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A bill rooted in apology is the way forward

By Agrima Bhasin

The 2012 draft bill broadens the definition of ‘manual scavenging’ and prohibits the employment of persons for hazardous cleaning of sewers and septic tanks. But it stops short of the apology that dalit rights groups demand

safai karamcharis manual scavengers

Legislative and policy documents most often aspire for bureaucratic neutrality in language that is least emotive and most formal. The new Prohibition of Employment as Manual Scavengers and Rehabilitation Bill 2012, while recognising the need to correct the historical injustice suffered by ‘manual scavengers’, stops short of declaring a national apology in its preamble. At the outset, the new bill acknowledges that the ‘dehumanising practice of manual scavenging’ is rooted in the twin evils of dry toilets (without a water flush system) and a highly iniquitous caste system. However, such acknowledgment, although welcome, sustains a neutral discourse that chooses not to explicitly heed the moral dimensions of forcefully condemning generations of dalit women, men and children to manually treating, disposing and handling human excrement.

Suitably nudged by the Supreme Court and equally prodded by concerned dalit groups, the Ministry of Social Justice and Empowerment (MSJE) introduced the new2012 bill in parliament on September 3, 2012. The primary reason for drafting this bill was the procedural and legal limitations in introducing amendments within the existing 1993 law that outlaws manual scavenging. The bill, intended to overcome the inadequacies of the existing law, was born out of sustained consultations amongst members of civil society groups advocating for the rights of safai karamcharis, the MSJE and the Ministry of Housing and Urban Poverty Alleviation. It may be lauded for: 1) a somewhat broadened definition of a ‘manual scavenger’, 2) a clause prohibiting the employment of persons for hazardous cleaning of sewer and septic tanks, and 3) a clause on rehabilitation and severe penalties. But in shying away from an official apology as well as visionary thinking in rehabilitating ‘manual scavengers’, the proposed legislation misses an opportunity to put an end to ongoing social injustice.

The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 came to life two decades ago to declare manual scavenging an offence. Summarily, this Act outlaws not just the employment of ‘manual scavengers’ but also the construction of dry latrines, imposes a penalty of up to Rs 2,000 for non-compliance, directs a prison term for offenders that can extend up to one year and vests executive authority in a district magistrate (DM) to ensure effective implementation.

The unfortunate condition under this Act was that it did not automatically apply to the states; instead, states had to formally and voluntarily adopt and enforce it – a process that has taken over two decades. Wilson Bezwada, National Convener of the Safai Karamchari Andolan (SKA) believes that, “While many women, men and children who rendered manual scavenging labour have been freed over the years across states which decided to break the silence, many others remain to be liberated in states that have stubbornly denied the existence of this inhuman practice.” Indifference of state governments prompted the SKA and six other organisations to file a PIL in the Supreme Court in 2003. The petitioners sought to enforce their fundamental right against untouchability under Article 17, read together with Articles 14, 19 and 21 that guarantee equality, freedom, and protection of life and personal liberty, respectively. In response, the SC reprimanded the union government and directed individual states to take timely action.

While the inadequacy of the 1993 Act may be the reason cited for the introduction of the new bill, it has been gross apathy and wilful negligence in implementation, more than inadequacy of law, which in the past has failed to make any perceptible impact in this regard. According to the 2003 report of the Comptroller and Auditor General (CAG), the most serious lapse was that the 1993 law was rarely used or invoked, and funds (around Rs 600 crore) available for implementation of schemes such as the National Scheme for Liberation and Rehabilitation of Scavengers, remained unspent or underutilised.

Old wine, new bottle?

The new bill defines a ‘manual scavenger’ as a person who is engaged for manually cleaning, handling or disposing human excreta in an insanitary latrine (which requires human excreta to be cleaned manually), an open drain or railway track. This is an upgrade from the definition in the 1993 Act, which described a ‘manual scavenger’ as a person who manually carries human excreta. Further, in the context of the increasing number of manhole deaths across the country, the explicit acknowledgement of sewage and septic tank cleaners as ‘manual scavengers’ is a welcome departure from the past. This is expressed in a clause prohibiting the employment of persons for hazardous cleaning of sewer and septic tanks. This clause, however, is severely diluted for it considers such cleaning ‘hazardous’ only when undertaken manually but not if ‘protective gear’ is provisioned for the cleaners. Thus, any person handling excreta with the help of such ‘protective gear’ (often not provided) is not deemed a ‘manual scavenger’. This is problematic insofar as this ‘protective gear’ becomes a mediating technology that helps sustain, if not perpetuate, the employment of persons for hazardous cleaning or even manual scavenging at railway stations. “While the acknowledgment of sewage workers as ‘manual scavengers’ is a welcome departure, the bill conflates the definition of manual scavenging (which can be prohibited) and sewage cleaning (where entry into manholes can be prevented). A dedicated, separate law is needed to address the concerns of sewage workers,” remarks independent law researcher, Usha Ramanathan.

For specific scheduled caste (SC) communities that are ostracised in return for their manual scavenging labour, the burden of caste is made worse by the casteist mindsets of those who forcefully employ them, and aggravated on account of economic necessity. Therefore, the liberation of ‘manual scavengers’ cannot be conceptualised in isolation (lest they lose their only source of income), without a precise roadmap for meaningful rehabilitation. The clause on rehabilitation in the new bill is similar to a checklist of items on offer (initial one-time cash assistance and scholarship for children; monthly stipend of Rs 3,000 to an adult member for livelihood skill training support; subsidy and concession for entering alternative occupation and allotment of residential plot or monetary aid for construction of house or ready-built house). It is benevolent in monetary terms but measly in vision. It does not account for social and psychological rehabilitation of ‘manual scavengers’ and merely proposes economic assistance, to be targeted and subject to eligibility, based on identification surveys in rural and urban areas. Dalit activists believe that the local authorities (railway authority, municipality, 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.  

“So far, the focus has been on demolishing dry toilets to end the demand for ‘manual scavengers’. But the efforts should be aimed at cutting the supply of persons condemned to such labour. This can be achieved when all ‘manual scavengers’ are rehabilitated out of sanitation-related work and we make it unnecessary for them to stoop to menial labour,” believes PS Krishnan, retired IAS officer, whose meticulously detailed draft bill on manual scavenging, inclusive of an apology, was rejected for being too ambitious. The language of the bill, Wilson Bezwada astutely notes, lacks a feminine gender and the recurring use of ‘he’/‘his’ suggests that all ‘manual scavengers’ are men, while the contrary is true. He desires a bill that is gender-specific and sensitive, one that reflects the needs of the majority of women who suffer the indignity of this labour. Thoughtful rehabilitation then should be motivated by a three-fold realisation: (1) to restore the dignity of life to the entire community of ‘manual scavengers’, women, men, children and the elderly through dignified jobs and regular pensions; (2) to secure, through educational opportunities, better vocations for future generations traditionally vulnerable to being recruited for this work; and (3) to clearly spell out the tasks of every ministry, PSU, and private sector organisation in order to make them accountable.

Closely linked with accountability is the idea of penalty. Hailed as a truly laudable provision in the new bill, its ‘unsparing’ penalty clause imposes on the offender an initial fine of Rs 50,000 or imprisonment up to one year, or both. Subsequent penalty is higher. But no offender has been prosecuted in the last two decades under the 1993 Act. Should then a stringent penalty clause not entail retrospective punishment for offences committed previously? Why has the proposed legislation exempted erring authorities from punishment? “The proposed Act must pin ultimate responsibility of non-implementation on union, state and local public officials who have allowed manual scavenging to continue unabated, amounting to dereliction of their duty,” asserts advocate Shomona Khanna, who represents petitioners SKA in the Delhi High Court case against the Indian Railways. The new bill, she believes, has completely diluted the procedure of registration of complaints by stipulating three months as the elongated time period within which to file complaints.

With regard to monitoring mechanisms, establishing a Central Monitoring Committee at the central level, State Monitoring Committees in every state and Vigilance Committees across all districts is a provision in the bill that indicates commitment in letter but not in spirit. The progressive weakening of the National Commission for Safai Karamcharis, established in 1994 to monitor the implementation of the 1993 Act, is illustrative of the above point. Restoring credibility to the existing Commission before setting up new committees is a task that should merit urgent attention in the bill itself. And purposeful enforcement of the proposed law necessitates the constitution of a multi-body selection panel that gives priority representation to persons from scheduled caste backgrounds who have sincerely worked for the welfare of ‘manual scavengers’ and whose unwavering struggle in fighting for the rights of ‘manual scavengers’ remains unrecognised and invisible.

The new bill was rightly placed in the care of the then Union Minister of Social Justice and Empowerment with the intention of privileging not sanitation for public but justice, equality and dignity for the sanitation worker.

Not too late to apologise

Dalit rights groups maintain that manual scavenging is not a form of occupation or employment but of violence and atrocity against the most discriminated scheduled caste communities, especially women. Their demand for a national apology is foremost a plea to openly accept the continuance of this practice. Contrary to their demand, both the 1993 Act and the new bill have omitted an apology. In India the practice of manual scavenging continues to be an assault on the dignity of dalit individuals who by birth in low-caste families -- traditionally marginalised to undertake menial labour -- have been denied a just existence and a life of dignity for years.  

For a nation ambitiously striving to be recognised as the fastest growing economy in the world, the exclusion of ‘manual scavengers’ from what Prabhat Patnaik calls, ‘the fraternity of equals’, should be a biting reminder of the failure to deliver on the constitutional promise of equality and dignity and safeguard against the harsh experiences of untouchability and caste discrimination. Turning this failure into an opportunity for healing can begin with an apology.

Although notably undervalued in governance, an apology can be a powerful gesture of regret that conveys care; it can recognise a collective wrong and end the silence on a legacy of humiliation and exploitation. A formal declaration of apology, in speeches or legislative documents, can allow a progressive polity to consciously acknowledge the discrimination and violence that marked its history, thereby making the apology itself a part of the unfolding history.

To change the nature of the 1993 law and genuinely overcome its inadequacies, the new bill must be promulgated and implemented with the unyielding resolve to break the link between caste and unclean occupations. Without aspiring for neutrality, the drafters of the bill should aim to achieve a tone of moral sensitivity that is a necessary prerequisite for any legislation seeking to remedy historical exploitation rooted in caste. Such sensitivity should convey neither pity nor empathy, but a profound apology for the humiliation faced by generations of ‘manual scavengers’ on account of our indifference and the ill-implementation of the 1993 Act.

 (Agrima Bhasin is a researcher at the Centre for Equity Studies, a New Delhi think-tank engaged in research and policy advocacy on issues of social and economic justice. This is the fourth in her series on safai karamcharis researched as part of the Infochange Media Fellowships 2012)

Infochange News & Features, March 2013