Guest Post: Legal Pitfalls in Combating Manual Scavenging

(This is a guest post by Nachiketh Patil)

On 20 October 2023, the Supreme Court in Balram Singh v. Union of India issued various directions to ensure the proper enactment of provisions in laws to eradicate manual scavenging in India. The judgement highlighted various issues, such as inaccuracies in surveys conducted to establish the number of people involved in manual scavenging labour as well as shortcomings in the implementation and functioning of institutions arising from the acts.

Seemingly in the face of these efforts comes the Judgment and Final Order dated 14.12.2023 passed by the Hon’ble High Court of Karnataka at Bengaluru in Crl. Petition No. 103546/2023, wherein the Ld. Single Judge quashed proceedings in P.S. Vidyanagar against the Accused, on the sole ground that the complaint should have been filed before the Magistrate and not the police as per Section 10 of the PEMSR Act. The High Court does so without giving any clear reasoning or taking into consideration relevant aspects of criminal procedure relating to offences of a cognizable nature.

In the present case, FIR No. 150 / 2023 was filed against Smt. Saroja Bhairi at P.S. Vidyanagar alleging offences under Section 5 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 (PEMSR Act). During the inspection of the scene, it was found that the accused personally lowered a labourer into a manhole without safety equipment, breaching sections 5 and 7 of the Act. Section 9 considers contravention of Section 7 as an offence and section 8 considers contravention of sections 5 and 6 as an offence respectively.

Section 22 outlines the specific procedural aspects concerning the cognizance and bail provisions within the framework of this legislation. In accordance with this section, irrespective of the stipulations in the Code of Criminal Procedure, 1973 (2 of 1974), it is mandated that all offences falling under the purview of this Act are to be treated as cognizable and non-bailable.

This means that law enforcement authorities are empowered to take immediate action upon the commission of an offense under this Act, without the need for a warrant, and to initiate the necessary investigation procedures promptly. Furthermore, the provision establishes that individuals accused of offenses covered by this Act are not eligible for bail as a matter of right, emphasizing the seriousness with which such offenses are regarded under the law.

This piece tries to argue that, firstly, the High Court erred in quashing the proceedings solely by reason of a mistaken and restrictive reading of the term ‘complaint’ as under Section 10 the PEMSR Act, without any consideration of the FIR and merits of the case. Secondly, the interpretation of ‘complaint’ under Section 10 of the PEMSR Act is erroneous and contrary to established principles of statutory interpretation. Thirdly, it failed to appreciate the cognizable nature of offences under the PEMSR Act, and hence failed to consider meaningful differences in procedure envisaged for the role of the police in such cases. Lastly, by conducting an overtly narrow and restrictive construction of the PEMSR Act, the High Court went against the legislative intent and beneficial nature of the legislation

The High Court erred in quashing the entirety of the criminal proceedings by mistakenly equating ‘complaint’ under Section 10 of the PEMSR Act and ‘complaint’ as defined under Section 2(d) of the CrPC, and without giving any cogent reasons for drawing such an equivalence. The High Court also failed to appreciate the cognizable nature of the offence punishable under the PEMSR Act, as clearly laid out under Section 22 of the Act. Section 2(c) of the CrPC clearly defines a “cognizable offence” to be one in which “a police officer may….arrest without warrant”. 

Furthermore, the Supreme Court in Neeharika Infrastructure (P) Ltd. v. State of Maharashtra observed that Section 156 “provides that any officer in charge of a police station may without the order from a Magistrate investigate any cognizable offence…”. Additionally, the Court also noted that Section 156(2) of the CrPC “declares that the proceedings of a police officer in a case of cognizable offence shall not at any stage be called in question on the ground that….he was not empowered to investigate under the provision”. Similarly, in Union of India v. Ashok Kumar Sharma & Ors, the Supreme Court specifically held that: “police have the statutory right to investigate into the circumstances of any alleged cognizable offence”. 

In the instant case, despite it being in the nature of a cognizable offence, the High Court does not make reference to any of these provisions and instead only makes a selective and mistaken reference to Section 2(d) of the CrPC which is meant to deal with non-cognizable offences. Therefore, the order of the High Court erroneously equates procedure envisaged for a non-cognizable offence with one that is of a cognizable nature. The construction of Section 10 of the PEMSR Act by the High Court is incorrect, in light of principles of statutory interpretation and previous decisions of the Supreme Court.

Section 22 of the Mines and Minerals (Development and Regulation) Act 1957 (“MMDR Act”) is similarly worded to Section 10 of the PEMSR Act, and reads: “No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing…”. The Supreme Court, in State of NCT of Delhi v. Sanjay observed that “Section 21 does not begin with a non-obstante clause”, and that the legislative intent of the provision must be ascertained by considering the “nature, its design, and the consequences which would follow from construing it the one way or the other”. The Supreme Court, in that case, went on to hold that considering “the principles of interpretation and the wordings used in Section 22…the provision is not a complete and absolute bar for taking action by the police…”. Therefore, by preliminarily quashing the proceedings in the instant case on the ground that the complaint itself should be filed before the Magistrate, the order of the High Court is contrary to established precedents by the Supreme Court. 

Interestingly a different bench of the High Court has itself in National Institute of Rock Mechanics v. Assistant Commissioner and Executive Magistrate and Others while dealing with the question of whether a complaint has to be lodged with the Executive Magistrate held that: “As there is not provision in the PEMSR Act corresponding to Section 17(3) of the 1993 Act, I find it hard to give acceptability to the submissions urged on behalf of the petitioner that the State Commission for Safai Karmacharis cannot lodge any first information report with the Police. Section 21 of the PEMSR Act only enables the Government to confer certain powers on the Executive Magistrate.” In the instant case, the High Court did not refer to its own precedent, and moreover mistakenly equated the enabling power conferred on to the Magistrate under the PEMSR Act to be a mandatory and restrictive one.

The High Court here also failed to give full meaning and effect to the object and purpose of the Act, as mandated by a catena of binding precedents of the Supreme Court. The object of the PEMSR Act, as mentioned in its preamble, is inter alia to “provide for the prohibition of employment as manual scavengers” and for “rehabilitation of manual scavengers and their families”. Furthermore, the Supreme Court explicitly held in Union of India v. Prabhakara Vijaya Kumar & Ors that: “beneficial or welfare statutes should be given a liberal and not literal or strict interpretation”. The Supreme Court also observed in the same case that “it is well settled that if the words used in a beneficial or welfare statute are capable of two constructions, the one which is more in consonance with the object of the Act and for the benefit of the person for whom the Act was made should be preferred”. Here, a more reasonable interpretation of Section 10 that is in line with the legislative intent of the PEMSR Act would be to allow for taking cognizance of complaints made either to the police or the Magistrate, subject to it being made within 3 months from the date of the occurrence of the offence. By preferring a technical interpretation which creates more barriers for victims of offences punishable under the PEMSR Act in accessing remedies, the High Court has erred to abide by well-settled and binding principles of interpretation with regard to welfare statutes.

Lastly, the High Court does not consider practical realities, and the dangerous implications of restricting the scope of filing a complaint to only the Magistrate. Most victims of manual scavenging and hazardous cleaning, or their families, have the police as the most accessible point of filing a complaint, and would not have the necessary wherewithal to seek out the Magistrate exclusively. Moreover, this also takes away the power of the police to suo moto investigate heinous offences that are punishable under the scheme of the PEMSR Act. In Hindustan Lever Ltd v. Ashok Vishnu Kate the Supreme Court held that a construction of a welfare legislation should be such that it effectuates “the purpose for which such legislation is enacted and does not efface its very purpose of prevention…”. In the instant case, the order of the High Court not only is mistaken in its interpretation of Section 10 of the PEMSR Act, but also goes against the very purpose of enacting the legislation.