By Rashmi Singh, ILS Law College, Pune.
Employment is a basic need for every person. It is the objective which comes next to education in a person’s life. Obtaining an employment in our country is a difficult task for many people. Even if a person gets employed , the questions which would be dealt with here are, that how far can a person go for a job? Which person should be given what job, on what basis and what all can it involve?
These questions are with respect to a work which around twelve lakh people in our country perform on a daily basis. It involves physically removing human excrement from pit latrines, dry toilets, drains and railway tracks using bare hands or equipments such as buckets, brooms and tins, and then carrying it to dispose off at a faraway location. All the work is done without the use of any physical protection such as masks, gloves or any costume. The work is termed as manual scavenging and it is technically an illegal occupation in India.
The manual scavenging system is a part of Indian history and has persisted for a very long time having its roots in the caste system. Persons belonging to the ‘lower caste’ were employed to carry out the cleaning task at the houses of ‘upper caste’ families. The work was mainly done by women and was carried on further from generation to generation. They were and still are provided with leftover food, old clothes or a meagre amount of money in lieu of the work. This system is prevalent in the present day too, even after decades of independence and abolition of caste system. Most of the present day manual workers in villages are forced to do the work only because they belong to a particular caste even after being educated. Women who want to free themselves out of this system are threatened by the people of ‘higher caste’ as a result of which they are pulled back to the position where they were decades ago, leaving no scope for alternate employment.
Such kind of a work is highly demeaning and humiliating to a person and prima facie violation of the personal and human rights of an individual. Apart from societal humiliation, manual scavengers also face untouchability practices and are discriminated in various areas of daily life such as education for their children, obtaining an alternative job, etc. They are also at a very high risk of contracting diseases having severe health consequences.
The practice of manual scavenging is in direct violation of various fundamental rights guaranteed to an individual under the Constitution; it clearly violates the right to equality under the law envisaged under Article 14, the abolished practice of untouchability under Article 17 and the right to life and personal liberty under Article 21. The practice is also in violation of various international covenants such as Universal Declaration of Human Rights (UDHR), Committee on the Elimination of Racial Discrimination (CERD) and Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). Article 23(3) of UDHR states that “Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection”. Article 5(a) of CEDAW states that “State parties shall take all appropriate measures – (a) to modify social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudice and customary and all other practices which are based on the idea of inferiority and superiority of either of the sexes or on stereotyped roles for men and women.” India being a party to all these conventions was in direct violation of the principles envisaged in the said conventions by not having any legislation to protect the rights of the persons employed as manual scavengers.
Manual scavenging was legally banned in India by the enactment of The Employment of Manual Scavengers and Construction of Dry Latrine (Prohibition) Act, 1993. It was enacted to provide for prohibition of employment of manual scavengers as well as construction or continuance of dry latrines and for regulation of construction and maintenance of water-seal latrines and related matters. The construction or maintenance of insanitary toilets and engagement of anyone as a manual scavenger was recognised as an offence under the Act, for which imprisonment up to a year and a fine up to Rs. 50,000 were enacted to be levied. However, the Act did not see the light of the day for three and a half years. Thereupon, the Act was implemented in six States and all the Union Territories, but rest of the States failed to apply the Act. Hence, even after the enactment, there was not much change in the plight of the manual scavengers.
There were also several loopholes in the 1993 Act which contributed to the failure of the implementation of the Act. The Act only provided remedies to the persons who were engaged in manual scavenging of dry toilets at houses. However, the reality is that even in the urban areas persons are employed by the municipalities as ‘safai karmcharis’ whose work is same as that of a manual scavenger. The distressing thing to note is that even after employment by the municipalities, the workers are not given any protective gear to carry on the task. Moreover, the Indian Railways is considered as the biggest violator of the manual scavenging laws. The situation arises due to the human waste disposal system employed by the Indian Railways, which allows the waste to be disposed on the railway tracks, which eventually is cleaned by the employees through the traditional methods of scavenging. Even after various reforms in the advancement of Indian Railways, the administration has failed to protect the rights of such people.
In September, 2013, due to the efforts of the former manual scavengers and Dalit rights activists, the Parliament enacted a new legislation called the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 to strengthen the accountability mechanisms, widen the definition of manual scavenging, and shift focus of initiatives to end manual scavenging beyond sanitation to protection of the dignity of communities engaged as manual scavengers. The Act prohibits any person, local authority or agency from engaging or employing a manual scavenger. The Act also prohibits dry latrines, outlaws all manual cleaning of excrement as well as cleaning gutters, sewers and septic tanks without gear. The Act also attempts to remedy the historical discrimination suffered by the families of manual scavengers by providing them one-time cash assistance, education facilities for children, housing and alternate livelihood support.
The 2013 Act has broadened the perspective with respect to the rights and rehabilitation of manual scavengers; however the provisions will only take effect when the States implement them effectively. Various powers and functions have been given to the State Government under the Act so as to implement the provisions to an extent to eliminate such a practice. The problems arise at local levels in villages and rural areas where the administrative bodies such as Panchayats themselves disregard the law and hence contribute to the violation of law by restricting the rights of manual scavengers and disallowing them to find an alternate method of livelihood.
A writ petition was filed by Safai Karmchari Andolan in the year 2003 to enforce the compliance of the 1993 Act by abolishing the inhuman practice of manual scavenging, prohibition on use of dry toilets and rehabilitation of persons engaged in the same. The Supreme Court passed the landmark judgment in the case in the year 2014 directing the State Governments and Union Territories to fully implement the 2013 Act and take appropriate action for the violation of the provisions of the Act. The Court pointed out that the rehabilitation of manual scavengers should include sewer deaths (entering sewer lines without safety gears should be made a crime), strategy to end manual scavenging on railway tracks and easy access to persons who have migrated from manual scavenging. The case was considered as a huge victory for the manual scavengers groups who had been fighting for their rights for more than a decade.
The number of houses employing manual scavengers has definitely decreased over the years and due to various efforts taken by the States and organisations, but the practice has still not been eradicated completely. The current data still shows a considerable number of manual scavengers employed in various States, Maharashtra, Uttar Pradesh and Madhya Pradesh being the topmost amongst them. Positive steps have also been taken, such as the Rajasthan Government has instructed a fresh survey of the number of manual scavengers in the State and has directed the officials to ensure rehabilitation as per Centre guidelines. It is disappointing that even after the first legislation being enacted in 1993, the practice has not yet been eradicated, but a swift decrease has been noted in years and especially after the Supreme Court judgment. The eradication of the practice is a prime objective of the Swacchh Bharat Abhiyan and it is encouraging to see the State Governments working towards it.