There still exists a rampant practice of manual scavenging in India although on paper, the practice has been banned by the legislature at the Central level[1]. Although the Constitution of India banned the practice of “untouchability” as early as in 1950s[2], the legislature, the political parties and the general public including “us” have failed massively in this direction.
The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013[3] (hereinafter referred to as “the Act”) on the face of it appears to prohibit the employment of manual scavengers, but ironically regulates the same. The definition of the term “manual scavenger” provided in the Act which excludes such persons who have been made available the required protective gear and tools/equipment for cleaning human excreta[4]. Also, if the cleaning of a septic tank/ sewer is done by an employee with the employer making available safety equipment, the same shall not qualify under the definition of “hazardous cleaning” as provided under the Act.[5] Hence, if required equipment is made available then the activity of cleaning human excreta or sewers is not banned by the Act. However, in practice, either the equipment so provided to the employees is of such low quality that the same cannot be used as a protective gear or the equipment are not provided at all. Also, the definition of “manual scavengers” as provided in the Act is a dead letter as it does not cover wastes such as menstrual waste, corpses, hazardous medical waste, etc. The manner in which the Act has been interpreted by the judiciary and the Governments in the past has clearly overlooked the ground realities of the lack of enforcement mechanisms of the same and the gaps in the law itself being an antithesis to the “welfare state theory” and the overarching aim of the Swachh Bharat Mission.[6]
One of the heavily neglected issues in this respect is the “genderisation in the field of manual scavenging and why does the existing legislation fail in protecting them?”. The Report on the “Status of Women in India”[7] submitted by the High Level Committee in 2015 constituted by the Ministry of Women and Child Development, showcases that women face overlapping forms of discrimination as there is intersectionality of various factors including caste, creed, religion and because patriarchy and gender-based discrimination cut across all these factors.
The Act was preceded by the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition Act), 1993[8] which succinctly outlines the fact that the Act was passed to address the issues which remained unresolved during the life of the earlier legislation. However, even the present Act has massively failed to address the pressing socio-legal concerns of the community of manual scavengers more specifically of the “female manual scavengers”. When a social and legal issue is not addressed in its entirety, we often believe that the reason for the same is lack of enforcement mechanisms.
The Act nowhere provides separate set of rules and regulations for both men and women in an unorganised sector where labour is involved. This argument can be substantiated with the concept of “inside and outside” which postulates that the knowledge of law comes from the category which is inside the law and hence the people who are outside the law are not able to fit their experiences and understanding inside such law[9]. For example, the Penal Code, 1860[10] does not cover within its ambit all the possibilities of rape of a transgender person[11] and hence protection of the lesbian, gay, bisexual, transgender, queer (LGBTQ) community against rape has not been considered as a possible discourse therein.
Terri Elliot[12] refers to a “flight of stairs” leading to a doorway to understand the various discourses of understanding law. The said “flight of steps” could be an opportunity for a person to gain access; however, the same flight of stairs could also be a hindrance for a person in a wheel chair. It basically refers to “the view from below” of a piece of legislation as only a person who is at the bottom of the hierarchy can see the oppressions and not a person who has some epistemic privilege.
The Report of Rashtriya Garima Abhiyan on the “Rehabilitation of the Manual Scavengers and their Children in India, 2012” states that 95-98% of the total population of the manual scavengers in the country are women[13], and considering the same, we can identify that the Act fails to acknowledge the existence of a group which needs special social and legal attention.
Female manual scavengers suffer a double whammy in this context as the discrimination they face is furthered by “gender”. Female manual scavengers receive lower wages as compared to their male counterparts; they are often faced with a situation when a contractor or such person who is in a fiduciary capacity demands sexual favors from them, the safety concerns while working during wee hours, etc. The sector of manual scavengers is a heavily unregulated and unorganised sector and the gravity of this non-regulation increases manifold with respect to female manual scavengers.
The Constitution of India does not expressly mention “equal pay for equal work” as one of the fundamental rights, but has read the same into it through interpretation of various articles including Articles 14, 15, 16, 39(a), 39(d), 42 and 51-A(e). [14] [15] [16]
There are various legislations which do recognise females as a separate group and provide specific rules for them like the Equal Remuneration Act, 1976[17]; the Minimum Wages Act, 1948[18]; the Factories Act, 1948[19]; the Contract Labour (Regulation and Abolition) Act, 1970[20] and the Contract Labour (Regulation and Abolition) Central Rules, 1971[21]. But, law on manual scavenging nowhere prescribes rules for regulating the work conditions of female manual scavengers considering their specific requirements which are specific to their sex. It is pertinent to note that women employees are vulnerable to various additional factors like safety concerns, biological hygiene, sexual harassment at workplace, etc. The Act fails in its implementation as it does not have a provision for regulating the quality of work given to women employees owing to their bodily orientation. Also, the Act does not make an effort for taking care of the medical expenses incurred by a female employee considering they are often required to undergo uterus removal due to the heavy labour involved.
The legislature while making laws needs to understand an issue from a holistic sense which should comprise of the existing social, legal, economic and political conditions of the society. Further efforts and research are needed in this field to accommodate the specific issues faced by “female manual scavengers” due to intersectionality of various forms of discrimination and set the groundwork for legal amendments, reforms and policy level changes. This is because the abovementioned labour legislations, due to their applicability in specific sectors, cannot be applied to the community of manual scavengers. Separate set of rules are needed for “female manual scavengers” dealing with pay scale, hygiene, separate latrines and urinals, a system to deal with harassment issues, the quality of work to be given to female employees on the basis of their bodily orientation, etc.
*BA LLB (Hons.) from National University of Study & Research in Law, Ranchi, Jharkhand, India. Author has worked with Legal Department of Housing Development Finance Corporation Limited, Mumbai, Maharashtra, India for 4 years. Presently, she is pursuing integrated LLM PhD from NALSAR University of Law, Hyderabad.
[1] Refer “Kakkoos” a documentary by Divya Bharati which basically means “toilet”, highlights the same with reference to the State of Tamil Nadu and describes socio-legal issue of invisibilisation, marginalisation and stigmatisation of the community of “manual scavengers” from the mainstream society by way of structural violence guided by “caste” at its base. Divya Bharati is facing threat to life, threat of getting raped, etc. after making of the text and this is a living example of the fact that “females” in this era need to be protected from gender-based discriminations furthered by “patriarchy”.
[2] Constitution of India, Article 17.
[3] Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013, No. 25, Acts of Parliament, 2013 (India).
[4] Ibid, see Section 2(g).
[5] Ibid see Section 2(d).
[6] Ministry of Housing and Urban Affairs, Government of India, “Guidelines for Swachch Bharat Mission- Urban”, August 2017. Available at: http://ud-hp.in/pdf/SBM_Guideline.pdf.
[7] Ministry of Child and Development, Government of India, “Executive Summary: Report on the Status of Women in India”, High Level Committee on the Status on Women, 2015. Available at:https://wcd.nic.in/sites/default/files/Executive%20Summary_HLC_0.pdf.
[9] Margaret Davies, Asking The Law Question, 16, (4th Edn., Thomson Reuters Professional Australia Limited, Sydney) (2017).
[10] Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).
[11] Ibid. See Section 375.
[12] Terri Elliott, “Making Strange What Had Appeared Familiar”, The Monist 77:4 (1994), pp. 424-433.
[13] “Uncompleted and unsuccessful rehabilitation of manual scavengers and their children in India: Brief Report on National Public Hearing on Rehabilitation of Manual Scavengers and their Children in India”; Rashtriya Garima Abhiyan, National Campaign for Dignity and Eradication of Manual Scavenging, (2012), New Delhi. Available at: https://idsn.org/wpcontent/uploads/user_folder/pdf/New_files/Key_Issues/Manual_scavenging/NationalPublicHearing_ManScavenging_2012.pdf.
[14] See Articles 14, 15, 16, 39(a), 39(d), 42 and 51-A(e).
[15] Randhir Singh v. Union of India, (1982) 1 SCC 618
[16] State of Punjab v. Jagjit Singh, (2017)1 SCC 148
[17] Section 4, The Equal Remuneration Act, 1948, No. 25, Acts of Parliament, 1976 (India).
[18] Section 20, The Minimum Wages Act, 1948, No. 11, Acts of Parliament, 1948 (India)
[19] Section 22, The Factories Act, 1948, No. 63, Acts of Parliament, 1948 (India)
[21] Rules 25, 41, 44 & 53, The Contract Labour (Regulation and Abolition) Central Rules, 1971
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