HOW EFFECTIVE IS THE LEGISLATION PROHIBITING MANUAL SCAVENGING IN INDIA?

This article has been authored by Rishika Saraswat, a first year student at WBNUJS, Kolkata.

Introduction

The phenomenon of social exclusion is prevalent in societies across the globe. It is not uncommon for groups to face societal exclusion, discrimination, and denial of opportunities on the basis of caste, religion, ethnicity, or sex. In India, the people employed as Manual Scavengers are one such group. Manual Scavenging is a caste-based occupation prevalent in many Indian states. The act involves removing of excreta from “dry toilets” which do not have the modern flush systems through manual means.[1] Caste hierarchy is the perpetuator of this practice in India. Legally, the practice of employing manual scavengers was abolished with the passing of The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993. Further, in 2013, a legislation was passed by the Parliament for reinstating the individuals who were excluded by the society through this occupation, which was called The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013(“The 2013 Act”). Thus, making it clear that the employment of manual scavengers is illegal and steps towards their rehabilitation must be taken.

However, the ground reality is quite different. On 25th March, 2021, eight law students, enrolled in different institutes across the country, filed a Public Interest Litigation (“PIL”) with regard to implementation of the provisions of the 2013 Act. Prior to this, the Karnataka High Court had directed the Karnataka state government to disclose the steps taken by them for promoting the use of modern technology for cleaning of sewers. These cases have merit to them and reflect the failure in the implementation of the legislations that prohibit the act of manual scavenging.

This article aims to analyse the shortfalls in implementation of The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013in light of the recent cases.

Historical Background

Manual scavenging is a caste-based occupation in India. Those belonging to the lowest classes in the hierarchy were forced into this occupation. Such people had been excluded from mainstream society by situating their residence outside the common areas. More often than not, their residence was found to be located in underdeveloped areas where conditions were unhygienic.[2] It was nearly impossible for these individuals to gain employment in any other sector due to the strict caste hierarchy that was culturally entrenched in the country which influenced the occupations of the people.

The actual effects this occupation brought on to those performing it were hazardous and life-threatening. Viral and bacterial infections in various parts of their body were a commonplace. Tuberculosis, gastro-intestinal and respiratory issues were some of the diseases infecting those performing the evil act of manual scavenging. Such individuals were employed by various upper-class elites for menial cleaning jobs that were considered lowly. The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 came as a savior. It brought hope to the never-ending plight of this community and brought them a chance to give-up the horrifyingly inhumane task of manual scavenging.

The 2013 Act

After abolishing the practice of manual scavenging in the year 1993, the Government of India passed the 2013 Act. This aimed at eliminating the employment of individuals as manual scavengers as well the use of “dry toilets”. The 2013 Act provides for the trial and conviction of those, who employed individuals as manual scavengers. It further aims at rehabilitating these individuals into the mainstream society as well as to restore human dignity by providing them a residential plot, certain financial assistance and a training opportunity for employment under Section 13 of the Act among other provisions.

This Act called for Municipal officers to survey their localities to identify the number of such workers for the purpose of rehabilitation and primarily, prohibition. It also directs that anyone engaged in cleaning of sewers or septic tanks shall be provided protective gear and safety devices by his employer.

PIL for Implementation of the 2013 Act

On 25th March 2021, a group of Law students filed a PIL to question the implementation of the 2013 Act. The petitioner had undertaken this step after conducting an objective study of the prevailing conditions of scavenging in Prayagraj as well as other parts of the State of Uttar Pradesh. The observations made under this study brought to light various violations of this Act. It was found that workers were still being made to perform such tasks manually and there was no provision of adequate safety equipment.

The students, in their PIL have detailed out the recommendations they have for the designated authorities to be able to bring the legislation into practice. The Allahabad High Court has asked the Uttar Pradesh Government to file its response to the writ at the earliest.

The study conducted by the students sheds light upon the lapses in upholding the principles laid down by the 2013 Act and the failure in providing required equipment and sanitation standards. It shows that the inhumane and hazardous act continues to be performed despite its abolition back in the year 1993.

Courts’ Intervention in Demanding Implementation

There have been other instances where courts have directed state-governments to report whether they have discharged their duties rightly in consonance with the provisions of the 2013 Act. Most recent of such an order was one given by the Karnataka High Court on the 16th of March, 2021. The Bench of the Karnataka High Court found that there has been almost no compliance with the provisions of the 2013 Act. The State of Karnataka has been unable to comply with Section 33 of the 2013 Act since no modern equipment or financial assistance has been provided to those employed under the conditions mentioned. This reflects the callous nature of the authorities towards establishing a better society for those blocked by the shackles of manual scavenging.

Another step taken by the courts in this direction has been in the Kerala High Court’s judgment in Baisil Attippety v. Kerala Water Authority. The order passed was in favour of the workmen who lost their lives while entering a manhole for cleaning sewage pipelines. The state was held liable due to the Water Authority officials’ negligence in undertaking safety measures under Sections 11 and 12 of the 2013 Act. A compensation of Rs. 10 Lakh was given to the family of the deceased as per the Court order. This instance shows that the Court has successfully implemented the 2013 Act in this particular case and it acts as a reassurance of its validity.

Conclusion

The above legal developments give a direct indication towards slack in implementation of The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act by various states. It also on another point shows that the observations which have been made in this regard have led to court orders and directions. These court orders are a silver lining in light of the shortcomings of the state authorities in being able to provide and meet standards under the 2013 Act. The Karnataka High Court has ordered for the record material of the beneficiaries under the 2013 Act along with a time barred order to appoint health inspectors under the same. The Kerala High Court Judgment too is a right step toward this direction. While the Allahabad High Court awaits a reply from the government on the PIL, the survey encompasses an array of requirements that need instant attention. To meet the purpose of the enacted legislation, it is vital for courts to keep a check on state activity whenever possible under its authority and promote the maintenance of the dignified status of those affected. While the cases discussed through the course of this article are a step in the right direction, they are in no way adequate. The implementation of the 2013 Act must be visible in all states of India to achieve the true purpose of its enactment.

[1]Rajeev Kumar Singh, Manual Scavenging as Social Exclusion: A Case Study, 44 ECON POLIT WKLY, 521 (2009) www.jstor.org/stable/40279798. [2]Subhash Gatade, Silencing Caste, Sanitising Oppression: Understanding Swachh Bharat Abhiyan, 50 ECON POLIT WKLY (2015) https://www.jstor.org/stable/44002800.