Print edition : June 17, 2005

The Supreme Court's intervention raises the hopes of lakhs of Dalit families seeking enforcement of the Act designed to eradicate manual scavenging and rehabilitation of people doing the work.

V. VENKATESAN in New Delhi

A sanitary worker of the Madurai Corporation dumps night soil in her cart.-K. GANESAN

IT was perhaps a piece of legislation aimed by the then Congress government at the Centre to stem the erosion of the party's Dalit vote bank. In appearance, the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, had everything to put the government's effort in a favourable light. It promised the eradication of a pernicious practice that only Dalits were subject to and thereby the restoration of dignity to the individual as enshrined in the Preamble to the Constitution.

Substantively, it was found necessary to enact a uniform law for the whole of India to abolish manual scavenging by declaring employment of manual scavengers for removal of human excreta an offence, and thereby ban the construction of dry latrines. This the Act sought to achieve by making it obligatory to convert dry latrines into water-seal latrines (pour-flush latrines). The Act was first enforced in the States of Andhra Pradesh, Goa, Karnataka, Maharashtra, Tripura and West Bengal and all the Union Territories. It was expected that the other States would adopt it by passing an appropriate resolution in the legislature under Article 252 of the Constitution.

As happens with any social welfare legislation, the political executive and the lawmakers were oblivious of the gap between the symbolism and the substance, thus defeating the very objective of the Act. Many States, including Uttar Pradesh and Rajasthan, are yet to adopt the Act and some such as Kerala and Nagaland assert that there is no need to adopt the Act despite data showing the existence of manual scavenging in these States.

As the hearing of a public interest petition filed by the Safai Karamchari Andolan and six other associate organisations and seven individual manual scavengers in the Supreme Court has revealed, the number of manual scavengers has increased from 5.88 lakhs in 1992 to 7.87 lakhs. Unofficial surveys estimate that there are over 12 lakh manual scavengers, of whom 95 per cent are Dalits who have the task thrust on them as a "traditional occupation". They are considered untouchables by the higher castes and are caught in a vortex of severe social and economic exploitation.

The petition, filed in 2003, pointed out that the practice existed in many States and was being continued even in public sector undertakings such as the Indian Railways. The petitioners sought enforcement of their fundamental right guaranteed under Article 17 (right against untouchability) read with Articles 14, 19 and 21 guaranteeing equality, freedom, and protection of life and personal liberty respectively. They urged the Supreme Court to issue time-bound directions to the Union of India and the various States to take effective steps for the elimination of the practice of manual scavenging simultaneously with the formulation and implementation of comprehensive plans for rehabilitation of all persons employed as manual scavengers.

During the recent hearing of the case on April 29, a Bench consisting of Justices S.N. Variava and H.K. Sema issued an interim order directing that every Department/Ministry of the Union government and each of the State governments should, within six months, file an affidavit through a senior officer who would take personal responsibility for verifying the facts stated in the affidavit. If the affidavit admits the existence of manual scavenging in the particular department, or public sector undertaking or corporation, then it should indicate a time-bound programme within which targets for liberation and rehabilitation of manual scavengers and their ultimate eradication is proposed to be achieved. The court warned the governments against making false statements in these affidavits. The interim order itself was an expression of the court's impatience with the dilatory and insensitive response of various States and the Centre to the petition.

In January 2004, the court had directed issue of notices to the Central government and the government of each of the States and the Union Territories. When it first heard the case last year, the court had before it the Report of the Comptroller and Auditor-General (CAG) submitted in 2003, evaluating the National Scheme of Liberation and Rehabilitation of Scavengers and their dependents which was being implemented by the Ministry of Social Justice and Empowerment since March 1992.

The conclusion of the CAG was that this scheme "[had] failed to achieve its objectives even after 10 years of implementation involving investments of more than Rs.600 crores". The CAG also found that although funds were available for the implementation of the scheme, much of it was unspent or underutilised. The CAG also noticed that there was "lack of correspondence between liberation and rehabilitation, and that there was no evidence to suggest if those liberated from the practice were in fact rehabilitated".

In the CAG's view, the most serious lapse in the conceptualisation and operationalisation of the scheme was its failure to employ the Act. However, even the Act as it stands today is hardly helpful in catching the offenders. Section 17 (2) of the Act stipulates that no prosecution for any offence under the Act shall be instituted except by or with the previous sanction of the executive authority. No wonder that there has been no single prosecution under the Act so far, even though the practice is widespread. S. Muralidhar, advocate in the Supreme Court and counsel for the petitioners, says: "In many cases, the executive authority itself is the violator of the Act and it makes no sense to make its sanction mandatory for prosecution." To ensure effective implementation of the Act, therefore, this section has to be amended suitably by Parliament, even if the Supreme Court facilitates a process of accountability.

Whatever the outcome of the case in the Supreme Court, the political class has so far displayed a lack of will to acknowledge the gravity of the practice and its own duty to eradicate it. Appearing for the Central government in the case on April 29, Additional Solicitor-General B. Dutta pleaded lack of resources to implement the law effectively. The court, however, took exception to the fact that money was being squandered without any results on the ground. In particular, the court disapproved of the attitude of the Railways in not indicating any time-frame within which it proposed to fit all the coaches with water-seal latrines.

The Railways, in its affidavit, has admitted that there are approximately 30,000 passenger coaches fitted with open-discharge toilets. "A proposal to fit totally sealed toilet systems is also under consideration and various technologies e.g. biological/vacuum/filteration etc. shall be tried out. However, no firm dates/time frame can be given for introduction of such system at this stage," the affidavit said. The Railways claimed that without the facility for concretising the platform tracks with the provision of washable aprons at all important stations, manual scavenging on track cannot be eradicated. It is clear that the Railways is perhaps the biggest violator the Act; yet none of the Railway Ministers so far has thought it necessary to provide funds in the Railway Budgets to implement the Act.

The National Commission for Safai Karamcharis, a statutory body, has in its reports pointed to the continued employment of manual scavengers and the operation of dry latrines by the various Departments of the Union of India, in particular the Railways, the Department of Defence and the Ministry of Industry.

In their replies to the court, many State governments have asserted that there are no dry latrines and no manual scavengers in their States. The CAG, on the contrary, has found that there were heavy unspent balances of the amounts released to these States towards identification, training and rehabilitation of scavengers under the scheme. Not all States have adopted the Act, and those who have done so have not enforced its provisions to achieve the desired results.

The case of Tamil Nadu is startling, the petitioners said in their rejoinder. Tamil Nadu asserted in its affidavit on August 5, 2004, that "manual scavenging has been completely eradicated in the State". The petitioner organisations, on the basis of their verification of this claim through surveys conducted between July and November 2004, found that in 12 districts and three town panchayats/municipalities/corporations, the practice was very much prevalent, and enclosed evidence with photographs. The petitioners, therefore, sought a strict view of the conduct of the State in the proceedings.

Bejawada Wilson, convener of the Safai Karamchari Andolan, would not accept that Dalits themselves were responsible for the continuation of this obnoxious practice. "It is a community which suffers this in silence as `its' task, not knowing that it is an offence," he said.

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