Explained: Manual scavenging laws

Introduction: 6-8 minutes.

“As their brooms wear down, they have to bend their backs lower and lower to sweep. When their buckets start to leak, the shit drips down their faces. In the rainy season, the filth runs all over these people, onto their hair, their noses, their mouths. Tuberculosis and infectious diseases are endemic among them.”

 – Sujata Gidla, Ants Among Elephants: An Untouchable Family and the Making of Modern India 114 (Farrar, Straus and Giroux, United States, 2017).

Quite recently, toxic fumes in a sewer tank in the national capital’s Shakurpur snuffed out the life of one sanitation worker and endangered the lives of three others. The four sanitation workers were made to clean a Public Works Department’s (PWD) sewer without any safety equipment or gear.

All of them fell unconscious as they had inhaled toxic gases and on being taken to the hospital, one was declared brought dead and the others admitted for treatment. The case was registered under section 304 (Causing death by negligence) of IPC and 7/9 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 (hereinafter PEMSR Act) against the private supervisor and the contractor.

It was alleged that the deceased had even asked the contractor to get a DJB cleaning machine but his request was not fulfilled. It is even more saddening to know that this is not the first time a life has been lost to manual scavenging.

Data collected by the National Commission for Safai Karamcharis (NCSK) reveals that at least 50 persons have died cleaning sewers in the first six months of 2019 alone. NCSK data also revealed that one manual scavenger dies every five days.

What is Manual Scavenging?

Section 2 (g) of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 defines manual scavenger as “a person engaged or employed 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 the human excreta from the insanitary latrines is disposed of.”

Manual scavenging can be dated back to ancient time particularly during the time of Varna system wherein the last in the hierarchy were Shudras or Dalits. The sub-castes of Dalits, Valmiki or Hela, who are further at the bottom of the social hierarchy, had to perform this lowly job. They are called ‘bhangi’ in the state of Uttar Pradesh which means ‘broken identity’; the word itself is derogatory. However, manual scavenging is not only a caste-based but also a gender-based occupation. Data on record shows that 90 per cent of manual scavengers are women.

Dangers Associated With the Job

The work is inhumane and associated with any dangers. Similar to the Delhi case talked about above, most of the scavengers collect human feces from dry toilets without any protective equipment. They inhale the poisonous gases coming out of sewage, and due to this abnormal breathing, there is a deficient supply of oxygen to the body; this condition is known as Asphyxiation.

Human feces, urine, disposed-off sanitary napkins, condoms and diapers make them prone to diseases like cholera, hepatitis, meningitis, typhoid, E. coli, rotavirus and cardio-vascular complexities.

It is ironic that a poor woman who struggles to afford sanitary napkins herself has to collect the soiled sanitary napkins using bare hands. Along with the job being degrading for the scavengers’ dignity, the increased health risks it carries with it are many and abundant too.

Manual Scavenging Figures in India:

The practice is found to be most prevalent in the states of Gujarat, Madhya Pradesh, Uttar Pradesh, and Rajasthan. According to socio-economic caste census report (2011), Maharashtra has 63,713, Madhya Pradesh has 23,093, Uttar Pradesh has 17,619, Tripura has 17,332 and Karnataka has 15,375 manual scavengers. Latest data on record identifies 54000 manual scavengers in the country (excluding data for 11 states which is unavailable).

According to the India Census 2011, there are more than 2.6 million dry latrines in the country. There are about 13 lakhs toilets where human excreta is flushed in open drains, 8 lakhs dry latrines where the human excreta is cleaned manually. 73 percent of these are in rural areas and 27 percent are in urban areas.

Moreover, in reply to question posed by MPs Asaduddin Owaisi and Syed Imtiyaz Jaleel, Lok Sabha was told by the Minister of State for Social Justice and Empowerment that 620 cases of death were reported since the enactment of The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 till July 2019, of which 88 cases were reported in last 3 years. But these death numbers are far from reality as it is not mandatory for states to report such cases.

Constitutional Provisions:

Constitutional provisions which are relevant include Article 14 i.e. Right to Equality; Article 17 i.e. Abolition of Untouchability and Article 21 i.e., Right to Life and Personal Liberty. Article 21 has been given very expansive and wide amplitude through judicial interpretations.

In the case of Maneka Gandhi v. Union of India, the Supreme Court (SC) widened the ambit of the provision and held that the right to live is not merely a physical right but includes within its ambit the right to live with human dignity.

Further, in the case of Bandhua Mukti Morcha v. Union of India the SC called Article 21 the “heart of fundamental rights” and observed that it is fundamental right of everyone in this country to live with human dignity free from exploitation and includes protection of the health and strength of workers, men and women, just and humane conditions of work and maternity relief. The practice of manual scavenging is prima facie in violation of this aspect of Article 21 as it jeopardizes the scavengers’ health due to lack of humane work.

In Indian Young Lawyers Association and Ors. v. The State of Kerala and Ors. D. Y. Chandrachud J. observed that “even seventy years after independence, a section of Dalits has been forced to continue with the indignity of manual scavenging. Manual scavengers have been the worst victims of the system of ‘purity and pollution.’ Article 17 was a promise to lower castes that they will be free from social oppression. Yet for the marginalized societies, little has changed.”

Manual Scavenging Laws:

25 years ago, parliament passed ‘Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 banning manual scavenging in all forms, but that law turned out to be toothless. People did not do away with insanitary latrines, and that is the main reason the practice of manual scavenging is still practiced.

Again in 2013, newly amended law was promulgated by parliament as ‘Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013.’

  • The earlier act had a provision that the District Magistrate will solve all the cases, but that is not the case with PEMSR Act where identification of manual scavengers is to be done by a local authority, cantonment board, and railway authority by carrying out a survey in their area of jurisdiction.
  • Within 2 months of the act, authorities have to identify insanity latrines and publish a list of it, after which due notice is given to those who have constructed or used insanitary latrines, they are asked to demolish it or convert it into sanitary latrines within 6 months of such notice. Authorities are also mandated to build an adequate number of sanitary latrines in their area for 3 years.
  • The 1993 Act did not have any provision for rehabilitation. However, under the new Act, rehabilitation is done by providing them training for alternate employment, financial help, and help with purchasing the property. PEMSR Act has failed in one aspect that it has not made any provision for rehabilitation of those who were liberated from manual scavenging before 2013. These liberated manual scavengers face atrocities and violence in the community or society they live in.
  • PEMSR Act has also made the building of insanitary latrines and employing people in manual scavenging a penal offence.

Remarks and Probable Way Forward:

While the laws are certainly there, for them to be truly effective and any change to be brought in society, cooperation with all the stakeholders is required. PEMSR Act says that those who are cleaning human waste with the help of appropriate protective gear and equipment will not be considered manual scavengers. The onus is on authorities to provide or see whether such equipment is provided by the contractor or supervisor who employs people for such work.

The problem is just not social but technical as well. There are structural problems with the design of septic tanks that store human waste from dry latrines. Tanks have engineering defects, which after certain machine cleaning, requires human to enter into and clean it manually. The problem is increasing with the government’s ambitious ‘Swachh Bharat Mission.’

Under this mission, millions of septic tanks are built with toilets in a rural area. Center, State, and Local Authorities need to prioritize sanitation programs related to human fecal waste management. Otherwise, the burden of it will shift on the lowest rung of the society who has traditionally been doing it for years.

Many cities also don’t have sewerage lines that cover the whole city. Sometimes sewerage lines get clogged, and due to lack of technical knowledge, the human is forced to enter for cleaning.

One way to end manual scavenging is using technological innovation. The Hyderabad Water Supply and Sewerage Board deployed 70 mini jetting machines aiming to eliminate the horrific practice. Under it 70 sanitary soldiers have been created, who have been provided with ‘bacteria-free uniforms’ which has been done first time in India.

In Thiruvananthapuram, a spider-shaped robot that cleans manholes and sewers with precision has been designed. Innovations like Bandicoot, sewer-croc and sepoy septic tank robots are the potential inventions to provide a solution cum replacement for manual scavengers.

However, a RTI report shows that the government released zero funds for manual scavengers between 2014-2018, it was only after this data was in the public domain the government took requisite actions. Any of these solutions won’t be of any help if the government is not keen to eradicate this stinking legacy.

Furthermore, awareness should be created among people about its ills and their rights. With technology taking over their jobs, they should also be provided with an alternate livelihood option. However, a greater evil would lie ahead which would be changing the thinking of the society that would still look down upon these people.

The caste-based and gender-based discrimination needs to be eradicated from the minds of the people in the society for the problem to truly evaporate from our society.

Authors: Prakhar Raghuvanshi from NLU, Jodhpur and Parth Thummar from IIT, Kharagpur.

Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.

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