This article is written by Advocate Amardeep Singh Chandok & Mehak Dalla and currently, they both are practicing at the High Court of Punjab and Haryana.
Introduction:
Manual Scavenging is a term, which at the first instance may not be understandable by a layman. But the actual victims of this term are most of the persons who are below the poverty line or do not have any means to earn their livelihood. If we talk about its standard, it is also not the highest paying job in the country; even though no one happily indulges him in this activity. If we look at the dictionary meaning of the term ‘manual scavenging’, it simply refers to the practice of cleaning, carrying, or disposing of the human excreta from any place. In India, The Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013 deals in this regard.
Meaning:
Manual Scavenging simply means the cleaning of Human excreta by any means, with the direct involvement of a human being or we can say that without the help of proper machinery or any other tools. Section 2(g) of The Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013 provides the meaning of the term Manual Scavenger, which says that, “Manual Scavenger means any person employed or engaged, at the commencement of this Act or at any time thereafter, by any individual or by the local authority or by an agency or any contractor, for the purpose of cleaning, carrying, disposing of, or handling manually human excreta in an unhygienic latrine or in an open drain, pit into which the human excreta from the insanitary latrines is disposed of or, or on railway track or in any such premises as Central or a State Government might inform before the excreta decomposes completely in any manner as may possibly be prescribed and therefore the expression Manual Scavenging shall be interpreted accordingly.
In order to understand the meaning of Manual Scavenging, law also provides an explanation for this clause-
A person employed or engaged means being employed or engaged on a regular or the contract basis;
A person employed or engaged to clean excreta with the aid of any devices and using any protective gear as the Central Government might report in this regard shall not be deemed to be Manual Scavenger.”
From, the aforesaid definition of the term Manual Scavenger, the meaning of the term Manual Scavenging is also clear. It simple words we can say that the work done by a Manual Scavenger is Manual Scavenging which includes the cleaning, carrying, and disposing of the Human Excreta.
History and development:
If we going towards the historical scenario, people in India were familiar to use open toilets. Then with the development of the time, the concept of dry toilets came into existence in which the Human excreta was used to collect in a pit or a dump. Dry toilets are toilets that do not operate with a flush. It has to be cleaned by throwing out the human excreta to some other place and the same is known as the main reason for embarking on the situation with regard to the Manual Scavengers. Most of the people associate the same practice with the castes prevailing in the society but in my opinion, the poverty and the lack of technology is the main reason behind the same or we can say the improper distribution of money is also the main reason behind it.
Protective Measures
There are two major acts, which are in existence in the country to deal with the problem of Manual Scavenging. These acts are the Employment of Manual Scavengers and Constructions of Dry latrines (Prohibition) Act, 1993 and the Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013.
The Employment of Manual Scavengers and Constructions of Dry latrines(Prohibition) Act, 1993 for the first time introduce the punishment of up to one year and make a provision for fine for the activities including the employment of Manual Scavengers for manually cleaning the dry toilets and moreover prohibits the construction of the dry toilets.
Then after the passage of twenty years, one more Act came into existence i.e. the Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013 which is enacted with an aim to provide “the prohibition of employment as manual scavengers, curing and rehabilitation of manual scavengers their families and for any other matter connected.
For the promotion of the citizens assuring the dignity of the individual is enshrined as one the goals of the Preamble of the Constitution and to provide the right to live with dignity which is implicit in the Fundamental Rights guaranteed in Part III of the Constitution and to fulfill the goal of Article 46 of the Constitution of India, which imposes a duty on the State to protect the weaker sections particularly the SCs and STs from social justice and all the forms of the exploitation with the ultimate objective to eliminate the practice of manual scavenging, arising from the continuing existence of insanitary latrines, still persist in the various parts of the country, and the existing laws have not proved adequate in eliminating the twin evils of manual scavenging.”
To fulfill the aim enshrined in the preamble of the Act it puts the responsibility on the local government and other authorities to identify the persons involving in the activities of the Manual Scavenging, apart from that this act also puts the prohibition of insanitary latrines and employment and engagement of Manual scavengers and for proper implementation of the same also declare all the contacts, agreements to be void.
This Act of 2013 also enhances the punishment to two years and also exceeds the limits of the fine. Huge power is given to the local authorities to identify the issue and to make arrangements for the rehabilitation of the persons involved in the activities of the manual scavenging.
Present Scenario
Now the main question which arises is whether after the 28 years of the first Act of 1993 or after 8 years of the making of the Act of 2013 can we are able to say that we completely eliminate the practice of manual scavenging from the society. Then in lack of proper data, the answer to this question is still “No”. we have seen various cases in the news regarding the death of persons in the septic tanks and many more.
The National Human Rights Commission has rightly said that “zero manual scavenging claims of many States far from the truth; recommends action against authorities for wrong reporting and further states that various additional significant suggestions, as follows:
• The amount of compensation paid as one time cash support for the rehabilitation of manual scavengers may be increased from Rs. 40,000/- to Rs. 1 Lakh.
• The National Crime Research Bureau (NCRB) has to keep an eye on the sewer deaths and reflect data in its reports;
• Union Finance Ministry of Government Of India may select a particular Nationalized Bank for every State to begin upon the task of extending loans to Manual Scavengers and their dependents upto Rs.10.00 lakhs in order to start business Activity;
• The National Safai Karmacharis Finance and Development Corporation (NSKFDC) might make available financial assistance to manual scavengers to assist them to start up working in the area of sanitation and training to them;
• Government also needs to plan plenty of investment by facilitating the shift to use or maintenance of technology and schooling the workers to control the technology;
• There is a requirement to have police investigation officer with training specifically under PEMS&R Act, 2013, SC/ST Atrocities Act, 1989, and 2014 judgment Supreme Court.”
Judicial intrusion in Manual Scavenging
Judiciary has always played an active role in strengthening the cause of socio-economic welfare by interpreting a number of directive principles into enforceable rights for the growth of a poor and weaker sections of the society. Liberal interpretation by the Judiciary of Article 21 of the Constitution has produced various rights and has given a new path to social wellbeing jurisprudence in India. The recent approach of the Judiciary towards the manual scavengers has helped to drag the State authorities for failing to eliminate manual scavenging.
In “Safai Karamchari Andolan v. Union of India” the Apex Court recognized the hazard of manual scavenging in India. The Apex Court observed that The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 and The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 neither weaken the constitutional mandate of article 17 of the constitution nor does it overlook inaction on part of union and state governments under EMSCDL Act, 1993.
The Apex Court further observed that The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 explicitly acknowledges article 17 and 21 of the constitution as the rights of persons engaged in sewage or tanks cleaning along with the persons cleaning human excretion on railway tracks. The Supreme Court by referring to various International Covenants or Conventions as to which India is also a signatory that looks for the guarantee of dignified human life in respect of their profession as well as other walks of life such as UDHR, CERD and CEDAW. Supreme Court laid down guidelines relating to the rehabilitation of manual scavengers. In order to prevent of manual scavenging, the future generations from the cruel of manual scavenging and rehabilitation of manual scavengers following is included:
(a) Sewer deaths – That is entering into sewer lines without any safety gears must be made a crime even in emergency situations as well and compensation of Rs. 10 lakhs must be given to the family of the deceased for each such death.
(b) Railways – There must take time bound policy to finish manual scavenging on the tracks.
(c) Any persons who have been released from manual scavenging must not have to face any kind of obstacles while receiving what is their legal and justifiable right outstanding by the law.
(d) Any kind of support must be provided to safai karamchari women for a dignified livelihood firstly by identifying the families of all persons who have lost their life in sewerage work since 1993 and further to award compensation of Rs.10 lakhs for each such death to the family members depending on them. Secondly, Rehabilitation must be provided to them based on the principles of justice.
Furthermore, Supreme Court pressurized on the rehabilitation of manual scavengers in according to Part IV of The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013. The Supreme Court directed both the state governments and union territories to implement various provisions of the PEMSR Act, 2013 and further take suitable action for any non-implementation and infringement of provisions mentioned under the PEMSR Act, 2013.
In the case of “Delhi Jal Board v. National Campaign for Dignity & Rights of Sewerage& Allied Workers,” the Apex Court in this landmark judgment highlighted the plight of the underprivileged sections of the society, mostly the scavengers and sewage workers, who risk their lives by going down the drainage devoid of any safety apparatus and security and are deprived of fundamental rights to equality, life and liberty for last more than six decades.
Conclusion
In light of the above references, we can say that the problem of Manual Scavenging exists into the country due to the lack of technology and poverty. The Government of India has taken two major steps in preventing the evil by the Act of 1993 and 2013 by criminalizing the same and by creating the other authorities. But the reports of the National Human Rights Commission itself give the expression that the problem is still in the existence in the country and needs some strict action regarding the proper implementation of the acts.
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