Women are more prone to encounter socio-economic discrimination in diverse life scenarios. The women manual scavengers of India are at the receiving end of a perverse caste-based occupation described as ‘manual scavenging’ which pushes them to subhuman existence and alienates them from the mainstream social life. Manual Scavenging broadly refers to the practice of manually cleaning, carrying, disposing or handling in any manner, human excreta from dry latrines, railway tracks and sewers in the Indian social milieu. India’s Supreme Court has time and again observed that the practice of manual scavenging violates human rights law as espoused in several international instruments including Universal Declaration of Human Rights (UDHR), International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and many more in similar vein. In recent times, India has reported a deluge of sewer death cases. In 2023, the Minister of State for Social Justice informed the Parliament of India that between 2018 and 2023, 329 people lost their lives while cleaning sewers and septic tanks.
Legislation has been identified as a potent tool to ameliorate the plight of manual scavengers of India but it comes short on addressing the situation on the ground and is oblivious to the condition of women manual scavengers. The question is-Can a well thought out piece of legislation deal a rough blow on the basis of gender? The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013(hence as 2013 Act) apparently seems to do so by giving a slipshod treatment to the women manual scavengers of India. Even though, the statute is having a welfare driven approach, it fails to address the plight of women manual scavengers of India. The 2013 Act was passed as an advancement on the previous reigning statute on the subject, The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 as it was found to be wanting on aspects of complete elimination of the manual scavenging practice. In Safai Karamchari Andolan v. Union of India[Writ Petition (Civil) No. 583 of 2003 in the Supreme Court of India], it was noted that what the 2013 Act does in addition is to expressly acknowledge the Article 17 and Article 21(Fundamental rights mentioned in the text of Constitution of India focusing on elimination of untouchability and acknowledgement by the state of Right to Life and Personal Liberty) rights of the persons engaged in sewage cleaning and cleaning tanks as well persons cleaning human excreta on railway tracks. In this landmark case, Supreme Court of India issued several guidelines. It was specifically observed that if the practice of manual scavenging has to be brought to a close and also to prevent future generations from the inhuman practice of manual scavenging, rehabilitation of manual scavengers will need to include:
(a) Sewer deaths – entering sewer lines without safety gears should be made a crime even in emergency situations. For each such death, compensation of Rs. 10 lakhs should be given to the family of the deceased.
(b) Railways – should take time bound strategy to end manual scavenging on the tracks.
(c) Persons released from manual scavenging should not have to cross hurdles to receive what is
their legitimate due under the law.
(d) Provide support for dignified livelihood to Safai Karamchari (official term for cleanliness worker/janitor in India) women in accordance with their choice of livelihood schemes
As a per a campaign group(Jan Sahas) research report, more than 90 per cent of estimated 1.3 million manual scavengers are women. A day in the life of a woman manual scavenger rolls out something like this. Every day, a woman manual scavenger gets up in the morning before dawn breaks, she picks up a broom and a wicker basket and ventures out to visit the homes and settlements of mostly upper caste people to collect human excrement, which she then carries on her head and then disposes it off somewhere far away from the main human habitation. At the end of a day’s work, she receives two stale chapattis (round flat unleavened bread of India) to satisfy her hunger. Can life be more ironic and woeful? Also, she is continually at the risk of contracting infections and deadly respiratory diseases. Her predicament hides a harsh truth which is that she is actually living her life on borrowed time. Not surprisingly, she doesn’t have the means to access the appropriate medical care and the 2013 Act clearly falls short on providing her any relief on this score. She has to barter her uterus( as per a media report by Turkish Radio & Television Corporation), face caste oppression, male gaze and do cleaning work without any regard to her basic health needs and without any safety gear. Her personhood in sum is reduced to a mere sham. The abominable plight of women manual scavengers of India is a dark spot on its democracy.
The Labyrinth of Law
The 2013 Act focused on creating a mechanism to wean out manual scavengers from this abominable work but it failed to visualize the health-oriented provisions to provide for so called ‘rehabilitated manual scavengers’ under the legislation. The 2013 Act dwells a great deal on identifying a manual scavenger and directs the district and state authorities to demolish insanitary latrines under Chapters II and III of the 2013 Act but fails to provide even a definition of ‘rehabilitation’. It simply expects the Vigilance Committee established under section 25 of 2013 Act to work for the social and economic rehabilitation of manual scavengers but fails to specify any manner in which this could be or has to be achieved. This is a glaring gap and the Vigilance Committee as per the mandate of the 2013 Act is virtually the whole of district administration (including District Magistrate, Superintendent of Police, Panchayat officer, Municipality and so on) and no officer or an exclusive authority has been separately created on whom responsibility can be fixed for the implementation of the Act. The irony of this arrangement is that the office of District Magistrate under Indian governance model is already overburdened with countless daily administration work responsibilities and to make her the implementing authority in a district (administration unit) may lead to very inept outcomes and it defeats the rehabilitative aim of the statute.
Women manual scavengers have been given a raw deal once again at the hands of the law as there is not even a single provision which attempts to address their livelihood issues and health problems. The least the 2013 Act could have done was to provide health incentives and alternative livelihood options. The word ‘rehabilitation’ used with much fanfare in the title description of the 2013 Act could have been defined to include viable health and socio-economic integration aspects of women manual scavengers. The rehabilitation aspect is narrowly conceived in the 2013 Act as extracting a manual scavenging from her current employment and to give one-time cash assistance and stipend for a short period to enable her to learn an alternate vocation in case she is willing to pursue an alternative livelihood. The legislation only manages to touch the tip of the iceberg as the problem of manual scavenging has deep roots. There is no discussion in the prevailing law on addressing the mental trauma suffered by women manual scavengers. On this count, IS the law severely falls short of addressing the core of the problem. Cambridge Dictionary defines rehabilitation as ‘the process of returning to a healthy or good way of life, or the process of helping someone to do this after they have been in prison, been very ill, etc.’ In most of the standard texts and references, the word ‘rehabilitation’ carries a connotation in a medical sense where it has been understood as referring to a process of bringing back something damaged or a sick person back to a healthy state or condition. The World Health Organisation (WHO) visualizes ‘rehabilitation’ as “Rehabilitation is an essential part of universal health coverage along with promotion of good health, prevention of disease, treatment and palliative care.”
In the context of ‘manual scavenging’ it would certainly imply addressing the health problems of manual scavengers (especially of women) and their socio-economic integration in society by providing them with sustainable livelihood options and a stigma free air to breathe in. However, the same is lacking in the scope of the Act and focus seems to be only on demolition of dry ‘latrines’ and the rehabilitative dimension in a practical sense is absent from its scope. Is it too much to ask in a free and democratic India that the children of manual scavengers should pursue education unhindered by the oppressive and the hereditary nature of this work? The 2013 Act in Section 13(1) (b) only provides for giving of scholarship as per relevant scheme under federal arrangement i.e. either with state or with the central government. The least the parliament draftsman could have done in this case was to provide for free education upto doctoral level for children of identified manual scavengers under the 2013 Act. Also, there is no provision prescribing appropriate legal recourse in case a manual scavenger is again pushed back into the abominable vocation. There is an unseen social coercion at play in case of ‘manual scavenging’ which disallows the manual scavengers to come out of the vortex of the profession.
Rehabilitation-The Ignored Aspect in the Law
There is no discussion on addressing the mental trauma suffered by women manual scavengers. The existing law(2013 Act) aims to dismantle ‘insanitary latrines’ and publish a list of identified manual scavengers who shall be deemed to be free from the work of manual scavenging but comes short in visualizing the actual ‘rehabilitation’ work envisioned. As per 2013 Act, a manual scavenger is technically ‘rehabilitated’ if her name finds mention in the published list of identified manual scavenger in a state as proposed under section 16 of the Act.
In its existing avatar, the 2013 law only qualifies as a ‘half-way house’. It must undergo further revision at the hands of the draftsmen in parliament and must seek out to do justice to the hapless plight of women manual scavengers. We must remember that judicial discretion is exercised within the enacted words of law. If law is not suitably worded or is inadequately worded to address a particular social malaise, the judges in turn then struggle to find ways and means to address the problem. In recent past, the Supreme Court of India in the case of Balram Singh v. Union of India(2023 SCC Online SC 1386) has enhanced the monetary compensation to a person who dies in a sewer from Rs.10 lakh to Rs.30 lakh but the larger goal of ‘rehabilitation’ is still a long way to go.
Women have been categorically identified as recipients of special protection under several laws already passed by Indian parliament like the Factories Act (1948), The Dowry Prohibition Act (1961), The Sexual Harassment of Women at Workplace Act (2013) and under several international conventions with most notable being the ILO Conventions revised from time to time to include maternity rights and provisions on night work regarding women. The mirror on the wall says that the women manual scavengers are counting their days and are living on borrowed time from destiny. They demand their rightful place under the expansive umbrella of fundamental rights and the lofty promise of constitutional protection under the Constitution of India. Do we all care less for their plight? It is time the lawmakers of India seek guidance from the words of Dr.BR Ambedkar, who while speaking for Dalits(denoting the historically oppressed and erstwhile lower caste-a social category of India), observed – “Ours is a battle not for wealth; nor for power, ours is a battle for freedom; for reclamation of human personality.”