MANUAL SCAVENGING: NOTHING BUT A FILTHY SLUDGE

Reading time : 10 minutes

INTRODUCTION

After 74 years of Independence, we can say that one of modern India’s greatest humiliations is the massive failure and the lack of intent to remove the practice of ‘manual scavenging’, the worst surviving symbol of untouchability. The International Labour Organization (ILO) has defined this practice as the “removal of human feces from streets and dry latrines, and cleaning of septic tanks severs and gutters”.[1] This practice is prevalent in many parts of the world but it has marked a prominent presence in India.[2] Recently, in March 2021, Member of Parliament (MP) Jaya Bachchan highlighted the degrading plight of manual scavengers in the country and stressed that it is high time for the Centre to address this issue.[3] This issue was raised as the Minister of State for Social Justice and Empowerment stated in the Parliament that there was no plan to amend the law prohibiting the act of manual scavenging, just six months after the government had proposed a bill to fill the gaps in the previous laws.[4] The act of manual scavenging is performed by people belonging to a community in India called the “untouchables” though the practice of untouchability had been abolished way back in the 1950s. These people belong to the marginalized sections of society and are unable to afford education so that they could enforce their rights. With the second wave of Covid-19 hitting our country, these people are among frontline soldiers who risk their lives by stepping into human excreta to maintain cleanliness and hygiene and prevent the spread of diseases often, without any protective gear. While the citizens of our country strongly condemned the acts of violence against medical professionals, it is upsetting to see that the same treatment cannot be meted out by them towards such sanitation workers.  This paper aims to highlight why India cannot get rid of the practice of manual scavenging. In a nutshell, the paper would discuss the dismal failures of the laws in place, the problems faced by manual scavengers, and how the rights granted by the constitution to them are being violated. This paper would also further the argument that the deaths of the manual scavengers are “institutionalized murder” by analyzing the rising number of their deaths and lastly, suggest some remedial measures and progressive initiatives for uprooting this issue from our country.

OUTLAWED, BUT WITH LIMITED IMPACT

The Government of India had passed the act called “Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act (EMSDCL)”[5] in the year 1993 as the first step towards removing this inhuman and filthy practice and again tried to outlaw this practice by introducing the PEMSR Act in 2013.[6] The first act forbids the employment of manual scavengers to clean dry latrines i.e. latrines that do not operate with a flush. The 2013 act was an expansion of the scope of its preceding act in a strict sense and it also acknowledged that there was a need for rehabilitating manual scavengers. Section 5 of the Act[7] renders the engagement and employment of manual scavengers illegal and if they are, then they are required to be discharged. Furthermore, Section 6[8] does not legally recognize the contract of employment and states that it would be void.

 Back in September 2020, the Narendra Modi Government had announced a new (amendment) bill to make laws stringent regarding manual scavenging as a part of routine policy revisions.[9] This draft law is yet to get a green signal from the cabinet.[10] Among other changes, it proposes to completely mechanize the process of cleaning sewers and septic tanks. However, if we introspect, we will find that introducing a third legislative bill is in itself a piece of strong evidence that the previous acts went in vain. The major difference between the 1993 and 2013 legislations is that the earlier act was from a sanitation perspective[11] and it banned the construction of dry latrines. It nowhere talked about the liability of the state. However, the 2013 legislation was enacted to address the problems which emerged after the first act and it aimed to restore human dignity and rehabilitation of the manual scavengers. Several people have pointed out that the 2013 act had several loopholes. It lacked teeth and clarity regarding concrete measures of rehabilitation and accountability of the authorities who would be engaged in supervising these measures. One of the main drawbacks of this legislation is it gives a very broad definition of the term ‘manual scavenger’. Section 2 (g)[12]of the PEMSR Act, defines that only when a person is employed by any other person or any other authority for manual cleaning, for disposing of the human excreta in an insanitary latrine or open drain or a pit, is a manual scavenger under this Act. This definition is merely exclusive and not an inclusive one as it excludes the people who are working with the protective gear or thousands of sweepers and workers who have to handle human excreta while performing their jobs. The sole reason for such non-inclusion is to limit the people who would be entitled to the rehabilitation schemes.

The draft bill that was introduced in September last year also continued with the grave errors of its predecessors, and the key issues with it are that It failed to recognize the manual scavengers, and neither the Centre nor the states are directed to provide financial assistance for the conversion of insanitary latrines thus adversely jeopardizing implementation of the Bill.[13] However, in March 2021, the government said that it has no plans of amending the 2013 act because the bill aimed to completely mechanize the process of cleaning septic tanks, and Section 33[14] of the 2013 Act already makes it “the duty of every local authority and other agency to use appropriate technology appliances for cleaning of sewers, septic tanks, etc.

OVERLOOKING THE PROBLEM

Mahatma Gandhi had once said that if he were to be born again, he would like to be born in a family of scavengers so that he could try to set them free from this inhuman and hateful practice.[15] Since Independence, our country has made many technological advancements in the way of human development but it failed to eradicate ‘manual scavenging’ from its root. The conditions of the scavengers remain deplorable to date as there are many reasons why India cannot get rid of this practice. According to the India Census 2011, there are more than 2.6 million dry latrines in the country[16] which suggests that human excreta has to be cleaned manually.

The occupation of manual scavenging is based on the hierarchical caste system continuing for ages in our country. It is an indisputable fact that almost every manual scavenger is a person from the Dalit community who forms the lowest rung of society. Due to this caste, this work is enforced on them without giving them a choice. They live segregated from the mainstream societies, often in places where the fruits of infrastructural development have not percolated down. They suffer from a lack of basic amenities, education, etc. A Report of Rashtriya Garima Abhiyanstates that 95-98% of the total population of manual scavengers in the country are women[17], and it can be said that these female scavengers suffer double exploitation which is furthered by their “gender”. As compared to their male counterparts, female workers are subjected to lower wages, violence, and sometimes even sexual favors.

The work of manual scavengers is heavily unregulated and unorganized. Sometimes they are employed by contractors who make them work according to their whims and most often than not, do not provide them with protective gear. Even if the scavengers try to leave this occupation then they are threatened with eviction from the community and denied access to resources, and their complaints are refused to be registered due to bias by police and local authorities.  The SC & ST Act, 1989[18] was enacted to prevent atrocities against the members of the scheduled castes and the scheduled tribes, and in 2015 this act was amended further to strengthen it concerning manual scavengers.

The average life expectancy of a manual scavenger is very low i.e. less than 50 years.[19] This is because due to their occupation they have to deal with human excreta on a regular basis which exposes them to a lot of risks. According to the official data on manual scavenger deaths, about 920 people have died between January 1993 and 2010 while cleaning sewers and septic tanks in India, and the state of Tamil Nadu had the highest number of sewer deaths.[20] The majority of these people suffer from various chronic ailments and annually approximately 600 underground drainage and septic tank cleaners die prematurely or from asphyxiation.[21]  These are some of the problems faced by the scavenger community and the factors like caste biases, fewer other alternative livelihood sources, etc. have hindered the efforts towards the prevention of manual scavenging.

A CASE OF DENIED RIGHTS

The inhuman and filthy practice of manual removing of human excreta from the sewers or septic tanks with bare hands, metal scrapers, or brooms and carrying away such excreta to dispose them off in an uninhabited land, is not only demonic but one of the greatest degrees of human rights infringement. Manual scavenging is forbidden by both national and international laws. In the international context, the apex court of India has ruled that manual scavenging is violative of the international human rights law, including the rights mentioned in Articles 1, 22, and 23 of the Universal Declaration of Human Rights (UDHR)[22], and international conventions like the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)[23], and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)[24] that reinforce obligations on our nation to eradicate manual scavenging and provide for their rehabilitation.  Also, International organizations like the United Nations International Children’s Emergency Fund (UNICEF), the World Health Organisation, and United Nations Development Program (UNDP) have all vouched for an end to this practice.[25]  Additionally, the Human Rights Watch and the International Labour Organization (ILO) have described the issue of manual scavenging in India in their detailed reports.

Coming to the Indian scenario, the current law against manual scavenging is the PEMSR Act, 2013[26] which bans the construction of dry latrines and all kinds of cleaning of human excrement in sewers, drains, and septic tanks through the manual process. The implementation of this act, however, falls within the domain of the states (Entry 6, List II, Schedule VII, Constitution of India). This means that both the center and the state cannot take collective action against this practice. There is no mandate as to who shall provide the finances for ensuring compliance with the law.  Since the legal framework is clear, we can proceed with understanding what is wrong with this law.  This law is vague and filled with toothless clauses and definitions. Section 2(1) (d)[27] of the act defines “hazardous cleaning” without a definition for protective gear, this makes this provision a waste as a person employing a manual scavenger might provide inadequate protective gear such as a glove or a mask and may very well escape punishment under the law. Also, this law requires that manual scavengers should be rehabilitated by following the existing schemes but these very schemes have been dismal failures in the past. Aggravating the already deplorable conditions of the scavengers, the government lacks the will and commitment to implement this law and has also exhibited denial on their part to recognize the problem as a human rights issue. This denial is rooted in the caste biases present in our society since time immemorial. Not only this practice is a statutory rights violation but also a constitutional one. The constitutional philosophy of India prohibits any form of manual scavenging. Coming from the backward sections of the society, manual scavengers have special rights vested in the constitution.

Since the Manual scavengers belong to the backward section of the society, they are entitled to some of the special rights under the Indian constitution. Firstly under Article 17, the Indian constitution abolishes the practice of untouchability in any form and also forbids discrimination based on caste (Article 15). The other constitutional protections available to them are mentioned below:

· Article 14: Equality before law (Right to Equality);

 · Article 16(2): Equality of opportunity in matters of public employment;

 Article 19(1)(a): Right to practice any profession, or to carry on any occupation, trade or business;

· Article 21: Protection of life and personal liberty;

· Article 23: Prohibition of traffic in human beings and forced labor;

 · Article 41: Right to work, to education and public assistance in certain circumstances;

 · Article 42: Just and humane conditions of work;

· Article 46: Promotion of educational and economic interests of scheduled castes, scheduled tribes, and other weaker sections;

· Article 47: Duty of the State to raise the level of nutrition and the standard of living and to improve public health.

 · Article 338: Constitution of a National Commission for Scheduled Caste.

Of the articles above-stated, the most important one corollary to the functioning of human beings is the right to life (Article 21).  The apex court had widened the ambit of this article in the landmark judgement “Maneka Gandhi v. Union of India”[28] and held that the right to live is not merely a physical right but includes within its ambit the right to live with human dignity. The practice of manual scavenging is the most degrading and inhumane practice in the world and a blot on human dignity. A person handling human feces on a regular basis as a part of his/her profession cannot be said to lead a dignified life in the society we are a part of. This blatantly evil practice is per se against the fundamental rights enshrined in our Part III of the constitution and not in consonance with the broader interpretation of life. The Supreme Court through various case laws has stressed the importance of a dignified life.

 In the case of Bandhua Mukti Morcha v. Union of India,[29] the Supreme Court had called Article 21 the “heart of fundamental rights” and held that it is the fundamental right of everyone in this country to live with human dignity free from exploitation. The Judgement of Francis Coralie Mullin vs The Administrator[30] stated that “the right to life cannot be restricted to mean mere animal existence. It incorporates something much more than just physical survival.” The bare essentials of life like shelter, livelihood, adequate nutrition, health, access to resources and education, etc. all are important facets of leading a dignified life. The fundamental rights of a manual scavenger include health and their strength to work as it is a minimum requirement of a dignified human life.[31]

The judiciary has time and again emphasized and sought the implementation of laws concerning manual scavenging. The Supreme Court, in the case of Delhi Jal Board v. National Campaign for Dignity and Rights of Sewerage and Allied Workers & others,[32] had directed the civic bodies to ensure the safety and security of sewage workers as they were working under hazardous conditions and exposing themselves to several health diseases. In the Safai Karamchari case,[33] the SC had ordered the government to fix the compensation of Rs. 10 Lakhs each to the family members of the manual scavenger who lost his/her life while they were on work duty. The court also formulated some guidelines to leave this practice behind. The Karnataka high court had stated that the court had a duty and constitutional obligation to acquaint itself with the hazardous and dangerous life of the scavengers who are silent sufferers.[34]

  1. INSTITUTIONAL MURDERS

According to a report by the National Commission for Safai Karamcharis, 814 people died in septic tanks and sewers while cleaning from 1993 to 2019.[35] A sweeper committed suicide in Karnataka as he was forced to clean feces with his bare hands.[36] The manual scavengers lead a half-life as exposure to human excrement invites various chronic ailments. Many die in the sewers themselves of asphyxiation due to hydrogen sulfide present in the bottom of the septic tanks. They are rarely provided safety equipment that lacks full body suits, oxygen cylinders, etc. However, the government turns a blind eye to them and denies such death statistics.

Sections 8 and 9[37] of the Prohibition of Employment of Manual Scavengers Act 2013 provide for a penalty in the form of imprisonment and a fine if manual scavengers are employed and made to clean sewers. However rarely, a case is registered against individuals engaging in such acts. Death of Sanitation workers at work are not accidents rather ‘institutional murders’.[38] This is because when a person employing a manual scavenger knows that he will die if he enters the sewers, yet he forces him to enter in there, then the death is not an accident but murder. According to Article II (Clause a, b & c) of the Genocide Convention[39] genocide means:

  1. Killing members of a national, ethnic, racial, or religious group.
  2. Causing serious bodily or mental harm to members of the group.
  3.  Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.

Analyzing this article, it could be said that the scavenger community of India is subjected to genocidal violence, defined by birth. Despite having exhaustive legislation against manual scavenging, this practice continues to prevail and the death toll keeps on rising. It is high time that criminal charges are pressed against individuals engaged in employing manual scavengers. The Madras High Court went a step further and recently pronounced that even the heads of corporations and municipalities would be held personally liable for the death of any sanitation worker within their territories.[40]

  • IN SEARCH OF A WAY FORWARD

To eradicate the disgraceful practice of manual scavenging, not only rights should be conferred, but also implementation of the law should take place. The governments need to implement the 73rd and 74th Amendments in full letter and spirit and also amend the current law to fill in the gaps. While the right to life for the manual scavengers has to be ensured, other rights such as the right to a clean environment are also very essential. The primary responsibility of the government is to maintain a balance between the right to life of manual scavengers and the right to a clean environment. Sanitation should be modernized, as technology should be used to mechanize the process of cleaning septic tanks.

One argument of the local governments for employing manual scavengers is that they lack technological and financial power. However, the real problem is not a technical one, it is the lack of intent to improve the condition of manual scavengers. Our local governments should learn from the European nations who deal with human excrement using technology which can be made available in our country as well. Some of the other things which need to be taken care of are:

  • Local bodies should be trained and sanitation inspectors must be equipped with the know-how of the act, safety procedures, and use of devices.
  • Local authorities should be monitored to ensure that comprehensive compensation and rehabilitation are being provided.
  • The heads of local bodies must be pressed with criminal charges for the death of any sanitation worker in their territories.
  •  A comprehensive checklist should be developed for the health and finance of manual scavenging to provide targeted support.

Apart from these, what is the most essential thing to do is to raise awareness against caste discrimination and educate the scavenger community regarding their rights. This would go a thousand miles towards eradicating this worst practice from our country.


[1] The ILO and Manual Scavengers in India: Paving the long way towards the elimination of discrimination based on social origin, available at:https://www.ilo.org/global/about-the-ilo/mission-and-objectives/features/WCMS_159813/lang–en/index.htm (Last Modified: 18 July, 2011).

[2] Human Rights Watch, Report on Cleaning Human Waste: Manual Scavenging, Caste, and Discrimination in India (August, 2014).

[3] Manual scavenging an embarrassment for India, says Jaya Bachchan in Rajya Sabha, India, available at: https://indianexpress.com/article/india/manual-scavenging-an-embarrassment-for-india-says-jaya-bachchan-in-rajya-sabha-7241081/

[4] Sravasti Dasgupta, “No plan to amend manual scavenging law, govt says 6 months after announcing new bill” The Print, March. 23, 2021.

[5] The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 (Act 46 of 1993).

[6] Prohibition of Employment of Manual Scavengers Act, 2013 (Act 25 of 2013).

[7] Prohibition of Employment of Manual Scavengers Act, 2013 (Act 25 of 2013), Section 5.

[8] Prohibition of Employment of Manual Scavengers Act, 2013 (Act 25 of 2013), Section 6.

[9] Govt. to introduce bill to make law banning manual scavenging more stringent, available at: https://www.thehindu.com/news/national/govt-to-introduce-bill-to-make-law-banning-manual-scavenging-more-stringent/article32587429.ece (Last Modified SEPTEMBER 12, 2020).

[10] Ibid.

[11] Jitendra, “Manual scavenging prohibition Bill: how effective?” Down To Earth, September. 10, 2013.

[12] Prohibition of Employment of Manual Scavengers Act, 2013 (Act 25 of 2013), Section 2(g).

[13] The Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012, available at: https://prsindia.org/billtrack/the-prohibition-of-employment-as-manual-scavengers-and-their-rehabilitation-bill-2012

[14] Prohibition of Employment of Manual Scavengers Act, 2013 (Act 25 of 2013), Section 33.

[15] Abhinav Narayan Jha, “Taking ‘life’ out of people: On the degrading practice of manual scavenging”, The Daily Guardian, September. 9, 2020.

[16] Breaking Free: Rehabilitating Manual Scavengers, India, available at: https://in.one.un.org/page/breaking-free-rehabilitating-manual-scavengers/ (Last Modified March 23, 2021).

[17] “Uncompleted and unsuccessful rehabilitation of manual scavengers and their children in India: Brief Report on National Public Hearing on Rehabilitation of Manual Scavengers and their Children in India”, Available at:  https://idsn.org/wpcontent/uploads/user_folder/pdf/New_files/Key_Issues/Manual_scavenging/NationalPublicHearing_ManScavenging_2012.pdf.

[18] The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989( Act 33 of 1989).

[19] A new study finds that manual scavengers in India live in segregated localities without any social or economic protection, available at: https://counterview.org/2014/01/15/a-new-study-finds-that-manual-scavengers-in-india-live-in-segregated-localities-without-any-social-or-economic-protection/ (Last Modified January 15, 2014).

[20] Manual scavenger deaths in India 1993-2020, India, available at: https://www.statista.com/statistics/1103629/india-manual-scavenger-deaths-number/ (Last Modified October 16, 2020).

[21] A new study finds that manual scavengers in India live in segregated localities without any social or economic protection, available at: https://counterview.org/2014/01/15/a-new-study-finds-that-manual-scavengers-in-india-live-in-segregated-localities-without-any-social-or-economic-protection/ (Last Modified January 15, 2014).

[22] Universal Declaration of Human Rights,  UN General Assembly,  December 10, 1948, 217 A (III).

[23] International Convention on the Elimination of All Forms of Racial Discrimination, United Nations, January, 4, 1969 , vol. 660, p. 195.

[24] Convention on the Elimination of All Forms of Discrimination against Women, The United Nations, December, 18,  1979.

[25] The ILO and Manual Scavengers in India: Paving the long way towards the elimination of discrimination based on social origin, available at:https://www.ilo.org/global/about-the-ilo/mission-and-objectives/features/WCMS_159813/lang–en/index.htm (Last Modified: 18 July, 2011)

[26]Prohibition of Employment of Manual Scavengers Act, 2013 (Act 25 of 2013).

[27] Prohibition of Employment of Manual Scavengers Act, 2013 (Act 25 of 2013), Section 30.

[28] Maneka Gandhi v. Union of India [(1998) 1 SCC 2008].

[29] Bandhua Mukti Morcha v. Union of India [(1997) 10 SCC 549].

[30] Francis Coralie Mullin v. The Administrator (AIR 1981 SC 746).

[31] Consumer Education and Research Centre v. Union of India (AIR 1995 SC 922).

[32] Delhi Jal Board v. National Campaign for Dignity and Rights of Sewerage and Allied Workers & others (CIVIL APPEAL NO.5322  OF 2011).

[33] Safai Karamchari Andolan v. Union of India (WP(C) No.583 of 2002).

[34]Chinnamma V State of Karnataka & ors (CRP No.200011/2017).

[35]National Commission for Safai Karamcharis, Report on Sewer Death Cases, available at: https://ncsk.nic.in/about-us/sewer-death-cases

[36] Karnataka: Forced to clean manhole with bare hands, sweeper,  available at: https://timesofindia.indiatimes.com/city/mysuru/civic-staff-kills-self-over-manual-scavengingrow/articleshow/81181647.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst (Last Modified March 23, 2021).

[37] Prohibition of Employment of Manual Scavengers Act, 2013 (Act 25 of 2013), Section 8 & 9.

[38] Death of manual scavengers at work is murder, not accident, India, available at: https://timesofindia.indiatimes.com/city/bengaluru/death-of-manual-scavengers-at-work-is-murder-not-accident-says-activist/articleshow/73692695.cms (Last Modified January 28, 2020).

[39] Convention for Prevention and punishment of the crime of genocide, UN General Assembly, Art. 2, December 9, 1948, A/RES/260.

[40] Manual scavenging deaths: Officials to face arrest, says Madras HC, available at: https://timesofindia.indiatimes.com/city/chennai/manual-scavenging-deaths-officials-to-face-arrest-says-hc/articleshow/81557148.cms

Author: Aanya Anvesha

Editor: Kanishka VaishSenior Editor, LexLife India.

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