In a plethora of judgements, the Supreme Court has repeatedly harped on the right to safety and the right to dignity as being inherent to an individual’s right to life under Article 21 of the constitution. But manual scavengers (for whom the government uses the euphemism safai karamchari) continue to lead miserable lives full of indignity, injuries and deaths while on the job. In all these years since 1993, when the Parliament had passed a law outlawing the employment and use of manual scavengers, scant little has been done to secure their most essential rights. This is due to the abject negligence and willing connivance of the government officials cutting across states.
This is the sum and substance of a PIL (being Writ Petition (Criminal) No. 20 of 2019) filed by NGO Criminal Justice Society of India in the Supreme Court of India, on which the apex court bench of Justices A.K. Sikri and S. Abdul Nazeer was pleaded to issue notice on February 9. The petition was argued by Senior Advocate and MP KTS Tulsi and Advocate-on-Record Fuzail Ayyubi.
The PIL prays for directions for ascertaining the actual number of manual scavengers employed in the country since 1993; to estimate the number of dry/insanitary latrines existing or constructed since 1993; number of manual scavenger deaths in the country actual number of manual scavengers who met with an untimely death since 1993; and to investigate into the aforementioned deaths and initiate criminal proceedings by registration of First Information Reports (F.I.Rs) against the erring officials and contractors under Section 304 of the Indian Penal Code, 1860.
It was in 1993 that manual scavenging was declared illegal by way of The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993. It was drafted by the Ministry of Urban Development as an issue under Item 6 “Public Health and Sanitation” of the State List.
As a result, the law gave importance to public sanitation, and placed only marginal emphasis on the objective of liberating persons employed as manual scavengers. Another reason was the narrow definition of a manual scavenger did not cover scavengers other than those cleaning dry latrines. It excluded the manhole workers (sewer workers), scavengers cleaning septic tanks, open defecation, and railway tracks. The act also lacked a clause on rehabilitation of manual scavengers. The law could have instead been legislated under “human dignity” in the Union List.
Since the 1993 law was a state subject and not mandatory, several states refused to adopt it, while others framed their respective acts. Several states such as West Bengal, Kerala, Jammu and Kashmir, and Chhattisgarh refused to adopt it, while others like Bihar and Rajasthan framed their own laws. In fact, the legislation would have had weightage if the central government had rooted the Act in the problem of caste instead of merely addressing it as an issue of sanitation, the petition contends.
Since its implementation, not a single case was registered across India under the Act, and the government had no option but to bring in a new law in the ambit of human dignity and thus, the Parliament enacted The Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013, introduced by the Ministry of Law and Justice which came into effect from September 19, 2013, thereby overriding the provisions of the Act of 1993.
Also read: Govt Lacks Political Will to End Manual Scavenging: Bezwada Wilson
The Devil is in the Definition
According to the PIL, is pertinent to note that the definitions of Safai Karamchari (Section 2(h) of National Commission for Safai Karamchari Act, 1993 and Rule 2(h) Prohibition of Employment as Manual Scavengers Rehabilitation Rules, 2013) and that of Manual Scavengers (Section 2(j) the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 and 2(g) of The Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013) overlap to a certain extent as both the abovementioned definitions deal with human excreta. However, the manual published in 2013 by Ministry of Social Justice and Empowerment stated that “Safai Karamcharis, per se, are not manual scavengers. All manual scavengers are safai karmcharis but all safai karmcharis are not manual scavengers.”
Hence, the term ‘safai karamchari’ is the genus, and the term ‘manual scavenger’ is the species.
The petition filed by the NGO presents an astounding amount of data of deaths of manual scavengers.
As of 2018, it is estimated that India still has 26 lakh dry latrines and the Safai Karmachari Andolan, which has campaigned for the eradication of manual scavenging since 1995, estimates that between 2014 and 2016, nearly 1,500 people have died while cleaning septic tanks across India.
Astoundingly, between 1993 and 2013, no convictions were recorded for violation of the Act of 2013. Recently, in an article published by The Indian Express, it was reported that one manual scavenger dies while cleaning sewers and sceptic tanks every five days since the beginning of 2017.
At least 300 people have died doing such work since 2017. The National Commission for Safai Karamcharis said that as per their records, at least 123 people have died in sewer deaths, and estimated at least another 612 people have died since 1993.
In July 2016, a meeting was convened by the National Commission for Scheduled Castes (NCSC), where representatives of the states and union territories were asked to share data related to the number of dry latrines and manual scavengers.
The data submitted, however, showed a severe mismatch. As of December 2015, Telangana reported 1,57,321 dry latrines, but zero manual scavengers, a barely believable figure. Himachal Pradesh declared 854 dry latrines in the state but zero manual scavengers, while Chandigarh reported 4,391 dry latrines but only three manual scavengers.
Recalcitrant State Governments
The petition states that the state governments have been reluctant to reveal the data about the deaths of manual scavengers in course of their duty. Even the Indian Railways, the largest national employer, is complicit.
The petition states:
“Even worse, there appears to be a discrepancy in the data as provided by the states with regard to the number of deaths recorded. Despite over 1,500 deaths in the last five years, as per the data collected by the Rashtriya Garima Abhiyan, which is in no way complete and conclusive of the actual number of deaths, no convictions have been recorded in relation to these deaths, showing how lightly the problem was looked at by the state administration. Furthermore, the Indian Railways is the largest employer of manual scavenger, yet, astonishingly no data pertaining to the number of persons engaged or employed directly or indirectly and consequent deaths has been provided by them.”
In these times, when the prime minister washes the feet of manual scavengers, while simultaneously detaining them for waging protests, and when they demand that he wipe their tears instead of washing their feet, this PIL and the notice to the government assume prime significance.
Saurav is an independent journalist based out of Delhi, and specialises in reporting
on legal, human rights and gender issues. He earlier used to teach media law and
jurisprudence in Bombay and in Pune. He tweets @SauravDatta29.
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