitation Act, 2013 is not constitutionally invalid.

(^15) 97.25% of people involved in manual scavenging whose caste data is known are SCs

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2. WHETHER THE GOVERNMENT HAS COMPLIED WITH ITS

INTERNATIONAL COMMITMENTS?

[¶32.] It is humbly submitted that the government has not complied with its International Commitments.

2. 1 .UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948

[¶33.] Yavana is a signatory to the UDHR. It is a fact that the Yavanian constitution was greatly influenced by the UDHR.

[¶34.] Provisions of UDHR that prohibits manual Scavenging: Article 1^16 of UDHR states that all human beings are born free and equal in dignity and rights. The article 5^17 states that no one shall be subjected to inhuman or degrading treatment. Article 22^18 includes the right to work, an adequate standard of living and social security. Under Article 23^19 , right just and favorable conditions of work are provided.

[¶35.] While the Article 5 prohibits inhumane treatment, the government of Yavana hides such inhumane activities by providing such workers with protective gear and excluding them from the category of manual scavengers. Moreover, due the lack of clarity regarding the type of protective gears, the just and favorable conditions of work are in question.

2. 2 .THE COVENANT ON CIVIL AND POLITICAL RIGHTS, 1966 [¶36.] Article 8^20 of ICCPR provides the right to not be enslaved and Article 26^21 confers the right to equality before law. All these are virtually absent in case of manual scavengers. Because, in a country like Yavana, manual scavenging is considered to be the work of a certain community of people and this is manifested through various data.

(^16) Art 1, Universal Declaration of Human Rights, 1948 (^17) Art 5, Universal Declaration of Human Rights, 1948 (^18) Art 22, Universal Declaration of Human Rights, 1948 (^19) Art 23, Universal Declaration of Human Rights, 1948 (^20) Art 8, The Covenant On Civil And Political Rights, 1966

(^21) Art 26, The Covenant On Civil And Political Rights, 1966

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2. 3 .THE COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS,

[¶37.] As a signatory to ICESCR, Yavana has obligations to fulfill the following rights- Article 7^22 provides for just and favorable conditions of work; Article 9^23 provides for right to social security including social insurance, Article 11^24 for adequate standard of living for himself and his family including adequate food, clothing and housing. But normally in case of manual scavengers these rights are violated to its maximum extent.

[¶38.] In Yavana, in spite of executing various schemes aimed to rehabilitate the manual scavengers, none of them have been successful. The Self-Employment Scheme for Rehabilitation of Manual Scavengers (SRMS) was introduced in January, 2007, with the objective to rehabilitate the remaining manual scavengers and their dependents in alternative occupations by March, 2009. However, till date the count of manual scavengers and the prevalence of such inhumane practices exist. This is due to the internal contradictions and loopholes that exist among the laws that guarantees prohibition of manual scavenging.

2. 4 .THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN, 1979 [¶39.] India has been one of the initial signatories of the UN Committee on the Elimination of Discrimination against Women (CEDAW). However, it is yet to deliver equality, quality of life, social security, education, rehabilitation and employment to women manual scavengers.

[¶40.] While working to rehabilitate and support manual scavengers, one of the first steps should be to recognise the women engaged in this work and prioritise their needs. Estimates by several organisations suggest that more than 75 percent of manual scavengers are women. So far, policies and laws have failed to address the problems faced by women engaged in this hazardous occupation, and there is a pressing demand to cater to their specific needs.

(^22) Art 7, The Covenant On Economic, Social And Cultural Rights, 1966

(^23) Art 9, The Covenant On Economic, Social And Cultural Rights, 1966

(^24) Art 11, The Covenant On Economic, Social And Cultural Rights, 1966

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[¶41.] With regard to the ratification of aforementioned international human rights instruments, the Yavana government is yet to ratify these conventions. This depicts its lack of interest towards the complete prohibition of manual scavenging.

[¶42.] Hence, the Government of Yavana has failed on all counts to comply with its International Commitments since the practice of Manual Scavenging is still prevalent in Yavana. Despite laws and regulations being in place, the practice has not been curtailed but has been forced underground.^25

(^25) WHO report on” Health, Safety and Dignity of sanitation workers- An initial assessment”

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3. WHETHER THE DEPENDENTS OF THE DECEASED WERE ENTITLED TO

CLAIM COMPENSATION?

3.1. THE GOVERNMENT IS RESPONSIBLE FOR COMPENSATION

[¶43.] It is humbly submitted that despite the State not directly employing MS, it has failed in its duty to prevent MS in this case. It is incumbent upon the State to ensure that no acts of MS take place. The State bears the vicarious liability for the actions of GHS, as it is the responsibility of the State to ensure that the inhumane act of MS has no place in Yavana. The State is under a bounden duty to prohibit manual scavenging and it cannot avoid its liability to compensate manual scavengers who have lost their lives in the course of manual scavenging, by reason of the inability of the State to stop manual scavenging.

[¶44.] In the case of Change India vs Government Of Tamilnadu^26 , the court concluded, providing appropriate context for the Supreme Court order in Safai Karmachand case^27 — “...Ultimately, however, compensation was released even to the dependents of manual scavengers engaged by private persons and/or entities, who had died in course of sewerage work since 1993.” “A reading of the judgment and order of the Supreme Court, as a whole, makes it amply clear that the Supreme Court was not concerned only with manual scavengers engaged by the State and/or State authorities, but manual scavengers engaged by private persons and/or entities, who had lost their lives in course of sewerage work.”

[¶45.] This was also reiterated by the Bombay High Court citing the Change India case, “a reading of the Supreme Court judgment in Safai Karamchari Andolan And Ors vs. Union Of India (supra)^28 , Madras High Court took the view that Supreme Court was not concerned with manual scavenging engaged only by the State or by State authorities but manual scavengers engaged by the private persons and/or by private entities as well.”

(^26) Change India vs Government Of Tamilnadu ,W.P.No.25726 of 2017 (^27) Safai Karamchari Andolan And Ors vs Union Of India, W.P (Civil) NO. 583 OF 2003

(^28) ibid

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3.2. THE DESCENDANTS OF THE DECEASED ARE ENTITLED TO CLAIM

COMPENSATION

[¶46.] GHS hired the three manual scavengers, and the three workers were subject to the poisonous gases in the sewer that led to their deaths. They are entitled to compensation; while the Act is silent on compensation on death, the hon’ble apex court in the landmark judgement Safai Karamchari Andolan And Ors vs Union Of India issued an order for compensation. The Supreme Court issued the following directions for 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.” The judgement rests on three pillar, the third pillar discusses the “compensation of Rs.10 lakhs” which “has been directed to be paid to the dependent family members of all persons, who had died in sewerage work (manholes, septic tanks) since 1993.”

[¶47.] This has been followed by the Madras High Court, in P.Ayyaswami vs The Chief Secretary^29 which ordered the State to “identify the families of all persons who have died in sewerage work (manholes, septic tanks…and award compensation of Rs.10 lakhs for each such death to the family members depending on them.” B.Panju Selvarani vs The Secretary To Government^30 which read, “State Government to pay interest to the identified heirs of manual scavengers who lost their lives in the course of manual scavenging and/or sewerage work at the rate of 8% per annum, being the rate of interest paid by nationalised banks to senior citizens, from 01.10.2014 till the date of payment of compensation of Rs.10 lakhs to the concerned heirs.” The Secretary To The Government vs Valaiyakka^31 followed the precedent set by the previous cases and directed the State to provide compensation.

3.3. VIOLATION OF ARTICLE 21 [¶ 48 .] The basis for compensation under Article 32 is on the basis of the doctrine of strict liability for infringement of the fundamental right to life of the deceased. Article 21 guarantees the fundamental right to life, and dignity of life. For the contravention of the

(^29) P.Ayyaswami vs The Chief Secretary, W.P. No.25717 of 2012 (^30) B.Panju Selvarani vs The Secretary To Government, W.A.(MD) No.1029 of 2019 (^31) The Secretary To The Government vs Valaiyakka, W.A (MD) No.550 of 2016 and C.M.P(MD)No.3930 of 2016

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fundamental right, compensation is due to Mrs. Mangai Selvendiran, Mr. Selvendiran, Aged 52, and Mr. Arivu, and the foreign researcher Ms. Jonila. The Supreme Court in Shalesh Kumar vs The State Of Bihar^32 declared, that “compensation in a proceeding under Article 32 by this Court…is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply”

[¶ 49 .] Strict liability exists when a defendant is liable for committing an action; regardless of what his/her intent or mental state was when committing the action. Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, which is not applicable as adjudicated by the hon'ble apex court, “The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State…and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution.”

[¶50.] Similarly in this case, the government bears the liability for the death of Mrs. Mangai Selvendiran, Mr. Selvendiran, Aged 52, and Mr. Arivu, and the foreign researcher Ms. Jonila, as demonstrated in the first ground, and the families of the deceased are entitled to claim compensation. Article 21 is guaranteed for non-citizens as well, as affirmed by the Supreme Court in Union Of India And Ors. vs Bhanudas Krishna Gawde^33 “fundamental rights are conferred and guaranteed by the Constitution so that citizens, and, in the cases of Articles 14 and 21, even non-citizens, may get relief against 'the State and its agencies.”It is submitted that Ms. Jonila’s right to life guaranteed for foreign citizens as well, has not been protected by the State.

(^32) Shalesh Kumar vs The State Of Bihar, W.P. 7312 of 2015 (^33) Union Of India And Ors. vs Bhanudas Krishna Gawde , 1977 AIR 1027, 1977 SCR (2)719