Keywords: manual scavenging, labor rights, social security, human rights.
INTRODUCTION
The human capital of an economy is immensely valuable. They are the ones who construct the cornerstone of any economy's effectiveness. They are in charge of making the best and most efficient use of the resources available to the nation. Even with the advancement of technology, there still exist certain labour classes that engage in unhealthy and inhumane practices, face the issue of untouchability, are denied their basic rights, and live in dehumanisation. This group of workers is called "Manual Scavengers," and they work at their inherited jobs against their will and with force to fill their empty stomachs. Occasionally, their kids help them out by providing a living.
The nation is still having difficulty outlawing manual scavenging, the most barbaric and undesired human activity, despite 77 years of freedom. Meanwhile, we have completely ignored sewage cleaning, an equally degrading task for which state and local governments regularly hire workers. the country has a long history of manual scavenging. It is a violation of several people's rights and an inappropriate hygienic practice. So, from the perspective of human rights and sanitation, manual scavenging must end. Over an extensive span of time, a complex interaction between various factors including caste, gender, and poverty imparted rise to the legal disputes surrounding manual scavenging in India. From being a recognised "customary right" to the current state where they are considered a "crime," they have undergone changes. The legal discourse has occasionally been influenced by a variety of social and economic issues that have been present throughout history at different points in time.
Not only is it abhorrent, but it may be the most severe violation of human rights when night soil is removed by hand from dry toilets using brooms, metal scrappers, or bare hands. Baskets and excrement are then carried to disposal sites. Many laws were passed to guarantee a casteless and fair society, but the living conditions of the scavenger communities have not improved. Ironically, the Indian government only passed legislation prohibiting the cruel and dehumanising practice of manual scavenging in 1993—the year after decades of independence and the latest legislation was passed in 2013. Those who manually clean septic tanks and drains in urban areas are not granted the same rights under the 2013 Prohibition of Employment as Manual Scavengers and their Rehabilitation Act. In order to physically clear obstructions, workers must crawl into manholes. Government agencies have disingenuously disregarded court directives to automate processes and prohibit manual sewage pipe cleaning. Regretfully, the eagerly awaited new law likewise disregards the situation of sewage workers.
THE RISE OF MANUAL SCAVENGING IN INDIA
In India, manual scavenging has been done since long ago. The texts of holy books and other works of literature claim that certain Indian castes have been scavengers since the dawn of civilisation. The people in question experience social stigmatisation in addition to a systemic caste-based occupational status. Because of the idea of contamination and purity, they are viewed as outcaste or untouchables, and they frequently experience prejudice based on caste and social exclusion. Discrimination and injustice cause people to live in a state of constant suffering, regardless of their age or gender. Manual scavenging was one of the 15 slave tasks listed in the Naradiya Samhita. This also persisted during the Mauraya and Buddhist eras. In India, during the period of 1556 AD, Jahangir constructed a public latrine for 100 families at Alwar, 120 km from Delhi. According to scholars, the Mughal women with purdah needed enclosed latrines that they had to scavenge. The assertion that the Bhangis are descended from people taken prisoner during battles is made in light of the fact that they have some clan names in common with Rajput. Bhangis have traditionally worked as manual scavengers, and there are many myths surrounding their origins. One of them, connected to Lal Beg Bhangis, says that Mehtar is where Bhangis originated.
In India, the practice of constructing public restrooms and hiring labourers to clear waste was implemented when municipalities were established under British rule. In the past, these toilets frequently used containers that required to be empty every day. All other forms of toilets vanished from the western world once flush type toilets were invented. Nevertheless, many developing nations, including India, still engage in this barbaric practice. Although the extent of the issue is reported differently by various sources, it appears that everyone agrees that the practice is still in place today albeit in a different format. An estimated 66,692 people were manually scavenging in India as of October 2020, and during the previous five years, 340 people lost their lives cleaning tanks and sewers.
Besides to being against human rights, the practice of manual scavenging degrades both human dignity and humanity as a whole. The government launched a number of initiatives to address the issue of this labour group and promote their social inclusion. However, the enactment of the new act in 2013 cast doubt on the previous one. With the social and economic structures that were in place at the time and the ensuing marginalisation process, the politics of hygiene had been formed. Put another way, the evolution of the sanitation infrastructure likely would have been different if there had never been a class of people performing menial tasks. It seems that the governments of pre-colonial, and post colonisation gave it little thought. They seem to have become an active participant in the prevailing discourse on sanitation or ardent supporters of a specific politics of sanitation that brought about modernisation in some sectors of the sanitation sector (such as engineering offices), but not in others (such as the working environment of sanitation workers or the mechanisation of sanitation work).
THE LAW AND MANUAL SCAVENGING: A HUMAN RIGHTS PERSPECTIVE
Manual scavengers are entitled to certain special rights in addition to those guaranteed by the Indian constitution because they are members of the underprivileged segment of society Because they belong to marginalised segments of society, manual scavengers have additional constitutional rights on top of those that are available to all other citizens. These rights include equality before the law, equal opportunities in public employment, abolition of untouchability, freedom of profession, protection of life and personal liberty, prohibition of forced labor, the right to work, education, and public assistance, just and humane working conditions, promotion of the educational and economic interests of weaker sections, state responsibility for improving public health and nutrition, and the establishment of a National Commission for Scheduled Castes.
In the context of manual scavenging, the customary right was referred to by a variety of names, including Gharaki, Gharagi, Jagirdari, Jijmani, Dastoori, or Virat (Malkani Committee Report 1966: 6-7). Early legal disputes led to the conclusion that while customary rights were acknowledged by law as binding and enforceable between manual scavengers in the context of scavenging, they weren't identified as legally binding by manual scavengers against house owners. However, it is not possible to regard this as a nationally accepted legal stance, though. The Madras High Court, for example, ruled that the right to scavenge could not be considered a legitimate custom because it would "turn out to be a repressive monopoly" if it were permitted.
In order to advance Scheduled Castes in besides constitutional protections, the legislature has passed a number of laws, including ones pertaining to manual scavengers. The Untouchability (Offences) Act, 1955 gave rise to the Protection of Civil Rights Act, 1955, which outlawed the practice and increased the severity of punishments for those who did so. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, created special courts for the speedy trial of offenders against these communities and imposed harsher penalties for such offences. Recent amendments to this Act specifically prohibit hiring manual scavengers from Scheduled Castes and Scheduled Tribes, and severe penalties apply to those who violate the law. The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 forbade the use of dry latrines and manual scavenging. In order to outlaw manual scavenging and provide rehabilitation for those who engage in the practice, the Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013 (PEMSR Act) was passed. Despite being replaced by the Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013, it nevertheless laid the groundwork for addressing these issues. Additionally, the National Commission for Safai Karam Charis Act, 1993 established an independent commission to look into, evaluate, and supervise Safai Karam Charis programs and handle complaints. To safeguard the rights of Scheduled Castes, investigate matters pertaining to their rights, participate in the planning of their socioeconomic development, and provide recommendations for their welfare and protection, the National Commission for Scheduled Castes (NCSC) was established.
PEMSR Act, 2013 specifies local authorities with the task of identifying unsanitary latrines and building hygienic ones, while also acknowledging the violation of dignity that is associated with manual scavenging. The Act gives local governments, cantonment boards, and railway authorities the duty to inspect and upgrade sanitation facilities in recognition of the violation of dignity that manual scavenging entails. It is the individual's responsibility to pay for the conversion or demolition of unsanitary latrines. The Act's implementation authorities are district magistrates and local authorities; offences under its provisions are cognisable and not subject to bail. The Act mandates surveys to identify those working as manual scavengers and creates comprehensive monitoring and vigilance committees at various levels. The PEMSR Act is a major step in the right direction towards ending manual scavenging and protecting the rights and welfare of individuals who are impacted by it.
The Forced Labour Convention, 1930 was ratified by the International Labour Organisation (ILO) in order to outlaw forced labour in all of its forms. The appalling conditions of manual scavengers in India were a major source of concern in the 2007 annual report of the UN Committee on the Elimination of Racial Discrimination. The Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013 has been put into effect, but it has some serious drawbacks. These include the fact that it is not mentioned in formal complaints about deaths caused by manual scavenging, that conviction rates for these crimes are low, that some states are not following the Act's other rehabilitation measures, and that payment of compensation may be delayed or never issued. The High Courts have intervened in numerous cases and continued to monitor cases in an effort to effectively implement the law, which has helped some families and aggrieved parties receive justice. A few cases provide important context for the judiciary's response to manual scavenging in India. Let's delve deeper into each case:
Change India v. Government of Tamil Nadu
The case challenged the Tamil Nadu government's argument that it was not responsible for the deaths of manual scavengers working for private entities. The court rejected the government's argument, stating that the state's duty to prohibit manual scavenging applied to both private entities and the state. In essence, the court ruled that the government has a responsibility to prevent manual scavenging, even when it occurs in the private sector. This decision was a significant step towards ensuring greater protection for manual scavengers and holding both public and private entities accountable for their actions.
Safai Karmachari Andolan v. Union of India
This is a landmark case in India that dealt with the issue of manual scavenging. The case was filed by the Safai Karmachari Andolan, a non-governmental organization (NGO) working for the rights of manual scavengers. The NGO challenged the government's inaction in addressing the issue of manual scavenging, despite the existence of laws prohibiting the practice. The government argued that it was unable to completely eradicate manual scavenging due to various factors, including the involvement of private entities. The court rejected the government's argument that it was not responsible for the deaths of manual scavengers due to its inability to completely eradicate the practice. This decision reinforces the state's obligation to take proactive measures to prevent such deaths and to hold those responsible accountable. The court's ruling provided stronger protection for manual scavengers by holding the government accountable for their deaths. The case helped to build momentum for reforms to address the issue of manual scavenging and to improve the conditions of those engaged in this hazardous occupation. This case is considered a significant milestone in the fight against manual scavenging in India, as it demonstrated the judiciary's commitment to protecting the rights of vulnerable populations.
All India Council of Trade Unions v. UOI
The court affirmed that manual scavenging is a violation of human rights, emphasizing its dehumanizing and hazardous nature. This ruling provides a strong moral and legal foundation for the eradication of this practice. Court has additionally intervened on prevention mechanism. The judiciary has consistently emphasized the importance of providing comprehensive rehabilitation packages to manual scavengers, including education, skill development, and financial assistance. Courts have directed governments to take proactive steps to prevent manual scavenging, such as improving sanitation infrastructure and promoting awareness about the dangers of this practice. By this case, the judiciary has held government officials accountable for their failures to implement the Act or for violating the rights of manual scavengers.
The Delhi Jal Board v. National Campaign for Dignity & Rights of Sewerage & Allied Workers
The case was a landmark judgment by the Supreme Court of India that highlighted the plight of manual scavengers and sewage workers. The court criticized the government's apathy towards their safety and well-being, and directed civic bodies to ensure immediate compliance with safety measures. The court recognized the hazardous conditions faced by manual scavengers and sewage workers, including exposure to harmful substances, high mortality rates, and lack of safety equipment. The court found that these workers had been deprived of their fundamental rights to equality, life, and liberty. The court criticized the government and state apparatus for their lack of concern for the safety and well-being of manual scavengers. The court directed civic bodies to implement safety measures for sewage workers and ordered higher compensation for the families of deceased workers. The court rejected arguments that it was overstepping its bounds by issuing directives to protect the rights of manual scavengers.
Dr Balram Singh v Union of India & others
The Supreme Court issued several directives in the case to address the issue of manual scavenging. These directives include the eradication of manual scavenging by all statutory bodies, inclusion of these directions in state and Union Territory guidelines, rehabilitation measures for sewage workers and victims of sewer deaths, increased compensation for sewer deaths and disabilities, accountability mechanisms for outsourcing agencies, development of a model contract for employing cleaning agencies, national surveys to identify manual scavengers, education and training for survey committees, scholarships for dependents of victims, involvement of NALSA in framing policies and disbursement of compensation, establishment of state and district level committees, and development of training and education modules. These directives aim to ensure the complete eradication of manual scavenging, provide adequate support to affected individuals, and establish a robust system for monitoring and implementing anti-scavenging measures.
ISSUES AND CHALLENGES
The Supreme Court of India's stance on manual scavenging, which emphasises safety gear and conditional bans, ignores the fundamental abuses of human dignity. In spite of its robust body of case law regarding untouchability and the right to life, the SCI's methodology continues to support manual scavenging. Regardless of safety precautions, handling excrement infringes human dignity and is unconstitutional. The 2013 Act is unconstitutional and encourages manual scavenging because it forbids it conditionally. The SCI must declare any interaction with faeces to be unconstitutional, rule against the 2013 Act, and recognise the violations of human rights resulting from manual scavenging in order to protect the constitutional right to dignity. To end manual scavenging and protect everyone's constitutional rights, there must be a complete mechanisation of sanitation procedures and a moratorium on any human interaction with faeces.
The Safai Karamachari Andolan's National Convener, Bezwada Wilson, has argued that the dignity discourse is essential to solving the problem of manual scavenging in India. It has given manual scavengers a strong case based on the Constitution and helped them comprehend the systemic causes of the practice, connecting it to caste and untouchability. In an effort to end manual scavenging, the government has been implementing a dignity-based strategy since the 1990s. The Supreme Court acknowledged that manual scavenging violates human dignity, and the Planning Commission recognised the connection between caste and untouchability. The 2013 Act, which emphasises the need to rectify the longstanding wrongs faced by manual scavengers, is one example of how the dignity discourse has influenced statutory frameworks. Even though there are fewer dry latrines now, implementation challenges are highlighted by the high frequency of accidents and fatalities among sewage workers. This demonstrates the system's selective indifference and inertia and highlights the necessity of ongoing social movement pressure to ensure that laws safeguarding the rights of marginalised communities are effectively implemented.
Despite government efforts and legal prohibitions, there are still significant obstacles to overcome in India's effort to eradicate manual scavenging. The main cause of manual scavenging is the use of unclean latrines, but the government has been slow to penalise those who continue the practice. Although there are laws against manual scavenging, they are frequently disregarded, and individuals who attempt to stop may encounter intimidation and abuse from their communities. According to a 2014 Human Rights Watch report, women who engage in manual scavenging admitted that they feel pressure from the community to not miss even a day because dry toilets are cleaned every day. The property of upper caste landholders and community members may be withheld from individuals who refuse to carry out caste-based tasks by dominant caste groups. Dalits, who are frequently the victims of crime, may find it difficult to access the criminal justice system. Investigations into complaints against manual scavengers are hampered by police inaction and prejudice against marginalised communities. Employers in the community may threaten or harass people, threatening to deny them access to community property or subject them to social and financial boycotts, which may force them to continue manual scavenging.
There are issues with enforcement even with the PEMSR Act, 2013, which gives district magistrates and local authorities the authority to carry out anti-scavenging measures. The simultaneous responsibility of adjudication and implementation by the same authorities may give rise to potential conflicts of interest. It's also possible that insufficient training and resources prevent monitoring mechanisms from working properly. The inability to find other jobs for manual scavengers makes it difficult for them to quit the practice. Economic and social boycotts, discrimination based on caste and gender, and corruption can all further impede their ability to find work. The number of people still manually scavenging has not been reliably determined by government surveys; different organisations have reported different numbers. To precisely determine the scope of the issue, thorough surveys must be conducted on a regular basis.
CONCLUSION AND REMARKS
The deeply ingrained social issue of manual scavenging is caused by a complex web of interrelated factors. Manual scavengers face social exclusion due to caste prejudice, which is often based in patriarchal systems, which forces them to carry out their inherited professions. With 98% of those involved in this practice being female, it disproportionately affects women, underscoring the intersection of caste-based and gender discrimination. Legal shortcomings that impede the elimination of manual scavenging include inefficient legislation and implementation procedures. Self-defeating plans and initiatives could inadvertently encourage this behaviour to continue. A lack of efficacious monitoring committees may result in unequal benefit distribution, excluding a great number of worthy people.
The Muslim community may become trapped in this repressive practice if they are unaware of their rights. The problem is made worse by faulty surveys and extreme poverty, which leaves many people without enough assistance. For manual scavengers, illiteracy can impede their ability to resist exploitation by limiting their awareness and sense of empowerment. Corruption and unrest can impede efficient resource allocation and governance, resulting in wasteful spending of financial resources. Insufficient employment options may prolong the manual scavenging cycle, compelling people to stick with their inherited professions. Manual scavengers may be further marginalised by social and economic discrimination, which can bolster their status as "untouchables" and compel them to carry out this repressive activity. It is essential to address these underlying causes, advance social equality, and guarantee fair access to opportunities for all in order to effectively address this problem.
The fact that manual scavenging still occurs in India in spite of scientific and technological progress underscores the formidable obstacles in the way of completely abolishing this practice. This destructive practice persists because of government inaction, lax enforcement, antiquated infrastructure, and a lack of awareness among manual scavengers. Collaboration, technological advancements, stringent law enforcement, time-bound objectives, thorough surveys, redefining development metrics, awareness campaigns, liberation and rehabilitation initiatives, and respect for manual scavengers are all necessary to address these issues. India can guarantee a just and equitable society and ultimately end manual scavenging by putting these solutions into practice.
The 2013 Act's recommendations from the Supreme Court placed a strong emphasis on the necessity of using mechanical robots and other contemporary technologies to end manual scavenging. Nevertheless, the Act does not specifically forbid manual scavenging; rather, it only requires protective gear for employees handling excreta. This has made it possible to carry on manually scavenging even when wearing safety gear. The phrase "hazardous cleaning" must be eliminated from the Act's definition of manual scavenging in order to resolve this problem. This would compel the government to act more swiftly in order to outlaw the practice and guarantee the security and welfare of the workforce. The government also needs to give manual scavengers' rehabilitation top priority and provide them other sources of income. Investing in contemporary technology to automate septic tank and sewer cleaning is another thing the government ought to do. This would increase the effectiveness and safety of these operations in addition to doing away with the need for manual labour. In addition, it is critical to make people aware of the risks associated with manual scavenging and to make sure that all applicable laws and regulations are properly implemented. With these actions, India can put an end to the practice of manual scavenging and give its most vulnerable citizens a future that is more just and dignified.
A coordinated effort from a range of stakeholders, including the government, public authorities, private companies, and civil society organisations, is necessary to eradicate manual scavenging. Although the government has started social welfare reforms, they have not been adequately carried out. In order to tackle this, the subsequent suggestions are put forth:
Link social security schemes: The Scavengers Act of 2013 should be amended to link rehabilitation programs for scavengers with MNREGA and other social security laws. This would enable scavengers to access alternative employment opportunities and escape the stigmatization associated with their profession.
Effective coordination: A coordination committee should be formed with representatives from relevant ministries to work together on eradicating manual scavenging and rehabilitating freed families. NGOs and RWAs should also be involved in enforcing the Act at the local level.
Community initiatives: Communities should discourage subletting of sewer cleaning services within the scavenging community and pledge to adopt sanitary practices.
Railway reforms: The Indian railway must prohibit the use of dry latrines and construct bio-toilets in stations and trains. Technical assistance from organizations like DRDO can be sought for this purpose.
Sanitation programs and awareness: Speeding up sanitation programs and creating awareness about proper toilets is crucial. The government's focus on sanitation through initiatives like the Swachh Bharat Abhiyan is a positive step.
National monitoring system and social audit: A national level monitoring committee should be formed to regularly monitor the practice of manual scavenging and conduct social audits of the PEMSR Act and allied schemes. A comprehensive survey to identify manual scavengers in different states should also be conducted.
Local authority responsibilities: Municipal and panchayat bye-laws should include provisions to prohibit the construction of dry latrines and ensure the conversion of existing ones into sanitary latrines. There should be time-bound limits for this conversion and penalties for non-compliance.
Legislative and executive action: While a constitutional amendment may not be necessary, amendments to existing statutes can strengthen the legal framework for eradicating manual scavenging and ensuring the welfare of affected communities. The recent Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 is a positive step in this direction.
By implementing these recommendations, India can effectively address the issue of manual scavenging and ensure a more just and equitable society for all its citizens.
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