Beneath The Ground, Where The Air Of Freedom Is Still Lacking: The Evil Practice Of Manual Scavenging

On 15 August 1947 India became independent from the British Rule and at the stroke of mid-night, India rose to freedom, but unfortunately even after 76 years there are some citizens who can’t even feel the air of freedom because in those septic tanks, even their dignity isn’t counted. Even today caste remains a major source of occupational and class division in our country, at a time when we a holding talks on artificial intelligence, there’s a community which is making its livelihood by carrying human excreta and cleaning septic tanks.

Independence for all?

It was only last week, when a fellow Advocate sent three images of manual scavenging in the heart of the National Capital. Isn’t it ironical that even after years of independence, when we are talking about artificial intelligence, we are not able to substitute to practice which involves a fellow citizen’s dignity? The evil practice of manual scavenging is directly linked with caste division, as Dr. BR Ambedkar said - In India, a man is not a scavenger because of his work. He is a scavenger because of his birth irrespective of the question whether he does scavenging or not.

The Indian government had claimed that the country would be set-free from manual scavenging till August 2023, but it seems the problem is not manual scavenging, but the way in which this practice is being dealt. According to a report published by Deccan Herald, out of 766 districts, as many as 520 districts have declared themselves manual scavenging free, while 246 districts are submit their response. The main problem is the approach of the authorities, because they are mostly focussing on eradicating the “problem” and not thinking about proper rehabilitation and an alternative livelihood for them.

It has been reported that between 2018 and 2023, 339 people lost lives while cleaning sewers and septic tanks in India. The said report was given by the Minister of State for Social Justice and Empowerment, while Responding to a question in Lok Sabha in July.

The act prohibits, but the society doesn’t

We have a separate legislation to tackle this social evil, but till date the implementation of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 (hereinafter to be referred as “PEMSR Act”) itself is a problem in many parts of the country. On this Independence Day, we should ask ourselves, whether we are free or not?

Section 2(g) of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 defines manual scavenger as:

“a person engaged or employed....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...”

The problematic part of this section is the explanation provided to Section 2(g) of the said Act, where clause (b) states that 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‟. Although, the clause prohibits manual scavenging, but on the other hand, the explanation justifies the practice “if” clean with safety gears” and this loophole is used by employers to evade liability, even though they are only providing workers with 1% of what can be termed as “safety gears”.

In addition to the legislation, the Self-Employment Scheme of Liberation & Rehabilitation of Scavengers (SRMS) is one of the most important government interventions for manual scavengers. The scheme was back then implemented by the National Safai Karmacharis Finance and Development Corporation (NSKFDC) more than ten years ago, but a report clearly suggests that it is far from meeting its goals, whose objective was to rehabilitate manual scavengers and their dependents in alternative occupations by 2009.

It is needless to say that the Judiciary has been on the forefront in tackling the menace of manual scavenging, but the problem lies with ground level implementation. In Safai Karamchari Andolan vs. Union of India, manual scavenging was held to be an inhumane the Supreme Court directed the Government to take concrete measures to eliminate manual scavenging, including identification, rehabilitation, and providing alternative livelihoods to the affected individuals. Later in 2014, a contempt petition was filed before the Supreme Court, where the Court expressed its displeasure over the slow progress in the eradication of manual scavenging. The court emphasized that the government's measures should be proactive and result-oriented.

In S. Subramani vs. Union of India, the Supreme Court issued a directive to ensure that all manual scavengers are identified and rehabilitated properly. The court also stressed the importance of comprehensive surveys to identify and document the individuals engaged in manual scavenging. Further, with regard to safety and rehabilitation of manual scavengers, in National Campaign for Dignity and Rights of Sewerage and Allied Workers vs. Union of India, the Supreme Court ordered the government to provide proper protective gear, equipment, and training to these workers to ensure their safety. The issue of manual scavenging goes untouched without mentioning the contributions of Bezwada Wilson, a prominent activist who raised his voice against the evil practice and in Bezwada Wilson vs. Union of India, he filed a petition seeking the enforcement of laws related to manual scavenging and the rehabilitation of manual scavengers and in pursuance of which, the Supreme Court issued guidelines for the effective implementation of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013.

The Preamble to the 2013 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 All India Council of Trade Unions v. Union of India, the Karnataka High 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.”

With hope and despair

With another Independence Day passing, I hope that till next, we are really free from this “evil” and there’s a proper implementation of the 2013 Act. The most important aspect of the 2013 Act is – the – focus on Rehabilitation of manual scavengers but the authority to do so – has been diluted within the Act itself. One of the most ‘less discussed’ issue is with punishment prescribed under the said Act – if anyone is found to perform anything in contravention of the Act. The punishment prescribed under Section 8 and Section 9 is one year and five years respectively, and till date the conviction rate under Act is almost nil. The accountability not only lies with the government or the judiciary, but with all of us as – citizens of this country. If a fellow citizen’s dignity is being compromised, the it is moral, as well as constitutional duty to stand up and speak.

Author is a lawyer based in Delhi and Uttar Pradesh. He writes on legal issues. 

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