Nelson Mandela once remarked, “Only free men can negotiate; prisoners cannot enter into contracts.” Freedom is, universally, considered as one of the most cherished human rights. It is necessary not only for basic sustenance of an individual, rather, indispensable for the progress of a society as a whole. History has witnessed numerous struggles for independence across the world, aimed against apartheid, oppression and several other forms of exploitation. At the same time, there are several illustrations woven into the fabric of time where human endurance and mass movements occasioned into the extermination of several social/societal evils. However, despite the consciousness of the concepts of liberty and independence, unfortunately, even in the present century, a certain section of our society continues to endure a form of slavery and abuse in the form of manual scavenging. This practice which owes its genesis to India’s repressive caste system continues to thrive, notwithstanding almost seventy-three years of our independence. In fact, independence and freedom have continued to remain a mere illusion for the individuals subjected to this archaic, tyrannical and forced form of heroics. Regrettably, such individuals, who are prisoners of their caste, poverty and illiteracy are not in a position to negotiate for their freedom and better lives from those in power and their ‘so-called superiors.’ As per the Ministry of Social Justice and Empowerment’s Survey of Manual Scavengers in Statutory Towns there are approximately[1] 15,000 (fifteen thousand) manual scavengers in India, though, the actual number is estimated to be much higher. Unfortunately, due to lack of proper rehabilitative measures and societal apathy, the size of this group is ever increasing.
Indian judiciary has repeatedly emphasised on the importance of a dignified form of life. In fact, it is a settled law[2] that right to dignity is one of the essential elements of the right to life as provided under Article 21[3] of the Constitution of India (“the Constitution”). In this regard, the Supreme Court in Gian Kaur v. State of Punjab[4], observed,
“[t]o give meaning and content to the word ‘life’ in Article 21, it has been construed as life with human dignity. Any aspect of life which makes it dignified may be read into it but not that which extinguishes it and is, therefore, inconsistent with the continued existence of life resulting in effacing the right itself.”
The Constitution further, inter alia, prohibits any forms of forced labor and employment of children in factories or mine or any other hazardous employment under Articles 23 and 24, thereof. These constitutional provisions are meant to strike at the core of several unfair practices, which are prevalent in India and in particular, to eradicate slavery in any of its forms. It is trite law[5] that the word “force”, under Article 23 of the Constitution includes not only physical or legal force, rather, also the force arising from the compulsion of economic circumstances. In fact, as per the Supreme Court in People’s Union for Democratic Rights v. Union of India[6],
“where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words “forced labour” under Article 23.”
Unfortunately, despite these and several other constitutional safeguards, the practice of manual scavenging continues unabated across India. In fact, in an ever-enduring struggle against poverty and lack of free-will; in dingy and poorly lit dungeons, several lives are silently sacrificed and fed to quench the hunger of the ‘manual-scavenging dragon’.
Manual scavenging is generally understood[7] as a process of physical removal of human excreta from dry latrines and sewers. A person so engaged in or employed for manually carrying human excreta is termed as a manual scavenger under Section 2(j) of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993[8] (“the 1993 Act”). Pertinently, under the 1993 Act it has been acknowledged that despite concerted efforts made to eliminate the dehumanising practice of employing persons for carrying human excreta on their heads or likewise, “the practice still persists in certain parts of the country”. Accordingly, the said Act was enacted, inter alia, with an object to prohibit “employment of manual scavengers as well as construction or continuance of dry latrines”.[9] Significantly, Section 3 of the 1993 Act empowers the State Government to issue notification prohibiting the engagement or employment of any person for manually carrying human excreta or for the construction or maintenance of a dry latrine. Further, Section 5 of the 1993 Act empowers the State Government(s) to appoint a District Magistrate or a Sub-Divisional Magistrate as an Executive Authority to ensure compliance of the provisions of the said enactment. The State Governments have been further empowered to make and notify, inter alia, one or more schemes for regulating conversion of dry latrines into, or construction and maintenance of, water-seal latrines, rehabilitation of the persons who were engaged in or employed for as manual scavengers, under Section 6 of the 1993 Act. Significantly, under Section 14 of the said enactment, failure to comply with or contravention of any of the provisions of the 1993 Act, or the rules or schemes made or orders or directions issued thereunder have been declared to be punishable[10] with imprisonment for a term which may extend to one year or with fine, which may extend to two thousand rupees, or with both. In turn, the provisions relating to the nature of offences, jurisdiction and limitation of prosecution are provided under Sections 16, 17 and 18, respectively of the 1993 Act.
Subsequently, noting that the existing laws, “have not proved adequate in eliminating the twin evils of insanitary latrines and manual scavenging”, Parliament enacted the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 (“the 2013 Act”). The said Act, inter alia, aims towards the “prohibition of employment as manual scavengers, rehabilitation of manual scavengers and their families.” The 2013 Act provides for an exhaustive definition of manual scavenger, under Section 2(1)(g) thereof, as
“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 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.”
Significantly, persons engaged or employed to clean excreta with the help of such devices and using such protective gear, as the Central Government may notify in this behalf, are exempted from the definition of manual scavenger(s). Provisions regarding prohibition of insanitary latrines and employment and engagement of manual scavenger are provided under Section 5 of the 2013 Act. Section 5(2) thereof further obliges every occupier, at his own cost, to demolish or convert into sanitary latrine; every insanitary latrine existing on the date of commencement of this Act within the notified period[11]. As per Section 6 of the 2013 Act,
“[a]ny contract, agreement or other instrument entered into or executed before the date of commencement of this Act, engaging or employing a person for the purpose of manual scavenging shall, on the date of commencement of this Act, be terminated and such contract, agreement or other instrument shall be void and inoperative and no compensation shall be payable therefor.”
Further, Section 7 of the said enactment prohibits engagement or employment of any person for hazardous cleaning of sewers and septic tanks. Significantly, the contravention of the provisions under Sections 5 and 6 are punishable under Section 8 of the 2013 Act, “with imprisonment for a term which may extend to one year or with fine which may extend to fifty thousand rupees or with both, and for any subsequent contravention with imprisonment which may extend to two years or with fine which may extend to one lakh rupees, or with both.”
Similarly, contravention of Section 7 of the 2013 Act is punishable in terms of Section 9[12] of the said enactment. Pertinently, as per Section 10 of the 2013 Act, all such offences are punishable only on a complaint, “made by a person in this behalf within three months from the date of the occurrence of the alleged commission of the offence.” Procedure of trial of such offences, in turn, is provided under Chapter VI (Sections 21 till 23) of the said enactment. Significantly, the offences under the 2013 Act are declared as cognizable and non-bailable under Section 22 thereof, which, in terms of Section 21 of the 2013 Act, may be tried summarily by the Executive Magistrate, duly empowered.
Chapter IV of the 2013 Act deals with the provisions relating to the identification of manual scavengers in urban and rural areas and for their rehabilitation. Provisions relating to the survey of manual scavengers in urban areas by Municipalities and application by an urban manual scavenger for identification are provided under Sections 11 and 12, respectively, of the 2013 Act. Section 13 of the said enactment, in turn, deals with a few of the measures which may be adopted for the rehabilitation of the manual scavengers. Significantly, such measures may, inter alia, include; issuance of photo-identity card and one-time cash assistance within one month of identification; allotment a residential plot and financial assistance for house construction; issuance of training in livelihood skills, subsidy and concessional loan for taking up an alternative occupation on a sustainable basis, etc. Implementation and compliance[13] of the provisions of the said Act, including the supervision of the economic and social rehabilitation of manual scavengers may be carried out, inter alia, by the Vigilance Committee, State and Central Monitoring Committee, National Commission for Safai Karamcharis, etc., established in terms of the provisions of the 2013 Act. Pertinently, despite law in place, the practice of manual scavenging has not been eliminated completely, till date.
The judiciary has played a proactive role towards the eradication of manual scavenging practice in India and to ensure rehabilitation of the persons engaged in such tasks. As early as the year 2005, the Supreme Court[14], directed the Union and State Governments to file affidavits regarding the prevalence of manual scavenging in their respective departments or corporations. It was further directed to the said authorities that in case, “manual scavenging is still being resorted to, then that department or corporation to indicate with details what scheme it has for eliminating it and for rehabilitating the persons concerned and within what time-frame.” This order was subsequently[15] clarified to the effect that the “Secretary of Health; Secretary, Ministry of Social Welfare and Justice; Secretary, Ministry of Urban Development and the Department concerned which deals with manual scavenging shall file detailed affidavit after collecting information from the Municipality/corporation concerned or other local department where manual scavenging is carried on in any of the States/corporation/municipality/department.” However, the said directions were elucidated to be not applicable to banks, other public sector undertakings and financial institutions.
Subsequently, considering the material brought on record pursuant to the said directions, the Court[16] observed that “the practice of manual scavenging continues unabated. Dry latrines continue to exist notwithstanding the fact that the 1993 Act was in force for nearly two decades. States have acted in denial of the 1993 Act and the constitutional mandate to abolish untouchability.” Accordingly, the Supreme Court, while acknowledging the need for extermination of the problem of manual scavenging, directed all the State Governments and the Union Territories to fully implement the provisions of the 2013 Act and to “take appropriate action for non-implementation as well as violation of the provisions”.
In another instance, the Supreme Court[17] duly acknowledged that the State and its agencies/instrumentalities cannot absolve themselves of the responsibility to put in place effective mechanism for ensuring safety of the workers employed for maintaining and cleaning the sewage system. As per the Court, “no one would like to enter the manhole of sewage system for cleaning purposes, but there are people who are forced to undertake such hazardous jobs with the hope that at the end of the day they will be able to make some money and feed their family. They risk their lives for the comfort of others” Accordingly, the Supreme Court, while observing that the human beings who are employed for doing the work in the sewers cannot be treated as mechanical robots, sought compliance from the State instrumentality, of previous directions of the High Court of Delhi[18]. Pertinently, the High Court of Delhi vide its said order had directed, inter alia, for free medical examination and medical treatment to sewer workers; payment of compensation by State authorities to the family members of deceased sewage workers; placing on record by the said authorities of proposals and plans to phase out manual work and replace it with mechanised sewer cleaning; etc. Regrettably, even such directions have not proved adequate to uproot the weed of manual scavenging, till date.
Significantly, even under the Universal Declaration of Human Rights and the Convention on the Rights of Persons with Disabilities, provisions for eradication of slavery, degrading human treatment, exploitation, etc. and promotion of equality, liberty, non-discrimination, etc., are provided. However, these provisions have not proved to be deterrent enough to exterminate the manual scavenging evil. The High Court of Delhi in Metro Waste Handling v. Delhi Jal Board[19], has observed,
“[u]nseen and forgotten for generations, our society has marginalised manual scavengers to its darkest corners. They are trapped in an eternal caste embrace, with no voice in the society or in any meaningful participation; their children are doomed to the same stereotypical roles assigned to them. The promise of equality, dignity and egalitarianism has eluded them altogether in the march and progress witnessed by the rest of our citizens.”
Regrettably, despite all the judicial directives and law in place, nothing substantial has changed in the years for these marginalised individuals. Irony is such that despite being involved in integral activities for the society, these individuals and their destinies are flushed down the drains without consideration or empathy. A society and the State like ours, which boasts of being a welfare State can no longer feign indifference towards these individuals; for the works that they do, is in no manner menial.
As Gandhi once remarked, “[t]he true measure of any society can be found in how it treats its most vulnerable members.” Therefore, time is ripe to acknowledge and work towards the emancipation towards such individuals. Further, complacency on mere eradication of few societal issues is not a solution where grave issues like manual scavenging persist even in the present century. In fact, it is incumbent to eradicate this social evil for once and for all in order to achieve the overall development of our country.
* Managing Associate, L&L Partners Law Offices
[1] http://mssurvey.nic.in/Private/Report/SurveyReportLocal.aspx (last accessed on 31.07.2020)
[2] National Legal Services Authority v. Union of India, (2014) 5 SCC 438
[3]“No person shall be deprived of his life or personal liberty except according to procedure established by law.”
[5] People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235
[7]UN rights chief welcomes movement to eradicate manual scavenging in India -UN News – 31.01.2013 (https://news.un.org/en/story/2013/01/431022-un-rights-chief-welcomes-movement-eradicate-manual-scavenging-india)
[8] As per Section 1(2) of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, the provisions of this enactment, “in the first instance to the whole of States of Andhra Pradesh, Goa, Karnataka, Maharashtra, Tripura and West Bengal and to all the Union Territories and it shall also apply to such other State which adopts this Act by resolution passed in that behalf under clause (1) of Article 252 of the Constitution”
[9] Section 2(c) of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 ‘“dry latrine” means a latrine other than a water-seal latrine;” and Section 2(i) of Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 “latrine” means a place set apart for defecation together with the structure comprising such place, the receptacle therein for collection of human excreta and the fittings and apparatus, if any, connected therewith;
[10] With an enhanced punishment for continued contravention i.e. “an additional fine which may extend to one hundred rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention.” (Section 14 of Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993)
[11] Section 4(1)(b) of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013
[12]“Whoever contravenes the provisions of Section 7 shall for the first contravention be punishable with imprisonment for a term which may extend to two years or with fine which may extend to two lakh rupees or with both, and for any subsequent contravention with imprisonment which may extend to five years or with fine which may extend to five lakh rupees, or with both.”
[13] Chapter VII of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013
[14] Safai Karamchari Andolan v. Union of India, (2011) 15 SCC 611; order dated 29.04.2005.
[15] Safai Karamchari Andolan v. Union of India, (2011) 15 SCC 609; dated 14.11.2005.
[16] Safai Karamchari Andolan v. Union of India, (2014) 11 SCC 224; dated 27.03.2014
[17] Delhi Jal Board v. National Campaign for Dignity & Rights of Sewerage & Allied Workers, (2011) 8 SCC 568
[18] National Campaign for Dignity & Rights of Sewerage & Allied Workers v. MCD, 2008 SCC OnLine Del 948
