Manual Scavenging Activity Will Now Be A Personal Liability Of The Municipality

Key Takeaways

• The International Labor Organization has defined the management of the manual scavenging mainly to include disposal and maintenance of septic tanks, sewerage, and gutters of human excreta from the dry latrine.
• The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013, is a law that prohibits any manual scavenging and dry cleaning, including sewage purification, septic tanks, or gutters without proper types of equipment or protective gears.
• Untouchability and caste-based discrimination have been eliminated by the Indian Constitution, as Article 17 complies with the International Code of Human Rights.
• The "National Commission for Safai Karamchari." has the authority to investigate, evaluate, and monitor sanitation worker schemes.

Introduction

Sanitary work is linked tothe echelon in India. Manual scavenging can be considered to be the worst sign of untouchability. A manual scavenger is someone hired by a municipality, agency, individual, or contractor to clean, handle, dispose of, or transport human waste. Since Independence, it has been abolished but it persists in many Indian regions. This article aims at analysing manual scavenging scenarios in India while explaining the violation of rights due to this practice.Many legislations, judgments, and conventions have been passed to deal with the same issue in the past few years. The article aims to cover all of these aspects in brief.

What Is Manual Scavenging

The International Labor Organization has defined the management of manual scavenging mainly to include disposal of human excreta from dry latrines in public streets and maintenance of septic tanks, sewerage, and gutters. India has this practice predominantly. Still, it is common in other parts of the world.Apart from Dalits, 'safaikaramcharis' is another group or group of people sometimes referred to as manual scavengers.

The official definition of a manual scavenger in the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 is:

"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 unsanitary latrine or in an open drain or pit into which the human excreta from the unsanitary latrines is disposed of, or railway track or in such other spaces or premises, as the Central Government or a State Government may notify, before the excreta fully decomposes in such manner as may be prescribed, and the expression "manual scavenging" shall be construed accordingly."

Why Is Manual Scavenging A Violation Of Rights

An age-old practice for a particular group of people known as "manual scavenging" has been a caste based, and hereditary profession passed down from generation to generation, and the practice has unfortunately remained unaffected by the advancement of sanitary practices. Not only does the prevalence of this culture seem old-fashioned, but those born into this community are considered polluters due to their birth-based social hierarchy. They are the most despised and ostracized caste of the Indian society, referred to as 'victims of casteism" by the activists.

Apart from social discrimination, manual scavenging also leads to health issues. Scavengers are forced to work in filthy conditions. They are exposed to hydrogen disulphide, carbon (IV) oxide, ammonia, and methane, among other gases. Long-term exposure to hydrogen disulphide can result in asphyxia and death. The person may also have epileptiform convulsions, lose consciousness, and die as a result. Visual acuity is also linked to gas.

In India, the prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013, is a law that prohibits any manual and dry cleaning, including sewage purification, septic tanks, or gutters without proper types of equipment or protective gears, in opposition to manual cleaning. Hence, because sanitation is a state issue, the law is state-specific. While manual scavenging is far more than a state issue, it is also a breach of human rights.

The manual scavenging provision of the Constitution not only violates the document but is also a violation of human rights. Untouchability and caste-based discrimination have been eliminated by the Indian Constitution, as Article 17 complies with the International Code of Human Rights. Additionally, Article 15 eradicates discrimination based on caste. In addition, human dignity is an unquestionable and unassailable right, as it is a basic right to life, i.e., a fundamental right.

With the Indian courts and the Constitution recognize human dignity as the most essential, inalienable, fundamental, and basic of all rights, the courts found that dignity must be ensured to all individuals. Universal Declaration of Human Rights (UDHR) Article 1, 22, and 23, and the National Commission on Human Rights, each guarantee the equal right of all people to human dignity.

Statistics And The Discrepancies

The statistics show the exact reason why the activity of manual scavenging is a violation of rights to the people involved in its practice.According to the 2011 Socio-Economic Caste Census, manual scavenging provided a living for 180,657 households. According to the 2011 Census of India, there were 794,000 cases of manual scavenging across the country. With 63,713, Maharashtra leads the list of states with the most households working as manual scavengers, followed by Madhya Pradesh, Uttar Pradesh, Tripura, and Karnataka.

A question about the number of deaths caused by manual scavenging was recently raised in the Rajya Sabha. According to the information received, a total of 282 people died as a result of sewer and septic tank cleaning. These deaths occurred between the years 2016 and 2019. Tamil Nadu has the highest number of deaths (41) out of all the states. Haryana has had 31 deaths, while Gujarat and Delhi have both had 30. Maharashtra and Uttar Pradesh have each lost 27 people. The data also states that the maximum number of deaths occurred in 2017 and 2019 (till November).

However, compared to the number of unsanitary latrines, the Government data shows a disproportionately low number of manual scavengers. According to the 20th Annual Report (2016-2017) of the National Safai Karamchari Finance and Development Corporation, there are 26 lakh unsanitary latrines in the Country. However, as to the report, there were 12,742 manual scavengers in 13 states as of March 31, 2017, which appears to be disproportionate.

Manual scavengers are under-counted in India. The number of manual scavengers discovered by various governments does not match the number found in independent researches.In its survey in Andhra Pradesh, the Ministry of Social Justice and Empowerment (MSJE) reported that there are 6,77,8225 urban households and a total of 1,73,690 unsanitary latrines. However, they identified only 124 manual scavengers. Similarly, in Tamil Nadu, the State Government identified only 363 manual scavengers. Still, a 2013 survey by the National Commission for Safai Karamcharis found 3032 manual scavengers in just eight districts.

The MSJE has issued survey guidelines, but it appears that state governments lack a uniform, well-defined methodology, compounded by a culture of denial among the State and other government officials. Official figures vastly underestimate reality. Due to the low number of reported cases, the National Crime Records Bureau does not publish separate data on manual scavenging.

Relevant Campaigns

Several national and international campaigns to eliminate manual scavenging have been launched. 2007 saw the launch of an international "Action 2010' for manual scavenging, the "liberation movement for scavenger workers" (Safari Karamchari Andolan-SKA) in Delhi to end manual scavenging by the October 2010 Commonwealth Games.In the same year, the International Labour Organization (ILO) Committee of Experts urged the Indian government to take decisive action to end manual scavenging and report on the progress made in identifying, liberating, and rehabilitating scavengers on a national and state-by-state basis.

In solidarity with the SKA, DSN-UK launched the FOUL PLAY campaign, which made many recommendations to the Indian and UK governments and the Commonwealth Secretariat, which they were expected to implement before the 2010 games. SKA's demands, including the release of over Rs. 800 crores for the rehabilitation of manual scavengers, were supported by DSN-UK.A national public hearing on "Rehabilitation of Manual Scavengers and Their Children in India" was held in March 2012 to increase the political will to address the issues and sensitize and involve other sections of the society in the rehabilitation efforts.

Important Legislations Safeguarding The Manual Scavengers

The Constitution of India -Several Articles are connected with safeguarding and providing the rights to the manual scavengers. Some of such Articles are:

• Article 14 – Right to Equality: This constitutional provision ensures equality. It means that no one will be discriminated against based on their class or caste.
• Article 16 (2) –Prohibits discrimination based on caste in public employment.
• Article 17 – Abolition of Untouchability. The Protection of Civil Rights Act of 1955 reduced the practice of untouchability, but it still exists in a shadow.
• Article 19 (1) (g) – Right to practice any profession or carry on any occupation, trade, or business.
• Article 21 – Right to Life and Personal Liberty: The Indian Constitution guarantees the right to life and lives with dignity.
• Article 23 – Prohibition of traffic in human beings and forced labor
• Article 42 – Provision for just and humane conditions of work and maternity relief.
• Article 46 – Promotion of educational and economic interests of weaker sections (including SC/ST)
• Article 47 – The State is obligated to protect and promote the level of nutrition, the standard of living, and public health.
• Article 338 – Provision for the constitution of a National Commission for Scheduled Caste.

The Protection of Civil Rights Act, 1955 -The custom of untouchability was declared a cognizable and non-compoundable crime under the amended Act, and those who practiced it faced harsher penalties.

The Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989- The Central Government amended the Act to make it illegal to hire, authorize, or make any person from the SC/ST community do manual scavenging. The offence is punishable by a minimum of six months in prison and a maximum of five years in prison, as well as a fine.

Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 -This legislation prohibits the use of manual scavengers and the construction or continuation of dry latrines. It regulates the construction and maintenance of sealed water latrines, among other things. It was superseded in 2013 by the PEMSR Act.

National Commission for Safai Karamcharis Act, 1993 -A legislation was passed to create the "National Commission for Safai Karamchari."The commission has the authority to investigate, evaluate, and monitor sanitation worker schemes (Safai Karamcharis). It is a self-governing body tasked with overseeing the implementation of the plans mentioned above.

Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 - This Act is significant. It described manual scavengers in greater detail, including not only dry latrines but also other types. It provides that offences under this Act are clearly defined, non-refundable, and punishable by harsh penalties.It is also stated that Vigilance / Surveillance Committees should be established at the subdivision, district, state, and central levels.

Self-employment scheme for rehabilitation of manual scavenging (SRMS) - The SRMS was also updated in November 2013 to reflect the 2013 MS Act. The Ministry of Social Justice and Empowerment introduced the 'Self Employment System for Manual Scavengers' Rehabilitation (SRMS). Scavengers are being identified and rehabilitated by the Ministry of Social Justice and Empowerment in collaboration with NGOs like Safai Karamchari Andolan and Rashtriya Garima Abhiyan.

National scheme of liberation and rehabilitation of scavengers and their dependents (NSLRSD) - The Central Government launched NSLSRD in 1989 to rehabilitate manual scavengers. The CAG reported in 2003 that the program had failed to achieve its objectives. 600 crores were invested in vain, as there was no proof that those released had been rehabilitated. The report also suggested that there was no connection between "liberation" and "rehabilitation."

Swachh Bharat Abhiyaan (2014- 19) - Six years after the Swachh Bharat Abhiyan was launched, the situation of manual scavengers has deteriorated. The campaign promotes composting and bio-toilets, but many opt for septic tanks. Septic tanks pollute groundwater and require manual scavengers to clean and empty them. After enacting the Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013, the country has seen more than 1500 deaths while cleaning septic tanks, drains, and sewers. A group of sanitation workers called "Stop Killing Us"was formed to protest these deaths.

Manual scavenging must be eradicated and modern technology latrines should be installed to make SBM a success.It addressed the lack of toilets, but not faecal sludge management or manual scavenging.118,474 manual scavengers and their families were listed in the 2017 "Self-Employment Scheme for Manual Scavenger Rehabilitation." 78,474 beneficiaries were also found worthy of housing loans and livelihoods.

Organizations That Work For The Manual Scavengers

Jan Jagriti Aawahan Bahuuddeshiya Samiti (JJAS) – JJAS runs a school/daycare facility for the manual scavengers’ children and other marginalized communities in Nagpur. A couple from a family of manual scavengers started the organization unaware of the differences and discrimination their family and community faced. They organize health camps and clinics with other NGOs and government agencies to raise awareness on manual scavengers' rights. They also help young people leave their caste based jobs and find alternative work.

Jan Sahas Organisation – It has rescued over 31,000 manual scavengers and bonded labourers in 200 districts in 18 states. The foundation helps the rescued manual scavengers financially. It also started a program called 'barefoot paralegals,' where former manual scavenging victims were trained to advocate for others. Their efforts have increased the conviction rate for sexual crimes against Dalit women from 2% to 38% in just a few years.

Important Judgments

In the landmark case of Safai Karamchari Andolan v Union of India and Others (2014), the Supreme Court directed that the rehabilitation of 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 in accordance with the provisions laid down in Part IV of that Act. The Court also stated that this compliance is necessary to end the practice and tradition of manual scavenging and ensure that this inhumane activity does not continue in future generations.

The rehabilitation of manual scavengers must be based on the principles of justice and transformation.The State Government and the UTs were also ordered by the Court to fully implement the provisions of the Act and take appropriate action against offenders and violators.

In another case, National Campaign for Dalit Human Rights v. Union of India, (2017) 2 SCC 432 PART I 109, it was observed that the only way to achieve untouchability is to deal with the concepts that it encompasses. Ideas of purity and pollution have sustained it. The Constitution attempts a dynamic shift in the social orderings that have institutionalized prejudice and discrimination by abolishing untouchability. It was stated that the first characteristic is a moral reaffirmation of human dignity and a society based on equal rights. The practice of untouchability is prohibited, which is the second prominent feature of Article 17. The institution of untouchability was abolished, and the practice as a manifestation was abolished as a result.

The third notable feature is that untouchability is prohibited in all forms. The prohibition encompasses all manifestations of untouchability. Article 17 also states that enforcing disabilities based on untouchability is a crime punishable by law. The criminal law's long arms will help implement the prohibition.

In the recent case of Safai Karamchari Andolan and Others v. Union of India and Others, 2021, to combat the evil of manual scavenging, which has claimed several lives in the past, the Madras High Court ruled that municipal heads will be held personally liable if anyone is caught in activities of manual scavenging. It also ordered that the heads of corporations and municipalities file written undertakings stating that no manual scavenging work would be allowed within their jurisdiction. The Court went on to say that it could issue an order requiring any commissioner associated with a corporation or the head of the municipality to provide such an undertaking "when assuming office in the future."

An NGO petitioned the Court to end manual scavenging and ensure proper rehabilitation of victims of manual scavenging. The Court also stated that municipal officials and cooperative commissioners would be personally liable if manual scavenging activities were discovered within their jurisdiction. The State was also ordered to obtain appropriate machines or improve sewer lines to eliminate manual scavenging throughout the State. The Court also ordered corporate and municipal leaders to ensure that no private person engages in manual scavenging or engages others to do so.

Conclusion

The first step in combating manual scavenging is pinpointing problem areas and identifying and rehabilitating scavengers as required by law. Secondly, the disparity in data, such as the number of manual scavengers compared to the number of insanitary latrines, or the denial of manual scavenging, suggests that surveying and identification have not been adequately carried out. More time and effort are required to fulfil this obligation meaningfully. Also, when manual scavengers migrate to other parts of the country, they face language and cultural barriers, making it challenging to self-identify as such. So, civil society and state governments should raise awareness to ensure that they get their dues. Aside from relief and rehabilitation, manual scavengers should be compensated for structural inequalities as well.

The social stigma that these workers face must be addressed; they are frequently viewed as polluted and untouchables and treated horribly. The men and women who are usually employed in such places continue to work despite the danger because they have no other source of income. A law is never enough unless it is enforced vigorously and the government takes strict action. The country's sewers and waste disposal system must also be designed to safely dispose of waste by machines.

Questions

Which Article of the Indian Constitution abolishes untouchability?

Which Indian legislation prohibits the employment of people as manual scavengers?