Manual Scavenging: Outlawed yet Recurring

Introduction

“Under Hinduism scavenging was not a matter of choice, it was a matter of force. What does
Gandhism do? It seeks to perpetuate this system by praising scavenging as the noblest service to
society! … What is the use of telling the scavenger that even a Brahmin is prepared to do
scavenging when it is clear that according to Hindu Shastras and Hindu notions even if a
Brahmin did scavenging he would never be subject to the disabilities of one who is a born
scavenger? For in India a man is not a scavenger because of his work. He is a scavenger because
of his birth irrespective of the question whether he does scavenging or not.”

-Dr B.R. Ambedkar 1

Manual scavenging is a degrading profession that is still in practice in India without a

proper sewage system. It is ironical that it took the Government of India decades after the
independence to ban this practice by passing of the Employment of Manual Scavengers and
Construction of Dry Latrines (Prohibition) Act, 1993. Manual scavenging firstly prevails in India
because the cast system still enshrines it as a traditional occupation. It is a deeply rooted practice
and the most exploited and excluded communities amongst the Dalits suffer the most. Secondly,
it is continued because of the presence of insanitary latrines and the failure on the part of the
State to phase out these latrines and to make sanitation a priority. Despite, technological and
scientific advancement, and the availability of low-cost and simple replacements, this filthy,
hazardous and inhumane occupation still exists. This is an oppressive legacy of the Hindu
hierarchical system that leads to untouchability.

Safai Karamchari Andolan And Ors vs. Union Of India And Ors is a landmark case to
eradicate manual scavenging in the country. It was a writ appeal in the form of a Public Interest

1
Ambedkar, B. (1990). Reasons for the Prevalence of Manual Scavenging in India.
doi:https://www.jatinverma.org/manual-scavenging-in-india-issues-and-way-forward
Litigation by the petitioners under Article 32 of the Constitution of India, petitioning to issue a
writ of mandamus. Since there were existing laws that were not being enforced properly, the
Judiciary had shown had taken stern actions and had called out States and Union Territories
because of their failure in eradicating the practice of manual scavenging. In this case, the
Supreme Court said that manual scavenging is an undignified and degrading occupation violative
of the articles of the Indian Constitution. The Court had said that the Employment of Manual
Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 does not accept the
inactivity on the part of the State and Union governments and the Prohibition of Employment as
Manual Scavengers and their Rehabilitation Act, 2013 was framed. The Act also supports the
constitutional rights of a manual scavenger2 under Articles 17 and 21 of the Indian Constitution.
The judgement that was declared was clear on three decisions. Firstly the Court directed a
completed ban on the practice of manual scavenging. Secondly, the manual scavengers who were
enlisted under Sections 11 and 12 of the 2013 Act have been coordinated to be restored
according to the arrangements of Part IV of the 2013 Act; and thirdly remuneration of Rs.10
lakhs has been arranged to be paid to the members of the family of those who had died since
1993. “The list is not to be just of manual scavengers engaged by a municipality, but manual
scavengers engaged within the jurisdiction of a municipality,” the bench had said. 3

The main issue related to the case is how the practice of manual scavenging and the
continuous use of insanitary latrines are unconstitutional as it violates some of the relevant and
important provisions of the Constitution. Also, whether the indirect or direct work of the manual
scavengers in spite of a forbiddance of the same in the past and a failure to stop the development
of dry or insanitary latrines and inability to crush them, adds up to infringement of the legal

2
Section 2 (g): “manual scavenger” means a person engaged or employed, at the commencement of this Act or at
any time thereafter, by an individual or a local authority or an agency or a contractor, for manually cleaning,
carrying, disposing of, or otherwise handling in any manner, human excreta in an insanitary latrine or in an open
drain or pit into which the human excreta from the insanitary latrines is disposed of, or on a railway track or in such
other spaces or premises, as the Central Government or a State Government may notify, before the excreta fully
decomposes in such manner as may be prescribed, and the expression “manual scavenging” shall be construed
accordingly.”

3
K.M, A. (2018, June 13). State Can't Avoid Liability To Compensate For Death Of Manual Scavengers On Work
By Citing Its 'Inability' To Stop Manual Scavenging: Madras HC [Read Order]. Retrieved May 09, 2020, from
https://www.livelaw.in/state-cant-avoid-liability-to-compensate-for-death-of-manual-scavengers-on-work-by-citing-
its-inability-to-stop-manual-scavenging-madras-hc-read-order/?infinitescroll=1
framework of the Acts of 1993 and 2013. Moreover, considering the risky conditions that manual
scavengers are presented to, the authorities, organizations and other workers or some other
individual drawing in a manual scavenger straightforwardly or by implications is regarded to
have information that demise could be a possible outcome and could thus be held liable under
Section 304 of the IPC. Manual scavenging also violates many international instruments,
covenants, and protocols. The Public Interest Litigation had been filed keeping in mind those,
who were not aware of their legal rights or did not have the resources to approach the Court.

Existing case laws on the issues discussed in Safai Karamchari Andolan And Ors vs. Union
Of India And Ors

1. Delhi Jal Board v. National Campaign for Dignity & Rights of Sewerage& Allied
Workers4

In this case, the Supreme Court had said that the fundamental rights liberty, equality and life
of the sewage workers and manual scavengers who carried on their profession for a minimal
wage without safety equipments have been violated for over six decades.

The Supreme Court referred to a report 5, and stated that6, “The workers are suffering from
high mortality and morbidity due to exposure at workplace. 33 workers had died in last 2
years due to accidents while working on the blocked sewer lines...59% of the workers enter
underground sewer manholes more than 10 times a month and half of them have to work
more than 8hours a day...”

The Court had criticized not only the government but the states as well for not being able to
protect the citizens who were subjected to such work because of their needs. The Court had
rebuffed the mindset of the upper classes regarding Public Interest Litigation.7
4
2011 (8) SCC 568.
5
Centre for Education and Communication in collaboration with Occupational Health & Safety Management
Consultancy Services on “Health & Safety Status of Sewage Workers in Delhi”.
6
Supra note 34, para.8.
7
Supra note 37, Supreme Court emphasized the importance of the petitions filed pro bono publico for protection of
the rights of less fortunate and vulnerable sections of the society, observed: There is a misconception in the minds of
some lawyers, journalists and men in public life that public interest litigation is unnecessarily cluttering up the files
of the court and adding to the already staggering arrears of cases which are pending for long years and it should not
therefore be encouraged by the court. This is, to our mind, a totally perverse view smacking of elitist and status
quoist approach. Those who are decrying public interest litigation do not seem to realise that courts are not meant
only for the rich and the well-to-do, for the landlord and the gentry, for the business magnate and the industrial
tycoon, but they exist also for the poor and the down-trodden, the have-nots and the handicapped and the half-
 2. N. Nagendra Rao & Co. V. State of Andhra Pradesh8

In this case, the Court held that “Whether the authority to whom this power is delegated is
liable for negligence in discharge of duties while performing such functions is a different
matter. But when similar powers are conferred under other statute as incidental or ancillary
power to carry out the purpose and objective of the Act, then it being an exercise of such
State function which is not primary or inalienable, an officer acting negligently is liable
personally and the State vicariously.”9

3. Jagriti Devi v State of Himachal Pradesh10

In this case, the Court held that when there is no intention to cause death or any bodily injury
likely to cause death then Section 304 Part II needs to be considered. When a person, agency
or higher authority willingly avoids the Prohibition of Employment as Manual Scavengers
and their Rehabilitation Act, 2013 and the Prohibition of employment as Manual Scavengers
and their Rehabilitation Rules of 2013 for the safety of manual scavengers and knows that it
might cause death then the respective people are responsible for culpable homicide.

4. Khudiram Das v. State of West Bengal11

The Apex Court held that the personal liberty of a person includes the liberty in different
areas of life and cannot be avoided because of any legislation or statutory provision and
satisfies Article 14 and Article 19. Fundamental freedoms can be exercised by a person only
when a person lives a life of dignity with liberty and safety which falls under Article 21 of
the Constitution.

5. Minu B. Mehta and Another vs BalkrishnaRamchandraNayan&Anr.

hungry millions of our countrymen.

8
C.A. No. 3856 of 1988

9
Criminal Justice Society of India v. UOI & Ors. (Manual Scavengers). (n.d.). Retrieved from
https://www.livelaw.in/pdf_upload/pdf_upload-357321.pdf

10
(2009) 14 SCC 771
11
AIR 1975 SC 550
 The Court in this case ruled that every person has the right to security of his person and
also the right to safety.

Constitutional provisions

The Safai Karamchari Andolan has been fighting for the rights of the manual scavengers
over the years. Since most of these workers are from the backward sections of the society and
around 95% of them are Dalits, they are entitled to certain special Constitutional provisions to
protect them from discrimination and to uplift their position in the society. However, the news of
the deaths of these scavengers tells us that nothing much has changed. Manual scavenging as a
profession violates Articles 14, 16(2), 17, 19(1) (a), 21, 23, 38, 39, 41, 42, 43, 46, and 47. Article
16 talks about the equal opportunities in public employment and Article 19(1) (a) is the right to
practice business, trade or any other profession. The scavengers do not have a freedom to choose
their profession and are mostly bound to do the work because of their ancestral lineage. It is a
fact that without addressing the issue of caste it is impossible to deal with the question of
cleanliness in our country.12 Articles 23, 41 and 47 get infringed due to the practice of manual
scavenging which is sometimes forced labour and the right to work and health of the karamcharis
are not taken into consideration. Article 21 gets violated as the Right to Safety of the workers
gets compromised. Article 21 also tells us that the Right to Life is not just a mere right to live but
a life with dignity and the manual scavengers do not get anything close to a life of dignity.
Articles 14 and 17 which talk about equality before law and abolition of untouchability
respectively are directly violated with the practice of manual scavenging. Directive Principles of
State Policy which are Articles 38, 39, 42, 43 and 46 13are not actionable but need to be included

12
Manual Scavengers: A Blind Spot in Urban Development Discourse. (2018, November 28). Retrieved May
10, 2020, from https://www.epw.in/engage/article/manual-scavengers-blind-spot-urban-development-
discourse

13
Article 38: State to secure a social order for the promotion of welfare of the people
Article 39: Certain principles of policy to followed by the State- The State shall, in particular, direct is policy
towards securing- (e) 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
Article 42: Provision for just and humane conditions of work and maternity relief - The State shall make provision
for securing just and humane conditions of work and for maternity relief.
Article 43: Living wage, etc. for workers
Article 46:Promotion of educational and economic interests of scheduled castes, scheduled tribes and other weaker
sections
in the making of policies regarding this practice. Enough precautionary steps are not taken and
the deaths of the workers are not probed which is against the framework of our Constitution.

The petition was filed to safeguard the rights of the citizens and to uphold the rule of law.
The preceding case laws that have been mentioned also tell us how the fundamental rights of the
scavengers have been violated. Their right to a life of dignity has also been snatched from them
from people who employ them knowing that it is likely to cause death. Such people should be
held liable for culpable homicide as the existing case laws tell us. The Acts have also been never
implemented completely. So in the case in discussion the judgement relied on all of this and
called for a stronger implementation of the laws and international agreements in existence,
followed by a proper functioning of the commissions and committees. The Safai Karamchari
Andolan considered this a big step closer to the complete eradication of this profession and
rehabilitation of workers.

International Covenants and Conventions

India has ratified a lot of covenants and conventions that talk about manual scavenging.
This issue has been discussed in many international conferences in recent times, especially in the
United Nations. Discrimination Convention, 1958 deals with discrimination faced at work and
tells governments across the world to combat the unequal opportunities in the workplace and
promote equality by cooperating with organizations and employers. The convention also expects
governments to provide equal opportunity to workers through a national agency and also
revocation of laws and practices which violate the agency. The Effective Elimination of
Discrimination Based on Work and Descent14 is a crucial development in the evolving norms for
bettering the standards of work based on caste or decent. The Forced Labour Convention, 1930
under the International Labour Organisation suppresses compulsory or mandatory labour in
every form. A report released by it in 2007 stated with great concern that “The Committee notes
with concern that very large numbers of dalits are forced to work as manual scavengers.”15

14
Gupta, A. (2016). Manual Scavenging: A Case of Denied Rights. Retrieved from
http://ili.ac.in/pdf/paper3.pdf

15
United Nations Organization, Report Committee on the Elimination of Racial Discrimination (General Assembly,
2007).
 India is also a party to several other conventions like the Convention for Elimination of
all Forms of Discrimination Against Women (CEDAW), Universal Declaration of Human Rights
(UDHR), and the Convention on Elimination of Racial Discrimination (CERD). Article 1 of the
UDHR tells us how all human beings are born equal and free and should strive to achieve that
with conscience and reason. Article 2 of the Declaration also tells us that there should be no bias
based on any criteria like religion, race, sex, birth or social origin, followed by Article 23(3)
which reminds us that everyone has a right to proper remuneration for themselves and their
families for the service they provide. They also deserve the basic human dignity to live with and
other kinds of social protection that might be needed. Article 5(a) of the Convention for
Elimination of all Forms of Discrimination Against Women directs the countries that have
ratified to omit the discrimination based on the sex and to avoid any practice based on a
stereotypical role. Article 2(1) (c) of the Convention on Elimination of Racial Discrimination
condemns State parties practicing racial discrimination and directs State parties to review all
kinds of governmental and local policies to eliminate laws and regulations that do not bind to the
CERD. India is also a signatory to the International Covenant of Civil and Political Rights, 1996
(ICCPR). Article 26 of the ICCPR states that, “All persons are equal before the law and are
entitled without any discrimination to the equal protection of the law.” 16All these international
conventions and covenants are binding only when they are not inconsistent with the laws of the
land.

Government schemes and committees

The government appointed State specific committees like the Barve committee 17in
Bombay. Committees like the Pandya Committee 18and the Committee on customary rights 19
were created mainly to enforce a suitable mechanism to supervise the working and living

16
Criminal Justice Society of India v. UOI & Ors. (Manual Scavengers). (n.d.). Retrieved from
https://www.livelaw.in/pdf_upload/pdf_upload-357321.pdf

17
State of Bombay, Report of the Scavengers Living Condition Enquiry Committee (Government of Maharashtra,
1949).
18
Government of India, Report of the Committee on conditions of sweepers and scavengers (National Commission
on Labour, 1969).
19
Government of India, Report of the Committee on Customary Right to Scavenging (Ministry of Home Affairs,
1966).
conditions of the manual scavengers and to also look into the question of hereditary and
customary rights among the scavengers. The Malkani committee 20was created to look into the
hazards of scavenging. The committee had reported that the main reason why manual scavenging
is still in practice is because of the continuing presence of the dry latrines. Commissions like the
Central harijan welfare board was created to review the working and living conditions of the
workers and to suggest schemes for such workers. The Kaka kalekar commission considered the
municipal corporations to be the ones mainly responsible for the prevalence of manual
scavenging where the workers of these communities had to remove human excreta using their
hands. Article 338 of the Constitution also talks about construction of a National Commission for
the Schedule Caste for their protection from age-old customs and professions. Schemes like the
Self-employment Scheme for Rehabilitation of Manual Scavenging, the Integrated Low Cost
Sanitation Scheme, Nirmal Bharat Abhiyan, Sulabh Shauchalaya Scheme and the National
Scheme of Liberation and Rehabilitation of Scavengers and their Dependents follow a modern
approach to treat human waste and the Government has also assigned funds to technologize
sanitation.

Legislative framework

Various acts have been framed by the Legislature for improving the conditions of the
manual scavengers and other members of the scheduled classes. The Untouchability (Offences)
Act, 1955 is now knows as the Protection of Civil Rights Act, 1955 after it was amended in
1977. The Act aimed at abolishing untouchability and was made an even more serious crime
after the amendment with a sturdier punishment. The Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 was framed mainly to prevent cruelty against the members
of the backward communities and to provide relief to them through speedy trial. The amendment
strengthened the Act with respect to the manual scavengers. The Act was notified by the Central
Government on 1st January, 2016 making it a punishable offence to employ, permit or make any
person belonging to SC/ST community, to do manual scavenging.21 The Employment of Manual
Scavengers and Construction of Dry Latrines (Prohibition) Act, 199322 prohibits the construction
of insanitary latrines and the employment of safai karamcharis and regulates similar matters. It

20
Government of India, Report of Scavenging Conditions Enquiry Committee (Ministry of Home Affairs, 1980).
21
Id. s. 4(j) and s.3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
22
Act No. 46 of 1993.
was replaced by the Prohibition of Employment as Manual Scavengers and their Rehabilitation
Act, 2013. The main aims of the Act are to prevent the employment of manual scavengers and to
provide rehabilitation of the workers. Also, the Act provides for surveillance at all levels with a
stricter punishment. The National Commission for Safai Karamcharis Act, 199323 gave rise to
commission for the well being of the safai karamcharis and for their grievance redressal. Article
338 (5) of the Indian Constitution also tells us about the duties of the National Commission for
Schedule Caste (NCSC)24. All of this is a collective effort to protect and uplift the scheduled
castes.

“The official statistics issued by the Ministry of Social Justice and Empowerment for the
year 2002-2003 puts the figure of identified manual scavengers at 6,76,009. Of these, over 95%
are Dalits (persons belonging to the scheduled castes), who are compelled to undertake this
denigrating task under the garb of “traditional occupation”. The manual scavengers are
considered as untouchables by other mainstream castes and are thrown into a vortex of severe
social and economic exploitation.”25 The Employment of Manual Scavengers and Construction
of Dry Latrines (Prohibition) Act, 1993 outlawed the practice of manual scavenging but it was
poorly executed at all levels of the Government. So a PIL was introduced in 2003 and before the
judgement was pronounced, the Central Government had already enacted the Prohibition of
Employment as Manual Scavengers and their Rehabilitation Act, 2013 which had a stricter
approach to end manual scavenging. The Court in its judgement had asked for a stricter
execution of the Act. In this case of the Safai Karamchari Andolan, the Court had directed in
para 14 of the judgement as follows:

“(ii) 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.”

23
Act no. 64 of 1993.
24
Constitution (Eighty-Ninth Amendment) Act, 2003.
25
Safai Karamchari Andolan & ors v. Union of India and ors; 2014 (4) SCALE 165
The death of the safai karamcharis was clear not a rash or negligent act considering the
guidelines of the 2013 Act. Any person employing the workers was carrying out a reckless26 act
knowing that it is likely to cause death. Therefore, an agency or individual compelling a manual
scavenger to work in dangerous conditions without protective gear and knowing the probable
circumstances27 is to be liable under Section 304 Part II rather than Section 304 A of the IPC.
The Courts came to this conclusion on the basis of existing case laws and relevant articles and
sections.

Conclusion

26
‘reckless’ is defined by the Black’s Law Dictionary as “Characterized by the creation of a substantial and
unjustifiable risk of harm to others and by a conscious (and sometimes deliberate) disregard for or indifference to
that risk; heedless; rash. Reckless conduct is much more than mere negligence: it is a gross deviation from what a
reasonable person would do.”
27
Alaister Anthony Peraira v. State of Maharashtra, (2012) 2 SCC648; P.S. Lodhi Colony New Delhi v. Sanjeev
Nanda, MANU/SC/0621/2012.