Manual Scavenging: When is it going to end?
“The dehumanizing practice of manual scavenging, arising from the continuing existence of insanitary latrines and a highly iniquitous caste system, persists in various parts of the country, and the existing laws have not proved adequate in eliminating the twin evils of insanitary latrines and manual scavenging”[i]
Manual Scavenging is the illegal employment where humans manually carry, dispose and/or unclog human excreta as and when required from insanitary latrines, septic tanks, and sewers. The importance of healthcare workers was universally realized owing to the impending effect of COVID-19. Additionally, people all over the world were advised to maintain personal hygiene by washing one’s hands regularly and using disinfectants and sanitizers to stay safe from coronavirus. However, hundreds and thousands of workers who we are aware and unaware of step into human excreta to keep our community safe from various diseases that can spread due to poor sanitation. While the government and several citizens condemned the acts of violence against medical professionals and vouched for their protection, it is ironic that we continue to push thousands of sanitation workers without any thought into gutters, sewers drain, septic tanks, and other filthy stores of human excreta.
This consistent attitude shown towards manual scavengers only proves that even in a global pandemic that demands cleanliness, they remain at the bottom of the government’s priorities. Is it because they are from the lowest rung of society? Or is it because their continual exploitation conforms to the societal hierarchy? Notwithstanding the answer to these pertinent questions, it is submitted that it is not only the legal duty of the Government but also the Constitutional duty of the State and its agencies under Article 17 and Article 21 to prohibit untouchability in all forms and provide everyone a right to life with human dignity. Therefore, in this article, the author intends to examine the fundamental flaw regarding manual scavenging in India and suggest key recommendations to fully implement and enforce the law per the Constitutional principles.
THE LAW AND ITS FAILURE
Before delving into the provisions of The Prohibition of Employment of Manual Scavengers and their Rehabilitation Act, 2013, it is essential to understand what our constitution states and how the law came into force. Article 14 provides for equality of all citizens and is supported by Article 15 which prohibits discrimination based on race, religion, caste, color, sex, and place of birth or any of them. Article 17 further prohibits untouchability in all forms, Article 23 seeks to end the traffic in human beings and forced labor, and ultimately, Article 21 guarantees the right to life with human dignity.
To enforce these rights and to protect the weaker sections of the society, in particular the Scheduled Castes and Scheduled Tribes from exploitation, it enacted the 1993 Act making manual scavenging illegal. However, the practice continued and troubled by the same, a writ petition was filed[ii] in the Supreme Court in 2003 to declare the practice as violative of Article 14, 17, 21 of the Constitution and the 1993 Act[iii]. Due to this effort, directions were issued by the Supreme Court[iv] and the 2013 act was enacted.
Relevant provisions and definitions from the Act: -
Section 6: Any contract, agreement or other instrument entered into or executed before the date of commencement of this Act, engaging or employing a person for manual scavenging shall, on the date of commencement of this Act, be terminated and such contract, agreement or other instruments shall be void and inoperative and no compensation shall be payable therefor.
Section 5: no person, local authority or any agency shall, after the date of commencement of this Act—
(a) construct an insanitary latrine; or
(b) engage or employ, either directly or indirectly, a manual scavenger, and every person so engaged or employed shall stand discharged immediately from any obligation, express or implied, to do manual scavenging.
Section 2(1)(d): “hazardous cleaning” by an employee, in relation to a sewer or septic tank, means its manual cleaning by such employee without the employer fulfilling his obligations to provide protective gear and other cleaning devices and ensuring observance of safety precautions, as may be prescribed or provided in any other law, for the time being in force or rules made thereunder;
Section 2(1)(g)(a): “engaged or employed” means being engaged or employed on a regular or contract basis;
Section 2(1)(g)(b): a person engaged or employed to clean excreta with the help of such devices and using such protective gear, as the Central Government may notify in this behalf, shall not be deemed to be a ‘manual scavenger’;
Now that the legal framework is clear, it is easier to understand where we are going wrong. For starters, the definitions themselves make the law fragile in is implementation. By defining hazardous cleaning as above without defining protective gear (not yet defined), makes the entire provision prohibiting employment in hazardous cleaning, a toothless provision. The employer might as well provide gloves to the manual scavengers leaving them to inhale toxic fumes and escape the rigors of the law. According to Section 5 of the Act, the engagement and employment of manual scavengers are illegal and they are required to be discharged if engaged or employed. Furthermore, the contract of employment is void, and therefore, it is not legally recognized under Section 6.
The statutory corollary of this is that they are not legally recognized making them victims of exploitation at the hands of their employers owing to their deplorable economic situation. Contrary to the ruling of the Supreme Court in Delhi Jal Board case [v] it is noticed that in several localities, private contractors and companies hire or even compel people to clean clogged up drains and sewers without any protective gear. The municipalities and other government agencies escape the check of accountability as they cannot be tied to this illegal employment and the exploitation continues. The Supreme Court itself held in the National Campaign for Dalit Human Rights v. Union of India [vi], that the poor implementation of the law results in continued denial of human rights which the law itself attempted to remedy.
VICTIMS OF THE CASTE SYSTEM: 73 YEARS AFTER INDEPENDENCE?
In this cutting-edge world, discrimination based on caste system is more than prominent across numerous communities all over the country and sometimes even under the garb of government agencies. Untouchability is entrenched into the inhuman profession of manual scavenging with the help of the caste system. The ones who are pushed into this profession are already exploited by the society they live in and once they enter the profession, they are further excluded from society. In multiple localities, the people who are the lowest of the caste hierarchy are compelled to undertake such chores for paltry wages.
However, it is submitted that while drafting the Constitution, untouchability was not defined and it continues to remain undefined. The justification for the same is very eloquently phrased by the Supreme Court in para 253 of the Sabarimala Judgement where it held that Article 17 must be construed from the perspective of its position as a powerful guarantee to preserve human dignity and against the stigmatization and exclusion of individuals and groups based on social hierarchism. “Article 17 and Articles 15(2) and 23, provide the supporting foundation for the arc of social justice. The Constitution has designedly left untouchability undefined. Any form of stigmatization which leads to social exclusion is violative of human dignity and would constitute a form of "untouchability". The prohibition of "untouchability", as part of the process of protecting the dignity and preventing stigmatization and exclusion, is the broader notion, which this Court seeks to adopt, as underlying the framework of these articles. It is painful to witness in the 21st Century how people belonging to a certain caste continue to be oppressed. Though the Constitution guarantees every human being dignity as inalienable to the existence, the indignity and social prejudices that Dalits face continue to haunt their lives. Seventy years after independence, a section of Dalits has been forced to continue with the indignity of manual scavenging”.
It took several decades after independence for the State to recognize the plight of the people who undertake the precarious activity of manual scavenging and several initiatives were adopted. Several judicial interventions have constantly elaborated that manual scavenging is an evil that should be prohibited at all costs. However, contemporarily, in this global pandemic when everyone’s health is of the utmost importance, the manual scavengers are the most vulnerable on the health, social as well as economic fronts. On one side, if they continue to do their job, their health is at a bigger risk than ever and on the other hand, if they do not, the livelihood and revenue of their families are at stake. Keeping their situation in mind, a petition was filed in the Supreme Court on April 9 and subsequently disposed of hearing the Solicitor General orally state that WHO guidelines were followed. How can one claim that any safety guidelines are followed when a man enters a sewer without significant protective gear only to inhale toxic fumes?
Although the Judiciary has been proactive regarding the rights of sanitation workers, it is submitted that the PILs filed regarding migrant workers, farmers, and sanitation workers were disposed of without giving any significant directions to the government for nearly 3 months. The court is to be reminded that such PILs exist where there has been an element of a violation of article 21 or human rights or where the litigation has been initiated for the benefit of the poor and the underprivileged who are unable to come to the court due to some disadvantage.[vii]. Justice Deepak Gupta (former judge, Supreme Court) said in his retirement speech ‘Our laws and our legal system are geared in favor of the rich and powerful' [viii]. Therefore, it is submitted that the government’s hypocrisy ought to come to an end. These oppressed groups do not have opportunities to uplift themselves and stay where they are, trying to feed their families without any regard to the illegality of it all.
WHAT CAN BE DONE?
Firstly, to eliminate the need for manual scavenging, we need to invest in technology and infrastructure that leaves no room for the manual handling of excreta. For example, we need to procure technological innovations like the Bandicoot [ix], a robot that mimics all the actions of a manual scavenger and potentially ends the menace of manual scavenging once and for all.
Secondly, the government’s hypocrisy needs to come to an end. The Railways itself contributes to a large number of manual scavengers in the country. Moreover, the municipalities and local bodies often employ manual scavengers at abysmal rates and often, get away without any punishment. If the government intends to end this practice, it needs to lead from the front by holding anyone involved in engaging or employing these manual scavengers accountable and punishing them strictly per the law.
Thirdly, if the problem can only be resolved in certain manholes or septic tanks only if manual scavenging is resorted to, then, the local bodies must provide fully equipped protective gear which prevents them from inhaling any toxic fumes as well as prevent their skin from directly coming in contact with the filth in store.
Fourthly, as a community, we have been vocal about protecting the health and rights of the doctors amidst the global pandemic. However, it is submitted that manual scavengers have sacrificed their lives and health repeatedly for us[x] to live in our society without worrying about illnesses like dysentery, diarrhea, typhoid, etc. It is the need of the hour for us to contribute to ending this evil once and for all. If we spot any manual scavenger entering a manhole without any protective gear, we must report it to the local body or municipality.
The power of social media in this contemporary era is such that, any crime or injustice that you have witnessed and/or experienced can reach people whose duty is to prevent it from happening or making sure the guilty are punished as the case may be. Therefore, if we continue to choose to be selective in our outrage regarding healthcare workers, we are as hypocritic as the State functionaries employing these manual scavengers.
Though Article 17 of the Constitution prohibits untouchability, we need to contemplate whether untouchability has vanished? Untouchability though intended to be abolished has not vanished in the last 73 years. The plight of untouchables is that they are still denied various civil rights; the condition is worse in the villages, remote areas where fruits of development have not percolated down and our laws do not hold meaning. So far, we have not been able to provide the modern methods of scavenging due to a lack of resources and proper planning and apathy [xi].
The Supreme Court held on the plight of manual scavengers, “Whether he can shake hands with a person of higher class on equal footing? Whether we have been able to reach that level of psyche and human dignity and able to remove discrimination based upon caste? Whether a false guise of cleanliness can rescue the situation, how such condition prevails and has not vanished, are we not responsible? The answer can only be found by soul searching. However, one thing is sure that we have not been able to eradicate untouchability in a real sense as envisaged and we have not been able to provide downtrodden class the fundamental civil rights and amenities, frugal comforts of life which make life worth living”[xii].
[i] Preamble, The Prohibition of Employment of Manual Scavengers and their Rehabilitation Act, 2013.
[ii] Safai Karmachari Andolan and Ors v. Union of India And Ors, (2011) 11 SCC 224.
[iii] The Employment of Manual Scavengers and Construction of Dry Latrines Act, 1993.
[vi] National Campaign for Dalit Human Rights v. Union of India, (2017) 2 SCC 432.
[vii] AIR 2009 SC 350.
[xi] AIR 2019 SC 4917.
ABOUT THE AUTHOR
This blog has been authored by Saikishan Rathore who is a 2nd Year B.S.W., LL.B. (Hons.) student at Gujarat National Law University, Gandhinagar.
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