Which Closed Doors Does Namaste Knock?

AKHIL SURYA assesses the Social Component and Working of Existing Laws.

INTRODUCTION

In a written response dated 2^ndAugust 2022 Ramdas Athawale,Minister of State for Social Justice and Empowerment, responding to a question in a Rajya Sabha session, had stated that no instances of death during manual scavenging have occurred since the last five years. ¹The Minister of State had stated the same in July 2021². As promising as the statement sounds in the wake of scheme making saga the Centre had embarked upon, the reality is far from any ray of hope. One such addition to the ambitious schemes is the new National Action Plan for Mechanised Sanitation Ecosystem (NAMASTE). ³This development demands revisiting the existing laws and involved social components. This article strives for achieving that purpose precisely. After a brief introduction to the root of the problem and analysis of the legislations, I shallevaluate the scheme’s objectives and viability.

The official data lets the real number of manual scavengers remain obscure. Key reports made by various independent organizations reflect a stark gap between the purported numbers and the real numbers.A recent study by Dalberg Associates estimates around 5 million manual scavengers in urban India alone⁴, while the admitted number of the state remains 43,797. ⁵The seemingly large gap comes from the difference between the understanding of who manual scavengers are, and thus, is buried under a simple technicality⁶. It is firstly necessary to understand who the state leaves out on.

LEGISLATIVE BACKDROP

The fundamental rights enshrined under Part III of the Indian Constitutionabolish the practice of untouchability (Article 17) and guarantee to everyone the right to lead a dignified life (Article 21). ⁷Legislations enjoying near constitutional status like the CivilRights Act of 1955⁸ and SC ST (Prevention of Atrocities) Act of 1989⁹ could do little for the manual scavengers and perhaps so for the bigger problem-abolishment of caste-based discrimination. The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act was enacted in the year 1993, after 43 years the Constitution had been enacted. ¹⁰The 1993 Act, which prohibits manual scavenging and penalizes any ‘person or authority or municipality’ employing one to manually scavenge,defined manual scavengers as those engaged or employed in getting in contact with human excreta at insanitary (dry) latrines. The evidently narrow definition was inadequate on the paper itself. Further, not even one case of conviction for violating this Act had been reported so far.It was not until 2013 that the state had felt the need for a better framework encompassing broader categories of what constitutes manual scavenging. The Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013defines ‘manual scavenger’ as a person engaged or employed by any person or authority for manually handling human excreta only in insanitary latrines, open drain/pits into which the excreta from insanitary latrines reaches, and railway tracks (§ 2 (g)).¹¹ Though comparatively wider than the 1993 Act, this Act comes with different loopholes. The definition of manual scavenger per se excludes persons who are engaged or employed with the help of devices and protective gear the Central Government may notify (Explanation (2) to § 2 (g)). This would mean that a person working with a pair of gloves and hat might not qualify as a manual scavenger.

The proliferation of urbanization brought in newer systems of sanitation networks and waste management. The existence of dry latrines (without a ‘flush’ so to say) is long gone in urban India. Indian cities nowhave interconnected sewers and separate septic tanks.¹² Nonetheless, personsare often employed, by municipality authorities and private house owners through unknown middlemen, to clean these sewers and septic tanks whenever needed. ¹³Given the definition of manual scavenger under the 2013 Act, does this mean thatpersons engaged in cleaning sewerage lines, septic tanks, and manholes are not protected by the Act? The answer is both a yes and no. The Act makes a separate category called “hazardous cleaning”. It means manual cleaning by a person in relation to a sewer or septic tank without protective gear and safety precautions. On one hand, the Act prohibits hazardous cleaning under § 7 of the Act and provides for a stricter penalty under § 9. On the other hand, the Act, unlike for manual scavengers, does not provide for identification and rehabilitation of these persons. In effect, nothing in Chapter IV of the Act shall apply to persons manually cleaning sewers or septic tanks. Now it seems that the statement of the Minister of State was, after all, not fallacious. The statement squarely embodies this distinction to legitimately hold that no manual scavenger has died but admits deaths of persons cleaning sewers and septic tanks. But in common parlance, manual scavenging is an all-encompassing phrase including any such menial work. The Act does well in hindsight to serve its own purpose to phrase these definitions differently to give different level of protection.

ASSESSMENT OF THE INVOLVED SOCIAL COMPONENT &WORKING OF THIS LAW

It would be wrong to say that the 2013 Act had achieved the object it seeks to achieve. ¹⁴The National Crime RecordsBureau had stopped publishing any data of prosecutions or convictions under this Act. ¹⁵Provisions relating to identification and rehabilitation under the parent Act, supplemented by Rules made thereunder, were kept at the bay by the implementing authorities.¹⁶ The problem is not merely of lazy inaction by the instrumentalities. It is of well-conscious but deliberately ignorant mindsets and entrenched social structures. When 97% of the purported 43,797 manual scavengers are admittedly from Scheduled Castes and Scheduled Tribes, ignoring the caste question would be fooling oneself.¹⁷ Menial tasks such as cleaning latrines, picking up dead bodies, making leather etc., have been assigned to these communities by birthsince time immemorial in the Hindu societies.¹⁸ The notion of ‘pure’ and ‘polluted’ separating the savarnaand avarnanaturally asks for a system of untouchability.This practice had transcended the confines of Hindu religion and now is a characteristic trait of Indian society irrespective of religion. Annihilation of caste and liberation of these long-oppressed peoples, like Ambedkar envisioned¹⁹, may not be a (near) possibility in India.At least, it is not for the law alone, including the 2013 Act,to do so.

The upper castes believe that the Dalits and other marginalized communities are meantto do these tasks and often take pride in leaving this work to them.²⁰ The forms that caste has taken todaydivides the ‘labourers’, as Ambedkar had then understood caste²¹ , and not ‘labour’ as Gandhi had imagined the compossibility of aspirations of different rungs of the society. ²²The 2013 Act recognizes the ‘labour’, not the ‘labourers.’ An Act that only recognizes the ‘labour’, cannot possibly eradicate the lines of division of labourers.Therefore, even after knowing the existence of a stringent law that totally prohibits manual scavenging and hazardous cleaning, persons and authorities largely flout this law as for them- traditional caste-based occupation system prevails over the law. This is a classic case of what KaushikBasu calls the “ink paper problem.”²³ Persons and agencies are not to be imagined as mere robots capable only of obeying instructions. When the involved actors are understood as rational actors not free from biases, preferences based on personal beliefs, and corruption, one cannot expect law to change behaviour. Nevertheless, some study groups, NGOs, and academicians have done a commendable job consulting and proactively working with local agencies for identification and rehabilitation of these peoples.

Secondly, a study had found that only 26% of manual scavengers know of the 2013 Act and for worse, only 20% know that manual scavenging is prohibited by law.²⁴ A near total lack of awareness of the very people who the law seeks to protect is absence of one of the fundamental internal moralities of a legal system as Lon Fullertheorizes.²⁵ Two relevant moralities of the eight moralities L. Fuller theorizes are that the law must be made known to its subjects and congruence between official action and law.The latter is tied up with the “ink paper problem.” Neither exist in this case as already shown. At the risk of repetition, it is highlighted that the law does not recognize sewer and septic tank cleaners as manual scavengers and remains oblivious to newer forms of waste management. Manual Scavenging and unprotected hazardous cleaning by unskilled labour, thus,continues to be an open practice in India. 472persons have died cleaning sewers and septic tanks from 2016 and 2020.²⁶ No provision exists for their identification and rehabilitation. Millions make a living out of getting in direct contact with human excreta in so called developed urban societies. 17 have died in 2022 alone because of inhaling toxic gases in sewers and septic tanks.²⁷ A rescue in the form of NAMASTE now awaits the helpless populace.

WHAT IS NEW IN NAMASTE?

The NAMASTE sets lofty goals to be reached by 2024 with a whopping budget of 360 crores.²⁸ It seeks to identify sanitation workers involved in sewers and septic tanks cleaning specifically. It takes off from where the 2013 Act had left deliberately. The action plan document does well to be modest and admit that the existing laws have served little purpose to the persons left out. The benefit of doubt may be given to the state that it could not have completely eradicated the practice of manually cleaning sewers and septic tanks. Viable mechanized alternatives exist now in 2022. The scheme strategizes modernization of existing sewage systems, equipping the municipalities and local bodies with machinery that can replace manual labour for this work, setting up a professional unit with mandatory safety gear which can respond to emergencies in absence of machinery, and compulsory licensing of private agencies (employers). It further seeks to streamline the identification and rehabilitation process of these sanitation workers and replace the Self-Employment Scheme for the Rehabilitation of Manual Scavengers (SRMS) in effect. Overall, the scheme sets up a three-tier institutional framework and a phased plan beginning with the AMRUT cities. Other details only add up to the vibrancy of this scheme.

WAY FORWARD

Given the constraints of this article’s scope and length, I highlight three major issues still rooted in the problem. Firstly, the scheme does not recognize the importance of alternative opportunities for these people it seeks to protect. These persons have grown into this work and barely know any other work. Any attempts at escaping the vicious trap at their own expense either remain futile as the stigma on them is indelible or end up further trapping them. Lump sum settlements by the stateare not enough if the object is to eradicate the practice. Alternate opportunities given must be immediate and direct so that these people do not end up stuck in the garb of poverty during transition of jobs.²⁹ The otherwise will disincentivize and discourage these workers to give up performing these dehumanizing tasks which nonetheless is a source of livelihood for them.

Secondly, rehabilitation measures must aim at humanizing these peoples back. The 2013 Act had categorically recognized the need to undo historical injustice and rehabilitate them to a life of dignity. The spirit must carry forward to the implementation of this scheme. However, humanizing these peoples back must not mean imposingchoices on them. ³⁰The state must adorn the gloves of welfare, not the crown of paternalism.³¹ A respectful space of self-expression must be the goal.

Lastly, an amendment to the Act including these people employed in “hazardous cleaning”under the definition of “manual scavengers” must be madeto extending the same statutory protections to these peoples. It is high time that the state erases its own made-up lines.

It is only realistic to not think too positively regarding the translation of this scheme into reality. Past experience shows more and bigger failures than successes. Therefore, it is hard to think that a framework setup by the state through a scheme will do what a legislative enactment could not do with a statutory framework. As I have already discussed, the congruence between official action and law is lacking when it is needed the most. Have I only taken you up the hill and stranded with no hope then? I believe not. Better mechanized alternatives available today show bright possibilities. These alternatives have workedwell in many societies far from ours.³² A dignity approach by the state rather than a functional sanitation approach must always be welcomed.³³ A central scheme explicitly recognizing the law’s inadequacy and setting up a framework of protection cannot be anything other than a steppingstone to a bigger success. The nation calls for proactive officers and individuals who can exhort each other for giving the long overdue dignity to lives of these marginalized people. This is the ringing bell at many closed doors!