A LEGAL STUDY ON UNREALIZED CONSTITUTIONAL MORALITY WITH REFERENCE TO MANUAL SCAVENGING IN INDIA By- Sachin

A LEGAL STUDY ON UNREALIZED CONSTITUTIONAL MORALITY WITH REFERENCE TO MANUAL SCAVENGING IN INDIA

Authored By- Sachin

BA.LL.B (Hons.) Kurukshetra University, Kurukshetra

LL.M.  from Gujarat National Law University, Gandhinagar

Specialisation in LL.M  ( Constitutional and Adminstrative law)

Abstract

Article 17 of the Indian Constitution prohibits all forms of discrimination against individual in the country. But, the vision of the forefathers of the Constitution was not met till lately. It was breached time and again and the judiciary or the legislative had to intervene to restore the constitutional morality which was envisaged in the making of the constitution. Manual Scavenging is one such form of discrimination which is still prevalent in the Indian societies. The government in the year 2013 enacted an act namely, The Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013. In terms of a broader spectrum, this inhumane practice casts an indelible blot on the face of a social structure which prides itself in the possession of a now largely faded cultural diversity.  The Apex court of the land in catena of judgements have restored the principle of constitutional morality. But the legislation enacted in 2013 has not been able to do justice wholly to the Constitution. The present research paper will deal with Constitutional principles on Manual Scavenging and commerciality of it in the present area, A jurisprudential view will be approached to substantiate the arguments put forward.

Keywords: Constitutional Morals, Manual Scavenging, Human Rights, Liberty, Fundamental Rights.

Introduction

India, there are constitutional and legislative prohibitions on “untouchability” and manual scavenging. However, women and men continue to be engaged in manually cleaning human excrement from private and public dry toilets, open defecation sites, septic tanks, and open and closed gutters and sewers. They usually embark upon manual scavenging because of traditional caste-based roles that leave them few, if any, alternate employment options, a situation perpetuated by poor implementation of laws and policies prohibiting this practice.

Manual scavengers are usually from caste groups customarily relegated to the bottom of the caste hierarchy and confined to livelihood tasks viewed as deplorable or deemed too menial by higher caste groups. Their caste-designated occupation reinforces the social stigma that they are unclean or “untouchable” and perpetuates widespread discrimination. Women usually clean dry toilets, men and women clean excrement from open defecation sites, gutters, and drains, and men are called upon to do the more physically demanding work of cleaning sewers and septic tanks.While the central government enacts laws, state representatives in panchayats, elected village councils, and municipal corporations too often not only fail to implement prohibitions on manual scavenging by private households, but also perpetuate the practice.[1]

As the practice is still prevalent, the research paper will discuss the meaning and the existence of the Manual Scavenging in India. The paper will deal at length the constitutional safeguards and the steps undertaken by the government at different times at different levels for the upliftment of the status. The theme of the paper resolves around the constitutional morality as the spirit of the constitution is lost if the practice is practiced in any part of India.

Manual Scavenging: The 21st Century Slavery

The term ‘manual scavenger’, according to the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 refers to “a person engaged or employed … 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.”[2] In India, the issue of untouchability is there in India since ages. Manual Scavenging in India is a by-product of the such issue. In India, the caste system existed and the derivation was based on the work undertaken. This was also prevalent in the modern India. Manual Scavenging means manully cleaning the excreta of humans.

The International Labor Organization (ILO) distinguishes three forms of manual scavenging: 1) removal of human excrement from public streets and dry latrines, 2) cleaning septic tanks, and 3) cleaning gutters and sewers.

Women engaged as manual scavengers’ face pressure from the community and family to continue this practice because their households have few other options for livelihoods. These are often the poorest and most marginalized communities in India, where even food security is a serious challenge.While men from manual scavenger communities may work as day laborers, their income is unreliable.

The condition of the working man is no different, as they can be seen entering the drain holes wherein hazardous gases are dispersed in abundance, carrying almost non-existent safety gear. With this kind of ignorance towards their health concerns from both public and private stakeholders, safety hazards are augmented, leading to a slew of working place deaths among the manual scavengers. It has been reported by the Rashthriya Garima Abhiyan and Ministry of Social Justice and Empowerment that more 620 number of workers have died since 1992 while handling such waste matter.[3] The problem does not end here, infact it is just the starting point. Due to the nature of the work and genealogical map of these castes, working men and women are not offered opportunities elsewhere, forcing them to continue working around this age old evil. IndiaSpend report has stingily documented, that the two largest employers of the Manual Scavengers are the Railways and Local Municipalities, both of which are public bodies under the realms of the State.[4]the Swatch Bharat Abhiyaan scheme has infact caused more blunder than protection. Most of the toilets, urinals and latrines constructed under the scheme are in shambles with some of them being undernourished with water supply and the rest being completely dry, causing these workers to handle such spaces with their bare-naked body. The condition of these spaces is so worse. The Act in itself is no solution as certain castes like Arunthathiyars, Chakkiliyars, Pallar, Paraiyar, and Kattu Naicker in Tamil Nadu, others like Mukhiyar, Thoti, Chachati, Pakay, Relli in Andhra Pradesh[5] and Mehtar, Bhangias, Halalkhor, Ghasiin Rajasthan[6] etc. are continuously embroiled in the problem, certainly showing that the implementation of the provisions of the Act is not being carried out by the relevant authorities

Constitutional Framework for the

Abolition of Manual Scavenging

India’s Constitution bans the practice of untouchability, and the Protection of Civil Rights Act, 1955, prohibits compelling anyone to practice manual scavenging. Aimed specifically at ending manual scavenging, The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 (the 1993 Act), declared the employment of manual scavengers and construction of dry toilets to be punishable with fines and imprisonment. Superseding the 1993 Act, the 2013 Act goes beyond prohibitions on dry latrines, and outlaws all manual excrement cleaning of insanitary latrines, open drains, or pits. And, importantly, it recognizes a constitutional obligation to correct the historical injustice and indignity suffered by manual scavenging communities by providing alternate livelihoods and other assistance.the authorities themselves employ Manual Scavengers and that there is no ‘Check-Balance Mechanism’, ‘Penalties’ ‘Punishment’ under the 2013 Act when it comes to personal in public departments and offices employing these scavengers.

Despite a 2013 law prohibiting employment of manual scavengers, a government survey identified 54,130 people engaged in this job as of July 2019. The figure is understated as the survey was carried out only in areas where “there are reasons to believe the existence of manual scavengers”. The survey was conducted in 170 districts in 18 States.

814 deaths of manual scavengers engaged in cleaning sewers and septic tanks have been recorded in India from 1993 to July 2019 in 20 States and UTs. Of these 20 States, details of compensation received by the family of the deceased is available for only 11 States. This indicates the possibility of underreporting in the number of manual scavengers identified and the number of deaths.[7]

Constitutional Morality In Dilapidated Systems

When Ambedkar denounced this practice, he called it as a war against denialism of casteist ideals and sowing in the seeds of constitutionalism.[8]Ambedkar later goes on to talk about ideas of ‘composite’ whole (something that looks organic) and a recurring notion of ‘classless society’.[9]

For a layman, the convulsions from the above will dilute even the last bit of faith on moral considerations but it’s exactly what constitutional morality tries to safeguard. TheProtection against Untouchability under Article 17 of the Constitutionand other statutes like the Forests Act, SC/ST Act, 1993 Act and 2013 Actare nothing but extensions of the constitutional morals of equality across all castes, class and race.[10] Though the implementation of these principles remains a hurdle in the words of Upendra Baxi who quotes,

“Nor have the Bar and the Bench, and the mushrooming legal aid and advice programmes shown any awareness of the exploitative conditions of work imposed upon the scavengers and sweepers under the employment of municipal corporations or related local bodies… [T]he exploitative conditions of work constitute governmental defiance of the law and the Constitution, which can be best summed up as a crucial component of overall governmental lawlessness in the country since Independence.”[11]

Baxi remains in ‘no-confidence’ position with the constitutional machinery of the State, the aim being to question the government and its organs, not the constitutional wisdom being housed in the morals. Justice Mishra in the case of Navtej Singh Johor v. Union of India[12] has famously laid down a four bracket system for Constitutional Morality and its confluence with Individual Rights, namely Liberty to an Individual with Characteristic Autonomy, Right towards Privacy, All Equality and No Discrimination and finally Recognition of an Identity which binds Dignity. This is because when we deny Manual Scavengers, their dignity, in terms of identity recognition, we are creating a system in ignorance of Constitutional morals which harbours the free spirit of liberty alongside dignity. Dignity is reflected throughout the Constitution but hardly applied in the issue of Manual Scavenger when it comes to quantification of rights vis-à-vis commercial requirements of the State. Another distinction was made to morality but rather in terms of political philosophy by John Rawls and Robert Nozick. Rawls seeks a distributive principle engulfing a basic structure and well-ordered society with firm convictions of equal basic liberties, rights, fair value of political liberties and equality of opportunity. In this order, Rawls wanted to achieve distributive justice by removing the inequalities and infusing a cooperative system with the aid of the State, the basic tenet of morality remaining same throughout. By a far more disturbing analogy, Robert Nozick predicaments rests on maintaining inequality to achieve a balance of interests within the market governed by a De-Minimis Stateandopen competition which inadvertently leads to far more imbalance, than balance based on morality.[13]

Some of these differences are the exact reason as to why some communities are being coerced into the pit.

Even after being prohibited in 1993 and 2013, MS continuous to remain as widespread as it was before with figures/estimates being grossly unreported.

It is also important to know that under the Acts of 2013 and 1993, the legislature envisaged a prohibition on the evil of MS through Section 5, 6, 7 under the earlier and Section 3 of the latter. While this remains commendable but there exists several lacunas in the respect of these Acts which are yet to be rectified, even though a 2018 petition by ChangeIndia aspired to do the same and thereafter the verdict of the Madras High Court for the first time laid the foundation of state’s liability in promoting MS and obtain commercial benefits out of costs saved in employing Manual Scavenger.[14] In the case of SafaiKaramchariAndolan v. Union of India and Ors.

The court took note of the fact that the State and Private Individuals/Companies have long been involved in this exploitation and therefore imposed costs on them and called for strict implementation of the compensation policy under the 2013 Act, yet it failed to expound on the state and its Organs inherent duty towards inculcation of Affirmative Action and prohibition of Moral Turpitude.

The Judiciary and the Legislature has time and again failed to deliver on the promises, reason being their own involvement in this exercise. As it has already been stated before that Manual Scavengers are involved in both Railway and Court Premises, the whole point of seeking validation from these organs seems a futile process. To be specific on this agenda, one can refer to the 1993 and 2013 Act. Both the Acts call for State Machinery and Railways to prepare rolls, collect data, maintain neutrality and prohibit Manual Scavenging under Section 13, 14, 16, 17, 18, 19 and 33 of the 2013 Act and 5, 6 and 7 of the 1993 Act, yet there is no hard and fast rule/provision/section in terms of prosecution, imposition of penalties and accountability of public entities like Railways[15] and Municipalities[16] under the Act. The only prosecution that can happen is against a private individual and private companies, which is also limited to damages.  In such nature of circumstances, Railways and Municipalities have come out as the largest violators of the legislations prohibiting MS in all surveys.[17] Most of the Manual Scavengers employed in the State/Government agencies are temporary/part-time as registration on the employee roll is prohibited. This provides leeway of costs and savings for these agencies and its individual stakeholders, leading to more exploitation and corruption.

Hence, it can be concluded that Railways/Municipalities/State Agencies should be strictly brought under the purview of the Act so that the State can be held accountable for the gross miscarriage of justice.

The condition of the working man is no different, as they can be seen entering the drain holes wherein hazardous gases are dispersed in abundance, carrying almost non-existent safety gear. With this kind of ignorance towards their health concerns from both public and private stakeholders, safety hazards are augmented, leading to a slew of working place deaths among the manual scavengers. It has been reported by the Rashthriya Garima Abhiyan and Ministry of Social Justice and Empowerment that more 620 number of workers have died since 1992 while handling such waste matter.[18] The problem does not end here,in fact it is just the starting point. Due to the nature of the work and genealogical map of these castes, working men and women are not offered opportunities elsewhere, forcing them to continue working around this age-old evil.

Conclusion

Since, the enactment of the constitution, Article 17, which abolishes every form of untouchability in India, is not effective as expected. The horizons between the social haves and have-not was aimed to be reduced with the spirit of the constitution which speaks of liberty, justice and equality. But, it can be concluded that neither the gap or the difference has been reduced nor the constitutional morality has been achieved. The present era law makers too tried their hand by incorporating legislations to curb the practise, but in till today the practise is prevalent. The apex court of the land too tried their hand to lend hands to the neglected people of the society. So, this can be seen that all the three organs of the government provided assistance to the untouchable but the efforts are some how in vain. In india, the concept of manual scavenging is till prevalent in India as around 50,000 people are instil engaged in the practise. Till the number of the people reduces to the lowest digit in the numerical, the morality of the constitution will be defeated every day.The right to be free from manual scavenging is an economic, social, and cultural right. Over the years, various movements and organisations have been established to abolish this despicable practice, including an Act. As also, stated by the National Advisory Resolution Council, 2010, Manual Scavenging is the worst surviving symbol of untouchability. Till, the act ends in itself, we will see the constitutional gets defeated every day. The way forward is by implementing schemes at the grass root level, it is the third tier of the government which will help in the eradication of the issue.

[1]https://www.hrw.org/report/2014/08/25/cleaning-human-waste/manual-scavenging-caste-and-discrimination-india

[2]Section 2(g), the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013

[3]Ministry of Social Justice and Empowerment, Manual Scavenging Report 2018.

[4]Radha Patankar, Jobs Outlawed, But State Main Employer Of Manual Scavengers, Report IndiaSpend (November 2015)

[5] Abhishek Gupta, Manual Scavenging: A Case of Denied Rights, ILI Law Review, Summer 2016 Issue.

[6] Id.

[7]Sumita Sen, Data: Manual scavenging exists in India despite being outlawed in 2013, The Hindu

[8] Upendra Baxi, How Not to Recall an Icon, https://indianexpress.com/article/opinion/columns/how-not-to-recall-ambedkar-2758030/ (21:05, 30th July 2019).

[9] B.R. Ambedkar, Annihilation of Caste, Speech at Columbia University, Undelivered, December 12, 1935.

[10]Beteille, A., 2008. Constitutional morality. Economic and political weekly, pp.35-42.

[11]Upendra Baxi, Untouchability: Constitution, Law and Plan, in Law and Poverty: Critical Essays 165-174.

[12]WP (Crl.) 100/2018.

[13] Collin Farelly, Contemporary Political Theory, Sage Publications, 2004.

[14] Change India vs Government of Tamil Nadu, W.P.No.25726 of 2017.

[15] Section 184, Railways Act, 1989.

[16] See various Municipalities Act of the respective State which permits scavenging within the Jurisdictional limits of a Municipality; See Also Anita Inghole, Scavenging For The State, EPW, Vol. 51, Issue No. 23.

[17]Supra Note 6.

[18]Ministry of Social Justice and Empowerment, Manual Scavenging Report 2018.