Ensuring Compensation and Rehabilitation of Manual Scavengers
**Parth Khanna
I. INTRODUCTION AND CONTEXT
The recent Bombay High Court case of Shramik Janata Sangh, through its General Secretary and Others v. State of Maharashtra and Others (“Shramik Janata Sangh v. State of Maharashtra”) has once again brought forth the topic of effective implementation of the Prohibition of Employment of Manual Scavengers and their Rehabilitation Act, 2013 (“PESMR Act”).
For an Act to be effectively implemented, corresponding rules need to be notified. As mentioned in Shramik Janata Sangh v. State of Maharashtra, the non-notification of rules under the Act by successive Maharashtra state governments has led to the automatic coming into effect of the Central government’s Model Rules. Therefore, while the act defines, prescribes bodies for their identification, and rehabilitation, the rules prescribe the specifics of the functioning of these Committees, and so, will also be relevant.
Firstly, it seeks to analyse the implementation of the PEMSR Act and its’ Rules, with specific focus on the implementation of surveys to assess Manual Scavengers and the rehabilitation provided to the Manual Scavengers identified. It culls out a couple of issues and attempts to ascertain the causes behind these issues. For this purpose, the state’s claims as reported in its affidavit as well as the Rejoinder of the Petitioner in the Shramik Janata Sangh v. State of Maharashtra will be referred to.
Secondly, it seeks to propose a new definition of manual scavenging as well as a renewed framework for the better implementation of the PEMSR Act. The emphasis here will be on the institutions supervising the identification of Manual Scavengers and their rehabilitation.
II. PROBLEMS IDENTIFIED
1. Identification of Manual Scavengers:
To begin with, we shall proceed with the identification of manual scavengers. Now, if the contents of the state’s affidavits are anything to go by, then manual scavenging is no longer an issue. It states that the Collectors in all 36 Districts of Maharashtra have declared their districts free of manual scavenging. However, the affidavit seems to be riddled with contradictions and inconsistencies.
The affidavit itself mentions that 81 people lost their lives in the past 5 years while manual scavenging. Even districts that have recorded deaths of manual scavengers in the past 5 years have been shown to be free from manual scavenging. Additionally, the state of Maharashtra has very recently witnessed deaths of persons involved in cleaning septic tanks.
This clearly reveals the lack of crucial data possessed, or worse still, the state of denial of the government.
2. Inadequate Mechanisms for Ensuring Proper Compensation and Rehabilitation:
The PEMSR Act and subsequently, Balram Singh v. Union of India mandates that a compensation be paid to those employed in manual scavenging. 10 lakh rupees must be paid to those suffering disabilities due to manual scavenging, while the corresponding amount for permanent disabilities and deaths caused while doing manual scavenging are 20 lakh and 30 lakh rupees each.
Additionally, The Self Employment Scheme for Rehabilitation of Manual Scavengers (SRMS), was introduced in January 2017, to assist the identified manual scavengers and their dependents in rehabilitation in alternative occupations. The benefits of the scheme include a one-time cash assistance of 40,000 rupees, concessional loans for undertaking self-employment ventures and skill development.
Unfortunately, these benefits do not permeate down to the target beneficiaries. A survey by Rashtriya Garima Abhiyan, a coalition of organisations working to eliminate manual scavenging, conducted a pan-India study of 51 cases in which 97 people died of manual scavenging. It was found out that only in 16 of these cases was the adequate compensation amount provided. Even in Maharashtra, it has been observed that in many cases where compensation is received, it is only after intervention and strict directives by the Bombay HC.
Below, some of the reasons for inadequate compensation and rehabilitation measures will be delved into.
III. REASONS BEHIND THESE PROBLEMS
On the face of it, there appear to be three reasons for this. The first is in the different definitions for hazardous cleaning and manual scavengers in the PEMSR Act. The second is the implementation of surveys for identification of manual scavengers, and finally the third, overarching cause appears to be the lack of political will, as exhibited by the presence of weak oversight institutions.
1. Role of the Statute:
The statute differentiates between hazardous cleaning and manual scavenging in Sections 2(d) and 2(g). A manual scavenger handles, in any manner, human excreta in an insanitary latrine or in an open drain or pit into which the human excreta from the insanitary latrines is disposed of. Hazardous cleaning, while not exactly making a reference to human excreta pertains to sewer and septic tanks.
It appears that the Union government also seems to acknowledge this difference. In 2021, Union Minister of State, Ramdas Athawale presented data that showed that 340 people (reported from only 19 states/UTs) lost their lives while “cleaning sewers and septic tanks during the last five years”. However, later in the same year, he stated that no manual scavenger had died in the country in the past five years.
Notably, it has been widely acknowledged both by activists as well as the Supreme Court itself, that hazardous cleaning too deals with human excreta. In fact, Bezwada Wilson, the National Convener, Safai Karmachari Andolan (an organisation that has filed petitions before the court for the rights of manual scavenging) stated that there was essentially no difference and went to the extent of stating that “sewage and septic tank cleaners are also manual scavengers.”
It is relevant to note that those involved in “hazardous cleaning” are not entitled to the kind of benefits such as compensation and rehabilitation under this act that “manual scavengers” are. While the NAMASTE scheme (National Action for Mechanised Sanitation Ecosystem), designed for safe and mechanised cleaning, is applicable to them, the Self Employment Scheme for Rehabilitation of Manual Scavengers is not. This scheme is highly beneficial as it grants cash assistance, skill development training and health insurance to families of the identified manual scavengers.
2. Inaccurate Surveys:
Up till now, 2 surveys have been conducted on ascertaining the pan-India number of manual scavengers by the Ministry of Social Justice & Empowerment. Additionally, there is a provision for Municipalities and Panchayats to survey Manual Scavengers under their respective jurisdictions if they believe that there are persons engaged in manual scavenging under their jurisdiction.
With regards to the surveys in 2013 and 2018, the Supreme Court stated that these surveys were inadequate as they were not in compliance with the Act and Rules. The institutions were either not constituted or not functioning properly.
There is little reason to believe that surveys conducted by the local bodies for different districts in Maharashtra are accurate. These surveys have shown all 36 districts of Maharashtra to be free of manual scavenging. However, what is ironic is that, subsequent to these surveys, some of these very districts have recorded deaths of manual scavengers. Instances involve the Mumbai and Thane Municipal Corporations that conducted surveys in 2012 and 2018 respectively, but have reported deaths of manual scavengers subsequently.
3. Weak Oversight Institutions:
The district and sub-divisional committees, as well as state monitoring committee advise the respective authorities on the action to be taken for proper implementation of the provisions of the Act, the economic and social rehabilitation of manual scavengers and co-ordination of the functions of all concerned agencies. In Maharashtra, as per the affidavit of the state government, 155 out of the 180 Committees were formed in 2024 only, 11 years after the passing of the Act. The exact composition of these Committees is not revealed in the Affidavit. Furthermore, in 170 out of the 180 Committees, either no or only one meeting has taken place. Section 24(4) of the Act states that each District/sub-divisional Committee shall meet once in every 3 months. Clearly, these Committees are just an eyewash, and require major reforms.
IV. SOLUTIONS PROPOSED
The solutions proposed aim to achieve the twin objectives of accurate ascertainment of the number of manual scavengers, as well as rehabilitation and compensation to a maximum number of those.
1. Modification of Statutory Provisions:
In a way, the statute fails to fully acknowledge the issue it is trying to resolve, by providing a very limited definition of manual scavenging.
Manual scavenging has been limited to the “handling in any manner, human excreta in an insanitary latrine or in an open drain or pit” or railway tracks. However, it excludes the handling of human excreta by a person when they are in nexus to a sewer or septic tank, and the person is classified as hazardous cleaner. As stated earlier, this person isn’t officially acknowledged as a manual scavenger, and is disentitled from receiving benefits such as rehabilitation.
Their lives and dignity are also at grave risk, with Bezwada Wilson, the National Convener, Safai Karmachari Andolan (an organisation that has filed petitions before the court for the rights of manual scavenging) stating that there is essentially no difference between a manual scavenger and a sewage and septic cleaner. When the distinction was questioned before the Court, it only noted that the rehabilitation of hazardous cleaners was not provided by the statute, and did not get into the merits of whether the distinction between the 2 was justified as in the immediate case, there was no challenge to the provisions.
Therefore, the Union government must aim to expand the definition of manual scavengers to include those dealing with human excreta in varied ways such as those engaged in cleaning sewers. The erasure of this distinction by the Legislature will go a very long way in acknowledging the plight of these workers, and truly help in comprehensively achieving the legislative intent of the Act.
2. Strengthening the District, Sub-Divisional Vigilance and State Monitoring Committees:
As per the requirements under Section 24 of the PEMSR Act, the District Vigilance Committee approximately consists of 14 members, out of which around 8 members would be ex-officio ones such as the District Magistrate, local MLAs, etc. The rest constitute among others, social workers, representing the scavenger community (which has been capped at 4), that would be nominated by the District Magistrate.
The Sub-Divisional Vigilance Committee and State Monitoring Committee are also constituted on similar lines.
This means that a majority of these members are those holding memberships in these Committees as a result of their pre-existing status or posts held, while only a minority of members of these Committees are those representing or actively working in the domain of manual scavengers. There must be a serious consideration to re-constitute these Committees to ensure a more equitable balance between the ex-officio members (members of Assembly, bureaucracy, etc.) and nominated members representing manual scavengers and their interest groups.
3. Increase in the Powers of the Maharashtra State Commission for Safai Karmacharis:
The Maharashtra State Commission for Safai Karmacharis (“MSCSK”) is a 7-member commission (consisting of a Chairperson, Vice-Chairperson and 5 members appointed by the State Government from amongst the persons engaged in welfare of Safai Karmacharis). This has been done for upliftment, liberation, rehabilitation and monitoring of various welfare schemes for Safai Karmacharis (persons engaged in, or employed for, manually carrying human excreta or any sanitation work) in the State of Maharashtra.
Section 32 of the PEMSR Act gives the State the power to designate a State Commission for Safai Karamcharis to perform within the state mutatis mutandis, the functions specified in Section 31(1). These include the monitoring of implementation of the Act, suo-motu notice of matters relating to non-implementation of the Act, advising the government on the implementation of the Act, and enquiring into complaints and conveying its findings to the concerned authorities with recommendations requiring further action. In exercise of the powers, the Commission would have the power to call for information with respect to any matter from the government.
It is suggested that fresh surveys be conducted in each jurisdiction, with each of these surveys being supervised by the respective Vigilance Committees and under the overall oversight of the MSCSK. It must also specifically monitor the working of the respective Vigilance Committees, and ensure they are complying with the statutory requirements.
Furthermore, in exercise of its functions of monitoring the implementation of the Act and deal with applications of aggrieved persons, it must be granted additional powers such as call for any documents from any persons or the state government or its’ officials, as well as undertake site inspections. It must regularly report these to the respective governments and the High Court and make recommendations. Failure of government compliance of recommendations must be justified to it in writing.
While these powers may seem broad, there is precedent of the Central Empowered Committee with broad powers like these that was able to ensure great compliance to Environmental regulations.
V. Conclusion
As has been explained above, Maharashtra, contrary to what the state claims in its affidavit in Shramik Janata Sangh v. State of Maharashtra, has a lot of work to be done before it can claim to be free of the practice of manual scavenging. Through this piece, it has been attempted to understand how Maharashtra can firstly, at the very least ascertain an accurate number of manual scavengers and secondly, rehabilitate them adequately. The identification and rehabilitation of manual scavengers would go a long way in meeting the objectives of this emancipatory Act and finally get rid of the archaic practice of manual scavenging, along with giving the workers the basic dignity they deserve.
**Parth Khanna is an intern of the Vidhi Maharashtra Team
Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.