Eradicating Manual Scavenging in India: A Critique of the Current Law (Part I)

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Introduction

The two-part article places a magnifying glass to analyze a historically unjust practice – that of manual scavenging. In the first part, an investigation into current laws would accompany an analysis of the ground-level situation and comparisons between the intentions of the law and their effects. Implementation of the law will be scrutinized and resources dedicated to resolving the situation will be discussed. I will focus on solutions that are feasible, both in the short-term and long-term. I will discuss the legal aspects first, taking a look at case laws and corresponding judgements, consider the visible and invisible hurdles that come in the way of implementation and lastly discuss mechanization as a silver bullet to eradicate the menace of manual scavenging.

For as long as sewage lines and systematized sanitation have been the arteries of city-states, the manual scavenger has been the doctor attending to its functioning. This profession is unfortunately not accorded the dignity that my description attempts to do. This profession is regrettably linked to the caste system in India, wherein Dalits, individuals not part of the social hierarchy, are traditionally involved in this work$^1$. This, combined with the fact that prisoners of war and marginalized women were involved in this work as well, creates a paradigm where ‘inferior’ people are meant to perform ‘degrading’ work. It is the latter concept that contributes to the perpetuation and perception of the former as true. It is hard to justify why, in particular, handling of human excreta is very low on the dignity of labor spectrum given the fact that sewage treatment and good sanitation are critical aspects of a prosperous and healthy society. Without getting into the philosophy behind it, it is important to acknowledge and deal with this perception along with exploring fewer complex solutions (which themselves will contribute to its demise).

The history of manual scavenging in India is a considerable burden on the attempt to emancipate the workers today. The societal and professional pyramid that was established several hundred years ago persists today on the ground level and this rigid belief cannot be dealt with very easily as it is a multidimensional problem. Hence, I will not be addressing it further, if only to keep this article focused on more pragmatic solutions.

The term ‘manual scavenger’ is defined as:

“a person engaged or employed, at the commencement of this Act or at any time thereafter, 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 into which the human excreta from the insanitary latrines is disposed of, or on a railway track or in such other spaces or premises, as the Central Government or a State Government may notify, before the excreta fully decomposes in such manner as may be prescribed, and the expression manual scavenging shall be construed accordingly$^2$.”

As such, it is a term exclusive to India and in due course of this article, I will be critiquing this definition. For now, it is sufficient to understand that an individual involved in the handling of non-decomposed, wet excreta is construed as a manual scavenger. The probable reason for this is that such excreta affects the health of humans adversely and requires additional consideration while handling, much of which workers may not engage in. The criteria of an ‘insanitary latrine’ is also something to be kept in mind as it is more likely to spread disease than a water-sealed one.

Apart from this, there exist other factors which contribute to the perpetuation of manual scavenging despite it being banned in 1993$^3$. These factors, varying in the degree to which they contribute to the existence of manual scavenging, are social stigmatization, lack of sanitary latrines, lack of alternative employment opportunities and lack of alternative techniques for sanitation work[ii]. For the purposes of this article, the effects and solutions of the latter three will be focused on. These factors influence different elements of the manual scavenging problem and solutions to one are very closely tied to others in both a positive and negative manner. The article hopes to establish a relationship between the absent components of the law and the ground-level issues faced by those that hope to eradicate the menace of manual scavenging. It is an analysis into the spirit of the letter and whether it translates into real change.

Engaging or employing someone in manual scavenging in India is violative of Articles 17, 21 and 23 mentioned in Part III of the Constitution of India. The articles guarantee the abolition of untouchability, the right of an individual to live a dignified life and the prohibition of forced labour respectively. Moreover, manual scavenging is a profession that must be addressed by the state under Articles 42 and 46 of the mentioned in the Constitution of India. These Directive Principles of State Policy direct the state to make provisions for securing just and humane conditions of work and for maternity relief and to promote educational and economic interests of the weaker sections of the people particularly that of the Scheduled Castes (SCs), Scheduled Tribes (STs) and other weaker sections. In more definitive terms, manual scavenging puts the life and health of many workers at risk given its unsanitary nature. Furthermore, employers often take advantage of the desperate circumstances of people, whether economic or because of their social hierarchy and coerce them into engaging into manual scavenging. These diabolical aspects of manual scavenging make it imperative that a democracy claiming to safeguard human rights tackles it on a war footing.

The Blocked Sewage Pipe of Reforms

1. The Act and Implementation

As discussed, there are several factors that contribute to the perpetuation of manual scavenging in varying degrees. In light of the nature of the work, the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 came into being and outright penalized those who employed or engaged others in manual scavenging. By 2012, it was felt that the existing law was not stringent enough and certain new provisions had to be added in order to eradicate manual scavenging. Accordingly, the Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012 was introduced in the Lok Sabha with certain salient features being rehabilitation of workers, provisions for identification and vigilance committees$^5$. During this process, the standing committee$^6$ reviewed the law and specifically made the remark that the law would be successful if the municipal, gram panchayat and other local bodies were motivated and geared to fight this battle. The lack of this motivation, in my opinion, is the root cause behind the failure to properly deal with manual scavenging. The last-mile implementation of this law has been particularly woeful due to the poor data collection by government authorities. In 2002, an estimation by the Ministry of Social Justice and Empowerment claimed that there were 79 million manual scavengers in India$^7$, a gross underestimation given the narrowly construed definition given within the Act. The Act defines the manual scavenger specifically as someone who handles non-decomposed human excreta$^8$. This excludes those who wear ‘safety gear’ or other equipment as notified by the government. As such, safety gear can be construed as even rudimentary tools like gloves or brooms which do little to nothing in reducing the risk for workers. Moreover, the definition does not take into account those who work in sewage pipelines or other closed pits. The Act does not provide a solid framework for rehabilitation, nor does it set up mechanisms by which it can be accounted for. These implementation difficulties stem from the lack of follow-up effort from municipal and Gram Panchayat bodies who simply refuse to even acknowledge the scale of the manual scavenging problem.

2. Court Judgments

The Supreme Court and various High Courts have previously taken cognizance of the issue in regard to different aspects of it. Certain judgements have been made regarding the insensitivity of the government to take note of the plight of sanitation workers$^9$, the government’s role in rehabilitation and banning of employment in this line of work$^{10}$ and the shoddy conduction of surveys$^{11}$ as well as human rights organizations rapping the government on the wrist and releasing their own set of guidelines$^{12}$. The Safai Karamchari Andolan, a frequent litigant, has previously questioned the government on their commitment to execute the actions that courts have mandated. In Safai Karamchari Andolan vs Union of India WPC No. 583, 2002, a writ petition was brought forth claiming the violation of the aforementioned fundamental rights and lackadaisical implementation of the ‘The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993’. In such case, the court emphasized the right of the families of deceased workers to receive compensation and rehabilitation.

In Chinnamma and Ors. Vs. State of Karnataka (2017), Justice Ashok Hinchigeri underlined the importance of eradicating manual scavenging by calling it a ‘constitutional obligation’ on the government and put fatal negligence by the authorities on the same pedestal as heinous crimes. ******

In Manav Garima vs State of Gujarat and Others (2019), the petitioner contended that the government must expeditiously look into the shortcomings of the present ‘The Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act 2013’. The court held the petition, emphasizing the extent of the menace of manual scavenging and underscored the importance of reviewing existing laws and the role they play in restricting bonded labor in this industry.

With the gravity of the situation in mind, it is time to consider dissecting the ground reality. On occasions, deaths have been undercounted given the aforementioned narrow definition and poor surveying capabilities. The miserable plight of safai karamcharis is not limited to their health. The wages they earn; the social stigmatization they face as well as lack of alternative employment opportunities all contribute to their unfortunate lot. The ‘Safai Karamchari Andolan’ stands as the sole organization that takes cognizance of the scale of the issue, but due to the unorganized nature of the work as well as undocumented workers, the majority of manual scavengers and sewage workers don’t come under its umbrella. The result is their marginalization, both economically and socially.

3. The Failure of the System

Figure 1: Manual Scavenger Deaths

Source: Statista Research Development

The Act lays an emphasis on the use of modern technology for the cleaning of sewers and pits$^{13}$. Eight years since then, stakeholders have been tepid at best. In November 2020, the Ministry of Housing and Urban Affairs launched the ‘Safaimitra Suraksha’ Challenge in a bid to end manual scavenging by 2021 through mechanization. It has been observed however, that this scheme has yielded minimal results due to the lack of specification on kinds of machines, who is to receive it, how they are to be used and through which process they are to be transferred to the workers on the ground level$^{14}$. As such, mechanization is an admirable initiative since it tackles manual scavenging in two ways – through the perspective of the employer, it is an effective tool to clean sewers and through the perspective of the worker, it emancipates them from a deleterious job. The merits of mechanization will be expounded upon later in this article. For now, it is worth considering the mountain of governmental regulation and vigilance that is required to make a scheme like this successful. The considerable benefit to the worker due to the progress in the construction of water-sealed latrine has been offset by the similarly bludgeoning number of insanitary latrines, the handling and maintenance of which falls on the shoulders of the same manual scavengers$^{15}$. A lack of concerted effort to create a consolidated database of latrines, manual scavengers and protective equipment has resulted in poor manifestation of words to reality. Another telling example of the systemic failure is that since 2013, not a single manual scavenger death has led to a conviction$^{16}$. FIRs are seldom filed in relation to these deaths and the large majority of them are filed only under Section 304 (death by negligence), despite the fact that the Act provides for more serious criminal charges in case of scavenger death. In order to unravel the problem effectively, it is crucial to break down the several different aspects of the problem at hand to arrive at feasible solutions, but at the same time we must identify interrelated elements and arrive at common solutions in those cases. A singular law fails to serve the purpose well; it fails the test of inclusivity in regards to its definitions and fails to be specific in terms of solutions. Instead, a sustainable long-term programme is what is necessary in order to eradicate the menace that is manual scavenging. In the next part, the article will spell out measures to tackle the problems identified.

Endnotes

Pragya Akhilesh, ‘Failing the sanitation worker again’ (New Delhi, September 21, 2020).

The Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act 2013, § 2 (1)(g), No. 25, Acts of Parliament, 2013 (India).

THE EMPLOYMENT OF MANUAL SCAVENGERS AND CONSTRUCTION OF DRY LATRINES (PROHIBITION) ACT 1993, § (3), Acts of Parliament, 1993 (India).

Rinkesh, ‘What is manual scavenging’ (Conserve Energy Future) (n.d) https://www.conserve-energy-future.com/causes-effects-solutions-manual-scavenging.php

Parliament of India, Manual Scavenger: Welfare and Rehabilitation (August 2013, not for publication) 15.

Parliamentary standing committee to review the 2013 Amendment.

Pragya Akhilesh, ‘Failing the sanitation worker again’ (New Delhi, September 21, 2020).

The Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act 2013, § 2 (1)(g) (b), No. 25, Acts of Parliament, 2013 (India).

Delhi Jal Board Vs National Campaign for Dignity & Rights of Sewerage & Allied Workers, (2011) 8 SCC 568.

A. Narayanan v. Chief Secretary, Government of Tamil Nadu, (2008) SCC Mad 858.

Safai Karamchari Andolan v. Union of India, (2014) 11 SCC 224.

National Human Rights Commission, Guidelines and Safety Codes for Operation and Maintenance of the Sewage System (2004).

The Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act 2013, § 33 (1), No. 25, Acts of Parliament, 2013 (India).

DW, ‘India launches initiative to end Manual Scavenging by 2021’ [DW] (2020) dw.com/en/india-launches-initiative-to-end-manual-scavenging-by-2021/a-55670516