Opinion Delhi sewer death again shows our failure to eradicate manual scavenging

The Constitution mandates an end to caste discrimination and untouchability, but in reality, people from particular castes are dying in septic tanks, because they are expected to clean them, manually. Manual scavenging violates the fundamental rights guaranteed under Article 21 and the provisions of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 as well as the Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013, (hereinafter to be referred as the PEMSR Act).

There is also a landmark judgment, Safai Karamchari Andolan v Union of India (2014), in which the Supreme Court issued a slew of directions and suggestions to combat and end this practice across the country. Still, the government has failed to eradicate this evil practice.

On January 29 this year, the Supreme Court again passed directions in Dr Balram Singh v Union of India, banning manual scavenging and sewer cleaning in Delhi, Mumbai, Kolkata, Chennai, Bangalore and Hyderabad. The authorities have been asked to file an affidavit explaining what steps have been taken to prevent the practice in their respective (metropolitan) cities.

Till date, the implementation of the PEMSR Act itself is a problem in many parts of the country. Section 2(g) defines manual scavenger as: “A person engaged or employed….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.”

In the explanation provided to Section 2(g), clause (b) states that “a person engaged or employed to clean excreta with the help of such devices and using such protective gear… shall not be deemed to be a manual scavenger”. Though the clause prohibits manual scavenging, the explanation justifies the practice “if” clean with “protective gear”. This loophole is used by exploitative employers to evade liability, even though they are providing workers with what can hardly be termed as “protective gear”.

Despite the 2013 Act and numerous SC judgments, forget rehabilitation, there have been zero convictions, which clearly reflects the failure to enforce the law. Between 1993 and 2020, 1013 manual scavengers died, and a First Information Report was filed in only 465 cases. A majority of them were registered under Section 304 (which dealt with death by negligence) and others were filed as accidental deaths.

Countless families have lost their loved ones to the inhumane practice of manual scavenging, a tragedy compounded by the fact that only a minority of these families receive any form of compensation, let alone justice. The deaths of these workers are nothing short of institutional murder, given the lethal mix of toxic gases and hazardous conditions in sewers and septic tanks they are forced to confront.

It is not solely the responsibility of the government but also ours as citizens to address this grave injustice. While the judicial response has been commendable, it is imperative for citizens to actively protest and oppose manual scavenging. As the Madras High Court aptly observed in Safai Karamchari Andolan v Union of India: “The Court, as a protector and guarantor of fundamental rights, cannot remain a mute spectator in such cases, allowing the generational condemnation of an oppressed class to a life of poverty, ill-health, and indignity, in blatant disregard of their fundamental rights under Article 21 of the Constitution of India.”

The writer is a practising advocate at the Allahabad High Court