Manual Scavenging: Practise outlawed on paper, yet persistent
Author: Malvika Aggarwal
Co-Author: Jatin Lalit Singh
School of Law, Galgotias University.
ISSN: 2581-8465
ABSTRACT
In India, the manual scavengers have been treated as the most despicable weight of the society since ancient times because they belong to the poorest and most disadvantageous communities in all the societies. The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 make it illegal to employ a manual scavenger. The paper aims to identify the lacunas in our legal and cultural framework which acts as a hinder to the abolition of these practices. The research methodology adopted in this paper is based upon the analysis of legislative and judicial efforts on the prevention of manual scavenging practices incorporated with the technical interventions. The paper deals with the critical analysis of efforts of legislative enactments in order to abolish this inhuman practice. The paper further demonstrates several issues and challenges for the abolition of this practice. The principal area of the research extensively expounds how this practice is still being followed and it subsequently discusses the Indian court’s ruling. Concluding part of the paper suggests certain remedial measures and progressive steps to eradicate this practice completely.
“I may not be born again but if it happens, I will like to be born into a family of scavengers, so that I may relieve them of the inhuman, unhealthy, and hateful practice of carrying night soil.”
-Mahatma Gandhi
INTRODUCTION
Even after years of the struggle faced by the manual scavengers, the practice of manual scavenging still continues without a check-in many parts of India. The legislature has passed many stringent laws over a period of time to make a stop on this practice but there has been no effect on it. It is a shame that such practice still continues and India and that we have failed to eradicate the most dangerous and degrading practice for a human being. The Constitution of India prohibits untouchability in the country, but it is still practiced in many parts of the country. This practice goes way back in time and has strings attached to discrimination and practice of untouchability.
The manual scavengers do the work of manually cleaning the human excreta, cleaning the drains by entering deep drains and gutters without wearing safety gear and necessary equipment because no proper gears are provided to them. The work is so risky that it can even cause sudden death of a person because of the number of dangerous gases(contain methane, hydrogen sulfide (H2S), carbon dioxide, sulfur dioxide, ammonia, nitrogen dioxide and traces of carbon monoxide) inside the sewers and septic tanks. There has been an increase in the number of deaths of manual scavengers while working under these horrifying conditions. There is an alarming rate of increase in the number of deaths in 2019, and it is around 62% more deaths as compared to 2018. Around 110 workers died while cleaning the septic tank in 2019. As per the National Survey conducted in 18 states, there are 48,345 workers working as manual scavenging. Only in the state of Uttar Pradesh, there are 29,923 workers which is much more than half of the total number of workers in India. [1]
There is a practice that people from the same family continue to work as manual scavengers from generations because the families do not get equal and proper opportunities to study and to move forward to make a future in other professions. The thinking among the workers is that this is their job to do and it has all the connection to the caste system which was followed in India. Indian society is divided into castes and it a curse to the people who are not privileged enough to wake up in the dawn of freedom. In the Indian society, the work was distributed according to the case to the person and manual scavenging is worst and a gruesome work. The people think they have to do the work because of the caste they belong to and who else will clean the drains, sewers and septic tanks if they won’t. Women, who traditionally worked as manual scavengers, still collect human waste from different latrines on a daily basis. Manual scavenging is a human rights violation as much as it is a statutory violation.
The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013[2] defines Manual Scavenger as,
“a person engaged or employed, at the commencement of this Act or at any time thereafter, by an individual or 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 decompose in such manner as may be prescribed…”
The Asian Human Rights Commission[3] provides a detailed and complete definition of the term ‘Manual Scavenging’. It says,
“Manual scavenging in India is officially defined as ‘lifting and removal of human excreta manually’, at private homes and toilets maintained by municipal authorities. The practice consists of gathering human excreta from individual or community dry latrines with bare hands, brooms or metal scrapers into woven baskets or buckets. This the scavengers then carry on their heads, shoulders or against their hips, (and in wheelbarrows if they can afford it) into dumping sites or water bodies. Apart from this, many scavengers are similarly employed to collect, carry and dispose excreta from sewers, septic tanks, drains and railway tracks.”
In India, the scavengers have been treated as the most despicable weight of the society since ancient times because they belong to the poorest and most disadvantageous communities in all the societies. Manual Scavenging is a practice that has painted an ineffaceable smear on the urban faces because it’s being more than sixty-eight years of adoption of the world’s lengthiest Constitution but still failed to abolish the practices across India. Under the preamble of the Constitution, major principles have been highlighted like equality, fraternity, freedom and many more which clarify the image that India has completely adopted the world of democracy. But if we practically examine these points we will find that it has failed in the proper enforcement of these principles and articles. Even the spirit of Article 17 of the Constitution which deals with the non-discrimination on any point has just remained confined to the paper only but not practically adopted.
Seventy years have passed since India has adopted the Indian Constitution which has incorporated the provisions of equality of status and opportunity, liberty of thought, expression, belief, faith and worship under the preamble of its constitution. Being the world’s largest democracy, India from its journey from an under-developed country to achieving the status of the developed nation has progressed drastically and has made its own vibrant place in this global world in terms of technology, culture and preserving its traditions and at the same time failed miserably to eradicate the most inhuman practice of manual scavenging and therefore failed to accomplish the concept of “Equality of Status” as enshrined in the preamble of Constitution of India.
If we look into Indian history and attempt to comprehend the motivation behind Independence, we would become more acquainted with the exact reason that freedom was not only from the Britishers but also from inequality, sickness, poverty, and illiteracy, and every citizen was to provide a dignified life. The same view was adopted by the lawmakers in 1976 and which added the two new words “socialism” and “fraternity” in the Constitution through 42nd amendment and which the apex court through the landmark judgments had upheld with an interpretation of the legislature intentions behind introducing ‘socialism’[4] and ‘fraternity’[5].
There is a number of anti-discrimination reliefs that have been guaranteed under the Indian law for the welfare and safety measures of manual scavengers and these are already implemented and enforced but not in a proper way as these communities do not completely enjoy the basic or the fundamental rights guaranteed under Constitution[6]. There are various provisions in the Constitution of India, which prohibits the practice of manual scavenging. Constitution of India outlaw all the practices pertaining to the caste system and untouchability. Under Part IV of the Constitution of India, Article 46 provides for the state to protect the weaker sections from all kinds of discrimination, specifically, the Scheduled Castes and the Scheduled Tribes, from social injustice and all forms of exploitation.
The practice of manual scavenging involves direct lifting of human excreta which has direct health hazards and causes various diseases like respiratory problems, skin-related issues, and most dangerous carbon monoxide poisoning.[7]
LEGISLATIVE EFFORTS FOR ABOLISHMENT OF MANUAL SCAVENGING
There have been many statutory enactments for the protection of rights and upliftment of the scheduled class. Some of the major enactments are as follow,
- The Protection of Civil Rights Act, 1955[8]
The Untouchability (Offences) Act 1955 was passed by the Parliament to provide punishment to the people practicing untouchability, and enforcement of any disability arising out of untouchability. After the recommendations of the Shri L.Elayaperumal Committee, the parliament made amendments in the act and renamed it as Protection of Civil Rights Act, 1955. The act was passed to prescribe punishment for following and encouraging the practice of Untouchability. The practice of untouchability was made cognizable and non-compoundable offence and stricter punishment was provided to the offenders.
- The Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989[9]
The act came into force on January 31, 1990. Among the other things, the act specifies the acts which are considered as atrocities and the act also imposes stricter penalties for the guilty. The act sets up special courts for speedy trial of such cases. The objective to bring this act is to deliver justice to the SC/ST communities through affirmative action so that they can live in the society with dignity, self-esteem, and the fear that they will be suppressed by the dominant class. With a recent amendment of 2016[10], the Act prohibits the employment of any person belonging to the SC/SCT community to work as a manual scavenger. Imprisonment for a term not less than six months and which may exceed five years is awarded if the provision is contravened.
- Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993[11]
The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 was drafted under the Narasimha Rao government.
The act provides punishment if any person is employed for manual scavenging, construction of dry latrines, and for the regulation of construction and maintenance of water sealed latrines and matters connected therewith. The punishment provided under the act is imprisonment for up to one year which may be accompanied by a 2,000 Rupees fine. For around 20 years no person was convicted under the act even though the practice of manual scavenging was still prevalent. Therefore, there was a need for more stringent law which can help in eradicating this horrific practice of Manual Scavenging.
This act was replaced by a new act known asThe Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013[12]. The new act was passed to prohibit the employment of manual scavengers to clean insanitary latrines, clean sewers, and septic tanks without providing them with safety gear, and to construct insanitary latrines. All these activities are offence under the act. The act also lays down the rules related to the rehabilitation of these workers and giving them training so that they can start working in any other profession. The act provides financial help to the manual scavengers and scholarship schemes for their children so that they can improve their living.
- National Commission for Safai Karamcharis Act, 1993[13]
The Act was passed to promote and safeguard the interest of Safai Karamcharis. It is welfare legislation that was passed for the welfare of the people who are involved in cleaning and plumbing in different departments. The act constitutes a statutory body called as National Commission for Safai Karamcharis. The commission is an autonomous body that functions to monitor, evaluate, and study different schemes implemented for the Safai Karamcharis. The commission also hears the grievances of the Safai Karamcharis and provides redressal to them.
The commission also has to give measures for the social and economic upliftment of Safai Karamcharis and takes decisions, provide guidelines and instructions, to help to fight the hardships faced by the Safai Karamcharis. The National Commission for Safai Karamcharis has the responsibility to monitor the implementation, enquiring into the contraventions and non-implementation of the PEMSR Act, 2013 as according to section 31 of the 2013 Act.
National commission for schedule caste (NCSC)
By the 89th amendment is the Constitution of India, in 2003 National commission for scheduled caste (NCSC) [14]was established. The first commission was constituted in 2004 under the chairmanship of Suraj Bhan. It is a constitutional body which was established with a view to providing safeguards to the Scheduled Castes against the atrocities and exploitation faced by them. It promotes and protects their social, educational, economic and cultural interests.
Article 338 (5) of the Constitution of India, lays down certain duties, that have to be fulfilled by the NCSC[15]. The commission has to investigate and monitor all cases which relate to the safeguard of the interest of scheduled caste and then evaluate the working of such safeguards. The commission then has to inquire into complaints made when the scheduled castes are deprived of their rights. They advise on the planning of socio-economic development of the scheduled and make recommendations to take measures for the effective implementation of the safeguard of rights of scheduled caste and for their protection, welfare, and socio-economic development.
ISSUES AND CHALLENGES IN ABOLITIONS
India is a signatory to the Convention for Elimination of all Forms of Discrimination against Women, Convention on Elimination of Racial Discrimination and the Universal Declaration of Human Rights, which tries to ensure a standard human life for people belonging to different backgrounds. Yet at the same time, the working state of the sterile laborers has remained for all intents and purposes unaltered for decades. Utilizing just a broom and a little steel plate, the clean specialist’s unmistakable defecation from open and private toilets onto bushels or different holders, which they at that point carry on their heads to the dumping grounds or the transfer locales. A couple, be that as it may, are furnished with pushcarts or trucks by the metropolitan authorities. Due to the lack of employment and job opportunity, the manual scavengers are forced to choose to scavenge practices for livelihood. According to the Human Rights Watch 2014, the women stated that whenever they sought to leave the manual scavenging practices they have to face threat from their households and when they complain before the local authorities, they do not take interest to intervene[16]. It has been practically noted that those who practice manual scavenging are not permitted to access the communal water, public places of worship and even they are restricted from purchasing goods and services. There are a number of legislations for protection of such kind of untouchability but all have failed. Even the children of manual scavengers face discrimination in school by the other students as well as teachers too. The women who sought to leave this profession are either threatened or beaten by their householder for continuing this practice. Lack of availability of administrative as well as society support they are forced to continue this practice. The number of reports published by various NGOs determines that many women have to suffer from violence whenever they refuse to continue the manual scavenging practice. Even the scavengers who are employed by Panchayats to clean the toilets, etc., have to face exploitation as some Panchayats delay or deny wages and if they still put a demand or protest they are threatened to be withdrawn from the housing. Due to violence, threats, discrimination, manual scavengers require sufficient legal assistance in accessing the criminal justice system. In urban areas, the local authorities do not take interest in intervening with their problem and they let them suffer from such criminal miss happening. In the rural areas, the cases are worst as the victims who are poor and without legal assistance, the police officers do not register and investigate the complaints because they are not able to pay them bribe and their other demands which they typically ask. Even the police authorities do not enlist the cases under the SC and ST (Prevention of Atrocities) Act, which protect the people from practicing manual scavenging. It is the duty of the state or can say that state is bound to protect the manual scavengers from all the criminal as well as civil miss-happenings and provide them fair, full and free legal assistance.
CONCLUSION
Living in the 21st century where day to day new technological advancements take place, and still not able to eradicate the practice of manual scavenging in India. There are many Human Right advocates who make people aware off their human rights and fight for them, but we have a long way to go to provide these workers their right so that they can continue to live with dignity. The conditions in which these workers work are inhumane and no human being should be compelled or allowed to do such work. It is very hurtful to even think that manual scavengers have to clean human excreta from dry latrines; they have to put their lives at to clean sewers, septic tanks, gutters so that we can live in a clean environment because if they stop working now, the next day will be havoc in the country. Various legislations have been passed, budget is allocated, economic assistance and welfare provisions for the manual scavengers have been put up but still, there is no end to their problems and conditions. The condition of manual scavengers brings many questions that need to be answered. The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 make it illegal to employ a manual scavenger, then why there are so many manual scavengers working under the watch of the government? Why no strict action is taken to provide a better livelihood to these workers? Why there are so many deaths of workers while cleaning the tanks and sewers? Why the workers are not provided with necessary gears while cleaning the latrines, sewers and septic tanks? Why the mechanized system to clean the sewers is not used? And why human intervention to do this work is still required? There is an urgent need to take actions which are not just to provide one time benefits to these workers and then continue to treat them the same, but to bring in measures which are for the benefit for the whole community by which they can improve their lifestyle and start a new job.
[1] India’s manual scavenging problem, The Hindu Net Desk, (Feb 16, 2020, 11:59 A.M., https://www.thehindu.com/news/national/indias-manual-scavenging-problem/article30834545.ece.
[2] Section 2(g), The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013, No. 25, Acts of Parliament, 2013 (India).
[3] Caste based discrimination – the continuing curse of manual scavenging, Asian Human Rights commission, AHRC-SPR-003-2009.
[4] D.S.Nakara v. Union of India, AIR 1983 SC 130.
[5] Indra Sawhney v. Union of India, AIR 2000 SC 498.
[6] Sarita Bhoi, Dignity and Rights of the Sewerage and Allied workers, Human Rights Law Network, 4, 5 (2011)
[7]Tiwari, R.R., Occupational health hazards in sewage and sanitary workers, Indian Journal of Occupational and Environmental Medicine, 12(3): 112–115 (2008).
[8]The Protection of Civil Rights (PCR) Act, 1955, No. 22 , Acts of Parliament, 1955 (India).
[9]The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, No. 33, Acts of Parliament , 1989 (India).
[10] Section 4(j) and Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
[11] Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, No. 46, Acts of Parliament, 1993 (India).
[12] The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 , No. 25, Acts of Parliament, 2013 (India).
[13] National Commission for Safai Karamcharis Act, 1993, No. 64, Acts of Parliament, 1993 (India).
[14] Constitution (Eighty-Ninth Amendment) Act, 2003.
[15]India Const. Art. 338, clause (5) a-h.
[16]Cleaning Human Waste-Manual Scavenging caste and discrimination in India, ISBN: 978-1-62313-1838 Human Right Watch, 3 (2014)https://www.hrw.org/sites/default/files/reports/india0814_ForUpload.pdf , last seen on 19/11/2019.