Government of Tamilnadu Directorate of Legal Studies: Inter-Collegeiate State Level Moot Court Competition-2022

TEAMNADU
DIRECTORATE OF LEGAL STUDIES, TAMIL CODE: KARUVEL

INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022
GOVERNMENT OF TAMILNADU
DIRECTORATE OF LEGAL STUDIES
BEFORE THE HON’BLE SUPREME COURT OF YAVANA
(UNDER ARTICLE 32 OF THE CONSTITUTION OF YAVANA)
IN THE MATTER OF:

WRIT PETITION NO. ______ OF 2022
DIGNITY ASSURANCE FOR YAVANIANS PETITIONER
VERSUS
UNION OF YAVANA RESPONDENT
ALONG WITH WRIT PETITION NO. ______ OF 2022
NATIONAL HUMAN RIGHTS COMMISSION & ORS. PETITIONER
VERSUS
UNION OF YAVANA & ANR. RESPONDENT
ALONG WITH WRIT PETITION NO. ______ OF 2022
SENGAI VALLEY DWELLER’S SOCIETY PETITIONER
VERSUS
STATE POLLUTION CONTROL BOARD & ANR. RESPONDENT
MEMORIAL ON BEHALF OF THE RESPONDENTS
MOST RESPECTFULLY SUBMITTED BEFORE THE BENCH OF THIS HON’BLE COURT
1
MEMORANDUM ON BEHALF OF THE RESPONDENTS
DIRECTORATE OF LEGAL STUDIES, TAMIL NADU
TABLE OF CONTENTS
LIST OF ABBREVATIONS …………….……………….…….……….…………………4

INDEX OF AUTHORITIES ……………………...…….…………….…………...……....6
STATEMENT OF JURISDICTION …………………………….….………………….....8
STATEMENT OF FACTS ………………………………………………...……................9
ISSUES RAISED………………………………………………………..…………….…...11
SUMMARY OF ARGUMENTS ………………………………………..………………..12
ARGUMENTS ADVANCED …………………………….……...……..…………….…..13
ISSUE 1: WHETHER THE PROHIBITION OF EMPLOYMENT AS

MANUAL SCAVENGER AND THEIR REHABILITATION ACT -2013
IS CONSTITUTIONALLY VALID?..............................................................13
1.1. THE ACT HAS OUTLAWED MANUAL SCAVENGING

1.2. THE ACT UPHOLDS FUNDAMENTAL RIGHTS AS GUARANTEED UNDER THE
YAVANIAN CONSTITUTION
ISSUE 2: WHETHER THE GOVERNMENT HAS COMPLIED WITH

ITS INTERNATIONAL COMMITMENTS?................................................19
2.1. UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948
2.2.THE COVENANT ON CIVIL AND POLITICAL RIGHTS 1966
2.3.THE COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS 1966
ISSUE 3: WHETHER THE DEPENDENTS OF THE DECEASED WERE

ENTITLED TO CLAIM COMPENSATION?..............................................22
3.1. “SUBLA FUNDAMENTO CEDIT OPUS”- A FOUNDATION BEING REMOVED,
THE SUPERSTRUCTURE FALLS
3.2. THE GOVERNMENT HAS TAKEN ADEQUATE STEPS TO PROVIDE
ALTERNATIVES FOR MANUAL SCAVENGERS
3.3. “VOLENTI NON FIT INJURIA”
2
ISSUE 4: WHETHER THE BIO-MEDICAL WASTE DISPOSAL

REGULATIONS ARE FULFILLING THE CONSTITUTIONAL
MANDATES?...........................................................................................27
4.1. SALIENT FEATURES OF THE ACT

4.2. FAILURE TO FOLLOW THE LAW, DOES NOT IMPLY IMPERFECTION IN THE
LAW
4.3. ARTICLE 21, 48A AND 51A ARE UPHELD
PRAYER ………………………………………….……………………………………30
3

LIST OF ABBREVATIONS
S.No. ABBREVIATIONS EXPANSION
1 & And
2 ¶ Paragraph
3 AIR All India Reporter
4 Anr Another
5 Art Article
7 Crl Criminal
10 et. Al And others
12 FIR First Information Report
13 GHS Global Health Services
14 i.e., That is
15 HC High Court
17 Hon’ble Honourable
18 No. Number
20 Ors. Others
21 Pg. Page
22 PEMSR Act Prohibition of Employment As Manual Scavenger

And Their Rehabilitation Act
4

23 SC Supreme Court
24 SCC Supreme Court Cases
25 SCR Supreme Court Reporter
26 Sec Section
27 SPCB State Pollution Control Board
28 UOI Union of India
29 u/s Under section
30 Vol Volume
31 Vs. Versus
5

INDEX OF AUTHORITIES
CASES
1. Vimla Govind Chorotiya And 2 Ors vs State Of Maharashtra and ors., WRIT
PETITION (L) NO.15651 OF 2021
2. Change India vs. Government Of Tamilnadu , W.P.No.25726 of 2017
3. Suresh Kumar Koushal & Anr vs Naz Foundation & Ors(CIVIL APPEAL NO.10972
OF 2013 (Arising out of SLP (C) No.15436 of 2009)
4. Safai Karamchari Andolan And Ors vs Union Of India,W.P. (CIVIL) NO. 583 OF
2003
5. Union Of India & Ors vs Major General Madan Lal Yadav, 1996 AIR 1340, 1996
SCC (4) 127
6. Devendra Kumar vs State Of Uttaranchal & Ors, CIVIL APPEAL NO. 1155 of 2006
7. Ramesh Prasad Patel vs Union Of India (W.P. (S) No. 4841 of 2008)
8. Smith v. Charles Baker and Sons [1891] A.C. 325; 65 L.T. 467
9. Sanjeet Singh Kaila vs Union Of India And Anr., W.P.(C) 3414/2013
10. Gillmore Vs- London County Council–(1938) 4 All ER 331.
11. Dr. Debajit Das And Anr vs Williamson Magor Education Trust– (RFA 47/2018)
12. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 812
13. K.Sundari vs The State Represented By, Crl.O.P.(MD).No.1187 of 2007
14. Pradeep Krishen vs Union Of India, W.P. (Civil) No. 262 of 1995
STATUTES, ACTS AND RULES
1. The Constitution of India, 1950

2. The Indian Penal Code, 1860.
3. The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013
4. The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 1993
5. The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act,
1993
6. Bio-Medical Waste Management Rules, 2016
7. Bio-Medical Waste Management Rules, 1998
8. The Prohibition of Employment as Manual Scavengers and their Rehabilitation Rules, 2013
6
INTERNATIONAL INSTRUMENTS
1. Universal Declaration Of Human Rights, 1948

2. The Covenant On Civil And Political Rights 1966
3. The Covenant On Economic, Social And Cultural Rights 1966
4. The Convention On The Elimination Of All Forms Of Discrimination Against Women
BOOKS AND COMMENTARIES
1. M.P. Jain, Indian Constitutional Law, (6th Ed, 2010)

2. Durga Das Basu, Shorter Constitution Of India, (14th Ed, 2009)
3. V.N. Shukla, Constitution of India, (12th Ed, 2016)
4. R.P.Kataria and Salah Uddin, Commentary on Human Rights( 1st Ed,2011)
LEGAL DATABASE
1. http://www.indiakanoon.com
2. http://www.scconline.com
3. http://www.casemine.com
4. https://www.scconline.com/
7
STATEMENT OF JURISDICTION
DIGNITY ASSURANCE FOR YAVANIANS V. UNION OF YAVANA
The Petitioner has approached the Hon'ble Supreme Court of Yavana under Art. 32 of the
Constitution of Yavana, 1950, through a Public Interest Litigation.
The Respondents humbly submit to the jurisdiction of this Hon’ble court.
NATIONAL HUMAN RIGHTS COMMISSION AND ORS. V. UNION OF YAVANA

& ANR.
Constitution of Yavana, 1950, through a Writ Petition.
SENGAI VALLEY DWELLER'S SOCIETY V. STATE POLLUTION CONTROL

BOARD & ANR.
Constitution of Yavana, 1950, through a Writ Petition.
The present memorandum sets forth the Facts, Contentions and Arguments.
8
STATEMENT OF FACTS
Background:
Union of Yavana is the largest democracy in the World. It offers protection to the
lives of every human being and accords them with equal opportunities. Moreover, the rights
guaranteed under Article 14 and Article 21 makes no distinction between Yavanian citizens
and others. The practice of manual scavenging is an age-old problem in the yavanian society
and the efforts to abolish this custom have garnered momentum in the last three decades,
particularly since the formation of the Safai Karamchari Andolan (SKA) in 1994.
Shortcoming of the Act:
‘Dignity Assurance for Yavanian’ is an NGO which crucially works to abolish the manual
scavenging since its inception. It criticized the prohibition of employment as manual
scavengers and their rehabilitation act, 2013, for having the provisions that indirectly causes
the manual scavenging. Therefore, it has filed a PIL in the hon’ble supreme court challenging
the constitutionality of the portion in the act which is against the act’s purpose. The Hon’ble
Prime Minister of Yavana on 15th August 2022, stated of having no manual scavenging in the
Yavana and it replaced by the machineries.
Death of Manual Scavengers:
The Global Healthcare Services is a multinational company which is situated in the

city of Maruvai. Due to the unavailability of its regular sanitation service and the leakage of
septic tank getting worse as an effect of continues rain; it hired 3 persons to clean the septic
tank. However, all the indulged workers lost their life due to asphyxiation. This also included
Jonila, who was a foreign national research student and she met with this fate in an attempt to
rescue them. This resulted in a protest against the GHS. Subsequently, the PM also withdrew
her statement regarding the Government’s success in complete abolishment of Manual
Scavenging which was stated on 15th August 2022.
Suo Moto cognizance by NHRC:
9

As a result of this incident, the general manager of the GHS was arrested by Maruvai
Police under sections 304, 107 and 109 of Yavanian Penal Code. The National Human Rights
Commission of Yavana took suo moto cognizance on the issue and also moved the matter to
the Supreme Court under Article 32 of the Yavanian Constitution. Also, an Intervention
Application has been filed by Mrs.Mersina,the mother of Jonila to implead in the case along
with the relatives of other three deceased for claiming compensation for the sewer deaths.
Fault in GHS’s incineration and negligence of SPCB:
The GHS which owns a Huge plant of incinerator for medical waste in suburban of
Maruvai, is adjacent to the „Sengai Valley‟ gated community which consist of 500 residents.
A short time ago, several cases were reported in and around Sengai Valley hospitals of the
residents facing similar health issues. Eventually by understanding the seriousness of the
hazardous situation, Society approached the GHS as their Incineration producing noxious
fumes in the vicinity of Sengai Valley. However,the GHS totally ignored this issue.
Aggrieved by this act of GHS the Society approached the State Pollution Control board of
Poigai. Since, there were no satisfactory actions on the part of SPCB of Poigai the Society
has filed a writ petition in the Apex Court of the Union of Yavana.
. On observing the multiplicity of proceedings which was in the larger public interest, the
Apex Court of Yavana integrated all the above petitions and scheduled the matter for a
hearing.
10
ISSUES RAISED
ISSUE 1
WHETHER THE PROHIBITION OF EMPLOYMENT AS MANUAL SCAVENGER AND

THEIR REHABILITATION ACT 2013 IS CONSTITUTIONALLY VALID?
ISSUE 2
WHETHER GOVERNMENT HAS COMPLIED WITH ITS INTERNATIONAL

COMMITMENTS?
ISSUE 3
WHETHER THE DEPENDANTS OF THE DECEASED WERE ENTITLED TO CLAIM

COMPENSATION?
ISSUE 4
WHETHER THE BIO-MEDICALWASTE DISPOSAL REGULATIONS ARE

FULFILLING THE CONSTITUTIONAL MANDATES?
11

SUMMARY OF ARGUEMENTS
1. WHETHER THE PROHIBITION OF EMPLOYMENT AS MANUAL

SCAVENGER AND THEIR REHABILITATION ACT -2013 IS
CONSTITUTIONALLY VALID?
It is humbly submitted that the PEMSR Act is constitutionally valid as the Act has outlawed
manual scavenging, and upholds the fundamental rights as guaranteed under the Yavanian
Constitution. The employment of manual scavenging under the Act is illegal, and the Act has
taken measures to prohibit manual scavenging across Yavana.
2. WHETHER THE GOVERNMENT HAS COMPLIED WITH ITS

INTERNATIONAL COMMITMENTS?
It is humbly submitted that the government has complied with its International Commitments.
The steps taken by the government are in keeping with international commitments. The
Covenant on Economic, Social and Cultural Rights 1966, The Covenant on Civil and
Political Rights 1966, Universal Declaration of Human Rights have been signed by the
government of Yavana. The government has been actively involved in prohibiting manual
scavenging.
3. WHETHER THE DEPENDENTS OF THE DECEASED WERE ENTITLED
TO CLAIM COMPENSATION?
It is humbly submitted that the dependents of the deceased are not entitled to claim
compensation. When the initial action is not in consonance with law, the subsequent conduct
of a party cannot sanctify the same.
4. WHETHER THE BIO-MEDICAL WASTE DISPOSAL REGULATIONS

ARE FULFILLING THE CONSTITUTIONAL MANDATES?
It is humbly submitted that the Bio Medical Waste Disposal Regulations fulfils its
constitutional mandate. The Act has necessary provisions to uphold its constitutional
mandates. Constitutional mandates are obligations imposed upon the State to ensure that the
rights granted under the Constitution are available to citizens. A failure to conform to the law
does not imply imperfection in the law.
12
ARGUMENTS ADVANCED
1. WHETHER THE PROHIBITION OF EMPLOYMENT AS MANUAL SCAVENGER

AND THEIR REHABILITATION ACT, 2013 IS CONSTITUTIONALLY VALID?
[¶1.] It is humbly submitted that the Prohibition of Employment as Manual Scavenger and
their Rehabilitation Act, 2013 is constitutionally valid. In order to eradicate the problem of
manual scavenging from our society, economic rehabilitation together with physical,
psychological and social rehabilitation is important. The Prohibition of Employment as
Manual Scavengers and their Rehabilitation Act, 2013 is one such act which gives the
response to that importance.
1.1. THE ACT HAS OUTLAWED MANUAL SCAVENGING
1.1.1. EMPLOYING A MANUAL SCAVENGER UNDER THE ACT IS ILLEGAL
[¶2.] It is humbly submitted that the Section 51 of the PEMSR act completely prohibits the
employment of manual scavengers both directly or indirectly. It also specifies that every
person so engaged or employed shall stand discharged immediately from any obligation,
express or implied, to do manual scavenging. This prohibition applies equally to individual
persons, local authority and any agency.2
3
[¶3.]This is reiterated in the succeeding section 6 which makes any contract, agreement or
other instrument void and inoperative if it is executed for the purpose of engaging or
employing a person for manual scavenging.
1
Section 5 of the PEMSR act, 2013
2
Vimla Govind Chorotiya And 2 Ors vs State Of Maharashtra and ors., WRIT PETITION (L) NO.15651 OF
2021
3
Section 6 of the PEMSR act
13

4
[¶4.] Moreover the section 8 provides the penalty for contravention of section 5 or section 6-
the first contravention be punishable with imprisonment for a term which may extend to one
year or with fine which may extend to fifty thousand rupees or with both, and for any
subsequent contravention with imprisonment which may extend to two years or with fine
which may extend to one lakh rupees, or with both.
[¶5.] Section 2(1)(g) of the act-

The explanation under this section states that a person engaged or employed to clean a sewer
with the help of such devices and using protective gear shall not be deemed to be a „manual
scavenger‟without any protective gear is considered illegal. But this has to be further read
with the PEMSR rules 2013 according to the doctrine of 'pari materia'.
[¶6.] The legality of engaging a person with protective gear is clearly mentioned in the
Prohibition of Employment as Manual Scavengers and their Rehabilitation rules, 2013.
According to the PEMSR rules, the manual cleaning of sewers or septic tanks even with
protective gear and safety devices is not allowed. However, only in a situation where
manhole doors are damaged and thus mechanical equipment cannot be put into operation, the
law provides for exceptions under Section 3 of the PEMSR Rules, 2013.
1.1.2. ILLEGALITY OF BUILDING AND OWNING AN INSANITARY LATRINE
[¶7.] According to Section 5 of the PEMSR act, it is unlawful for anyone to build an
insanitary latrine which requires a manual scavenger to remove the human excreta that has
not been decomposed. This has been clearly stated in the sub clause 1(a) 5that no person,
local authority or any agency shall, after the date of commencement of this Act construct an
insanitary latrine. Moreover, sub clause 26 provides that if there are several occupiers in
relation to an insanitary latrine, then they are either required to convert it into a sanitary
latrine or demolish it.
4
Section 8 of the PEMSR act
5
Section 5(1)(a) of the PEMSR act, 2013
6
Section 5(2) of the PEMSR act, 2013
14

7
[¶8.] Further, under the sub clause 3 , if the occupier still fails to demolish an insanitary
latrine or convert it into a sanitary latrine within the specified time period, then the local
authority having jurisdiction over the area can either convert such latrine into a sanitary
latrine, or demolish such insanitary latrine, and shall be entitled to recover the cost of such
conversion from the occupier.
[¶9.] The aforementioned stringent clauses clearly depict the intolerant policy of the
government towards the practice of manual scavenging. Hence it is most humbly submitted
that each and every provision contained in the PEMSR act has only outlawed Manual
Scavenging thereby making it constitutionally valid.
1.1.3. BOTTOM-UP SYSTEM TO ADDRESS THE PROBLEMS
[¶10.] The Act has provisions under section 11 for the Municipality to identify the persons
who are suspected to be involved in the practice of MS. Once the final list of MS is
published, after examining the objections put forward— the concerned individuals are no
longer under any obligation to work as MS.
[¶11.] These provisions show that the government has sought to address this problem from the
lower levels of administration—the municipalities (sec 11)8, panchayats (sec 14)9; in small
communities. The act tackles the problem from the smallest units of governance, ensuring
that it is abolished bottom-up, as top-down enforcements are difficult to implement.
[¶12.] Moreover the entire Chapter 7 of the Act lists the power vested in the respective
authorities to curb Manual scavenging. Provisions for constituting a Vigilance Committee,
State Monitoring Committee, Central Monitoring Committee are explained. This is also an
effective tool to monitor and eradicate manual scavenging.
10
[¶13.] In the case of Change India vs. Government Of Tamilnadu , the Hon'ble court
after referring to various provisions under the act, stated that Inasmuch as the Act 2013
7
Section 5(3) of the PEMSR act, 2013
8
9
10
Change India vs. Government Of Tamilnadu , W.P.No.25726 of 2017
15

occupies the entire field, we are of the view that no further monitoring is required by this
Court. This observation of the Hon'ble court proves the PEMSR act's accord with the
constitutional mandate of Yavana.
Hence it is most humbly submitted that the PEMSR Act, 2013 has outlawed the practice of
Manual Scavenging through its efficient and stringent provisions.
1.2. THE ACT UPHOLDS FUNDAMENTAL RIGHTS AS GUARANTEED UNDER

THE YAVANIAN CONSTITUTION
ARTICLE 21:
[¶14.] The Constitution is a living document and it should remain flexible to meet newly
emerging problems and challenges. So, the Fundamental rights are be interpreted in an
expansive and purposive manner so as to enhance the dignity of the individual and worth of
the human person. 11
The right to life under Article 21 has much wider meaning which includes
 the right to a better standard of life and hygienic conditions at the workplace and
 the right to live with human dignity free from exploitation.
[¶15.] The provisions contained under PEMSR Act is in perfect consonance with the
aforementioned implicit rights. Because, it aims to provide manual scavengers the Right to
live with dignity enshrined under the Constitution, to protect weaker sections from social
injustice, to end the continuing existence of insanitary latrines and a highly unfair caste
system, to rehabilitate them to a life of dignity and to correct the historical injustice and
indignity suffered by the them.
[¶16.] Moreover the right to life under Article 2112 also guarantees right to rehabilitation . The
PEMSR act is in consonance with this implicit right since it contains the provision of
Rehabilitation of persons identified as manual scavengers under section 13 and 16.
11
Suresh Kumar Koushal & Anr vs Naz Foundation & Ors(CIVIL APPEAL NO.10972 OF 2013
12
Article 21, Constitution of India, 1949
16

[¶17.] Any person identified as manual scavenger and published in the list shall be provided
rehabilitation by the respective municipality or panchayat. The important features
guaranteeing their Rehabilitation are as follows:
 An initial, one-time cash assistance shall be provided
 Manual scavengers are to be allotted a residential plot and financial assistance for
construction, or a ready-built house
 Scholarship for children as per the relevant scheme of the central or state government
or the local authorities as the case may be
 They shall be trained in a livelihood skill, subject to eligibility, and provided a
monthly stipend of Rs 3,000 during the training
 They shall be provided with subsidy and concessional loan if they want to take up an
alternative profession, subject to eligibility
 Legal and programmatic assistance will also be provided as notified by the central or
state government
 Manual scavengers in rural areas will be rehabilitated by as per the previous provision
relating to urban manual scavengers.
ARTICLE 17:
[¶18.] Art 17 of the constitution of Yavana states that untouchability is abolished and its
practice in any form is forbidden. With reference to manual scavenging that has accursed
Yavanian society since time immemorial, the spirit of Article 17 of the Constitution of India
had already been given voice through the Protection of Civil Rights Act, 1955, which
outlawed the act of compelling a person to do any scavenging on the basis of his or her
untouchability.
[¶19.] But, it is the PEMSR act 2013 which brought an even more stringent imposition of
complete prohibition of such practice in any form even in case of voluntary engagement.
Hence, in the light of inadequacy and failure of the previous law in eliminating the evil of
manual scavenging, the present act came into force.
17

13
[¶20.] The Ministry of social justice and empowerment in its report on 28/07/2021 clearly
stated that there has been no deaths recorded due to manual Scavenging in the past 5 years.
This proves that PEMSR act has justified the purpose for which it has been enacted.
[¶21.] Moreover, in the case of Safai Karamchari Andolan And Ors vs Union Of India 14 the
Hon'ble court clearly held that The enactment of the aforesaid Act, in no way, neither dilutes
the constitutional mandate of Article 17 nor does it condone the inaction on the part of Union
and State Governments under the 1993 Act. What the 2013 Act does in addition is to
expressly acknowledge Article 17 and Article 21 rights of the persons engaged in sewage
cleaning and cleaning tanks as well persons cleaning human excreta on railway tracks..
[¶22.] Therefore, it is humbly submitted that the Prohibition of Employment as Manual

Scavenger and their Rehabilitation Act, 2013 is constitutionally valid since it is in perfect
consonance with the fundamental rights as guaranteed under the Yavanian Constitution and
there is no such portion in the act that acts against its object.
13
Report dated 28/07/2021, Ministry of
social justice and empowerment of India
14
Safai Karamchari Andolan And Ors vs Union Of India,W.P. (CIVIL) NO. 583 OF 2003)
18
2. WHETHER THE GOVERNMENT HAS COMPLIED WITH ITS

INTERNATIONAL COMMITMENTS?
[¶23.] It is humbly submitted that the government has complied with its International
Commitments.
2.1. UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948
[¶24.] Yavana is a signatory to the UDHR. It is a fact that the yavanian constitution was
greatly influenced by the UDHR.
[¶25.]Provisions of UDHR that prohibits manual Scavenging:

Article 115 of UDHR states that all human beings are born free and equal in dignity and
rights. The article 516 states that no one shall be subjected to inhuman or degrading treatment.
Article 2217 includes the right to work, an adequate standard of living and social security.
Under Article 2318, right to just and favorable conditions of work are provided.
[¶26.]The government of yavana is in perfect consonance with the aforementioned articles.

The government has enacted various laws such as PEMSR act, 2013 which imposes a
complete prohibition on such inhumane practice of manual scavenging. Only in a situation
where manhole doors are damaged and thus mechanical equipment cannot be put into
operation, persons are engaged in such work with the help of protective gear and equipment.
Even in such exceptional circumstances, it makes sure that such protective gear and equips
are provided to ensure just and favorable conditions of work.
2.3. THE COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS 1966
[¶27.] As a signatory to ICESCR, Yavana has obligations to fulfill the following rights.
15
Article 1 of Universal Declaration of Human Rights, 1948
16
Article 15of Universal Declaration of Human Rights, 1948
17
18
19

Article 7 provides for just and favorable conditions of work; Article 9 provides for right to
social security including social insurance, Article 11 for adequate standard of living for
himself and his family including adequate food, clothing and housing. But normally in case
of manual scavengers these rights are violated to its maximum extent.
That is why the PEMSR act not only prohibits such practice but also provides rehabilitation
to such persons identified as manual scavengers. Such provisions are contained under section
13 and 16 of the act and it includes features such as livelihoods and skill development, access
to education for children of former manual scavengers and alternate livelihoods.
2.2.THE COVENANT ON CIVIL AND POLITICAL RIGHTS 1966
[¶28.] Article 8 of ICCPR provides the right to not be enslaved and Article 26 confers the
right to equality before law. In a country like Yavana, manual scavenging was considered to
be the work of a certain community of people. According to the Government data, 97% of
manual scavengers are Dalits. However, in the recent decades, the government through its
continues efforts has brought in stringent provisions that are intolerant towards manual
Scavenging in any form.
[¶29.]Other steps taken by the government:

Prevention of SC/ST Atrocities Act, 1989: It became an integrated guard for sanitation
workers as more than 90% people employed as manual scavengers belonged to the Scheduled
Caste. This became an important landmark to free manual scavengers from designated
traditional occupations.
[¶30.]Self-Employment Scheme for Rehabilitation of Manual Scavengers (SRMS): The

scheme launched by the Ministry of Social Justice and Empowerment aims to rehabilitate
manual scavengers and their dependents in alternative occupations, in a time bound manner.
20

[¶31.]Supreme Court order, 2014: It made it mandatory for the Government to identify all
those who died in sewage work since 1993 and provide Rs. 10 lakh each as compensation to
their families.19
[¶32.]National Commission for Safai Karmacharis (NCSK): It is a statutory body established

under the National Commission for Safai Karamcharis Act 1993. The main aim of the
commission is to promote and safeguard the rights of the Safai Karamcharis.
[¶33.] Swachh Yavana Mission: It led to the construction of toilets with on-site sanitation
systems like septic tanks and pits.
[¶34.]Hence, the Government of Yavana on all counts to comply with its International
Commitments since the practice has been prohibited in Yavana as a result of which no death
has been recorded as a result of manual scavenging in the past 5 years.
19
Safai Karamchari Andolan And Ors vs Union Of India,W.P. (CIVIL) NO. 583 OF
2003
21
3. WHETHER THE DEPENDENTS OF THE DECEASED WERE ENTITLED TO

CLAIM COMPENSATION?
[¶35.] It is submitted that the dependents of the deceased are not entitled to claim
compensation. The facts state that when GHS could not avail the services of the regular
sanitation provider, and after multiple calls to other providers, they were “informed that there
are manual supports to do the work.” There was continuous rain the previous day, and there
was some leakage due to overflow in the septic and sewage tank which resulted in foul odour
and an uncomfortable situation. As a last resort, and under the exceptions provided in chapter
II of the Rules, GHS accepted the and hired the volunteers in order to fix the leakage.
[¶36.] GHS did not force the workers into a contract, but were merely alerted of manual
service being provided, and “hired” them. They were hired volunteers, they were not under
any regular contract. Despite the government taking steps to abolish manual scavenging, the
workers out of their own volition have taken up manual scavenging.
3.1. “SUBLA FUNDAMENTO CEDIT OPUS”- A FOUNDATION BEING REMOVED,

THE SUPERSTRUCTURE FALLS.
[¶37.] The petitioners allege that manual scavenging has taken place.If that indeed is the case,
the workers by their own volition offered their services. If the initial action is not in
consonance with law, the subsequent conduct of a party cannot sanctify the same. “Subla
Fundamento cedit opus”- a foundation being removed, the superstructure falls. A person
having done wrong cannot take advantage of his own wrong and plead bar of any law to
frustrate the lawful trial by a competent Court. In such a case the legal maxim Nullus
Commodum Capere Potest De Injuria Sua Propria applies.20
20
.Union Of India & Ors vs Major General Madan Lal Yadav, 1996 AIR 1340, 1996 SCC (4)
127
22

[¶38.] The persons violating the law cannot be permitted to urge that their offense cannot be
subjected to inquiry, trial or investigation.21 Nor a person can claim any right arising out of
his wrong doing according to Juri Ex Injuria Non Oritur. 22
[¶39.] The manual scavengers, despite the effort of the government to reach out to people
who have been targets of manipulative manual scavenging, have continued to offer their
services for hire. It cannot be reasoned that it is due to the lack of proper effort by the
government to curb such an inhumane act.
3.2. THE GOVERNMENT HAS TAKEN ADEQUATE STEPS TO PROVIDE

ALTERNATIVES FOR MANUAL SCAVENGERS.
[¶40.] Elimination of insanitary latrines and manual scavenging as well as rehabilitation of

manual scavengers in alternative occupations, have been areas of high priority of the
Government. To achieve the above objectives, the following major legislative and
programmatic interventions have been undertaken by the Government:
[¶41.] i. Enacting the “Prohibition of Employment as Manual Scavengers and their

Rehabilitation Act, 2013” which has outlawed the inhumane practice of manual scavenging
[¶42.] ii. To prevent the inhumane act of manual scavenging, more than 10.88 crore sanitary
toilets have been constructed in rural areas and 62.64 lakh in urban areas and insanitary
toilets have been converted into sanitary toilets under the Swachh Yavana Mission, since
October 2, 2014. Not only has the government been at rest after the passing of the 2013 Act,
but has taken efforts in order that the Act may fulfil its constitutional mandate.
[¶43.] (iii) After the enactment of the Act, the Self Employment Scheme for Rehabilitation of
Manual Scavengers (SRMS) was revised in November, 2013, in harmony with the Act, as
follows: -
a. Provision of One Time Cash Assistance of Rs. 40,000/- to one identified manual
scavenger in the family.
21
Devendra Kumar vs State Of Uttaranchal & Ors, CIVIL APPEAL NO. 1155 of 2006
22
Ramesh Prasad Patel vs Union Of India (W.P. (S) No. 4841 of 2008)
23

b. Back-end Capital subsidy upto Rs. 3.25 lakh to identified manual scavengers and their
dependants for self employment projects upto Rs. 10.00 lakh (Rs. 15.00 lakh in case of
sanitation related projects).
c. Skill Development Training upto two years to identified manual scavengers and their
dependants with stipend at Rs. 3,000/- per month during the training period.
[¶44.] (iv) Two surveys have been conducted at the initiative of the Ministry of Social Justice
& Empowerment during the year 2013 and 2018 for the identification of Manual Scavengers.
As per these two surveys, 58098 eligible manual scavengers have been identified and paid the
One time Cash Assistance of Rs. 40,000/-.
[¶45.] (v) To make the scheme more effective, SRMS has been further revised:
a. The maximum amount of capital subsidy per beneficiary has been revised from Rs. 3.25
lakh to Rs. 5.00 lakh.
b. Payment of capital subsidy has been made upfront in place of back-end subsidy earlier.
c. For Sanitation Related Projects, in addition to the identified manual scavengers and their
dependants, the sanitation workers and their dependants are also made eligible for same
amount of capital subsidy and interest subsidy.
d. For group projects, the project cost has been increased to Rs. 50.00 lakh per group upto
five members. Each member of the group can have maximum project share of Rs. 10.00 lakh.
e. Taking cognizance of health issues of manual scavengers and to enhance their health
conditions the Government has extended health insurance benefits of upto Rs. 5.00 lakh to all
the identified manual scavengers under Ayushman Bharat Yojana.
[¶46.] (vi) After receiving reports from the social institutions working in this field about
existence of insanitary latrines, Ministry of Social Justice and Empowerment launched a
mobile app “Swachhata Abhiyaan” on 24.12.2020 to capture the data of insanitary latrines
still existing and manual scavengers if any associated with them. Any person can upload the
data of insanitary latrines and manual scavengers on the mobile app. Thereafter, the data is
verified by the concerned district administration. Thus far over 6000 cases have been
uploaded on the App. However, not a single insanitary latrine has been confirmed so far.
[¶47.] In the instance of the municipality or panchayat failing to identify a manual scavenger,
Section 12 of the Act outlines the procedure for a manual scavenger to approach the said
24

authority to identify himself as a manual scavenger and avail himself of the rehabilitation that
is provided for by the government: “Any person working as a manual scavenger in an urban
area, may, either during the survey undertaken by the Municipality in pursuance of section
11, within whose jurisdiction he works, or at any time thereafter, apply, in such manner, as
may be prescribed, to the Chief Executive Officer of the Municipality, or to any other officer
authorised by him in this behalf, for being identified as a manual scavenger.”
[¶48.] The rehabilitation involves scholarship for his children, a residential plot and financial
assistance for house construction, or a ready-built house, with financial assistance, training in
a livelihood skill for him or any member of his family who are willing along with a monthly
stipend of not less than three thousand rupees, during the period of training, subsidy and
concessional loan for taking up an alternative occupation on a sustainable basis for him or
any member of his family, and he shall be provided such other legal and programmatic
assistance.
[¶49.] The same applies for panchayats as well. The government is taking every effort to
eliminate this evil from the lowest levels of our civil society as well as governance and uplift
the people who have been subjected to this inhumane act for time immemorial. Thus, the
government is at the service of the common man, but it would also require the cooperation of
the common man. This regrettable and horrifying incident could have been avoided had the
manual scavengers approached the concerned municipality for relief.
3.3. “VOLENTI NON FIT INJURIA”
[¶50.] Volenti non fit 23is Latin for “to a willing person, it is not a wrong.” This legal maxim
holds that a person who knowingly and voluntarily risks danger cannot recover for any
resulting injury.24.This principle was the common-law basis for the assumption of the risk
doctrine. There are 2 essential elements for volenti non fit injuria:
1. The plaintiff has the knowledge of the risk
2. The plaintiff with the knowledge of risk has voluntarily agreed to suffer the harm.
23
Smith v. Charles Baker and Sons [1891] A.C. 325; 65 L.T. 467, Sanjeet Singh Kaila vs
Union Of India And Anr., W.P.(C) 3414/2013
24
Gillmore Vs- London County Council–(1938) 4 All ER 331. Dr. Debajit Das And Anr vs
Williamson Magor Education Trust– (RFA 47/2018)
25
[¶51.] Ms. Jonila, the research scholar from the nation of Utopia conducting research in the
area. It is clear from the facts her field of study was in manual scavenging . Thus, being
aware of the imminent and inherent danger, and the past incidents, the deceased had
knowledge of the risk.
26
4. WHETHER THE BIO-MEDICAL WASTE DISPOSAL REGULATIONS ARE

FULFILLING THE CONSTITUTIONAL MANDATES?
[¶52.] It is submitted that the BMWR fulfils its constitutional mandate. The Act has necessary
provisions to uphold its constitutional mandates. Constitutional mandates are obligations
imposed upon the State to ensure that the rights granted under the Constitution are available
to citizens. Under biomedical waste management, the state is under obligation to ensure that
the right to life is not infringed (Article 21), ensure that public health is being taken care of
and to take proper measures in protecting the same and to formulate its policies keeping in
consideration its duties as laid down by the constitution (Article 47). The constitution also
mandates the protection and improvement of the environment and safeguarding the forests
and wildlife of the country (Article 48A), protection and improvement of the natural
environment including forests, lakes, rivers and wild life, and to have compassion for living
creatures (Article 51A). Athough the DPSP are not binding obligations but hold only
persuasive value, yet they should be duly implemented by the State.25
[¶53.] The facts state that during this controversy, a viral video showed two dogs fighting for
anatomical waste–human hands, in the public street of Maruvai.
4.1. SALIENT FEATURES OF THE ACT
[¶54.] The BMWMR, 2016 was enacted with the objective of improving the collection,
segregation, processing, treatment and disposal of these bio-medical wastes in an
environmentally sound management and thereby reducing the biomedical waste generation
and its impact on the environment. The Act has incorporated new and has actively taken
effort to Its salient features include i. The eventual phasing-out the use of chlorinated plastic
bags, gloves and blood bags within two years
ii. Pre-treatment of the laboratory waste, microbiological waste, blood samples and blood
bags through disinfection or sterilisation on-site in the manner as prescribed by WHO or
NACO
25
Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 812
27

iii. Provide training to all its health care workers and immunise all health workers regularly;
Establish a Bar-Code System for bags or containers containing bio-medical waste for
disposal;
iv. Report major accidents and introduction of accountability through annual reports
v. To make existing incinerators to achieve the standards for retention time in secondary
chamber and Dioxin and Furans within two years Bio-medical waste has been classified in to
4 categories instead 10 to improve the segregation of waste at source
vi. Inclusion of emissions limits for Dioxin and furans
vii. The new rules prescribe more stringent standards for incinerators to reduce the emission
of pollutants in the environment.
4.2. FAILURE TO FOLLOW THE LAW, DOES NOT IMPLY IMPERFECTION IN

THE LAW
[¶55.] The petitioner alleges impropriety with Act, for what is apparently to be an impropriety
with GHS.
[¶56.] The legal maxim nullum crimen sine lege called the legality principle which states that
one cannot be punished for doing something that is not prohibited by law. 26There can be no
crime without a statute that quite specifically forbids the behaviour involved (nullum crimen
sine lege). According to William Blackstone, a crime is an act committed or omitted in
violation of a public law either forbidding or commanding. In this case, the petitioner has
come forward against the Act itself, which has restricted and seeks to promote better
biomedical waste management.
4.3. ARTICLE 21, 48A AND 51A ARE UPHELD

[¶57.] The Articles 48A and 51A have been added to the Constitution by the 42nd
Amendment to “oblige the State and the citizen, respectively, to protect and improve the
natural environment and to safeguard the forest and wildlife off the country” as per the
hon’ble Court in Pradeep Krishen vs Union Of India27
26
K.Sundari vs The State Represented By, Crl.O.P.(MD).No.1187 of 2007
27
Pradeep Krishen vs Union Of India, W.P. (Civil) No. 262 of 1995
28

[¶58.] The Act provides a proper framework for the deep burial of anatomical waste. Under
Schedule II, the standards for deep burial are given in length, where it has a specific clause
regarding animals digging up anatomical waste– “It must be ensured that animals do not have
any access to burial sites. Covers of galvanised iron or wire meshes may be used.” It provides
sufficient instruction for the occupier to dispose of the waste properly.
[¶59.] The constitutional mandate of an act can come under question when an act fails to
uphold the rights enshrined in the Constitution. It is humbly submitted that the provisions of
the Act guard against any infringement on the right to life. The features of the Act have been
up to date with the recent development in biomedical waste management that the citizens of
Yavana may lead healthy lives, which is also guaranteed under the ambit of Article 21. The
waste disposal methods are explained in detail, and provide no loophole. They are practical
means to achieve proper disposal of the biomedical waste. Pollution Control Boards have
been set-up, at the State level and at the Central level to ensure that the rights of the citizens
are upheld and that the Act might fulfil its constitutional mandate.
29
PRAYER
WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED

AND AUTHORITIES CITED, MAY THIS HON’BLE COURT BE PLEASED TO
ADJUDGE, HOLD AND DECLARE THAT:
1. The Prohibition of Employment as Manual Scavenger and their Rehabilitation Act ,

2013 is constitutionally valid.
2. The dependants of the deceased are not entitled to claim compensation.
3. The Bio-Medical Waste Disposal Rules, 2016 fulfil the Constitutional mandates.
AND/OR
PASS ANY OTHER ORDER THAT IT DEEMS FIT IN THE INTEREST OF JUSTICE,
EQUITY AND GOOD CONSCIENCE.
-COUNSEL FOR RESPONDENTS
30

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TEAMNADU

DIRECTORATE OF LEGAL STUDIES, TAMIL CODE: KARUVEL

DIRECTORATE OF LEGAL STUDIES

INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022

BEFORE THE HON’BLE SUPREME COURT OF YAVANA

(UNDER ARTICLE 32 OF THE CONSTITUTION OF YAVANA)

IN THE MATTER OF:

DIGNITY ASSURANCE FOR YAVANIANS PETITIONER

UNION OF YAVANA RESPONDENT

ALONG WITH WRIT PETITION NO. ______ OF 2022

NATIONAL HUMAN RIGHTS COMMISSION & ORS. PETITIONER

UNION OF YAVANA & ANR. RESPONDENT

ALONG WITH WRIT PETITION NO. ______ OF 2022

SENGAI VALLEY DWELLER’S SOCIETY PETITIONER

STATE POLLUTION CONTROL BOARD & ANR. RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENTS

MOST RESPECTFULLY SUBMITTED BEFORE THE BENCH OF THIS HON’BLE COURT

INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022

LIST OF ABBREVATIONS …………….……………….…….……….…………………4

ISSUE 1: WHETHER THE PROHIBITION OF EMPLOYMENT AS

1.1. THE ACT HAS OUTLAWED MANUAL SCAVENGING

ISSUE 2: WHETHER THE GOVERNMENT HAS COMPLIED WITH

ISSUE 3: WHETHER THE DEPENDENTS OF THE DECEASED WERE

INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022

ISSUE 4: WHETHER THE BIO-MEDICAL WASTE DISPOSAL

4.1. SALIENT FEATURES OF THE ACT

INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022

S.No. ABBREVIATIONS EXPANSION

3 AIR All India Reporter

10 et. Al And others

12 FIR First Information Report

13 GHS Global Health Services

22 PEMSR Act Prohibition of Employment As Manual Scavenger

INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022

24 SCC Supreme Court Cases

25 SCR Supreme Court Reporter

27 SPCB State Pollution Control Board

28 UOI Union of India

29 u/s Under section

INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022

STATUTES, ACTS AND RULES

1. The Constitution of India, 1950

INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022

1. Universal Declaration Of Human Rights, 1948

BOOKS AND COMMENTARIES

1. M.P. Jain, Indian Constitutional Law, (6th Ed, 2010)

INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022

DIGNITY ASSURANCE FOR YAVANIANS V. UNION OF YAVANA

NATIONAL HUMAN RIGHTS COMMISSION AND ORS. V. UNION OF YAVANA

SENGAI VALLEY DWELLER'S SOCIETY V. STATE POLLUTION CONTROL

INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022

Shortcoming of the Act:

Death of Manual Scavengers:

The Global Healthcare Services is a multinational company which is situated in the

Suo Moto cognizance by NHRC:

INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022

Fault in GHS’s incineration and negligence of SPCB:

INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022

WHETHER THE PROHIBITION OF EMPLOYMENT AS MANUAL SCAVENGER AND

WHETHER GOVERNMENT HAS COMPLIED WITH ITS INTERNATIONAL

WHETHER THE DEPENDANTS OF THE DECEASED WERE ENTITLED TO CLAIM

WHETHER THE BIO-MEDICALWASTE DISPOSAL REGULATIONS ARE

INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022