INDIA: Manual Scavenging: A critical look at the 2013 Act

By Urmila Pullat

On 3 April 2016, four men died of asphyxiation in a clogged manhole in Dodballapur, near Bangalore. Two of these men were manual scavengers, while the other two were passers-by who died while trying to save them.

Manual scavenging is the scourge of India, mired in complex issues of caste, poverty, class and orthodoxy. Reports of manual scavengers dying in manholes and drains are common, and it is heart wrenching to know that this illegal, abhorrent and inhumane practice still continues unabated in India. Most of the time, it takes place with the full knowledge and sanction of the State. In the most recent case, the workers were employed by a private contractor who was given the contract by the local Municipality.

No credible data regarding the number of manual scavengers in the country is available. According to the Census of India (2011), there are still an estimated 182,505 households engaged in manual scavenging, and about 7.94 lakh cases of human scavenging in the country. Many organizations working for the liberation and rehabilitation of manual scavengers allege that this number is not accurate and there are far more people forced to work as manual scavengers. The ‘Houselisting and Housing Census 2011’ data released by the Registrar General of India in March 2012 shows that there are still around 26 lakh insanitary latrines in the country. It is thus obvious that this remains a tremendous problem in India, but its true extent can only be understood by the commissioning of large scale surveys.

The recent death of four people in Bangalore provoked strong reactions from activists, who called it an ‘institutional murder’, with no arrests having been made and no specific officials named in the case. No convictions were made under the earlier 1993 law, and although the 2013 law, ‘The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act’ has been touted to be a vast improvement on the old law, providing specifically for rehabilitation, it remains to be seen whether any convictions will take place under it, especially in the recent case.

A weak law, toothless and ineffectively drafted

The 2013 law (hereinafter ‘the Act’), in reality, is not a vast improvement on the 1993 law. The Act prohibits employment of manual scavengers and construction of insanitary latrines under Section 5, which further mandates that every insanitary latrine in existence at the date of commencement of the Act shall be demolished or converted into a sanitary latrine. But, upon a closer examination of the definition of an ‘insanitary latrine’, we see a very telling exception:

Section 2(1)(e) reads:

“insanitary latrine” means a latrine which requires human excreta to be cleaned or otherwise handled manually, either in situ, or in an open drain or pit into which the excreta is discharged or flushed out, before the excreta fully decomposes in such manner as may be prescribed:
Provided that a water flush latrine in a railway passenger coach, when cleaned by an employee 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 an insanitary latrine.”

Here we see that the Indian Railways have been given an easy bypass with no requirement to stop the employment of manual scavengers with the use of ‘protective gear’. This is a big loophole, one that shows a lack of seriousness on the part of the State to commit to banning this abhorrent, casteist practice. An easy escape route for the Indian Railways, this will enable the complacent leviathan to further postpone modernizing the age-old sanitation system and utilize advancements in technology to clean up their act.

According to Section 7,

‘hazardous cleaning’ of a sewer or septic tank by any person is banned:
‘No person, local authority or any agency shall, from such date as the State Government may notify, which shall not be later than one year from the date of commencement of this Act, engage or employ, either directly or indirectly, any person for hazardous cleaning of a sewer or a septic tank’

Hazardous cleaning is defined thus under Section 2(1)(d):

‘(d) “hazardous cleaning” by an employee, in relation to a sewer or septic tank, means its manual cleaning by such employee without the employer fulfilling his obligations to provide protective gear and other cleaning devices and ensuring observance of safety precautions, as may be prescribed or provided in any other law, for the time being in force or rules made thereunder;’

This is an inherent flaw in the law which prohibits employment of manual scavengers, but yet sees the need to further prohibit employment of manual scavengers for ‘hazardous cleaning’. Does this mean that the prohibition is not absolute and that it is permissible to use manual scavengers with protective gear? The Indian Railways are allowed to do so and it would seem that by not unequivocally prohibiting manual scavenging in any form, we have lost the battle even before we began the fight.

Further, Chapter IV of the Act provides for the identification of manual scavengers and their rehabilitation through a survey conducted by the Municipality. The big drawback here is that the survey needs to be conducted only if a Municipality ‘has reason to believe that some persons are engaged or employed in manual scavenging within its jurisdiction’. A 2014 report on Manual Scavenging, published by Human Rights Watch, titled ‘Cleaning Human Waste: “Manual Scavenging”, Caste and Discrimination in India’ says,

“Descent-based practices are so deeply internalized that even state institutions such as village councils and municipal corporations perpetuate these practices. Many from the manual scavenging caste communities are denied any other jobs, leaving them dependent on manual scavenging for subsistence. Where the government itself employs manual scavengers, there is no hope for effective implementation of the 2013 Act and other laws aimed at ending manual scavenging.”

To be eligible for rehabilitation, one must be included on a government list of manual scavengers, but the decision to conduct surveys is left to local authorities, who are more often than not, as pointed out by HRW and as apparent in the recent case in Bangalore, the employers of manual scavengers themselves, either directly or indirectly. In a country where the caste system is deep rooted and profoundly ‘internalized’, this is a very big drawback of the law. When implementation of the law is itself problematic, a weak section such as this makes it easier for local authorities to renege on the law by claiming that no manual scavenging exists within their jurisdiction.

Finally, the biggest obstacle remains the police. In order to effectively eradicate manual scavenging, culprits need to be charged for employing manual scavengers and upper caste people who routinely deny the scavengers their basic entitlements and make it impossible for them to leave the abhorrent practice need to be arrested. Furthermore, manual scavengers need to have access to loans, land, housing and all other mandates under the Act. Effective policing is necessary for all this to be ensured. Manual scavengers are blockaded by all parts of the system, leaving rights violations to continue, egged on by a defunct criminal justice system.

The implementation of a law depends both on the strength of the letter of the law, and on the implementing authorities; when both are toothless and lacking in seriousness, where is the hope for any real, lasting change?

Document Type : Article
Document ID : AHRC-ART-017-2016
Countries : India,
Issues : Administration of justice, Democracy, Institutional reform, Judicial system, Legislation, Prosecution system, Rule of law,