by Saasha Malpani 

Campaigns, protests and laws have done little to end the perpetuating practice of manual scavenging in India. After more than two decades of enactment of legislations, the Supreme Court finally took notice of the issue and passed a landmark judgement in what may be a respite for human right activists all over the country. In its judgement, the Supreme Court disposed of a writ petition on the issue of manual scavenging in ‘Safai Karamchari Andolan v Union of India’ on March 27, 2014. The petitioners, in their claim, sought for the declaration of manual scavenging as being violative of Articles 14, 17, 21 and 23 of the Constitution as also the proper and methodical implementation of the ‘Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act of 1993’, a law made by the Parliament to prohibit manual scavenging and the continuance of existing dry latrines. Apart from the 1993 Act, the Parliament had also passed the ‘Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill of 2013’ in an attempt to bind all States to ban employment of manual scavengers by prescribing stringent punishments for the employers engaging them, and also to compensate them and their families by providing rehabilitation and alternate job opportunities. Along with the 1993 Act, a thorough implementation of the 2013 Act was also sought by the petitioners.

The 1993 Act, in its very first provision, stipulated that the Act was applicable in the first instance to only six states (Andhra Pradesh, Goa, Karnataka, Maharashtra, Tripura and West Bengal) along with all the Union Territories of India. Clearly, there was no mandate on all the states to compulsorily implement the law and hence, even after the institution of the Act, the practice had only barely abated. Owing to the inadequacy of the 1993 Act, the 2013 Act delivered further statutory provisions to identify manual scavengers and actually provide them with alternate employment opportunities. In addition, the 2013 Act rightly recognized Articles 17 and 21 of the Constitution as being institutive of the rights of persons involved in clearing of sewage, cleaning of tanks and removing human-excreta from railway tracks. In spite of all such legislative attempts, manual scavenging, remaining one of India’s greatest shames, is a practice that is still prevalent in various parts of India. While the 2013 Act in its provisions was comprehensive, the application of the law was negligible. Although it stipulated provisions for rehabilitation, the law did not apply in retrospect and it left it upon the State to come up with an outline for the scheme. The aim of the present Supreme Court judgement was, thus, to completely bring to a close the practice of manual scavenging by issuing instructions to properly implement the law and also prevent future generations from being employed in such dehumanising form of employment. Although the guidelines, in consonance with the 1993 and 2013 Act, have been reiterated for every State to follow so that the law isn’t rendered ineffective and manual scavengers are duly rehabilitated, the Court provides for no further monitoring in the matter. In the judgement, no additions have been made to the provisions of the 1993 and 2013 Acts in substantive terms. Instead, it acts as a tool simply to reinforce, reiterate and strengthen the Acts which, according to the Court, encompass the entire field in their provisions.

The ruling of the Court poses certain pertinent questions before us; especially in light of the facts and figures mentioned in the order. The judgement throws light on the fact that surveys conducted in the years 2002-2003 and 2013 by both petitioner organizations and the Ministry of Justice and Empowerment yield results that are in clear disjunct with each other. While the official statistics of the Central Government provide a figure of about 6 lakh manual scavengers in India in 2002 and 2003, the survey conducted by organizations advocating for the rights of manual scavengers provide for almost double that figure, i.e., 12 lakh during the same time period. Similarly, in Bihar, the petitioners have identified 1098 manual scavengers whereas the official Progress Report claims to have identified only 136 such workers. Such concealing of vital figures raises a fundamental question regarding the reliability of the government in satisfying the compliance sought from it. Since implementing the law in a more efficient manner is up to the State governments, their role in eradicating this practice remains questionable.

If one is to examine the reasons for failure of the prohibition on manual scavenging, one need not look beyond the administrative loopholes in the system. Even after a decade of enactment of the 1993 Act, there has been severe wastage and under-utilisation of the funds earmarked for implementation of the law. There has been a failure to achieve the objective of eradication of manual scavenging for which an initial investment of 600 crores was made. The committees that were set up to regulate the operationalization of the law were either ineffective or non-functional, and there was little or no usage of the law. In 2013, after the passage of the new Act, a renowned NGO called ‘Sulabh International’ appointed seven former women scavengers as ‘ombudsmen’; they were responsible for leading a campaign and completely eradicating the practice of manual scavenging from the country. This initiative was aimed at informing people about stringent punishments prescribed by the new law and discouraging the practice of employing workers to perform such a denigrating task. Such initiatives of forming regulatory bodies, if pursued at the national level, can increase administrative and financial efficiency and help in matters incidental thereto. Moreover, owing to their apathetic attitude, local bodies alone must not be assigned the task of identifying dry toilets and manual scavenging areas as this would be a highly inadequate measure for achieving complete eradication. While the Court’s order has alluded to such a failure on part of the previously formed committees to standardize the scheme, it can be criticized for not devising monitoring mechanisms for plugging the operational loopholes in its own guidelines.

Similarly, when it comes to redressal of grievances of manual scavengers, they have not been offered much. In the nineteen years after its passage, the 1993 Act had not witnessed even a single case of prosecution or conviction of any person employing manual scavengers; the law merely remained a legislation on paper. Even today, as the implementer of the legislation, the State, does not just have a shameful record in enforcing the law against manual scavenging, but it often proves to be the violator of such a law itself. According to the judgement, this is evident from the fact that manual scavengers continue to be hired in large numbers by the Indian Railways, the Army, public sector undertakings, etc. – encompassing almost all wings of the government. The issue is also concomitant to untouchability, a practice prohibited under Article 17 of the Constitution of India. Majority of manual scavengers in the country belong to the ‘Dalit’ caste and owing to the hierarchy of their generational occupation, they have remained stereotyped as untouchables to be employed for such denigrating jobs only. This is material in understanding why the practice of manual scavenging still persists in the country and thrives among certain sections of the population, such as the Dalits. How the Court has not addressed this issue more specifically in its order is moderately shameful. It has not offered remedies directed specially for Dalits – what they have access to is the general remedy of directly approaching the grievance redressal authorities. For over two decades now, legislations have proved to be of little significance in making progress in this matter. This solicits the need for intervention by the judiciary. It is imperative that the judiciary play an active role in condemning such acts by executing stringent punishments prescribed in legislations and setting precedents for the future. In light of the same, the present judgement provides that the aggrieved parties, in case of violation of their rights, are permitted to directly approach the concerned authorities at the first instance and then the respective High Court having jurisdiction. However, an inadequacy found within this redressal system is that “concerned authorities”, as mentioned in the judgement, is only vaguely defined. The Court has failed to mention with whom precisely the complaint must be lodged. If the victims approach the same authority employing them or the authority formed by the nominees of the state, the redressal system will be rendered futile.

Whilst the judgement can be lauded for propelling the movement against manual scavenging, it can be criticised for failing to completely acknowledge a very consequential sub-issue. According to Progressive Reports of the government, 95% of all manual scavengers in the country are women. The 2013 Act does not take the victims much beyond the scope of rehabilitation as was mentioned in the 1993 Act. The statutes do not deliver substantive provisions for sustenance of women manual scavengers and even the judgement solely provides for dignified living to Safai Karamchari women in agreement with their choice of livelihood arrangements. It is important to outline the concrete entitlements which shall be guaranteed to female workers since most of them may be sidelined as unskilled and lacking in formal training when posed with alternate employment opportunities. Hence, women workers must ideally be provided with benefits of not just livelihoods of their choice, but also with alternate employment after adequate training. Substantive measures can be in the nature of government funded schooling for their children along with scholarships for higher education and vocational training. Majority of these women working as manual scavengers are old and poor, and hence, must compulsorily be provided with a considerable amount of monthly pension by the government as also an enterprise allowance supported by counselling services. Perhaps in view of the above, the International Labour Organisation (ILO) has been working with the Indian government to ensure effectiveness of legislations and elimination of this form of discrimination based on social origin in five chosen states. It encourages women to quit their jobs as manual scavengers and seek employment elsewhere, it aims to provide educational advocacy and free treatment for diseases caused to such women. The goal of achieving complete eradication of dry latrines and manual scavengers will remain far-fetched if universalisation of such an initiative does not take place in all states on a mandatory basis.

The Parliament by creating laws and the judiciary by passing its judgement have shown inclination towards achieving the goal of creating a manual scavenging-free India. As is clear from above-mentioned arguments, the present Supreme Court judgement can be lauded as well as criticized at the same time – while it is an attempt to affirmatively enforce legislative enactments already in force, it fails to elaborate upon finer details such as administrative loopholes, lack of a monitoring mechanism and insufficiency of provisions for women as a result of which the practice still exists. It has also not been able to address the problem of lack of identification of manual workers and under-reporting of their numbers. The potential implications of the guidelines recommended by the court cannot be divorced from the reality of manual scavengers in the country since the past two decades. To fundamentally appreciate the problem, it is necessary to navigate through the existing data on manual scavenging and recognize the future bearing it may have on the workers. There is a need for less restrained use of the law and establishment of increased number of precedents to penalize employers as well; this may perhaps be a more effective solution than creating law after law to address the issue.

(Saasha Malpani is an Associate Editor with the Journal of Indian Law and Society)

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