Mahatma Gandhi once stated “I may not be born again but if it happens, I will like to be born into a family of scavengers, so that I may relieve them of the inhuman, unhealthy, and hateful practice of carrying night”. Even after decades of independence; it was in the year 1993 and latest in 2013, that the Government of India passed a dedicated legislation to ban the inhuman and degrading practice of manual scavenging but still concrete relief to manual scavengers is a distant dream.
In a recent update, government has yet again planned to make the law stringent by proposing to amend the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013. In the span of 70 years, plethora of legislations were enacted for ensuring an equitable and casteless society, but the conditions of the scavenging communities have remained deplorable.
Section 2 (g) of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 (hereinafter the PEMSR Act, 2013) defines manual scavenger as “a person engaged or employed….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 on a railway track or in such other spaces or premises…”
Even after the exhaustive definition of the manual scavengers in 2013 the practice continued.
CONSTITUTIONAL SAFEGUARD TO MANUAL SCAVENGERS
The Indian Constitution in conformity with the international position abolishes untouchability (Article 17) and prohibits caste-based discrimination (Art. 15). Furthermore, under the Constitution human dignity is an inalienable right which is part of the Right to life. They are also entitled protection under Article 14(Equality before law and equal protection before law), Article 23(Prohibition of Traffic in human beings and forced labour etc), Article 42(Just and Humane conditions of work) and Article 47(Promotion of educational and economic interests of schedules caste and scheduled tribes and other weaker sections)
The Courts have held human dignity to be the most important, fundamental, inalienable and transcendental of rights ‘Dignity’ has been interpreted to include equal treatment and respect, and equal protection of law.
In the case of Maneka Gandhi v. Union of India, the Supreme Court (SC) widened the ambit of the provision and held that the right to live is not merely a physical right but includes within its ambit the right to live with human dignity. Further, in the case of Bandhua Mukti Morcha v. Union of India the SC called Article 21 the “heart of fundamental rights” and observed that it is fundamental right of everyone in this country to live with human dignity free from exploitation and includes protection of the health and strength of workers, men and women, just and humane conditions of work and maternity relief.
But the failure on the part of some of the State Governments to eradicate manual scavenging negates the ideal of “dignity” which finds pride of place in the Preamble to the Constitution. The absence of a statutory obligation to provide sanitation services on the part of state agencies creates a situation in which the rights hang in the air.
“The right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival.”
The above observation was made by the Supreme Court of India in the case of Francis Coralie Mullin vs The Administrator. These lines certainly relates to the human rights of the manual scavengers. It is an undeniable fact that despite an exclusive law to prohibit manual scavenging in India, it still exists in the society in the form of a necessary evil. Evil because it is a disgraceful practice and necessary because even today the system of cleanliness has not evolved. India still has millions of dry toilets which require manual intervention for cleaning. Even the septic tanks suffer from such bad designing that beyond a point machines fail and cleaning by hand becomes a necessity.
It is absolutely shameful that even after 74 years of independence the cleaning of human excreta in India depends of the manual process. It is not only a violation of human rights but a blot on human dignity. When the apex court had made the above statement in the purview of Article 21 that right to life and human dignity is much more than mere physical existence, the court actually meant to say that it’s not only about mere survival, but survival with dignity which is absolutely violated through the most disgusting and disturbing practice of manual scavenging. The Supreme Court in various other cases has expanded the meaning and significance of dignified life. So when we talk about dignified life, how can someone collecting human feces be assumed to have a dignified life. This very practice is per se against the purpose of fundamental rights and not in consonance with the broader interpretation of life. Though this blatant violation of humanity is largely evident across the nation, even in the best of the metropolis, but so little has been done to eliminate it.
INTERNATIONAL SCENARIO
India’s Supreme Court has ruled that the practice of manual scavenging violates international human rights law, including protections found in the Universal Declaration of Human Rights (UDHR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). India is also a party to other international conventions that reinforce obligations to end manual scavenging.
CURRENT SCENARIO
One of the important reasons for lack of implementation of the existing laws relating to the manual scavengers is the gap between the integration of the sanitation campaigns and schemes focusing on the infrastructure part and workers’ front which leads to the complete disregard of the rights of the workers.
CASTE-BASED DISCRIMINATION
Manual scavenging occupation is rooted in a hierarchical caste system, which renders communities invisible and powerless. Additionally, the low status of women and girls, results not only in them being forced to manual scavenging, but also face multiple vulnerabilities and denial of rights and justice within all spheres of life. Despite several schemes, laws and policy initiatives the state has failed in its endeavors due to lack of reliable number of manual scavengers, poor enforcement of laws, corruption and strict caste hierarchy that exists in rural as well as urban areas of India.
The Very objective of The Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 is to prevent the commission of offences of atrocities against the members of the scheduled castes and the scheduled tribes, to provide for special courts for the trial of offences and for the relief and rehabilitation of the victims of such offences and later on in 2015 amendment it was s further strengthened, in relation to manual scavenger.
Legislative attempts to end manual scavenging have been accompanied by administrative programs, referred to as schemes, and policies directed at converting India’s sanitation system and at helping communities engaged in manual scavenging seek alternate livelihoods. The responsibility for implementing these schemes and policies rests with a number of different government departments, which often do not coordinate their efforts.
JUDICIAL INTERVENTION
In Safai Karamchari Andolan v. Union of India this Hon’ble Supreme Court acknowledged the menace of manual scavenging in India as an inhuman, degrading and undignified profession. The Supreme Court observed that PEMSR Act, 2013 and the The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 neither dilutes constitutional mandate of article 17 of the constitution nor does it condone inaction on part of union and state governments under EMSCDL Act, 1993. The Supreme Court held that the PEMSR Act, 2013 expressly acknowledges article 17 and 21 of the constitution as the rights of persons engaged in sewage cleaning and cleaning tanks as well persons cleaning human excretion on railway tracks. Moreover, Supreme Court stressed on the rehabilitation of manual scavengers in accordance with part IV of the PEMSR Act, 2013. The Supreme Court directed the state governments and union territories to fully implement various provisions of PEMSR Act, 2013 and take appropriate action for non-implementation as well as violation of provisions contained in PEMSR Act, 2013.
Reaveen Rashtrapal, I.R.S (Retd.) v. Chief Officer, Kadi Municipality and Ors.
In 2006, in this case a petition was filed to the High Court of Gujarat regarding setting up a committee to examine the living standards of man-hole employees and provide interim protection measures when carrying out manhole operations before a permanent solution is found.
After upholding the fundamental right to health according to Article 21, the Court delivered many directions for the upliftment and improvement of sewerage workers to the authorities in question.
SOLUTION AND WAY FORWARD
The solution to eradicate this issue lies in the implementation of the Seventy Third and Seventy Fourth Constitutional Amendment Acts in letter and spirit. The work performed by the manual scavengers is actually the task of the local self governments. The issue of manual scavenging is not just about conferring the rights under a law, the fact is that this act has to be done as it is about cleanliness, the responsibility of which lies in the domain of the local governments. Though we have the law prohibiting the very act of manual scavenging but it talks about what not to do. Considering the fact that cleanliness is certainly essential which includes the removal of human excrement, it is also important to have policies and laws which provides that if not manually, then how and in what manner the cleanliness of human feces should be done. So while banning the inhuman practice is important, it is equally important to substantiate that how the cleanliness would be done as it is not something which can be left undone as it shall turn out to be hazardous. So while preventing the human intervention in the cleanliness of human feces is important, at the same time the implementation of policies to replace manual scavenging is also required.
A reference with this regard can be drawn from the bollywood movie ‘ARTICLE 15’ where the cleanliness workers of a particular community denied cleaning the sewers of the police station, it turned out to be a dirty mess as there was no other system in place for sewer cleaning. The problem is that the cleanliness has been attached to a particular community as if only they can perform the task of cleanliness and this is a bitter truth. The only other viable option is the mechanisation of the process.
So it is about doing both the things at the same time. Mere conferring the rights to the manual scavengers would be in consonance with the constitution but right to cleanliness is an equally important right which has to be conferred upon the people. While right to life for the manual scavengers has to be ensured, the other rights such as right to clean environment are also considerably essential. The primary responsibility to maintain a balance between these rights lies on the local government. It is an undeniable fact that the Seventy Third and Seventy Fourth Constitutional Amendment Acts have barely been applied in letter and spirit, in any of the states, the local governments lack the managerial skills, technical skills and financial powers. They have nothing to be called modern local bodies, neither skills nor powers. This eventually leads to the mismanagement of the system of cleanliness, making manual scavenging a necessary evil.
To make the local governments well equipped for dealing with this issue, they have to be made financially independent and technically equipped. The European nations are technically advanced and mechanized for dealing with the issue of cleaning the human feces with least human intervention and the technology involved isn’t exceptional. The nations are ready to share the technology, machines and viable management system, which is likely to make it available for the local governments. This eventually means that the problem isn’t of the availability of technology, it is mainly about the finances and the powers which lacks due to the non-devolution of powers from the centre and states to the local governments. So to blame the local governments isn’t correct as the role of the local governments would come in to play once they mechanised and are made financially and technically equipped by the centre and states.
It is due to the lack of machinery that the local governments are helpless and have no option but to engage the manual scavengers as by anyways, cleaning has to be done, if not through machines then through man.
The local authorities in different states not only fail to enforce relevant laws, but also themselves directly violate the law by employing manual scavengers. The failure on the part of the officials responsible for the implementation of the 2013 Act must invite fixing personal accountability on the officials and local amajruthorities. One major issue with Municipal bodies is The lack of mechanisms of maintenance and proper water supply within the Toilets force the sanitation workers to “manually scavenge” human excrements and throw piles of it on nearby dumping grounds. Due to poor infrastructural and financial system there are so many sewer deaths because there is no categorization of the sanitation workers, no emphasis on the rights, fair wage structures, policies, entitlements, restoration and rehabilitation measures.
One of the recent examples of financially advancing the municipalities is the listing of the Lucknow Municipal Corporate at the Bombay Stock Exchange. The 200-crore Lucknow Municipal Corporation (LMC) bonds were listed on Bombay Stock Exchange (BSE) which is likely to boost the finances of the corporation. Such financial independence and raising of funds are indeed essential for the local governments.
In the landmark case, People’s Union for Democratic Rights v. Union of India, while emphasizing that social justice is the “signature tune” of the Indian Constitution, the Supreme Court had held that the state cannot abdicate its responsibility of ensuring observance of fundamental rights by private parties. Justice P.N. Bhagwati held: “[It] is the constitutional obligation of the State to take the necessary steps for the purpose of interdicting violation [of fundamental rights under Articles 17, 23 and 24] and ensuring observance of the fundamental right by the private individual who is transgressing the same”.
CONCLUSION
Ensuring the implementation of domestic laws so that the rights of manual scavengers can be ensured and very purpose of the act to put an end to manual scavenging can be fulfilled.
There is a need to develop a comprehensive checklist to assess the health, financial, housing, and social empowerment needs of individuals who have left or seek to leave manual scavenging in order to provide targeted support.
The very objective of The Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for special courts for the trial of offences and for the relief and rehabilitation of the victims of such offences and later on in the 2015 amendment it was s further strengthened, in relation to manual scavenger
