This article is written by Sumedha Bhat, a student from Hidayatullah National Law University, Raipur, pursuing B.A LLB (Hons). This is an exhaustive article on the prohibition of employment as manual scavengers and their rehabilitation. It provides and suggests remedial measures to prevent manual scavenging and a certain progressive approach to bring down the scavenging community.
Table of Contents
Introduction
In India, sanitary work is an occupation innately integrated with echelon. In India sanitation workers, garbage collectors, road sweepers, drain cleaners, and manual scavengers, are predominantly the Dalits. A person hired or engaged by a local authority, agency, an individual, contractor to clean manually, handle, dispose or carry human excreta in an open pit or drain, latrine, on track of railway, or in any other places is known as a manual scavenger. Even being abolished now and being firmly lobbied against after we gained independence, it remains widespread in many Indian regions.
Manual scavenging has indeed been deemed to be the worst remaining sign of being an untouchable. It has been defined by the International Labor Organization to include mainly the disposal of human excreta from dry latrines public streets, and the maintenance and sweeping of septic tanks, sewers, and gutters. India has a predominant existence of this practice, while prevalent in the other world parts. Usually, the people involved in carrying out this statue come from lower castes, such as Dalits.
In 2013, The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act was applicable approximately 20 years succeeding The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993. Unlike the previous act, drafted from the viewpoint of sanitation, the current legislation emphasizes to reinstate the human dignity of manual scavengers and their rights, and also bestow them with their rehabilitation.
This statue includes 8 chapters and 39 sections. The law provides alternate employment and rehabilitation to manual scavengers within a specific time frame. It also prohibits manual cleaning of septic tanks and sewers without precautionary apparatus and insanitary latrines construction (Section 7 and 9). It has now become delinquency and crime for maintaining and constructing insanitary latrines. Therefore, under this act, employment as the manual scavenger is prohibited.
This legislation makes it a crime to hire employees to clean insanitary latrines as manual scavengers, to hire employees to clean septic tanks and sewers without protective or safety equipment, to create insanitary latrines, and not to demolish or modify insanitary latrines over a certain time-frame of this Act coming into effect.
Manual scavenging
According to this law, a manual scavenger is a person employed to handle human undecomposed excreta on the railway tracks or in the pits or open-drains or insanitary latrines. For example, anyone employed from an organisation or contractor or a particular village, all of them are covered by this law, whether an engaged employer or regular employer on basis of a contract. ‘Safai karamcharis’ is another group or class of people who are sometimes also called manual scavengers.
Manual scavenging: a violation of human rights
In India, The prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013, is an enactment in opposition to manual scavenging, which prohibits all types of cleaning of excreta manually and dry latrines, also cleaning of sewers, septic tanks, and gutters without proper types of equipment or protective gear. As sanitation is a state issue, therefore, there is state-specific enforcement of the law. Though the practice of manual scavenging is much more than an issue of the state, it is also a violation of human rights.
Manual scavenging isn’t just a violation of the Constitution but also a violation of human rights. Since the Constitution of India complies with the International Code of Human Rights it eradicates untouchability (Article 17) and discrimination on the bases of caste (Article 15) besides it, human dignity is an unquestionable and inviolable right as it is a basic right to life, i.e., a fundamental right, under the Indian Constitution. The Indian courts and the Constitution, therefore, found human dignity the most essential, inalienable, fundamental, and basic of all rights. Human dignity is a right universally accepted by the Universal Declaration of Human Rights (UDHR) under Article 1, 22 and 23, as well as guaranteed by the National Commission on Human Rights, thus human dignity requires fair treatment and respect for people.
Scope and limit
The said Act makes the employing of manual scavengers illegal. It outlines provisions relating to the rehabilitation of sanitary workers and their families. It also is illegal for a person to clean a septic tank or sewer without any of the employers providing safety gear and types of equipment for cleaning as well as monitoring safety or protective protocols.
This Act is not only limited towards an individual authority only for ensuring the safety and rehabilitation of the sanitary workers but to the local authority, government, and the state as well. Each local authority should ensure that its jurisdiction does not contain insanitary latrines and that no manual scavengers are used. In a jurisdiction, a panchayat or a municipality is a Local Authority, which is responsible for its sanitation. It may also be a board of cantonment formed under Section 10 of the Cantonments Act of 2006 or a railroad authority.
The Government must ensure that the law is put into effect by local authorities and district magistrates. To this end, a vigilance committee needs to develop at the subdivision, district, state, and central levels. Each state has to have an advisory and a monitoring committee consisting, among other officials, of the chief minister, the minister representing Scheduled Castes and Scheduled Tribes, and the director-general of police. Each administration of the state or union territory must send regular updates to the central government regarding its success in achieving and implementing this Act. This act does not include any person who is working as a manual scavenger with appropriate equipment and protective or security gear to clear human excreta.
Key provisions
Following are the key highlights of the Act:
- Insanitary Prohibition and participation as Manual Scavengers:
Offences:
- Maintenance and construction of insanitary latrine
- Employing an individual or any person for working as a manual scavenger.
Penalty:
- For first violation or dereliction, punishment up to one year of imprisonment or up to fifty thousand rupees fine or both
- For succeeding violation or dereliction, punishment up to two years of imprisonment or up to five lakh rupees fine or both.
- An individual prohibition from engaging in or employing a sewer or septic tank for hazardous cleaning.
Penalty:
- For first violation or dereliction, punishment up to one year of imprisonment or up to two lakh rupees fine or both.
- For succeeding violation or dereliction, punishment up to five years of imprisonment or up to five lakh rupees fine or both.
- Offenses are non -bailable and cognizable under the said Act.
- In rural and urban areas, Manual Scavenger survey to be carried out within a time-frame system.
- Manual Scavengers thorough and complete rehabilitation with a time-bound system.
- Mechanism of monitoring:
- Committee for Monitoring or Vigilance
- National Commission for Safai Karamcharis (NCSK): In urban areas, building a sufficient number of community sanitary latrines within three years of the date of this Act to eradicate the custom of open defecation.
Important case laws
Many cases were filed in different States’ High Court to seek the attention of the government, state authority and other concerned authorities to manual scavenging and their deaths.
Reaveen Rashtrapal, I.R.S (Retd.) v. Chief Officer, Kadi Municipality and Ors.
In 2006, in this case, a petition was filed to the High Court of Gujarat regarding setting up a committee to examine the living standards of man-hole employees and provide interim protection measures when carrying out manhole operations before a permanent solution is found.
After upholding the fundamental right to health according to Article 21, the Court delivered many directions for the upliftment and improvement of sewerage workers to the authorities in question.
Reaveen Rashtrapal, I.R.S (Retd.) v. Chief Officer, Kadi Municipality and Ors.
It was ordered by the Court in A. Narayanan v. The Chief Secretary, that sanitary workers should be barred from accessing the sewerage system under the pretext of removing the blocks, except in rare cases specified in this order.
Reaveen Rashtrapal, I.R.S (Retd.) v. Chief Officer, Kadi Municipality and Ors.
In the landmark case of Safai Karamchari Andolan and Ors. v. Union of India and Ors., it was directed by the Supreme Court that:
- Rehabilitation of the persons mentioned as manual scavengers in the final list under Section 11 and 12 of the Prohibition of Employment of Manual Scavengers and their Rehabilitation Act, 2013 shall be done according to the provisions laid down in Part IV of the said Act.
- To stop the practice as well as tradition of manual scavenging, to remove and prevent this inhumane activity to prevail in future generations.
- According to the principle of justice and transformation, the rehabilitation of the manual scavengers must be based.
- Orders the State Govt. and the UT’s to completely implement the provision mentioned the said Act.
- Orders the State Govt. and the UT’s to take necessary actions against the offenders and the violators of the Act.
Law and manual scavenging
Hereditary and caste based occupation is handed down as an inheritance from one generation to another; manual scavenging is traditional routine. The persistence of this culture not only seems antiquated but, what’s worse than the reality is that those raised in this group are deemed perpetrators of pollution because of their birth-based history of social hierarchy. They are Indian society’s most oppressed and mistreated, hated class, ridiculed, avoided, and bullied by all of the other classes of society as well as castes.
Whereas legislation is in search of nobility and dignity for manual scavengers. The Government, in 1993, passed the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, which outlawed and barred the use of manual scavengers to manually clean dry latrines as well as the construction of those toilets, such toilets operating without flash system. Punishing offenders upto one year of imprisonment and fine, it was followed in 2013 by the Prohibition of Employment as Manual Scavengers, and their Rehabilitation Act, which is broader in scope and, most importantly, recognized the urgency of trying to rehabilitate manual scavengers.
Reasons for the persistence of manual scavenging
The cleaning or removal of human feces from dry latrines and public streets, in addition to cleaning sewers, gutters, and septic tanks are called Manual Scavengers. Since January 2020, about 50,000 manual scavengers have been reported, as stated by a survey comprising 18 states. Besides, data from 2018 shows that in Uttar Pradesh alone 30 000 people have been employed in manual scavenging. 2019 have seen the largest amount of manual scavenging deaths in the last 5 years, while cleaning and repairing the sewers and septic tanks around 110 people got killed, marking a 61 percent rise in deaths from the year before.
At present when equality and human rights are far more predominant than ever, most would think that activities like manual scavenging is a custom. Although it remains outlawed and dismantled in theory and on papers, the reality on the ground remains markedly different. Manual scavenging tends to occur because of casteism, sexism, and conceptions of untouchability at the grassroots level. Hierarchy is the main reason for such problems prevailing in our society as it has been made a tagline that manual scavengers only belong to specific castes. Therefore, higher castes considered that such jobs done by them are too low-grade. The perception of untouchability and the concept of discrimination against the lower castes while doing such jobs are strengthened, which only leads to human rights exploitation for the people working and their families. Rashtriya Garima Abhiyan’s founder, Ashif Shaikh, a progressive group opposing manual scavenging claims manual scavenging is not a mode of employment, but rather a form of slavery. Hence, remains the main reason for the human rights violation that Dalits faces in their communities. Therefore, these people face humiliation even when they can do jobs other than working as manual scavengers in a country like India, which has a notion as well as the law that gives equality and protects human rights. But if they do such jobs, they only face discrimination by society, and if they do not do such jobs, they suffer from financial crises, starve, and risk their family’s safety and shelter.
After the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act was passed, a landmark characteristic of the Act was not only to eradicate the practice in itself but to remove racial bias and prejudice complementary to this. But not even the state governments, municipal corporations, and village councils refused to enforce the statute, but they are also still complicit in the perpetuation of manual scavenging activities. Such workers have no alternative under collective and social strain but to return to working these menial jobs. This is indeed a pity and disgrace that they continue to exploit their dignity, rights, and integrity, even when the law is on their side.
Even as the country is progressing towards economic development, the presence and practice of inhumane activities bring us backward and spot the failure to guarantee and secure basic human rights. Since the legislative implementations and amendments can not alone eradicate the inhumane activities, we need consciousness to be combined with solutions such as technology programs and skills to remove the persistence of manual scavenging and to propose other possible options for employment.
Social and legal aspects of the enactment
Manual scavenging is a practice that has existed since the beginning of human civilization. The inhumane method of manually extracting night soil involving the removal of human excreta from dry latrines with brooms or metal scrappers or bare hands; transporting excreta and baskets to disposal sites is not only diabolical but perhaps the highest level of violation of human rights. After the enactment of the Act, the prevalent traditional practice of manual scavenging based on caste, class, gender, and financial status has been partially removed. Due to provisions of the act, people have abolished the practice and initiated to help victims of manual scavenging through NGOs, and self-initiated campaigns.
The majority of manual scavengers are persecuted by society because of the type of work. They are considered untouchable and are told to accept their situation. This question is even more serious because their children are often discriminated against and pressured to take on the same jobs as their parents. Now, many schools and institutions have opened scholarship schemes, free of cost education, mid-day meals, and many other requirements so that the children of these workers can have the education and are not discriminated against in society any further.
After the enactment of the Act, various NGOs have voiced against the barbaric activity of manual scavenging, and the judiciary has observed and acknowledged its widespread presence and effect. Judiciary has taken necessary steps to protect the rights of the manual scavengers, and also to remove the entry of humans into sewers. The Supreme Court declared that it was their duty to ensure that people due to the economic compulsion are not entering the manholes for cleaning as it is against the fundamental rights and duties. Organizations such as Sulabh International, Jan Sahaas, Safai Karamchari Andolan started playing a life savior role for all of those trapped in the heinous scavenging cycle. Many schemes, committees, welfare associations were established to create awareness among the society. There seems to be a sharp drop in the practice of “manual scavenging” with joint efforts from both the government and non-governmental organizations.
Self-Employment Scheme for the rehabilitation for loss of employment
In January 2007, the Self-Employment Scheme for the rehabilitation for loss of employment (SRMS) had its approval to rehabilitate the remaining manual scavengers and their dependents with replacing them with other occupations before March, 2009. The aim of the scheme was shifted to March, 2010, as it was not done by the set date. After launching the scheme, the states & UTs reported approximately 1.18 lakh manual scavengers and their dependents, also identified in 18 states and UTs for the execution of the scheme. The Ministry of Social Justice and Empowerment took the responsibility for rehabilitation of manual scavengers and to introduce SRMS.
Objective
The scheme’s objective is to help the manual scavengers for their rehabilitation in alternative professions, found during various surveys.
Under the “Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013” the Central Sector of Self Employment Scheme for Manual Scavengers’ Rehabilitation (SRMS), was effective from November, 2013. SRMS made following significant changes:
- Description of scavenger manual as per Manual Scavenger Act, 2013.
- Offer Rs. 40,000/-, cash assistance for one-time.
- The overall cost of projects improving for sanitation-related projects from current Rs. 5 lakhs to Rs. 10 lakhs, and Rs. 15 lakhs.
- Capital subsidy improvement is based on project cost from the present limit Rs. 20,000 to limit Rs. 3.25 lakh.
- Monthly stipend rate to be revised from present rate Rs. 1,000 to Rs. 3,000 during training, and from 1-2 years training period.
Critical analysis
In 2018, a fascinating documentary was released that revealed the actuality of manual scavenging, “The Cost of Cleanliness – Documentary on Deaths of Manual Scavengers in India.” This clearly showed the manual scavenging even though banned by the law is still prevailing in India.
Provisions of the Act critically analysed:
Section 2(1)(d) of the Act: The definition, in the Act of ‘hazardous cleaning’, will only escalate incidents regarding the cleaning of drainage/manhole, and consequently, deaths of workers as the Act allows workers to enter the manhole with the employer ensuring the persistence of safety standards but not fulfilling the obligation of supplying protective gear and such cleaning devices. What kind of protective equipment and other cleaning devices will be prescribed during the formation of the rules is a major concern. Rather, we should allow manhole workers to enter only when necessary with complete protective equipment such as oxygen tank, torch, computer-based constant observance of the worker, etc. Education institutes such as fire brigade should provide them with technical training and only trained workers should be allowed to enter, if necessary, with maximum precautions and safety equipment.
Section 2(1)(e) of the Act: One of the key proponents of manual scavenging is the Indian railways and are exempted from the concept of insanitary latrines by this Act. Thus, they will continue manual scavenging. At railway stations, the passenger coach with Water flush latrine will make anyone manually clean human excreta, and at present, the practice is in continuation as prevalent.
Section 2(1)(g) of the Act: The Act only deals with an insanitary latrine or pit or an uncovered drain. Whereas, in India, urbanization is growing rapidly. Because of urbanization and lack of adequate public as well as individual toilets, open defecation is widespread and thus contributes to manual scavenging.
Further, the explanation in 2(1)(b) has also murdered the soul of the Act and by stating that manual scavenging can be done through protective gear, and other instruments have legitimized it. Manual scavenging, shall in any manner be prohibited.
Section 4(1) of the Act: The Act here talks about identifying insanitary latrines only. However, the Act has not mentioned the detection of places where open defecation happens, and therefore, some have to manually clean human excreta in urban areas from the spaces open.
Also, an agency with professional designation must be given the task for conducting the survey to identify the insanitary latrines and the time-frame of two months to carry out the survey is insufficient.
Section 4(2) of the Act: In most urban areas, the tradition of manual scavenging will carry on for three years from the date this Act begins, from open defecation.
Section 39(1) of the Act: It is a big loophole in the Act because it empowers the government to exclude the law provisions. And as a result, manual scavenging will carry on. This is quite surprising that if Policy wants to proceed, the most inhumane activity will be permitted to continue for six months in specific cases.
Despite the constitutional protections, manual scavengers tend to be the perpetrators of discrimination. This has a variety of explanations. Following are some of the reasons:
- India being a federal democracy as well as sanitation falls under the jurisdiction of its States (Entry 6, List II, Schedule VII, Constitution of India), the enforcement of the Manual Scavenging Prohibition depends entirely on the control of the states. Therefore, the federal government has no power to take combined nationwide measures.
- The legislation, as per the current schemes, requires the rehabilitation of scavengers, although even in the past, these same schemes have failed to eliminate the practice.
- It isn’t only the statute but the mindset of the public authorities that exacerbates the scavenger’s plight. Consistently, the government has tried to extend the timeframe to curb the issue, showing its lack of responsibility and commitment.
Consequently, the present legal scheme fails to protect manual scavengers’ dignity. There is a need for amendments to the existing law, an effective enforcement mechanism, and an alteration in the mindset of society.
The Supreme Court, in Safai Karamchari Andolan v. Union of India, ordered the government to permanently eradicate manual scavenging and rehabilitate the victims of such practice. But, there was no further action taken by the government regarding such an order. Therefore, it shows how the judiciary is always taking necessary and active measures to guarantee the respect of manual scavengers and maintaining the norms of human rights, but these steps make no sense unless the other cell of the government shows some support.
Conclusion
In India, to eradicate the practice of manual scavenging, there is a need to change the existing laws, strict enforcement, and a change of attitude is necessary among society. An additional disadvantage for manual scavengers as they are members of the community of lower castes and hence, face immense prejudice in society, and second, they are marginalized because they are manual scavengers who clean up excreta from humans. Even though there are many laws and schemes to prevent, remove, and rehabilitate victims of manual scavenging but still the practice is carried upon and still prevalent in society.
At the beginning of the 1980s, Indian courts extended the ‘right to life’ provided in Article 21 of the Indian Constitution as a right to a dignified life and interpreted many social and economic rights as the fundamental determinants of the right to a dignified life. Hence, Article 21 is always there to protect the victims of manual scavenging.
Along with the Act, there is a need for some additional techniques as well as steps to prohibit the practice of manual scavenging and provide them with alternate jobs. An effective step to transmit knowledge about community rights are awareness campaigns, and also a way to teach the mass about health issues, hygiene practices, and health practices. Everyone understands that it is forbidden by law, and the people must be aware of the fines they face when they are arrested and when they are involved in the use of manual scavengers. Manual workers must be kept aware of their rights and the laws protecting the manual workers from exploitation through their employers or the society. Since manual scavengers make little or minimal money from the work which is insufficient for them to educate their children, so the schemes enacted must help these workers to educate their children. The government should provide help to every individual who is working as a manual scavenger because of unemployment, discrimination, or poverty so that they do not fall back into such practice. One-time interventions are not enough, a more community-centered approach should be taken, in which more resources are offered to the whole group to help them recover from this traditional practice.
The government must therefore completely commit itself to establish modern sanitation systems and provide full support, which includes financial stability to those communities who want to escape the vicious circle of manual scavenging as these communities only face discrimination & abuses by the society.
References
Website referred
- Critical Analysis of The Prohibition of Employment As Manual Scavengers and Their Rehabilitation Act, 2013, available at: https://beyondheadlines.in/2013/09/critical-analysis-of-the-prohibition-of-employment-as-manual-scavengers-and-their-rehabilitation-act-2013/
- Right to Dignity, not for Manual Scavengers: The neglected state of rights of scavengers in India, available at: https://blogs.lse.ac.uk/humanrights
- Manual Scavenging in India, available at: https://thewire.in/118940/manual-scavenging-in-india-2017/
- Cleaning Human Waste: Manual Scavenging, Caste and Discrimination in India, available at: https://www.hrw.org/sites/default/files/reports/india0814_ForUpload_0.pdf
- The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013, available at: https://ruralindiaonline.org/
- The Self Employment Scheme for Rehabilitation of Manual Scavengers (SRMS), available at: https://nskfdc.nic.in/
- Why manual scavengers in India haven’t got their rights despite laws, judiciary intervention, available at: https://theprint.in/opinion/why-manual-scavengers-in-india-havent-got-their-rights-despite-laws-judiciary-intervention/371140/
Online authorities
- heinonline.com
- lexisnexis.com
- manupatra.com
- mondaq.com
- scconline.com
- westlawindia.com
Dictionary referred
- GARNER BRYAN, BLACK’S LAW DICTIONARY (8th Edition, West Group Publications).
- JUDY PEARSALL, CONCISE OXFORD DICTIONARY (10th Edition, Oxford University Press).
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