The prevalent malaise of manual scavenging in India - Overview & Legal Position

A recent newspaper report cited the death of five workers in a posh Gurugram housing society as they were made to enter a Sewage Treatment Plant without any adequate safety gear lest they would be fired from the job. All belonged to the migrant labour class from the eastern region of our country. Another 37 Old daily wage sanitation worker died as he was made to enter a Delhi Jal Board sewer without any safety gear by just tying a weak rope around his waist. The rope snapped and he fell to the bottom of the sewer. It took rescuers 90 minutes to fetch his dead body as he died immediately of poisonous gases inside the sewer. These are only two of the so many incidences reported of late in the newspapers with many cases gone unreported. While many of us dread even sighting cockroaches and rodents, it is quite trite among the Manual Scavenging community that before entering a sewer, they look out for cockroaches or any living thing there so as to satisfy themselves that if insects and/ or rodents can survive the atmosphere of sewer, so can they.

Our Constitution guarantees to all its citizens Right to Life with dignity by virtue of Article 21. However, such instances make one wonder as to whether such a right to life exists for such persons let alone the right to life with dignity?

The disempowered groups of the society whether they are disempowered educationally, economically or socially have always been at the receiving end. They are confronted with challenges on every front whenever they venture to claim their entitlements from the systems and authorities that be. The absence of recognition of the basic rights and dignity of this marginalized section of the society, absence of accountability of our administrative system, callous attitudes of the authorities and apathetic demeanour of the advantaged and privileged section of the society makes the already dilapidated situation of these groups from worse to worst.

The premises and purpose of this article is to cover one such dimension of denial of basic rights to the disempowered group as aforesaid and to appreciate the fact of the prevalent malaise of Manual Scavenging in India despite being a law to the contrary.

Who are Manual Scavengers?

The people who collect and remove manually the human excreta, engage in manual cleaning of sewage and drains and include those engaged in disposing animal corpses are termed as manual scavengers. However, the Census defines Manual Scavenger as the one who cleans a dry latrine or carries human waste to dispose it off  whereas Section 2 (g) of “The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013” ( the 2013 Act) says, “ Manual Scavenger” means a person engaged or employed, at the commencement of this Act or at any time thereafter, by an individual or a 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 human excreta from the insanitary latrines is disposed of, or on a railway track or in such other spaces or premises, as Central Govt. or a State Govt. may notify, before the excreta fully decomposes in such manner as may be prescribed, and the expression “manual scavenging” shall be construed accordingly. 

The scavenger groups in India are highly heterogeneous, are subsumed under the layers of sub-casts, and are generally referred to as Bhangis, Chuhras etc.   

Legal Position in India as to Manual Scavenging

The definition of Manual Scavenger as per the 2013 Act as reproduced above covers in its ambit a person engaged or employed by an individual or local authority, an agency, or a contractor.  Explanation to this section ie. Section 2 (g) says that (a) “engaged or employed” means being engaged or employed on a regular or contract basis and (b) a person engaged or employed to clean excreta with the help of such devices and using such protective gear, as the Central Government may notify in this behalf, shall not be deemed to be a “Manual Scavenger”

Section 2 (d) of the 2013 Act defines “hazardous cleaning” by an employee, in relation to a sewer or septic tanks as 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.

Here, Section 2 ( e)  of the 2013 Act deserves special mention. Section 2 (e ) defines “insanitary latrine” as a latrine which requires human excreta to be cleaned or otherwise handled manually, either in situ, or in an open drain or pit into which the excreta is discharged or flushed out, before the excreta fully decomposes in such manner as may be prescribed, provided that a water flush latrine in a railway passenger coach, when cleaned by an employee with the help of such devices and using such protective gear, as the Central Govt. may notify in this behalf, shall not be deemed to be an insanitary latrine.

It is clear from above that the protective gear and cleaning devices are mandatory if any person is engaged or employed in manual cleaning of sewer or cleaning of excreta etc. else it will constitute an offence under the law which has prohibited the de-humanizing practice of manual scavenging by virtue of “The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 (the 1993 Act) exacerbated by the   “The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act. 2013” (the 2013 Act) which further revised and broadened the contours of the Act of 1993 and vied for stricter punishments as a deterrent to this foul practice.

Let us take our discussion further by taking a brief look upon a few more of the important sections of the 2013 Act.

Section 7 of the 2013 Act provides for that no person, local authority or any agency shall, from such dated as the State Govt. may notify, which shall not be later than one year from the date of commencement of this Act, engage or employ, either directly or indirectly, any person for hazardous cleaning of a sewer or a septic tank. 

Section 4 and 5 of the 2013 Act mandate that the “insanitary latrines” be abolished in that the old one are demolished and there is prohibition on the construction of new ones. Section 6 explicitly prohibits employing any person for the purpose of manual scavenging.  The contravention of provisions of Section 4, 5 and 6 of the 2013 Act entail punishment provided for in Section 8 and 9 of the Act. Section 22 of the Act gives a non-obstante clause against Code of Criminal Procedure, 1973 making every offence under this Act to be cognizable and non-bailable.

Status of Manual Scavenging on the Ground

Despite such statutory prohibition carrying out the Constitutional mandate of Article 21 (Right to life with dignity), figures of Census 2011 reflect that there are still 26 lakh insanitary toilets in our country where human excreta is either being deposited into open drains or removed manually by the manual scavengers. The International Labour Organisation has outlined that 99% of the people forced to do this menial work are Dalits and 95% of them are women. 

A survey report conducted across three states of India on Socio Economic Status of Women Manual Scavengers by “Jan Sahas Social Development Society and UN Women” avers that women manual scavengers are denied crucial services of education and health as well as decent employment opportunities. 82% of the surveyed women never got the opportunity to go to school. The survey highlighted that their children face discrimination in the schools because they belong to the community which is considered ‘untouchable’.( It may be pertinent herein to mention that Article 17 of our Constitution  has made practice of untouchability in any form an offence punishable in accordance with law. ) 60% of women manual scavengers and their children had never visited Anganwadi centers and 59% of such families had no access to the Public Distribution System where subsidized food grains are provided by the Govt.  Their participation in local governance and political system of the country is next to negligible. Discrimination and humiliation does not allow them to raise their voice in Gram Panchayats.

Evidencing the official apathy in eradication of manual scavenging, Human Rights Watch report of 2014 documented that manual scavenging persists with the support and collusion of local officials. It elaborated that the people who have left the occupation of manual scavenging and had the support of community based civil society initiatives had to face barriers to access housing, employment and support from existing Govt. programmes.  

Social atrocities apart, this foul occupation of manual scavenging takes toll of the health of persons engaged.  The health hazards include exposure to harmful gases, cardio-vascular degeneration, musculoskeletal disorders, infections, skin problems and respiratory problems, among others.  Besides this, it has been a prevalent practice among manual scavengers to get involved in substance abuse which they claim helps them tolerate the atmosphere inside a sewer or Sewage Treatment Plant in which they have to climb into to clean the human and other mess which you and I shall even refrain to lay our sight upon.

A study by A. Ingole (2016) indicated that despite being involved in the hazardous jobs , the scavengers are not provided with necessary safety equipment(Bear in mind, that to make any person do manual scavenging sans safety equipment is a punishable offence). A survey conducted in 2015 for 1091 workers in the third best civic body of India (Pune) in the state of Maharashtra revealed that the civic body could not ensure eradication of manual scavengers and better conditions for the sewage workers and these were co-terminus with the situation in the rest of the country. The survey further reflected that most of the sewage workers came into direct contact of the human waste during their course of work and violations of the 2013 Act were rampant as most of the sewage workers lacked any form of training for the work.

A news item published in “The Hindu” on 22/09/2016, paints a graphic account of the plight of the Safai Karamcharis who are the foot soldiers of the Indian Railway’s massive cleanliness drive as part of the Swachh Bharat Abhiyaan. These safai karamcharis are employed by private contracts to whom the Indian Railways has outsourced the work. They work with their bare hands, wearing uniforms that are soiled. The only equipment they have is broom and gunny bag and with these, they clean up the railway tracks wading through filth wearing only slippers risking their person with infections and disease. The gloves and boots provided to them are uncomfortable and of poor quality and hence generally not used. One manual scavenger related “ Sometime the water doesn’t get the job done or the drains get clogged. That is when we have to scoop up the excreta with ply boards, using our hands”. Another sweeper said,” The gloves tear easily and the boots gave me sores when I tried wearing them for work”.  However, the Railway Ministry categorically denies that such manual scavengers even exist. The Railways term them as “Sweepers”.  

The above cited studies bear testimony to the fact the provisions contained from Section 11 to Section 16 of the 2013 Act for rehabilitation of the manual scavengers and other provisions too are grossly being violated and the implementing authorities have not taken up the task seriously for which it is imperative that they be held accountable and cajoled to act in an expeditious manner.

Legal Intervention

Peeved by the Governmental and administrative inaction to eradicate the plight of manual scavengers, the “Safai Karamchari Andolan” (literally meaning Sanitation Workers’ Agitation”) (SKA) filed a Public Interest Litigation (PIL) in the Supreme Court of India in the year 2003 calling for strict enforcement of the 1993 Act and enforcement of rights guaranteed by the Constitution of India. The case proceedings under the PIL continued for 12 long years, wherein SKA with other allied organizations brought forth voluminous data evidencing the existence of manual scavenging in the face of blatant denial by various State Governments. In the year 2014, the Apex Court passed a judgment on the PIL in order to prevent deaths in the sewer lines and septic tanks and directed for compensation to those who had died in the course of manual scavenging since 1993 besides directing the States again to strictly implement the 2013 Act.  In the PIL, the Apex Court took notice of the fact that “over 95% (of manual scavengers) are Dalits (persons belonging to the Scheduled Castes) who are compelled to undertake this denigrating task under the garb of ‘traditional occupation’.  The principal reason behind this continuing practice is the caste system, which is adhered to even by the so called educated people of our country.  Despite the directions of Honorable Supreme Court, the death by manual scavenging are reported on regular basis as pointed out in the beginning of this article.

Only recently, a Delhi High Court Bench headed by Justice B. D Ahmed directed the Delhi Govt. and Central Govt. to file an affidavit indicating the steps taken under the law, particularly Section 36 of the 2013 Act which contains provisions with respect to the Power of the appropriate Government to make rules under the 2013 Act. The High court was hearing a petition filed by an NGO-National Campaign for Dignity and Rights of Sewerage and Allied Workers- on rehabilitation of manual scavengers in Delhi. The Court expressed its “shock and disquiet” when a report by the Delhi State Legal Services Authority showed that several thousand persons were working as manual scavengers in the national Capital. The report stated that these were working with Delhi Jal Board, Municipal corporations, Railways or for contractors hired by these agencies in 30 out of 104 wards in Delhi.

Conclusion

Government is a model employer and when it also engages manual scavengers in violation of legislative mandate, then it sets a very bad example. The need of the hour is that the Central and the State Governments clearly spell out the rules under the Act and carve out a framework whereby the accountability of the implementing staff may be ascertained. There is a need to shun the hitherto callous attitude in implementation of the legislative intent contained in such a beautiful piece of welfare legislation.

It is the duty of our Parliamentarians to call in discussions in the parliamentary sessions asking the Govt. about the steps which have been taken, in process or proposed to be taken to ameliorate the plight of the downtrodden sections of the society especially for those sections who are on the lowest rung of the socio-economic-politico strata i.e. the manual scavengers who as the Act mandates should be rehabilitated in other professions.

Press does it work quite profoundly by bringing forth to the knowledge of general public the facts that even though we live in 21st Century, there still is a  social strata which cannot look beyond sewers and filth, a strata which has not seen proverbial light at the end of the tunnel as their tunnel is blocked with societal garbage, be it real, social, economic or attitudinal.

Last but not the least, the whole attitude of the society has to go for a paradigm shift. Our education has failed to uproot our caste affiliations. We see a person through the prism of his/her caste, his/her economic and/or social status and not for who s/he is, inherently-A Human Being like you and me.  Opportunities available and offered to a person are a consequence of the status of the person in society whereas ideal situation should envisage status acquisition being the consequence of the opportunities available,offered and availed.  In other words, when State endeavours to rehabilitate the down trodden, the society should accept those people with open hands. State is no different from the people who make it, so if we really want a change to happen, it should happen within ourselves than without.

Post Script:  As per news item published in “The Hindustan Times on 18/09/2018, consequent upon the deaths of six workers who died while cleaning in two separate incidents as averred in the beginning of this article, the Delhi Govt. woke up from its slumber and called up a meeting on 24/09/2018 of the State Monitoring Committee set up under section 26 of the 2013 Act to review measures taken to stop manual scavenging in the city.  The committee shall meet for the first time since its formation in December 2017. The biggest challenge before the Govt. is to check on private firms, which illegally engage people to clean sewers manually.  The Social Welfare Minister of Delhi Govt. said that Delhi Jal Board has prepared a Standard Operating Procedure (SOP) for cleaning sewers which shall be tabled before the Delhi Cabinet for approval which will make this SOP binding on all private buildings to contact government-approved contractors (for sewer cleaning etc.)

The National Convener of Safai Karamchari Andolan Magsaysay awardee Bezwada Wilson said, “ There is technology available to ensure mechanized cleaning of the sewer. Why can’t the Govt. ensure that no permission is given to a building if it doesn’t have the technology?” He added, “ The Centre and State lack will to implement the Act. The rules have been framed by the Centre but it can’t even ensure that the State Governments follow it. The Govt. is focussing on Swachhata Abhiyan but little is being done for sanitation workers.“

Chairman of Delhi Commission of Safai Karamcharis, Sant Lal Chawaria, said that there is no list of manual scavengers in the city and he has asked Delhi Govt. to get a fresh survey done to identify manual scavengers. On that, the Social Welfare Minister of Delhi Govt said that “ We have been able to identify 32 manual scavengers so far and are in the process of procuring 200 machines which will be given to them”. However, the National Commission for Safai Karamcharis website showed that as many as 16 sewer deaths were reported in Delhi in 2017.  Isn’t it ironic that Delhi Govt. has been able to identify only 32 manual scavengers so far?

In the meanwhile, the delay in arresting the man accused of causing the death of the 37-year-old sanitation worker mentioned in the beginning of this article allowed him (the accused) to go on the run from the clutches of the law. Satbir Kala, the accused got himself hospitalized soon after the worker’s death from where he fled. The only silver lining in the cloud, in this case, was that about 17 lakh rupees were collected for the rehabilitation of next of the kin of this 37 year demised sanitation worker through crowd-funding initiated by the reporter who wrote this news item. At least the next of kin of this demised soul won’t have to engage in this menial profession.