by Gayatri Loomba
Last Tuesday, the Central Government once again assured the Supreme Court that it would soon amend the law relating to manual scavenging in the country. The court was hearing an appeal filed by the Centre challenging a Madras high court order, which said if the Centre failed to amend the law to prevent manual scavenging in two months, the court would be constrained to direct the personal appearance of any of the high dignitaries.
Previously, the Ministry of Social Justice and Empowerment had introduced the Prohibition of Employment as Manual Scavengers and Their Rehabilitation Bill, 2012 in the monsoon session of the Parliament under grave pressure by the Supreme Court to prioritize the elimination of the dehumanizing practice of manual scavenging.
The Bill acts as a successor to the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, which is considered by most to be a feeble and toothless legislation meant to outlaw the practice only on paper. Though the Act focused on sanitation requirements, it paid little or no attention to the deep rooted social problem of the degradation of human dignity and thus was unable to come up with long term sustainable measures to eradicate the practice. Even after eighteen years, as late as 2011, there have been reports of about 2.3 lakh families involved in manual scavenging at soiled railway tracks and blocked sewer lines along with construction of upto 26 lakh dry latrines, with almost no conviction of the wrong doers. There are some who advocate that the cost of mechanization of the latrines is what holds the Government back from taking active measures to implement the existing laws and schemes for the benefit of the scavengers. But financial incapacity can hardly be accepted as a reason to curb human rights violations, thus making one believe that the flaw lies in the legislative zeal, initiatives and the inability to accept the enormity of the problem at hand and bring about requisite changes. The new Bill proposes to be a better structured model and aims to bind all States unlike its predecessor which was not adopted by around twelve states.
The Bill expands the definition of manual scavengers to include any person engaged or employed for manually cleaning, carrying, disposing of or handling human excreta in an insanitary latrine or an open drain or pit or even a railway track, thus broadening the ambit of its application, but permits the employment of people for handling excreta with the help of protective gear; thereby undoing the advantages of the expanded definition. The terms ‘protective gear’ can be interpreted to even include mere gloves or protective clothing, thus providing for gaping loop holes in the law to be played with to sustain the practice with a few elementary changes in apparel. This escape route in the law defeats the purpose of protecting the human dignity and integrity of the manual scavengers, and does little to uplift their position in the society; nullifying the idea behind the implementation of the law. Further the definition does not include people who are engaged in the collection and disposal of solid wastes, inclusive of biomedical, chemical or biological wastes- thus restricting its scope considerably, especially in view of the waste generation in modern times.
A welcome panacea for debased workers, it starts on an apologetic note with the preamble stressing the attempt of the Bill to correct the disdained past. It increases the punishment for employing manual scavengers from a year and Rs. 20,000 as proposed in the 1993 Act to Rs. 50,000 and a year of imprisonment for the first commission of the offence. Furthering the same, subsequent offences are made cognizable and non-bailable with a prison sentence of up to five years for authorities and two years for families, serving as an exemplary punishment to effectuate deterrence. The presence of such stringent clauses does go miles to prove the seriousness of the legislature to achieve the ends, provided the terms are implemented with the same fervor.
The Bill requires the municipalities to survey insanitary toilets and manual scavengers in their jurisdictions within two months of the Bill being made an Act with the objective of issuing notices to the owners to demolish or convert dry latrines into sanitary months within a period of six months. Critics of the Act find this clause ambitious because the Government has so far as yet been unable to survey manual scavengers by themselves, and the mere issuance of notices has had little effect on public offenders in the past.
The Bill provides a meticulous roadmap for timely rehabilitation of the scavengers, a feature absent in the previous Bill which acts as a reason to believe the success of the same. The previous employers are legally bound to pay a monthly pension to the workers and assist them in securing alternative employment. The Bill further recommends the adoption of nutrition and social welfare schemes for the general well-being of the scavengers, thus bringing forth a sustainable model, though the efficacy of such social welfare models can be deeply questioned in itself. As a cover, some ex-scavengers are promised to be absorbed into the catering services or recruited as plumbers or electricians, and be given proper housing with adequate sanitation and infrastructural facilities.
The Bill also protects the future of the succeeding generations by promising fully sponsored quality education to allow the children to be absorbed in better vocations, a step that can be deeply questioned based on the existing models of free education and the reports on their efficiency. An explicit guarantee of free education, and vocational and computer training to females in particular can further strengthen the objectives of the Bill. The legislation proposed to made on the basis of the bill should introduce a clause for the pension and compensation of the people who had previously worked as manual scavengers, even prior to the implementation of the Act to ensure their social and economic well being
Both the expanded definition and the careful analysis and planning of rehabilitating the scavengers, so as to ensure that they are not made secondary victims, are the features of the Bill that catch the maximum attention. The Bill tries to incorporate economic and social considerations while framing the guidelines and laws. Though the Bill is appreciated for its sensitivity towards the cause, it still remains gender biased by assuming that scavengers and public authorities are, in most cases, males. Unless the Bill appreciates the need to focus on the needs of women scavengers, the legislation will fail to promote and provide adequate rehabilitation, following its predecessor leaving the task of liberation incomplete.
One of the features of the Bill that greatly demeans its successful implementation is that the Bill provides for no monitoring agency, with the exception of local bodies being handed the task of identifying areas of manual scavenging which as explained before has little significance because of the lackadaisical attitude of the state governments and local bodies. Timely surveillance of the scheme by community members associated with movements like the Safai Karamchari Andolan or deterrents by way of punishments to the public officials for dereliction of duty are necessary for achieving the purpose. A central or decentralized executive body must be made fully accountable for the implementation of the Act within a stipulated time limit, post which sanctions should be placed on state functionaries who allow the practice to continue in abdication of their duty.
Though the Bill is a step towards the elimination of the practice, without general awareness and social acceptance of the ex-scavengers, it would possible be a failure, yielding little or no advantage, primarily because the practice in itself does not directly affect the middle class or the ‘aam admi’. Thus non-governmental organizations are organizing movements like the Rashtriya Garima Abhiyan, Jansahas or the National March for the Total Eradication of Manual Scavenging simultaneously, with some 10,000 liberated women and 50,000 manual scavengers traversing the country with the view of sensitizing people, creating mass public uproar and consensus to lead a movement to eliminate the practice via legislation, once and for all. The anthem and the timing of the movement ‘Fight for your Dignity’ shows the urgency with which the community seeks to regain its pride and self-esteem after centuries of oppression and subjugation.
If the Bill is implemented by the Union Ministry of Social Justice and Empowerment, keeping all the loopholes in mind and working with an aim to bridge the gaps, it could serve as a beacon of hope for manual scavengers today. It will serve as the starting point of the elimination of the practice declaring it illegal and creating the necessary social stigma for the same, and if merged with social schemes it can help achieve a larger goal of eradicating caste based discrimination, thus preserving and safeguarding the dignity of the workers in actuality. In bringing the new law, the Parliament has shown its willingness to make amends and it is high time that well thought-out legislations and human right schemes do not suffer due to their weak implementation and the ignorant nature of the Government. India has reached a stage of where all social conventions necessitate the abolishment of this shame and this time round, the country and its citizens must not have to wait for two decades to see it translate into reality.
(Gayatri Loomba is an Associate Articles Editor with the Journal of Indian Law and Society)