The absence of a statutory obligation to provide sanitation services by state agencies creates a situation where the rights of manual scavengers hang in the air.
ARKAJA SINGH and ADITYA UNNIKRISHNAN 26 February, 2020 11:33 am IST
Discussions about water, sanitation, education, health, nutrition and housing programmes are often focused on the quality of welfare policy, and on budgets and implementation. And rightly so, because this is the essential work of any government. The conceptual idea of social and economic rights, however, provides another way to look at the basic human conditions necessary to live a life of freedom and dignity.
Legal systems of democratic societies tend to endorse the idea that civil and political freedoms are necessarily accompanied by some notion of social and economic rights. Starting from the 1980s, in judgements, Indian courts expanded the ‘right to life’ guaranteed in Article 21 of the Constitution into a right to life with dignity, and read several social and economic rights as underlying determinants of the right to life with dignity.
In the process, Article 21 was enlarged into an umbrella for all sorts of constitutional protections. It is perhaps for this reason that the rights interventions by Indian courts are most useful in circumstances of egregious suffering, and not for comprehensive management of low-grade deprivations. We see this in manual scavenging cases.
The term ‘manual scavenging’ refers to the practice of manually carrying human excreta. In the past, this referred to the practice of removing excreta from dry latrines, but modern sanitation technologies brought, in addition, new forms of manual scavenging work, which include manual and unsafe cleaning of drains, sewer lines, septic tanks and latrine pits.
Also read: 282 deaths in last 4 years: How Swachh Bharat Mission failed India’s manual scavengers
Judiciary’s intervention
The practice of manual scavenging, in so far as it was related to dry latrines, was banned by law in 1993, but this had little impact on the ground. In 2003, Safai Karmachari Andolan (SKA) filed a petition in the Supreme Court, asking for the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 to be implemented. SKA also asked the court to declare manual scavenging violative of right to equality and right to life, and to declare the practice as a form of untouchability and forced labour, both abolished by the Constitution. For eleven years, SKA was able to convince the Supreme Court to treat the case as a ‘continuing mandamus’, by which it could call state agencies to account for disregard of the law. The very small and under-resourced SKA could leverage the might of the Supreme Court to draw attention to the heinous practice of manual scavenging in India.
Cases were also filed in the Gujarat High Court in 2004, in Delhi in 2007, and in Chennai in 2008, in which various petitioners drew the courts’ attention to manual scavenging and sewer deaths. Notably, at that time, the 1993 law only covered dry latrines-related manual scavenging, but the courts had no difficulty in extending the logic of prohibiting manual scavenging to sewers. The Gujarat court observed that in the absence of specific law, Article 21 was there to protect civic workers. About the Delhi case, the Supreme Court said it was the constitutional duty of courts to protect the rights of those who for economic compulsion enter manholes for cleaning work. There was no doubt that this was an issue of fundamental rights, and accordingly, the courts could direct state parties to take all measures to eliminate human entry into sewers.
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In all of the cases, the courts were strongly influenced by news reports of the deaths of sewage workers. During the period when these cases were running in the courts, Indian activists were also able to mobilise the international human rights community to push for the legal recognition of manual scavenging as a human rights issue. How much these influenced the courts is not always apparent in the judgments, although they helped perhaps in providing legitimacy for the courts’ interventions.
The Chennai water board identified all the possible situations in which manual entry was unavoidable, and took stock of all the safety equipment that it had for such situations. It explained to the court that steps were being taken to ensure that sewage operations were mechanised. In the Gujarat case, the court asked for speedy measures to mechanise sewage operation and to provide safety equipment. In the Delhi case, which is still ongoing, a defiant and evasive water board has more or less held off on the possibility of laying down binding principles to which it could be held accountable.
Also read: Someone has to go to jail: Delhi HC must put onus on state for manual scavengers’ death
Making state agencies responsible
The cases prodded the government to bring in a new and more comprehensive law in 2013 (the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act), which covered many of the principles that were being developed in the cases. A principle for compensation was also established by the court — Rs 10 lakhs was payable for each and every case of sewer death since 1993 – and the state is responsible for payment of compensation regardless of whether or not the worker had been employed or contracted by the state. This is significant because it is estimated that around 80 per cent of our population make do without any state-provided sewage (or equivalent) service. Existing sewers and drains are so badly managed that blockages and overflows are often addressed privately by workers contracted by those local people who are directly inconvenienced. For this reason, the deaths are not necessarily linked, in an operational sense, to any activities of the state agency concerned.
On the other hand, it has been practically impossible to use manual scavenging laws where there is no physical evidence in the form of a dry latrine or the dead body of a worker. In other words, routine manual handling and sewer entry, or the continuous violation of the rights of workers are a bit harder to fix. The absence of a statutory obligation to provide sanitation services on the part of state agencies creates a situation in which the rights hang in the air, ineffective against everything but the worst violations.
Also read: These technologies can end manual scavenging and save lives of sewage workers
The manual scavenging cases, and the laws that followed, are significant for what they achieve, but their failures point to the importance of working on the everyday life of rights, encompassing, in this case, the rights in relation to municipalities and water boards. We need to be able to make these state agencies accountable for equity and justice in the discharge of their operations. Article 21 and the higher judiciary are not very effective on this score, which is a problem of capacity and of jurisprudence. There are, on the other hand, organisations, activists and local networks scattered across Indian cities that do just this, and we need to extend our work to see how rights fare in the interface between the local state and people.
Arkaja Singh is a fellow at Centre for Policy Research (CPR), Delhi. Aditya Unnikrishnan is a research associate at CPR. Views are personal.
This series of articles is a curtain-raiser to the CPR Dialogues, an international conference on public policy, to be hosted by the Centre for Policy Research on 2 and 3 March in New Delhi. ThePrint.in is the digital partner for the conference. Read all the articles in the series here.
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