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New Act allows govt manual scavenging temporarily under certain conditions

By Jitendra Rathod*

The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 received assent of the President on September 18, 2013 and it was published in the Gazette of India on September 19, 2013. There is a general view among civil society organizations and like-minded individuals that the Act would eradicate the most inhuman practice of manual scavenging from India. After going through its provisions, it is not possible to support such a view. In fact, one is prompted to raise certain concerns and suggest that the Act is ineffective in addressing the issue of manual scavenging. It appears incapable of ending the practice of manual scavenging, which would continue to prevail in large parts of India, like before. 
Following is point-by-point critique of the Act:
Section 2 (1) (d) of the Act says that “hazardous cleaning” by an employee, in relation to sewer or septic tank, means its manual cleaning by such employee without the employer fulfilling his obligations to provide protective gear and other cleaning devices and ensuring observance of safety precautions, as may be prescribed or provided in any other law, for the time being, till the rules to fully implement the Act come into force.
Critique: The definition of “hazardous cleaning” in the Act will increase the incidence of entering the drainage/manhole to clean it up, and this would consequently lead to the death of manhole workers, as the Act allows manhole workers to enter the manhole, provided they wear protective gears. At the same time, the type of protective gears to be provided to the workers is not very clear – in fact, this will be mentioned in the rules to be framed subsequently.
Manhole workers should be allowed to enter into gutter only if they are full equipped with safety equipment like oxygen cylinder, torch, etc., and are constantly under observation from a remote compute. They must be provided professional training by training institutes such as fire brigade, and only certified manhole worker should be allowed to enter in after taking all necessary precautions and providing safety devices.
Section 2 (1) (e) of the Act says that “insanitary latrine” means a latrine which requires human excreta to be cleaned or otherwise handled manually, either in situ, or in an open drain or pit into which the excreta is discharged or flushed out, before excreta fully decomposes in such manner as may be prescribed. At the same time, it says that a water flush latrine in a railway passenger coach, when cleaned by an employee with the help of such devices and using such protective gear, as the Central government may notify, shall not be deemed to be an insanitary latrine.
Critique: The Indian Railways is one of the major promoters of manual scavenging, and by this Act it is exempted from the definition of insanitary latrines. So, the Indian Railways will continue to practice manual scavenging. Water flush latrine in a railway passenger coach at railway stations will make someone to clean manually human excreta, and the practice will continue to prevail like before.
Section 2 (1) (g) of the Act says that “manual scavenger” means a person engaged or employed at the commencement of this Act, or at any time thereafter, by an individual or local authority or agency or a contractor, for manually carrying, disposing of, or otherwise handling in any manner, human excreta in an insanitary latrine or in open drain or pit into which the human excreta from the insanitary latrines is disposed of, or on a railway track or in such other spaces or premises, as the Central government or a State government may notify, before excreta fully decomposes in such manner as may be prescribed, and the expression “ manual scavenging” shall be construed accordingly.
At the same time, as “explanation”, section 2 (1) (b) says that a person engaged or employed to clean excreta with the help of such devices and using such protective gears, as the Central government may notify, shall not be deemed to be a “manual scavenger”.
Critique: The Act has addressed only insanitary latrine or open drain or pit at a time when urbanization is rapidly spreading in India. Due to lack of sufficient public toilets and individual toilets, open defecation is widespread, and this leads to manual scavenging. In fact, the explanation in section 2 (1) (b) has killed the soul of the Act and it has legitimized manual scavenging by stating that it can be done by using protective gears and other devices. Manual scavenging must be prohibited in any form.
Section 4 (1) of the Act says that every local authority shall carry out a survey of insanitary latrines existing within its jurisdiction, and publish a list of insanitary latrines, in such manner as may be prescribed, within a period of two months from the date of commencement of this Act.
Critique: Here the Act talks identification of only insanitary latrines. But the Act does not mention identification of spots where open defecation is done, and consequently someone has to clean manually human excreta from these open spaces in urban areas. The local authorities have no willingness, time and expertise to conduct survey to identify insanitary latrines. There is also the possibility that local authorities would not identify actual number of insanitary latrines when insanitary latrines are constructed and maintained by them. Survey may be carried out, but it may remain on paper. Instead, the task to conduct survey may be given to a designated professional agency. Besides, the period of two months is insufficient to carry out survey of insanitary latrines.
Section 4 (2) of the Act says that steps should be taken to construct adequate number of sanitary community latrines, within such period not exceeding three years from the date of commencement of this Act, as the appropriate government may, by notification, specify, so as to eliminate the practice of open defecation in its jurisdiction.
Critique: It means that the practice of manual scavenging because of open defecation in most of the urban areas will continue for three years from the date of commencement of the Act!
Section 39 (1) of the Act says that the appropriate government may, by a general or special order published in the Official Gazette, for the reasons to be recorded, and subject to such conditions as it may impose, exempt any area, category of building or class of persons from any provisions of this Act or from any specified requirement contained in this Act or any rule, order, notification, byelaws or scheme made there under or dispense with the observance of any such requirement in a class or classes of cases, for a period not exceeding six months at a time.
Critique: This is a major gap in the Act as it empowers the government to exempt the provisions of the Act. And consequently, manual scavenging will continue to prevail. It is very shocking that the most inhumane practice will be allowed to continue for six months, in particular if the government intends to continue with it.
To sum up, the above provisions of the Act are not intended to eradicate manual scavenging in any form. The Act talks more about insanitary latrines, open drain and pit, at a time when widespread manual scavenging due to open defecation in most of the urban areas due to lack of sufficient sanitation continue. This has not been address effectively. Manual scavenging practiced in the Indian Railways, and especially coaches in trains, will continue like before.
Besides, the Act unfortunately says that manual handling of human excreta will not be considered as manual scavenging, provided it is done by providing safety equipment. So, manual scavenging will continue and will expand. Then, there are many loopholes with regard to definition of insanitary latrines, manual scavengers, the way the survey is to be done, the implementing authority etc. Worse, the Act does not speak about actions to be taken on the implementing authority for non-implementation of provisions of the Act.
Manual scavenging in any form and at any place must be stopped by the Act. It should not be practiced even by providing safety devices. Safety equipment are to be provided to sweepers for their better health and dignity. However, manual scavenging is an undignified work and must to be prohibited in any form. There should not be any exemption for effective implementation of the provisions of the Act. The Act has given sword to the government – it can provide devices and safety equipments to manual scavengers, and the practice would not be called manual scavenging!

Senior activist with Janvikas, Ahmedabad

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