Aastha Mehta, GNLU, Gandhinagar
Social injustice has been a way of life for these people. And dignity is a new concept for them. Dirt, filth and exposing oneself to putrid conditions has been a routine. Welcome to the world of manual scavengers, who have been subjected not only to inhuman work but have been treated as diseased animals due to their belonging to lower caste, making them subject to harsher life. India, in the year 1960 ratified to the ILO Convention on Discrimination (Employment and Occupation) 111, which prohibits discrimination of people in employment on the basis of caste or social origin. And not to forget the plethora of constitutional guarantees Indian Constitution provides, however, Indian Government has failed to address a persistent problem of manual scavenging.
This Article discusses the Bill in two parts:
- Overview of the BILL
- Critical analysis of the BILL
OVERVIEW OF THE BILL:
The very first thing which can be seen from the Preamble of the Act is the recognition of human dignity for this section of the society. The Preamble is very clear in demonstrating the social welfare aspect which has been the genesis for passing a new Act. This can be solace for the purpose of future administration, since the administrative authorities would have a clear set standard before them on what should be their focus while eliminating such preposterous practices. Another important feature which is welcome step for the country is that irrespective of caste, state, race or any other such considerations, this law shall be applicable uniformly to all the State, repealing State laws and 1993 Act, which presently governs the subject matter. This would make sure that the protection extended by this Act reaches all such downtrodden people, throughout the country.
Other key point is the enlargement of the definition “manual scavenger” as compared to the old Act making the definition broad and giving scope to include all those people who manually handle human excreta at all public places, starting from insanitary public latrines, to railways and even open pits. By doing so, the drafter have taken cognizance of the agony of this class, and made sure that by virtue of an umbrella clause, benefits are given of variety of such manual scavengers. The Act has indeed made an attempt to cut the very roots of such scavenging by providing in Clause 15 of the Bill, that even an agreement, contract or any other instrument to employ manual scavengers will be void, which ensure that local contractors do not get an upper hand economically to misuse the poor people’s situation, and under such contract no compensation will be paid to them. Bill has its major focus on local level participation by making local authorities responsible for identifying scavengers and to rehabilitate them. The rehabilitation procedure has been elaborated in Clause 13 of the Bill is in following manner:
- The manual scavenger after being identified, would be given proper identification documents and cash assistance for initially living his life after he/she has left the work of manual scavenging.
- This act not only prohibits manual scavenging completely but gives them opportunities to leave the dark world of their previous acts, by entitling their children to get scholarships in central or state schemes, residential plots to them subject to the willingness of the of the manual scavenger and also giving him or any other member of the family, an opportunity to learn new life skill so that they have alternative and respectable means of earning livelihood.
The act shows the determined efforts of the legislators to prohibit all forms of abuse of these people by directing occupiers of insanitary toilets to demolish them and to convert them into a hygienic latrine at their own cost, failure of which may make the liable for payment of construction of such sanitary toilet by the authorities. Clause 24 also sets up a Vigilance Committee, Clause 26 and 29 lays provision for State and Central Monitoring committees respectively, so that such protective measures are implemented at all places efficiently. The penal provisions have been strict too, making all offences under this section non-cognizable and therefore can be tried summarily. If anyone employs a manual scavenger or constructs an insanitary latrine, he shall be penalized with imprisonment up to one year or a fine of up to Rs 50,000 or both. For subsequent offences, a higher penalty of Rs 1 lakhs and imprisonment of 2 years is imposed, and Rs 5 lakhs and/or 5 year imprisonment for those who employ manual scavengers to work in septic tanks and sewers.
CRITICAL ANALYSIS OF THE BILL:
The present BILL has many vies, than virtues from the intention of the legislators, to the implementation, and lastly its failure to be apologetic, rather than being benevolent.
Clauses 5, 8 and 9 can be said to be a loophole, when it comes to sharing of responsibility by the States. All the duties have primarily delegated work to local bodies but for conversion and demolition of such insanitary latrines, the state is not obligated to provide financial assistance. This can be said to be a hypocrite stand by legislators, since local bodies would need a huge amount of financial sanction to undertake this mammoth task and without making this a mandatory duty, State governments may show a lackadaisical attitude in giving money for such purpose. This is also in conflict with current scheme Integrated Low Cost Sanitation Scheme, which divides the funding as 10%, 15% and 75% for the owner, State and Centre to fund respectively in conversion of such places into hygienic toilets.
More worrying problem is giving too many functions to local level officers and bodies that it is quite possible that they may work under pressure of different builders or contractors lobbies that would have vested interest in keeping such derogatory activity at place. The ideal way should be hand in hand co-ordination of skills of urban development officers, local authorities and other NGOs, who would ensure that ulterior motives do not creep into such noble cause. Also the Bill does not fit in to mould created by CrPC, wherein the maximum punishment for offences tried in a summary manner cannot exceed 3 months. But the bill gives a contradictory provision in
Clause 21(2) and 22 by providing maximum punishment as 5 years for summary offences. Multiple bodies have been given monitoring tasks. However, the question of effective monitoring will not arise in the first place, since the requisite awareness on part of executive Officers and manual scavengers themselves will be necessary immediately after commencement of this Act, so that such agencies can effectively start giving working directions. As mentioned above the new bill gives a broad definition of manual scavenger, however, the advantage of including more people protection under such clause is going to toothless since definition clause (g) which defines insanitary latrine allows workers to clean railway coaches by way of using protective gear. Therefore the inconsistency with regard to what is banned and what is not banned, is glaring.
The entire bill has taken only manual scavengers who deal with latrines, or human excreta into consideration. What about those who deal with other wastes such as garbage, solid/liquid chemical wastes? Aren’t these works equally dehumanizing and hazardous. Even such workers in metropolitan cities and villages work without any safety gear, and seeing the amount of waste generated in modern times, the immediate attention of legislators should also fall on such workers. Manual scavengers came into focus with the ordeals of Mehtar community in Maharashtra, who were toilet cleaners for rail lines in Maharashtra. However, the identification of not only people presently undertaking scavenging as a means to earn two meals should be done, as thought by the act, but the entire problem has to be struck from its very roots. There are communities who are immensely backward, and due to lack of absorption of these communities mainly due to old past of their belonging to lower castes, they have not been able to come up to a level wherein their humans rights are protected. This act proves to be toothless when it comes to identifying such castes and making them aware of their rights and at parallel level sensitizing the society to forget the social stigma attached to them.
And then again, no legislation can sufficiently be criticized if it does not have a religion barrier into it. On a closer look, this Act has failed to even take notice of the fact there are Muslim Safai Karamchaaris also in India, who have faced more problems than their Hindu counterparts. Muslim communities such as Halalkhors and Helas, have not been includes in the Schedule caste category, and therefore the question of them being uplifted through this bill seems a distant and mere academic question. Isn’t it the violation of their fundamental rights, not to be given help when the people of Hindu backward communities will be getting the same?
Dalit activists believe that the local authorities (railway authority, municipality, and panchayat or cantonment board) that have been tasked with undertaking these surveys are already in denial of manual scavenging in their jurisdiction and are therefore more likely to obstruct the process of identification rather than assist it. Giving economic help in isolation is not going to be fruitful, if the psychological burden is not lessened, by providing them proper advice, as to how to move forward, and how to mingle with the mainstream society. Such crucial matters have been completely overlooked by this Bill. Lack of gender neutrality is evident in this Bill, since it uses the word “HE” in all the clauses providing for rehabilitation. In reality, even women and unfortunately children too are subjected to working in unhygienic areas, and therefore referring to manual scavengers as only “he” seems to be an insult to female manual scavengers who are not even accounted for in this bill. How can the legislators be so grossly careless to account for half of the population of manual scavengers which are females and children? Ministry of Social Justice and Empowerment started a scheme for Rehabilitation of Manual Scavengers (SRMS) in 2007 under which around Rs.231 crores were released. However, according to survey conducted by Rashtriya Garima Abhiyan, 98% women were engaged in this work, and only 515 men were provided with benefits. This shows the pitiable condition of women, which this Bill nowhere addresses and maintains a status-quo with the old act by presuming manual scavengers to be men.
The major criticism which is evident from all the above points is, how is such practice going to be eliminated, when the enforcing authorities at various levels themselves have a casteist mind. This bill is going to be self-defeating from all sides, if the administrative work is going to be flawed, and we have all reasons to believe it will be. After analyzing the bill, it is my personal opinion, that this bill needs to have retrospective effect, to instill fear for future offenders, who will maybe throw the directives from local authorities in the same pit from where manual scavengers begin their morning work, and to show such those who have already been indulging in such activities, that law is ultimately going to catch up with them.
Clause 34, lays down that no government officer or member of the committee will be prosecuted for any act done in good faith under this particular act. However “good faith” is prone to being abused easily by such government officials and therefore such clause is safety net for members concerned in such bodies to not come under legal tangle. Using a term as vague as good faith is definitely going to be problematic for real grievances of such manual scavengers. Another area which needs to be resolved is given in Clause 10 of the Bill which bars the courts to take cognizance of any matter under this Act, if the complaint is not filed within 3 months from the date of the occurrence of the event. Looking at the slow process of our implementing agencies and widespread illiteracy among the potential victims i.e. manual scavengers time period of mere 3 months is too less, if determined efforts are to be maintained to eradicate such system.
Overall, this Bill has proved to be failure when it comes to holistically addressing the issue of manual scavenging and is more than a half hearted attempt of the legislature.