The constitution of India, when adopted was very clear on the need to abolish the practice of untouchability, which has been prevalent in India since the ancient times, by making it a fundamental right, it sought to eliminate the derogatory practice once and for all, enshrining it in article 17 of chapter 3 of the Constitution of India. It reads as follows:
Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of Untouchability shall be an offence punishable in accordance with law.
Through this article it was thought, going with buoyant mood of possibilities at that time that the problem of Untouchability as a social practice would cease in all its forms. What however was left out of its preview were those economic dimensions and the hygienic practices of the Indian people at large which made the practice acceptable, necessary and even demanded throughout society. What the article tried to do was give political rights to be free from untouchability, and free from any form of discrimination arising from the practice of untouchability, but left the economic right to be emancipated from the necessity which leads them towards the practicing of manual scavenging. The economic practices, which are primarily based on caste hierarchies prevalent within the India society, such as manual scavenging, the people practicing them come to be the untouchables. The problem then is that this special group of citizens is created by the play of economics and social politics, into the marginalised and the most downtrodden, their identity is based on the profession they are engaged in, which in turn is based on their birth.
In order to fully appreciate the process and the social dynamics involved in the creation of this set of people, who are engaged in the depraved practice of manual scavenging, the caste system as it operates through these dynamics must be understood. The caste system in India historically functioned as an organising principle for the society.it was a hierarchy based on the economic professions of the people. The system was divided primarily into four castes, on the top of the hierarchy being the Brahmins followed by the Kshatriyas, the vaishyas, and the Sudra as the lowest in the caste order. Further within these castes are many sub-hierarchies in operation, making the logic of its dynamics extremely complex and circular. When the basis for this hierarchy is the profession one is born into, thereby birth, the logic of its functioning makes it extremely difficult to move up the ladder without also leaving the ones caste behind. This logic in operation within these caste hierarchies, then makes the Sudra condemned to the lowest form of life within the social order.
Having detailed the caste hierarchy, it is important now to turn to the working of this dynamic with the Sudra caste, which is the space for the marginalised citizens being subject to further hierarchies and caste dynamics. It is within this space where the location of the oppressed is most depraved and humiliating, subject to the lowest of the lowest economic work and social standing, amounting to social invisibility. This is the space where the operation of the logic of caste creates the ‘Dalit’. The nearest sense that the word ‘Dalit’ can convey in the English language is ‘the oppressed’. In India, they are the outcasts or the untouchables. Within this logic of this kind of structural oppression, the paper aims to study the most marginalised within this space the’ Manual Scavenger’ in the light of the proposed Bill called ‘The Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012’ or PMRB 2012.
The adjective “manual scavengers’ is used to describe the people from the lowest of the caste bearers, who are engaged in the profession of cleaning human excreta from dry latrines and operating through the municipal disposal services and for private households. This practice of manual scavenging based on caste hereditary is something very peculiar to India. The caste system runs through all the religions, though it is of Hindu origins. The reason for this is that the people of other religions are converts from Hindu or at least most of them converted at some point in history. Even, after they converted they retained their caste only religion was different. We, therefore, find Dalits engaged in manual scavengers from all the religious groups and is not strictly confined to Hinduism. Though religious in origin it has acquired a social legitimacy due to the economic necessity and more importantly through the strict caste barriers, which act repressively not allowing any vertical social movement through its structure, without also losing the caste identity.
The Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012 prohibits employing a person as a manual scavenger and provides for the rehabilitation of people and their families currently engaged in the profession of Manual Scavenging. The bill seeks to curb the employment of these people as scavengers for the cleaning of the Human excreta in any form and from any place and by anyone or any organisation, government or private. The Bill seeks a blanket ban on the employment of Manual scavengers and also seeks to rehabilitate them. It goes on to set up various nodes to monitor and check the enactment of this Bill. The Bill defines Manual scavengers as:
A “manual scavenger” is defined as a person engaged or employed, at the commencement of this act or anytime 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 into an open drain or pit into which the human excreta from the insanitary latrine is disposed of, or on a railway track or any such spaces or premises as may be notified by the central government, before the excreta fully decomposes..
And an insanitary latrine is defined as
A latrine which requires human excreta to be cleaned or otherwise handled manually either in situ or in an open drain or pit into which the excreta is discharged or flushed out.
The definitions as per the Bill has been widened to include any form of the practice of scavenging human excreta from unsanitary latrines, the definition of which has also been comprehensive. The Bill, however, fails to delineate a workable plan for the rehabilitation of the people engaged in manual scavenging. It only states a cash assistance, giving off a plot of land and vocational training. It also puts the onus of rehabilitation on the employers to retain the employee by assigning them to other work at the same emolument as was being paid. It prohibits the construction of new insanitary latrines and the conversion of the existing dry latrines into sanitary latrines. There have been provisions made for a penal action of imprisonment and monetary fines of 1 Lakh and subsequent contravention of 5 lakhs. And, finally, the implementation and monitoring of the act has been givenNational Commission for Safai Karamcharis Act, 1993.
Having highlighted the main provisions of the Bill it will be fruitful to engage with it in the social space of caste dynamics. The parliament had enacted the Employment of Manual Scavengers and Construction of Dry Latrines (prohibition) Act, 1993, to check this increasingly dehumanising practice. However, the Act proved to be inefficient in dealing with this depravity. While the Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012, seems adequate in respect of identifying the problem and its operational space, it doesn’t spell out in clear terms how the rehabilitation will be carried out. Most of the provisions with regard to habitation are monetary and vocational training. The implementation of the Bill has been left to the arbitrariness of the state machinery, which was charged with the implementation of the Employment of Manual Scavengers and Construction of Dry Latrines (prohibition) Act, 1993. The results for which are far from satisfactory.
What the bill fails to acknowledge is the economic dimension of the Manual Scavenging which has in the first place made this practice rampant. The second fact that the bill fails to acknowledge is that of the rehabilitation of women and children and how the process for their employment will be enforced. The bill sees the primary member of the family be rehabilitated as male, while in reality about 95% of the Manual Scavengers are women and men mostly do the supervisory work. The most important part of the practice is the hereditary nature of the profession amounting to slavery. The issue is not the profession that the Manual Scavengers are engaged in, the issue is about the discrimination they face because of the profession while they have little opportunity of shifting to an alternative profession, because of rigid caste barriers. The issue, therefore, is about their right to live with self-respect, and a socially dignified life as full members of an equal society. This circular prison has to be broken which the Bill miserably fails to acknowledge. The logic of caste dynamics which imprisons Dalits to hereditary Scavenging has to be broken. The viciousness of this logic is the most powerful and self-sustaining social practice in India, which is not even remotely addressed by the Bill. The biggest challenge that the bill fails to recognise is the curse of untouchability, which flows from this rounded logic of traditional caste ‘Duty”, towards the upper castes.
It is a special kind of depravity that India engages in as a society where it chooses to repress the most vulnerable members of the society in the complex web of religion-social-political subtleties. This is the depravity that the Bill ought to attack, the Bill needs to do more to implement the fundamental right which abolished untouchability sixty-four years ago when the constitution makers penned article 17 and article 23 the right against exploitation of any form. Attacking only the economic relationship between the employer and the employee while leaving the social complexities untouched, the bill may end up creating more poor and vulnerable members of the society. While in Europe the practice of manual scavenging was killed with the advent of better flush systems and toilet technology in the early fifties, this result which the bills seeks to replicate will not be successful in India because it is embedded in the social dynamics of the caste system. There is little hope till such time as this dynamics of the caste system are left intact, which dehumanise the people of this nation, who incidentally are also the most vulnerable.
Employment of Manual Scavengers and Construction of Dry Latrines (prohibition) Act, 1993, failed to stop this scourge because of faulty implementation and general governance apathy. And, if the Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012 is pursued with the same kind of lethargy and apathy will do little to uplift and rehabilitate the manual scavengers. It may end up creating a contraband and rent-seeking officials, which in any case will harm the Dalits the most. The bill is also silent on the state of the health due to manual scavenging and the rehabilitation and medical treatment for those who are already affected with various virulent forms of viral and bacterial infections which affect their skin, eyes, and limbs, respiratory and gastrointestinal systems. Tuberculosis is very prevalent among these caste group who are engaged in Manual Scavenging.
The Scavenging people in effect are victims of bondage slavery which has not been addressed by the bill either. Their debt seem to go on forever because they receive a pittance of less than about Rupees 22 a day for their work (and even this payment can be irregular if they are employed as casual workers, as is the case with most municipalities, or their wages are not paid on time), manual scavengers are forced to borrow from upper-caste neighbours for whom they work, and end up in debt bondage. The rate of interest on their loans is usually 10 per cent, and few can afford to pay off the loan. Thus, the wages they would otherwise receive go towards the repayment of the loan, and they become totally reliant on the few pieces of bread they receive on a daily basis. Their poverty is so acute that, in desperation, some Manual Scavengers resort to separating out the non-digested wheat from buffalo dung.
Without addressing the issue of debt, gender sensitisation, and community assimilation the bill is unlikely to have the desired effect on the lives of the rehabilitated Manual scavengers. Since the problem is just not of the humiliating employment conditions they are forced to work in, but also of the attached social stigma they have to bear because of the profession they engage in. By simply banning the whole profession without the foresight for the assimilation of the retrieved scavengers into the society, the condition of the Dalits will only worsen. Though the penal provisions in the Bill seem adequate to check the violation of the provisions of the bill, the mechanism for enforcement remain the same – lengthy, unresponsive and as is the case with the current governance structures and an incompetent grievance redress processes.
The Bill makes the employing of people for the purpose for manual scavenging a crime but does not explicitly outlaw the practice itself. To be able to outlaw this inhumane practice of Manual Scavenging, the bill must first suggest an alternative to the economics of the profession. By simply declaring it as a criminal offence it does not serve the purpose to curb the practice. There have been many laws that have been passed by the parliament to protect the rights of the Dalits like the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, which have not been able to make much impact. The various acts dealing with Dalits have to be synchronised to speak the same language, and follow an aim of their rehabilitation to actually translate it on the ground within the social space. The redundancy of having multiple laws dealing with different aspects of the discrimination against them, only make the access to justice harder for the Dalits. It would do the government some good to simplify the legislation and create one umbrella bill including all aspects of the discrimination against them and also provisions for their rehabilitation into the mainstream of the society.
It would be ideal for the Bill to be looking into the assimilation of the Dalits into the mainstream of the India society by ways of community leadership. The practices which are discriminatory occurs with this social space. The reformation of this space needs to be looked into along with strong legal provisions for the protections of the Dalits. The patronising attitude of the government and the society at large has to be overcome. Though the legal enactments do make a difference in the societal perception of discriminatory practices, like it did in the case of the Abolition of the slavery Bill in England. However, they are often not enough. The government along with the society must do more to foster harmony and assimilatory attitudes between individuals. The practice of manual scavenging can be eradicated faster and more efficiently if the communities are held responsible for the practice occurring within their spaces of inhabitation. Community participation by the community members will serve well to sensitise the individuals towards a reconciliatory attitude to enable smooth rehabilitation of the Manual scavengers.
The Panchayats should also be involved actively in this process of social discontinuation of this heinous crime against humanity. The Panchayats being the first order of governance structure in India, the leadership role it can play in eradicating this menace must not be discounted. The Panchayats act both in the role of social and political leadership in the villages. The social acceptability of the need for the discontinuance of this practice has to come from there. It is here that the major interactions between people take place which actually change societal attitudes significantly.
The most pervasive and repressive element that plays a very large role in the continuation of this and other discriminatory practices against the Dalits is the sanctity of the religious discourse. Though in a secular republican state religion should not be directed in any manner by the state, in this case, there should be an exception. The state should call the leaders of all religions to partner with it in changing the perception of the Dalits as being outcast and getting into a dialogue stressing the redundancy of the caste system in the modern era. The whole idea of caste-based discrimination flows through the religious discourse, it would, therefore, be fruitful to engage aggressively with all shades of it. The sanctity that religion confers upon this practice can be reversed more effectively by the leaders of those practicing these derogatory practices with the sanctity of religion.
With regard to rehabilitation, the Bill needs to spell out the specifics that will be awarded to the rehabilitated Manual Scavengers. Some of the things that may be considered are:
- The women who form the majority of those engaged in the profession should be made the primary beneficiary of the rehabilitation award.
- There need to be strong incentives put in place for the Employers to help rehabilitate the people engaged in the profession. The incentives can be tax breaks, one-time rebate for those rehabilitated and recognition by the government through active media participation.
- The children of those rehabilitated should be given generous scholarships to pursue an education at the best institutions in the country. This avenue should be exploited to the maximum, and the provisions for the same should be included in the Right to Education too.
- New technologies of sanitation should be implemented vigorously where the rehabilitation of the Manual Scavenging people takes place, in order to avoid and relapse to the same profession.
- The Panchayats should be held accountable for the dry latrines not being converted in water based flushes.
- The land that is allotted should be agricultural, and property rights should be clearly marked out. It has been observed that having clear-cut property rights does lift people out of their poor lifestyle and help them assimilate and improve their social standing.
Former Prime Minster Dr. Manmohan Singh has on several occasions termed Manual Scavenging as the shame of the nation. So have other political leaders, now there is the awareness that the practice is the most deleterious to human health and dignity. But, till such time as we as a nation are not able to convert these words into action much remains to be desired. The Bill though noble in intent and serious in thought will not achieve its desired result if it continues to focus on the penal provisions and vague rehabilitation programs. It needs to recognise the heart of the problem and locate it in the lived community spaces. The observations that have been outlined above in tandem with the provisions of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012, will be better suited to the social diaspora of India.
It is a time for reckoning for us as the citizen in a democracy, that even after 70 years of the enactment of the constitution of India we have been unable to wipe out discrimination and inequality from our society. In a liberal democracy, the true measure of its success flows from the equality before the law, freedom, prosperity and dignity it can afford to its most vulnerable A strong political leadership is required based on the principle of liberty, which can ensure the protection of rights of the most vulnerable, while also implementing a radical reform agenda. Till such time as that, we will have to work towards incremental reforms like the present Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012.
 The constitution of India
 The Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012, chapter 1 section 2 (g)
 Ibid, Chapter 1 Section 2 (e)
 United Nations Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Working Group on Contemporary Forms of Slavery,27th Session, Geneva, 27-31 May 2002