By: Yuman Ul Islam & Govinda Asawa *|
Introduction and Brief Legal History
This year India marked 75 years of its independence but manual scavenging still persists as a blot on our collective conscience that doesn’t seem to disappear. The evil of manual scavenging was first banned a long time ago in the Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 (hereinafter ‘first act’) but still in 2021 we haven’t been able to eradicate this ‘evil’ completely. According to the NGO Safai Karamchari Andolan which works towards the eradication of manual scavenging, India still has around 2.6 million dry toilets which have to be cleaned by no other than manual scavengers.
The very first attempt to address the problem of manual scavenging was made in the form of Part III of the Constitution of India that came into force in 1950. Article 14 ensured that every citizen would be treated equally and would be afforded equal protection of the laws. Article 15 introduced the promise that a person’s caste would not prevent him/her from the use of public spaces and other public resources. Along with that Article 17 abolished untouchability. Then in 1955 the Protection of Civil Rights Act had also mentioned the eradication of scavenging. This was followed by the Malkani Committee (1957) and Pandya Committee (1968) that introduced guidelines for rehabilitation and welfare of manual scavengers. Subsequently, in 1989, the Sub-Committee of the Taskforce established under the aegis of the Planning Commission had estimated that there were 72,050 million dry latrines in the country and that very year the Centrally Sponsored Scheme of Low-Cost Sanitation for Liberation of Scavengers (ILCS) was launched. The ILCS primarily worked towards converting dry latrines into pit latrines.
In 1993 a dedicated law was enacted to eradicate manual scavenging. This act mostly dealt with the menace of dry latrines and aimed to put a stop on the activity of carrying human excreta manually. This act was supplemented by the Prohibition of Employment as Manual Scavengers and Rehabilitation Act, 2013(hereinafter ‘second act’). The second act had brought under its ambit sewers and septic tanks as well. The entire issue of manual scavenging shot into prominence again when in September 2020 the central government announced another amendment to the 2013 Act in the form of The Prohibition of Employment as Manual Scavengers and their Rehabilitation (Amendment) Bill, 2020.
Acts and Loopholes
The dilemma of definition
The second Act defines manual scavengers in section 2(g). It states that a manual scavenger is someone who is employed by a person or local authority for manually handling, carrying, and disposing of human excreta.
The definition per se is not problematic but it’s the explanation attached to the definition that invalidates the entire definition. The explanation further adds that a person engaged or employed to clean excreta with the help of ‘protective gear’ or other such devices as may be notified by the Central Government is not be considered as a ‘manual scavenger’. This explanation defeats the entire purpose of the act because as the Preamble of the act reads that the purpose is to ‘correct the historical injustice and indignity suffered’; the explanation instead of prohibiting manual scavenging promotes it by keeping the definition contingent on the use of ‘protective gear’. Moreover, the definition fails to take into account other sanitation workers such as toilet cleaning staff employed in private and domestic places or bio-medical waste handlers.
The failed objective of rehabilitation
The main objective of the 2013 Act was the rehabilitation of manual scavengers. Section 13 of the Act specifically talks about the rehabilitation of persons identified by the list prepared after a survey by the municipalities. The Hon’ble Supreme Court in the case of Safai Karamchari Andolan v. Union of India[i] had issued directions to the authorities to “identify the families of all persons who have died in sewerage work (manholes, septic tanks) since 1993 and award compensation of Rs. 10 lakh for each death to the family members depending on them.”
Leave alone the compensation, the survey that is expected to be carried out under section 11 of the act hasn’t been fulfilled yet. It is to be noted that in a recent judgement, the Karnataka High Court in the case of Council of Trade Union v. Union of India[ii] had come down heavily on authorities for not implementing many of the provisions of the second act. Thereby the court had directed the State Government to submit a report on whether a survey of manual scavengers had been conducted and whether a final list had been published. Besides the loopholes in the legal provisions, the plight of manual scavengers is exacerbated manifold because of the role of caste. In sum manual scavengers are treated differently just because they are ‘manual scavengers.’ Let’s analyse how social issues play an instrumental role in making the life of manual scavengers miserable.
The Social Angle
Central to this horror of manual scavenging is the casteist structure of the Indian society. It is a fact that almost all the people, women & men, involved in this evil practice are Dalits. They are usually from caste groups traditionally relegated to the bottom of the caste hierarchy and confined to livelihood tasks viewed as deplorable or deemed too menial by the upper caste groups. This caste-designated work reinforces the social stigma that they are unclean or ‘untouchable’ & this perpetuates widespread discrimination. A survey of 5827 households (25,082 persons) engaged in manual scavenging conducted by the Ahmadabad based Civil Rights Group called Janvikas showed that 149 families belonged to OBCs & Minority communities (Muslim), 389 families belonged to Scheduled Tribes(STs) & an overwhelming majority, 5289 families belonged to the Scheduled Castes (SCs).
Adding fuel to this caste-based crisis is the gender inequality associated with it. It is a less-known fact that of the 1.2 million Indians affected by this practice, 95% to 98% are women. Many households with dry latrines employ women to clean the excreta as they are located inside the house, and men are called upon to do the more physically demanding work of cleaning sewers & septic tanks. There is also a large amount of income disparity as women are paid as little as Rs.10 to Rs.20 a month for cleaning dry toilets, in contrast to this men are paid up to Rs.300 a day for cleaning sewer lines. As these women belong to very poor & marginalized communities where even food security is a serious challenge, they are forced to continue this practice because their households have very few other options for livelihoods.[iii] On the other hand, the women who leave this occupation are stigmatized & are prohibited from village functions, religious ceremonies, and are kept at a distance. In addition to this, the children of manual scavengers also encounter discrimination in schools from both teachers & classmates, which results in high dropout rates. Many times it is seen that these children are made to sit at the corner of the classroom & are even beaten for touching the utensils belonging to the upper caste children.
Apart from the financial troubles, the damage to their physical health is irreparable. Scavenging exposes individuals to noxious gases impairing their gastrointestinal, musculoskeletal, respiratory, cardiovascular, and reproductive organs. The average life expectancy of a sanitation worker is less than 50 years. Men who clean sewage drains and septic tanks die before they reach 40 – an analysis of such deaths in 2017-18 showed that the average age of a sanitation worker was 32 years. The cause of death is predominantly occupational like asphyxiation in a septic tank, drowning in sewage, TB, cholera, meningitis, and various cancers. Most of the people don’t have any health or life insurance. Alcoholism is also very rampant among the men; it makes them unconscious to the odour of the sewage drain & drives them to clean it.
Conclusion
The continued existence of manual scavenging is a systemic failure and reflects the incompetence of our society to eradicate a social evil that has existed for decades. The Prohibition of Employment as Manual Scavengers and their Rehabilitation (Amendment) Bill, 2020 recently announced again fails to address the root of the entire issue and only comes in the form of stricter punishments and penal provisions than the 2013 act. The entire issue of manual scavenging needs to be analysed again with a fresh perspective. The entire caste angle needs to be taken into account. The government needs to come up with solutions so people in general, can start disassociating manual scavenging as something that needs to be performed by people from a particular section of society. The Government can set up a National Commission for Manual Scavengers on the ideals of National Commissions for Backward Classes, Scheduled Castes, and Scheduled Tribes. This will ensure specific offences against manual scavengers are taken cognizance of and they are not deprived of due justice.
Most of the local bodies outsource sewer cleaning tasks to private contractors which are often fly by night operators and they don’t maintain a proper record of the sanitation workers employed and who die under their employment. There should be a Vigilance Officer appointed by the government in every district to ensure that the contractors adhere to the protocols and also that necessary safety equipments are provided to anyone engaging in the work of manual scavenging.
Mechanization of sewer and drain cleaning was first recommended in 1956 by the Kaka Kalelkar Commission. It’s a shame that on one side billion-dollar unicorn companies are investing in India to make everything digital while on the other hand, sewers are still being cleaned manually. There is a long list of protective gears mandated by the government; however, implementation is scarce. It is urgently required that policymakers promote investment and research in this area. The sewage system gets clogged because they are not able to handle large amounts of sludge in the first place. Modern and innovative engineering techniques need to be applied to overhaul the sewage system pan country. Vienna and Beijing can be looked up to for a solution as both these countries have been successful in almost total mechanization of the process.
The Constitution of India entitles everyone to a life of respect and dignity. It’s high time we start following this ideal in reality.
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*The authors are students of Gujarat National Law University, Gandhinagar.
[i] Safai Karamchari Andolan v. Union Of India, (2014) 11 SCC 224.
[ii] All India Council of Trade Unions v. Union of India, 2020 SCC OnLine Kar 2420.
[iii] Womens UN Report Network, Socio Economic Status of Women Manual Scavengers: Baseline Study Report, 2014, Women’s UN Report Network (July 21, 2014), https://wunrn.com/2014/07/india-socio-economic-status-of-women-manual-scavengers-study/.