In 2013, Parliament enacted The Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act which outlawed engaging any person for the hazardous cleaning of sewage lines or septic tanks. Since then, 481 workers, mostly from the marginalised communities especially Dalits, died after they were hired to clean sewer lines or septic tanks, according to information provided by the government to Parliament in March 2020.

The number is very likely to have been undercounted because the National Commission for Safai Karamcharis, a statutory body, collects these figures based largely on media reports and from non-governmental organisations.

Clearly, the statutory prohibition enshrined in the 2013 legislation is not working. But why did this happen?

To begin with, it should be noted that the prohibition on manual cleaning in Section 7 did not come into effect automatically across the country as soon as the law received presidential assent. Rather, the provision requires each state government to notify the date on which this prohibition becomes active in their respective states.

Tracking these notifications is difficult as the India Code website only publishes the notifications of the Government of India and not those by the state Governments. We suspect that most states have not issued the required notification because once Section 7 comes into effect, it will impose liability on the state bureaucrats in charge of municipal corporations, which use workers to clean sewer lines operated by municipalities.

Even presuming that some states have notified Section 7, it should be noted that the Centre undid the blanket prohibition on the use of workers to clean sewers and sewage lines, when it notified the Prohibition of Employment as Manual Scavengers and Their Rehabilitation Rules, 2013. These rules allow for laying down protective gear and equipment required to be given to persons engaged for the purpose of cleaning sewers and septic tanks.

Simply put, the government signaled that it was okay to deploy workers to clean sewers and septic tanks provided they had the right equipment.

These rules were perhaps necessitated by the realisation within the government that the complete prohibition imposed by Parliament in 2013 would lead to blocked sewers and overflowing septic tanks since most Indian cities lack the equipment for mechanised cleaning. Imposing a blanket ban, without planning for workable alternatives was bound to lead to such relaxations.

Better compensation

Even if the government cannot manage a complete prohibition on the manual cleaning of sewers and septic tanks, it can still deploy the law to deter deaths and guarantee justice for the families of workers who die during hazardous cleaning.

There are two issues that need discussion in this context. The first is who exactly should be punished? Should it be the contractor, engaged by the private property owner or municipal corporation to clean the sewer or septic tank, who hires or sub-contracts the job to workers who end up losing their life?

Or, should the law affix liability directly upon the property owner and municipal corporation itself? The answer based on first principles, would depend on whether we are talking about criminal or civil liability.

Under criminal law, especially the Indian Penal Code, it is difficult to secure the convictions, of either the property owners or the contractors engaged by the former, for the deaths of the workers unless the prosecution can establish coercion on part of either the property owner or the contractor. This is difficult to prove, especially if the worker is dead.

Theoretically speaking, a conviction under Section 7 of The Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013, should be easier because it does criminalise persons who “directly or indirectly” engage workers for the hazardous cleaning of sewer lines or septic tanks.

The problem, however, as mentioned earlier, is that the government itself has compromised this provision by notifying rules that allow for engaging workers to clean sewer lines or septic tanks, provided the workers are given safety equipment.

It is unlikely then a court would convict anyone, presuming that the provision was notified in the state in question. If the provision has not been notified in a state, there is no question of a prosecution under Section 7.

An easier and perhaps more effective route to creating deterrence exists under civil law. Under tort law (the branch of law dealing with civil wrongs such as negligence), property owners can be made liable for deaths on their premises even if the task has been contracted, especially if the death is caused by hazardous material known to be dangerous.

A Supreme Court ruling

When deployed intelligently, tort law can lead to justice but unfortunately, as is usually the case in India, the issue landed up before the Supreme Court in the form of a public interest litigation leading to a rather unsatisfactory judgment in 2014.

Apart from passing a number of vague directions, the Supreme Court also required payment of Rs 10 lakh to the family members of those who died cleaning septic tanks or sewer lines. To be fair, the judgment has opened the door for families to get compensation but because it is so poorly written it also created confusion on two counts.

First, the judgment was not clear on whether it applied to deaths in septic tanks located on private property. A cursory clarification from the court in 2016 may have helped resolve the issue but then there was lack of clarity on who exactly was required to pay the compensation, especially for deaths on private property.

Would it be the property owner or the person who engaged the workers to clean the septic tank? In quite a few cases, high courts have simply ordered the local government to pay the compensation, even for deaths on private property. In effect, taxpayers are subsidising private property owners for their negligence.

Second, the Supreme Court’s approach of fixing compensation at Rs 10 lakh meant that a worker, regardless of their age or earning potential, would get the same compensation whether they died in 2014 or 2022.

Consider this example: using the formula given under the Employee Compensation Act (this legislation does not apply to contract workers), an unskilled employee aged 25 years who died in 2014 would have received approximately Rs 8,77,000 as compensation in Delhi. However, if an unskilled employee aged 25 years died in 2022, the compensation would be Rs 17,90,000 since the minimum wages for unskilled workers have increased in Delhi to adjust for inflation and other factors.

Much of this confusion could have been avoided if the Supreme Court approach the issue through the prism of absolute liability, under which principles, the owner of property is liable for any harm caused on their property due to hazardous material.

Not even an “act of god” can be argued as an exception to this principle. This test was evolved by the Supreme Court in case-law after the Bhopal Gas tragedy. This approach would have clarified that property owners would be liable for paying compensation.

Similarly, on the issue of determining compensation, if the Supreme Court had grounded its judgment in basic tort law principles, it could have cited well-developed principles of damages in tort law to guide authorities on compensation payable, keeping in mind various factors, rather than fix a static sum of Rs 10 lakhs as damages.

Punitive damages

Damages under tort law are generally compensatory, meant to restore the person who has suffered damages to their original position. In the case of the deaths of workers, the law will endeavour to provide the family with monetary compensation that would be equivalent to the potential earnings of the workers in a scenario where they were still alive.

In addition, under tort law it is also possible to grant punitive or exemplary damages, which is usually a multiple of the ordinary damages and are meant to punish the tortfeasor. While this is rare in the Indian context, Indian courts can award punitive or exemplary damages in cases of particularly egregious behaviour.

Punitive damages are generally calculated as a factor of compensatory damages. Meaning that if the compensatory damages are Rs 20 lakh, the punitive damages could be thrice and amount to Rs 60 lakh. Engaging workers to carry out hazardous cleaning without providing the necessary safety equipment could qualify as the type of egregious behaviour warranting punitive damages.

Rather than wait for the Supreme Court to clarify its erroneous judgment from 2014, Parliament should consider codifying the test mentioned above by specifying in the law that it is property owners who are liable for damages in the case of deaths of workers in septic tanks and sewer lines.

Parliament should also clarify the exact people who qualify as “property owners” in the case of apartment complexes or commercial complexes or municipal corporations, which operate sewer lines.

At the same time, Parliament should consider laying down a formula, like the one in the Employment Compensation Act, to help the relevant authority determine compensatory and punitive damages for the deaths of workers in septic tanks and sewer lines while keeping factors like inflation in mind.

A law that makes it clear to property owners that they are liable for both compensatory and punitive damages, regardless of who engaged the dead workers, will hopefully have some kind of deterrent effects. Most property owners and even the government understand only the language of money and hopefully if the law makes the deaths of workers expensive enough, it may lead to fewer deaths.

Prashant Reddy T is a lawyer and Harsh Tripathi is a law student at NALSAR University of Law.