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#India – Critical analysis of the new Manual Scavenging Law #mustread

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Critical  Analysis of

The Prohibition of Employment

As Manual Scavengers and Their Rehabilitation Act, 2013

 

The Prohibition of Employment As Manual Scavengers and Their Rehabilitation Act, 2013 received assent of the President on 18th September 2013 and published in the Gazette of India on 19th September 2013.

It was felt by the Dalit Movement and like minded people that if the Act is enacted, it would eradicate the most inhumane practice of manual scavenging from the India. We have gone through the provisions of the Act and have certain concerns that may make the Act ineffective to address the issue of manual scavenging and it will continue to practice in .

Here, we have critically observed certain provisions of the Act and it`s implications on issue of  manual scavenging:

2 (1) (d) of the Act says : “hazardous cleaning” by an employee, in relation to sewer or septic tank, means its manual cleaning by such employee without the employer fulfilling his obligations to provide protective gear and other cleaning devices and ensuring observance of safety precautions, as may be prescribed or provided in any other , for the time being in force or rules made therunder;

Critique: This definition of “hazardous cleaning” in the Act will increase the incidents of entering the drainage/manhole to clean and consequently  deaths of manhole workers as the Act allows manhole workers to enter manhole provided providing protective gears. It is also a matter of serious concern that what type of protective gear and other cleaning devices will be listed when rules are framed.

Instead, manhole workers should be allowed to enter when it is required with full safety equipments like oxygen cylinder, torch, constant observance of manhole worker from computer etc. They must be provided professional training by training institute like fire brigade and only certified manhole worker will be allowed to enter when it is required with full precautions and safety devices.

2 (1) (e) of the Act says: “ insanitary latrine” means 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, before the excreta fully decomposes in such  manner as may be prescribed:

     Provided that a water flush latrine in a railway passenger coach, when cleaned by an employee with the help of such devices and using such protective gear, as the Central Government may notify in this behalf, shall not be deemed to be an insanitary latrine.

Critique: Indian railway is one of the major promoter of manual scavenging, and by this Act it is exempted from the definition of insanitary latrines. So, Indian railway will continue to practice manual scavenging. Water flush latrine in a railway passenger coach at railway stations will make some one to clean manually human excreta and practice will continue as prevalent at present.

2 (1) (g) of the Act says: “ manual scavenger” means a person engaged or employed, at the commencement of this Act or at any time thereafter, by an individual or local authority or agency or a contractor, for manually cleaning, carrying, disposing of, or otherwise handling in any manner, human excreta in an insanitary latrine or in 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, as the Central Government or a State Government may notify, before excreta fully decomposes in such manner as may be prescribed, and the expression “ manual scavenging” shall be construed accordingly,

Explanation.- For the purpose of this clause,-

(b) a person engaged or employed to clean excreta with the help of such devices and using such protective gears, as the Central Government may notify in this behalf, shall not be deemed to be a “ manual scavenger”.

Critique: The Act has addressed only an insanitary latrine or open drain or pit. Whereas, urbanization is rapidly increasing in India. Due to urbanization and lack of sufficient public toilets and individual toilets, open defecation is wide spread and consequently leading manual scavenging.

Besides, the explanation in the Act 2 (1) (b) has killed the soul of the Act and it has legitimized manual scavenging by stating that it can be done by using protective gears and other devices. Manual scavenging must be prohibited in any form.

4 (1) of the Act says: Every local authority shall,-

  (a) carry out a survey of insanitary latrines existing within it`s jurisdiction, and publish a list of insanitary latrines, in such manner as may be prescribed, within a period of two months from the date of commencement of this Act;

Critique: Here, the Act talks identification of only insanitary latrines. But, the Act does not mention of identification of spots where open defecation is done and consequently some one has to clean manually human excreta from the open spaces in urban areas.

Local authority have not willingness, time as well as expertise to conduct survey to identify insanitary latrines. There is also possibility that local authority will not identify actual numbers of insanitary latrines when insanitary latrines are constructed and maintained by the local authority.  The survey may be on paper by local authority. Instead, the task to conduct survey may be given to some professional designated agency.

Also, period of two months is insufficient for carry out survey of insanitary latrines.

4 (2) of the Act says: Without…… shall also construct adequate number of sanitary community latrines, within such period not exceeding three years from the date of commencement of this Act, as the appropriate Government may, by notification, specify, so as to eliminate the practice of open defecation in their jurisdiction.

Critique: So, the practice of manual scavenging from open defecation in most of the urban areas  will continue for three years from the date of commencement of this Act.

39. (1) of the Act says: The appropriate Government may, by a general or special order published in the Official Gazette, for the reasons to be recorded, and subject to such conditions as it may impose, exempt any area, category of building or class of persons from any provisions of this Act or from any specified requirement contained in this Act or any rule, order, notification, bye –laws or scheme made thereunder or dispense with the observance of any such requirement in a class or classes of cases, for a period not exceeding six months at a time;

Critique: This is a major gap in the Act as it empowers the Government to exempt the provisions of the Act. And consequently, manual scavenging will continue to prevail. It is very shocking that the most inhumane practice will be allowed to continue for six months in particular cases if Government intends to continue.

To sum up, the provisions of the Act are not intended to eradicate manual scavenging in any form. The Act talks more on insanitary latrines, open drain and pit while wide spread manual scavenging due to open defecation in most of the urban areas due to lack of sufficient sanitation, it does not address effectively. Manual scavenging practiced in Indian Railway and especially coaches in train will continue.

Besides, manually handling human excreta will not be considered as manual scavenging provided it is done by providing safety equipments. So, manual scavenging will continue and will expand. There are many loopholes with regard to definition of insanitary latrines, manual scavengers, the way survey to be done, implementing authority etc. The Act does not speak about actions to be taken on implementing authority for non implementation of the provisions of the Act.

Manual scavenging in any form and at any place must be stopped by the Act. It should not be practiced even providing safety devices. Safety equipments are to be provided to sweepers for their better health and dignity. While, manual scavenging is a undignified work and must to be prohibited  in any form. There should not be any exemption for effective implementation of the provisions of the Act. The Act has given sword to the Government that they provide devices and safety equipments to manual scavengers!!

 

Jitendra Rathod,

Janvikas, Gujarat

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