- (1.)The above writ petition has been filed by the petitioners as a Public Interest Litigation under Article 32 of the Constitution of India praying for issuance of a writ of mandamus to the respondent-Union of India, State Governments and Union Territories to strictly enforce the implementation of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 (in short 'the Act'), inter alia, seeking for enforcement of fundamental rights guaranteed under Articles 14, 17, 21 and 47 of the Constitution of India.
(2.)Brief facts:
(i) The inhuman practice of manually removing night soil which involves removal of human excrements from dry toilets with bare hands, brooms or metal scrappers; carrying excrements and baskets to dumping sites for disposal is a practice that is still prevalent in many parts of the country. While the surveys conducted by some of the petitioner- organizations estimate that there are over 12 lakh manual scavengers undertaking the degrading human practice in the country, the official statistics issued by the Ministry of Social Justice and Empowerment for the year 2002-2003 puts the figure of identified manual scavengers at 6,76,009. Of these, over 95% are Dalits (persons belonging to the scheduled castes), who are compelled to undertake this denigrating task under the garb of "traditional occupation". The manual scavengers are considered as untouchables by other mainstream castes and are thrown into a vortex of severe social and economic exploitation.

(ii) The sub-Committee of the Task Force constituted by the Planning Commission in 1989 estimated that there were 72.05 lakhs dry latrines in the country. These dry latrines have not only continued to exist till date in several States but have increased to 96 lakhs and are still being cleaned manually by scavengers belonging to the Scheduled Castes.

(iii) National Scheduled Castes and Scheduled Tribes Finance and Development Corporation was set up in February, 1989 as a Government company to provide financial assistance to all the Scheduled Castes and Scheduled Tribes including Safai Karamcharis for their economic development.

(iv) The Government of India formulated a Scheme known as 'Low Cost Sanitation for Liberation of Scavengers' which is a centrally sponsored Scheme being implemented in 1989-90 for elimination of manual scavenging by converting existing dry latrines into low cost water pour flush latrines and also for construction of new sanitary latrines.

(v) With a view to eliminate manual scavenging, a Scheme known as 'National Scheme of Liberation and Rehabilitation of Scavengers and their Dependents' was launched in March 1992 for identification, liberation and rehabilitation of scavengers and their dependents by providing alternative employment after giving the requisite training.

(vi) Based on earlier experience and keeping in view the recommendations of the National Seminar on Rural Sanitation held in September 1992, a new strategy was adopted by the Government of India in March 1993. The emphasis was now on providing sanitary latrines including the construction of individual sanitary latrines for selected houses below the poverty line with subsidy of 80% of the unit cost of Rs.2,500/-.

(vii) In the year 1993, the Parliament enacted the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 and it received the assent of the President on 5th June, 1993. The long title of the Act describes it as an Act to provide for the prohibition of employment of manual scavengers as well as construction or continuance of dry latrines and for the regulation of construction and maintenance of water-seal latrines and for matters connected therewith or incidental thereto.

(viii) The Act, which was enacted in June 1993, remained inoperative for about 31/2 years. It was finally brought into force in the year 1997. In the first instance, the Act applied to the States of Andhra Pradesh, Goa, Karnataka, Maharashta, Tripura and West Bengal and to all the Union Territories. It was expected that the remaining States would adopt the Act subsequently by passing appropriate resolution under Article 252 of the Constitution. However, as noted by the National Commission for Safai Karamcharis-a statutory body, set up under the National Commission for Safai Karamcharis Act, 1993, in its 3rd and 4th Reports (combined) submitted to the Parliament, noted that the 1993 Act was not being implemented effectively and further noted that the estimated number of dry latrines in the country is 96 lakhs and the estimated number of manual scavengers identified is 5,77,228. It further noted that manual scavengers were being employed in the military engineering works, the army, public sector undertakings, Indian Railways etc.

(ix) In 2003, a report was submitted by the Comptroller and Auditor General (CAG) which evaluated the 'National Scheme for Liberation and Rehabilitation of Scavengers and their Dependents'. The conclusion of the report was that this Scheme "has failed to achieve its objectives even after 10 years of implementation involving investment of more than Rs. 600 crores". It further pointed out that although funds were available for implementation of the Scheme, much of it were unspent or underutilized. The Committees set up for monitoring the Scheme were non-functional. It further noted that there was "lack of correspondence between 'liberation' and 'rehabilitation' and that "there was no evidence to suggest if those liberated were in fact rehabilitated". It concluded that "the most serious lapse in the conceptualization and operationalization of the Scheme was its failure to employ the law that prohibited the occupation the law was rarely used".

(x) In December, 2003 the Safai Karamchari Andolan along with six other civil society organizations as well as seven individuals belonging to the community of manual scavengers filed the present writ petition under Article 32 of the Constitution on the ground that the continuation of the practice of manual scavenging as well as of dry latrines is illegal and unconstitutional since it violates the fundamental rights guaranteed under Articles 14, 17, 21 and 23 of the Constitution of India and the 1993 Act.

(3.)We have heard the arguments advanced by learned counsel for the parties and perused the records.
Relief sought for: