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Mainstream, VOL LIX No 30, New Delhi, July 10, 2021

Manual scavenging laws in India: Some Observations | Jannat

Friday 9 July 2021

by Jannat

Introduction 

Manual scavenging refers to cleaning, removing, disposing of, or otherwise dealing with human excreta in an unsanitary latrine, an open drain or sewer, a septic tank, or a pit manually. Buckets, brooms, and shovels are common hand instruments used by manual scavengers. Using brooms and tin plates, the workers must transfer the excreta into baskets, which they then transport to disposal sites, which can be several kilometres distant. Personal protection equipment (PPE) is rarely used. More than 500,000 manual scavengers clean, carry and dispose of human excreta and whatever else we flush down the toilet around the country, from drains and sewers to septic tanks and railway lines. They force their way into blocked sewers and septic tanks, where they spend hours scraping mud with their bare hands and stinking of filth.

Historical background

Manual scavenging has been practised in India for several millennia. It has strong origins in India’s caste-based occupational structure. Mughal ladies under purdah used confined toilets that had to be scrounged. When the first towns were established in British India, manual scavengers were recruited to remove rubbish from public toilets. These toilets were equipped with a flush system within a century, but by that time, most families had ‘outhouses’ or dry latrines that required human scavengers. Dalits, the lowest caste in the system, were and still are employed as scavengers. Even within the Dalit community, the lowest sub-castes are the ones that do scavenging jobs. In Uttar Pradesh and Gujarat, they are known as Bhangis, in Andhra Pradesh as Phakis, in Haryana as Balmiki, and in Tamil Nadu as Sikkaliars. The phrase ’Bhangi’ literally means ’broken identity,’ and it is a pejorative epithet. Finding a different career is very hard since power and caste hierarchy are frequently linked in a complicated web.[1]

Legislative framework

Constitution of India

The Indian constitution has many provisions about the ban of manual scavenging, but Articles 17 and 23 talk primarily about provisions related to Manual scavenging.
Article 17 deals with the elimination of untouchability, stating that "untouchability" is outlawed and that its use in whatever form is prohibited. Any disability imposed as a result of "untouchability" will be considered a criminal offence punished by law.
Article 23 deals with human trafficking and forced labour restrictions. ‘Human trafficking, beggaring, and other kinds of forced labour are banned, and any violation of this article shall be a criminal offence punished by law.’

Other Articles of the constitution are also pertinent to the prejudice that manual scavengers confront regularly. Article 14 proclaims all people equal in the eyes of the law, while Article 15 forbids discrimination based on created religion, caste, or sex.

National commission for Safai Karamchari Act, 1993

The national commission for safai karamcharis Act, 1993, requires the central government to establish a seven-member national commission for safai karamcharis to address matters relating to manual scavengers or safai karamcharis. The national commission’s powers and functions under Section 8 of the Act include recommending to the central government-specific programs to eliminate inequalities in status, facilities, and opportunities for safai karamcharis through a time-bound action plan, conducting studies to evaluate the implementation of programs and schemes related to social and economic rehabilitation, and recommending to the central government-specific programs to eliminate inequalities in status, facilities, and opportunities for safai karamcharis through a time-bound action plan.

The prohibition of employment as manual scavengers and their rehabilitation Act 2013
The legislation forbids the employment of a person as a manual scavenger, for hazardous sewage or septic tank cleaning (manual cleaning without protective gear or other safety procedures), and the building of insanitary latrines. It offered for the retraining of those who are presently employed in the field. The statute superseded the employment of manual scavengers and construction of dry latrines (Prohibition) Act, 1993 as well as State manual scavenging laws.

According to this Act, every local government (municipality, panchayat, cantonment board, or railway authority) is required to inspect insanitary latrines within its jurisdiction. A municipality or panchayat’s Chief Executive Officer may undertake a survey to identify manual scavengers. Every occupant (and in some circumstances, owner) of an unsanitary latrine must demolish or convert the latrine into a sanitary latrine at his own expense. If he or she fails to comply, the local government may modify or demolish the latrine and seek reimbursement from the occupant. Occupants may receive aid from state governments in converting latrines. Non-receipt of aid, on the other hand, shall not be a legal reason to use an unsanitary toilet. Each local government must conduct a public awareness campaign to ensure that the law’s requirements are followed.

Contracts with manual scavengers are void. Manual scavengers will be rehabilitated with one-time cash aid, scholarships for their children, and a residential plot with financial support for house construction. One adult member of the household will be taught a livelihood skill and will be paid a monthly stipend of at least Rs 3,000 while undergoing the training. For taking up alternative employment, a subsidy and a concessional loan will be provided.[2]

Prohibition of employment as manual scavengers and their rehabilitation (Amendment) Bill, 2020

The (Amendment) Bill, 2020, includes a proposal to introduce means for the ‘On Site’ protection and compensation of manual scavengers in the event of sewer death, as well as total mechanization of sewage cleaning. This bill is part of the National Action Plan of the Ministry of Social Justice and Empowerment, which calls for not just tightening current regulations but also eradicating the practice by covering the "administration" of unsewered regions with better faecal sludge management plans. This bill amends the Act of 2013.

An analysis

The destiny of these statues was similar to that of many others established by Indian legislatures that favour or protect the poor and marginalized. These laws are seldom recognized, much less enforced. The National Commission for Safai Karamcharis was formed 28 years ago and manual scavenging is still an ongoing practice therefore the commission can be said to be a failure. By 2001, most state governments had not even been notified of the law, and those that had did not set any enforcement measures. Local governments frequently operated dry toilets and hired individuals, mostly women of particular castes, to physically clean them, yet these same governments claimed that manual scavenging did not exist in their states. This statute has only been used to prosecute a few people. The Railways and other central government institutions brazenly broke the law. The National Crime Records Bureau (NCRB) continues to fail to provide statistics on cases filed under the Act of 2013 in its ‘Crime in India’ reports for 2017 and 2018.[3]

According to the National Safai Karamcharis Finance and Development Corporation (NSKFDC), which works under the Ministry of Social Justice and Empowerment of the Central government, Rs 55 crore was issued during the previous UPA administration’s tenure in 2013-14. Since then, until September 22, 2017, no paisa has been released to rehabilitate manual scavengers. Activists have claimed that the government does not reveal the genuine number of manual scavengers employed.[4]

Courts and their judgments

Safai karamchari Andolan & Ors v. Union of India & Ors, 2014

The petitioners filed a writ petition as a Public Interest Litigation under Article 32 of the Indian constitution, requesting the issuance of a writ of mandamus to the respondents- Union of India, State Governments, and Union Territories to strictly enforce the implementation of the employment of manual scavengers and construction of dry latrines (Prohibition) Act, 1993, among other things seeking for enforcement of fundamental rights guaranteed under Articles 14, 17, 21 and Article 47 of the constitution of India. The Supreme Court-mandated scavenges to implement the provisions of the 2013 Act.

The Karnataka High Court recently lambasted the Karnataka Urban Water Supply and Drainage Board for its casual attitude toward the problem of manual scavenging and deaths as a result of it. What irritated the Division Bench was the Board’s position that one of the workers who died inside a manhole at Kalaburagi had entered the manhole voluntarily. The High Court issued a slew of directives in December 2020 to ensure the proper implementation of the Act of 2013. However, the deaths of the two manual scavengers in January 2021 prompted the Court to revisit the issue, with the Bench observing in February that the state government had failed to implement provisions of the Act.[5] The Indian judiciary has consistently chastised the central government for failing to effectively execute laws, and orders have been issued to central and state agencies from time to time to ensure that laws are properly implemented. On the other hand, governments have disobeyed court rulings, and even the courts are unable to ensure that their orders are carried out effectively.

NHRC guidelines

The National Human Rights Commission has issued proposals aimed at eliminating manual scavenging in the country.

  • Schemes should be connected to the rehabilitation of manual scavengers. This allows manual scavengers to make money right away. Authorities should follow up to check how their families are coping once they have been rehabilitated.
  • The amount of compensation provided as one-time monetary support for the rehabilitation of manual scavengers should be increased from 40,000 rupees to Rs 1 lakh.
  • The role of middlemen in establishing provisions for partnership with NGOs, such as direct benefit transfer, should be eliminated.
  • Local governments should face severe consequences if they hire manual scavengers. A toll-free hotline and a mobile application for filing complaints should be made available.
  • The National Crime Record Bureau should keep an eye on the sewage fatalities and register them.
  • The Ministry of Finance should designate a nationalised bank for each state to provide loans of up to ten lakhs of rupees to manual scavengers.
  • Manual scavengers should be helped financially by the National Safai Karmachari Finance and Development Corporation. This will enable them to begin working in the sanitation field.
  • The Indian government should make appropriate plans to encourage investments in technology-based sanitary cleaning. Workers should also be taught how to use the technology.
  • It is necessary to form a vigilance committee as well as a financial system.
  • A police investigator with specialised skills must be deployed.

Manual scavenging at the time of the pandemic

Sanitation workers and manual scavengers are particularly vulnerable to the COVID-19 pandemic, which shows no signs of subsiding. Sanitation personnel have been doing their responsibilities without sufficient safety equipment, such as sanitisers and masks, from cleaning streets to lifting, dumping rubbish, emptying septic tanks, and managing biohazards. Sanitation workers are mainly found in densely populated informal communities or slums. They don’t have bathrooms in most circumstances and must rely on the community / public restrooms or, in the worst-case scenario, publicly defecate. COVID-19 transfer via faecal-oral transmission is high, according to research. The Government of India has also neglected them during the vaccination drive. During the pandemic, they have continued to enter septic tanks. Due to a shortage of work, some migrant labourers have also turned to scavenge. The execution of laws is still incompetent due to which the lives of thousands of people are at stake.[6]

Conclusion

“One of modern India’s great shame is the official failure to eradicate ‘manual scavenging’, the most degrading surviving practise of untouchability in the country.” — Harsh Mander.

Alternative livelihoods, the elimination of dry toilets, and the provision of free education to children are all possibilities. Simultaneously, alternative toilet systems such as water-seal latrines or even eco-friendly toilets must be introduced. Other sections of society must also become more attentive to the concerns of the Dalit population, which has been neglected and mistreated. This can be accomplished through public awareness campaigns or school-based instruction.

References:

(Author: Jannat, a second year law student from Chandigarh University, Mohali.)

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