The Supreme Court’s intervention has brought significant results in the Safai Karamchari Andolan case, but its final judgment belies expectations of a time-bound end to manual scavenging. By V. VENKATESAN
JUSTICE H.K. Sema, who retired from the Supreme Court on June 1, 2008, once observed that the court would not dispose of the Safai Karamchari Andolan’s (SKA) writ petition seeking justice for manual scavengers until the last manual scavenger in the country was rehabilitated. On March 27, a Supreme Court Bench comprising Chief Justice P. Sathasivam and Justices Ranjan Gogoi and N.V. Ramana, however, thought it fit to dispose of the petition, in the light of a few directions it issued, even though it admitted that the eradication of the inhuman practice was far from over.
The SKA’s writ petition (W.P. (C) 583 of 2003) has a chequered history. Filed as a public interest litigation petition, it prayed for issuance of a writ of mandamus to the respondents—the Union of India and the governments of States and Union Territories—to strictly implement the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, enacted by Parliament, seeking enforcement of the fundamental rights guaranteed under Articles 14, 17, 21 and 47 of the Constitution.
While bringing to an end this 10-year-old case which it has been monitoring, the court admitted that the practice of manually removing human excrement from dry toilets with bare hands, brooms or metal scrappers and carrying it to dumping sites for disposal was still prevalent in many parts of the country. The court further brought on record the fact that while there were over 12 lakh manual scavengers (unofficial estimates) cleaning 96 lakh dry toilets, 95 per cent of them were Dalits, who were compelled to undertake this denigrating task under the garb of “traditional occupation”. The court further found that the manual scavengers were considered untouchables by the mainstream castes and were thrown into a vortex of severe social and economic exploitation.
The court’s continuous monitoring of the case since 2003 has brought significant results. The 1993 Act was ratified by various States as a result of the court’s intervention. The Delhi Assembly ratified it as late as 2010. The State governments were also directed by the court to appoint Executive Authorities under the Act and to collect data and monitor its implementation.
The court noted with dismay that dry latrines continued to exist notwithstanding the presence of the 1993 Act and that States had acted in denial of the Act and the constitutional mandate to abolish untouchability.
Meanwhile, Parliament enacted “The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013”, and it received the President’s assent on September 18, 2013. The court observed that this new Act in no way diluted the constitutional mandate of Article 17 (abolishing untouchability), or condoned the inaction on the part of the Union and State governments under the 1993 Act. What the 2013 Act does in addition is to expressly acknowledge the rights under Article 17 and Article 21 (right to life and liberty) of persons engaged in sewage cleaning and cleaning tanks as well as of persons cleaning human excreta on railway tracks.
The court directed that persons included in the list of manual scavengers be rehabilitated as per the provisions of Part IV of the 2013 Act. These provisions require that initial, one-time, cash assistance be prescribed for them; their children shall be entitled to scholarship; they be allotted a residential plot and financial assistance for house construction, or a ready-built house with financial assistance, subject to their eligibility and willingness; at least one member of their family be given training in livelihood skills and be paid a monthly stipend during such period; and at least one adult member of their family be given a subsidy and concessional loan to take up an alternative occupation on a sustainable basis. While these directions will reinforce the legislative provisions, and therefore will be hailed by those seeking an early end to this undignified occupation, activists have expressed doubts about the judgment being misinterpreted by the authorities.
Use of safety gearAccording to the court, making somebody enter sewer lines without safety gear should be made a crime even in emergency situations. The court has held this while dealing with the issue of deaths resulting from entering sewer lines. The court was clearly incorrect in suggesting that use of safety gear by a manual scavenger could render the act of making somebody enter sewer lines legal and not a crime. The court clearly intended to bring to a close the practice of manual scavenging and prevent future generations from continuing with this. Therefore, how the court could justify manual scavenging with the use of safety gear is beyond one’s comprehension.
Bezwada Wilson of the SKA has brought to light the fact that the issue of use of safety gear by manual scavengers was not argued by either side during the hearing of the case. When the SKA raised the issue during the arguments, the court told the petitioner to confine the focus of the petition to the rehabilitation of the petitioner and challenge the requirement of safety gear separately, if required. Therefore, Wilson has expressed surprise that the court has mandated the use of safety gear by the manual scavengers entering sewer lines, without hearing the arguments against it.
The court’s award of Rs.10 lakh to the family of a manual scavenger who loses his life while entering sewer lines is a substantial enhancement of compensation from the previous award of Rs.5 lakh. But it unfortunately conveys the impression that the court considers manual scavenging inevitable, and that each death has to be compensated. Considered along with its suggestion to use “safety gear”, such an interpretation of the judgment is not misconceived. The court’s insistence that such award of compensation must be retrospective from 1993 and that the authorities must identify the families of those who died during sewerage work (manholes, septic tanks) to extend this benefit is praiseworthy.
Wilson said the SKA expected the court to continue monitoring the case, fix deadlines for violators like the Indian Railways to end the practice on the tracks, and even impose punishment on those found guilty. The court, however, justified the disposal of the petition, on the grounds that the 2013 Act occupied the entire field and that no further monitoring was required by it. Henceforth, it advised the aggrieved persons to approach the authorities concerned at the first instance and thereafter the High Court having jurisdiction.
Considering the history of the case, when the petitioners have had to approach the Supreme Court after exhausting the remedies available with the executive and the High Courts, Wilson is of the view that the Supreme Court’s judgment has only led to a new battleground for justice.
The journalist Bhasha Singh, in her book Unseen, whose English translation was published (Penguin) recently, has sought to expose how the authorities, including the Indian Railways, have been in denial mode about the practice of manual scavenging before the judiciary. The fact that the Railways do not directly employ most of its sanitary workers —they work on a contract basis and therefore their presence is not registered in any records—is used by them as an efficient smokescreen, she says in her book.
Out of 59,279 passenger coaches (of 12,000 passenger trains), only 504 are fitted with bio-toilets, and the Railways have no blueprint regarding their plan for upgrade, the book says.
It appears as though the Supreme Court has missed an opportunity to ensure the accountability of the Railways by fixing time-bound schedules for having bio-toilets in all passenger trains, as the latter is the biggest violator of the law against manual scavenging.
Printable version | May 1, 2014 1:52:12 PM | http://www.frontline.in/