In this article, Sakshi Singh discusses ways to legally eliminate the practice of manual scavenging in India.
At least now after many reported incidents of manual scavenging in print media as well as in online media we all have become aware of the practise of manual scavenging and its inhuman nature. Manual scavenging is the practise of cleaning human excreta and other waste products manually by bare hands from insanitary latrines, open pits, sewer tanks, septic tanks etc. This inhuman practise is still prevalent in India even after getting banned in the year 1993 with the passing of a law “The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993”. When existing legislation was not sufficient to stop this practise and open defection was continuing, again in 2013 after much agitation by groups of safai kamarchari, a new legislation was passed in the year 2013 i.e. The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013. The attractive feature of this act was rehabilitation of manual scavengers but sadly this obligation of government is also left unfilled.
It is very disheartening to see that such practises are still prevalent in India after 71 years of independence. Manual scavenging is the mirror to see as to how far we have come in abolishing untouchability under article 17. There is a violation of article 15 and 16 of the constitution also as these manual scavengers are discriminated on the basis of their caste. They are forced to do this work because they belong to a particular class and no other option left for them to survive. They denied employment in other fields because of the caste to which they belong. Under article 21 every person is entitled to live a dignified life in a healthy environment but manual scavengers are being denied their fundamental as well as human rights. Practise of manual scavenging is very inhuman which needs to be done away as earlier as possible so as to provide them with a dignified and safe life. Every now and then we see manual scavengers are dying while cleaning sewer tanks. No proper safety equipments are provided to them while cleaning which is a clear violation of laws and regulation made under the 2013 act. As said by New Delhi committee on Manual Scavenging which met for the first time recently that death of manual scavengers while cleaning is culpable homicide not amounting to murder by his employer under section 304 of IPC and not causing death by negligence under 304A.
In developing country like India, which is making its position in world power, practise of manual scavenging is very shameful. We all as a society should hang our head in shame that we are making some person among us to clean septic or sewer tanks or human excreta manually without any regard to their safety and letting them die. Whereas we, on the other hand, turn our face away to avoid such disgustful sight without even realising that some people are cleaning it for us to make us live in a safe and healthy environment.
It is not the responsibility of one individual but a collective responsibility of the government as well as each individual of the society to curb the practise of manual scavenging and make this world a better place for them also. The legislature should make an effective and reasonable legislation; executive should implement these laws made by legislation without any undue delay. Also, each individual should understand their responsibilities to not discriminate against them and treat them as one among themselves. Efforts by the legislature and executive would not be enough if individuals do not understand the plight of manual scavengers and need of support they need from all of us.
Here further I will highlight some lacunas under The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013. These lacunas must be done away with from the legislation for its effective implementation to curb the practise of manual scavengers. Those are:
- The absence of Penal Provision: Biggest lacuna in the Prohibition of Manual Scavenging and its Rehabilitation Act, 2013 is that it does not talk about any kind of penal provision for the authority if they failed to full-fill their obligation under the act. No inquiry or punishment in case authority failed to full-fill its duty assigned under the act. Various committees were formed under the act for proper implementation and monitoring the assigned work of the authority but till date, no action has been taken against them.
The absence of penal provision gives leverage to the authority to avoid their liabilities as they are somewhere aware that no legal action can be taken against them. This is one of the biggest drawbacks of the legislation for its effective implementation as we have already seen that nothing much has been done for prohibiting manual scavenging.
- Limited definition of ‘hazardous cleaning’: The definition of hazardous cleaning in itself is flawed because it includes under its ambit only those activities as hazardous where employees have to clean the septic tank and sewer tank manually without any protective gear and other cleaning devices. Also explanation (b) of section 2(g) stated that those clean excreta with the help of such devices and using protective gear shall not be deemed to be manual scavengers. Firstly, this act does not define what kind of protective gear and safety devices it talked about. Kind of protective gears and cleaning devices generally provided for cleaning septic or sewer tank are gloves torches, boots, mask, stick etc. Recently I witness some workers cleaning septic tank outside a railway station with the use of only two instruments and those were: a long wooden stick and a spade (fawda) without any gloves, mask, boots or any modern technology to clean septic/sewer tanks. It looked very difficult to get cleaned by mere use of that stick and spade.
Secondly, the major problem with this definition is that it allows further continuance of manual scavenging with the use of protective gear and cleaning devices. Only the use of protective gear or cleaning device without any change in the cleaning process would not change its inhuman character. In the time when we are talking about nuclear weapons, artificial intelligence and other technologies like these, it is very difficult to believe that there could not be any technology to clean septic or sewer tanks.
The aim of legislation should be to completely done away with the manual scavenging and not to continue it further with the use of protective gear etc. Technologies should be used to clean septic or sewer tanks without human entry into tanks. It is a very positive step on the part of the government that it launched a technological challenge for prohibiting the entry of human in septic or sewer tanks to clean it in June 2018. Now let’s hope that technology must be implemented fully in order to prohibit the entry of human.
Also, this definition does not take into account the cleaning of human excreta manually from insanitary latrine. As the dictionary meaning suggests that anything which is risky and dangerous is hazardous. Cleaning of insanitary latrines manually is also hazardous as many people (especially women) who are engaged in this work have suffered from various kinds of skin diseases. This process is also a clear violation of right of dignity.
According to me, this definition is very important because it forms the basis of this act to protect manual scavengers from activities which are hazardous and give them life of dignity where there is no such risk and danger is involved. Legalising manual scavenging with the use of protective gear and other devices is a blot on the exercise of eliminating manual scavenging completely.
- Under article 10 of this act, the court cannot take cognizance of any offense punishable under the act except upon filing of complain in this regard that too within three month of the occurrence of the alleged offence. People working as manual scavengers are already marginalized and belong to the lower strata of the society and it is very difficult for them to raise voice against such inequalities and inhuman behavior. Most people who employ them are powerful it is difficult for them to raise voice against them. The court must take suo motu cognizance of the matter and try to remove this practise from the society as soon as possible.
Loopholes of the legislation must be done away with and a more stringent and effective legislation should come in place with the aim to eliminate manual scavenging altogether and to rehabilitate the existing manual scavengers. The focus should not only be upon those manual scavengers who clean septic or sewer tanks but other manual scavengers who clean insanitary latrines especially in rural areas should also be included. Manual scavengers (especially women) cleaning insanitary latrines are not even providing enough wages and some time they work without payment in cash and only provided some reads or cloths. People working as manual scavengers belong to lower caste and because of the kind of work, they do they are not accepted anywhere else. It is a kind of forced labour which is a violation of article 23 of the constitution as for their survival they have to work somewhere. It is clear violation of human rights as well as fundamental rights of the individual which have no other place to go for the survival. Government as the safeguard of the constitution have obligation to provide them right to live with dignity in a healthy environment.
Apart from the legislature, the executive is also equally responsible in order to curb the practise of manual scavenging. After enacting any law by the legislation, it is the duty of the executive to implement it effectively. As we have seen that even after banning manual scavenging in the year 1993 and again in 2013 it is still prevalent. In the 2013 act, various duties have been assigned to the local authority and other agency for prohibiting manual scavenging and for rehabilitation of manual scavenging but even after 5 years of the passing of such law we can see that nothing much has been done for achieving those objectives. Every now and then we see that manual scavengers are dying while cleaning septic tanks, people are still engaged in cleaning dry latrines manually. Indian railway is the biggest example of the inability of the executive.
Though railways deny presence of manual scavengers, Indian railways are the major employer of manual scavengers. Human excreta from the running trains makes railway tracks dirty and railway authorities employ workers to clean it. These workers are not employed as manual scavengers but they are appointed by private contracts on a contractual basis as safai karamchari. Kind of work they do while cleaning railway tracks is not less hazardous. Cleaning of human excreta from the railway tracks with the use of only water jets, pipe, broom, stick or ply board is a violation of right to dignity. In this way, railways are also practising manual scavenging. Providing them the different tag of ‘safai karamchari’ won’t stop them from being manual scavenging when kind of work they do falls under the ambit of manual scavenging. Railways always deny presence of manual scavengers but it is not truth. We can check the reality by going to a railway station where we can surely find some workers cleaning human excreta manually from the tracks with the use of pipe, broom etc.
Railways have turned some railway toilets into bio-toilets but this has very long way to go. Absence of acknowledgment for manual scavengers would only worsen the situation. Rather railway should focus on other techniques to stop these practices.
Given timelines under the act are not adhere to. Authorities responsible keep on postponing their duty. Various authorities are very casual in their approach. Authorities deny existing of manual scavengers in their jurisdiction which is contradictory to the number of insanitary latrines. If insanitary latrines are still in existence then there must be someone to clean it.
This act is lying as a dead-end legislation from a long time and manual scavenging is still prevalent. Executives are not full—filling their duties. As an elected government they must take the responsibility on their shoulder to give right to this section of the society and make them live with dignity. The executive must work toward their rehabilitation. They are not able to join any alternative employment because of the stigma attached to their previous employment no one is employing them in any other work. They are socially boycotts and discriminate. Authorities responsible are just watching violation of the act but the current prevailing situation makes it the high time for them to act. Every 5 day, one manual scavenger is dying. It is not the accident or negligence but I would say authorities responsible for their protection are letting them die.
Apart from the responsibilities of the legislature and executive, every individual should also understand their responsibility. In order to eliminate manual scavenging from the society we should change our mind-set. We must understand that these people belong to us and they also have their own right to live with dignity and other fundamental rights. We should not treat them as untouchable. To eliminate this inhuman practise of manual scavenging, every individual in their individual, as well as collective duty, should be true to their duties and try to eliminate this stigma from our society for once and forever.
Legislature, Executive and individual must work together. It is a collective responsibility of each individual and department and not of any single person to eliminate this inhuman practise of manual scavenging altogether from the society.
Technologies should be implemented for cleaning sewer, septic tanks, railways tracks or other spaces. Rather than engaging manual scavengers to clean it manually by entering into a manhole, machines should be used. India can take examples from other countries like Mexico, America. Mexico uses sustainable methods of sewage disposal which uses the waste material for agricultural resources by treating them. On the other hand, America uses machinery to clean septic tanks. It is a matter of political will to invest in technologies in order to eliminate manual scavenging. Malaysia is also one of the biggest examples of elimination of manual scavenging. The Malaysian government has proved that the shift from a manual system to a mechanical system is not the impossible task. Political will is required to install types of machinery and government or other authorities should not ignore their duty to eliminate practise of manual scavenging.
 Section 2 (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.