Explained: Manual Scavengers Act, 2013

Reading time: 6-8 minutes.

Manual Scavenging is a dehumanizing and caste-based practice deeply rooted in Indian society for ages. This undignified practice requires a manual scavenger to manually remove untreated human excreta from bucket toilets or pit latrines by hands with buckets and shovels. This practice is not only problematic given the right to health and the right to life; it is also a threat to human dignity and raises questions of discrimination and casteism.

 Although this practice is outlawed by the Employment of Manual Scavenger & Construction of Latrines (Prohibition) Act, 1993, and Prohibition of Employment as Manual Scavenger & their Rehabilitation Act 2013, it continues to plague the downtrodden sections of the society.

National Commission for Safai Karamcharis report on deaths of manual scavengers from January 2017-18 depicts that, in India, every five days, a manual scavenger dies in a sewer, septic tank, or a manhole. Not only this, but according to the Census of 2011, there are more than 2.6 million dry latrines in the country. There are 13,14,652 toilets where human excreta is flushed in open drains, 7,94,390 dry latrines where human excreta is cleaned manually. These facts disclose the sorry state of affairs in our country and the gross failure of this well-intentioned legislation in curbing the barbaric practice.

Salient features of Prohibition of Employment as Manual Scavangers and their Rehabilitation Act 2013

Due to the loopholes in the Act of 1993, the government passed the Prohibition of Employment as Manual Scavengers & their Rehabilitation Act 2013, which reinforced the ban on manual scavenging. Following are the key features-

  • It bans manual scavenging and also discharges employees who are engaged in this practice on a contractual or regular basis.
  • It widened the definition of manual scavengers by including in it all forms of manual removal of human excreta like an open drain, pit latrine, septic tanks, manholes, and removal of excreta on the railway tracks. 
  • It lays key focus on rehabilitating the manual scavengers by providing them with ready-built houses, financial assistance & loans for taking up alternate occupation on a sustainable basis, organizing training programs for the scavengers so that they can opt for some other profession at a stipend of Rs. 3000 and offering scholarships to their children under the relevant scheme of the government.
  • The Act makes the offense of manual scavenging cognizable and non-bailable.
  • It calls for a survey of manual scavenging in urban & rural areas and the conversion of insanitary latrines into sanitary latrines.
  • It makes it obligatory for employers to provide protective tools to the workers.

Objectives & purpose of the Act

The 2013 legislation aims to provide manual scavengers the Right to live with dignity enshrined under the Constitution, to protect weaker sections from social injustice, to end the continuing existence of insanitary latrines and a highly unfair caste system, to rehabilitate them to a life of dignity and to correct the historical injustice and indignity suffered by the them. In the light of inadequacy and failure of the previous law in eliminating the evils of insanitary latrines and manual scavenging, the present act came into force.

Why was the act introduced?

Many areas were untouched by the 1993 Act, which needed to be taken into account. The perspective of the Act of 1993 was limited to sanitation. It covered only dry latrines, and the definition of manual scavenging was restricted to a person employed for manually carrying human excreta. There was no stress laid upon the rehabilitation of these workers. The lenient penal punishment of one-year imprisonment and fine of Rs. 2000 could not create deterrence in society, as was evident from the deaths of manual scavengers.

The courts have also adopted a stern attitude towards manual scavenging and criticized the state authorities for failing to eliminate this practice in Safai Karamchari Andolan v. Union of India, where the Honourable Court highlighted the importance of rehabilitation so that present, as well as future generations, could be prevented from working as a manual scavenger. Thus, arose the need for entirely new legislation.

Analysis of progress made under it 

The New Act of 2013 brought under the purview of manual scavenging the Indian Railways as well. This has led to the coming up of bio-toilets in trains for treating human excreta.

According to the Government of India, there are 54,130 manual scavengers across 13 states post 2013. However, the newspaper reports say that the number is understated as the survey was conducted only in areas where there are reasons to believe the existence of manual scavengers. The survey was conducted in 170 districts in 18 states. The newspaper report states that if the official surveys of the 2011 census are compared with the data after 2013, a lot of imbalance is detected in reporting the real number of manual scavengers.

For instance, UP is among the most imbalanced state where there is a very high number of service latrines and a relatively low number of manual scavengers. It is also believed that the benefits of 2013 Act do not reach all the affected families, which defeats the very purpose of this legislation.

Scope of improvement 

The act of 2013 under Section 2(g) provides that in cases where protective gear is provided, the person employed to do the task would not be deemed as a manual scavenger, which is a flawed provision. The responsibility to provide for such safety gear rests upon the employer. Most of the municipal cleaning is outsourced, and thus, this responsibility falls on the private employers who fail to comply with the provisions under Rule 5 of the Act.

Another question is whether these safety tools are useful enough to protect the workers from life-threatening diseases like hepatitis, typhoid, cholera, jaundice, and other toxic gases. Thus, the issue needs to be revisited by the parliament. 

Another issue is the provision of treating these cases as a summary trial as it would compromise on the gravity of the offense. In Cr.P.C., a summary trial is conducted in the non-cognizable offenses only. However, this practice is termed as cognizable and non-bailable under the present act. 

The act fails to prescribe the time for the conversion of insanitary latrine into sanitary ones. Thus, the time must be specified.

Conclusion

There are various legislations, and budget allocations made by the parliament to end this practice not much has been achieved in this regard. No legislation can bore fruits without the countenance of the people of the country. There is no doubt that the schemes of the government have failed miserly due to the loopholes in the system, but the origin of this problem is the existence and continuance of the caste system in the society to date. The stigma attached to casteism has to be done away if we, as a nation, want to tread upon the path of progress. 

Community initiatives are crucial for abolishing manual scavenging. The community should discourage and stop subletting the service like sewer cleaning. People should pledge to adopt sanitary practices and vow to not encourage or employ manual scavengers for such menial tasks. 

There is a need to adopt a National Level monitoring system comprising of representatives from concerned ministries, social workers from NGOs working for this   cause, and other members from the public interested in the cause. This committee will keep a close check on the implementation of the present Act and related schemes to find loopholes in the system, which can be taken into account for ensuring an efficient system in place. 

Lastly, NGOs working for this noble cause should be roped into work along with the government to ensure the proper implementation of the act in urban as well as rural areas.

Author: Mehak Mehra from University Institute of Legal Studies, Panjab University, Chandigarh.

Editor: Tamanna Gupta from RGNUL, Patiala

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.