The Supreme Court’s unyielding criticism of the government for not eradicating the practice of manual scavenging was the springboard for the Ministry of Social Justice and Empowerment to introduce the Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012 in the Lok Sabha on September 3. Welcomed as a panacea for the historically iniquitous, caste-ordained practice of manually handling human waste, the new Bill indicates renewed commitment but lacks a detailed vision for liberating manual scavengers. Such lack of detail in the new Bill is more pronounced when contrasted with a competent 2011 Draft Bill prepared by P.S. Krishnan, former Secretary to the Government of India.
The 1993 Act
The debasing inhumanity of manual scavenging for a living drove Dr. Bezwada Wilson to found the Safai Karamchari Andolan (SKA), of which he is now the National Convener. An unorganised movement (1986) turned organisation (since 1996), the SKA has relentlessly striven to educate the State governments and courts on the continuance of this practice across the country. The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act was enacted in 1993. The unfortunate condition under this Act was that the States had to formally adopt and enforce it, a process that has taken over two decades.
A few States have remained silent on the matter, notwithstanding the Public Interest Litigation petitions filed by SKA in the Supreme Court in 2003 (with requisite photographic evidence against States and PSUs, including Indian Railways). The PIL litigants sought to enforce their fundamental right against untouchability under Article 17 of the Constitution, read together with Articles 14, 19 and 21 that guarantee equality, freedom, and protection of life and personal liberty, respectively.
Drafted by the Ministry of Urban Development under the Narasimha Rao government, its legislation under Entry 6 (public health and sanitation) of the State List in the Constitution of India is the major lacuna in the 1993 Act. This is because privileging public sanitation accords only marginal importance to the objective of liberating persons employed as manual scavenging labour. And a tangential focus on manual scavengers explains the other lacunae in the Act: the narrow definition of a manual scavenger and the absence of a clause on rehabilitation for them.
The decision to amend the Act to fill the lacunae was foregone to avoid a lengthy and painful amendment process, since the Ministry of Law is understood to have objected to amendments to the 1993 Act under any other Entry but Entry 6 .
The new Bill — legislated under Entry 24 (welfare of labour and working conditions of the Concurrent List) — may be appreciated for: (1) a somewhat broadened definition of a manual scavenger; (2) its clause on prohibition of hazardous cleaning of sewer and septic tanks; and (3) clauses on severe penalties and rehabilitation. However, these provisions stop short of taking the bull by the horns when compared to the 2011 Draft, thoughtfully titled Total Liberation, Comprehensive Rehabilitation & Humanisation of Working Conditions Act, 2011.
Laudably, the opening declaration of the 2011 Draft is a national apology on behalf of the state to the sanitation workers, expressing deep regret for the humiliation and untouchabilty to which the latter have been subjected over centuries. The Draft subsequently cautions against interpreting manual scavenging thinly and includes within its ambit, sewage and septic tank cleaning (in the wake of egregious human rights violations associated with manhole deaths across India).
Dilution of clauses
In contrast, the new Bill dilutes the significance of the clause that prohibits the employment of persons for hazardous cleaning of sewer and septic tanks. It selectively mandates that a person handling excreta with the help of ‘protective gear’ shall not be deemed a manual scavenger. This is problematic insofar as such ‘protective gear’ becomes a mediating technology that helps sustain, if not perpetuate, the employment of persons for hazardous cleaning. It contradicts the stated intention of rehabilitating these workers out of such dehumanising squalor.
For specific Scheduled Caste (SC) communities that are forced to render manual scavenging labour, it is the burden of caste — worsened by casteist mindsets of those who forcefully employ them and aggravated on account of economic necessity and unavailability of alternative jobs. Therefore, the liberation of manual scavengers cannot be conceptualised in isolation (lest they lose their only source of income), without a meticulous roadmap for meaningful rehabilitation.
The 2011 Draft demonstrates sincerity and thoughtful intent in proposing time-bound, universal rehabilitation for manual scavengers. Inter alia , it obliges previous employers to extend monthly pension to manual scavengers in recognition of the long years of service rendered to society under adverse conditions; and assist in securing alternative employment for such pensioned elderly manual scavengers who are unwilling to be idle. It further recommends rehabilitation (unconnected with sanitation work) as service providers and cooks for anganwadis and mid-day meal schemes or as railway staff assisting the elderly, the disabled or children.
In addition to training them as caretakers of public parks/gardens, plumbers or electrical repair workers, the 2011 Draft directs the Ministry of Railways to set aside a quota to absorb ex-scavengers as railway catering staff. It also duty binds the Central and State governments to provide proper housing with adequate sanitation, road infrastructure and, most importantly, quality schools up to Class XII for the children of all SC communities from which manual scavengers are drawn. A remarkably detailed rehabilitation plan in the 2011 Draft is motivated by a three-fold realisation: (1) to restore the dignity of life to the entire community of sanitation workers; (2) to secure, through educational opportunities, better vocations for future generations traditionally vulnerable to being recruited as manual scavengers; and (3) to clearly spell out the tasks of every Ministry, PSU, and private sector organisation in order to make them enforceable.
Unlike the 2011 Draft, the clause on rehabilitation in the new Bill is similar to a checklist of items on offer. It is seemingly benevolent in monetary terms but is measly in vision. Moreover, it conceives rehabilitation to be targeted and subject to eligibility, based on identification surveys in rural and urban areas. Strikingly, it proposes that final lists of urban manual scavengers born out of the survey be displayed publicly ‘to invite objections from general public,’ further dictating inclusion or exclusion of persons. This is akin to a ‘public pillory,’ believes independent law researcher Dr. Usha Ramanathan, exposing the workers to public scorn and ridicule, ‘for fear that a few extra might get rehabilitated.’ The government is relying on the MoRD’s Socio Economic and Caste Census (SECC), 2011 enumeration for identification of manual scavengers in rural India. The new Bill is silent on the use of SECC (already under criticism from the Right to Food activists for its insensitive methodology and high likelihood of exclusion errors in identifying BPL families).
A truly laudable provision in the new Bill is its unsparing penalty for offence (both cognisable and non-bailable). It imposes an initial fine of Rs. 50,000 or imprisonment up to one year or both. Appallingly, no offender has been prosecuted in the last two decades under the 1993 Act. A stringent penalty clause then ought to entail retrospective punishment for offences committed and not exempt public servants from prosecution. For purposeful enforcement, a body like the National Monitoring and Enforcement Authority, proposed in the 2011 Draft, should be instituted. Besides eminent social workers, including Scheduled Caste persons, this body should also provide representation to the invisible workforce of devoted individuals (members of the SKA, Garima Abhiyan and similar organisations) whose unwavering struggle in fighting for the rights of manual scavengers remains unrecognised.
Not too late to apologise
Different from most other draft legislations, the 2011 Draft achieves a tone of unparalleled sensitivity that is a necessary prerequisite for any legislation seeking to remedy historical exploitation rooted in caste. Such sensitivity in the Draft conveys neither pity nor empathy, but a profound apology for the humiliation faced by manual scavengers on account of our indifference and the ill-implementation of the 1993 Act by the past and present governments.
The new Bill was rightly placed in the care of the Union Minister of Social Justice and Empowerment with the intention of privileging not sanitation for public but justice, equality and dignity for the sanitation worker. However, for the new Bill to be effective, the government ought to look at P.S. Krishnan’s 2011 Draft as its guiding document and prepare for, without further loss of time, the total liberation and thoughtful rehabilitation of manual scavengers in India.
(The author is an alumna of the University of Oxford’s Institute of Social and Cultural Anthropology and is an independent researcher based in Delhi.)
