Inaccurate application of the Prohibition of Employment as Manual Scavengers and their Rehabilitation (PEMSR) Act, 2013 means the horrible, inhuman practice continues to survive, writes Nachiketh Patil. .—.ON October 20, 2023, a two-judge Bench of the Supreme Court comprising Justice S. Ravindra Bhat and Justice Aravind Kumar, in the case of Balram Singh versus Union of India, issued various directions to the respondent, the Union government, to ensure proper implementation of statutes meant to eradicate manual scavenging in India..The judgment highlighted various issues, such as inaccuracies in surveys conducted to calculate the number of people involved in manual scavenging labour as well as the shortcomings in the implementation and functioning of institutions arising from the statutes..Despite the Supreme Court's continued push towards better execution of the provisions of the Prohibition of Employment as Manual Scavengers and their Rehabilitation (PEMSR) Act, 2013, the practice continues unabated..Consider, for example, a recent judgment and final Order dated December 14, 2023 passed by the High Court of Karnataka at Bengaluru..“Despite the Supreme Court's continued push towards better execution of the provisions of the Prohibition of Employment as Manual Scavengers and their Rehabilitation (PEMSR) Act, 2013, the practice continues unabated..In the case, a first information report (FIR) was filed against Saroja Bhairi at the Vidyanagar Police Stationfor violating Section 5 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013..During the inspection of the scene, it was found that the accused personally lowered a labourer into a manhole without safety equipment, breaching the prohibition on the engagement of manual scavengers and posing serious health risks..This petition was filed seeking to quash the proceedings registered against the petitioner for the offence punishable under Section 7 read with Section 9 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013..The single judge quashed the entire proceedings against the accused, on the sole ground that the complaint should have been filed to the magistrate and not the police, relying on Section 10 of the PEMSR Act..The court did so without providing any clear reasoning or taking into consideration relevant aspects of criminal procedure relating to offences of a cognisable nature..Also read: Supreme Court passes directions on eradication of manual scavenging.This piece tries to argue that, firstly, the court erred in quashing the entirety of the proceedings against the respondent/accused solely by reason of a mistaken and restrictive reading of the term 'complaint' as under Section 10 of 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, the judgment fails to appreciate the cognisable nature of offences under the PEMSR Act, and hence fails 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 court erred in quashing the entirety of the criminal proceedings against the respondent/accused by mistakenly equating 'complaint' under Section 10 of the PEMSR Act and 'complaint' as defined under Section 2(d) of the Code of Criminal Procedure (CrPC), and passed the Order without giving any cogent reasons for such an equivalence, hence rendering it illegal and requiring that it be set aside..“The single judge quashed the entire proceedings against the accused, on the sole ground that the complaint should have been filed to the magistrate and not the police, relying on Section 10 of the PEMSR Act..The 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 defines a "cognisable offence" to be one in which "a police officer may … arrest without warrant". Furthermore, the Supreme Court in Neeharika Infrastructure (P) Ltd. versus State of Maharashtra has observed that Section 156 of the CrPC "provides that any officer in charge of a police station may without the Order from a magistrate investigate any cognisable offence.".Also read: Years after manual scavenging was banned, it is a shame that SC has to intervene, say activists.Additionally, the court also noted that Section 156(2) of the CrPC "declares that the proceedings of a police officer in a case of cognisable 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 versus Ashok Kumar Sharma & Ors, the Supreme Court specifically held that: "Police have the statutory right to investigate into the circumstances of any alleged cognisable offence.".In the instant case, despite the offence being in the nature of a cognisable offence, the court did not make reference to any of these provisions and instead only made a selective and mistaken reference to Section 2(d) of the CrPC which is meant to deal with non-cognisable offences..Therefore, the Order of the high court erroneously equates the procedure envisaged for a non-cognisable offence with one that is of a cognisable 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 cognisance of any offence punishable under this Act or any Rules made thereunder except upon a complaint in writing.".“The interpretation of 'complaint' under Section 10 of the PEMSR Act is erroneous and contrary to established principles of statutory interpretation..The Supreme Court, in State of NCT of Delhi versus Sanjay observed that "Section 21 (of the PEMSR Act) 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 wrong in law, contrary to established precedents of the Supreme Court, and should be set aside..Also read: Ending manual scavenging: policymaking needs to innovate beyond compensation.Interestingly, the Karnataka High Court has itself held clearly in National Institute of Rock Mechanics versus Assistant Commissioner and Executive Magistrate and Others in dealing with the question of whether a complaint has to be lodged with an executive magistrate that:."As there is no 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 precedents. Moreover, it mistakenly equated the enabling power conferred on the magistrate under the PEMSR Act to be a mandatory and restrictive one..The 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 the "rehabilitation of manual scavengers and their families"..Furthermore, the Supreme Court has explicitly held in Union of India versus 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"..“The Supreme Court has explicitly held in Union of India versus Prabhakara Vijaya Kumar & Ors that "beneficial or welfare statutes should be given a liberal and not literal or strict interpretation"..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 cognisance of complaints made either to the police or the magistrate, subject to it being made within three months from the date of the occurrence of the offence..Also read: Hinduphobia Bill a smokescreen to stop anti-caste and anti-minority activism in Canada, says SADAN.By preferring a technical interpretation which creates more barriers for victims of offences punishable under the PEMSR Act in accessing remedies, the court has erred in abiding by well-settled and binding principles of interpretation with regard to welfare statutes..Lastly, the high court judgment does not take into consideration 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..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 versus Ashok Vishnu Kate the Supreme Court held that the 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.
