Rajesh and Tilak Raj were young boys in their early 20s, hailing from Below Poverty Line families. They must have had dreams, like any other young men of their age. They must have had some aspirations. But the poor and the oppressed cannot even afford to dream for long. Like always, reality got in the way.
Being the sole breadwinners of their families, they had responsibilities on their shoulders. Baited with a meagre sum of Rs 300-400, they were made to step into a blocked sewer near a factory in Bawana Industrial Area, Delhi, for cleaning it without any safety equipment masks or oxygen cylinders. While cleaning the sewer, they inadvertently inhaled a miasma of toxic gases, lost consciousness and died on the spot. An entire year later, no compensation was awarded by the Delhi State Industrial and Infrastructure Development Corporation (DSIIDC), on the pretext that none of the said workers were employed nor engaged by it, or by any of its contractors.
This incident occurred in October 2011. Meanwhile, the Prohibition of Employment as Manual Scavengers Act, 2013 was enacted by the legislature. However, sadly, nothing has changed till now. As per the data released by National Commission for Safai Karamchari (NCSK) in 2018, one person died every five days on average while cleaning sewer and septic tanks across the country since January 2017.
The law prior to the enactment of the Prohibition of Employment as Manual Scavengers Act, 2013 was amply clear. The National Human Rights Commission guidelines and safety code for operation and maintenance of sewerage systems, 2002, which laid down the catalogue of the safety equipments, the eligibility criteria for selecting sewer workers, the provisions for medical examination and other requirements, had to be adhered to. The law was laid down by a two judge-bench of the Supreme Court of India in Delhi Jal Board vs National Campaign for Dignity and Rights of Sewerage and Allied Workers & Ors (2011) in categorical terms.
The defence argued by the petitioner – Delhi Jal Board – was that the deceased workers were employed by a contractor engaged by the petitioner, and therefore, it was the responsibility of the contractor to provide the safety equipment. Rejecting this contention, the bench observed:
“The State and its agencies/instrumentalities cannot absolve themselves of the responsibility to put in place effective mechanism for ensuring safety of the workers employed for maintaining and cleaning the sewage system. The human beings who are employed for doing the work in the sewers cannot be treated as mechanical robots, who [sic] may not be affected by poisonous gases in the manholes.”
The bench further held that besides the state and its agencies/instrumentalities, even the contractors engaged by them were under a constitutional obligation to ensure the safety of the persons who were asked to undertake the hazardous job. It is pertinent to note here that this judgment was silent on the point of what would happen if the sewer workers were employed or engaged by a private person.
After the recent deaths of sewer workers in Delhi, the issue has come to the fore again. Ironically, the entire public discourse and media narrative around this issue has not changed, despite changes of the law.
After having come into effect, Section 7 of the 2013 Act completely prohibited the engagement or employment, either directly or indirectly, of any person for the hazardous cleaning of a sewer or septic tank. Further, Section 9 made the contravention of Section 7 a punishable offence. The first contravention is punishable with imprisonment for up to two years or a fine up to Rs 2 lakh, or both. The subsequent contravention is punishable with imprisonment for up to five years, or with a fine up to Rs 5 lakh, or both.
Relevant to this changed law, it is important to point out that the issue is no longer whether sewer workers are provided with safety equipment or over the eligibility of selecting sewer workers. The issue is not even over why and how deaths happened. The real issue is why the employer was not prevented by the state, in the first place, from employing sewer workers for such a purpose, irrespective of whether they emerged dead or alive, when the act itself is illegal. This point was clearly explained by the high court of Delhi in the case of Rajesh and Tilak Raj – Rajesh & Anr vs Delhi Jal Board & Ors, 2018 DHC – discussed at the outset.
In the said judgment, the Delhi high court, while citing Section 7 of the 2013 Act, said that there is a complete prohibition on the employment or engagement for hazardous cleaning of a sewer or septic tanks under the given provision. Thus, there is a strict liability upon the violator irrespective of his negligence. The court, further said:
“In view of the prohibition, the DSIIDC should have taken necessary steps to ensure that the sewers are not opened for cleaning purposes by anybody. Any mishap occurring surely would suggest a lapse on the part of DSIIDC. Grant of compensation would not await a decision as to who was negligent to compel the deceased person to go into the sewer lines.”
In a nutshell, the duty is upon the local authority of the area responsible for cleaning the sewers, to make sure that none of the sewers are opened up for cleaning through human agency. Despite that, the said judgment implies that if a worker is made to go into the sewer for cleaning purposes, then, not just when he suffers death – even if he suffers injury, or contracts some infection or disease by virtue of the nature of his occupation – the aforementioned authority will be liable for the deficiency in fulfilling its legal obligation.
Simply put, it is essential to bring about social change. The public has to be sensitised towards the core of the issue. For, as Benjamin Franklin said, “Justice will not be served until those who are unaffected are outraged as those who are.” For achieving this, it is crucial that the public discourse is veered in the right direction by the media and civil society.
Parnil Yodha is a human rights activist and lawyer based in Delhi.
#Grit is an initiative of The Wire dedicated to the coverage of manual scavenging and sanitation and their linkages with caste, gender, policy and apathy.