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GOVERNMENT OF TAMILNADU
DIRECTORATE OF LEGAL STUDIES
INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-
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
TEAM CODE: KARUVEL
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TABLE OF CONTENTS
LIST OF ABBREVATIONS …………….……………….…….……….…………………
INDEX OF AUTHORITIES ……………………...…….…………….…………...……....
STATEMENT OF JURISDICTION …………………………….….………………….....
STATEMENT OF FACTS ………………………………………………...……................
ISSUES RAISED ………………………………………………………..…………….…...
SUMMARY OF ARGUMENTS ………………………………………..………………..
ARGUMENTS ADVANCED …………………………….……...……..…………….…..
ISSUE 1: WHETHER THE PROHIBITION OF EMPLOYMENT AS
MANUAL SCAVENGER AND THEIR REHABILITATION ACT -
IS CONSTITUTIONALLY VALID? ..............................................................
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? ..............................................
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”
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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
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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
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INTERNATIONAL INSTRUMENTS
- Universal Declaration Of Human Rights, 1948
- The Covenant On Civil And Political Rights 1966
- The Covenant On Economic, Social And Cultural Rights 1966
- The Convention On The Elimination Of All Forms Of Discrimination Against Women
BOOKS AND COMMENTARIES
- M.P. Jain, Indian Constitutional Law , (6th Ed, 2010)
- Durga Das Basu, Shorter Constitution Of India , (14th Ed, 2009)
- V.N. Shukla, Constitution of India , (12th Ed, 2016)
- R.P.Kataria and Salah Uddin, Commentary on Human Rights( 1st^ Ed,2011)
LEGAL DATABASE
- http://www.indiakanoon.com
- http://www.scconline.com
- http://www.casemine.com
- https://www.scconline.com/
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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.
The Petitioner has approached the Hon'ble Supreme Court of Yavana under Art. 32 of the Constitution of Yavana, 1950, through a Writ Petition. The Respondents humbly submit to the jurisdiction of this Hon’ble court.
SENGAI VALLEY DWELLER'S SOCIETY V. STATE POLLUTION CONTROL BOARD & ANR.
The Petitioner has approached the Hon'ble Supreme Court of Yavana under Art. 32 of the Constitution of Yavana, 1950, through a Writ Petition. The Respondents humbly submit to the jurisdiction of this Hon’ble court.
The present memorandum sets forth the Facts, Contentions and Arguments.
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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.
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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?
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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 5^1 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.]This is reiterated in the succeeding section 6^3 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
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[¶4.] Moreover the section 8^4 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) 5 that no person, local authority or any agency shall, after the date of commencement of this Act construct an insanitary latrine. Moreover, sub clause 2^6 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
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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 21^12 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
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[¶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.
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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 1^15 of UDHR states that all human beings are born free and equal in dignity and rights. The article 5^16 states that no one shall be subjected to inhuman or degrading treatment. Article 22^17 includes the right to work, an adequate standard of living and social security. Under Article 23^18 , 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) Article 22 of Universal Declaration of Human Rights, 1948 (^18) Article 23 of Universal Declaration of Human Rights, 1948
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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.
