Abstract
The paper delves into the persistent issue of manual scavenging in India. Manual scavenging, an abominable practice, is deeply rooted in the country’s societal fabric despite legislative efforts to eradicate it. This paper examines the socio-economic complexities sustained through the practice and highlights the loopholes in the present system that allow for continued exploitation of vulnerable communities. It assesses the existing legal and policy framework, revealing inadequacies and ineffective protection measures. The study also aims to advocate for a transformative shift in policy implementation, including stricter punitive measures & gender specific provisions to account for the large number of issues faced by women employed as manual scavengers.
Introduction
The Ministry of Social Justice and Empowerment, in a meeting in July 2023, had requested all states and districts to declare themselves free from manual scavenging (PIB, 2023)1. As many as 60 districts have missed the end of August timeline to declare themselves free from manual scavenging practices (Pandit, 2023)2. The meeting was set up to review the implementation of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013. For a long time, the ministry has maintained that the country is free from manual scavenging despite only 520 districts across the country declaring themselves free of the issue (The Hindu, 2023)3.
In its attempt to justify the claim, the government distinguishes between manual scavenging and hazardous sewer cleaning, considering the latter the main source of the problems of related deaths. Despite the persistence of the issue for decades in the history of independent India, the definition of manual scavenging is still up for debate. Even so, the magnitude of the problem cannot be ignored by any definition of the word.
Definition & Background
‘Manual Scavenging’ was first defined in the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, as a ‘person engaged in or employed for manually carrying human excreta’. In 2013, the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act offered a more detailed definition of manual scavenging, specifying that ‘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 on a railway track or in any other spaces or premises, as the Central Government or a State Government may notify, before the excreta fully decomposes in such a manner as may be prescribed..’4.
The practice of manual scavenging & septic cleaning is deeply linked to an outdated caste system & poverty in India (HRW, 2014)5. It has contributed majorly to the continued discrimination against the Dalit population in the country, who have been historically deemed to have such occupational statuses. Beyond discrimination, the malice practice has led to many deaths over the years. According to official government data, hazardous sewer cleaning has claimed as many as 339 lives between the years 2018 and 2023 (The Wire, 2023)6. Yet, a specific policy for hazardous sewer cleaning remains absent. To that extent, the manual scavenging policy and law are applicable to septic tank cleaning as well.
Issues are often overlooked for women manual scavengers who face aggravated discrimination & increased risks due to preexisting inequalities in the system. Although the number of Dalit women making their living through manual scavenging is estimated to be as high as 1.3 million, their aggravated discrimination has not been highlighted in the protection policy (Raj & Gurmat, 2022)7. The particular threats faced by these groups are very rarely taken into consideration, even at the point of policy formulation.
Regardless of these continued threats to rights and the promise of a decent life, the legal framework has failed to extend protection to those employed for sewage cleaning & manual scavenging.
Law & Policy Perspective
The degrading practice of manual scavenging was first banned in India in 1993 under the Narasimha Rao government with the introduction of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act. The Act extended protection to persons by prohibiting the construction of insanitary latrines and engagement as manual scavengers.8 It also established a process of identification of persons engaged in the practice and defined a process of application by an urban manual scavenger for identification & rehabilitation. However, the practice continues to exist thirty years after its prohibition, covered up by different names.
In 2013, the overriding act, namely The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act (hereinafter referred to as MS Act 2013), was introduced. The need for another statute on the subject arose from several factors. Firstly, the 1993 Act was enacted under the State List, with the MS Act 2013 jurisdiction for the Parliament to regulate the conditions of work by enacting it under the Concurrent List. Secondly, the 2013 Act also has a wider scope and higher penalties than the 1993 Act, making it a more stringent law. It makes it mandatory for municipalities, cantonment boards and railway authorities to construct an adequate number of sanitary community latrines. Further, it also imposed a penalty for employing a person for hazardous manual cleaning of a sewer and septic tank without protective gear and other safety precautions (Katiyar, 2022)9.
Many judicial and quasi-judicial bodies in the country have also discussed the issue of manual scavenging. The National Human Rights Commission (NHRC) has taken into deliberate consideration that the claims made by many states of having zero manual scavengers were far from the truth (NHRC,2021)10. The Commission gave specific recommendations for the rehabilitation of those employed as manual scavengers and also advised the government to plan to facilitate investment in adequate technology and training to shift from manual scavenging practices.
The Ministry of Housing and Urban Affairs has adopted the Standard Operating Procedure (SOP) for Cleaning of Sewers and Septic Tanks. The scope of the SOP expands to imparting knowledge to Urban Local Bodies (ULBs), Public Health Engineering Departments and other stakeholders about the cleaning of sewers and emptying of septic tanks (CPHEEO, 2018)11. Other procedural mandates also include the Code of Practice for Safety Precautions to be taken when entering a sewerage system IS 11972-2002. These lay down the guidelines for selection and safety measures to be provided to the employees engaged in sewer cleaning.
To aid rehabilitation, schemes such as the Self Employment Scheme for Rehabilitation of Manual Scavengers (SRMS) were introduced in 2007, which is now known as the National Action for Mechanised Sanitation Ecosystem (NAMASTE). Currently, the scheme operates in coincidence with the Swachh Bharat Mission 2.0 guidelines and the MS Act. NAMASTE focuses on an all-round structuring of the sanitation sector through formal training, strengthening & capacity building of the SRU and increased awareness.
However, the large number of women manual scavengers remains a major blindspot in law & policy. Many women engaged in the practice cannot benefit from such schemes due to their inability to register themselves under the schemes for several reasons related to the unavailability of valid documents and others (UNDP, 2012)12. A 2014 study that surveyed nearly 480 women from states such as Bihar, Madhya Pradesh and Uttar Pradesh revealed that more than 85% of women manual scavengers are women who married into families where the practice is passed on. Social pressures and ostracisation in the community clubbed with financial inequity and exposure to noxious gases contribute greatly to women’s objective discrimination (Kumar & Preet, 2020) 12. Yet, the MS Act 2013 remains gender blind (Gupta, 202013 as it fails to recognise the intersectionality of factors and overlaps with social structures that target women. Even with a large number of women manual scavengers being exposed to a triple threat from the existing system based on their caste, economic insufficiency and gender, the MS Act does not provide for specific rules & regulations for extended protection of women manual scavengers.
The government also introduced the Prohibition of Employment as Manual Scavengers and their Rehabilitation (Amendment) Bill 2020, which was to be discussed in the Monsoon Session of 2020; however, it still awaits cabinet approval. Even with the new Bill, the focus is on mechanising sewer cleaning and ‘on-site’ protection instead of the rights of the persons engaged in the practice.
Failures in Protection
Regardless of the law & policy in place, there have been many gaps that have failed in extending such protection to persons. This can also be associated with two major factors. Firstly, the sanitation sector in India remains largely unregulated. Secondly, in the places where regulation exists, loopholes also exist within them.
The law permits manual cleaning with protective gear and safety devices only in exceptional circumstances. However, many accounts from across the country show a different on-ground reality. In March of 2023, multiple incidents were reported from districts in Gujarat where as many as five people died in one month from underground sewer line cleaning without safety gear (Shah 2023)14. The government’s insistence on zero manual scavenging is seemingly far from the truth amid reports from the capital, Delhi, where reports show that 46 manual scavengers died in Delhi over the last five years (Deep 2022)15.
It is not wrong to say that the current law & policy have, to a great extent, failed to stop manual scavenging and have hardly taken into consideration the protection of the manual scavengers. Some attributable reasons for the failure in protection can be undercounting, limited categorization and identification and underregulation in the sector. Others, such as loopholes within the law and a continued cycle of rehabilitation, make the issues deeper.
Community & trade union officials such as Pragya Akhilesh have pointed out that the limited categorisation under the provided definition leaves many out of the purview of the Act. This includes domestic learners, community toilet cleaners, sweepers and sanitation workers in schools (Anthony & Sanghi, 2023)16. On the ground, other realities of economic & social coercion exist as well- those related to the deceased are put under pressure to mention that the deceased made a voluntary entry without protective gear even though it was provided to him (Anthony & Sanghi, 2023).
Even when the case goes through, convictions are hard to get. Activists and advocates share that none of the manual scavenging cases in the country have resulted in a conviction. This is because the MS Act does not make any punitive provisions for death caused by manual scavenging. These deaths are filed under section 304-A of the Indian Penal Code, which refers to deaths caused by negligence (M N, 2019)17.
For prohibitions mentioned under the Act for the contravention of Section 5 and Section 6 for the engagement of manual scavengers and related void contracts, the sentence is only one year. Even though the practice is still openly engaged in by private contractors & housing managers, the conviction rate has remained disappointingly low (Das, 2022)18. In August 2022, the Madras High Court held that if a municipality was seen to be engaging in the practice of manual scavenging even though private contractors, the Commissioner of the said municipality shall be held liable (Sajeev, 2022)19. Even in Gujarat, which is the state with the second highest number of manual scavenging fatalities after Tamil Nadu (Kshatriya, 2023)20, the state government has made a provision that a Class II government officer from the corporation where the death occurs will be held responsible. However, despite 11 confirmed deaths in the assembly in early 2023, no government officer has been charged (Shah, 2023).
Senior Advocate Prof Ravivarma Kumar holds the investigation procedure responsible for the problem. He advocates for voiceless victims who stand against a deeply rooted system of inequality where the prosecution & investigation are ‘hand-in glove with the perpetrators of the crime’(M N, 2019).
The failure to protect further marginalised groups of women within this group is even more intense because of the intrinsic nature of discrimination. The absence of a specific policy aggravates the issues of rehabilitation and identification. Women are often paid less than men, although over 90% of manual scavengers are women (Mehta & Bhandari, 2020)21.
Policy Recommendations
The issues in the case of manual scavenging require not only the strengthening of policy interventions but also systemic measures to eliminate the social structures from which these practices stem. The government must make the law more stringent by adopting a right’s based approach while ensuring the implementation of the law. Some of the key recommendations are:
1. Expanding the definition & classification of term ‘manual scavenging’
The definition of the term ‘manual scavenging’ under Section 2 of the MS Act 2013 is limited and does not recognise the modern versions of manual scavenging and sanitation work. The government’s claim that the deaths are caused by hazardous cleaning of sewers & not by manual scavenging is also skewed as it simply overlooks the core of the problem. The limitations of the definition create loopholes that result in an escape from accountability for the perpetrators. For example, hazardous cleaning is only considered on the condition that workers are not provided with protective gear.
2. Strengthening the legal framework
The rate of conviction in cases of fatalities resulting from manual scavenging shows that the legal framework behind the issue is weak. The MS Act 2013 does not make any specific punitive provisions (PEMSRA, 2013)22 for the death of persons engaged in sewer cleaning. With an amendment to the Act, specific legal provisions must be put in place for such unfortunate incidents. The MS Act 2013 also remains gender-blind and does not recognise the large number of backward-class women who are engaged as manual scavengers. It doesn’t, therefore, take into account the specific challenges for women manual scavenger
3. Improve data collection and monitoring
False claims of elimination of manual scavenging only further minimise the scale of the problem. The government must collect reliable data on the number of people engaged in the activity. Reliable data is the first step in the recognition of challenges, identification & rehabilitation of marginalised persons. For this purpose, the government can set up district & state level monitoring bodies. The criteria of employment in these monitoring bodies should be strict as well to avoid corrupt practices. The NHRC also suggests setting up an App and a toll-free number for registration of complaints.
4. Increase the rehabilitation compensation
The current grant for rehabilitation compensation stands at INR 40,000 per individual (PIB Delhi, 2022)23. The NHRC also suggests the enhancement of the compensation amount as one cash assistance for rehabilitation of manual scavengers to be enhanced to INR 1 lakh (NHRC, 2021). It suggests that the nodal authority/department must bear the expense of such compensation. The linking of rehabilitation under this Act to schemes such as MNREGA can also help in breaking a cycle of employment in linked sanitation professions & help in immediate earning prospects.
Conclusion
The need to revamp the law, although urgent, is not sufficient to counter the issues related to manual scavenging in the country. The efforts of minimising and, in future, putting a complete halt on the practice have to be driven by community awareness and a shift in attitudes. This is not easy to commit to in a setting which benefits from the struggles of the community. However, in these circumstances, the government must coordinate with district and state level authorities to tighten the compliance with the present law while focusing on adopting a more rights based approach.
It is important to recognise that the practice of manual scavenging violates the basic fundamental rights guaranteed by the Constitution of India to all its citizens. The systemic engagement of these persons as manual scavengers is done by government-authorised agents through private contractors. Thus, the resultant deaths are not private injuries. Instead, they are a practice of state-sponsored continued oppression. The loss of life & injuries caused by manual scavenging should be enough reason to shake popular conscience even in the absence of a much-needed and well-devised action plan.
