A writ petition was filed by Sukanya Shantha on December 7, 2023 in the Supreme Court regarding caste discrimination in the prisons across the country. It was registered on December 12, 2023 and verified on December 23, 2023. The matter was listed for hearing for occasions and after final hearing, it was reserved for judgement on July 10, 2024.
In its first order dated January 3, 2024, the Court's order took note of an article written by the petitioner, titled “From Segregation to Labour, Manu’s Caste Law Governs the Indian Prison System” was published on December 10, 2020. The article has highlighted caste based discrimination which continues to persist in the prisons in the country with respect to: (i) The division of manual labour; (ii) Segregation of barracks; and (iii) Provisions which discriminate against prisoners belonging to denotified tribes and “habitual offenders” in the State Prison Manuals.
As per the Houselisting and Housing Census, 2011, there were 7.94 lakh latrines in the country from which night soil was removed by humans. But the data of persons still engaged in manual scavenging is not available. The 2021 Census has not been conducted as yet. The next Census is likely to include Caste in its enumeration as was done till 1931.
Notably, manual scavenging was outlawed in India three decades ago. The Protection of Civil Rights Act, 1955 was enacted to abolish the practice of untouchability and social disabilities arising out of it against members of the Scheduled Castes. It was amended in 1977. Under the revised Act, the practice of untouchability was made both cognizable and non-compoundable offence and stricter punishment was provided for the offenders.
The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 prohibited employment of manual scavengers as well as construction or continuance of dry latrines and for the regulation of construction and maintenance of water sealed latrines and matters connected therewith. The State Assemblies of Orissa, Punjab, Assam, Haryana, Bihar and Gujarat have also adopted the Act. The Act provides for a penalty of imprisonment up to one year with or without fine which may extend to Rs.2000/- or both in case of failure or contravention of the Act. Further, in case of repeated contraventions, fine to the extent of Rs.100/- per day for the entire period of contravention is also provided.
The "Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012" was introduced in Lok Sabha on September 3, 2012. It was referred to the Parliamentary Standing Committee on Social Justice and Empowerment. The Standing Committee presented its report in the Lok Sabha and tabled it in the Rajya Sabha on March 4, 2013. One of its controversial recommendations was that 'Aadhaar' should be linked to the rehabilitation schemes unmindful of the fact that the its constitutionality was pending before the Supreme Court.
The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 came into force December 6, 2013. This law was aimed at the prohibition of employment as manual scavengers, rehabilitation of manual scavengers and their families, and for matters connected therewith or incidental thereto. The Prohibition of Employment as Manual Scavengers and their Rehabilitation Rules, 2013 were notified on December 12, 2013. The law was amended to recognise the use of men for cleaning of sewers and septic tanks as “manual scavenging”.
According to Section 2 (g) of the Act, "manual scavenger" means a person engaged or employed, at thecommencement of this Act or at any time thereafter, by an individual or a local authorityor an agency or a contractor, for manually cleaning, carrying, disposing of, or otherwisehandling in any manner, human excreta in an insanitary latrine or in an open drain or pitinto which the human excreta from the insanitary latrines is disposed of, or on arailway track or in such other spaces or premises.
Prior to the enactment of the Act, National Advisory Council had adopted a resolution dated October 23, 2010 on the issue of Manual Scavenging, had urged the Central Government to ensure that the practice of manual scavenging is fully abolished in coordination with all the Union Government Departments, including the Railways, and concerned States/local Governments. The resolution stated that this would require:-
a) New survey in every State and UT, with wide public involvement, of remaining dry latrines and manual scavengers;
b) Demolition of all dry latrines;
c) Psycho-social and livelihood rehabilitation in modern marketable skills of all manual scavengers and their families, and formulation of 100% Centrally Sponsored Scheme by the Ministry of Social Justice and Empowerment to support the rehabilitation initiative;
d) Special programme for education, including higher education and computer education, of all children of manual scavengers; and
e) To amend the law to ensure sharper definition of manual scavenging, and accountability of public officials who employ, or fail to prevent, manual scavenging.
The situation in the prisons had escaped the attention of the legislators.
The petitioner's senior counsel, Dr. S. Muralidhar submitted that despite the amendments which were made to the State Prison Manuals in accordance with the Model Prison Manuals formulated by the Union Home Ministry, caste discrimination is reinforced across prisons in the States. The petitioner has accordingly sought directions for repeal of the offending provisions in State Prison Manuals. The Court had requested Tushar Mehta, Solicitor General to assist the Court in view of the importance of the issue which has been raised.
The Court permitted Dr. Muralidhar to file a compilation of documents containing, inter alia, the Model Prison Rules and Prison Manuals of the States. The compilation shall also contain a brief note of written submissions and include a tabulated chart indicating the specific areas of discrimination State-wise. Advocates Prasanna S., Disha Wadekar, Swati Arya, Deeksha Dwivedi, Pallak Bhagat, Maitreya Subramaniam and M.A. Karthik represented the petitioner besides the senior counsel.
The second order dated April 1, 2024 recorded that Aishwarya Bhati, Additional Solicitor General stated that "the Model Prison Manual shall be placed on the record."
The fourth order dated July 10, 2024 recorded that it heard Dr. Muralidhar and Ms. Wadekar. It heard Anuj Saxena, counsel for the intervenor. It also heard Ms. Bhati, Tapesh Kumar Singh, senior counsel for the State of Jharkhand, Pradeep Misra, counsel for the State of Uttar Pradesh, Himanshu Chakravarty, counsel for the State of West Bengal, Dr. Ravindra Chingale, counsel for the State of Maharashtra, Shubasish Mohanty, counsel for the State of Orissa, D. L. Chidananda, counsel for the State of Karnataka, Mahfooz Ahsan Nazki, counsel for the State of Andhra Pradesh and Sabarish Subramanian, counsel for the State of Tamil Nadu. These are the States which appeared before the Court.
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