Manual scavenging was outlawed in 2013, but in more than 400 deaths since, there has been no conviction. The law’s loopholes keep a dirty, dangerous practice alive. First of a five-part investigation into the law that doesn’t work, the lives at stake and the enduring trauma of India’s lowest castes
RADHIKA BORDIA & YOGESH PAWAR
Delhi, Mumbai: In September 2020, on the eve of the monsoon session of Parliament, a news agency reported that the government was proposing to introduce a new bill that would strengthen the law against manual scavenging. The new Bill proposed “to completely mechanize sewer cleaning and provide better protection at work and compensation in case of accidents''.
The aim appeared laudable, but the Bill had been drafted without any discussion with those involved.
The Dalit Adivasi Shakti Adhikar Manch (DASAM), a civil rights network which has tracked cases of manual scavenging for the past five years, protested, argued the Bill was being considered without following “due process”.
Speaking to Article 14, Bezwada Wilson, the national convenor of the Safai Karamchari Andolan said, “There were no discussions on the new Bill, instead we were sent a draft that repeated the lacunae in the 2013 law, The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act (PEMSRA).”
Wilson and others working with manual scavengers wrote back to the government saying that under the circumstances there was no point introducing a new law.
The issue resurfaced on 23 March 2021 when Ramdas Athawale, minister of state for Social justice and empowerment, informed Parliament that there was no proposal to amend the law.
In the first of a five-part investigation, we examine the long and failed history of the legislative attempts to outlaw manual scavenging. From their drafting to their execution, iterations of the manual scavenging law only end up perpetuating what they seek to abolish. The second part takes a detailed look at two cases to illustrate how families are forced to work in the same degrading conditions generation after generation, with the active complicity of the government and the law enforcement machinery.
Is mechanisation the silver bullet that will fix this problem? In part three we take a deep dive into the Delhi government effort to convert sanitation workers to ‘sani-entrepreneurs’ who are the owners of sewer cleaning machines. The Delhi project was inspired by a project launched in Telangana and, in part four, we examine how that is faring. Both projects were the brainchild of the Dalit Indian Chamber of Commerce and Industry. In the concluding part, we explain how women, employed as manual scavengers, still clean latrines with their hands, despite decades of legislation.
Why A Handkerchief Is A Legal Safety Measure
Instead of plugging the gaps, the draft of the new Bill was merely reiterating the failures of the 2013 Act. Shailesh Darokar, chairperson for the Study of Social Exclusion & Inclusive Policy at the Tata Institute of Social Sciences (TISS) said the Act, instead of ending manual scavenging, perpetuated it.
“The 2013 Act seems to have no problems with manual scavenging, if it is done with adequate and appropriate protective gear,” said Darokar.
The supposed improvement in working conditions implied by this requirement is illusory according to Darokar, because the Act fails to define what is meant by protective gear. As a result officials and contractors interpret according to their own convenience, mostly to the detriment of those doing the work.
In 2015, while conducting a survey on the life and working conditions of sanitation workers in Mumbai, Darokar found cases where contractors were claiming a handkerchief was adequate gear to protect workers from toxic gases.
One way to bring about an end to the practise would be for the government to live up to its promise of mechanising sewer cleaning, but again, the rhetoric is betrayed by the government’s own acts. For this to ever be feasible, all septic tanks and drainage chambers need to be built to dimensions that allow mechanical cleaning.
Instead, Darokar pointed out, “septic tanks are located and designed in a way that a person has to enter them manually to clear any clogging or choke-up. Why is the redesign of these tanks not treated as a priority? Even Swachh Bharat has not addressed the issue."
Another crucial gap in the 2013 Act relates to rehabilitation.
“There is no clear assignment of responsibility to any department of the Centre, State or local self-government body,” said R V Chandrashekhar, PhD, assistant professor at the Centre for the Study of Social Exclusion and Inclusive Policy at the National Law School of India University in Bangalore. “This means that they can conveniently pass the buck every time questions are raised."
No Conviction In 8 Years
Even such immense gaps in the drafting of the law pale into insignificance when seen against the complete failure to implement the Act. In the eight years since the 2013 law was passed, Wilson noted, there has not been a single case where a manual scavenger’s death has led to a conviction.
According to a bureaucrat in the ministry of social justice and empowerment, 1,013 persons died while working as manual scavengers over 27 years to 2020. First Information Reports (FIRs) were filed in just 462 cases and the vast majority of these, 418, only invoked section 304 (death by negligence) of the Indian Penal Code, 1860. Forty-four of the cases were registered simply as accidental deaths. Only 37 FIRs, or less than 1%, invoked the PEMSRA, the law actually meant for such cases.
The failure to use the Act was apparent even in cases extensively covered in the media. In November 2019, there was outrage when 25 year-old Arun Kumar died while trying to save his brother, Ranjith, who collapsed inside a septic tank in Chennai’s Express Avenue Mall.
‘Who Would Do This Job Willingly?’
Ranjith recalled the urgency with which the contractor wanted them to work all night to clean the septic tank to ensure it would be done in time for the mall to open in the morning.
“By law no manual scavenging work should be done at night,” Ranjith told Article 14. “But we had had no work for over a week and needed the Rs 500 per person he was paying.”
The brothers were from the Paraiyar Dalit community and had quit school due to acute poverty. Both of them began working immediately afterwards trying their hand at whatever odd job that came their way.
Ranjith moonlights as an electrician when the scavenging work is not enough, “Who will want to do manual scavenging willingly?” he said. “We had to take it up to ensure our family has food.”
The brothers had for the past five years worked as manual scavengers for various contractors in Chennai. Along with three others from their neighbourhood, they began cleaning the water tanks and got to the septic tank around 3 am.
About 20 minutes after Ranjith had got into the tank, a valve released filthy sewer water with faecal matter and urine flooding the tank.
“The yellowish-brown liquid came up to my thigh,” he recounted. “We're used to this filth but the fumes were really strong. I felt like my nostrils were aflame within seconds. I opened my mouth to call for help but I just couldn't find my voice, gulped more of the fumes instead and collapsed even as I barely blurrily registered Arun calling out to me.”
Arun jumped in and managed to pull Ranjith out but his foot slipped and he fell back into the filthy water which was now waist high. One of the others then tried to pull Arun out but was so overwhelmed by the stench and fumes that he was knocked out.
Ranjith was unable to move for an hour after being rescued, “My hands and legs felt like stone. But I could hear the contractor call the mall security. Precious time was lost as the security personnel and the contractor argued about whose responsibility it was to save my brother.”
Arun was already dead by the time he was pulled out. Ranjith who has kept count of each of the 450 days that have passed since his brother, told Article 14, “I still get nightmares remembering how he died.”
The News Minute report on the incident mentions a particularly insidious detail. The five men were made to pose in safety masks, gloves and boots provided by Express Avenue Mall before the work began but once the pictures were clicked they were told to remove the gear.
Ranjith concurred. “The contractor made us remove the safety gear,” he said, explaining this was standard practice with most contractors he’s worked with. “He said it would get filthy once we go in and they would have to throw it. They use the pictures only to show that they adhere to all the rules.”
A year and three months later, there has been little progress on the case. No one has been arrested. The FIR makes no mention of the PEMSRA and invokes only sec 304 for negligence.
“After the Chennai Corporation paid us a compensation of Rs 10 lakh my family dissuaded me from pursuing the case saying it would be futile,” Ranjith said.
Chronicling The Deaths
M Palani Kumar, a photographer who has spent the past five years travelling across Tamil Nadu, documenting the horrific world of manual scavengers, said there were many images that “seared his memory”.
“Arun Kumar’s wife Suganya was just 22 when her husband died. As the body was being taken for its final rites, she bent down to kiss him one last time, not wanting to let him go,” he recalled.
He saw the brutality of the profession up close as a cinematographer on the documentary Kakoos (‘Toilet’ in Tamil), “I wanted to give a face, an identity, some respect to those who live in abject poverty, with constant fear and then die the most terrifying deaths.”
Palani’s lens has been persistently focused on the conditions of Dalit communities forced to work as manual scavengers, “My images are described as powerful but the truth is I am powerless when faced with a system that continues to force men to die in gutters.”
During the lockdown, Palani went to the homes of 11 manual scavengers who had died.“Despite laws and court orders, people, mostly from Dalit communities like Paliyar or Arunthathiyar continue to drown in filth and sludge, knocked out by toxic gases,” he said. “Often, I have filmed cases which have not even been recorded.”
This underreporting of actual deaths is apparent in the government data. In response to a question about manual scavenging in Parliament on 2 February 2021, the Social Justice and Empowerment Ministry stated that in the five years till 31 December 2020, a total 340 deaths due to manual cleaning of sewers and septic tanks were recorded in 19 states and Union Territories.
According to the ministry’s response, Uttar Pradesh registered the highest number of deaths at 52, Tamil Nadu 42, Delhi 36, Maharashtra 34 while Haryana and Gujarat registered 31 deaths each.
Wilson said he was appalled by this response, calling data cited by the social justice ministry “completely untrue”.
“I am surprised this was given as official information on the Parliament floor,” said Wilson. “These numbers do not even include the 110 manual scavenger deaths officially reported, where FIRs have been registered.”
Other activists such as Karuppu Samy from the Tamil Nadu Safai Karamchari Andolan, said that the Centre’s figures are contradicted by the official figures compiled by respective state governments.
“The Centre says there have been only 43 manual scavenger deaths in Tamil Nadu but the state government's own figures place this at 145,” said Samy. “A digit here or there is understandable but how does one account for the 102 deaths which have been invisibilised.”
The Invisible Dead
Innumerable deaths go unnoticed, far from the glare of the media. The stories of the deaths are rarely followed through to see if those killed got justice.
“Deaths occur every day, many don’t even get reported, especially those in more remote villages.If the media is covering a case or our karyakartas manage to find out then those cases are covered,” said Wilson. “The media is able to establish the pathetic living conditions of manual scavengers but they are not able to follow the cases to see if it is going for trial, to show the lack of monitoring.”
This inability of the media to persist with a story allows the government to get away with lip service to the idea of justice. In the course of his work, Palani said, he had not found “a single case that has been registered with the intention of getting the victim and the families any justice. The government doesn't care about Dalits”.
The cases, said Wilson, appeared to follow a template, “The deaths are often not recorded. If an FIR is filed, it is done so half-heartedly, with no mention of PEMSRA or The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Often, the authorities are not even to accept the death was caused by manual scavenging but instead put the blame on the labourers for being drunk and negligent.”
In a final irony, the government that is supposed to enforce the law finds ways of evading it to escape its own culpability. The widespread shift to contractual labour, Wilson said, ensures that when sewage workers die doing work undertaken for the government, it pins the blame on contractors who are then shown ‘as absconding’.
One of the richest civic bodies in the world, the Brihanmumbai Municipal Corporation (BMC) of greater Mumbai has 5,000 labourers who work on contract. In 2019, The Supreme Court had told the BMC to make 2,700 contractual conservancy workers permanent. Their union, the Kachra Vahutuk Shramik Sangh (KVSS), had to file a contempt case against the BMC for not following the order of the apex court.
The resort to contractual labour allows this well funded corporation to get away with paying less than Rs 250 per day for this work. Milind Ranade of the KVSS pointed out that “if the BMC gave them work as per the SC order they would get Rs 625 per day, which is closer to the minimum wage”.
Such evasions by government bodies resulted in a frequently cited judgment, Safai Karamchari vs Union of India, 2014. In the judgment the Supreme Court came down strongly on state governments asking them to abide by their duty in implementing the law. The court termed manual scavenging a clear violation of among other statues Article 17, which abolishes untouchability.
An Unending Battle
The ground realities, however, do not change. P C Rathore, an advocate from the district of Dewas in western Madhya Pradesh, has worked on many cases of manual scavenger deaths on behalf of Jan Sahas, an organization that works in nine states on the issue.
One of the cases he has been dealing with relates to the death of four labourers from a village called Bardu; they died while cleaning a septic tank.
The FIR was registered only under section 304 of IPC, culpable homicide. Rathore filed a petition asking for the invocation of the 2013 Act as well as the SC/ST Atrocities Act. “Both these Acts should be instantly applied in such cases. Instead one has to seek the Court’s intervention,” he said.
The failure to impose the SC/ST Atrocities Act is directly connected to the denial of caste as one of the major factors perpetuating manual scavenging. Darokar cited the fact that the manual scavenging law passed in 1993 had no reference to caste, and added that even the 2013 Act only talked about “the dehumanizing of society”.
For Wilson, this discrimination on the ground of caste has pervaded every aspect of the government’s response to the issue. Whether the employer is the municipality, a contractor or a private party, he argued, the responsibility of the state is clear.
“When a father kills a daughter, the state pursues the case, because violence is prohibited and murder is a crime. It becomes State vs someone, but when it comes to a safai karamchari’s death, the state is absent,” Wilson said. “It is a modern form of untouchability by the state.”
This is the first of a five-part series.
Next: The Death Of The Mehtar Brothers, And A Govt Dodging Its Own Laws
(Radhika Bordia is a journalist and Director, Global Programme, University of Missouri School of Journalism, USA. Yogesh Pawar is a journalist based in Mumbai. This reportage was supported by the Thakur Family Foundation. The Thakur Family Foundation has not exercised any editorial control over the contents of this report.)
Clarification: The 2103 PEMSRA while defining “hazardous cleaning”, “scavenger” and 18 other key terms does not define “protective gear”. The description of such gear is only listed in the rules framed for the Act, which are not as widely circulated.