Toothless Law: Neglected State of Rights of Scavengers in India

The Indian Constitution, on 26^th January, 1950, came into force with the ground norm of civil rights protection and the source of caste and class annihilation i.e. Article 17 (Abolition of Untouchability). It has been called the worst surviving symbol of untouchability. The official definition of a manual scavenger in Indian law from 1993 is as follows:

“Manual scavenger” means a person engaged or employed, at the commencement of this Act or at any time thereafter, 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, or railway track or in such other spaces or premises, as the Central Government or a State Government may notify, before the excreta fully decomposes in such manner as may be prescribed, and the expression “manual scavenging” shall be construed accordingly.

According to Socio Economic Caste Census 2011, 180,657 households are engaged in manual scavenging for a livelihood. The 2011 Census of India found 794,000 cases of manual scavenging across India. The state of Maharashtra, with 63,713, tops the list with the largest number of households working as manual scavengers, followed by the states of Madhya Pradesh, Uttar Pradesh, Tripura and Karnataka.

What deprives them of their basic rights is the culture of acceptance. Death of sanitation workers while cleaning sewers by hand, a practice which has been banned 25 years ago, is nothing but ‘murders by the state’ according to activist Bezwado Wilson, who called a nation-wide protest against it on September 25.

So why does a practice this medieval and inhuman continue to persist even as India races to be counted as a developed, industrial and modern nation?

Toothless Law– The irony is that it is followed only in principle, but not in practice. Despite the several constitutional, statutory, administrative safeguards and developmental progress in India, manual scavenging is a profession which has been in practice since the human civilization. A plethora of legislations were enacted for ensuring an equitable and casteless society, but the conditions of scavenging communities have remained deplorable. It is an irony that after decades of independence, it was in the year 1993 and latest in 2013, that our government has passed a dedicated legislation to ban this inhumane practice, but no convictions were seen under it. There are number of reasons for this:

Firstly, as India is a federal democracy and sanitation falls within the competency of the states (Entry 6, List II, Schedule VII, and Constitution of India), the implementation of the prohibition of manual scavenging rest solely within the domain of the state. Hence no nation-wide action has been taken by the federal government. Secondly, law requires the rehabilitation of scavengers as per the existing schemes, otherwise it will find ways to hide from law. Thirdly, it is not just the law but the attitude of public authorities which is also responsible for such plight of scavengers. It is clear that judiciary has been taking active steps to ensure respect for the Human Rights of scavengers, but such steps without the support of other organs of government is to no avail. The continuance of such discriminatory practice is violation of ILO’s Convention 111 (Discrimination in Employment and Occupation).

On 2014, PM Modi opened a nationwide movement, ‘Swachhata Hi Seva’ (Cleanliness is service), as part of his flagship program Clean India Mission and called for the nation’s participation in building 2 crore toilets, but not much has changed in the last three years and the demand for manual scavengers hasn’t subsided, though employing manual scavengers is a punishable offence. In November 2017, the United Nations special rapporteur on Human rights to safe drinking water and sanitation, at the end of his India’s visit, expressed concerns that Swachh Bharat may fail to eliminate manual scavenging and may involuntarily contribute to violate the fundamental principle of non-discrimination.

Ironically, the Indian Railways remains one of the biggest employers of manual scavengers, but has pledged to build 1,40,000 bio-toilets by 2019 in all operational coaches. Since the Swachh Bharat Mission began, the demand to end manual scavenging has only grown stronger as many are afraid that it might be too late for manual scavengers to bring forward their voice of reasoning. The existence of over 60,000 manual scavengers in New Delhi, India’s national capital itself shows that the issue of manual scavenging has not been dealt with seriously. So if the law on this needs to be effective, the penalties must be uniformly and visibly enforced. It is equally important for the state government to address the lack of adequate machinery to clean septic tanks. The Swachh Bharat Abhiyan should make expansion of the sewer network a top priority and come up with a scheme for scientific maintenance that will end manual cleaning of septic tanks. The Centre must chalk out a detailed, time-bound and transparent action plan with a monitoring and accountability framework, even if sanitation is a state subject.

Empowerment holds the key to change, but that would depend on breaking caste barriers through education and economic uplift. Compensation sanctioned for the families of those who died in the course of the humiliating and hazardous work should be paid immediately and Lastly we as a country, the citizens together, we have to say openly that we cannot accept our fellow citizen to enter this inhumane activity and should spread awareness among them to discourage this inhumane practice.

Reema Duggal

9th December 2018