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6th Annual NALSAR - Justice Bodh Raj Sawhny Memorial Moot Court Competition, 2012September 28-30, 2012 Moot Problem
6th Annual NALSAR - Justice B.R. Sawhny Memorial Moot Court Competition, 20121. In the year 2013, the Parliament of India passed the ‘Prohibition of Employment asManual Scavengers and their Rehabilitation Act, 2013’. The Act was introduced to ensure thatevery insanitary latrine will have to be demolished or converted into sanitary latrines within ninemonths of the notification of the law. It absolutely prohibits any agency or individual fromemploying manual scavengers, and those already in this kind of job, will have to be dischargedirrespective of any contract, agreement, custom or traditional commitments. The governments orthe local agencies will help in conversion of insanitary latrines into sanitary ones within ninemonths of the notification of the Act, but non-receipt of assistance for the purpose will be noreason for continuation of insanitary latrines. Failing which, the local authorities will demolishthe structure and the cost of such demolition has to be borne by the occupier, in a manner whichwill be prescribed in the Rules. Any violation of this provision will attract imprisonment up toone year and a fine of ` 50,000 for the first offence and subsequent violations will attractimprisonment of up to two years and a fine of ` One lakh. The offences will be cognizable andnon-bailable and tried by an Executive Magistrate.2. Some relevant provisions of the Act are reproduced below:Section 1 - Short title, application and commencement:(1) This Act may be called the Prohibition of Employment as Manual Scavengers and theirRehabilitation Act, 2013.(2) It applies in the first instance to the whole of the States of Andhra Pradesh, Kerala and TamilNadu, and to all the Union territories (including Delhi) and shall also apply to such other Statewhich adopts this Act by resolution passed in that behalf under clause (1) of Article 252 of theConstitution.(3) It shall come into force in the States of Andhra Pradesh, Kerala and Tamil Nadu and in theUnion territories (including Delhi) on such date as the Central Government may, by notification,appoint, and in any other State which adopts this Act under clause (1) of Article 252 of theConstitution, on the date of such adoption. 2
6th Annual NALSAR - Justice B.R. Sawhny Memorial Moot Court Competition, 2012Section 51 - Repeal: The Employment of Manual Scavengers and Construction of Dry. Latrines(Prohibition) Act, 1993, shall stand repealed from the date on which this Act is brought intoforce in at least three states.3. On 15.08.2013, the new Act was notified in the Official Gazette, by the Ministry ofSocial Justice, Government of India. The notification stated that the Act was to come into forceimmediately in the States of Andhra Pradesh, Kerala and Tamil Nadu and in the Union Territoryof Delhi.4. On 01.09.2013, under orders of the Executive Magistrate, East Delhi, all dry latrines inLakshmi Nagar Colony, Delhi were demolished. Three persons, including Smt. Usha Rani, whowere employed as manual scavengers, were left unemployed as a result of the said demolition.Smt. Usha Rani was a widow, whose husband had been a sewage worker with the Delhi JalBoard. In 2012, her husband had died while cleaning a manhole, as result of inhaling poisonousfumes. Smt. Usha Rani, within a few weeks of being unemployed was left homeless, and alongwith her three children started living under the ITO Flyover in New Delhi.5. On 02.10.2013, the Police arrested Smt. Usha Rani, when she was found soliciting almsnext to the ITO Flyover. She was produced in Court, a week thereafter, and along with herchildren, was detained under the provisions of the Bombay Prevention of Begging Act, 1960 (Xof 1960). This Act had been extended to the Union Territory of Delhi (National Capital Territoryof Delhi) by G.S.R. 638, dated 2nd June, 1960.6. On 15.10.2013, the Association for Emancipation of Manual Scavengers (AEMS), filedW.P. No. 123 of 2013 before the Supreme Court of India under Article 32 of the Constitution ofIndia, challenging the provisions of the Bombay Prevention of Begging Act, 1960 (X of 1960)making the Government of NCT of Delhi also a Respondent. It was stated that the writ petitionwas being filed on behalf of Smt. Usha Rani and her children, and that the Act criminalizedpoverty. The AEMS also filed W.P. No. 124 of 2013, seeking a declaration that the Prohibitionof Employment as Manual Scavengers and their Rehabilitation Act, 2013, was an Act in 3
6th Annual NALSAR - Justice B.R. Sawhny Memorial Moot Court Competition, 2012furtherance of Article 17 of the Constitution of India, and therefore, ought to apply uniformlythroughout the country. Further, it was contended that the Union was competent to enact the laweven otherwise. They also sought a direction that the Act ought to be brought into forceexpeditiously throughout the country.7. The Petitioners will argue both the writ petitions. The Respondents will argue for theGovernment of NCT of Delhi in the first petition and for the Union of India, in both the petitions.The writs have been admitted and all questions including maintainability are to be urged at thetime of final hearing. *This problem has been framed by Mr. K. Parameshwar, Advocate, Supreme Court of India. Participants are forbidden from contacting the author under any circumstances. Any attempt to do so will result in immediate disqualification. 4