The evil practice of manual scavenging is still on the table, and is not fully eradicated. Various judicial and executive attempts have been made since decades to exclude this practice from the society, but still people from the lower class are exploited and in return of monetary benefits, their dignity gets discarded. Recently, two petitions were filed in the Karnataka High Court, both concerning with the exclusion and non-compliance of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013[1]. The first petition was filed by High Court Legal Services Committee and the second one by All India Central Council of Trade Union (Karnataka State Unit).
The Karnataka High Court, on December 9 issued some interim directions in All India Council of Trade Unions v. Union of India[2], and the observations made by the court is equally important to draw a line between non-compliance of the Act concerned and how manual scavenger can be restricted accordingly within the state. These directions should not be only confined up to the State of Karnataka but also, other states should follow them as an advisory to tackle the evil practice.
Manual Scavenging: A Crime against Human Dignity
The Preamble to the Act has been structured to deliver some amount of justice to those who have been suffering since ages. The Preamble reads out that – “And whereas it is necessary to correct the historical injustice and indignity suffered by the manual scavengers, and to rehabilitate them to a life of dignity”. But the question of implementation is stuck somewhere beneath the table. In the opening para, the court had rightly made it crystal clear that there is no place for manual scavenging under the Constitutional shelter as it vandalises the trinity of equality, fraternity and liberty. On these lines, it was observed by the court that:
“There can be no dispute that our Constitutional philosophy does not permit any form of manual scavenging. Right of a citizen to live with dignity is an integral part of the fundamental rights guaranteed to the citizens under Article 21 of the Constitution of India. The Preamble of the Constitution shows that the Constitution seeks to protect the dignity of an individual. There can be no dispute that manual scavenging is most inhuman and it infringes the fundamental rights guaranteed under Article 21. If any citizen is forced to do manual scavenging, it will be a gross violation of his fundamental right conferred under Article 21 of the Constitution of India. Under Article 47 of the Constitution of India which is a part of directive principles of the State policy, the state is under an obligation to endeavour to improve the standard of living of its people. Under Article 42 of the Constitution, the State must endeavour for securing just and humane conditions of work.”[3]
Who is a Manual Scavenger?
The court while dealing with the issue on scavenging, had exhaustively dealt with the various important definitions given in the Act. The meaning of manual scavenger has been marked under Section 2(g) which states 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 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, and the expression “manual scavenging” shall be construed accordingly”. The definition concerned has been further explained and the explanation reads out that if a person 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, shall not be deemed to be a “manual scavenger”.
The question on insanitary latrine was dealt and it was differentiated with other methods. For instance, the court in para 12 had clarified that – “insanitary latrine” is defined in clause (e) of Section 2. It means a latrine which requires human excreta to be cleaned or otherwise handled manually, either in situ or in an open drain or a pit into which the excreta is discharged before the excreta fully decomposes in such manner as may be prescribed. However, a water flush latrine in railway coaches is cleaned by an employee with the help of a device and by wearing a protective device as may be notified by the Central Government shall not be deemed to be an insanitary latrine.[4]
The Act lays down two specific provisions to restrict and prohibit the construction of sanitary latrines and Section 4 to Section 5, when read together sums up the regulations coupled with prohibitions laid down by the Act itself. The court had summarised the importance of these two provisions:
Para 16: The effect of Sections 4 to 5 can be summarised as under:
(a) there is a complete prohibition on constructing insanitary latrines. All the insanitary latrines constructed after coming into force of the Manual Scavengers Act, have to be either demolished or converted into sanitary latrines by the occupier as defined in clause (j) of Section 2;
(b) there is a complete prohibition on engaging or employing, either directly or indirectly, a manual scavenger. If any person who has been so engaged prior to coming into force of the Act shall stand discharged immediately from any obligation, express or implied, to do manual scavenging; and
(c) if any occupier fails to demolish an insanitary latrine or convert it into a sanitary latrine within the period provided in sub-clause (b) of sub-section (1) of Section 4 (period not exceeding three years from the date of commencement of the Manual Scavengers Act), it is the duty of the local authority to either demolish or to convert the existing insanitary latrine into a sanitary latrine.
Implementation: A Reality Check
It is pertinent to note that court came down heavily on the authorities concerned as most of the provisions were not even notified, forget about implementation. For instance, under Sections 5 to 6, it is needed or expected that a survey is carried out and such insanitary latrines are demolished accordingly and record should be placed within the period concerned. The Manual Scavengers Act came into force on 6-12-2013 and clause (b) of sub-section (1) of Section 4 enjoins every local authority to give a notice to the occupier of an insanitary latrine within a period of 15 days from the date of publication of the list as per clause (a) of sub-section (1) of Section 4 to either demolish insanitary latrine or to convert such insanitary latrine into a sanitary latrine within a period of six months from the date of commencement of the Manual Scavengers Act. Hence, no positive outcome was tabled by the local authorities concerned and to the contrary, the court in Para 20 of the order,observed:
“There is nothing on record to indicate that these provisions have been implemented. Under sub-section (2) of Section 4, every local authority are under an obligation to construct adequate number of sanitary community latrines within a period of not exceeding three years from the date of commencement of the said Act, as the appropriate Government may, by a notification, specify so as to eliminate the practice of open defecation in their jurisdiction. In fact, the practice of open defecation must be stopped or eliminated immediately. It is an important step towards eradication of manual scavenging. But this cannot happen unless the local authorities construct adequate number of sanitary community latrines and maintain the same clean and hygienic. More importantly, all the authorities will have to sensitise the citizens about the ill effects of open defecation. A massive awareness campaign needs to be initiated for that purpose.” [5]
Rehabilitation: A Failed Reality
The main object of the 2013 Act was to rehabilitate the families and victims of manual scavenging. The Supreme Court in Safai Karamchari Andolan v. Union of India, while issuing certain directions to curb the practice had rightly noted that one of the main object is to rehabilitate the family members and it was observed that – “Identify the families of all persons who have died in sewerage work (manholes, septic tanks) since 1993 and award compensation of Rs 10 lakhs for each such death to the family members depending on them.”[6] Now, if we come to the practical side, then the implementation of the Act itself is a challenge, because rehabilitation would be on the table only when the “evil” of manual scavenging is set aside.
Section 13 of the Act rightly remarks that if any person or person(s) are identified and they are included in the final list, shall be rehabilitated. The provisions cover different benefits for such persons, like their children would be entitled to scholarships, a photo identity shall be issued, they shall be allotted a residential plot and financial assistance for house construction:
(e) he, or at least one adult member of his family, shall be given, subject to eligibility and willingness, subsidy and concessional loan for taking up an alternative occupation on a sustainable basis, in such manner as may be stipulated in the relevant scheme of the Central Government or the State Government or the local authority concerned; and
(f) he shall be provided such other legal and programmatic assistance, as the Central Government or State Government may notify in this behalf.
Now, let us come back to the practical approach and implementation of these provisions regarding rehabilitation. The court in this case had rightly observed that only those people are eligible for these benefits who are there in the final list, but the local authorities and State had failed to even comply one, and it was directed by the court that:
“Therefore, directions will have to be issued to the State Government to submit a report whether survey and identification of manual scavengers in the State has been conducted and whether final lists have been published. The State Government will have to also inform the court whether district-wise lists are made and whether consolidated State list has been prepared. Moreover, the State will have to place on record whether the District Level Survey Committees have been formed in all the districts and the State Level Survey Committee has been constituted. The State Government will have to point out the details of the number of meetings held of both the Committees.”
Hence, the court issued certain interim directions to curb the current happenings and non-compliance of the provisions of the Act. Some of the important directions can be categorised as:
(a) Low Convictions: The court observed that very low cases have been registered for violating the provisions of the Act concerned and the State was directed to place the details on number of first information reports, also the cases which finally resulted in convictions.
(b) Data and Surveys: It was directed by the court that State and the local authorities would place on record the data which has to be collected in pursuance of sub-clause (c) of Rule 2 of the Manual Scavengers Rules. Also, the data on final list has been collected or not by the authorities concerned.
(c) Demolition of Insanitary Latrines: The court directed the authorities to place the records concerned on demolition of insanitary latrines in pursuance of Section 4 and Section 5 of the Act. Also, it was directed that the State Government shall direct all the local authorities to comply with the obligations under sub-sections (2) and (3) of Section 4 and to immediately ascertain the requirement of number of sanitary community latrines within their respective jurisdictions and thereafter, make construction of such latrines. The data of such community sanitary latrines constructed in the State shall be placed on record.
(d) Rehabilitation: It was directed that the State Government shall place on record the steps taken for rehabilitation of manual scavengers as provided in Section 13 by stating whether there are any Schemes of Central and State Government for rehabilitation of the manual scavengers as contemplated by Section 13.
(e) Compliance of Safai Karamchari Judgment: The court directed that the State Government shall place on record all the details regarding the compliance with the directions contained in para 23.3 of the decision of the Supreme Court in Safai Karamchari Andolan[7].
† Law graduate, Member of Indian Civil Liberties Union, e-mail: uddin.areeb@rediffmail.com.
[1] http://www.scconline.com/DocumentLink/FM5Ed3hR
[3] All India Council of Trade Unions v. Union of India, 2020 SCC OnLine Kar 2420
[4] All India Council of Trade Unions v. Union of India 2020 SCC OnLine Kar 2420
[5] All India Council of Trade Unions v. Union of India. (Supra)