INDIA: Strict liability principle applied to compensate families of deceased manual scavengers
In 2011, two manual scavengers died while cleaning a sewer in Delhi’s Bawana Industrial area. Finally, on 27th February 2018, in the case of Rajesh and Another v. Delhi Jal Board and Ors (W.P.(C) 7030/2012), the High Court of Delhi brought relief to the families of these victims. Though prohibited, the dehumanising and hazardous practice of manual cleaning of sewers by persons continues unchecked across the country.
Section 7 of The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 (hereinafter ‘the Act’) prohibits such cleaning of sewers,
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.
Hazardous cleaning is defined thus under Section 2(1)(d):
‘(d) “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;’
On that fateful day, when the two workers stepped into a blocked sewage line, they choked on the toxic fumes and lost consciousness. Soon enough, they were dead. These men had not been provided with the necessary safety and protective equipment required for the work.
In 2011, a petition was filed where the plaintiffs sought the respondents to be held collectively liable and responsible under the welfare laws of the country. The Petitioners No. 1 and No. 2 are the wife and mother of the deceased Mr. Tilak Ram and Mr. Bhagwan Singh respectively. It was sought that each family should be paid ten lakh rupees as compensation for the loss of the lives of lives of the sole breadwinners of the family. There were several respondents to this case, including the Delhi Jal Board as Respondent 1, which is responsible for production/distribution of drinking water and also for the collection and disposal of waste water and sewage in Delhi. Respondent 2 being the Delhi State and Infrastructure Development Corporation Limited (DSIIDC), a government company which is responsible for developing and providing industrial infrastructure facilities to the entrepreneurs in Delhi. The Government of Delhi is Respondent 3, which is responsible for the implementation of welfare schemes, and the rest of the other respondents are private individuals.
All the defendants, however, absolved themselves of the blame. The Delhi Jal Board claimed that the said incident took place in an area whose sewer lines were under the maintenance of the DSIIDC. Though proved that it was under the scope of the DSIIDC, it defended itself stating that there was a procedure for cleaning sewers and it was done with the help of machines, the contract for the same was given to a private entity - M/s. Et. Envirotech Overseas Private Limited, that the deceased workers were not employed by them and also that it had written a letter to the local police informing them that industry owners were hiring private sewer workers which was damaging the sewer. It also said that the victims were not its workers. The private entity then later stated that there was contract and that he did not employ such labour, that he didn’t even have a license, nor was he a contractor.
The Court took a strong welfare stand and relied upon the case of Safai Karamchari Andolan and Ors v. Union of India (UOI) and Ors (Writ Petition (Civil) No. 583/2003), where the Supreme Court of India examined in detail the Act. In a detailed judgement given regarding the rehabilitation of manual scavengers, the Court directed that in case of a death of such workers during the course of employment, a compensation of Rs. Ten lakhs must be paid to the deceased’s family. In paragraph 14 of the mentioned case, it was stated,
14. (ii) (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.
14. (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.
Therefore, through the Safai Karamchari Andolan case, it is clearly established that due compensation has to be paid to those families of the victims of have died from manual scavenging work. Considering how the DSIIDC is answerable authority for that particular area, it cannot absolve itself from claiming that it nor its contractors hired these workers. These men were forced to work in hazardous conditions for economic reasons. Justice Rao wrote that they would not have gone to clean these sewers were it not for a promise of a remuneration and a chance at earning their livelihood. The Court also relied upon the case of Union of India v. Prabhakaran Vijay Kumar and Ors (2008 9 SCC 527) where it was held that if the fundamental rights of a citizen are infringed due to the action or inactions of the State or its officers, then the liability is strict. The highest degree of care should be taken by both public and private entities when there is a chance of harm to a person. Even if there is no establishment of negligence, the officials are still held liable due to the hazardous nature of the work. This judgement stated that Article 21 of the Constitution of India, which provides for Right to Life, has to be read into all public statutes. This is in order to protect a person’s life and to compensate him if harm does occur.
In the present judgment, the High Court, while observing the complete prohibition on employment of manual scavengers for hazardous cleaning, stated that,
15. The plea of DSIIDC that neither it nor any of its contractors had engaged the deceased persons for cleaning of the sewer lines would not absolve it of its obligation to pay the compensation in the eventuality that a person dies cleaning the same. Unfortunately, in the case in hand, each of the respondents have denied their obligation to pay compensation. Surely, the deceased persons would not have entered the sewer lines willingly unless someone had induced them to pay some money for cleaning it and the payment of money must have attracted them to earn livelihood for themselves and for their families. The compulsion of the dead persons was to earn some remuneration and having died in the course of earning remuneration, someone must be held responsible for the negligence, which resulted in their death.
The High Court of Delhi held that the DSIIDC should have ensured more safety and security with respect to the sewers so that it cannot be opened by anyone. The Court said that any mishap which would occur would be attributed to the negligence of the DSIIDC, and thus hold them strictly liable. The DSIIDC is to pay 10 lakh rupees to each of the petitioners.
The Asian Human Rights Commission welcomes the Delhi HC judgement upholding the rights of manual scavengers who are forced due to reasons of class, caste and apathy, to undertake dangerous and hazardous tasks for the sake of a small remuneration. The prohibitions under the Act being absolute, the application of the strict liability principle in awarding compensation is a step to be lauded in the fight to eradicate this dehumanising practise. It is hoped that employers will think twice before forcing workers into working without supplying the necessary protective equipment simply to save costs. This judgment should also force the nation to examine why a country so rich with technological advancements has been unable to find a mechanical solution that can eradicate the use of human scavengers. A terrible crime and a grave injustice that is repeated daily, India needs to relook its self-conception as a ‘growing’ economy when manual scavenging still exists, and people are dying because of it. (Asian Human Rights Commission)
The Asian Human Rights Commission (AHRC) works towards the radical rethinking and fundamental redesigning of justice institutions in order to protect and promote human rights in Asia. Established in 1984, the Hong Kong based organisation is a Laureate of the Right Livelihood Award, 2014.