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 MEMORANDUM ON BEHALF OF THE PETITIONERS

SUMMARY OF ARGUMENTS

1. WHETHER THE PROHIBITION OF EMPLOYMENT AS MANUAL SCAVENGER

AND THEIR REHABILITATION ACT, 2013 IS CONSTITUTIONALLY VALID?
It is humbly submitted that the Prohibition of Employment as Manual Scavenger and their
Rehabilitation Act, 2013 is constitutionally invalid. The provisions of the Act are in contradiction
with the objective of the Act. By redefining manual scavenger to include those only without
safety gear, the Act implicitly promotes the inhumane act.

2. WHETHER THE GOVERNMENT HAS COMPLIED WITH ITS INTERNATIONAL

COMMITMENTS?

It Is submitted that the government has not complied with the International Commitments to
which Yavana is a signatory. Particularly, The Covenant on Economic, Social and Cultural Rights
1966, The Convention on the Elimination of All Forms of Discrimination against Women.

3. WHETHER THE DEPENDENTS OF THE DECEASED WERE ENTITLED TO

CLAIM COMPENSATION?

The dependents of the deceased are entitled to compensation on the grounds that the government
bears vicarious liability for the loss of the lives of three Yavanian citizens and the research
scholar from Utopia. The right to life guaranteed by Article 21 of the Constitution for citizens
and non-citizens in the Union of Yavana. Compensation for violation of fundamental rights is
based on strict liability, which in this case exists.

4. WHETHER THE BIO-MEDICAL WASTE DISPOSAL REGULATIONS ARE

FULFILLING THE CONSTITUTIONAL MANDATES?

The Biomedical Waste Disposal Rules, 2016 do not fulfil the constitutional mandate to uphold
the rights guaranteed in the Constitution.

12
MEMORANDUM ON BEHALF OF THE PETITIONERS
ARGUMENTS ADVANCED

1. WHETHER THE PROHIBITION OF EMPLOYMENT AS MANUAL SCAVENGER

AND THEIR REHABILITATION ACT, 2013 IS CONSTITUTIONALLY VALID?

[11] It is humbly submitted that the Prohibition of Employment as Manual Scavenger and their
Rehabilitation Act, 2013 is not constitutionally valid since the act itself is having provisions
which indirectly causes the practice of manual scavenging.

1.1. THE PROVISIONS CONTAINED UNDER THE ACT ARE AGAINST THE SPIRIT
OF THE ACT

1.1.1. THE SECTION 2(1)(g) ALLOWS THE PRACTICE OF MANUAL SCAVENGING

TO PERPETUATE RELYING ON THE PERMISSIBILITY OF PROTECTIVE
GEAR AS A LEGAL EXCEPTION TO THE PROHIBITION.

[12.] The section 2(1)(g) of the act defines “manual scavenger” as a person who is engaged or
employed by an individual or a local authority or an agency or a contractor, for manually
cleaning, carrying, disposing of, or otherwise handling in any manner, human excreta in an
insanitary latrine or in an open drain or pit.

[3.] The Explanation to section 2(1)(g) attaches a condition to this definition where-

(b) a person engaged or employed to clean excreta with the help of such devices and using such
protective gear, as the Central Government may notify in this behalf, shall not be deemed to be a
‘manual scavenger’;

[4.] This implies that manual scavenging is prohibited by this Act only if protective gear,
equipment and devices are not provided to municipal employees and manual scavengers. The
significance of this legislative exceptionalism and permissibility of manual scavenging is that the
Act lacks tools to achieve its central objective the prohibition of employment as manual
scavengers, rehabilitation of manual scavengers, and their families’.

Section 2(1)(g) of PEMSR Act, 2013

13
MEMORANDUM ON BEHALF OF THE PETITIONERS

[5.] Where the legislation prohibits the employment in hazardous activities and manual
scavenging on one hand, it permits carrying out these otherwise prohibited acts if such persons
do so with protective gear, equipment and devices on the other hand.

[16.] Hence it is explicit from this provision that the legislative intent is thus not towards
completely prohibiting any forms of engagement and employment in carrying human excreta, or
entering sewers or septic tanks by persons, but to continue the practice of manual scavenging and
hazardous cleaning by providing safety mechanisms to ensure engagement.

[17.] The purpose of an Act against manual scavenging must be to abolish manual. Scavenging,
not merely disallow certain forms of it. By narrowing down the definition, the act fails to
recognize that the work of manual scavenging is not one profession among others but is an
inherent evil in our society. It is submitted that such a clause nullifies the strong strictures against
manual scavenging, and renders it moot.

1.1.2. LIMITED SCOPE OF THE TERM “HAZARDOUS CLEANING” UNDER THE

ACT

[18.] The Section 2(1) (d) of the Act, construes “hazardous cleaning” in relation to a sewer or
septic tank as a manual cleaning by such employee without the usage of protective gear and other
cleaning devices that ensures observance of safety precautions. Where the aim of the Act is to
prohibit any form of manual scavenging, it however vetoes hazardous cleaning, only on the
condition when workers are not provided with protective gear.

[19.] Moreover, the Act fails to define “protective gear” which can be a detriment as, due to this
ambiguity in definition, sometimes employers just give them gloves, which fulfils the criterion of
protective gear. But merely providing gloves does not stop them from the exposure to health
hazards. This further legitimizes the inhumane practice, and defeats the very purpose of the Act.

1.1.3. CONFLICT AMONG THE EXISTING PROVISIONS UNDER THE ACT

[10.] Section 2(1)€ defines the term ‘insanitary latrine as a latrine which requires human excreta
to be cleaned or otherwise handled manually, either in situ, or in an open drain or pit into which
the excreta is discharged or flushed out, before the excreta fully decomposes in

Section 2(1)(d) of PEMSR Act, 2013

14
MEMORANDUM ON BEHALF OF THE PETITIONERS

Such manner as may be prescribed. However, it also leaves out an exception that a water flush
latrine in a railway passenger coach, when cleaned by an employee with the help of such devices
and using such protective gear shall not be deemed to be an insanitary latrine.

[11.] This exception seems to be conflicting with sections 5 of the same act. Because, the section
5 “Prohibition of insanitary latrines and employment and engagement of manual scavenger”
states in its sub clause 2 that every insanitary latrine existing on the date of commencement of
this Act, shall either be demolished or be converted into a sanitary latrine.
[12.] Moreover, the Section 17 with regard to “Responsibility of local authorities to ensure
elimination of insanitary latrines” clearly states that it shall be the responsibility of every local
authority to ensure, through awareness campaign or in such other manner that no insanitary
latrine is constructed, maintained or used within its jurisdiction.

[13.] The Yavanian railways being a local authority with an obligation to demolish the insanitary
latrine or convert it into a sanitary latrine, within a period of six months from the date of
commencement of this Act, rather it seeks protection to continue such prohibited

Practice through the exception provided.

[14.] There may be certain difficulties for the railway to avoid manual scavenging in case of
small latrines constructed inside the railway compartments. Rather the Railway Authority should
devise a method to clean the latrines by way of constructing portable/ removable small septic
tanks beneath the small latrines inside the compartments, which may be cleared in the stations
from time to time.

1.1.4. OTHER LOOPHOLES THAT DEFEAT THE ENTIRE PURPOSE OF THE ACT

[15.] Section 4(1) of the Act says that every Local authority shall: (a) carry out a survey of
insanitary latrines existing within its jurisdiction, and publish a list of insanitary latrines, in such
manner as may be prescribed, within a period of two months from the date of commencement of
this Act. 5

[16.] It is observed that the Act refers to identification of only insanitary latrines. But, the Act
does not mention identification of spots where open defecation is done and consequently

Section 2(1)€ of PEMSR Act, 2013

Section 4(1) of PEMSR Act, 2013

Section 4(1)(a) of PEMSR Act, 2013

15

MEMORANDUM ON BEHALF OF THE PETITIONERS

Someone has to clean manually human excreta from the open spaces in urban areas. Moreover, a
period of two months is insufficient and seems to be an impossible task for carrying out surveys
of such insanitary latrines.

[17.] The section 39(1) of the Act states that the appropriate Government may, by a general or
special order published in the Official Gazette, for the reasons to be recorded, and subject to such
conditions as it may impose, exempt any area, category of building or class of persons from any
provisions of this Act or from any specified requirement contained in this Act or any rule, order,
notification, bye laws or scheme made there under or dispense with the observance of any such
requirement in a class or classes of cases, for a period not exceeding six months at a time: This is
a major gap in the Act as it empowers the Government to exempt the provisions of the Act and
thereby creating a major gap that can defeat the entire purpose behind passing this piece of
legislation.

[118.] Hence it is most humbly submitted that the act itself is having provisions which may
indirectly cause the manual scavenging. Hence, by applying the doctrine of severability, such
contradictory provisions should be held unconstitutional and must be removed from the act.

1.2. THE ACT FAILS TO FULFIL THE TEST OF STRICT SCRUTINY

[119.] The term “strict scrutiny” refers to a test by which statutes are pronounced
unconstitutional unless they are "necessary" or "narrowly drawn” or “closely tailored” to serve a
“compelling governmental interest”. So, to pass strict scrutiny, the legislature must have passed
the law to further a “compelling governmental interest,” and must have narrowly tailored the law
to achieve that interest”. Here, “Compelling government interest” refers to a fundamental state
purpose, which must be shown before the law can limit some freedoms or treat some groups of
people differently.

[20.] Application of the test to the present case- Even though the government’s ultimate aim
through the PEMSR act is to completely prohibit the practice of manual scavenging, however its
inbuit provisions does not support its object. The narrowly tailored definition of

Section 39(1) of PEMSR Act, 2013

Anuj Garg & Ors vs. Hotel Association of India & Ors, AIR 2008 SC 663; Naz Foundation vs.
Government of NCT of Delhi, 160 Delhi Law Times 277; Subhash Chandra vs. Delhi
Subordinate Services Selection Board,

WP© No.507 of 2006

16

MEMORANDUM ON BEHALF OF THE PETITIONERS

“manual scavenger” under section 2(1)(g) appears discriminatory in nature since it contains an
unnecessary exception. Because, such an exception can possibly end up in violating the
fundamental rights as guaranteed under the Yavanian constitution.

1.3. THE ACT INDIRECTLY CAUSES MS – THEREBY VIOLATING ARTICLE 21

[121.] The Act implicitly promotes MS, insofar as the workers are provided with the necessary
“protective gear and devices”. Furthermore, the Act does not list out the protective gear
necessary for those who do choose to employ a worker for manual scavenging. Such an omission
makes it convenient for such employers to provide merely the minimum protective gear to
escape liability in case of death or injury. Due to this ambiguity in definition, sometimes
employers just give them gloves, which fulfil the criterion of protective gear. But merely
providing gloves does not stop them from the exposure to health hazards. Hence, this type of
provision can lead to the infringement of the implicit rights guaranteed under Article 21.8

1.3.1. RIGHT TO HEALTH

[22.] 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.”

[23.] ‘Right to life’ in Article 21 of the Constitution of India includes protection of the health of
every person and medical care. It has a much wider meaning which includes the right to a better
standard of life and hygienic conditions at the workplace.”

[124.] It is explicit from the aforementioned ground that certain provisions of the PEMSR Act
are not completely prohibiting the practice of manual scavenging and instead they are

Article 21 Constitution of India, 1949

Suresh Kumar Koushal & Anr vs Naz Foundation & Ors(civil appeal no. 10972 of 2013 (Arising
out of SLP

© No. 15436 of 2009)

10 State Punjab vs. Mahinder Singh Chawla, AIR 1997 SC 1225; Kirloskar Brothers vs.
Employees State Insurance Corporation, (1996) 2 SCC 68

Consumer Education and Research Centre and others vs. Union of India and others, AIR 1995
SC 922
17 MEMORANDUM ON BEHALF OF THE PETITIONERS

Against the objective of the act. Thus, such ambiguity can lead to the legal indulgence of
workers into such practice. And this can cause a severe threat to such workers due to the
consequence of the health hazard it causes.

[25.] At this point it is pertinent to note that permitting such a practice despite it being voluntary
will be degrading of human dignity. Moreover the Article 47 of the Yavanian constitution states
that it is the duty of the state to ensure just and humane conditions of work; and improve the
standard of living and consider improvement of public health as its primary duty.

[26.] Hence, it is humbly submitted that certain choices are prohibited by the Constitution itself
and the abolishment of MS enhances the Fundamental Rights, by emancipating such workers
from a social condition which is below human dignity.

1.3.2. VIOLATION OF RIGHT TO LIVE WITH HUMAN DIGNITY

[27.] The right to life embraces not only physical existence but the quality of life as understood
in its richness and fullness by the ambit of the Constitution. Also, it is not confined to the
protection of any faculty or limb through which life is enjoyed or the soul communicates with the
outside world but it also includes ‘the right to live with human dignity free from exploitation. 13

[28.] The practice of manual scavenging is the most degrading and inhumane practice in the
world and a blot on human dignity. Therefore, manual scavenging will continue to be the most
dehumanizing form of work irrespective of governing it under the umbrella of protective gear
and other equips.

1.4. INFRINGEMENT OF ARTICLE 17

[29.] Art 17 of the constitution of Yavana states that untouchability is abolished and its practice
in any form is forbidden. It also specifies that any violation arising out shall be an offence
punishable under the law.

12 Builders Association Of India And Ors. Vs. Union Of India. 1989 SCALE (2)768 13 Francis
Coralie Mullin vs. The Administrator, Union Territory of Delhi (1981) 2 SCR 516.

14 Article 17 Constitution of India, 1949

18 MEMORANDUM ON BEHALF OF THE PETITIONERS

[130.] A recent manifestation of the government data has revealed that 97.25% percent of manual
scavengers in Yavana belong to Dalit community under the category of Scheduled caste and
tribes. 15 The obnoxious practice of manual scavenging is rooted in the concept of the caste-
system and untouchability across the country of Yavana. Hence, if such practice of manual
scavenging continues to exist through the exceptions under the PEMSR act, then it would end up
in infringement of the right guaranteed under Article 17 of the Yavanian constitution.

[31.] In the present case, even if there is a legitimate state interest in enacting the PEMSR act, it
lacks proper implementation and application due to the loopholes present in the act. This is well
evident from the fact that even after 9 years of implementation of PEMSR act, the manual
scavengers and their practice are still recorded throughout the country till date.

[32.] Hence, it is humbly submitted that the Prohibition of Employment as Manual Scavenger
and their Rehabilitation Act, 2013 is not constitutionally invalid.

15 97.25% of people involved in manual scavenging whose caste data is known are SCs

19 MEMORANDUM ON BEHALF OF THE PETITIONERS

 2. WHETHER THE DEPENDENTS OF THE DECEASED WERE ENTITLED TO
CLAIM COMPENSATION?

3.1. THE GOVERNMENT IS RESPONSIBLE FOR COMPENSATION

[43.] It is humbly submitted that despite the State not directly employing MS, it has failed in its
duty to prevent MS in this case. It is incumbent upon the State to ensure that no acts of MS take
place. The State bears the vicarious liability for the actions of GHS, as it is the responsibility of
the State to ensure that the inhumane act of MS has no place in Yavana. The State is under a
bounden duty to prohibit manual scavenging and it cannot avoid its liability to compensate
manual scavengers who have lost their lives in the course of manual scavenging, by reason of the
inability of the State to stop manual scavenging.

[144.] In the case of Change India vs Government Of Tamilnadu”, the court concluded,

Providing appropriate context for the Supreme Court order in Safai Karmachand case2”

“…Ultimately, however, compensation was released even to the dependents of manual

Scavengers engaged by private persons and/or entities, who had died in course of sewerage

Work since 1993.” “A reading of the judgment and order of the Supreme Court, as a whole,

Makes it amply clear that the Supreme Court was not concerned only with manual scavengers

Engaged by the State and/or State authorities, but manual scavengers engaged by private
Persons and/or entities, who had lost their lives in course of sewerage work.”

[145.] This was also reiterated by the Bombay High Court citing the Change India case, “a
reading of the Supreme Court judgment in Safai Karamchari Andolan And Ors vs. Union Of
India (supra), Madras High Court took the view that Supreme Court was not concerned with
manual scavenging engaged only by the State or by State authorities but manual scavengers
engaged by the private persons and/or by private entities as well.”

26 Change India vs Government Of Tamilnadu, W.P.No.25726 of 2017

27 Safai Karamchari Andolan And Ors vs Union Of India, W.P (Civil) NO. 583 OF 2003

28 ibid

23 MEMORANDUM ON BEHALF OF THE PETITIONERS

3.2. THE DESCENDANTS OF THE DECEASED ARE ENTITLED TO CLAIM
COMPENSATION

[146.] GHS hired the three manual scavengers, and the three workers were subject to the
poisonous gases in the sewer that led to their deaths. They are entitled to compensation; while the
Act is silent on compensation on death, the hon’ble apex court in the landmark judgement Safai
Karamchari Andolan And Ors vs Union Of India issued an order for compensation. The Supreme
Court issued the following directions for sewer deaths: “entering sewer lines without safety gears
should be made a crime even in emergency situations. For each such death, compensation of Rs.
10 lakhs should be given to the family of the deceased." The judgement rests on three pillar, the
third pillar discusses the “compensation of Rs.10 lakhs” which “has been directed to be paid to
the dependent family members of all persons, who had died in sewerage work (manholes, septic
tanks) since 1993.”

[147.] This has been followed by the Madras High Court, in P.Ayyaswami vs The Chief
Secretary which ordered the State to “identify the families of all persons who have died in
sewerage work (manholes, septic tanks…and award compensation of Rs.10 lakhs for each such
death to the family members depending on them.” B.Panju Selvarani vs The Secretary To
Government which read, “State Government to pay interest to the identified heirs of manual
scavengers who lost their lives in the course of manual scavenging and/or sewerage work at the
rate of 8% per annum, being the rate of interest paid by nationalised banks to senior citizens,
from 01.10.2014 till the date of payment of compensation of Rs.10 lakhs to the concerned heirs.”
The Secretary To The Government vs Valaiyakka” followed the precedent set by the previous
cases and directed the State to provide compensation.

3.3. VIOLATION OF ARTICLE 21

[48.] The basis for compensation under Article 32 is on the basis of the doctrine of strict liability
for infringement of the fundamental right to life of the deceased. Article 21 guarantees the
fundamental right to life, and dignity of life. For the contravention of the

29 P.Ayyaswami vs The Chief Secretary, W.P. No.25717 of 2012

30 B.Panju Selvarani vs The Secretary To Government, W.A.(MD) No. 1029 of 2019

31 The Secretary To The Government vs Valaiyakka, W.A (MD) No.550 of 2016 and
C.M.P(MD)No.3930 of

2016

24

MEMORANDUM ON BEHALF OF THE PETITIONERS

Fundamental right, compensation is due to Mrs. Mangai Selvendiran, Mr. Selvendiran, Aged 52,
and Mr. Arivu, and the foreign researcher Ms. Jonila. The Supreme Court in Shalesh Kumar vs
The State Of Bihar” declared, that “compensation in a proceeding under Article 32 by this
Court…is a remedy available in public law, based on strict liability for contravention of
fundamental rights to which the principle of sovereign immunity does not apply”

[149.] Strict liability exists when a defendant is liable for committing an action; regardless of
what his/her intent or mental state was when committing the action. Sovereign immunity, or
crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong
and is immune from civil suit or criminal prosecution, which is not applicable as adjudicated by
the hon’ble apex court, “The defence of sovereign immunity being inapplicable, and alien to the
concept of guarantee of fundamental rights, there can be no question of such a defence being
available in the constitutional remedy. It is this principle which justifies award of monetary
compensation for contravention of fundamental rights guaranteed by the Constitution, when that
is the only practicable mode of redress available for the contravention made by the State…and
enforcement of the fundamental right is claimed by resort to the remedy in public law under the
Constitution by recourse to Articles 32 and 226 of the Constitution.”

[150.] Similarly in this case, the government bears the liability for the death of Mrs. Mangai
Selvendiran, Mr. Selvendiran, Aged 52, and Mr. Arivu, and the foreign researcher Ms. Jonila, as
demonstrated in the first ground, and the families of the deceased are entitled to claim
compensation. Article 21 is guaranteed for non-citizens as well, as affirmed by the Supreme
Court in Union Of India And Ors. Vs Bhanudas Krishna Gawde “fundamental rights are
conferred and guaranteed by the Constitution so that citizens, and, in the cases of Articles 14 and
21, even non-citizens, may get relief against ‘the State and its agencies.”It is submitted that Ms.
Jonila’s right to life guaranteed for foreign citizens as well, has not been protected by the State.

32 Shalesh Kumar vs The State Of Bihar, W.P. 7312 of 2015

33 Union Of India And Ors. Vs Bhanudas Krishna Gawde, 1977 AIR 1027, 1977 SCR (2)719

25

MEMORANDUM ON BEHALF OF THE PETITIONERS

 3. WHETHER THE BIO-MEDICAL WASTE DISPOSAL REGULATIONS ARE
FULFILLING THE CONSTITUTIONAL MANDATES?

[51.] It is humbly submitted that the Bio medical Waste disposal Rules do not fulfill 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)35. 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).37

[152.] 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. Further, noxious fumes are

Said to be rising out from the incinerator of GHS, along with an increase in disease related to

Biomedical wastes throat infection, lung problems, headaches, fainting, eyesight problems,

Nausea and even coughing blood.

4.1. FAILURE TO ENSURE PROPER DISPOSAL

[153.] As per the facts, DEMOCRATIC NEWS has recorded at a large-scale the neglect of
proper disposal of biomedical waste, specifically anatomical waste, which by itself calls into
question the extent to which the Act has fulfilled its constitutional mandate. The extent to which
an Act fulfils its objective determines its effectiveness. The Act has failed on such a
34 Article 21 Constitution of India, 1949

35 Article 47 Constitution of India, 1949

36 Article 48a Constitution of India, 1949

37 Article 51A Constitution of India, 1949

26 MEMORANDUM ON BEHALF OF THE PETITIONERS

Large-scale, across the nation. Its constitutional mandate to uphold the rights granted under the
Constitution, has not been upheld. This ground will be elaborated further in the arguments
dealing with the violation of article 2138 and the failure of the state to uphold Directive
Principles of State Policy.

4.2. PUNISHMENTS FOR VIOLATION OF REGULATIONS

[154.] The Act is not bolstered by any punishments or penalty for violations of the regulations.
The Act without such provisions appears as suggestions for disposal of biomedical wastes,
without the threat for violation of said regulations. In Shubham Suresh Thorat vs. The State of
Maharashtra,” the Bombay High Court mentioned obiter dicta, that “punishment is the coercion
used to enforce the law and it is one of the pillars of modern civilization. Providing a peaceful
society life is the duty of a State. Lack of punishment causes the law to lose its face and may
result in a lawless society.”

[155.] The legal maxim Lex talionis, meaning an eye for an eye- a basis for the retributive theory
used in criminal law, is applicable in a broad sense in this case, as the Act provides for no penalty
for inflicting injury on the society. Private companies of the size and influence of GHS bypass
these regulations to inflict injury to the eye of the society and face no retribution for them. The
Act, thus, fails to fulfill its constitutional mandate.
 4.3. DISEASES CAUSED DUE TO IMPROPER WASTE DISPOSAL – VIOLATION OF
ARTICLE 21 AND ARTICLE 47

[156.] The facts record a rise in diseases in the surrounding areas throat infection, lung problems,
headaches, fainting, eyesight problems, nausea and even coughing blood. Article 21 guarantees
right to life, not apart from, but along with right to healthy life, as said by the hon’ble Court in
Mr. ‘X’ vs. Hospital ‘Z’” “Right to Life includes right to lead a healthy life so as to enjoy all
faculties of the human body in their prime condition”. Right to healthy life is to be interpreted as
the right to the highest attainable standard of physical and mental

38 Article 21 Constitution of India, 1949

Shubham Suresh Thorat vs. The State of Maharashtra, Crl bail Appl. No. 3242 of 2020 40 Mr.
‘X’ vs. Hospital ‘Z’, Appeal (civil) 4641 of 1998

27 MEMORANDUM ON BEHALF OF THE PETITIONERS

Health, rather than an unconditional right to be healthy. The court accentuated such a right in
Vincent vs. Union of India,” “A healthy body is the very foundation for all human activities. In a
welfare State, therefore, it is the obligation of the State to ensure the creation and the sustaining
of conditions congenial to good health.” In the State of Punjab v. M.S. Chawla, it has been held
that-the right to life ensured under Article 21 incorporates the ambit of the right to health.

[157.] In Bandhua Mukti Morcha v. Union of India,” the same was recognized the same, but also
included just and humane conditions of work under Article 21 both of which have been
infringed, “This right to live…must include protection of the health and strength of the workers,
men and women…just as humane conditions of work and maternity relief.”

[158.] The relationship between Article 21 and the Directive Principles of State Policy has not
been left unnoticed by the hon’ble Court but was emphasised as not as one of antagonism, but
one of mutual derivation, “This right to live with human dignity enshrined in Article 2143
derives its life breath from the Directive Principles of State Policy”.
[159.] Article 38 of the Indian Constitution imposes an obligation on the State to promote the
welfare of the people and reduce economic inequalities the basis for which is good health. It
implies without general health government assistance of individuals is unthinkable. The State has
failed in this regard. The Act thus has not fulfilled its constitutional mandate.

4.4. ARTICLES 47, 48A, 51A HAVE BEEN NEGLECTED BY THE STATE

[160.] It has been outlined in our Constitution that it is upon the state to protect and improve the
environment and safeguarding the forests and wildlife of the country (Article 48A),45

41 Vincent vs. Union of India, 1987 AIR 990 1987 SCR (2) 468

42 Bandhua Mukti Morcha vs. Union of India, [1984] 3 SCC 161

43 Article 21 Constitution of India, 1949

44 Article 38 Constitution of India, 1949

45 Article 48A Constitution of India, 1949

28 MEMORANDUM ON BEHALF OF THE PETITIONERS

Protection and improvement of the natural environment including forests, lakes, rivers and wild
life, and to have compassion for living creatures (Article 51A). The constitution mandates the
state to 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 facts state that the incineration caused the release of noxious
fumes. There was an appeal made to the SPCB, and no corrective measures were taken by the
SPCB to ensure that the noxious fumes are not released in the vicinity of Poigai. The Pollution
Control boards do not have the power to impose corrective measures on the violating party. The
SPCB plays an advisory role, and authorizes requests. The failure of the SPCB to take adequate
action in this case is testament to the failure of the Act to empower the SPCB, and thereby its
failure to fulfill its constitutional mandates.

4.5. INSUFFICIENT BURIAL INSTRUCTIONS

[61.] The human hands seem to have been buried in the ground, which was eventually dug up by
the two dogs, causing a huge uproar. Schedule I of the Act provides burial as one of the options
for the disposal of anatomical waste. Such a provision far from keeping a check on unregulated
burials, it provides a loophole which inadvertently affects the duty of the State to fulfil Article
48A of the Constitution, which mandates the protection of the environment and safeguarding the
forests and wildlife of the country, and Article 51A, which seeks the protection and improvement
of the natural environment including forests, lakes, rivers and wild life. While deep burial is
widely recognized as the best method for disposal of anatomical waste, it is not a stand-alone
procedure but has to be coupled with others, as the court declared in Haat Supreme Wastech Pvt.
Ltd. Ors vs. State Of Haryana that disposal must be taken “together with various kinds of
procedures, methodologies that are required to be adopted for dealing with different hospital
wastes which fall within the head of bio-medical waste.

46 Article 51A Constitution of India, 1949

47 Article 47 Constitution of India, 1949

+ Haat Supreme Wastech Pvt. Ltd. Ors vs State Of Haryana, Appeal No. 63/2013

29 MEMORANDUM ON BEHALF OF THE PETITIONERS

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 invalid.

2. The dependants of the deceased are entitled to claim compensation.

3. The Bio-Medical Waste Disposal Rules, 2016 do not 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 THE PETITIONERS

30 MEMORANDUM ON BEHALF OF THE PETITIONERS