The Prohibition of Employment as Manual
Scavengers and their Rehabilitation Act 2013 does not give the same
rights to those who manually clean drains and septic tanks in urban
areas. This is also manual labour and involves the use of hands in
cleaning excreta. Workers have to enter manholes to physically clean
blockages. Government bodies have brazenly ignored court orders on
mechanisation and bans on manual cleaning of sewage pipes.
Unfortunately, the much-awaited new law also ignores the plight of
sewage workers.
Samuel Sathyaseelan (
sathya5206@gmail.com)
is a social worker who currently works for the Centre for Child and the
Law, National Law School of India University, Bangalore.
Even after 65 years of Independence the country is struggling to ban
the most inhuman and undignified human activity – manual scavenging. All
the while, we have completely neglected another equally degrading work,
sewage cleaning, for which workers are employed on a regular basis by
state governments and local bodies. In this context, after much
deliberations and interventions by the apex court, activists and human
rights groups, the union government has finally passed a new law, The
Prohibition of Employment as Manual Scavengers and their Rehabilitation
Act 2013, in both houses of Parliament during the monsoon session. The
Act was referred to the Parliamentary Standing Committee on Social
Justice and Empowerment on 9 September 2012 for further discussion.
However, the present Act has included sewage workers who were
completely left out in the previous Act, titled Employment of Manual
Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993.
Despite this law the twin evils of manual scavenging and sewage work
have not been eliminated.
This article focuses on sewage workers and argues that this inhuman
activity must be treated on par with manual scavenging and these twin
evils must be banned. Sewage work also causes serious health problems
and threatens the life of those engaged in it every day. This study also
proposes alternative methods to cleaning sewers.
New Act on Sewage Workers
The new Act has not clearly defined sewage work. It says: “…the Act
to provide for the prohibition of employment as manual scavengers,
rehabilitation of manual scavengers and their families”. According to
Section 2(g)(b), the Act selectively mandates that a person handling
excreta with the help of “protective gear” shall not be deemed a manual
scavenger, and will work as a sewage worker. The definition of in the
Act and Section 2(g) is narrowly focused on manual scavenging, and no
attention has been paid to the work of sewage workers.
Till now the definition of manual scavengers was different from
sewage workers and all authorities adhered to the definition of manual
scavenging as given in the Employment of Manual Scavengers and
Construction of Dry Latrines (Prohibition) Act, 1993. Sewage workers are
engaged in one of the most hazardous occupations, defined under Section
2(d) as “hazardous cleaning”.
1 Yet, the Act excludes persons
engaged or employed to clear excreta with the help of devises. A sewage
worker using protective gear shall not be recognised as a person doing
an inhuman occupation that is hazardous.
Interestingly, the Act has not defined the term “protective gear”,
which can be interpreted to even include mere gloves or protective
clothing, thus, providing a gaping hole in the law that will allow the
practice to continue with a few insufficient changes in apparel. This
escape route in the law defeats the purpose of protecting human dignity
and the integrity of sewage workers, and does little to uplift them,
thus defeating the very purpose of the law.
The Act, in its present form, is very confusing. Under Section (7), it states that
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 sewer
or a septic tank.
This clause in the Act makes it clear that manual cleaning of sewers
or septic tanks is impermissible, even while wearing protective gear.
Why then does the Act, under Section 2(g)(b) allow workers to engage in
this occupation by using protective gear? Hence, it seems evident that
the government has really not applied its mind and does not care whether
this inhuman occupation is actually abolished or not.
Widen the Definition
Why has the Act not included sewage workers in its long title? It has
been limited to manual scavenging. Is sewage work not a form of
scavenging? These are some crucial questions that arise from the reading
of the Act. The present Act hardly mentions any specific definitions.
The National Advisory Council (NAC), which proposed a wider definition
in its recommendation, said,
We agree with and welcome the revised wider definition of
manual scavenging in the Government of India draft which says: person
engaged in or employed by an individual or urban local body or any
public or private agency, for manually cleaning, carrying or disposing
or dealing in any other manner with human excreta in a latrine, a tank, a drain or a sewer line on open spaces including railway tracks (NAC 2010).
The last few lines of the recommended definition by the NAC has said
workers “dealing in any manner” with human excreta should be considered
as manual scavengers. This can surely be interpreted to mean those who
are working manually or even those working with any kind of protective
gear.
Hence, the Act must be retitled as “the Act to provide for the
Prohibition of Employment as Manual Scavengers and Sewage Workers,
Rehabilitation of Manual Scavengers and Sewage workers and their
Families”. Only then would the Act be clear in its approach and address
the issue in its proper context. Additionally, the Act must define the
sewage worker, clarify what it means by the term “protective gear” and
what items this gear include and what it excludes.
Gravity of the Issue
The existing provisions of the Act, which seek the prohibition of
sewage work, must be seen in the context of the experience in Karnataka.
We have conducted a study on sewage workers (Sathyaseelan 2010) that
brings to light some major issues concerning this inhuman occupation.
Sewage workers have hardly been provided with any proper protective
gear. Contract workers are not even aware of the existence of such gear.
It is not possible to work in sewerage drains and manholes with the
protective gear given to them, such as gloves, masks, helmets, etc. So
workers are forced to work without the protective gear, or end up just
ignoring the use of the gear to complete their work quickly.
In this study 96% of the workers were scheduled castes belonging to
the Madiga/adi Karnataka community. Most of them (94%), were designated
sewage workers, but without any hope of getting promoted. Half of the
workers interviewed were engaged in this work because their ancestors
were doing the same job. However, they were still unable to take care of
the basic requirements of food, shelter, clothing and education of
their families with their meagre incomes from sewerage cleaning.
Sewage workers are hardly able to demand any kind of occupational
safety measures from their employers. This is because half the sanitary
workers we interviewed work on contract and are not entitled to any
benefits that are given by the Bangalore Water Supply and Sewage Board
(BWSSB) to its permanent workers. All the 50 workers we interviewed said
that their present job was not safe and that they are not provided any
safety equipment. Twenty of these workers interviewed said that they had
taken up this job only because there is no other job available for
them. Additionally, these workers are prone to serious accidents during
this kind of work.
Backward Technology
The BWSSB had engaged jetting machines to reduce the burden on the
workers and also provided them with transport facilities during work.
But all the workers we interviewed felt their job was overloaded because
of the increasing number of complaints that they have to attend to per
day. It has been made mandatory for them to complete the task, and they
cannot refuse or delay work. They cannot depend upon the use of jetting
machines in all circumstances, because these machines are unable to
clear all the blockages, once again forcing workers to enter manholes to
clear obstructions. No other technology has been developed so far to
clean drains through manholes.
A number of occupational hazards have been pointed out by different
institutions (Tiwari 2008) and government committees. This study also
highlighted that the workers are prone to many diseases and suffer from
symptoms of illness during or after work, such as body ache, headache,
irritation, watering and burning of eyes, cut injuries, metallic taste
in mouth and the general symptoms of tiredness and fatigue. All the
workers reported that they felt that their lifespan is shortened because
they are exposed to numerous poisonous gases and toxic elements.
2
The absence of professional or technical training before entering into
this job also leaves workers prone to accidents and death. Above all,
this job creates and perpetuates social stigma.
It is important to note that these workers who were interviewed call
themselves sewage workers. But as they are still outside the ambit of
the Act of 1993,
3 they are eligible for the benefits provided by the government for
safai karmacharis
such as (a) National Scheme of Liberation and Rehabilitation of
Scavengers and their Dependents; (b) centrally-sponsored scheme of
pre-matric scholarship for children of those engaged in unclean
occupation; or (c) the integrated low-cost sanitation scheme, Valmiki
Ambedkar Malin Basti Awas Yojana (VAMBAY).
4 The case study
shows that BWSSB has deprived its workers of their rights and privileges
due to the drawback of the existing 1993 Act. The new Act as passed in
its present form will continue to deprive sewage workers all over the
country of their rights and opportunities as they will continue to be
outside the ambit of the new Act.
Court Directions
There have been many authorities such as the Supreme Court, high
courts, human rights commissions, and committees appointed from time to
time, which have been asking for guidelines to be issued for the
upliftment of these poor and vulnerable workers. The Supreme Court in
its judgment
5 dated 12 July 2011 has recognised the plight of
sewage workers, who risk their lives by going inside drains without any
safety equipment and are denied their fundamental rights of equality,
life and liberty. The Court had also criticised the government for being
insensitive to the safety and well-being of these workers. This
direction was passed on a pending case in the High Court of Delhi
6
that had issued numerous directions in its interim order dated 20
August 2008. We can also see similar directions that have been issued in
other courts, for example, the High Court of Gujarat in
Praveen Rashtrapal vs Chief Officer Kadi Municipality (SCA Nos 8989/2001 and 11706/2004), where a series of directions were issued.
In
A Narayanan vs The Chief Secretary and Others, the petitioner pleaded for an interim order
7
directing the respondents to discontinue the employment of human beings
in cleaning manholes and sewerage lines and septic tanks in Tamil Nadu,
with a further direction to the respondents to adequately rehabilitate
those who were currently employed in cleaning manholes and sewerage
lines. The Madras High Court order said the following:
[T]his Court reiterates its previous direction that for
the purpose of clearing the blocks in the sewerage and drainage lines,
no human being should be allowed to get inside the drainage/sewerage
lines and if any drain is chocked, it is the responsibility of the
authorities to get it cleared by employing mechanical devices.
Interestingly, unlike the other courts, the High Court of Karnataka
in its Order (WP 41076/2010) dated 4 July 2012, hearing the case of the
sewage workers
8 said, “Chairman, BWSSB, in his affidavit
dated 02.02.2012, wherein he has undertaken as to effectively implement
the prohibition of manual entry into manholes and sewage lines by
securing all means at my disposal.” The court has received affidavits
from the respective respondents that no manual labour shall be engaged
for clearing, cleaning or unblocking any underground sewerage system.
Apart from court directions there have been a number of committees
9
constituted to give recommendations for the upliftment of these poor
and vulnerable workers. The National Human Rights Commission has also
given comprehensive guidelines to regulate the employment of sewage
workers.
10
“Only lip service is being done to a national cause and social
malaise which has continued for centuries and it has not been alleviated
despite constitutional provisions”,
11 the Karnataka court
observed. The Constitution of India has guaranteed protection to
labourers from exploitation and deprivation under the fundamental
rights, which includes the rights to life, health, safe working
conditions and the right to livelihood. Making sewage workers enter
manholes and septic tanks, hazardous or non-hazardous, with or without
protective gear is a violation of the fundamental rights under Article
14 (equality before law), Article 17 (abolition of untouchability),
Article 21 (right to life) and Article 23 (right against exploitation)
of the Constitution.
Alternatives
In an editorial,
The Hindu, says that “Laws count for nothing when some of the worst offenders are government-run bodies, agencies and enterprises” (
The Hindu
2012a). It will be a difficult challenge ahead as the Act is passed in
its present form to tackle the plight of sewage workers as most of these
workers are employed by the state directly or on contract basis. The
state employs these workers, some regularised, but a majority of them
are under contracts for such bodies as the BWSSB, the Karnataka Urban
Water Supply and Sewerage Board (KUWSSB), and the Chennai Metro Water
Supply and Sewerage Board (CMWSSB)
12 among others
. Even
after repeated reminders and guidelines given by the apex court and
high courts for complete mechanisation, most of the work continues to be
done manually, for the sake of either convenience or cost.
In
Karnataka, the court has directed government authorities not to allow
any worker to enter manholes even if they are wearing safety gear.
Workers have rarely received any safety equipment or gear, as the
Bangalore workers testified. However, due to the intervention by the
High Court of Karnataka, the government has purchased some jetting and
sucking machines, but these implements are still not enough. There are
less than 100 such machines for a city with more than 1.5 lakh manholes (
The Hindu 2012b).
When the Act envisages that no person should be engaged or employed directly or indirectly,
13
it is better for the government to ban this occupation entirely as
mentioned in Section 7 of the Act. Recently in the Supreme Court, during
the hearing of the
Union of India vs A Narayanan and Others case,
14
Attorney General Goolam E Vahanvati submitted that the government may
consider deleting the word “hazardous” from Section 7 of the bill (Ghosh
2013), and that this must be read with Section 2(d). It is to be noted
that most urban authorities have employed these workers on a
regular-cum-contract basis and need them to directly engage in cleaning
sewers. During my research the workers have revealed that none of them
received or used safety gear. Further they said that the new jetting
machines that have been procured are useless most of the time; they do
not help clean blockages, forcing humans to once again enter the
manholes.
Implications with the States
The implications of totally banning the use of human beings in the
cleaning of sewers and septic tanks for most state governments and urban
authorities is going to be very big. As few states have formally
adopted even the 1993 Act. Even the new Act allows states a lot of
flexibility in making rules and enforcing various parts of it. This will
allow states to be selective. The term “protective gear” will also
allow states to continue getting this job done manually by sewage
workers by only giving some token equipment. This will leave the
questions of what equipment is being provided, its usefulness in
stopping workers from manually entering drains and cleaning refuse with
their hands, unanswered and gives states sufficient leeway to escape the
proper implementation of the Act.
As the example of Bangalore illustrates, despite the interim orders
passed by the High Court of Karnataka prohibiting any worker from
entering manholes, each and every day the government authorities
continue to send workers inside these manholes to manually clean
blockages. One of the respondents of our study told us that, “there is
no change and we are working for our livelihood”. The Supreme Court said
human beings who are employed for doing the work in the
sewers cannot be treated as mechanical robots, who will not be affected
by poisonous gases in the manholes. The State and its
agencies/instrumentalities or the contractors engaged by them are under a
constitutional obligation to ensure the safety of the persons who are
asked to undertake hazardous jobs (Court News 2011).
Hence, every state not only is duty-bound to eradicate this inhuman
practice, but unfortunately they stand in direct contravention of
judicial orders each time they allow human beings to enter and clear
sewers manually.
Concluding Remarks
This article has focused on sewage workers in order to give this
community equal rights and opportunities. Sewage workers are more prone
to accidents and deaths every time they engage in their work. When one
Member of Parliament raised his voice for these voiceless people on the
floor of the House in 2011, the then minister of social justice and
empowerment, Mukul Wasnik said,
so far as social justice is concerned, if we are able to
protect the Fundamental Rights and right to live with dignity then we
can say that we have achieved the goal of social justice. But, if a
section of society is not living with dignity then it means we are not
doing social justice to it. It is not the job of the Government only to
change social circumstances, the people’s representatives will have to
work in this direction and the society should become more sensitive
towards this.15
This is a state subject
16 but the new Act has been brought
under Entry 24 (Welfare of Labour and Working Conditions of the
Concurrent List) by the union government. The centre now has to assume
responsibility to protect the rights of these vulnerable workers,
implement its remedies, rehabilitate these workers, protect their rights
and keep an eye on state governments.
The present Act cannot achieve its objective without a road map for
rehabilitation. Significantly, the judiciary has been monitoring and has
been examining all kinds of violations. However, in the long run this
cannot be a solution; the state has to prioritise its agenda to phaseout
this dehumanising practice.
Before the Act was passed it was sent to the Standing Committee on
Social Justice and Empowerment 2012-13 (2013). In its recommendations,
it had asked the government to amend the definition of manual scavenging
on other aspects, but had not asked for the inclusion of sewage workers
within its definition. This is unfortunate, and is a myopic view of the
matter. The committee in its general observations/recommendations had
openly agreed that sewage work should continue with protective gear and
the incorporation of modern machines, “the Committee recommend that the
scheme on ‘Assistance for Mechanical Cleaning of Sewers and Septic
Tanks’ should be finalised and executed within the timeframe as
stipulated in the new Bill” (ibid)
. This is to note that the
above recommendation is a part of the Ministry of Urban Development
which had been entrusted with the responsibility to formulate a scheme
on “Assistance for Mechanical Cleaning of Sewers and Septic Tanks” as
well as keeping in view the Supreme Court’s direction
17 for providing equipment, adequate protection and safety gear to those who enter the manholes to clean blockages.
Very recently the Government of Delhi decided to upgrade the status
of workers engaged in de-silting and cleaning of sewer lines by changing
the designation of the workers and granting them more pay. Henceforth
workers engaged in cleaning sewer lines manually will be termed as
semi-skilled workers instead of unskilled workers and will get a minimum
wage of Rs 8,528 per month instead of Rs 7,722 per month. Those engaged
in mechanical cleaning will be termed as skilled instead of unskilled
workers and will be paid Rs 9,386 per month instead of Rs 7,722 per
month by upgraded the status of workers under the Minimum Wages Act,
1948 (
The Hindu 2013). This is a very positive step taken by the government, but it has not banned manual cleaning of sewage.
List of Recommendations
(i)
Remove Section 2(d): The term “hazardous cleaning” itself
gave the state an upper hand to ban all direct human labour in cleaning
sewage. As Agrima Bhasin (2012) cogently states
the new Bill dilutes the significance of the clause that
prohibits the employment of persons for hazardous cleaning of sewer and
septic tanks. It selectively mandates that a person handling excreta
with the help of ‘protective gear’ shall not be deemed a manual
scavenger. This is problematic insofar as such ‘protective gear’ becomes
a mediating technology that helps sustain, if not perpetuate, the
employment of persons for hazardous cleaning. It contradicts the stated
intention of rehabilitating these workers out of such dehumanising
squalor.
(ii)
Liberation and Rehabilitation: Sewer workers’ liberation
will come only when we acquire necessary technological changes, which
will then render the occupation humane, dignified and safe in ways which
completely avoid any direct human contact with excreta. The liberation
of these workers cannot be conceptualised in isolation because they will
lose their only source of income without a meticulous road map for
meaningful rehabilitation as proposed for manual scavengers. The workers
in regular or contract employment must not be terminated; rather they
must all be given regular employment.
(iii)
Protection of Human Rights: Sewage workers, who do more
hazardous work as compared to manual scavengers, face a very specific
form of human right violation. Their human dignity needs to be protected
and this can happen only when they get opportunities through
rehabilitation equal to what manual scavengers will be getting.
(iv)
Introduce Proper Technology: The bill must make it
obligatory that the latest technology should be provided for persons
attending sewage disposal and it shall be the responsibility of the
union and state governments to provide sufficient funds for the purchase
of machines and equipment under Article 266 (3)
18 read with Article 39(e),
19 and Article 256
20 of the Indian Constitution.
Notes
1 “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 ensure observance of safety precautions, as may be
prescribed or provided in any other law, for the time being in force or
rules made thereunder.
2 Ibid, Deadly gases in the manholes are: hydrogen sulphide (sewer
gas), methane, carbon dioxide, carbon monoxide and other toxic elements.
3 The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993.
4 See National Commission for Safai Karamcharis website, viewed on 7 October 2013
http://ncsk.nic.in/index2.asp
5 SC-Civil Appellate Jurisdiction Civil Appeal No 5322 of 2011
(Arising out of Special Leave Petition (Civil) No 12345 of 2009),
Delhi Jal Board vs National Campaign for Dignity and Rights of Sewerage and Allied Workers & others.
6 High Court of Delhi WP No 5232/2007:
National Campaign for Dignity & Rights of Sewerage and Allied Workers vs MCD and others.
7 Madras High Court in
A Narayanan vs The Chief Secretary and others WPNo24403 of 2008.
8 WP 30221/2009:
PUCL-Karnataka vs State of Karnataka and others and WP 41076/2010
RN Narasimhamurthy vs State of Karnataka.
9 IPD Salappa Committee report on the improvement of living and
working conditions of scavengers – 1976; Brave Committee 1948-1951;
Malkani Committee 1957-1960; Renuka Roy Committee 1958; Pandya Committee
1967-69.
10 National Human Rights Commission Report on “Guidelines and Safety Code for Operations and Maintenance of Sewerage System”.
11 The High Court of Karnataka – Orders dated 28 February 2012 of the Case No WP 30221/2009 PUCL
-Karnataka vs State of Karnataka and others dated 28 February 2012.
12 Bangalore Water Supply and Sewage Board, Karnataka Urban Water
Supply and Sewage Board, Chennai Metropolitan Water Supply and Sewerage
Board.
13 Section (7) of ‘The Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012”.
14 This case is an appeal by the government against an order of the Madras High Court Order – WP No 24403 of 2008.
15 Lok Sabha-Synopsis of Debates (Proceedings other than Questions
and Answers): Tuesday, December 20, 2011/Agrahayana 29, 1933 (Saka) –
Calling Attention. Statement by the Minister of Social Justice and
Empowerment, Mukul Wasnik.
16 Under the 7th Schedule of the Constitution (Article 246) List III
concurrent list “the welfare of the labourers both centre and state are
responsible, however under List II – State list (6) Public health and
sanitation is part of the states obligation.
17 SC-Civil Appellate Jurisdiction Civil Appeal No 5322 of 2011,
Delhi Jal Board vs National Campaign for Dignity and Rights of Sewerage and Allied Workers and Others.
18 No moneys out of the Consolidated Fund of India or the
Consolidated Fund of a State shall be appropriated except in accordance
with law and for the purposes and in the manner provided in this
Constitution.
19 That the health and strength of workers, men and women, and the
tender age of children are not abused and that citizens are not forced
by economic necessity to enter avocations unsuited to their age or
strength.
20 Obligation of states and the union – The executive power of every
State shall be so exercised as to ensure compliance with the laws made
by Parliament and any existing laws which apply in that state, and the
executive power of the union shall extend to the giving of such
directions to a State as may appear to the Government of India to be
necessary for that purpose (Bakshi 2009).
References
Bakshi, P M (2009):
The Constitution of India, 9th edn (New Delhi: Universal Law Publishing).
Bhasin, Agrima (2012): “Washing of This Stain Will Need More”,
The Hindu, 3 October, viewed on 31 May 2013
http://www.thehindu.com/opinion/lead/washing-off-this-stain-will-need-more/article3958626.ece
Court News (2011): “Some Supreme Court Judgments of Public Importance (01-07-2011 to 30-09-2011)”,
Court News, 6(3): 9-18, viewed on 3 October 2013,
http://supremecourtofindia.nic.in/courtnews/2011_issue_3.pdf
Ghosh, Abantika (2013): “SC Watching, Govt in a Soup Over Manual Scavenging Bill”,
The Indian Express, 30 January, viewed on 14 August 2013
http://www.indianexpress.com/news/sc-watching-govt-in-a-soup-over-manual-scavenging-bill/1066434/2
NAC (2010):
Recommendations for Follow-up Measures to Eradicate Manual Scavenging, National Advisory Council (NAC), Government of India.
Tiwari, R Rajnarayan (2008): “Occupational Health Hazards in Sewage and Sanitary Workers”,
Indian Journal of Occupational and Environmental Medicine, 12(3): pp 112-15.
Sathyaseelan, Samuel (2010): “A Study on the Working and Living Conditions of Sanitary Workers of BWSSB in Bangalore City”
, St Joseph’s College (Autonomous) (unpublished dissertations).
Standing Committee on Social Justice and Empowerment 2012-2013 (2013):
15th
Lok Sabha, Ministry of Social Justice & Empowerment: The
Prohibition of Employment as Manual Scavengers and their rehabilitation
Bill 2012: 32nd Report, presented 4 March (New Delhi: Lok Sabha Secretariat).
The Hindu (2012a): “A Degrading Practice Is Now Set to End”,
The Hindu, 20 March, viewed on 14 August 2013
http://www.thehindu.com/todays-paper/tp-national/tp-karnataka/article3014414.ece
– (2012b): “Let the Machines Take Over”,
The Hindu, 3 September, viewed on 31 May 2013
http://www.thehindu.com/opinion/editorial/article3851422.ece
– (2013): “Upgraded Status, Better Pay for Sewage Cleaners”,
The Hindu, 7 August, viewed on 4 October 2013
http://www.thehindu.com/news/cities/Delhi/upgraded-status-better-pay-for-sewage-cleaners/article4994932.ece
